          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           )                                          cp
  In the Matter of the Personal            )       DIVISION ONE
  Restraint of:                            )
                                           )       No. 72582-3-1                            •
  VINH QUANG TRAN,                         )
                                           )       UNPUBLISHED OPINION
                       Petitioner.         )
                                           )       FILED: October 2, 2017                  c.)
                                           )

          DWYER, J. — Vinh Quang Tran filed this personal restraint petition

  challenging his 2008 convictions resulting from a plea agreement. Tran contends

  that he was sentenced pursuant to an incorrect offender score, that he was

' unlawfully subject to double jeopardy, and that he can raise these claims in this

  belated petition because his judgment and sentence document is invalid on its

  face.

          With regard to the offender score claim, Tran does not establish that the

 judgment is invalid on its face. This is so because a lawful sentence was

  imposed upon him. Thus, that claim must be dismissed as time-barred.

  Furthermore, with regard to Tran's double jeopardy claim, his petition is—at

  best—a mixed petition. Mixed petitions must be dismissed in their entirety.

          Accordingly, we dismiss the petition.
No. 72582-3-1/2


                                              1

       In April of 2005, Tran entered into a plea agreement whereby he agreed to

plead guilty to committing one count of assault in the first degree, one count of

assault in the second degree, two counts of burglary in the first degree, and two

counts of robbery in the first degree. After agreeing to plead guilty, Tran

absconded from Washington. He was arrested three years later in Texas.

       On August 11, 2008, Tran was brought before the superior court for

sentencing and for judgment to be entered against him. At sentencing, the court

calculated an offender score for each of Tran's six offenses of conviction. Tran's

offender scores were based on a prior juvenile violent felony conviction and the

five other current felony convictions addressed in the plea agreement.

       As reflected in the judgment and sentence document, Tran's offender

score for the assault in the first degree offense was calculated to be 13 and his

offender score for each of the remaining offenses was calculated to be 12. As a

result, the judgment and sentence reflects the standard sentencing range

applicable to each offense's seriousness level measured against an offender

score of"9 or more."

       The court imposed sentence upon Tran for each offense at the highest

point of the respective standard ranges.'

       On August 27, 2014, Tran filed this personal restraint petition.




       1 The standard range sentences imposed on the burglary and robbery offenses reflected
a 60-month deadly weapon enhancement.


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No. 72582-3-1/3


                                           11

       Tran contends that the judgment and sentence is invalid on its face

because his offender scores were miscalculated. We disagree.

                                           A

       As a preliminary matter, we must determine whether Tran's personal

restraint petition is timely. It is not.

       The relevant statute provides:

       (1) No petition or motion for collateral attack on a judgment and
       sentence in a criminal case may be filed more than one year after
       thejudgment becomes final if the judgment and sentence is valid
       on its face and was rendered by a court of competent jurisdiction.
              (2) For the purposes of this section, "collateral attack" means
       any form of postconviction relief other than a direct appeal.
       "Collateral attack" includes, but is not limited to, a personal restraint
       petition, a habeas corpus petition, a motion to vacate judgment, a
       motion to withdraw guilty plea, a motion for a new trial, and a
       motion to arrest judgment.
              (3) For the purposes of this section, a judgment becomes
       final on the last of the following dates:
               (a) The date it is filed with the clerk of the trial court;
               (b) The date that an appellate court issues its mandate
       disposing of a timely direct appeal from the conviction; or
               (c) The date that the United States Supreme Court denies a
       timely petition for certiorari to review a decision affirming the
       conviction on direct appeal. The filing of a motion to reconsider
       denial of certiorari does not prevent a judgment from becoming
       final.

RCW 10.73.090(emphasis added).

       The judgment and sentence herein, predicated on Tran's plea agreement,

became final when it was filed with the clerk of the court on August 11, 2008.

Tran filed this personal restraint petition over six years later, on August 27, 2014.

Thus, Tran's personal restraint petition is untimely.




