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In re Personal Restraint of Paul Preston Moore

January 10, 1991

IN THE MATTER OF THE PERSONAL RESTRAINT OF PAUL PRESTON MOORE, PETITIONER


En Banc. Brachtenbach, J. Callow, C.j., and Utter, Dolliver, Dore, Andersen, Durham, Smith, and Guy, JJ., concur.

Author: Brachtenbach

By personal restraint petition, Paul Preston Moore challenges the life without possibility of

parole sentence he received pursuant to his conviction on a plea of guilty to first degree aggravated murder in 1980. He claims that the sentence is not authorized by former RCW 9A.32.040 and RCW 10.94.020.*fn1 He also claims that his sentence violates the fifth and sixth amendments to the federal constitution. We agree that the sentence was not authorized by statute and therefore grant the petition and remand for resentencing to life with the possibility of parole. Because we decide in petitioner's favor on the statutory issue, we do not reach the constitutional question.

In February 1980, petitioner, along with two companions, committed a brutal double murder. In March 1980, petitioner pleaded guilty to two counts of murder in the first degree. He stipulated to the existence of aggravating and mitigating circumstances as to one count under the belief that the court would have no discretion but to convict and sentence him to life without possibility of parole on that count. The court did sentence him to life without possibility of parole on that count and life with possibility of parole on the other count. Petitioner did not appeal his conviction or sentence.

In May 1989, petitioner initiated this personal restraint petition in Division Two of the Court of Appeals. By order dated October 31, 1989, that court dismissed the petition, interpreting State v. Frampton, 95 Wash. 2d 469, 627 P.2d 922 (1981) as allowing petitioner's life without possibility of parole sentence on a plea of guilty to first degree aggravated murder and finding that petitioner had waived any objections to his sentence when he pleaded guilty. Petitioner filed a motion for discretionary review in this court, which we granted.

[1] We begin by noting that petitioner did not appeal his conviction or sentence. All of the issues he raises in this

personal restraint petition, including his statutory challenge, are therefore raised for the first time on collateral review. This court has stated that "a Personal Restraint Petition is not a substitute for an appeal." In re Hews, 99 Wash. 2d 80, 86, 660 P.2d 263 (1983). We therefore severely limit the availability of collateral relief based on statutory grounds not first raised on appeal.

[T]o receive collateral review of a conviction on nonconstitutional grounds, a petitioner must establish that the claimed error constitutes a fundamental defect which inherently results in a complete miscarriage of justice.

In re Cook, 114 Wash. 2d 802, 812, 792 P.2d 506 (1990).

Petitioner has met this burden. He correctly reasons that his sentence was not authorized by statute. Confinement beyond that authorized by statute is exactly the kind of fundamental defect which the rule we announced in Cook was aimed at remedying. Accordingly, we will review the petition. We note in passing that if petitioner's sentence is not authorized by statute, failure to correct the defect could result in a denial of petitioner's due process rights. Hill v. Estelle, 653 F.2d 202, 204 (5th Cir.) (citing Hicks v. Oklahoma, 447 U.S. 343, 65 L. Ed. 2d 175, 100 S. Ct. 2227 (1980)), cert. denied, 454 U.S. 1036 (1981).

Petitioner claims that the life without possibility of parole sentence he received pursuant to his guilty plea is not authorized by the statutory scheme in existence when he was sentenced. At that time sentencing in first degree murder cases was governed in part by RCW 9A.32.040!--/REF--> and RCW 10.94.020.*fn2 RCW 9A.32.040!--/REF--> provides:

(2) If, pursuant to a special sentencing proceeding held under RCW 10.94.020, the jury finds that there are one or more aggravating circumstances but fails to find that there are not sufficient ...


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