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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
37048-4 |
| Title of Case: |
Personal Restraint Petition Of: Ernest A. Carter |
| File Date: |
01/31/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Pierce County Superior Court |
| Docket No: | 97-1-04547-1 |
| Judgment or order under review |
| Date filed: | 09/23/1998 |
| Judge signing: | Honorable Thomas J Felnagle |
JUDGES
------
| Authored by | David H. Armstrong |
| Concurring: | Joel Penoyar |
| Marywave Van Deren |
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s) |
| | Jeffrey Erwin Ellis |
| | Ellis Holmes & Witchley PLLC |
| | 705 2nd Ave Ste 401 |
| | Seattle, WA, 98104-1718 |
Counsel for Respondent(s) |
| | Michelle Luna-Green |
| | Pierce Co Pros Attorney |
| | 955 Tacoma Ave S Ste 301 |
| | Tacoma, WA, 98402-2160 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint of: No. 37048-4-II
ERNEST CARTER, a/k/a LE'TAXIONE,
ORDER AMENDING OPINION AND
Petitioner. DENYING MOTION FOR
RECONSIDERATION
Petitioner Ernest Carter moves this court to reconsider the opinion filed on January 31,
2012. After consideration, this court hereby amends the opinion as follows.
On page 8 of the slip opinion, the last sentence before subsection (C) is edited as shown
and the following paragraph inserted:
Consequently, Carter does not succeed in showing that a significant change in the
law entitles him to relief. See RCW 10.73.100(6).
In supplemental briefing, Carter argues that our Supreme Court's decision in In re
Personal Restraint of Lavery, 154 Wn.2d 249, 111 P.3d 837 (2005), constitutes a significant
change in Washington law that entitles him to relief. In Lavery, however, the court applied a
prior change in the law to exempt the petition from the time bar; Lavery did not, in and of itself,
change the law. That change came in State v. Freeburg, 120 Wn. App. 192, 198-99, 84 P.3d 292
(2004), as the Lavery court observed:
Freeburg changed the comparability analysis for robbery. . . . [U]ntil Freeburg[,] .
. . the rule in Washington was that federal bank robbery and second degree robbery
were comparable as a matter of law. . . . It is clear on their faces that federal bank
robbery and robbery under Washington law are not legally comparable, and this
was not confirmed until Freeburg effectively overruled [State v. Mutch, 87 Wn.
App. 433, 942 P.2d 1018 (1997)] in this regard.
Lavery, 154 Wn.2d at 259-60.
No. 37048-4-II
The petitioner in Lavery was entitled to relief because, under Freeburg, his federal bank
robbery conviction was not comparable to second degree robbery in Washington and was
improperly counted as a strike. Lavery, 154 Wn.2d at 260-62. Accordingly, the Lavery court
granted the petition due to a change in the law regarding the comparability of federal bank
robbery and second degree robbery. It clarified but did not change the underlying comparability
analysis endorsed in State v. Morley, 134 Wn.2d 588, 952 P.2d 167 (1998), which was decided
before Carter was sentenced. Lavery does not constitute a significant change in the law that
entitles Carter to relief under RCW 10.73.100(6).
This Court further denies the motion for reconsideration. It is
SO ORDERED.
Dated this _______ day of _____________________________, 2012.
Armstrong, J.
We concur:
Van Deren, J.
Penoyar, C.J.
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No. 37048-4-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re Personal Restraint Petition of: No. 37048-4-II
ERNEST A. CARTER, UNPUBLISHED OPINION
Respondent.
Armstrong, J. -- We previously considered this personal restraint petition challenging
Ernest A. Carter's1 1998 robbery convictions and his sentencing as a persistent offender. We held
that Carter's challenge to his shackling during trial was untimely, but we granted relief after
holding that Carter was actually innocent of being a persistent offender. The Supreme Court
granted the State's petition for review and held that the actual innocence exception did not apply.
It then remanded the petition to this court for consideration of Carter's other claimed exceptions
to the one-year time bar. Finding that these exceptions do not entitle Carter to relief, we deny the
petition.
