Opinion
No. 34069-1-II; 34462-9-II.
December 26, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 02-1-03592-4, Rosanne Buckner, J., entered November 10, 2005, together with a petition for relief from personal restraint.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, Tacoma, WA.
Counsel for Petitioner(s), James Stephen Coon Jr. (Appearing Pro Se), Puyallup, WA.
Counsel for Respondent(s), Michelle Hyer, Pierce County Prosecutor, Tacoma, WA.
Judgment affirmed and petition denied by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Van Deren, J.
James Stephen Coon appeals his resentencing on his convictions for unlawful manufacturing of a controlled substance and unlawful possession of pseudoephedrine with intent to manufacture methamphetamine. He argues that (1) former RCW 69.50.401(a)(ii) (2002) criminalizes manufacture of a methamphetamine base only, and (2) the trial court committed a Blakely error in sentencing him without previously having required the jury to determine whether Coon manufactured or intended to manufacture a methamphetamine base. In his consolidated personal restraint petition (PRP), Coon contends that the trial court wrongly counted his prior drug offense as a felony, which resulted in a miscalculated offender score and an erroneous sentence. We affirm Coon's sentence and deny his personal restraint petition.
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 403 (2004).
FACTS
We recite only those facts relevant to resolving the issues raised in this consolidated appeal and PRP. A jury convicted Coon of unlawful manufacturing of a controlled substance (Count I) and unlawful possession of pseudoephedrine with intent to manufacture methamphetamine (Count II). He appealed his convictions and sentences.
On December 28, 2004, in an unpublished opinion, we affirmed Coon's convictions, held that the evidence the State presented at sentencing was insufficient to show that his Montana conviction was comparable to a Washington crime for offender score inclusion, and remanded to the trial court for resentencing without consideration of that conviction. On remand, the trial court recalculated Coon's offender score without the Montana conviction and resentenced him to concurrent, low-end standard-range terms of 98 months on Count I and 41 months on Count II.
State v. Coon, No. 29869-4-II, 2004 Wash. App. Lexis 3122 at *27-28 (December 28, 2004).
Coon now appeals his resentencing. He has also filed a personal restraint petition challenging his convictions and resentencing. We have consolidated his PRP with his direct appeal.
ANALYSIS I. Direct Appeal of Resentencing
Coon argues that (1) to prove the charges against him, former RCW 69.50.401(a)(1)(ii) required the State to prove the existence of a methamphetamine base; (2) the evidence the State produced at trial did not distinguish between methamphetamine base and methamphetamine hydrochloride; (3) the trial court erred by failing to instruct the jury that it must determine whether the substance Coon possessed was methamphetamine base or methamphetamine hydrochloride; and (4) absent such jury determination, Coon received a more severe sentence under former RCW 69.50.401(a)(1)(ii), which violated Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 403 (2004). More specifically, Coon contends that "[i]n order to receive the more severe sentence the jury would have had to make a factual finding that the substance [Coon possessed or manufactured] was methamphetamine base, not methamphetamine hydrochloride." Br. of Appellant at 12. This argument fails.
The State asserts that Coon cannot now argue on direct appeal that his original jury failed to find him guilty of manufacturing methamphetamine base because he previously exercised his right to appeal any errors that occurred during his trial. The State is correct. When a defendant has already had one direct appeal of any trial errors and that appeal results in a remand for resentencing, the only issues he may raise on a subsequent appeal following his resentencing are any alleged errors that occurred during that resentencing. See State v. Bradfield, 29 Wn. App. 679, 683, 630 P.2d 494, review denied, 96 Wn.2d 1018 (1981).
Coon has advanced no reason for his failure to raise this RCW 69.50.401(a)(1)(ii)-based issue in his previous direct appeal. Nonetheless, in an abundance of caution and an attempt to conserve judicial resources, we address the merits of Coon's argument insofar as it might bear on the legality of his resentencing. See the PRP section of our analysis, infra.
To Coon's appellate counsel's credit, she cites State v. Cromwell, 127 Wn. App. 746, 112 P.3d 1273 (2005), as "[t]he only published opinion that disagrees with Mr. Coon's analysis." Br. of Appellant at 20. Since filing her brief, however, our Supreme Court recently affirmed Division I's opinion in State v. Cromwell, 157 Wn.2d 529, 140 P.3d 593 (2006). In so doing, the Court unanimously (1) clarified that the plain language of former RCW 69.50.401(a)(1)(ii) encompassed all forms of methamphetamine, including hydrochloride (salts); and (2) held that, for purposes of former RCW 69.50.401(a)(1)(ii), there is no distinction between methamphetamine base or hydrochloride. Cromwell, 157 Wn.2d 535-36.
