IN RE: the Personal Restraint Petition of JOHN A. RICHARDSON III (2022)

ORDER

Department II of the Court, composed of Chief Justice González and Justices Madsen, Stephens, Yu and Whitener (Justice Whitener recused and Justice Gordon McCloud sat for Justice Whitener), considered this matter at its November 8, 2022, Motion Calendar and unanimously agreed that the following order be entered.

John Richardson was convicted in Pierce County Superior Court Cause No. 08-1-01644-9 of first degree intentional murder and second degree unlawful possession of a firearm. His offender score was calculated at 10, with a standard range for the murder conviction (with a firearm enhancement) of 471 to 608 months. The superior court imposed a prison sentence of 608 months. The judgment and sentence became final on direct appeal on December 1, 2011. On September 13, 2021, Richardson filed a personal restraint petition in Division Two of the Court of Appeals, among other things challenging the sentence on the basis the offender score erroneously included a prior conviction for attempted possession of a controlled substance, a conviction now invalid under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). The Court of Appeals granted the petition in part, holding that the offender score error constituted a facial sentencing defect exempting Richardson's personal restraint petition from the one-year time limit on collateral review pursuant to RCW 10.73.090(1). The court determined that in light of this error, Richardson was entitled to resentencing with the superior court having the correct offender score in mind, and it remanded to the superior court for that purpose. The State filed a motion for discretionary review in this court.

Richardson's judgment and sentence is not facially invalid for purposes of exempting the personal restraint petition from the time limit. Removing from the offender score the prior conviction for attempted possession of a controlled substance reduces the score from 10 to 9, but at a score of 9 Richardson's standard range remains 471 to 608 months. See RCW 9.94A.510 (highest standard range reached at offender score of 9 or more). The superior court imposed a sentence within that range and therefore the sentence was authorized. In this circumstance, the judgment and sentence is not facially invalid. In re Pers. Restraint of Coats, 173 Wn.2d 123, 136, 267 P.3d 324 (2011); In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d 759, 768-70, 297 P.3d 51 (2013).

IT IS ORDERED:

That the State's motion for discretionary review is granted, and the Court of Appeals decision granting the personal restraint petition in part and remanding for resentencing is reversed.

For the Court

THE SUPREME COURT OF WASHINGTON

In the Matter of the Personal Restraint of: JOHN A. RICHARDSON III, Respondent.

No. 101043-5

ORDER

Court of Appeals No. 56216-2-II

Department II of the Court, composed of Chief Justice González and Justices Madsen, Stephens, Yu and Whitener (Justice Johnson sat for Justice Whitener), considered five motions to publish at its March 7, 2023, Motion Calendar and unanimously agreed that the following order be entered.

IT IS ORDERED:

That the motions to publish are granted and the order filed in this case on November 14, 2022, shall be published in Washington Reports.

DATED at Olympia, Washington, this 10th day of March, 2023.

For the Court