Facts
When tried in Pierce County on two counts of first degree robbery in 1998, Carter had
prior convictions in California and Oregon for assault with a firearm on a peace officer and
attempted murder. Consequently, he was eligible for life imprisonment without the possibility of
parole under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.120
(1994), if found guilty of one or both robbery counts. The jury convicted Carter on both counts.
1 Carter changed his name to Le'Taxione after his conviction. Because his court documents use
his former name, this opinion does as well.
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No. 37048-4-II
The trial court concluded that his California assault and Oregon attempted murder convictions
were comparable to most serious offenses in Washington and sentenced him to life in prison.
Carter appealed, challenging his convictions on the ground that jurors saw his shackles
during trial and also challenging the comparability of his California conviction. In an unpublished
opinion, we rejected any claim of error regarding the shackling as well as Carter's contention that
his California assault conviction was comparable to third degree assault of a police officer in
Washington and thus not a most serious offense. State v. Carter, 100 Wn. App. 1028, 2000 WL
420660, at *5, 12-13. Carter petitioned for review, arguing that his California assault conviction
was not comparable to assault in Washington because the California assault statute did not require
the specific intent the Washington statute requires. Our Supreme Court denied review, and we
issued our mandate on October 18, 2000. When Carter filed a habeas petition raising the
comparability issue, a federal district court dismissed it as procedurally barred on March 29, 2002.
Carter filed this personal restraint petition on October 3, 2007. He again sought relief
based on the visibility of his shackles during his trial and the comparability issue. We rejected his
claim that his petition was not subject to the one-year time bar because he did not receive notice
of that statute of limitation from the trial court. In re Pers. Restraint of Carter, 154 Wn. App.
907, 914, 230 P.3d 181 (2010), reversed and remanded, 172 Wn.2d 917, 263 P.3d 1241 (2011).
We also rejected his claim that a recent change in the law warranted our reconsideration of the
shackling issue. Carter, 154 Wn. App. at 916 (citing RCW 10.73.100(6)). Turning to the
comparability issue, we held that the mixed petition rule barred consideration of Carter's claim
that there was a significant change in the law material to the comparability issue as well as his
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No. 37048-4-II
claim that the sentence imposed was in excess of the trial court's jurisdiction. Carter, 154 Wn.
App. at 917 n.2 (citing RCW 10.73.100(6) and RCW 10.73.100(5)). And, because we granted
relief on Carter's claim that he was actually innocent of being a persistent offender, we did not
reach his argument that his judgment and sentence was facially invalid under RCW 10.73.090.
Carter, 154 Wn. App. at 924 n.6.
The State petitioned for review of our analysis of the actual innocence exception, and
Carter cross-petitioned for review, raising all previously argued exceptions to the time bar
regarding the comparability claim and seeking review of our denial of his shackling claim. Carter,
172 Wn.2d at 921. The Supreme Court granted review of the State's petition, denied review of
Carter's petition, and held that we had erred in granting Carter relief. Carter, 172 Wn.2d at 921,
933-34. The Court also remanded so that we could consider Carter's alternative claims to avoid
the time bar; i.e., his argument that there was a significant change in the law material to the
comparability issue (RCW 10.73.100(6)), that the sentence imposed was in excess of the court's
jurisdiction (RCW 10.73.100(5)), and that his judgment and sentence was facially invalid (RCW
10.73.090). Carter, 172 Wn.2d at 933.
Analysis
I. Exceptions under RCW 10.73.100
Personal restraint petitions generally are prohibited if not filed within one year after the
judgment and sentence becomes final. RCW 10.73.090(1). A petition is exempt from the one-
year time limit, however, if the judgment and sentence is facially invalid or if it was not rendered
by a court of competent jurisdiction. RCW 10.73.090(1). There are also statutory exceptions to
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No. 37048-4-II
the time bar for certain categories of issues. RCW 10.73.100. The petitioner bears the burden of
proving that an exception to the RCW 10.73.090 statute of limitation applies. State v. Schwab,
141 Wn. App. 85, 90, 167 P.3d 1225 (2007).
Carter's convictions became final when we filed our mandate on October 18, 2000. RCW
10.73.090(3)(b). Filed in 2007, this petition challenged both his shackling and his sentencing.