Under Cromwell, whether Coon possessed or manufactured a methamphetamine base or methamphetamine hydrochloride is irrelevant to proving the crime proscribed by RCW 69.50.401(a)(1)(ii). That Coon possessed or manufactured a methamphetamine base or methamphetamine hydrochloride is sufficient proof under the statute, which does not distinguish between the two for sentencing purposes. Thus, Coon's argument that he improperly received a more severe sentence than warranted by the evidence and jury verdict fails.
II. Personal Restraint Petition
Echoing arguments from his direct appeal in his PRP, Coon contends that his restraint is unlawful because (1) former RCW 69.50.401(a)(1)(ii) required the State to prove beyond a reasonable doubt that he manufactured methamphetamine base, as distinguished from methamphetamine hydrochloride; (2) the State failed to prove beyond a reasonable doubt that he manufactured methamphetamine base and that he possessed pseudoephedrine with the intent to manufacture methamphetamine base; (3) the trial court erred in failing to instruct the jury that, in order to find him guilty, they had to find he had manufactured, or possessed with the intent to manufacture, a methamphetamine base; (4) his resentencing violated his 6th and 14th amendment rights because a jury did not first find that he manufactured or possessed with intent to manufacture methamphetamine base, as required by Blakely; and (5) the trial court miscalculated his offender score by improperly including a misdemeanor conviction. Both of Coon's challenges fail.
See n. 9.
U.S. Const. amend XIV, § 1.
A. PRP Requirements
Because collateral attacks, such as personal restraint petitions, may undermine the principles of finality of litigation, degrade the prominence of trial, and sometimes cost society the right to punish admitted offenders, our courts have purposefully imposed limitations on these collateral attacks. In re Pers. Restraint of Cook, 114 Wn.2d 802, 809, 792 P.2d 506 (1990). Therefore, to be entitled to relief in a personal restraint petition, as contrasted with a direct appeal, Coon must meet several special requirements.
First, a petition must be timely under former RCW 10.73.090(1) (2002), which provides:
No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than 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.
Second, a petitioner can obtain relief only for restraint that is unlawful for the limited reasons set forth in the rules defining the procedure. RAP 16.4(c); Cook, 114 Wn.2d at 809. Third, a petitioner cannot obtain relief by PRP if he has other adequate remedies. RAP 16.4(d). Fourth, a petitioner cannot raise grounds previously decided on the merits, either in a prior PRP or on appeal, without demonstrating good cause (prior petition) or that the interests of justice require relitigation (prior appeal). See RAP 16.4(d); Cook, 114 Wn.2d at 806-07, 813 (prior petition); In re Pers. Restraint of Brown, 143 Wn.2d 431, 445, 21 P.3d 687 (2001) (prior appeal).
Although PRPs raising issues not raised at trial or on appeal are no longer absolutely barred, special restrictions still apply. In re Pers. Restraint of Hews, 99 Wn.2d 80, 85-87, 660 P.2d 263 (1983). Thus, a fifth limitation is that a petitioner claiming constitutional error must demonstrate actual prejudice from the error before we will consider the merits. Hews, 99 Wn.2d at 87; see also In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-30, 823 P.2d 492 (1992). Sixth, a petitioner claiming non-constitutional error must "establish that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Cook, 114 Wn.2d at 812; see also In re Pers. Restraint of Fleming, 129 Wn.2d 529, 532-34, 919 P.2d 66 (1966).
These six limitations are threshold requirements, without which we will not reach the merits of a petitioner's arguments. Nonetheless, even meeting these threshold requirements does not automatically entitle a petitioner to relief. After demonstrating these threshold requirements, a PRP petitioner must meet additional requirements to obtain the desired relief.
But see In re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004) (the required threshold showings of actual prejudice or complete miscarriage of justice are not required when "the petitioner has not had a prior opportunity for judicial review").
RAP 16.7(a)(2)(i) requires a petitioner to provide both "[a] statement of . . . the facts upon which the claim . . . is based and the evidence available to support the factual allegations." Accordingly, a seventh procedural PRP requirement is that the "the petitioner must state with particularity facts which, if proven, would entitle him to relief"; "bald assertions" and "conclusory allegations" are not enough. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992); Cook, 114 Wn.2d at 813-14; In re Pers. Restraint of Williams, 111 Wn.2d 353, 364-65, 759 P.2d 436 (1988).
