                                                                                           D1= i ; O Y 23

                                                                                          STA
                                                                                            A

                                                                                           BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                            DIVISION II

 STATE OF WASHINGTON,                                          Consolidated Nos. 44639 -1 - II
                                                                                        45366 -5 -1I
                                  Respondent,




                                                                UNPUBLISHED OPINION
 JOSEPH EMMANUEL ROWLEY,.III,


                                  Appellant.




       MAXA, J. —    In   a consolidated appeal and personal restraint petition ( PRP),     Joseph


Rowley challenges his convictions following his guilty plea for rape of a child in the second

degree and unlawful delivery of a controlled substance ( methamphetamine) to a minor. He

claims that the offender score referenced in his guilty plea and used for sentencing was

miscalculated, and argues that ( 1) he can challenge his offender score for the first time on appeal,


2) the trial court sentenced him using an incorrect offender score, and ( 3) his guilty plea was

involuntary because it was based on a miscalculation of his offender score. Rowley also asserts

in a statement of additional grounds ( SAG) that his attorney engaged in misconduct and again

that his offender score was incorrect. In addition, he raises several issues in his PRP.


        We hold that Rowley can challenge his offender score for the first time on appeal, but

that it was not miscalculated and therefore that his guilty plea was voluntarily entered. We also

hold that Rowley' s SAG assertions are meritless and that his PRP should be denied.

Accordingly, we   affirm   Rowley' s   convictions and sentence and   deny his   PRP.
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                                                   FACTS


         The State charged Rowley with two counts of first degree rape of a child, two counts of

second degree rape of a child, two counts of third degree rape of a child, one count of unlawful


delivery of a controlled substance to a minor, one count of possessing an explosive device, two

counts of sexual exploitation of a minor, two counts of possessing depictions of a minor engaged

in sexually explicit conduct, one count of tampering with a witness, and one count of attempted

violation of a protection order. After plea negotiations, the State agreed to drop all but two

charges in exchange for Rowley' s guilty plea.

         In January 2013, Rowley pled guilty to one count of second degree rape of a child and

unlawful delivery of a controlled substance ( methamphetamine) to a minor. He signed a written

plea statement, and acknowledged to the trial court that he understood the consequences of the


plea and was entering the plea freely and voluntarily.

         The plea agreement stated an offender score of two for each of Rowley' s charged

offenses. Rowley did not object to those offender scores. In February 2013, the trial court

sentenced Rowley to standard range sentences of 123 months to life for second degree rape of a

child and 68 months concurrent for unlawful delivery of a controlled substance to a minor.

Rowley appealed.

         In July 2013, Rowley filed with the trial court a CrR 7. 8 motion to modify or correct the

 judgment entered against him. The trial court transferred the motion to this court to be

 considered as a     PRP. We    consolidated   Rowley' s direct   appeal and   PRP.
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                                                       ANALYSIS


A.        ABILITY TO CHALLENGE GUILTY PLEA


          Rowley contends that he may challenge his guilty plea for the first time on appeal. The

State concedes this point, and we accept the State' s concession.


          A defendant' s alleged misunderstanding of the sentencing consequences of pleading

guilty is   a manifest error     affecting   a constitutional right under    RAP 2. 5(   a)(   3), and a defendant


may raise this issue for the first time on appeal. State v. Mendoza, 157 Wn.2d 582, 589, 141

P. 3d 49 ( 2006).    Therefore, we agree that Rowley may raise this issue in this appeal.

B.        CALCULATING OFFENDER SCORE


          Rowley argues that each of his current offenses should have counted as one point on his

offender score because his conviction for unlawful delivery of methamphetamine to a minor

involved a nonviolent offense. Because Rowley' s plea agreement listed two points for each

offense, he argues that the trial court exceeded its statutory authority when it sentenced him

using an incorrect offender score. We disagree that Rowley' s unlawful delivery conviction was

a nonviolent offense and hold that his offender score was correct.


          Whether Rowley' s offender score was correct involves an interpretation of various

provisions of    the     Sentencing   Reform Act ( SRA),       chapter 9. 94A RCW, but primarily RCW

9. 94A. 525( 7) -( 8).    Construction of a statute is a question of law that we review de novo. State v.

Hirschfelder, 170 Wn.2d 536, 541 - 42, 242 P. 3d 876 ( 2010).                Our objective in interpreting a

statute   is to discern    and   implement the legislature'    s   intent. Id. at 543.   If the statute' s meaning is

plain on its face, we must give effect to that plain meaning as an expression of legislative intent.

