Opinion Information Sheet

			

   IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal               )
Restraint of                                )
                                            )       No. 82951-9
JOSHUA DEAN SCOTT,                          )
                                            )       En Banc 
                      Respondent.           )
______________________________ )                    Filed March 1, 2012

       CHAMBERS, J.  --  In the wake of Blakely v. Washington, 542 U.S. 296, 124 
S. Ct. 2531, 159 L. Ed. 2d 403 (2004), we held that a trial judge lacked the 
authority to impose a firearm enhancement based on a jury's deadly weapon special 
verdict.  State v. Recuenco, 163 Wn.2d 428, 442, 180 P.3d 1276 (2008) (Recuenco
III). We now must decide whether a court may refer to verdict forms to determine 
whether a judgment and sentence is valid on its face and thus not subject to 
collateral attack under RCW 10.73.090 and whether Recuenco III applies
retroactively to cases that were final when it was announced.  We conclude that a 
court may consult the verdict forms to illuminate whether a judgment and sentence 
is valid on its face but that Receunco III is not retroactive.  We reverse the Court of 
Appeals and dismiss this petition.  
                                           FACTS
       In September 2000, Joshua Dean Scott and his partner in crime, Douglas 
Sean James-Anderson, robbed Cascade Custom Jewelers in south Tacoma.  They  

In re PRP of Scott (Joshua), No. 82951-9

brought several guns, including an AR-15 semiautomatic rifle.  Alerted by a silent 
alarm, the police were waiting in the store's parking lot when Scott and James-
Anderson emerged.  They both ran, and they both were caught.  Scott was charged 
with and convicted of multiple counts of first degree robbery, unlawful possession 
of firearms, possession of stolen property, and possession of stolen firearms.  The 
jury also found by special verdict that Scott was armed with a deadly weapon while 
committing most of the counts.  On direct review, the Court of Appeals reversed the 
possession of stolen firearms charges, finding insufficient evidence that Scott knew 
the guns used in the robbery had been stolen, and remanded for resentencing.  
       Scott was resentenced on April 9, 2004. He received a total sentence of 213 
months, including 156 months for the firearm enhancements.  The trial judge 
checked a box on Scott's judgment and sentence indicating that "[a] special 
verdict/finding for use of firearm was returned on Count(s) I, II, V." J. & Sentence 
at 2.  The jury had returned a deadly weapon verdict.  Aside from checking the box, 
the trial judge made no formal, separate finding of fact that Scott was armed with a 
firearm.  
       Under the "Hard Time for Armed Crime Act" of 1995 (Initiative 159), the 
penalty for committing a crime while armed with a firearm is considerably longer 
than the penalty for committing a crime with any other deadly weapon.  Compare 
Laws of 1995, ch. 129, § 3 (firearm enhancements), with § 2 (deadly weapon
enhancements).1  For example, under the initiative, committing a class A felony with 

1 As currently codified, an offender is subject to one schedule of enhancements "[i]f the offender 
or an accomplice was armed with a firearm as defined in RCW 9.41.010," RCW 9.94A.533(3), 
and another schedule of enhancements "if the offender or an accomplice was armed with a deadly 
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In re PRP of Scott (Joshua), No. 82951-9

a firearm would come with a five year sentencing enhancement; the same crime 
committed with a deadly weapon would carry only a three year enhancement.  Id. 
Scott did not appeal again, and on May 9, 2004, his judgment and sentence became 
final.  
       Six weeks later, the United States Supreme Court announced Blakely, 542 
U.S. 296, placing Washington's sentencing procedures into some doubt.2  The next 

year, we held both that Blakely error could not be harmless and that Blakely was not 
retroactive.  State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005) (Recuenco I);
State v. Evans, 154 Wn.2d 438, 114 P.3d 627 (2005).  In 2006, well after the one 
year time bar had lapsed, Scott filed this personal restraint petition.  Also that year, 
the United States Supreme Court reversed our opinion in Recuenco I and held that 
Blakely error could be harmless under federal law.  Washington v. Recuenco, 548 
U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Recuenco II).  On remand, 

