                                                                                                              FILED
                                                                                                       COURT OF
                                                                                                                  APPEALS
                                                                                                            DIVISION II
                                                                                                    2015 NR - 3
                                                                                                                I,HH 8: 36
                                                                                                    STATE
                                                                                                                        TON
                                                                                                    BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

 STATE OF WASHINGTON,                                                            No. 46001 -7 -II


                                      Appellant


           v.



 DAVID WARREN SOHRAKOFF,                                                  UNPUBLISHED OPINION


                                      Respondent.




          LEE, J. —   David Warren Sohrakoff filed a notice of appeal challenging the trial court' s

denial of his motion to withdraw his guilty plea. He challenges only the oral advisement of firearm

rights   that the   court   made   during   his sentencing   a year earlier, after   he   pleaded     guilty. Because


this oral advisement was subject to challenge only by means of a notice for discretionary review

filed within 30 days of Sohrakoff' s sentencing, we dismiss this appeal.

                                                       FACTS


          On March 3, 2013, Sohrakoff pleaded guilty to two counts of delivery of a controlled

substance (     methamphetamine),            one   count     of     possession   of       a   controlled    substance




methamphetamine), and one count of assault in the third degree. After accepting his plea, the trial

court    imposed    concurrent sentences      totaling 40   months.    The court then informed Sohrakoff that


he   could no   longer   possess a   firearm because his     drug   convictions were      felonies:
No. 46001 -7 -II



         As an adult, because of these convictions any right that you had to possess afirearm
         or a gun      in the State   of   Washington is       revoked.    Do not under any circumstances
         possess any kind of a firearm including a black powder rifle or pistol, unless or until
         your right to do so is restored by Superior Court. That doesn' t happen automatically
         or by the mere passage of time. The only way it happens is for you to be crime free
         and law abiding for a minimum period of ten years after you are off all conditions
         of   community custody            or supervision      from    all sources.   You then have to file a
         petition with the Superior Court in the county where you then live asking the court
         to restore your firearm rights. The judge has to agree to [ d] o that and sign an order
         to that effect.



                Unless or until that happens, if you possess any kind of a gun including a
         black powder rifle or pistol it' s at least a class B felony. This county among others
         prosecutes that particular crime.       So don' t have any guns in your house, car or
         apartment. Don' t be around anybody with a gun. No hunting or target shooting


         with any kind of a gun, including a black powder rifle or pistol.

Report   of   Proceedings ( RP) ( March 3, 2013) at 28. Paragraph 5. 5 of Sohrakoffs judgment and


sentence, filed on March 7, 2013, contained the following provision regarding his firearm rights:

         Firearms.   You may not own, use or possess any firearm, and under federal
         law any firearm or ammunition, unless your right to do so is restored by the court
         in which you are convicted or the superior court in Washington State where you
         live,   and   by   a   federal   court   if   required.   You must immediately surrender any
         concealed pistol         license....      RCW 9. 41. 040, 9. 41. 047.


Clerk' s Papers at 39.


         On June 17, 2013, Sohrakoff moved to withdraw his guilty plea, claiming that his attorney

had deceived him during the plea proceedings and that he wanted to go to trial. During a hearing

on March 5, 2014, Sohrakoff complained that he did not read his plea statement before signing it,

that he had been told he would receive a 20 -month sentence, and he understood that if he pleaded




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No. 46001 -7 -II



guilty   and   then completed several     controlled    drug buys, his record would be " washed."          RP (March


5, 2014) at 10. He made no mention of the court' s advisement of his firearm rights.

          The trial court found no credible evidence to support Sohrakoff' s claims and on March 6


entered an order denying his motion to withdraw his plea. The order did not refer to any complaint

about the oral advisement of Sohrakoff' s firearm rights.


          Sohrakoff filed a notice of appeal of the order denying his motion to withdraw his plea on

March 6, 2014, the date of its entry. The only issue he raises on appeal concerns the trial court' s

oral advisement of his firearm rights at his sentencing on March 3, 2013.

                                                     ANALYSIS


           Sohrakoff bases his claim of error on Division One' s decision in State v. Lee, 158 Wn.


App.     513, 243 P. 3d 929 ( 2010). Lee argued on appeal that the trial court' s oral advisement of his


firearm rights       misstated Washington law on constructive possession and restricted his


constitutional rights to travel and associate. Lee, 158 Wn. App. at 516.

          In addressing this argument, Division One first observed that an oral advisement was not a

final judgment appealable as a matter of right and that relief could be granted only pursuant to

discretionary     review.   Lee, 158 Wn.         App.   at   516; RAP 2. 2( a)( 1);   RAP 2. 3( b)( 2).   Because the


remarks at issue constituted probable error implicating Lee' s constitutional freedoms, Division

One    granted   discretionary   review.    Lee, 158 Wn. App. at 516. Court records show that Lee was
sentenced on      April 17, 2009,   and   that   he filed    a notice of appeal on    May   13, 2009.
No. 46001 -7 -II



             Here, the oral advisement was made on March 3, 2013, and Sohrakoff filed a notice of

appeal on       March 6, 2014.        With exceptions that do not apply here, both a notice of appeal and a

notice for discretionary review must be filed within 30 days of the decision for which review is

sought.       RAP 5. 2( a), ( b); 2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP


5. 2,   at   508 -09 ( 8th   ed.   2014).    Sohrakoff did not attempt to seek any type of review of the oral

advisement in a timely manner. 1

             Sohrakoff argues that erroneous sentences must be corrected whenever they are discovered.

While it is true that appellate courts have the power and duty to correct a sentencing error upon its

discovery, this authority applies to errors in the judgment and sentence and arises within the

context of a timely appeal of that judgment. See State v. Loux, 69 Wn.2d 855, 857 -58, 420 P.2d

693 ( 1966) (      appeal of resentencing during which trial court corrected error in earlier sentence),

cert.   denied, 386 U.S. 997 ( 1967),           overruled on other grounds by State v. Moen, 129 Wn.2d 535,

919 P. 2d 69 ( 1996). Once the deadlines for direct review have expired, a defendant must resort to


a personal restraint petition or other means of collateral attack. See In re Pers. Restraint of Call,

144 Wn.2d 315, 331, 28 P. 3d 709 ( 2001) (                personal restraint petition can        used to correct sentence


that    was   unlawfully imposed). The challenge here is to an oral advisement made more than a year


before Sohrakoff sought review.




1 We also note that failing to raise the oral advisement issue in his motion to withdraw his plea,
Sohrakoff arguably           waived    the   right   to   raise   this issue   on appeal.   RAP 2. 5; State v. Zhoa, 157
Wn.2d 188, 203, 137 P. 3d 835 ( 2006).



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No. 46001 -7 -II



        We dismiss this appeal.


        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 in accordance with RCW 2. 06. 040,

it is so ordered.




                                                                         Lee, J.
 We concur:




                    Me iiick, J.




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