Id. We discern plain meaning from the ordinary meaning of the statutory language, the context

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of the statute where that provision is found, related statutory provisions, and the statutory scheme

as a whole. Id.


         RCW 9. 94A.525 governs the calculation of a defendant' s offender score. Under RCW

9. 94A. 525( 7), if the      present offense   is   a " nonviolent offense,"   each prior adult felony conviction

counts as one point.          Under RCW 9. 94A. 525( 8), if the present offense is a " violent offense,"


each prior adult violent felony conviction counts as two points and each prior adult nonviolent

felony conviction counts as one point. RCW 9. 94A.030( 54)( a)( i) defines " violent offense" to

include " any felony defined under any law as a class A felony or an attempt to commit a class A

felony." RCW 9. 94A.030( 33) defines a " nonviolent offense" as " an offense which is not a

violent offense."



         Under the SRA, a current offense is deemed a prior offense for sentencing on another

current offense.        RCW 9. 94A.589( 1)(      a).   Therefore, Rowley' s conviction of unlawful delivery of

a controlled substance to a minor counted as a prior offense for his second degree rape of a child

conviction, and vice versa.




         Rowley argues that unlawful delivery of methamphetamine to a minor is a nonviolent

offense. Therefore, he claims that under RCW 9. 94A.525( 7) his second degree rape of a child


conviction should count as only one point for purposes of the unlawful delivery conviction, and

under RCW 9. 94A.525( 8) the unlawful delivery conviction should count as only one point for

purposes of the second degree rape conviction. But unlawful delivery of methamphetamine to a

minor    is   a class   A   felony.   RCW 69. 50. 406( 1).    As a result, under RCW 9. 94A.030( 54)( a)( i)' s


definition     of a " violent offense,"     Rowley' s conviction for unlawful delivery of a

methamphetamine to a minor was a violent offense. And second degree rape of a child also is a


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class   A   felony   and   therefore a    violent offense.     Under RCW 9. 94A. 525( 8),   a prior violent offense



counts as two points on the offender score for another violent offense.


            Because all class A felonies are deemed violent offenses, and Rowley pled guilty to two

class A felonies, we hold that the trial court was correct in counting two points on his offender

score for each conviction. Accordingly, we hold that the trial court did not err in sentencing

Rowley.

C.          INVOLUNTARY GUILTY PLEA


            Rowley argues that his guilty plea was involuntary because he was misinformed about a

major and      direct   consequence of       his guilty   plea —his   offender scores. Misinformation about the


length of a sentence renders a guilty plea involuntary. In,re Pers. Restraint ofBradley, 165

Wn.2d 934, 939, 205 P. 3d 123 ( 2009).


            But the only basis for Rowley' s argument is his claim that his offender scores were

miscalculated. Because we hold that the trial court did not miscalculate Rowley' s offender

score, Rowley was not misinformed about his sentence. Therefore, we reject this argument and

hold that Rowley' s plea was voluntary.

D.          STATEMENT OF ADDITIONAL GROUNDS


            Rowley' s SAG asserts that his counsel engaged in misconduct, claiming that counsel ( 1)

committed a crime by participating in a course of conduct that resulted in Rowley receiving

additional charges; (       2) failed to gather evidence or witnesses on his behalf; (3) erred by

 refuseing [ sic] to follow motions on the docket in open court. And refus[ ing] to get evidence

which subpoenas were granted               in   open court";   and ( 4) failed to follow the Rules of Professional


Conduct ( RPC). SAG            at   1.   In addition, Rowley again asserts that the trial court erred by

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accepting his guilty     plea   based   on a miscalculation of   his   offender score.   We hold that none of


Rowley' s SAG contentions have merit.

        A defendant may file a SAG under RAP 10. 10, subject to certain limitations:

          1)   We consider an issue in a SAG only where it adequately informs us of the nature and

occurrence of alleged errors.       RAP 10. 10( c); State v. Alvarado, 164 Wn.2d 556, 569, 192 P. 3d


345 ( 2008).


          2)   We consider only arguments that we did not already adequately address as raised by

the defendant' s appellate counsel. State v. Thompson, 169 Wn. App. 436, 493, 290 P. 3d 996

 2012), review denied, 176 Wn.2d 1023 ( 2013).


          3)   Issues involving facts outside of the record are properly raised in a PRP, not in a

SAG. Alvarado, 164 Wn.2d at 569.


          4) We are " not obligated to search the record in support of claims made in the [ SAG]."


RAP 10. 10( c);   Thompson, 169 Wn. App. at 493.