Eighth, "the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief." Claims about what other persons might say must be supported by "their affidavits or other corroborative evidence" consisting of competent and admissible evidence. Rice, 118 Wn.2d at 886; see Cook, 114 Wn.2d at 813-14; Williams, 111 Wn.2d at 364-65. These seventh and eighth factual basis and evidentiary support requirements are threshold procedural bars. We must refuse to reach the merits of any petition that fails to comply. Cook, 114 Wn.2d at 814.
Finally, if a petitioner clears these procedural hurdles, he still must prove by a preponderance of the evidence the error that makes his restraint unlawful — the ninth requirement. See St. Pierre, 118 Wn.2d at 328; Cook, 114 Wn.2d at 814.
Coon timely filed his personal restraint petition. He has met all requirements for our review of his resentencing, but he has not met these requirements for our review of his convictions.
B. Collateral Challenge to Convictions
The first four reasons Coon recites in support of his PRP essentially restate the arguments he asserts in his direct appeal of his resentencing. These arguments fail to meet PRP threshold requirements five and six because, in light of the Supreme Court's recent Cromwell decision, Coon can no longer demonstrate his claimed error, see Hews, 99 Wn.2d at 85-87; St. Pierre, 118 Wn.2d at 328-30, or "a fundamental defect which inherently results in a complete miscarriage of justice." Cook, 114 Wn.2d at 812. Thus, Coon's PRP collateral attack on his convictions fails.
C. Collateral Challenges to Offender Score on Resentencing
The fifth reason Coon recites in support of his PRP is that the trial court improperly included a misdemeanor conviction, namely attempted unlawful methamphetamine possession, in calculating his offender score. Citing former RCW 9A.28.020(3)(c) (1998), he contends that because this prior offense was a criminal attempt, it was a gross misdemeanor, not a felony, and, therefore, could not be counted.
The State responds that former RCW 9.94A.525(4) treated prior convictions for "anticipatory offenses," including "attempts" such as the one at issue here, "the same as if they were convictions for completed offenses" for offender score calculation purposes. Coon does not take issue with this interpretation of the law in his Reply Brief. We agree with the State that the resentencing court did not err in counting Coon's prior attempted drug offense as a felony in calculating his offender score Thus, Coon's collateral attack on his resentencing also fails.
Current RCW 9.94A.345 clarifies that the applicable sentencing statute "shall be determined in accordance with the law in effect when the current offense is committed." Coon was arrested on August 1, 2002, and charged on December 2, 2002. Therefore the applicable sentencing statute is former RCW 9.94A.525, effective July 1, 2002, through June 30, 2003.
Although "a sentencing error can be addressed for the first time on appeal under RAP 2.5 . . ., [State v.] Moen, 129 Wn.2d [535,] 543, [ 919 P.2d 69 (1996)]," PRP limitations still apply when a defendant attempts to attack his offender score collaterally in a PRP:
In order to obtain relief by way of personal restraint petition, however, a person must establish (1) he or she is being unlawfully restrained, (2) due to a "fundamental defect which inherently results in a complete miscarriage of justice." In re Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990). We place this additional burden on prisoners' access to collateral relief because such relief "`undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders.'" In re Cook, 114 Wn.2d at 809 (quoting In re Hews, 99 Wn.2d 80, 86, 660 P.2d 263 (1983)).
In re Restraint of Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996).
Goodwin turned on the fact that that defendant's sentence contained obvious errors. [In re Pers. Restraint of Goodwin, 861,] 875-76, [ 50 P.3d 618 (2002)]. To invoke the waiver analysis set forth in Goodwin, a defendant must first show on appeal or by way of personal restraint petition that an error of fact or law exists within the four corners of his judgment and sentence. See id. Here, neither Hunter nor Legrone has met this initial threshold requirement since, pursuant to our decision in Ford neither has shown that the sentencing court committed any arguable factual or legal error by including their prior out-of-state and/or federal convictions in their offender score.
State v. Ross, 152 Wn.2d 220, 231-32, 95 P.3d 1225 (2004) (emphasis added).
Accordingly, we affirm Coon's sentence and deny his personal restraint petition.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Hunt, J.
We concur:
Houghton, C.J.
Van Deren, J.