Personal Restraint Petition Of Oscar Rodriguez ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal
Restraint Petition of: No. 83134-8-I
OSCAR RODRIGUEZ, PUBLISHED OPINION
Petitioner.
DWYER, J. — A personal restraint petition is exempt from the one-year
time limit for collateral attack on a judgment and sentence if the petition is based
on a significant change in the law that is both material and retroactive. Our
Supreme Court, in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409(2017), held that trial courts must have complete discretion to consider the
mitigating factors of youth when sentencing juveniles in order to prevent the
imposition of unconstitutionally disproportionate sentences. In this petition,
Oscar Rodriguez asserts that he is entitled to resentencing pursuant to Houston-
Sconiers. He contends that the rule pronounced therein is retroactive and, thus,
that his petition is exempt from the one-year time limit for collateral attack on a
judgment and sentence. We disagree.
Our Supreme Court has recently clarified that only the substantive rule of
Houston-Sconiers is retroactive; its procedural mandates are not. Rodriguez’s
sole assertion is that he is entitled to relief because the sentencing court did not
No. 83134-8-I/2
comply with Houston-Sconiers’s mandate that trial courts consider the mitigating
circumstances of youth when sentencing juveniles. He does not contend that he
is a juvenile with diminished culpability serving a disproportionate adult standard
range sentence. Because the procedural mandates of Houston-Sconiers are not
retroactive, Rodriguez’s asserted claim of error is subject to the one-year time
limit for collateral attack.
Rodriguez additionally asserts that he is entitled to resentencing because,
in calculating his offender score, the sentencing court considered his prior
conviction of unlawful possession of a controlled substance, a conviction
invalidated by our Supreme Court’s decision in State v. Blake, 197 Wn.2d 170,
481 P.3d 521 (2021). Again, we disagree. This claim of error would be exempt
from the one-year time limit for collateral attack only if excision of the
unconstitutional conviction rendered the judgment and sentence invalid on its
face. Here, it does not. Because the applicable standard range sentence would
remain the same following excision of his unlawful possession conviction,
Rodriguez’s judgment and sentence is valid on its face. Accordingly, this claim of
error, too, is subject to the one-year time limit for collateral attack.
Rodriguez’s personal restraint petition was filed more than one year after
his judgment and sentence became final. Both claims of error asserted therein
are time-barred. Accordingly, we deny relief and dismiss the petition.
I
Oscar Rodriguez was 15 years old when, in November 2011, he
accompanied his adult brother to a house in Whatcom County to sell heroin.
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Unbeknownst to Rodriguez and his brother, the intended buyer planned to
“shake them down for money” because he believed that they had “ripped
[someone] off for a couple ounces of drugs.” During the encounter, a shootout
ensued. The intended buyer was shot in the face, and his 22-year-old son was
fatally shot. Rodriguez and his brother fled to Mexico. Eight months later,
Rodriguez surrendered himself and returned to Whatcom County to face
charges.
Rodriguez was initially charged in juvenile court with two counts of
possession of a controlled substance with intent to deliver, assault in the first
degree, and murder in the second degree, all with firearm enhancements.
Pursuant to a stipulated agreement, Rodriguez thereafter declined juvenile court
jurisdiction and agreed to plead guilty in adult court to a sole charge of murder in
the second degree. The parties additionally agreed to propose a joint sentencing
recommendation of 172 months of incarceration, the midpoint of the applicable
standard range.
On April 25, 2013, Rodriguez entered a plea of guilty in adult court to
murder in the second degree. The trial court adopted the joint sentencing
recommendation of the parties and sentenced Rodriguez to 172 months of
incarceration.
In September 2021, Rodriguez filed a motion to vacate his judgment and
sentence pursuant to CrR 7.8. Rodriguez therein asserted that he is entitled to
resentencing because the trial court did not consider the mitigating
circumstances of youth at sentencing. He additionally asserted that resentencing
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is required because the trial court, in calculating his offender score, considered a
prior conviction for unlawful possession of a controlled substance.
The superior court transferred the matter to this court for consideration as
a personal restraint petition.
II
Rodriguez asserts that he is entitled to resentencing pursuant to our
Supreme Court’s decision in Houston-Sconiers because, he avers, the
sentencing court did not consider the mitigating circumstances of youth in
imposing a standard range sentence. Rodriguez filed this petition more than
eight years after his judgment and sentence became final. He contends,
however, that the Houston-Sconiers decision was a significant change in the law
that is both material and retroactive and, thus, that his petition is exempt from the
one-year time limit for collateral attack. We disagree.