                                           3
No. 72582-3-1/4




        Having established that Iran's petition is untimely, we now address Tran's

asserted ground for relief from the one-year time bar.2

        Tran contends that the judgment and sentence is invalid on its face

because the superior court miscalculated his offender scores. Tran is wrong.

                                               1

        Our Supreme Court has instructed that "[g]enerally speaking, a judgment

and sentence is not valid on its face if it demonstrates that the trial court did not

have the power or the statutory authority to impose the judgment or sentence.

'Invalid on its face' does not mean that the trial judge committed some legal

error." In re Pers. Restraint of Scott, 173 Wn.2d 911, 916, 271 P.3d 218(2012).

"Thus, the general rule is that a judgment and sentence is not valid on its face if

the trial judge actually exercised authority (statutory or otherwise) it did not have."



       2 RCW 10.73.100 sets forth specific grounds for relief to which the one-year time bar
does not apply. It reads as follows:
                Collateral attack—When one year limit not applicable. The time limit
       specified in RCW 10.73.090 does not apply to a petition or motion that is based
       solely on one or more of the following grounds:
                (1) Newly discovered evidence, if the defendant acted with reasonable
       diligence in discovering the evidence and filing the petition or motion;
                (2) The statute that the defendant was convicted of violating was
       unconstitutional on its face or as applied to the defendant's conduct;
                (3) The conviction was barred by double jeopardy under Amendment V
       of the United States Constitution or Article I, section 9 of the state Constitution;
                (4)The defendant pled not guilty and the evidence introduced at trial was
       insufficient to support the conviction;
                (5)The sentence imposed was in excess of the court's jurisdiction; or
                (6) There 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 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.


                                               4
No. 72582-3-1/5


Scott, 173 Wn.2d at 917. "Otherwise, a judgment and sentence is valid on its

face even if the petitioner can show some error that might have received relief if

brought on direct review or in a timely personal restraint petition." Scott 173

Wn.2d at 917.3

        Our Supreme Court reiterated this rule shortly thereafter:

                Not every error will make a judgment facially invalid. As we
        recently reaffirmed in In re Personal Restraint of Coats, 173 Wn.2d
        123, 135, 267 P.3d 324(2011), this court has never held a
        judgment facially invalid so long as it did not exceed the sentencing
        court's statutory authority. We see no reason to break with our
        precedent today.
               For a judgment to exceed the court's statutory authority, we
        require more than an error that "invite[s] the court to exceed its
        authority"; the sentencing court must actually pass down a
        sentence not authorized under the SRA.[4] Coats, 173 Wn.2d at
        136. Therefore, we have held that where the sentencing court
        misstated the maximum sentence but actually handed down a
        sentence within the SRA-mandated sentencing range, the
        sentencing court acted within its statutory authority and an untimely
        personal restraint petition could not proceed. Id. at 143. In other
        words, a mere "technical misstatement that had no actual effect on
        the rights of the petitioner" does not establish facial invalidity. In re
        Pers. Restraint of McKiearnan, 165 Wn.2d 777, 783, 203 P.3d 375
        (2009).

In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d 759, 767, 297 P.3d 51 (2013).

        In applying this rule, our Supreme Court has focused on whether the court

erred by exceeding its statutory authority, not on whether the judgment and

sentence contains a defect. Thus, in Coats, our Supreme Court considered


         3 Although the justices of our Supreme Court issued a divided opinion in Scott, each
justice accepted Justice Chambers' citation of this general rule. This includes both the concurring
justices, who brokered no disagreement with this language in their concurrences, and the
dissenting justices, who quoted In re Personal Restraint of Coats, 173 Wn.2d 123, 135, 267 P.3d
324(2011), for the same proposition: "[A] careful review of our cases reveals that we have found
errors rendering a judgment invalid under RCW 10.73.090 only where a court has in fact
exceeded its statutory authority in entering the judgment or sentence." Scott, 173 Wn.2d at 925
(C. Johnson, J., dissenting)(alteration in original)(quoting Coates, 173 Wn.2d at 135).
         4 Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.




