          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the                     )       No. 75082-8-1 consolidated with
                                         )       No. 75083-6-1
Personal Restraint Petition of           )
                                         )       DIVISION ONE
TROY D. STUBBS,                          )
                                         )       UNPUBLISHED OPINION
                       Petitioner.       )
                                         )       FILED: March 5, 2018

       MANN, J. —Troy Stubbs seeks relief from personal restraint imposed following

his conviction for second degree burglary and his conviction for taking a motor vehicle,

convictions that both occurred in 1985. In April 2016, he filed a personal restraint

petition challenging both 1985 convictions. Because his petition is time barred and

because he does not seek the only relief he is entitled to, we dismiss the petition.

                                         FACTS

       In 1980, when Troy Stubbs was 14 years old, he committed two crimes: second

degree burglary and taking a motor vehicle. In 1985, when he was 19 years old, Stubbs

pleaded guilty to and was convicted of two more crimes: taking a motor vehicle without

the owner's permission and second degree burglary. The sentencing court in the latter

case included Stubbs's juvenile crimes from 1980 in calculating his offender scores in

the 1985 sentences.
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       Stubbs's date of birth is not listed on either his 1985 judgment and sentence for

second degree burglary or his 1985 judgment and sentence for taking a motor vehicle.

But the 1985 statement of defendant on plea of guilty for second degree burglary and

the 1985 statement of defendant on plea of guilty for taking a motor vehicle both give

his age as "19."

       Stubbs is currently serving a prison sentence for an unrelated crime. Stubbs filed

this petition on April 13, 2016.

                                       ANALYSIS

       RCW 10.73.090 requires a petitioner to file a personal restraint petition within

one year after the judgment and sentence becomes final. As a petitioner, Stubbs bears

the burden of proving that his petition is timely. In re Pers. Restraint of Quinn, 154 Wn.

App. 816, 831, 226 P.3d 208 (2010).

       Stubbs concedes that he filed his petition challenging the two 1985 judgment and

sentences more than one year after those judgment and sentences became final.

Accordingly, we will dismiss the petition unless Stubbs demonstrates that the judgment

and sentences are facially invalid or that an exception to the time bar under RCW

10.73.100 applies.

                         Facially invalidjudgment and sentences

       Stubbs contends that his 1985 judgment and sentence for second degree

burglary and his 1985 judgment and sentence for taking a motor vehicle are facially

invalid because the sentencing court miscalculated his offender scores by improperly

counting two juvenile convictions toward his offender scores.



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No. 75082-8-1/3


       A petitioner is unlawfully restrained when she or he is sentenced on the basis of

an incorrect offender score. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 867-68,

50 P.3d 618 (2002). "This is because a sentencing court acts without statutory authority

when it imposes a sentence based on a miscalculated offender score." Goodwin, 146

Wn.2d at 868. "A judgment and sentence is facially invalid if the trial court lacked

authority to impose the challenged sentence." In re Pers. Restraint of Snively, 180

Wn.2d 28, 32, 320 P.3d 1107 (2014).

       The version of the Sentencing Reform Act of 1981 in place when Stubbs

committed second degree burglary and taking a motor vehicle only allowed a

sentencing court to count juvenile offenses toward an adult's offender score if the

offender was 15 or older at the time the offense was committed. See former RCW

9.94A.030(8)(b)(1984)("`Criminal history' includes a defendant's convictions or pleas of

guilty in juvenile court if: (i) The guilty plea or conviction was for an offense which is a

felony and is criminal history as defined in RCW 13.40.020(6)(a); and (ii) the defendant

was fifteen years of age or older at the time the offense was committed; and (iii) the

defendant had not reached his or her twenty-third birthday at the time the offense for

which he or she is being sentenced was committed.").

       Stubbs committed his crimes on May 14, 1985 and August 20, 1985. He

committed his juvenile offenses on April 17, 1980 and May 9, 1980. If Stubbs was 19 in

1985, then he would have been 14 in 1980, which means that he committed his juvenile

offenses when he was younger than 15. Because he was younger than 15 when he

committed his juvenile offenses, those crimes should not have been included in his

offender score in 1985. Former RCW 9.94A.030(8)(b); former RCW 9.94A.360(1)

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No. 75082-8-1/4


(1984); Goodwin, 146 Wn.2d at 868. Accordingly, we hold that Stubbs's 1985

judgment and sentences are facially invalid because the sentencing court did not have

the authority to count Stubbs's 1980 juvenile convictions toward his 1985 offender

score. Snivelv, 180 Wn.2d at 32.

       The sole remedy for a sentencing error is correction of the error. In re Pers.

Restraint of Adams, 178 Wn.2d 417, 427, 309 P.3d 451 (2013); Snively, 180 Wn.2d at

32. Stubbs asks us to vacate his judgment and sentences and allow him to withdraw

his guilty pleas. His request for the vacation of his judgment and sentences is without

merit because we cannot grant that relief. Adams, 178 Wn.2d at 427. And although

Stubbs avoids the time bar to challenge his facially invalid sentence, he may not rely on

a facially invalid sentence to assert another time barred claim, the invalidity of his guilty

pleas. Snivelv, 180 Wn.2d at 32(holding that a challenge to a facially invalid sentence

does not entitle the petitioner to challenge the voluntariness of the petitioner's guilty

plea). We hold that Stubbs's claim is without merit.

                                  Breach of the plea agreement

       Stubbs also alleges in his petition that the prosecutor breached the plea

agreement by including his juvenile offenses in his offender score for purposes of his

1985 sentencing.1

       A petitioner may establish actual and substantial prejudice and is entitled to relief

if she or he can show that the prosecutor failed to adhere to the plea agreement's

terms. In re Pers. Restraint of Lord, 152 Wn.2d 182, 189,94 P.3d 952(2004). "A




       1 We appointed counsel for Stubbs but his counsel did not brief this issue.
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No. 75082-8-1/5


defendant may seek relief from a prosecutor's failure to adhere to the terms of the plea

agreement in a timely PRP." Lord, 152 Wn.2d at 189(emphasis added). Stubbs's

petition is not timely and this claim does not fall within any of the exemptions set forth in

RCW 10.73.100. His petition is time barred and must be dismissed.




WE CONCUR:


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