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      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Personal              )      No. 68740-9-1
Restraint Petition of                      )
                                           )      DIVISION ONE
BENJAMIN LEE SMALLS,                       )
                                           )      PUBLISHED OPINION
                     Petitioner.           )
                                           )      FILED: July 14, 2014

       Leach, J. — Benjamin Lee Smalls collaterally attacks his 2009 convictions

for assault in the second degree and murder in the second degree. He seeks to

withdraw his guilty pleas to both crimes and dismissal of the assault charge.

Smalls's judgment and sentence shows that he was charged and convicted of

assault in violation of the statute of limitations. As a result, the State concedes

that the assault charge should be dismissed.

       Smalls also contends that this facial error and a sentencing error for his

murder conviction entitle him to collaterally challenge his guilty plea to murder

more than one year after his judgment and sentence became final. Because he

identifies no facial error relating to his murder conviction, RCW 10.73.090(1) bars

this collateral challenge. Smalls's sole remedy, which he has not requested, is

correction of his sentence for this conviction.
No. 68740-9-1/2




                                    FACTS


      On March 3, 2008, the State charged Smalls with murder in the second

degree for shooting and killing Stephen Kirk in 2002. The State sought a firearm

sentencing enhancement.      On April 25, 2008, the State filed an amended

information that added a charge for assault in the second degree for pointing a

handgun at a witness after shooting Kirk.     The State also sought a firearm

sentencing enhancement on this count.

      Smalls pleaded guilty to murder in the second degree and to assault in the

second degree1 in exchange for dismissal of the firearm enhancement request

on the assault charge and dismissal of a pending charge in an unrelated case.2

Based upon an offender score of 9, the trial court imposed concurrent sentences

of 418 months' confinement for the murder count and 84 months' confinement for

the assault count.

      Smalls appealed to this court. He alleged that his plea was involuntary

because of postplea changes in the law about the length of community custody

authorized for his crimes, as well as numerous other claims. In an unpublished

opinion, we remanded for entry of an order amending the community custody




      1 Before sentencing, Smalls sought to withdraw his guilty plea, claiming
that he was incompetent.     Two evaluations concluded that Smalls was
competent. State v. Smalls, noted at 158 Wn. App. 1031, 2010 WL 4400088, at
*1.
       2The State later agreed to destroy the evidence in the unrelated case.
                                        -2-
No. 68740-9-1/3




period but otherwise affirmed Smalls's judgment and sentence. This court issued

its mandate on March 18, 2011.


       On April 12, 2012, Smalls filed in the sentencing court a CrR 7.8(b) motion

for relief from judgment seeking "to have his sentence for murder in the second

degree with firearm enhancement and assault in the second degree vacated; to

withdraw his plea to both counts I and II and to have count II dismissed . . . ."

The court transferred Smalls's motion to this court for consideration as a


personal restraint petition.

                               STANDARD OF REVIEW


       To prevail on a collateral attack on a judgment and sentence by way of a

personal restraint petition, a petitioner must establish that a constitutional error

has occurred and it has resulted in actual and substantial prejudice or that a

nonconstitutional error has caused a complete miscarriage of justice.3

                                     ANALYSIS


       The State's appropriate concession on the assault conviction leaves one

issue for this court to decide:       Can Smalls collaterally attack his murder

conviction on the grounds alleged? He cannot, because he filed his motion more

than one year after the judgment in his case became final and no recognized

exception to this time bar applies to his allegations.


       3 In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285
(2010) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d
390 (2004)).
                                         -3-
No. 68740-9-1/4




      RCW 10.73.090 prohibits filing a collateral attack on a judgment and

sentence in a criminal case more than one year after the judgment becomes final

"if the judgment and sentence is valid on its face and was rendered by a court of

competent jurisdiction." Smalls contends that this one-year requirement does not

apply to his challenge because his judgment and sentence is invalid on its face

and the trial court was not a court of competent jurisdiction. In addition, Smalls

claims that a statutory exception to the one-year limit applies because "[t]he

sentence imposed was in excess of the court's jurisdiction."4

      The State concedes that Smalls's judgment and sentence is facially invalid

in two ways. It affirmatively shows that the State charged Smalls with assault in

the second degree after the statute of limitations expired. Thus, the trial court

had no authority to convict Smalls of that crime. As Smalls has requested, he is

entitled to withdraw his guilty plea to this crime and have the corresponding

charge dismissed.

       The State also concedes the facial invalidity of the sentence imposed for

Smalls's murder conviction.    A sentence imposed based upon an erroneous

offender score is facially invalid.5 The trial court used an offender score of 9 for

the murder conviction, including 2 points for the invalid assault conviction. His

correct offender score is 7, which reduces his standard range from 298-397



       4 RCW 10.73.100(5).
       s In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866-67, 50 P.3d 618
(2002).
                                        -4-
No. 68740-9-1/5



months to 216-316 months, plus 60 months for the firearm enhancement.