The Supreme Court did not review our conclusion that Carter had adequate notice of the one-
year time limit for filing personal restraint petitions, or our conclusion that his shackling claim was
untimely under RCW 10.73.100(6), so these conclusions remain the law of the case and do not
warrant further analysis. See State v. Strauss, 119 Wn.2d 401, 412, 832 P.2d 78 (1992)
(appellate court's decision supersedes a lower court decision only on issues the appellate court
decides).
A. Mixed Petition Rule
The Supreme Court has stated that where one or more of the grounds asserted for relief in
a personal restraint petition falls within the exceptions in RCW 10.73.100 and one or more does
not, the petition is a "mixed petition" that must be dismissed. In re Pers. Restraint of Coats, ___
P.3d ___, 2011 WL 5593063, at *23 (Wash. 2011) (Stephens, J., concurring); In re Pers.
Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003) (citing In re Pers. Restraint of
Hankerson, 149 Wn.2d 695, 697, 702-03, 72 P.3d 703 (2003); In re Pers. Restraint of
Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000)). As the Court has explained,
[O]nce the court determines that any one of the claims raised do not fall within an
exception, the petition must be dismissed without any further consideration.
Hankerson, 149 Wn.2d at 702-03, 72 P.3d 703. The court will not advise as to
which claims are time barred and which are not, nor will the court decide claims
under RCW 10.73.100 that are not time barred. Id.
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No. 37048-4-II
Turay, 150 Wn.2d at 86; see also In re Pers. Restraint of Domingo, 155 Wn.2d 356, 370 n.10,
119 P.3d 816 (2005) (where one of the grounds asserted for relief fall within the exceptions in
RCW 10.73.100 and one or more do not, the petition is a mixed petition that must be dismissed
without considering the other issues presented). "Only those claims which satisfy the conditions
of RCW 10.73.090, namely claims which challenge the facial validity of the judgment and
sentence or which challenge the jurisdiction of the court, may be addressed when we are
presented with a mixed petition." In re Pers. Restraint of Stenson, 150 Wn.2d 207, 220, 76 P.3d
241 (2003) (citing Stoudmire, 141 Wn.2d at 349-52). The Stenson court was tempted to discuss
the merits of each claim despite the fact that one was untimely but declined to do so, reasoning
that any such discussion would be "merely dicta and might be viewed as undermining our
decisions in Stoudmire and Hankerson." Stenson, 150 Wn.2d at 221.
In adherence to this case law and the mixed petition rule, we held in our initial opinion that
because Carter had not succeeded in showing that he was entitled to relief under RCW
10.73.100(6) on the shackling issue, we could not consider his claims for relief from his persistent
offender sentencing under RCW 10.73.100(5) and (6). Carter, 154 Wn. App. at 917 n.2.
The Supreme Court did not refer to the mixed petition rule in directing us on remand to
consider these additional claims for relief. But, given the express directive issued, we will address
the merits of those claims.
B. Significant Change in the Law
The one-year time limit does not apply to a personal restraint petition if the issue raised
depends on a significant change in the law that is material to the petitioner's conviction or
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No. 37048-4-II
sentence and applies retroactively. RCW 10.73.100(6); see also In re Pers. Restraint of
Crabtree, 141 Wn.2d 577, 584, 9 P.3d 914 (2000). One test to determine whether an intervening
case represents a significant change in the law is whether the defendant could have argued the
issue before publication of the decision. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258-59,
111 P.2d 837 (2005). Another test is whether an intervening decision has effectively overturned a
prior appellate decision that was originally determinative of a material issue. In re Pers. Restraint
of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000). Carter argues here that a significant
change in California law relieves him of the time bar and entitles him to sentencing relief.