In intervening decisional authority, our Supreme Court clarified that only
the substantive rule of Houston-Sconiers is retroactive; its procedural mandates
are not. Rodriguez herein asserts that he is entitled to resentencing because the
trial court did not comply with Houston-Sconiers’s mandate that courts consider
the mitigating qualities of youth when imposing sentence on juveniles. He does
not assert that he received a disproportionate sentence due to diminished
culpability resulting from his youth. Because Rodriguez does not assert a
violation of Houston-Sconiers’s substantive rule, his petition is not exempt from
the one-year time limit. Accordingly, this claim of error is time-barred.
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No. 83134-8-I/5
A
A personal restraint petition challenging a judgment and sentence must be
filed within one year after the judgment becomes final “if the judgment and
sentence is valid on its face and was rendered by a court of competent
jurisdiction.” RCW 10.73.090(1). However, a petition is exempt from this time
limit when it “is based on a significant change in the law, which is material to the
conviction or sentence, and sufficient reasons exist to require retroactive
application of the changed legal standard.” In re Pers. Restraint of Ali, 196
Wn.2d 220, 233, 474 P.3d 507 (2002) (citing RCW 10.73.100(6)1); see also RAP
16.4(c)(4).2
Our Supreme Court, in recognition that “‘children are different’ under the
Eighth Amendment,” has held that “sentencing courts must have complete
discretion to consider mitigating circumstances associated with the youth of any
juvenile defendant, even in the adult criminal justice system.” Houston-Sconiers,
188 Wn.2d at 9, 21. “Trial courts,” the Supreme Court announced, “must
consider mitigating qualities of youth at sentencing and must have discretion to
1 RCW 10.73.100(6) provides that the one-year time limit for collateral attack does not
apply if the petition or motion is based on
a significant change in the law, whether substantive or procedural, which is
material to the conviction, sentence, or other order entered in a criminal or civil
proceeding instituted by the state or local government, and either the legislature
has expressly provided that the change in the law is to be applied retroactively,
or a court, in interpreting a change in the law that lacks express legislative intent
regarding retroactive application, determines that sufficient reasons exist to
require retroactive application of the changed legal standard.
2 Restraint is unlawful when
[t]here has been a significant change in the law, whether substantive or
procedural, which is material to the conviction, sentence, or other order entered
in a criminal proceeding or civil proceeding instituted by the state or local
government, and sufficient reasons exist to require retroactive application of the
changed legal standard.
RAP 16.4(c)(4).
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No. 83134-8-I/6
impose any sentence below the otherwise applicable [Sentencing Reform Act
(SRA)] range and/or sentence enhancements.” Houston-Sconiers, 188 Wn.2d
at 21.
Relevant to the timeliness of petitions for collateral relief, the high court
subsequently explained that “Houston-Sconiers announced a new substantive
rule that must be applied retroactively.” Ali, 196 Wn.2d at 242; see also In re
Pers. Restraint of Domingo-Cornelio, 196 Wn.2d 255, 266, 474 P.3d 524 (2020).
It explained that
Houston-Sconiers established a category of punishments that are
prohibited: adult standard SRA ranges and enhancements that
would be disproportionate punishment for juveniles who possess
diminished culpability. It also established a mechanism necessary
to effectuate that substantive rule: sentencing courts must consider
the mitigating qualities of youth and have discretion to impose
sentences below what the SRA mandates.
Ali, 196 Wn.2d at 237. “Houston-Sconiers is substantive,” the court explained,
“because it placed certain adult sentences beyond courts’ authority to impose on
juveniles who possess such diminished culpability that the adult standard SRA
ranges and enhancements would be disproportionate punishment.” Ali, 196
Wn.2d at 239. The court held that “Houston-Sconiers constitutes a significant
and material change in the law that requires retroactive application.” Ali, 196
Wn.2d at 226.
Our Supreme Court “has since confirmed that Houston-Sconiers’s
procedural ‘dual mandates’ are not retroactive and therefore do not apply on
collateral review to a sentence that is long final.” In re Pers. Restraint of
Carrasco, 1 Wn.3d 224, 233, 525 P.3d 196 (2023) (citing In re Pers. Restraint of
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Williams, 200 Wn.2d 622, 631-32, 520 P.3d 933 (2022)). Instead, “the rule
announced by Houston-Sconiers that applies retroactively . . . is the substantive
rule that courts may not impose ‘certain adult sentences . . . on juveniles who
possess such diminished culpability that the adult standard SRA ranges and
enhancements would be disproportionate punishment.’” In re Pers. Restraint of
Hinton, 1 Wn.3d 317, 331, 525 P.3d 156 (2023) (second alteration in original)
(quoting Ali, 196 Wn.2d at 239); see also Carrasco, 1 Wn.3d at 233.