         Rowley' s first three claims regarding counsel misconduct depend on matters outside the

record before us. As a result, we cannot consider them in this direct appeal. State v. McFarland,

127 Wn.2d      322,   335, 899 P. 2d 1251 ( 1995).    They are more properly raised in a PRP. Id.

         We also do not address Rowley' s contention that his attorney violated the RPCs, because

he does not direct us to any part of the record to support his claims. Moreover, an appellate court

generally is not the appropriate forum to raise a violation of the RPCs. Because we need not

search Rowley' s trial court record to determine a violation of the RPCs, we need not address this

contention further.




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          Finally, with regard to Rowley' s last SAG assertion, Rowley' s appellate counsel already

addressed the issue of whether the trial court correctly imposed a sentence based on the

allocation of two points for each of Rowley' s offenses. We therefore need not separately address

Rowley' s argument on this issue. See Thompson, 169 Wn. App. at 493.

E.        PERSONAL RESTRAINT PETITION


          Rowley' s PRP seems to contend that ( 1) the trial court violated his right to conduct

                       he           to                       during     a month and a     half of pretrial   proceedings; (   2)
discovery       when        chose        proceed pro se




the trial court violated his constitutional rights by incarcerating him without sufficient evidence;

 3) the trial court violated his constitutional rights by incorrectly crediting him for time served;

and (4) his counsel provided ineffective assistance by (a) failing to collect evidence for his case,

 b)   failing   to facilitate     Rowley' s   ability to   view     the   prosecution' s evidence, ( c)     collaborating with


the   prosecution      to   add additional charges         to the State'    s current   information, ( d)    violating the

RPCs, and ( e) failing to warn Rowley to not speak with the victim of Rowley' s offenses.

Because Rowley offers no evidence to support any of these allegations and the record does not

support them, we deny Rowley' s PRP.

           1.     Legal Principles


           A    personal restraint petitioner must provide "[ a] statement of ... the                facts upon which the


claim ...       is based    and   the   evidence available     to   support    the factual   allegations."    RAP 16. 7( a)( 2).


Accordingly, a " petitioner must state with particularity facts which, if proven, would entitle him

to    relief" — "[ b] ald assertions" and " conclusory allegations" are not enough. In re Pers. Restraint

ofRice, 118 Wn.2d 876, 886, 828 P. 2d 1086 ( 1992).




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         Further, a " petitioner must demonstrate that he has competent, admissible evidence to

establish     the facts that   entitle   him to   relief."   Id. Claims as to what other persons would say must


be supported by " their affidavits or other corroborative evidence" consisting of competent and

admissible evidence. Id. The petitioner cannot satisfy this evidentiary requirement with

inadmissible hearsay or the petitioner' s own speculation and conjecture. Id.

         Moreover, we will not consider the merits of claimed constitutional error unless the


petitioner demonstrates actual prejudice. Id. at 884. We will not consider the merits of claimed

nonconstitutional error unless the petitioner establishes " that the claimed error constitutes a


fundamental defect       which     inherently     results    in   a complete miscarriage of justice."          In re Pers.


Restraint of Cook, 114 Wn.2d 802, 812, 792 P. 2d 506 ( 1990).

         2.      Deficient PRP


         Rowley fails to state with factual particularity any claims that would, if proven, entitle

him to relief. He does not explain how he was barred from conducting discovery, how he ended

up being jailed when the prosecution did not have sufficient evidence, or how his time served

was incorrectly credited when he was sentenced. Moreover, Rowley does not provide us with

any reliable evidence to support his asserted errors. Aside from Rowley' s own bald contentions,

he simply fails to     submit     any    evidence —i. e.,     a witness' s affidavit or a certified        document —to


support his claims.


         Similarly, Rowley fails to provide us with any reliable evidence to support his many

assertions of his trial counsel' s ineffective assistance. He fails to provide us with specific facts


regarding the relevance of certain evidence, whether his attorney even knew of such evidence, or

how   such evidence would          have    overcome     the       evidence of   his   guilt.   Rowley   fails to   provide us
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with evidence of his trial counsel' s alleged collaboration with the prosecution. And there was no

evidence submitted to support the remainder of Rowley' s claims. Therefore, aside from

Rowley' s bare allegations, there is no reliable evidence to support his contentions that his trial
counsel' s representation was ineffective.


         Because Rowley failed to support his arguments with evidence and failed to demonstrate

prejudice, we deny Rowley' s PRP.

         We affirm Rowley' s convictions and sentence, and deny his PRP.

         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 pursuant to RCW 2. 06. 040, it

is so ordered.




 We concur:




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