Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           MAR 29, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29801-9-III
                                                )          Consolidated with
                      Respondent,               )         No. 30238-5-III
                                                )
              v.                                )
                                                )
TIMOTHY TOMASZEWSKI,                            )
                                                )
                      Appellant.                )
                                                )         UNPUBLISHED OPINION
In re the Personal Restraint Petition of:       )
                                                )
TIMOTHY TOMASZEWSKI,                            )
                                                )
                       Petitioner.              )
                                                )
       Brown, J. ? Timothy Tomaszewski pleaded guilty to felony driving under the 

influence, first degree driving while license suspended, hit and run, and ignition 

interlock violation. The State recommended, and the court imposed, a standard-

range sentence.  Pro se, Mr. Tomaszewski appeals, contending his due process 

rights were violated because the State did not recommend credit for time served on 

another offense.  In his consolidated personal restraint petition (PRP), Mr. 

       1 Mr. Tomaszewski filed a motion on the merits following the filing of the  

No. 29801-9-III 
State v. Tomaszewski  

Tomaszewski contends he was denied effective assistance of counsel.1 Finding no 

error, we affirm.

                                          FACTS

       After being involved in a motor vehicle accident and leaving the scene, Mr. 

Tomaszewski was charged with felony driving under the influence, first degree 

driving while license suspended or revoked, hit and run (attended vehicle), and 

ignition interlock violation.  Mr. Tomaszewski pleaded guilty. In exchange, the State 

agreed to recommend 33 months incarceration; the low end of a standard range 

sentence.  At the plea hearing, the court discussed with Mr. Tomaszewski the rights 

he was giving up and the State's recommendation. He informed the court he 

understood his rights. The court sentenced Mr. Tomaszewski to 33 months.    

       Mr. Tomaszewski was incarcerated at the Benton County Jail from March 19, 

2010, to June 2, 2010. 40 days of this time was for a Benton County District Court 

matter.  The remaining time, 35 days, along with the good time of 17.5 days that Mr. 

Tomaszewski earned were applied to this matter. 

State's response brief.  Since his appeal and PRP were already set on the March 
docket, the motion was referred to the panel.  A motion on the merits to reverse may 
be granted, "if the appeal or any part thereof is determined to be clearly with merit."  
In making this determination, the court will look to, "all relevant factors including 
whether the issues on review (a) are clearly controlled by settled law, (b) are factual 
and clearly not supported by the evidence, or (c) are matters of judicial discretion 
and the decision was clearly an abuse of discretion."  Id. Because Mr. 
Tomaszewski's issues are not clearly controlled by settled law and not clearly 
supported by the evidence in his favor, his motion is denied.

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No. 29801-9-III 
State v. Tomaszewski  

       Mr. Tomaszewski, pro se, filed a CrR 7.8(b)(3) motion to amend the judgment 

and sentence on January 26, 2011, requesting the court give him credit for the 40 

days that was applied to the district court matter.  The court denied his request.  Mr. 

Tomaszewski appealed this ruling and filed a PRP.  This court consolidated the two 

matters.  

                                        ANALYSIS

                                A. Credit for Time Served

       The issue is whether Mr. Tomaszewski's due process rights were violated at 

sentencing.  He contends the State orally agreed to recommend he receive credit for 

time served on a district court matter separate from the charges in this appeal.  

       Mr. Tomaszewski brought his motion below as a motion to amend the 

judgment and sentence under CrR 7.8(b).  We review a trial court's decision on a

CrR 7.8(b) motion for relief from judgment for abuse of discretion. State v. Smith,

159 Wn. App. 694, 699, 247 P.3d 775 (2011).  Generally, a defendant may not 

appeal a standard range sentence.  State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 

1042 (1993); RCW 9.94A.585. Exceptions to this rule exist, however, for challenges 

to the court's sentencing procedures and violations of due process.  See State v. 

Goldberg, 123 Wn. App. 848, 852, 99 P.3d 924 (2004) (standard range sentence 

may be appealed where constitutional violation is alleged).  A prosecutor's breach of 

a plea agreement at sentencing violates due process.  State v. Sanchez, 146 Wn.2d 

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No. 29801-9-III 
State v. Tomaszewski  

339, 346, 46 P.3d 774 (2002).  A plea agreement is a contract, State v. Turley, 149 

Wn.2d 395, 400, 69 P.3d 338 (2003), and a prosecutor must act in good faith when 

carrying out its terms.  State v. Sledge, 133 Wn.2d 828, 839, 947 P.2d 1199 (1997).

