                                                                        FILED
                                                                    JANUARY 17, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )
                                              )         No. 35852-6-111,
                     Respondent,
                                              )         (Consol. with
                                              )         No. 35859-3-111)
      V.                                      )
                                              )
ODA ROY CHARTIER,                             )
                                              )         UNPUBLISHED OPINION
                     Appellant.               )
                                              )
                                              )
In the Matter of the Personal Restraint       )
Petition of:                                  )
                                              )
ODA ROY CHARTIER                              )
                                              )
                     Petitioner.              )
                                              )

      KORSMO,    J. - Oda Roy Chartier appeals a superior court order denying his motion

to amend his judgment and sentence entered in Stevens County Superior Court in 2014. In

a consolidated personal restraint petition, Mr. Chartier contends that two of his convictions

for first degree child molestation were barred by the statute of limitations and must be

vacated. We affirm the superior court's denial of Mr. Chartier's CrR 7.8 motion, but

remand for dismissal of count II and re-sentencing on the remaining counts.
No. 35852-6-III, consol. with No. 35859-3-III
State v. Chartier

                    FACTS AND PROCEDURAL BACKGROUND

       On September 2, 201_4, Mr. Chartier entered into a plea agreement with the State

under which he agreed to plead guilty to three counts of first degree child molestation.

That same day, Mr. Chartier signed a Statement of Defendant on Plea of Guilty to Sex

Offense, which indicates that Mr. Chartier had no known criminal history that would

count against his offender score under the Sentencing Reform Act of 1984, ch.9.94A

RCW. Paragraph 1.12 of the Plea Agreement, labeled "Sentencing Data," contained a

statement of Mr. Chartier's offender score and the corresponding standard range sentence

for each count charged. By agreement of the parties, count I (first degree rape of a child)

was dismissed, and therefore the standard range sentence for this count was not filled in,

although the offender score box was marked "O." Counts II, III, and IV all stated that Mr.

Chartier was being sentenced with an offender score of "6," and listed the standard range

for each count as "98-130-Life." Clerk's Papers at 3.

      The judgment and sentence similarly indicates that Mr. Chartier had no criminal

history and that his offender score on each of the three child molestation counts was "6".

The sentencing court imposed an indeterminate sentence with a minimum sentence of 120

months in confinement and a maximum sentence of life in prison. Mr. Chartier did not

file an appeal from his judgment and sentence, which became final on the date it was filed

with the superior court clerk: October 7, 2014. RCW 10.73.090(3)(a).


                                             2
No. 35852-6-III, consol. with No. 35859-3-III
State v. Chartier

       On October 5, 2017, Mr. Chartier filed a pro se CrR 7.8 motion to modify the

judgment and sentence, contending his sentence was invalid on its face because it was

based on a miscalculated offender score. Specifically, he claimed the court erred by

finding he had an offender score of 6 where he had no criminal history and thus O prior

conviction points.

       On January 30, 2018, the superior court found that Mr. Charter's offender score

was correctly calculated and denied Mr. Chartier's motion to amend the judgment and

sentence. On February 8, 2018, Mr. Chartier timely appealed the court's denial of his

CrR 7.8 motion. While his appeal was pending, he filed the consolidated personal

restraint petition.

                                        ANALYSIS

       Mr. Chartier contends the court erred by denying his CrR 7.8 motion. He also filed

a Statement of Additional Grounds (SAG) in which he claims that he was "falsely

sentenced under the Indeterminate Sentencing Board," and should have been sentenced

under the Offender Accountability Act, RCW 72.09.580, .590, .904.

       A motion for relief from judgment under the superior court criminal rule, like a

personal restraint petition, is subject to RCW 10. 73.090 and .100. CrR 7.8(b). If such a

motion or petition is filed more than a year after the judgment and sentence became final,

it is barred as untimely unless the judgment and sentence is invalid on its face, the trial


                                              3
No. 35852-6-111,consol. with No. 35859-3-111
State v. Chartier

court lacked competent jurisdiction,or the petition is based solely on one or more of the

exceptions set forth in RCW 10.73.100(1)-(6). See In re Pers. Restraint ofBenavidez,

160 Wn. App. 165,170,246 P.3d 842 (2011) (addressing timeliness of a petition).

        Mr. Chartier filed this motion nearly three years after the judgment and sentence

became final in October 2014,and he failed to demonstrate that the judgment and

sentence was facially invalid or that any other exception to the one-year time bar applied.

Accordingly,his motion was barred by RCW 10.73.090.

        The trial court did abuse its discretion by denying Mr. Chartier's motion rather

than transferring the untimely motion to this court for consideration as a personal restraint

petition. CrR 7.8(c)(2). 1 Nonetheless,we can affirm the trial court's rejection of a

defendant's CrR 7.8 motion on any grounds supported by the record. State v. Costich,

152 Wn.2d 463,477, 98 P.3d 795 (2004).

        Since Mr. Chartier's motion is untimely,we are required to dismiss it and his

accompanying SAG pursuant to RCW 10.73.090. We affirm the trial court's dismissal on




        1 CrR 7.8(c)(2) directs the superior courts to transfer any CrR 7.8 motion to the Court of
Appeals for consideration as a personal restraint petition "unless the court determines that the
motion is not barred by RCW 10.73.090 and either (i) the defendant has made a substantial
showing that he or she is entitled to relief or (ii) the resolution of the motion will require a factual
hearing." Here, there is no record that the superior court engaged in the necessary CrR 7.8 transfer
analysis before deciding to retain and deny Mr. Chartier's motion.

