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### COURT OF APPEALS DIV T



### STATE OF WASHINGTON 

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. GARRIDAN ARTHUR NELSON, Appellant. DIVISION ONE No. 69309-3-1 UNPUBLISHED OPINION
FILED: January 21, 2014 

### Dwyer, J. — Garridan Nelson appeals from the superior court's order 

## granting reliefon his postconviction motion, broughtpursuantto CrR7.8,1 to amend his judgment and sentence. Nelson alleges no errorwith respect to the court's decision on his motion. The scope of our review is limited to the issues 

### raised in the CrR 7.8 motion. Nelson's arguments on appeal relate to the validity 

### of his unappealed underlyingjudgment and sentence. The time to appeal the 

### judgment and sentence has long since passed. Weaffirm the court's order which granted Nelson the relief he sought.
I 

### Garridan Nelson pleaded guilty to three counts offirst degree murderin 1995. In exchange for Nelson's plea, the State reduced the charges on two 1CrR 7.8(b) permits vacation ormodification ofafinaljudgmentand sentencefor specific enumerated reasons, including (1) mistakes orirregularities in obtaining thejudgment; (2) newly discovered evidence; (3) fraud ormisrepresentation; (4) a voidjudgment; or(5) "[a]ny other reasonjustifying relieffrom the operation of thejudgment."No. 69309-3-1/2

counts from aggravated murder to first degree murder. The standard sentencing range was between 240 and 320 months on each count. The sentencing court imposed a 320-month sentence on each count, to
run consecutively, for a total sentence of 960 months. Thejudgment and sentence included a provision stating that Nelson was ineligible for earned early release on the mandatory minimum portions of his sentence (240 months on each count) pursuant to former RCW 9.94A. 120(4) (1994). 

### In July 2012, Nelson filed a CrR 7.8 motion to correct his judgment and 

### sentence, seeking to "strike the unconstitutional provision of RCW 9.94A.120(4) from hisjudgment and sentence." He also asked to be resentenced in order to 

### "reflect the ability to receive good time on his mandatory minimum term." Nelson's motion was based on our decision in State v. Cloud. 95 Wn. App. 

### 606, 618, 976 P.2d 649 (1999), which invalidated the provision of former RCW 

### 9.94A. 120(4) that made certain first-time offenders, like Nelson, ineligible for 

### early release. In response, the State conceded that Nelson was entitled to relief under Cloud. The State further conceded that the reference to former RCW 

### 9.94A.120(4) should be deleted from Nelson's judgment and sentence. 

### The superior court held a hearing on Nelson's motion, allowing Nelson to 

### participate by telephone. The State proposed an order amending Nelson's 

### judgmentand sentence. Consistentwith the ruling in Cloud, the proposed order deleted the language stating that Nelson was not entitled to earned early releaseNo. 69309-3-1/3

and added that "[t]he defendant is entitled to earned early release on each
count."The superior court informed Nelson that itintended to sign the State's 

### proposed order and asked ifNelson had any questions. The following exchange occurred: The Defendant: Am I not being remanded for resentencing? The Court: No. That's not required. The order—hang on a 

### second. The order caption is Order Amending Judgment and Sentence. That's all we have to do. We don't have to resentence you. Any other questions? The Defendant: Well, there were issues that Iwould like to have been able to bring up at a sentencing hearing. The Court: Well, Iam sure that's true from your point of view. But 

### the only issue that Isee is that this reliefthat you have requested in terms of early release needs to be granted. The process that you outlined is not necessary. All we have to do is amend the 

### Judgment and Sentence. And that's what Iintend to do this morning. Iwill send you a copy of the order. Ifyou have any other issues or any further need for a motion, you can always make those motions. 

### The superior court entered the State's proposed order.
II 

### On appeal, Nelson asserts no claim of errorwith respect to the order 

### entered by the superiorcourt. Indeed, this order grantedhim all ofthe reliefhe soughtin hisCrR 7.8 motion. While, during the hearing, Nelson mentioned some "issues" he might want to raise at a resentencing hearing, he did not specify those issues nor did he ask for any additional relief. 

### Our task is limited to reviewingthose issues brought before the court in Nelson's CrR 7.8 motion and the court's order resolving that motion. Additional 3No. 69309-3-1/4

claims Nelson might want to litigate relating to the circumstances of his guilty 

### plea andjudgment ofconviction are notproperly before us.2 See State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002) ("an unappealed final judgment cannot be restored to an appellate track by means of moving to vacate and appealing the denial"). We reject Nelson's present attempt to ignore the postconviction motion 

### proceedings below and attackthejudgment and sentence onappeal.3 We affirm the superior court's order.
Affirmed.

We concur:



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2Acknowledging that theonly reliefsoughtbelow was amendmentof hisjudgmentand sentence, Nelson suggests that preservation of error rules do not bar his constitutional argument and that he may raise itfor the first time on appeal. However, as explained, this is not a direct appeal of the judgment and sentence. Nelson may not raise issues, constitutional orotherwise, that do not relate to the superior court's order on his CrR 7.8 motionbecause only that order is before us. 3We do not address appellant's pro se statement ofadditional grounds separately because his argumentsare adequately addressed in hisappellate counsel's brief. See RAP 10.10(a). 4