Where a defendant's criminal history includes out-of-state convictions, the Sentencing
Reform Act (SRA) requires them to be classified according to the comparable offense definitions
and sentences provided by Washington law. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452
(1999). To properly classify an out-of-state conviction according to Washington law, the
sentencing court must compare the elements of the out-of-state offense with the elements of
potentially comparable Washington crimes. Ford, 137 Wn.2d at 479. If the elements are not
identical, or if the foreign statute is broader than the Washington statute, the sentencing court may
look into the record of the out-of-state conviction to determine whether the defendant's conduct
would have violated the comparable Washington offense. State v. Morley, 134 Wn.2d 588, 606,
952 P.2d 167 (1998).
For a defendant to be sentenced as a persistent offender, he must (1) have been convicted
in Washington of a felony defined as a most serious offense, and (2) have been previously
convicted on at least two separate occasions, in this state or elsewhere, of felonies that, under the
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No. 37048-4-II
laws of this state, would be considered most serious offenses and would be included in the
offender score under RCW 9.94A.525. RCW 9.94A.030(37).2 The SRA includes within the
definition of most serious offenses any class A felony, second degree assault, and any federal or
out-of-state conviction that under the laws of this state would be classified as a most serious
offense. RCW 9.94A.030(32).
Carter argues that a change in California law demonstrates that his conviction for assault
of a peace officer with a firearm is not a strike because it is not comparable to a most serious
offense in Washington. He argues that when the California Supreme Court announced in 2001
that assault is a general intent crime under California law, it changed the law and demonstrated
that a California assault cannot be comparable to assault in Washington, which is a specific intent
crime. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995); State v. Abuan, 161 Wn. App.
135, 158, 257 P.3d 1 (2011).
The California case at issue is People v. Williams, 26 Cal. 4th 779, 111 Cal. Rptr. 2d 114,
29 P.3d 197 (2001). Instead of changing the law, the Williams court adhered to long-established
precedent in holding that the crime of assault, as defined in California statutes, does not require a
specific intent to cause injury or a subjective awareness of the risk that an injury might occur.
"Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to
establish that the act by its nature will probably and directly result in the application of physical
force against another." Williams, 26 Cal. 4th at 790. In so holding, the court stated that it did
not disturb its previous holdings that assault is a general intent crime. Williams, 26 Cal. 4th at
2 We cite current sentencing statutes for clarity where they reflect the law in effect when Carter
committed his crimes. State v. Swiger, 159 Wn.2d 224, 227 n.3, 149 P.3d 372 (2006).
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No. 37048-4-II
788 (citing People v. Colantuono, 7 Cal. 4th 206, 215-16, 26 Cal. Rptr. 2d 908, 865 P.2d 704
(1994) and People v. Rocha, 3 Cal. 3d 893, 899, 92 Cal. Rptr. 172, 479 P.2d 372 (1971)).
Carter asserts that before Williams, he could not argue that his California assault was a
general intent crime and thus not a strike, and he contends that this change in the law applies
retroactively. But during Carter's direct appeal, his attorney filed a motion for accelerated review
of his sentence and, citing Colantuono and Rocha, argued that his California assault was not
comparable to assault in Washington because of the different intents required. Carter again
referred to the different intent elements in arguing to the Washington Supreme Court that his
petition for review should be granted. As a result, Carter does not establish that Williams raised a
new point of law that he could not argue before its issuance. Nor does Carter show that Williams
constitutes an intervening decision that effectively overturned a prior appellate decision.
Consequently, Carter does not succeed in showing that a significant change in the law entitles him
to relief. See RCW 10.73.100(6).