       Offenders are entitled to receive credit for all pretrial detention served.  State 

v. Speaks, 119 Wn.2d 204, 206, 829 P.2d 1096 (1992). "Failure to allow such credit 

violates due process, denies equal protection, and offends the prohibition against 

multiple punishments." In re Pers. Restraint of Costello, 131 Wn. App. 828, 832, 129 

P.3d 827 (2006).  In Costello, the court stated former RCW 9.94A.120(17) (now 

renumbered as RCW 9.94A.505(6)) "'simply represents the codification of the 

constitutional requirement that an offender is entitled to credit for time served prior to 

sentencing.'" Costello, 131 Wn. App. at 833 (quoting State v. Williams, 59 Wn. App. 

379, 382, 796 P.2d 1301 (1990)). But credit is not allowed for time served on other 

charges. In re Pers. Restraint of Phelan, 97 Wn.2d 590, 597, 647 P.2d 1026 (1982).

       Here, any promise for credit for time served on another crime would be 

unenforceable.  Accordingly, Mr. Tomaszewski cannot establish prejudice by any 

alleged oral promise.  See State v. Cantrell, 111 Wn.2d 385, 388-89, 758 P.2d 1 

(1988) (proof of prejudice is necessary element of due process claim).  Therefore, 

Mr. Tomaszewski's due process violation claim fails.

                                B.  Assistance of Counsel

       The issue is whether Mr. Tomaszewski should be granted relief from restraint 

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No. 29801-9-III 
State v. Tomaszewski  

because he was denied effective assistance of counsel.  He contends his counsel 

was ineffective for failing to secure credit for time served on the district court offense.     

       Both federal and state constitutions guarantee effective assistance of 

counsel.  U.S. Const. amend. VI; Wash. Const. art. I, § 22. An appellant claiming 

ineffective assistance of counsel must show deficient performance and resulting 

prejudice. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). To prove deficient performance, the defendant must show that 

counsel's performance fell "below an objective standard of reasonableness."  Id. at 

688.  "There is a strong presumption that counsel's performance was reasonable."

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). "When counsel's conduct 

can be characterized as legitimate trial strategy or tactics, performance is not 

deficient."  Id. at 863.  To satisfy the prejudice prong, the defendant must show that 

the outcome of the proceedings would have differed but for counsel's deficient 

performance.  State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). "The proper 

standard for attorney performance is that of reasonably effective assistance."

Strickland, 466 U.S. at 687.

       A petitioner may request relief through a PRP when under unlawful restraint.

RAP 16.4(a)-(c).  The petitioner must prove either a (1) constitutional error resulting

in actual and substantial prejudice or (2) nonconstitutional error "'constitut[ing] a 

fundamental defect which inherently results in a complete miscarriage of justice.'" In 

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No. 29801-9-III 
State v. Tomaszewski  

re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004) (quoting In re 

Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)).  The petitioner 

must prove the error by a preponderance of the evidence.  In re Pers. Restraint of 

Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004).

       When a PRP is based on ineffective assistance of counsel, a personal 

restraint petitioner need not "'satisfy a heightened prejudice requirement under 

actual and substantial prejudice that exceeds the showing of prejudice necessary to 

successfully establish the Strickland prejudice prong.'" In re Pers. Restraint of 

Monschke, 160 Wn. App. 479, 491, 251 P.3d 884 (2010) (quoting In re Pers. 

Restraint of Crace, 157 Wn. App. 81, 112-14, 236 P.3d 914 (2010), review granted,

171 Wn.2d 1035, 257 P.3d 1260 (2011)).

       For the reasons discussed in Mr. Tomaszewski's direct appeal, he cannot 

establish prejudice.  Under both RCW 9.94A.505(6) and Phelan, 97 Wn.2d at 597,

credit is not allowed for time served on other charges. Accordingly, any attempt by 

defense counsel to secure credit for time served on the district court offense would 

have been futile.  Without prejudice, Mr. Tomaskewski cannot show he was denied 

effective assistance of counsel.    

       Affirmed.  PRP denied.  

       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 

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No. 29801-9-III 
State v. Tomaszewski  

2.06.040.

                                                    ____________________________
                                                    Brown, J.

WE CONCUR:

________________________             `              ____________________________
Korsmo, A.C.J.                                      Sweeney, J.

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