weapon other than a firearm as defined in RCW 9.41.010," RCW 9.94A.533(4).  "Firearm" is 
defined in RCW 9.41.010, but "deadly weapon other than a firearm" is not.  While the phrase 
"deadly weapon other than a firearm enhancement" is probably more precise, we use the 
commonly accepted term "deadly weapon enhancement" to refer to RCW 9.94A.533(4) 
enhancements. 
2 As described by one commentator:
              On June 24, 2004, five black-clad figures seized control of the Criminal 
       Justice Express, crashed through warning barriers, flattened the Washington State 
       Sentencing Guidelines, opened the throttle, and sent the train hurtling from the 
       main line down the old rail spur where the Federal Sentencing Guidelines and the 
       sentencing systems of numerous states lay tied helplessly to the tracks. 
       Whereupon, the 2003 Term of Court being concluded, the justices twirled their 
       collective mustachios, sent their robes off to the cleaners, and went on vacation. 
       Two months on, as this Essay goes to press, the rest of us stand staring slack-
       jawed, some delighted and some aghast, at the disarray and paralysis in the 
       locomotive's wake and the impending carnage at the end of the line.
              I refer, of course, to Blakely v. Washington.
Frank O. Bowman, III, Essay, Train Wreck  Or Can the Federal Sentencing System Be Saved  A 
Plea for Rapid Reversal of Blakely v. Washington, 41 Am. Crim. L. Rev. 217, 218 (2004).
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In re PRP of Scott (Joshua), No. 82951-9

this court concluded that harmless error was not the proper analytical approach to 
allegations of Blakely error, at least in the context of a firearm enhancement based 
on a deadly weapon finding.  Instead, "[t]he error . . . occurred when the trial judge 
imposed a sentence enhancement for something the State did not ask for and the 
jury did not find.  The trial court simply exceeded its authority in imposing a 
sentence not authorized by the charges."  Recuenco III, 163 Wn.2d at 442.  Given 
the way Recuenco was framed, we had no occasion to consider whether it applied to 
cases that were final when it was announced. 
       While the Court of Appeals concluded that the trial court had the authority to 
find Scott was armed with a firearm and thus subject to the firearm enhancement, 
given the lack of a written finding, it concluded that Scott's judgment and sentence 
was facially invalid, granted his petition, and remanded for resentencing based on 
the lower, deadly weapons enhancements.  In re Pers. Restraint of Scott, 149 Wn. 
App. 213, 222, 202 P.3d 985 (2009).  Shortly afterward, a different division of the 
court below concluded on substantially similar facts that a pre-Blakely judgment and 
sentence imposing a firearm enhancement was facially valid and thus not subject to 
collateral attack because the fact a firearm was used was "necessarily reflected in 
the jury's general verdict of guilt," despite the lack of a formal written finding.  In re 
Pers. Restraint of Rivera, 152 Wn. App. 794, 796, 218 P.3d 638 (2009), review 
granted, No. 83923-9 (Sept. 12, 2011), and consolidated under In re Pers. 
Restraint of Jackson, No. 82363-4 (Nov. 3, 2011).  We granted the State's motion 
for review.  In re Pers. Restraint of Scott, 168 Wn.2d 1010, 227 P.3d 295 (2010).
                                      1. Facial Validity

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       A criminal judgment and sentence that is valid on its face may not be 
challenged more than one year after it becomes final except under enumerated 
statutory grounds not raised here.  RCW 10.73.090, .100.  Scott contends that his 
judgment and sentence is invalid on its face because he was sentenced for a firearm 
enhancement based on a jury's special verdict that he possessed a deadly weapon.  
The State contends that the judgment and sentence is valid on its face because Scott 
was properly charged with a firearm enhancement and the evidence established that 
only a firearm was used.  Jury verdicts, charging documents, and documents signed 
in connection to a plea agreement are relevant to the facial validity of a judgment 
and sentence but will only be considered to the extent they bear on validity.  See 
generally In re Pers. Restraint of Coats, 173 Wn.2d 123, 131-40, 267 P.3d 324 
(2011); In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 
(2000).  The Court of Appeals concluded that the judgment and sentence was not 
facially valid because it did not mirror the verdict forms and because the trial court 
made no formal finding of fact that Scott was armed.  Scott argued below that 
several different exceptions to the time bar applied, but in this court, he contends 
only that his judgment and sentence is invalid on its face.  
       Determining whether a judgment and sentence is "invalid on its face" and 
thus not subject to the time bar has long vexed this court.  See generally Coats, 173 
Wn.2d at 131-40.  "Invalid on its face" is a term of art that, like many terms of art, 
obscures, rather than illuminates its meaning.  Id.  Generally speaking, a judgment 
and sentence is not valid on its face if it demonstrates that the trial court did not 
have the power or the statutory authority to impose the judgment or sentence.  