C. Sentencing in Excess of Trial Court's Jurisdiction
Without citing any supporting authority, Carter also argues in his petition that he is
entitled to relief because the persistent offender sentence he received exceeded the trial court's
jurisdiction. See RCW 10.73.100(5) (time bar does not apply where the sentence imposed was in
excess of the trial court's jurisdiction). A court has subject matter jurisdiction where it has the
authority to adjudicate the type of controversy in the action, and it does not lose subject matter
jurisdiction merely by interpreting the law erroneously. In re Pers. Restraint of Vehlewald, 92
Wn. App. 197, 201-02, 963 P.2d 903 (1998) (citing State v. Moen, 129 Wn.2d 535, 545, 919
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No. 37048-4-II
P.2d 69 (1996)). Consequently, a sentence is not jurisdictionally defective for purposes of
triggering the exception in RCW 10.73.100(5) because it is in violation of a statute or based on a
misinterpretation of a statute. In re Pers. Restraint of Richey, 162 Wn.2d 865, 872, 175 P.3d 585
(2008). Carter thus cannot avail himself of this exception to the time bar even if his California
conviction is not comparable to a Washington strike offense.
II. Facial Invalidity
Carter contends that he is entitled to sentencing relief because his California conviction
washed out and because his judgment and sentence lacks an offender score. He contends that
these errors render his judgment and sentence facially invalid, thereby exempting his request for
sentencing relief from the time bar. See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866-
67, 50 P.3d 380 (2002) (judgment that includes washed-out felony convictions is exempt from
time bar).
The one-year statutory bar does not apply to judgments and sentences that appear facially
invalid. RCW 10.73.090(1); In re Pers. Restraint of LaChappelle, 153 Wn.2d 1, 6, 100 P.3d 805
(2004). A judgment and sentence is facially invalid if it evidences the invalidity without further
elaboration, although a court may look to charging documents, verdicts, and plea agreements to
determine facial invalidity. Coats, 2011 WL 5593063, at *8; Goodwin, 146 Wn.2d at 866.
Carter argues that his California conviction should have washed because it is equivalent to
the Washington gross misdemeanor offense of unlawful discharge of a firearm. RCW 9.41.230.
As the State points out, this argument is actually a claim that his California conviction should not
count as a strike rather than a wash-out claim. The wash-out rules apply only to felony
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No. 37048-4-II
convictions. RCW 9.94A.525. With one exception, misdemeanor convictions are not included in
offender scores and thus do not wash. See Ford, 137 Wn.2d at 479.3 This argument apparently
reframes the comparability question in a manner designed to overcome the time bar. An allegedly
erroneous comparability determination does not render a judgment and sentence facially invalid
because such error can be determined only by examining the facts of the foreign conviction as well
as the elements of both the foreign and state offenses, which typically are not available solely by
resort to court documents. See In re Pers. Restraint of Banks, 149 Wn. App. 513, 520-21, 204
P.3d 260 (2009) (where petitioner claimed prior California convictions were not comparable to
Washington felonies, alleged error was not evident on the face of the judgment and sentence, nor
shown by documents related to his plea, so judgment and sentence was valid on its face); In re
Pers. Restraint of Rowland, 149 Wn. App. 496, 505-06, 204 P.3d 953 (2009) (where petitioner
was sentenced following trial, plea documents relating to prior convictions were irrelevant in
assessing facial invalidity of current judgment and sentence). This argument does not support
Carter's claim of facial invalidity.
Carter cites no authority for his second contention that his judgment and sentence is
facially invalid because it does not include an offender score. An offender score calculation was
unnecessary, however, because Carter's life sentence was mandatory given the three strikes
calculation. See Carter, 2000 WL 420660, at *13; In re Pers. Restraint of Cadwallader, 155
Wn.2d 867, 876, 123 P.3d 456 (2005) (distinguishing between using prior convictions to
determine offender score or as predicate strike offenses for POAA). Even if the trial court should
3 Where the current conviction is for a felony traffic offense, a sentencing court may include
serious misdemeanor traffic offenses in the offender score. RCW 9.94A.525(11).
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No. 37048-4-II
have included an offender score in the judgment and sentence, its omission does not render the
document invalid.
Having considered Carter's alternative claims for relief as directed, we deny his personal
restraint petition as untimely.
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.
Armstrong, J.
We concur:
Van Deren, J.
Penoyar, C.J.
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