  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
In the Matter of the Personal                 )       No. 77868-4-I
Restraint Petition of                         )
                                              )

JAMES RICHARD PAINTER,                        )      UNPUBLISHED OPINION

                        Petitioner.           )      FILED: October28, 2019


       VERELLEN,   J.   —   James Painter filed a personal restraint petition in

December of 2017 challenging his 180-month sentence imposed in January2016.

The core of Painter’s argument is that the sentencing court exceeded its

jurisdiction because RCW 69.50.408 of the Uniform Controlled Substances Act

(UCSA) allows doubling the maximum term for second or subsequent controlled

substance violations, in conflict with the washout provisions of the Sentencing

Reform Act (SRA), RCW 9.94A.525. But as our Supreme Court explained in In re

Personal Restraint of Cruz,1 the standard range of a sentence is distinct from the

authorized statutory maximum for the crime committed. Both statutes are

unambiguous, and Painter’s sentence complied with both. Because Painter’s




      1157   Wn.2d 83, 134 P.3d 1166 (2006).
No. 77682-7-1/2


sentence was valid and he filed his petition more than one year after being

sentenced, his petition was untimely.

       Therefore, we deny the petition.

                                        FACTS

       In January of 2016, Painter pleaded guilty and was convicted of six current

criminal charges, including violating the UCSA by possessing four pounds of

heroin with the intent to distribute. He agreed his conduct warranted an

exceptional sentence with an upward deviation. The court calculated Painter’s

offender score based on his present charges and a past conviction for residential

burglary. Painter’s criminal history included three previous convictions from 2007

for violating the UCSA. Those three convictions were not included when

calculating Painter’s offender score because they washed out. Based on his

score, the standard range sentence was 60 to 120 months for his current

conviction for possession with intent to distribute. The court doubled Painter’s

statutory maximum sentence to 240 months because a provision of the UCSA,

RCW 69.50.408(1), allows doubling a defendant’s statutory maximum term for a

second or subsequent conviction. The court imposed an exceptional sentence of

1 80 months total incarceration for possession with intent to distribute, running

consecutively with his other convictions.

       Painter filed this petition challenging his sentence in December of 2017.




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No. 77682-7-113


                                     ANALYSIS

       The State contends this petition is untimely and filed beyond the one-year

time bar on collateral challenges to a sentence.2 The one-year limit does not

apply where a court exceeded its jurisdiction by imposing an invalid sentence.3 A

sentence that exceeds statutory limits is invalid.4 Painter argues his sentence is

invalid because the court violated the SRA to double his maximum term under

RCW 69.50.408.

       Statutory interpretation is a question of law reviewed de novo, and our goal

is to ascertain and give effect to the legislature’s meaning and intent.5 We look

first to the language of the statute for its plain meaning.6 Where a statute is

unambiguous, we do not need to construe its terms.7 A statute is not ambiguous

merely because different interpretations are conceivable.8 Only after concluding a

statute is ambiguous do we apply the rules of statutory construction, including

harmonizing it with related statutes.9 And only after applying the rules of statutory


      2   RCW 10.73.090.
      ~ RCW 10.73.100(5).
      4See In re Goodwin, 146 Wn.2d 861, 869, 50 P.3d 618 (2002) (sentences
imposed without authority are “‘fatally defective”) (quoting Gossett v. Smith, 34
Wn.2d, 224, 208 P.2d 870 (1949)).
      ~ Cruz, 157 Wn.2d at 87.
      6   State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002).
      ~ State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001).
      8   City of Seattle v. Winebrenner, 167 Wn.2d 451, 456, 219 P.3d 686 (2009).
      ~ State v. Davis, 3 Wn. App. 2d 763, 788, 418 P.3d 199 (2018) (quoting
Parentage of I.A.D., 131 Wn. App. 207, 213, 126 P.3d 79 (2006)).