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"Invalid on its face" does not mean that the trial judge committed some legal error.  
A trial court does not lose its authority because it commits a legal error, and most 
legal errors must be addressed on direct review or in a timely personal restraint 
petition or not at all.  
       For example, a judgment for a crime charged after the statute of limitations 
has run is not valid on its face.  Stoudmire, 141 Wn.2d at 353-54.  The erroneous 
judgment was not merely the product of legal error; the trial judge simply did not 
have authority to entertain the charges.  Id.  Similarly, a judgment for a crime that 
did not exist when charged is not valid on its face.  In re Pers. Restraint of 
Thompson, 141 Wn.2d 712, 717-19, 10 P.3d 380 (2000).  Again, the trial judge 
simply did not have the authority to entertain the charges.  Id. at 719; see also In re 
Pers. Restraint of Goodwin, 146 Wn.2d 861, 866-67, 50 P.3d 618 (2002) (finding a 
judgment and sentence that included washed out crimes in the offender score was
not valid on its face).  In both Stoudmire and Thompson, the error was not apparent 
without consulting the charging documents, which we did not hesitate to do. 
       By contrast, RCW 10.73.090 does not provide a way for a petitioner to avoid 
the one year time limit for motions to withdraw a guilty plea on the theory that the
judgment and sentence is not valid on its face because it is the product of an 
involuntary plea.  CrR 7.8; In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 
532, 55 P.3d 615 (2002).  The trial judge still has the authority to render judgment 
and any error must be raised in a timely challenge or a timely motion to withdraw 
the plea.  CrR 7.8; see also In re Pers. Restraint of Clark, 168 Wn.2d 581, 586-87, 
230 P.3d 156 (2010) (involuntary plea does not render judgment not valid on its 

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In re PRP of Scott (Joshua), No. 82951-9

face).  Similar principles apply to convictions.  In re Pers. Restraint of Hinton, 152 
Wn.2d 853, 857, 100 P.3d 801 (2004) (citing In re Pers. Restraint of Andress, 147 
Wn.2d 602, 56 P.3d 981 (2002) (judgment predicated on a nonexistent crime not 
valid on its face)).  Thus, the general rule is that a judgment and sentence is not 
valid on its face if the trial judge actually exercised authority (statutory or otherwise) 
it did not have.  Verdict forms, plea agreements, and charging documents may be 
consulted if they show that the court lacked authority and the judgment and sentence 
is not valid on its face.  Otherwise, a judgment and sentence is valid on its face even 
if the petitioner can show some error that might have received relief if brought on 
direct review or in a timely personal restraint petition. 
       We hold that charging documents and verdict forms, but not the jury 
instructions,3 may be consulted to determine whether a judgment and sentence is 
valid on its face.4

                                       2. Retroactivity 
       Since an examination of the verdict forms cast a shadow on the validity of the 
judgment and sentence, we turn to whether Scott is entitled to the benefit of 
subsequent cases that clearly require a jury to return a firearms' verdict before a 

3 We recognize we have in the past, in dicta, suggested that jury instructions could be used to 
show facial invalidity of judgments and sentences.  Instructional error will often be the basis for 
relief on direct review.  But the legislature has plainly indicated that the exceptions to the one year 
time bar are limited to enumerated grounds, and we will not use facial invalidity to circumvent 
that legislative intent.  See RCW 10.73.090, .100. 
4 We respectfully disagree with the court below that the error in the judgment and sentence was 
the trial court's failure to enter formal findings of fact.  Nothing in our law required that, and the 
citation to State v. Robinson, 104 Wn. App. 657, 664, 17 P.3d 653 (2001), is not well taken.  
Even if the trial court was required to enter formal findings, the failure to do so would be in the 
nature of a technical error such as that dismissed in In re Personal Restraint of McKiearnan, 165 
Wn.2d 777, 203 P.3d 375 (2009).  
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In re PRP of Scott (Joshua), No. 82951-9

firearm enhancement may be imposed.  See, e.g., Recuenco III, 163 Wn.2d at 442.  
Whether he is so entitled turns on whether Recuenco III is retroactive.   First, we 
note that we have already held that Blakely itself is not retroactive and does not 
apply to judgments, like Scott's, that were final when it was announced. Evans, 154 
Wn.2d at 444. We articulated the principles of retroactivity analysis in Evans: 

       "1. A new rule for the conduct of criminal prosecutions is to be applied 
       retroactively to all cases, state or federal, pending on direct review or 
       not yet final, with no exception for cases in which the new rule 
       constitutes a clear break from the past.