Therefore, Smalls's 418-month sentence violates Washington law.            Smalls is

entitled to some relief from this sentence under RAP 16.4(c)(2).6        He has not

requested this.

       Smalls asks to withdraw his murder plea. But the fact that a portion of the

judgment and sentence is facially invalid does not make the entire judgment and

sentence invalid. It "does not affect the finality of that portion of the judgment

and sentence that was correct and valid at the time it was pronounced."7

       Smalls does not challenge the facial validity of the murder conviction, only

the facial validity of the sentence for it. Instead, he challenges the subject matter

jurisdiction of the trial court to enter the murder conviction8 on three grounds.

First, he alleges that the entire plea bargain exceeded the trial court's authority

because he pleaded guilty to the assault charge and agreed to a sentence based

upon an offender score that included the erroneous assault charge. Second, he

asserts that the plea bargain was inconsistent with the interests of justice and

prosecution standards, in violation of RCW 9.9A.431(1), because it required

conviction for a time-barred crime and a sentence based upon an incorrect


       6 This rule states, "The conviction was obtained or the sentence or other
order entered in a criminal proceeding or civil proceeding instituted by the state
or local government was imposed or entered in violation of the Constitution of the
United States or the Constitution or laws of the State of Washington."
       7 In re Pers. Restraint of Carle, 93 Wn.2d 31, 34, 604 P.2d 1293 (1980)
(citing McNuttv. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848, 850 (1955)).
        8 A party may challenge subject matter jurisdiction for the first time at any
point in a proceeding, even on appeal. State v. Peltier, 176 Wn. App. 732, 744,
309 P.3d 506 (2013) (quoting In re Marriage of McDermott, 175 Wn. App. 467,
479, 307 P.3d 717 (2013)), review granted, 179 Wn.2d 1014 (2014).
                                         -5-
No. 68740-9-1/6



offender score.     Finally, he claims that his plea was involuntary because of

misinformation about the possible charges and sentence that he could face at

trial. We reject these contentions.

        The superior court has original subject matter jurisdiction over all felony

criminal proceedings.9 A court lacks subject matter jurisdiction when it attempts

to decide a type of controversy that it has no authority to decide.10 A court does

not lack subject matter jurisdiction merely because it may lack authority to enter a

given order.11 Smalls concedes our holding that a statute of limitations does not

divest a trial court of subject matter jurisdiction, but preserves this issue for

further review.12   While Smalls could not waive the statute of limitations for

assault by pleading guilty,13 he fails to show that the trial court lacked subject

matter jurisdiction to enter his judgment and sentence.         It lacked statutory

authority to enter only parts of it.

       In re Personal Restraint of Snivelv14 controls the timeliness of Smalls's

three challenges to his murder conviction. In Snivelv, the defendant sought to

withdraw a guilty plea to indecent liberties because of a facially invalid sentence.

      9 State v. Golden, 112 Wn. App. 68, 73, 47 P.3d 587 (2002) (citing Wash.
Const, art. IV, § 6; RCW 2.08.010; State v. Werner, 129 Wn.2d 485, 492, 918
P.2d 916 (1996)).
       10 Peltier, 176 Wn. App. at 744 (quoting Marlev v. Dep't of Labor & Indus.,
125 Wn.2d 533, 539, 886 P.2d 189 (1994)).
       11 Peltier, 176 Wn. App. at 743 (quoting In re Personal Restraint of
Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000)).
      12 Peltier, 176 Wn. App. at 746. ("[A] statute may not divest a superior
court of subject matter jurisdiction unless it, at the same time, assigns that
subject matter jurisdiction to some other court. Obviously, a statute of limitation
does not do this.").
      13 Peltier, 176 Wn. App. at 749.
      14180Wn.2d28,320P.3d 1107(2014).
                                        -6-
No. 68740-9-1/7



The Supreme Court held that he could not, explaining, "Although Snively avoids

the time bar so as to allow him to challenge the facially invalid sentence, his

claim that his plea was involuntary due to misinformation as to sentencing is not

by itself an exempt ground for relief under RCW 10.73.100."15 Accordingly, the

court concluded, "Snively may not rely on the existence of a facial sentencing

error to assert other time barred claims."16 When a judgment and sentence is

facially invalid, the proper remedy is remand to correct the error.17 In Snivelv, the

