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In re Johnson

April 3, 1997

IN THE MATTER OF THE PERSONAL RESTRAINT OF JOHN JOHNSON, PETITIONER.


Appeal from Superior Court, Snohomish County.

Authored by Philip A. Talmadge. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Charles W. Johnson, Gerry L. Alexander, Richard B. Sanders. Dissenting: Barbara A. Madsen, Richard P. Guy.

The opinion of the court was delivered by: Talmadge

EN BANC

TALMADGE, J. -- Petitioner John Johnson challenges for the second time by personal restraint petition (PRP) the calculation of the offender score used for his 1985 sentence for felony murder. After his first PRP was denied, we decided a 1994 case that overruled prior law and set forth the proper way to calculate Johnson's offender score. The State argues RCW 10.73.140 bars Johnson from bringing this second PRP to challenge the calculation of his offender score and, thus, his sentence. We hold Johnson's present PRP is not barred under the facts of this case because the 1994 decision marked a material change in the law and constituted good grounds for bringing the present petition. RAP 16.4(d). We grant Johnson's petition, and remand this case to the trial court for resentencing.

ISSUES

1. Is Johnson's second PRP challenging the calculation of his offender score barred by either RCW 10.73.140 or RAP 16.4(d)?

2. If Johnson's PRP is not barred, has Johnson established the necessary grounds under RAP 16.4 for granting the PRP? FACTS

Johnson and two confederates were convicted of first degree felony murder in Snohomish County in 1985. Based on Johnson's criminal history, the sentencing court assigned him an offender score of 2, yielding a standard range of 261 to 347 months. At the sentencing hearing, the court stated its intent to sentence Johnson at the low-end of the standard range in order to be consistent with the low-end sentences the court had already imposed on Johnson's two codefendants. The trial court therefore imposed a sentence of 261 months' confinement, the lowest sentence under the standard range for the offense using 2 as the offender score.

In calculating Johnson's offender score, the trial court addressed two prior convictions, both in California. Johnson was convicted of possession of methadone in 1973, and placed on probation. He was later convicted in 1974 of possession of heroin. Upon his second conviction, his earlier probation was revoked and he served sentences for both offenses concurrently. The sentencing court in Washington, however, counted each offense separately for purposes of Johnson's criminal history, leading to an offender score of 2; for Johnson's crime, with this offender score, his standard sentence range was 261-347 months. Johnson sought direct review of his conviction, which was affirmed. In the direct appeal, he did not challenge the calculation of his offender score.

Johnson filed his first PRP in 1989 to protest, inter alia, the use of 2 as his offender score. Citing RCW 9.94A.360(6)(c) in his first PRP, Johnson argued his offender score should have been 1 because he had served his prior sentences concurrently. *fn1 With 1 as his offender score, the standard sentence range would be reduced to 250-333 months. Johnson contended the sentencing court, consistent with its statement during the sentencing hearing, would have sentenced him at the low-end of the standard range, a sentence of 250 months.

The Court of Appeals rejected Johnson's claim, noting the two possession crimes for which Johnson was convicted were not committed and tried at one time. On the authority of State v. Chavez, 52 Wash. App. 796, 799, 764 P.2d 659 (1988) (overlapping sentences not considered as one offense for purposes of calculating offender score), the Court of Appeals concluded the commission of the second offense resulted in revocation of the probation imposed for the first offense. As a result, according to the Court of Appeals, Johnson's California sentences overlapped and he served the sentence for the second offense concurrently with the balance of the sentence imposed for the first. Johnson did not petition this Court for review of the Court of Appeals decision.

We specifically overruled Chavez five years after the denial of Johnson's initial PRP. In In re Personal Restraint of Sietz, 124 Wash. 2d 645, 650, 880 P.2d 34 (1994), we concluded for offenses committed before July 1, 1986, a revoked probation or parole merges with another offense served concurrently, establishing an "adult conviction served concurrently" for purposes of RCW 9.94A.360(8) in calculating an offender score. Under this new rule, Johnson's offender score should have been 1 instead of 2.

As a result of the decision in Sietz, Johnson filed a motion on December 5, 1994 under CrR 7.8(a) to correct what he called a clerical mistake in his sentence. Judge Richard Thorpe of the Snohomish County Superior Court responded by letter on April 4, 1995, denying the motion, and advising Johnson that his only avenue for relief was a PRP, citing RAP 16.5(a). Johnson then filed his second PRP on May 17, 1995, in which he again argued his offender score should have been 1, this time citing Sietz. Prior to ...


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