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In re Personal Restraint of Sorenson

Court of Appeals of Washington, Division 2

October 3, 2017

In re the Personal Restraint of RONALD SORENSON, Petitioner.

          LEE, J.

         Ronald Sorenson filed this personal restraint petition (PRP) about 13 months after this court issued its mandate on his direct appeal. He asserts the petition is timely, despite the one year time-bar in RCW 10.73.090, because it was filed less than one year after the trial court corrected scrivener's errors on his judgment and sentence, as directed to do on remand. We hold his petition is time-barred because it was filed more than a year after the mandate on his direct appeal issued and the trial court did not exercise its independent judgment in correcting the scrivener's errors on remand.

         In the unpublished portion of this opinion, we hold that even if Sorenson's petition is not time-barred, Sorenson fails to show that defense counsel was ineffective.

         Accordingly, we dismiss Sorenson's PRP.

         FACTS

         The State charged Sorenson with multiple counts of child molestation.[1] State v. Sorenson, No. 43199-8-II, slip op. at 2 (Wash Ct. App. Jan. 28, 2014 (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2043199-8-I%20%20Unpublished%200pinion.pdf. The jury convicted Sorenson of nine counts of child molestation. Sorenson appealed.

         On January 28, 2014, in an unpublished decision, we affirmed Sorenson's convictions but remanded to the superior court with instructions to correct the scrivener's errors in the judgment and sentence. Sorenson, No. 43199-8-II, slip op. at 10. Specifically, we held:

Sorenson's judgment and sentence incorrectly states the dates that Sorenson committed the offenses in counts 2, 3, and 9. Sorenson committed count 2 between March 9, 2002 and March 8, 2004; count 3 between March 9, 2003 and March 8, 2006; and count 9 between August 23, 2006 and August 22, 2009. We accept the State's concession and remand to the trial court for it to correct Sorenson's judgment and sentence on counts 2, 3, and 9 to accurately reflect when Sorenson committed those crimes.
We affirm, but remand to correct scrivener's errors in Sorenson's judgment and sentence.

Br. of Resp't at App. B; Sorenson, No. 43199-8-II, slip op. at 10.

         Sorenson appealed our decision to the Supreme Court. The Supreme Court denied review on July 9. State v. Sorenson, 180 Wn.2d 1022, 328 P.3d 902 (2014). On August 12, we issued our mandate to the trial court.

         On September 3, Sorenson filed a "Waiver of Presence at Hearing for Correction of Scrivener's Errors." Br. of Resp't at App. D (some capitalization omitted). In this filing, Sorenson stated that he was "waiv[ing] [his] right to be present at the hearing for correction of scrivener's errors in the judgment and sentence." Br. of Resp't at App. D. The record before us does not contain further indication that a hearing was held.

         On September 15, the trial court signed an order correcting Sorenson's judgment and sentence, as directed by our opinion. The trial court's order stated in part:

IT IS HEREBY ORDERED, ADJUGED AND DECREED that in the Judgment and Sentence filed on March 8, 2012, in State of Washington v. RONALD LEE SORENSON, Clark County Cause No. 10-1-01995-2 shall reflect on Page 1, Section 2.1, Count 02 crime dates between March 9, 2002 and March 8, 2004; Count 03 crime dates between March 9, 2003 and March 8, 2006, and Count 09 between August 23, 2006 and August 22, 2009.

Br. of Resp't at App. D. The trial court's order was filed the following day, on September 16.

         Sorenson filed this PRP on September 15, 2015.

         ANALYSIS

         A. Timeliness of Petition

         The threshold issue in Sorenson's collateral attack is whether his petition is timely. We hold that Sorenson's PRP is time-barred because it was filed more than one year after the mandate disposing of his direct appeal was issued, and the trial court did not exercise its discretion on remand in correcting the scrivener's errors, which would have restored the pendency of his appeal.

         1. Legal Principles

In relevant part, RCW 10.73.090 provides that:
(1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face ....
. . . .
(3) For the purposes of this section, a judgment becomes final on the last of ...

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