                                                                                               COI R T OF APPEALS
                                                                                                    D ISWN

                                                                                             20111 JUN 214   AN 9: 06
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN                                                TON
                                               DIVISION II
                                                                                             81 .

STATE OF WASHINGTON,                                                       No. 44608 -1 - II
                                                               Consolidated With: Nos. 44629 -4 -II, . •
                                                                             44784 -3 -II)
                                     Respondent,


         v.                                                           UNPUBLISHED OPINION


ROBERT HEAGY,


                                     Appellant.


         BJORGEN, A.C. J. —        Robert Heagy appeals from the denial of his motion to vacate the

persistent offender life sentence following his conviction for first degree child molestation,

arguing that his sentence is facially invalid because it is based in part on a 1973 robbery

conviction     that had been later dismissed.         He also filed personal restraint petitions contending

that his other prior conviction had also been dismissed and asserting errors in his trial. The State

concedes error on the first issue but argues that the personal restraint petitions are time -
                                                                                            barred.


We accept the State' s concession, remand for resentencing without inclusion of the 1973 robbery

conviction in Heagy' s criminal history, and dismiss the remainder of the petitions as time -

barred. 1

            In 2006,   following his conviction for first degree child molestation, the trial court

sentenced Heagy to life imprisonment without parole, finding that he had two prior convictions

that made      him   a persistent offender:    a 1973 conviction for robbery and a 1984 conviction for

indecent liberties. In 2012, Heagy filed a motion to vacate his conviction on the grounds that his



1
    A commissioner of this court initially considered Heagy' s appeal as a motion on the merits
under   RAP 18. 14     and   then transferred it to   a panel of judges.
No. 44608 -1 - II
 Cons. w/ Nos. 44629 -4 -II and 44784 -3 -II)



1973 robbery conviction had been vacated in 1978. The trial court denied his motion.

          Heagy renews his argument on appeal, showing that the Spokane County Superior Court

entered     an   order    of   dismissal    on    December 12,          1978, which dismissed his 1973 robbery

conviction.      Thus,    under    State   v.   Carrier, 173 Wn.2d 791, 813 -18, 272 P. 3d 209 ( 2012), he


contends that the inclusion of that dismissed conviction in his criminal history makes his

judgment     and sentence       facially   invalid.      The State concedes that Carrier applies and that Heagy

is entitled to be resentenced without the dismissed conviction being included in his criminal

history. We accept the State' s concession and remand for resentencing.

          Heagy filed a personal restraint petition, which we opened under cause number 44629- 4 -

II   and consolidated with        his   appeal.       In that petition, he raises a number of issues regarding his

trial.   But because he filed his petition on March 11, 2013, more than one year from the date his

2006 judgment and sentence was final, July 15, 2008 ( the date we issued the mandate of his

appeal),    and because he does not show that any of the exceptions to the one -year time bar

contained in RCW 10. 73. 100 exists, his petition is time- barred under RCW 10. 73. 090.


          Heagy    also   filed   a motion      for   relief   in the trial   court on   April 22, 2013.       The trial court


transferred that motion to us to            be    considered as a personal restraint petition.                We opened the


petition under cause number              44784 -3 - II    and    consolidated     it   with   his   appeal.   In that petition,


along with arguing that his 1973 robbery conviction should not be included in his criminal

history because it had been dismissed, he argued that his 1984 indecent liberties conviction had

been dismissed       by   our court     in 2008.        But the dismissal order to which he refers is a Division


Three order dismissing a personal restraint petition that he filed attacking his 1984 indecent

liberties   conviction.        That order did not dismiss his conviction and Heagy does not present any
                                                                   2
No. 44608 -1 - II
 Cons. w/ Nos. 44629 -4 -II and 44784 -3 - II)

other evidence that his 1984 conviction has been dismissed. Therefore, the inclusion of his 1984

conviction in his judgment and sentence does not make the judgment and sentence facially

invalid, and as a result, this petition is time -
                                                barred as well.


         We remand for resentencing without inclusion of the 1973 robbery conviction in Heagy' s

criminal history. In all other respects, we dismiss Heagy' s petitions as time -
                                                                               barred.

         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.