Thus, a petitioner who alleges only procedural error pursuant to Houston-
Sconiers is not entitled to collateral relief.3 Carrasco, 1 Wn.3d at 237. In
Carrasco, the petitioner sought resentencing based solely on the allegation that
“he [was] serving an unconstitutional sentence because the sentencing court
failed to comply with the dual mandates of Houston-Sconiers.” 1 Wn.3d at 229-
30. This was insufficient to establish an entitlement to collateral relief, the court
held, explaining that “[a] violation of that procedural right does not lead to the
conclusion that [a petitioner] is serving an unconstitutional sentence under the
Eighth Amendment.” Carrasco, 1 Wn.3d at 237. Because the petitioner there
had not “argue[d] that he [was] a ‘juvenile with diminished culpability’ serving a
disproportionate adult standard SRA range sentence,” the Supreme Court
concluded that he was not entitled to relief. Carrasco, 1 Wn.3d at 237; see also
Hinton, 1 Wn.3d at 323 (holding that a sentencing court’s “failure to adhere to
3 Our Supreme Court did not address in Carrasco whether the petition filed therein was
timely. Rather, because the State had not challenged the Court of Appeals’ determination that
the petition was exempt from the time bar, “the sole issue before [the court was] whether [the
petitioner had] established grounds for relief in his [petition].” Carrasco, 1 Wn.3d at 230.
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Houston-Sconiers’s procedural rule . . . provides no basis for relief because
procedural rules do not apply retroactively”).
B
In this petition, Rodriguez asserts that he is entitled to resentencing
because “the court did not consider and weigh the six factors[4] required under
Houston-Sconiers.”5 Rodriguez’s supplemental briefing states:
Because Houston-Sconiers is a significant change in the law,
retroactive, and material to Oscar’s case, and because Oscar can
demonstrate prejudice, this Court should grant this PRP and remand
for a new sentencing hearing. RAP 16.4(4),[6] RCW 10.73.100(6).
II. Issues Presented
1. Whether Oscar meets an exception to the time bar under RCW
10.73.100(6)?
2. Whether actual and substantial prejudice exists where a
sentencing court fails to consider the Houston-Sconiers factors
and fails to appreciate it had absolute discretion to depart from
the SRA, even in a sentencing after a negotiated plea deal?[7]
Rodriguez’s petition was filed more than eight years after his judgment
and sentence became final. He nevertheless asserts that, because Houston-
Sconiers constitutes a “significant change in the law,” RCW 10.73.100(6), his
petition is exempt from the applicable time bar. Not so. As our Supreme Court
has clarified, it is only the substantive rule of Houston-Sconiers that is retroactive.
4 The court in Houston-Sconiers listed the mitigating circumstances of youth to be
considered by a sentencing court, including “age and its ‘hallmark features,’” “the nature of the
juvenile’s surrounding environment and family circumstances, the extent of the juvenile’s
participation in the crime,” “‘the way familial and peer pressures may have affected him [or her],’”
“how youth impacted any legal defense,” and “any factors suggesting that the child might be
successfully rehabilitated.” 188 Wn.2d at 23 (alteration in original) (quoting Miller v. Alabama,
567 U.S. 460, 477, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)).
5 Supp. Br. of Petitioner at 2.
6 The correct citation should have been to RAP 16.4(c)(4).
7 Supp. Br. of Petitioner at 2-3.
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Carrasco, 1 Wn.3d at 232; Hinton, 1 Wn.3d at 331. Rodriguez does not contend
“that he is a ‘juvenile with diminished culpability’ serving a disproportionate adult
standard SRA range sentence.” Carrasco, 1 Wn.3d at 237. Rather, he asserts
only that the trial court erred by not considering the mitigating circumstances of
youth at sentencing. As such, the error that he alleges “is a procedural one.”
Carrasco, 1 Wn.3d at 237. A violation of the “procedural right” of Houston-
Sconiers “does not lead to the conclusion that [the petitioner] is serving an
unconstitutional sentence under the Eighth Amendment.” Carrasco, 1 Wn.3d at
237.
In asserting sentencing error pursuant to Houston-Sconiers, Rodriguez
avers only that the trial court failed to comply with procedural mandates set forth
therein. These procedural requirements, however, are not retroactive in their
application. Accordingly, this claim of error is not exempt from the one-year time
limit for collateral relief. Because Rodriguez asserts only Houston-Sconiers
procedural error, his claim is time-barred.