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No. 77682-7-1/4


construction and still concluding a statute is ambiguous do we apply the rule of

lenity.1°

        On the current possession with intent to distribute charge, Painter pleaded

guilty to a class B felony violation of the UCSA.11 The UCSA sets the maximum

sentence for a class B felony as 10 years’ incarceration.12 The SRA defines

“statutory maximum sentence” as “the maximum length of time for which an

offender may be confined.”13 It is distinct from a ‘standard sentence range,” which

is “the sentencing court’s discretionary range in imposing a nonappealable

sentence.”14 A court can impose a sentence outside the standard range,15 but the

sentence cannot exceed the statutory maximum.16

       The SRA specifies how a court determines a defendant’s possible term of

incarceration based on his offender score.17 To calculate an offender score, a

court must consider a defendant’s current charges and criminal history.18 A



       10 Winebrenner, 167 Wn.2d at 462 (quoting State v. Jacobs, 154 Wn.2d
596, 601, 115 P.3d 281 (2005)).
       11 RCW69.50.204, .401(2)(a).

       12   RCW 69.50.401 (2)(a).
       13   RCW 9.94A.030(51).
       14   RCW 9.94A.030(50).
       15   RCW 9.94A.537.
       16   RCW 9.94A.505(5).
       17 See RCW 9.94A.525, .530 (defining how to calculate an offender score
and a standard sentence range); see also RCW 9.94A.510-.518 (sentencing grids
and tables).
       18 See RCW 9.94A.525 (procedures for calculating an offender score).




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No. 77682-7-1/5


defendant’s “criminal history” is “the list of [his] prior convictions and juvenile

adjudications.”19 A “conviction” is “an adjudication of guilt,” including a guilty

plea.2° “The determination of a defendant’s criminal history is distinct from the

determination of an offender score.”21 A washed-out conviction remains part of a

defendant’s criminal history unless it is vacated.22 And the defendant’s offender

score is unrelated to the statutory maximum term for his crime.23

       As our Supreme Court held in In re Cruz, RCW 69.50.408(1) affects only

the statutory maximum term for a conviction.24 The statute does not affect the

standard range of a sentence.25 Nor does it directly affect a defendant’s actual

sentence.26 The SRA’s washout provisions in RCW 9.94A.525 affect only the

standard sentence range. These statutes are unambiguous, govern distinct areas

and, at most, affect each other only indirectly. And contrary to Painter’s

contention, RCW 69.50.408(2) does not give rise to any ambiguity between the



       19   RCW9.94A.030(11).
      20    RCW 9.94A.030(9).
      21    RCW 9.94A.030(1 1)(c).
      22 RCW 9.94A.030(11). Even then, a vacated conviction may be
considered as part of criminal history under circumstances not present here.
RCW 9.94A.030(1 1)(b).
      23 RCW 9.94A.030(51); RCW 9.94A.030(11)(c).

      24 157 Wn.2d at 90 (RCW 69.50.408(1) doubles the maximum statutory
sentence).
      25 Id.

      26 State v. Cyr, 8 Wn. App. 2d 834, 841, 441 P.3d 1238 (2019) (citing State
v. Roy, 147 Wn. App. 309, 315, 195 P.3d 967 (2008)).




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No. 77682-7-1/6


UCSA and the SRA because washed-out convictions remain part of a defendant’s

criminal history. Section .408(2) merely provides an offense is a second or

subsequent offense if “the offender has at any time been convicted under this

chapter.           ~   Because these statutes are unambiguous and do not conflict, they

do not require harmonization, statutory construction, or application of the rule of

Ten ity.

           The court here correctly applied both the washout and doubling provisions.

Painter agreed his criminal history included his 2007 UCSA violations. The court

did not include Painter’s washed-out convictions when calculating his offender

score but considered them as part of his criminal history for the doubling provision

of UCSA. Painter’s offender score set a standard range of 60 to 120 months.

           Doubling the statutory maximum for Painter’s crime from 120 months to 240

months did not affect the standard range of his sentence.28 Nor did it compel a

sentence above the standard range.29 Here, Painter stipulated a sentence in

excess of the standard range was appropriate. The court did not exceed its

authority by sentencing Painter to 180 months incarceration, so his sentence is not

facially invalid.




           27   RCW 69.50.408(2); RCW 9.94A.030(1 1).
           28   Cruz, 157 Wn.2d at 90.
         See RCW 9.94A.535 (court must find “substantial and compelling
           29
reasons justifying an exceptional sentence” outside the standard range).



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No. 77682-7-1/7


       Because Painter received a facially valid sentence in January of 2016 and

did not file this petition until December of 2017, we deny the petition as untimely

under RCW 10.73.090(1).




WE CONCUR:




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