       "2. A new rule will not be given retroactive application to cases on 
       collateral review except where either: (a) the new rule places certain 
       kinds of primary, private individual conduct beyond the power of the 
       state to proscribe, or (b) the rule requires the observance of procedures 
       implicit in the concept of ordered liberty."
Id. (quoting In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 
(1992)).  '"New" cases are those that "'break[] new ground or impose[] a new 
obligation on the States or the Federal government [or] if the result was not dictated
by precedent existing at the time the defendant's conviction became final."'  Id. at 
445 (alterations in original) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 
1060, 103 L. Ed. 2d 334 (1989)). "If before the opinion is announced, reasonable 
jurists could disagree on the rule of law, the rule is new."  Id. at 444 (citing Beard v.
Banks, 542 U.S. 406, 124 S. Ct. 2504, 2510, 159 L. Ed. 2d 494 (2004)).
       Recuenco III was "new" under this rule.  First, we note that the United States 
Supreme Court held that Blakely error was subject to harmless error analysis. 
Recuenco II, 548 U.S. at 222.  Thus, it was not dictated by federal precedent.  

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In re PRP of Scott (Joshua), No. 82951-9

Second, Recuenco III was not dictated by Washington State precedent.  Recuenco 
III was decided over a vigorous dissent and reversed prior precedent.  163 Wn.2d at 
442 (Fairhurst, J., dissenting); State v. Meggyesy, 90 Wn. App. 693, 708-09, 958 
P.2d 319 (1998) (citing State v. Thorne, 129 Wn.2d 736, 921 P.2d 514 (1996) 
(holding a trial court could enter a firearm enhancement based on a deadly weapon 
verdict when the judge determined that the weapon was a firearm), abrogated by 
Recuenco I, 154 Wn.2d 156.5 Third, federal courts seem unanimous that Blakely is 

not retroactive.  E.g., Winchester v. United States, 477 F. Supp. 2d 81, 85 (D.D.C. 
2007).   Since Scott's judgment and sentence was final before Recuenco III was 
announced and since the opinion does not concern "'private individual conduct 
beyond the power of the state to proscribe,'" Recuenco III only applies retroactively 
if it "'requires the observance of procedures implicit in the concept of ordered 
liberty.'" Evans, 154 Wn.2d at 444 (quoting St. Pierre, 118 Wn.2d at 326).  
       The right to a jury is a fundamental right.  Evans, 154 Wn.2d at 445 (citing 
U.S. Const. amend. VI).  But, as we noted in Evans, "the identity of the fact finder 
for sentencing purposes was not implicit in the concept of ordered liberty and did 
not implicate the fundamental fairness of the proceedings." Id. at 446-47 (citing 
Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2 442 (2004)). 
The same principle applies here.  Whether a jury, rather than a judge determines 
whether an offender is armed with a firearm rather than a deadly weapon does not 
implicate "the observance of procedures implicit in the concept of ordered liberty."  
Accordingly, we hold that Recuenco III does not apply retroactively to cases that 

5 We recognize that Meggyesy was formally abandoned in Recuenco I, not Recuenco III.   
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In re PRP of Scott (Joshua), No. 82951-9

were final when it was announced.  Scott is not entitled to relief based on its 
holdings.6    

                                       CONCLUSION
       We hold that a court may consider inconsistency between the verdict forms 
and the judgment and sentence to determine whether a judgment and sentence is not 
valid on its face.  However, we hold that Recuenco III is not retroactive. We deny 
Scott's motion for relief and dismiss this petition.  

6 We are not without sympathy for the perspective advocated by our dissenting colleagues.  But 
United States Supreme Court precedent makes clear that trial judges do have the power to enter 
judgment even when the jury is not instructed on an element of the crime. See Neder v. United 
States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).  The United States Supreme 
Court has held the same principle applies to sentencing enhancements.  Recuenco II, 548 U.S. at 
219 (citing Neder).  This is a power that can be abused or misused and is subject to revision on 
review, but Neder and Recuenco II establish that the use of this power does not create a structural 
defect in a trial.  Recuenco II, 548 U.S. at 218-19; Neder, 527 U.S. at 8-9.      
                                              10 

In re PRP of Scott (Joshua), No. 82951-9

AUTHOR:
       Justice Tom Chambers

WE CONCUR:

       Justice Susan Owens

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