III
Rodriguez additionally asserts that he is entitled to resentencing because
the sentencing court, in calculating his offender score, considered his prior
conviction for unlawful possession of a controlled substance, a conviction
invalidated by Blake, 197 Wn.2d 170. We disagree. As our Supreme Court has
made clear, a judgment and sentence is not facially invalid, for purposes of
exempting a personal restraint petition from the one-year time limit, if the
sentence imposed is within the standard range that would apply following
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No. 83134-8-I/10
excision of the unconstitutional conviction. In re Pers. Restraint of Richardson,
200 Wn.2d 845, 847, 525 P.3d 939 (2022). Because Rodriguez’s offender score
would remain the same were the unlawful possession conviction excised from
the judgment, his judgment and sentence is not facially invalid. Accordingly, this
claim of error is barred by the one-year time limit for collateral attack.
If a judgment and sentence “is valid on its face and was rendered by a
court of competent jurisdiction,” a petition or motion for collateral attack must be
filed within one year after the judgment becomes final. RCW 10.73.090(1). “[T]o
avoid RCW 10.73.090’s one-year time bar on challenging judgments that are
valid on their face, the error must render the judgment and sentence ‘invalid.’” In
re Pers. Restraint of Coats, 173 Wn.2d 123, 135, 267 P.3d 324 (2011). An error
renders a judgment invalid for purposes of the time limit on collateral attack when
the sentencing court exceeded its statutory authority in entering the judgment
and sentence. Coats, 173 Wn.2d at 135. Thus, when a petitioner challenges a
sentence on the basis that the offender score included an invalid prior conviction,
the judgment and sentence is not rendered invalid if the applicable standard
range would remain the same following excision of that conviction. Richardson,
200 Wn.2d at 847.
Indeed, our Supreme Court has considered the very issue raised herein
by Rodriguez. In Richardson, the petitioner challenged his judgment and
sentence on the basis that the sentencing court had erroneously considered a
prior unlawful possession conviction in calculating his offender score. 200 Wn.2d
at 846-47. However, removing the invalid conviction from the offender score
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would not have changed the applicable standard range. Richardson, 200 Wn.2d
at 847. Because the trial court had imposed a sentence within that range, the
sentence was statutorily authorized. Richardson, 200 Wn.2d at 847.
Accordingly, the court held, the judgment and sentence was not facially invalid
for purposes of exempting the petition from the time bar for collateral attack.
Richardson, 200 Wn.2d at 847 (citing Coats, 173 Wn.2d at 136; In re Pers.
Restraint of Toledo-Sotelo, 176 Wn.2d 759, 768-70, 297 P.3d 51 (2013)).
Here, Rodriguez concedes that the sentencing court’s consideration of his
unlawful possession conviction did not affect his offender score, which was
calculated as zero. Thus, the applicable standard range would remain the same
following excision of the invalid conviction from the judgment and sentence. The
trial court imposed a statutorily authorized sentence within that range, and, thus,
Rodriguez’s judgment and sentence is not facially invalid for purposes of RCW
10.73.090(1). Accordingly, this claim of error, too, is subject to the one-year time
limit for collateral attack.
IV
Rodriguez asserts, in this personal restraint petition, that he is entitled to
resentencing on two grounds—that the sentencing court did not consider the
mitigating circumstances of youth, as required by Houston-Sconiers, and that the
court erroneously considered an unlawful possession conviction, invalidated by
Blake, in calculating his offender score. Because Rodriguez’s petition was filed
more than one year after the judgment became final, the petition is time-barred
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No. 83134-8-I/12
unless Rodriguez demonstrates that the judgment and sentence is invalid on its
face or meets an exemption set forth in RCW 10.73.100. He fails to do so.
With regard to the purported Houston-Sconiers error, Rodriguez asserts
only that the sentencing court failed to comply with the procedural mandate that
courts consider the mitigating circumstances of youth when sentencing juveniles.
However, only the substantive rule of Houston-Sconiers is retroactive. Carrasco,
1 Wn.3d at 232; Hinton, 1 Wn.3d at 331. Thus, the time-bar exemption for a
“significant change in the law,” RCW 10.73.100(6), does not apply.
Nor does Rodriguez demonstrate that he is entitled to relief because the
sentencing court considered an invalid prior conviction in calculating his offender
score. Because the sentence imposed was authorized by statute, even following
excision of the invalid conviction, the judgment and sentence is valid on its face.
Thus, this claim of error, too, is subject to the one-year time limit for collateral
attack.
Both claims of error asserted by Rodriguez are time-barred pursuant to
RCW 10.73.090(1). Accordingly, we deny relief and dismiss his personal
restraint petition.
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WE CONCUR:
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