                                               -5-
No. 72582-3-1/6


petitioner Coats' contention that the judgment and sentence was facially invalid.

The court, "with these principles in mind," determined that,

      Coats is correct that his judgment and sentence contains an error.
      It misstated the maximum possible sentence for conspiracy to
      commit robbery as life when, in fact, the maximum sentence for that
      crime is 10 years. There is a defect in the judgment and sentence.
      But as we have discussed above, not every error renders a
      judgment and sentence invalid. Only where the court has erred by
      exceeding its authority has this court found the error rendered the
      judgment and sentence invalid. ... While the judgment and
      sentence misstated the maximum possible sentence for one count,
      Coats was in fact sentenced within the standard range of possible
      sentences for that offense. The court did not exceed its authority
      and the judgment and sentence is not facially invalid. Therefore,
      Coats's petition is time barred.

Coats, 173 Wn.2d at 143.

       Our Supreme Court applied this principle similarly in Toledo-Sotelo, 176

Wn.2d 759. There, the judgment and sentence contained a defect because it set

forth an offender score of 3(rather than 4) and a seriousness level of XII (rather

than X). It also set forth a standard range of 120 to 160 months but the text

setting forth "120 to 160" was scratched out and, adjacent thereto, "72-96" was

interlineated by hand. Toledo-Sotelo, 176 Wn.2d at 763, 767. The superior court

therein imposed a sentence of 84 months. Toledo-Sotelo, 176 Wn.2d at 763.

Our Supreme Court reasoned that,

      the proper sentencing range under the SRA is 72 to 96 months—
      precisely the sentencing range the trial court entered in its
      judgment and sentence. In addition, the actual sentence Toledo-
      Sotelo received was 84 months, in the precise middle of the
      standard range. In other words, the trial court reached the result
      required by the SRA, even if it made an error in the process leading
      up to that result. That is all this court has required because the
      only role of the offender score in the SRA is to determine the
      sentencing range, and for purposes of facial invalidity, we are
      interested in whether the sentencing range is accurately calculated.


                                         6
No. 72582-3-1/7


        For an erroneous offender score to poison an otherwise accurate
        and statutorily authorized sentencing range would not advance any
        policy purpose articulated in RCW 9.94A.010.

Toledo-Sotelo, 176 Wn.2d at 768(footnote omitted)(emphasis added).

        The judgment and sentence was not invalid on its face, the Supreme

Court held, because "the sentencing court arrived at the correct sentencing range

despite the error." Toledo-Sotelo, 176 Wn.2d at 768(emphasis added). Indeed,

"[d]espite the errors in Toledo-Sotelo's judgment and sentence, he was

sentenced according to the correct standard range under the SRA. Toledo-

Sotelo's judgment and sentence was valid on its face, and his petition is time

barred." Toledo-Sotelo, 176 Wn.2d at 770.

                                                2

       Tran contends that the judgment and sentence he attacks is invalid on its

face because the sentences imposed were based on offender scores that

erroneously included a juvenile felony conviction that should not have been

scored.5 The State responds that the judgment and sentence remains valid on

its face, notwithstanding the error. This is so, the State contends, because the

judgment and sentence reflects that the superior court did not exceed its

statutory authority in imposing sentence against Tran. We agree.

        The superior court's authority to impose sentence is derived from the SRA

and its amendments, codified at chapter 9.94A RCW. For the felony offenses

here at issue, the standard sentencing ranges are set forth in a sentencing grid




       5 The State concedes that Tran's juvenile conviction for robbery in the first degree, which
he committed at age 14, should not have been scored.


                                              -7-
No. 72582-3-1/8


and are derived from an offender score—calculated from the offender's prior and

current criminal history—and the seriousness level of the offense. See RCW

9.94A.510. As is evident from the sentencing grid, the standard sentencing

range increases as the seriousness level and offender score increase. See

RCW 9.94A.510.