Supreme Court explained that the "sole remedy" was correction of the erroneous

sentence.18

       Similarly, the facial errors in Smalls's judgment and sentence can be

corrected by allowing him to withdraw his assault plea, dismissing the assault

charge, and correcting his erroneous murder sentence. Thus, this is the sole

relief available to him.    RCW 10.73.090 bars his three untimely collateral

challenges to his murder conviction because none fit within any of the exceptions

listed in chapter 10.73 RCW. Although Smalls does not ask us to remand for




      15 Snivelv. 180 Wn.2d at 32 (citing In re Pers. Restraint of Toledo-Sotelo,
176 Wn.2d 759, 770, 297 P.3d 51 (2013); In re Pers. Restraint of Clark, 168
Wn.2d 581, 587, 230 P.3d 156 (2010)).
      16 Snivelv. 180 Wn.2d at 32 (citing In re Pers. Restraint of Adams, 178
Wn.2d 417, 424-25, 309 P.3d 451 (2013)).
       17 In re Pers. Restraint of Tobin, 165 Wn.2d 172, 176, 196 P.3d 670
(2008) (citing Goodwin, 146 Wn.2d at 877; In re Pers. Restraint of West, 154
Wn.2d 204, 215, 110 P.3d 1122 (2005)).
      18 Snivelv, 180 Wn.2d at 32 (citing Adams, 178 Wn.2d at 427).
                                         -7-
No. 68740-9-1/8



correction of the erroneous portion of his sentence, our decision does not

preclude Smalls from making this request in the trial court.19


      Smalls claims that our Supreme Court's opinion in In re Personal Restraint

of Yates20 entitles him to withdraw his pleas because he demonstrates

prejudice—that he would not have pleaded guilty but for the misinformation. To

support this claim, he cites to language in the Yates opinion dismissing Yates's

personal restraint petition because he made no showing of prejudice.21 Smalls

misreads Yates.


       In Yates, decided the same day as Snivelv, the defendant sought to

withdraw guilty pleas to 13 counts of aggravated first degree murder because the

judgment and sentence was facially invalid. It imposed a determinate 408-year

sentence instead of 408 years with a possible extension to life in prison.22 The

petitioner argued that his plea was invalid because he was not correctly informed

that the proper sentence was an indeterminate sentence of 20 years to life rather

than a determinate sentence of 20 years on two counts.23




       19 See Snivelv, 180 Wn.2d at 32 n.2 ("Snively does not ask for correction
of the sentence but seeks only to withdraw his plea and ultimately be released
from civil commitment. Our decision today does not preclude Snively from
requesting correction of the judgment and sentence in the trial court.").
       20180Wn.2d33, 321 P.3d 1195(2014).
       21Yates, 180Wn.2dat35.
       22 Yates, 180Wn.2dat39.
       23 Yates, 180 Wn.2d at 39-40.
                                        -8-
No. 68740-9-1/9




      The court agreed that the judgment and sentence was facially invalid and

his petition was not time barred.24 But it held that to obtain relief through a

personal restraint petition, Yates needed to show a practical difference between

the sentence actually imposed and the sentence that he should have received.25

The court stated,

      [The petitioner's] only attempt to show that he was prejudiced by
      the error in his sentence was in a later supplemental declaration
      where he indicated that he would not have taken the plea deal if he
      had known that the sentences for two of his murder charges were
      20 years rather than what the law required: an indeterminate life
      sentence with a minimum of 20 years. However, we do not attempt
      to look into the mind and motivations of the defendant when
      determining whether an error resulted in prejudice. Instead, we
      evaluate the practical effects that result from the error.[26]

Thus, because the sentencing court could provide Yates no meaningful relief

from the sentencing error by correcting the judgment and sentence, the court

dismissed his petition instead of remanding to the trial court to correct the

sentence.27   The court considered Yates's failure to show prejudice in this

context. It did not consider the merits of Yates's request to withdraw his guilty

pleas and find them wanting.


       24 Yates, 180Wn.2dat39.
       25 Yates, 180Wn.2dat41.
      26 Yates, 180Wn.2dat41 (citing In re Pers. Restraint of Stockwell, 179
Wn.2d 588, 602, 316 P.3d 1007 (2014).
      27 Yates, 180 Wn.2d at 41. The court concluded, "Yates agreed to a
sentence of 408 years in prison and he should have been sentenced to a
minimum of 408 years with a potential extension to a life sentence. Given the
reality of the human life-span, there is no difference between those two
sentences. There is simply no way to find prejudice in this context." (Footnote
omitted.)
                                       -9-
No. 68740-9-1/10




       We reconcile Snivelv with Yates.          A petitioner whose judgment and

sentence is facially invalid may obtain relief by showing that this facial invalidity

had a practical effect on his sentence. A petitioner who makes this showing is

entitled only to a remand to the trial court to correct the invalidity but is not

entitled to assert a time-barred challenge to the validity of his plea. If, like Yates,

the petitioner cannot show prejudice caused by the sentencing court, he is not

entitled to any relief and his petition will be dismissed.

                                   CONCLUSION


       Smalls's judgment and sentence is facially invalid because the trial court

had no authority to convict for assault in the second degree or impose the murder

sentence. But, RCW 10.73.090 bars Smalls's request to withdraw his guilty plea

to murder.     The personal restraint petition is granted in part, the assault

conviction is vacated, and the matter is remanded for further proceedings

consistent with this opinion.




WE CONCUR:




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