                                                  4
No. 35852-6-III,consol. with No. 35859-3-III
State v. Chartier

the basis of harmless error: had it transferred the motion to this court for consideration as

a personal restraint petition,we would have found it untimely.

                          PERSONAL RESTRAINT PETITION

       In a consolidated personal restraint petition filed while the appeal was pending,

Mr. Chartier seeks relief from personal restraint,alleging that counts II and III were time

barred by the statute of limitations and therefore the convictions on those counts must be

vacated. The State agrees that count II must be vacated but contends that count III was

timely charged.

       To receive relief on collateral review,Mr. Chartier must show either a

constitutional error that resulted in actual and substantial prejudice or nonconstitutional

error that constituted a fundamental defect that inherently results in a miscarriage of

justice. In re Pers. Restraint o/Cook, 114 Wn.2d 802,813,729 P.2d 506 (1990). A

petitioner is entitled to relief where his convictions are based on charges that were

prosecuted beyond the statute of limitations. In re Pers. Restraint a/Stoudmire, 141

Wn.2d 342,355,5 P.3d 1240 (2000),disagreed with on other grounds by In re Pers.

Restraint o/Turay, 153 Wn.2d 44,53,101 P.3d 854 (2004).

       Since Mr. Chartier filed this motion more than one year after his judgment and

sentence became final,it is untimely under RCW 10.73.090(1) unless the judgment and

sentence is invalid on its face,the court lacked competent jurisdiction over the matter,or


                                              5
No. 35852-6-111, consol. with No. 35859-3-111
State v. Chartier

the petition falls within one of the exceptions set forth in RCW 10.73.100(1)-(6). Mr.

Chartier does not expressly address the timeliness of his petition, but appears to argue that

it is timely because the judgment and sentence is invalid on its face due to the time-barred

convictions.

       On April 14, 2014, the State charged Mr. Chartier by Information with one count

of rape of a child in the first degree (count I) and three counts of child molestation in the

first degree (counts II, III, and IV). With respect to count II, the victim (MT) was born on

March 5, 1988. The information alleged that the conduct occurred between March 5,

1996, and March 4, 1998. With respect to count III, the victim (MC) was born on June

25, 1993. The information alleged that the criminal conduct occurred between July 25,

2001, and July 24, 2003.

       At the time the conduct supporting counts II and III was committed, the statute of

limitations with regard to those counts provided that"[v]iolations of the following

statutes shall not be prosecuted more than three years after the victim's eighteenth

birthday or more than seven years after their commission, whichever is later: (i) RCW

9A.44.073 [or] 9A.44.083[.]" Former RCW 9A.04.080(l)(c) (1989). Under this statutory

language, the statute of limitations on count II was set to expire on March 5, 2009 (three

years after victim MT's 18th birthday). The statute of limitations on count III was set to

expire on June 25, 2014 (three years after victim MC's 18th birthday).


                                              6
No. 35852-6-III,consol. with No. 35859-3-III
State v. Chartier

         The legislature subsequently amended the statute of limitations in 2009 to provide

that violations may be prosecuted up to the victim's 28th birthday. Former RCW

9A.04.080(1)(c) (2009). The amendment had an effective date of July 26,2009. LA ws

OF   2009,ch. 61, § l (c). 2

         The language in effect at the time both counts were alleged to have been

committed provided that the statute of limitations did not expire until the victim's twenty­

first birthday. With respect to count II,the statute of limitations was set to expire on

March 5,2009. However,the legislature extended the statute of limitations in 2009. The

amended statute would have extended the statute of limitations on count II to MT's

twenty-eighth birthday,March 5,2016,if it applied. Where a statute extends a period of

limitation,or provides for the tolling thereof,the new limitations period only applies to an

offense if the prior period has not expired. State v. Hodgson, 108 Wn.2d 662,668,740

P .2d 848 (1987). Here,where the 2009 amendment did not become effective until July

2009,after the statute of limitations on count II expired on March 5,2009,it cannot be

applied to the conduct alleged in count II. Accordingly,at the time the information was

filed in April 2014,the statute of limitations had expired with respect to count II.




      2 A 2013 amendment subsequently changed the statute of limitations to allow
prosecution until the victim's thirtieth birthday. RCW 9A.04.080( l )(c).

                                              7
No. 35852-6-III, consol. with No. 35859-3-III
State v. Chartier

       With respect to count III, MC's twenty-first birthday was on June 25, 2014.

Accordingly, the statute of limitations had not run on count III when the information was

filed in April 2014. Moreover, both the 2009 and 2013 amendments applied to count III,

and accordingly extended the statute of limitations well beyond the filing date of April

2014. Accordingly, Mr. Chartier is not entitled to vacation of count III.

       Mr. Chartier has demonstrated that he is under unlawful restraint, and that he is

entitled to relief from the unauthorized conviction on count II. In re Pers. Restraint of

Stoudmire, 141 Wn.2d at 355.

                                     CONCLUSION

       The sentence is remanded to vacate count II and resentence Mr. Chartier on counts

III and IV.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.



WE CONCUR:



                                                        Siddoway, 1:




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