       Notably, however, when an offender has an offender score that is equal to

9 or greater, the SRA treats such a score as "9 or more." RCW 9.94A.510. This

is significant because, when an offender score is categorized as "9 or more," the

standard range sentence authorized by the SRA at each seriousness level is the

same, regardless of whether the offender score is 9, 10, 11, 12, or 13(and so

on). RCW 9.94A.510.

       Here, the judgment and sentence reflects that the superior court imposed

sentence for each of Tran's offenses at the highest point in the respective

standard sentencing ranges. The standard sentencing ranges were those

authorized pursuant to each offense's seriousness level measured against an

offender score of"9 or more."

       In fact, the proper offender score for each of Tran's convictions was 10,

rather than 12 or 13.

       Tran thus asserts that the offender score defects render his judgment and

sentence invalid on its face. "But again, our test is concerned with the facial

validity of the judgment and sentence, not the process by which the sentencing

court arrives at that judgment." Toledo-Sotelo, 176 Wn.2d at 769. "[A] mere

'technical misstatement that had no actual effect on the rights of the petitioner'



                                         8
No. 72582-3-1/9


does not establish facial invalidity." Toledo-Sotelo, 176 Wn.2d at 767 (quoting

McKiearnan, 165 Wn.2d at 783).

       The judgment and sentence is valid on its face. Tran's argument ignores

that, regardless of the superior court's erroneous inclusion of the juvenile

conviction, an offender score of 10 results in an offender score of"9 or more."

This is significant because, on the face of Tran's judgment and sentence, it is

evident that the superior court determined the standard sentencing ranges to

apply based on an offender score of"9 or more."

       Thus, Tran was sentenced pursuant to the correct standard ranges.

Notwithstanding the defect in the judgment and sentence, the superior court

"reached the result required by the SRA," and the judgment and sentence is

thereby valid on its face. Toledo-Sotelo, 176 Wn.2d at 768.

       Accordingly, Tran's claim is time-barred.

                                         III

       Tran next contends that he was exposed to double jeopardy as a result of

having both the burglary in the first degree and robbery in the first degree

convictions reduced to judgment with sentences for each imposed upon him.

       We need not address the merits of this claim. This is so because, even if

Tran established that this claim was not time-barred (which we also need not

decide), his petition must be dismissed pursuant to the mixed petition rule.

              In a personal restraint petition filed after the one-year time
       bar, where one or more of the grounds asserted for relief falls within
       the exceptions in RCW 10.73.100 and one or more does not, the
       petition is "mixed" and the issues sought to be raised under an
       exception listed in RCW 10.73.100 must be dismissed. See In re
       Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194


                                        _9
No. 72582-3-1/10


      (2003); In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 697,
      702-03, 72 P.3d 703(2003);(In re Pers. Restraint of 1Stoudmire,
      141 Wn.2d [342,]349[, 5 P.3d 1240 (2000)].

In re Pers. Restraint of Wilson, 169 Wn. App. 379, 395, 279 P.3d 990 (2012).

       Our opinion in Wilson guides our analysis. There, the petitioner asserted

grounds for relief of insufficiency of the evidence and prosecutorial misconduct.

We declined to consider the merits of the insufficiency claim, concluding that,

      [e]ven though a claim for insufficiency of the evidence is listed in
      RCW 10.73.100 as an exception to the one-year time limit, Wilson's
      claim cannot be heard because it was "mixed" or included in an
      untimely amended petition with a claim of prosecutorial misconduct
      that does not fit any exception to the one-year time limit.

Wilson, 169 Wn. App. at 395. As a result, we dismissed Wilson's petition.

Wilson, 169 Wn. App. at 395.

       Here, Tran asserts a double jeopardy claim—which is listed in RCW

10.73.100 as an exception to the one-year time bar—in conjunction with the time-

barred offender score issue analyzed herein. Therefore, his petition is—at

best—mixed. We must dismiss his petition. Wilson, 169 Wn. App. at 395.

       Accordingly, Tran's petition is dismissed.




We concur:




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