Opinion
No. 56045-0-I.
October 9, 2006.
Appeal from a judgment of the Superior Court for King County, No. 98-1-01733-0, Douglas D. McBroom, J., entered March 10, 2005.
Counsel for Appellant(s), Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA, 98104-2362.
Affirmed by unpublished per curiam opinion.
Following his convictions for possession of cocaine and delivery of a substance in lieu of a controlled substance, Anthony Lee filed an unsuccessful appeal and personal restraint petition. More than four years after the mandate issued in his direct appeal, Lee filed, and now appeals the denial of, a motion to "correct sentencing errors." In that motion, he argued that his sentence on the current drug convictions must be served concurrently with his pre-SRA murder conviction and that the sentencing court erred in failing to conclude that his drug convictions encompassed the same criminal conduct. But as the State correctly points out, Lee's motion is time barred by RCW 10.73.090.
Lee argues that RCW 10.73.090 does not apply here for two reasons. First, he claims his motion was not a "collateral attack" on the judgment. But the statute applies to "any form of postconviction relief other than a direct appeal."
RCW 10.73.090(2). Second, he claims that his same criminal conduct argument falls within the time-bar exception for sentences "imposed . . . in excess of the court's jurisdiction [.]" RCW 10.73.100(5). He concedes, however, that this argument is controlled by our decision in In re Pers. Restraint of Vehlewald, 92 Wn. App. 197, 201, 963 P.2d 903 (1998) (rejecting argument that an incorrect offender score based on an erroneous same criminal conduct finding "implicates the jurisdiction of the trial court" and is therefore excepted from the time-bar statute under RCW 10.73.100). Lee offers no persuasive basis for concluding that Vehlewald is no longer good law or is inapplicable here.
Although the superior court did not deny the motion on this basis, we may affirm on any theory supported by the record. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
Lee's motion is also barred by RCW 10.73.140, which bars successive collateral attacks "on the same or substantially similar grounds." As noted above, Lee filed a personal restraint petition prior to filing the motion at issue here. Because that petition raised a substantially similar argument regarding his sentence sequence, the superior court was required to deny that portion of Lee's motion under RCW 10.73.140. Although Lee argues that RCW 10.73.140 does not apply to his motion below, our State Supreme Court has held that, like the time bar statute, RCW 10.73.140 applies to "any form of postconviction relief other than a direct appeal."
In re Pers. Restraint of Becker, 143 Wn.2d 491, 496, 20 P.3d 409 (2001).
In re Pers. Restraint of Lee, No. 48140-1-I (2001), CP 33.
Becker, 143 Wn.2d at 496.
Affirmed.
AGID and SCHINDLER, JJ.