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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON 0

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In the Matter of the Personal Restraint of r— n-ri

No. 75934-5-1 NI --1 --,

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ILLIP LAMONT ALEXANDER, y• -.) rl

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DIVISION ONE 7.- _..., ...3

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UNPUBLISHED OPINION —I --J

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FILED: July 23, 2018

LEACH, J. — Phillip Alexander collaterally challenges his sentences for

assault in the second degree and burglary in the first degree. Alexander's

challenge to his term of confinement on those counts is moot because we can

provide no relief: he has served the term of confinement. But the combined term

of confinement and community placement on the assault 2 count exceeds the

statutory maximum. So we remand for the trial court to amend the sentence.

Background

In 1998, a jury convicted Alexander of assault in the first degree, assault in

the second degree, and burglary in the first degree. The sentencing court

calculated Alexander's offender score as 9 for the assault 1 and burglary 1

counts and 8 for the assault 2 count. The court imposed a 60-month firearm

enhancement on each count. With the firearm enhancements, the court
No. 75934-5-1/ 2

calculated total standard range sentences of 113-130 months for the assault 2

count, 147-176 months for the burglary count, and 300-378 months for the first

degree assault count. The court sentenced Alexander to the low end of the

range for each count It also imposed a term of community placement. The

sentences ran concurrently.

Analysis

Alexander makes several collateral challenges to his sentence. To obtain

collateral relief by a personal restraint petition (PRP), a petitioner must establish

that a constitutional error has occurred and it has resulted in actual and

substantial prejudice or that a nonconstitutional error has caused a complete

miscarriage of justice.'

First, he claims the court miscalculated the offender score and standard

range for the burglary count. Second, he claims that a 60-month firearm

enhancement on the assault 2 count exceeded the court's authority. Third, he

claims the combined term of incarceration and community placement for assault

2 exceeded the statutory maximum sentence. We agree. But his claims about

the offender score and the firearm enhancement are moot because he has

already served the period of confinement on those counts. Thus, we cannot

provide any effective relief by remanding to correct those errors. Because

Alexander has not served his community placement time, however, his challenge

1 In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285

(2010) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d

390 (2004)).

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No. 75934-5-1/3

to the combined sentence on the assault 2 count is not moot. We remand so the

trial court can amend his sentence accordingly.

First, Alexander contends that the judgment and sentence reflects an

incorrect offender score and standard range for the burglary count. In his

petition, Alexander initially claimed that the court incorrectly calculated his

offender score for all three counts. But in his supplemental brief, he

acknowledges that the court only erred on the offender score for the burglary 1

count. We agree and explain.

Alexander initially asserted that the trial court incorrectly included a prior

conviction for unlawful imprisonment in his offender score. He relied on a

previous opinion by this court in a direct appeal under a different cause number.

There, we remanded for resentencing after the trial court improperly included an

unlawful imprisonment conviction in Alexander's offender score.2 We decided

that the unlawful imprisonment conviction involved the same criminal conduct as

a robbery conviction. Thus, the trial court improperly included both convictions

when calculating Alexander's offender score.3 In his petition, Alexander claims

that the trial court made the same error when calculating the offender scores on

all three convictions in this case. But examining the offender scores reveals that

the trial court did not use the unlawful imprisonment conviction.

2See State v. Anderson, noted at 98 Wn. App. 1014, slip op. at 5-8 (1999)

(Tonelli Anderson and Alexander were codefendants, but only Alexander

appealed.).

3Anderson,slip op. at 7-8.

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No. 75934-5-1/4

The trial court properly counted the assault in the first degree offender

score as nine: three points for his prior assault in the first degree conviction,4 two

points for his prior robbery in the first degree conviction,5 and two points each for

his current offenses of assault in the second degree and burglary in the first

degree.6 The court also correctly calculated the assault in the second degree

score as eight: two points for his prior assault in the first degree and robbery in

the first degree convictions' . and two points for his current offenses of assault in

the first degree and burglary in the first degree!' His offender score for burglary

in the first degree should likewise have been eight: two points for his prior

4 Former RCW 9.94A.360(10) (1995) ("If the present conviction is for

Murder 1 or 2, Assault 1, Assault of a Child 1, Kidnapping 1, Homicide by Abuse,

or Rape 1, count three points for prior adult and juvenile convictions for crimes in

these categories.").

5 Former RCW 9.94A.360(9) ("If the present conviction is for a violent

offense..., count two points for each prior adult and juvenile violent felony

conviction."); former RCW 9.94A.030(38)(a) (1996) (defining "violent offense" as

"(alny felony defined under any law as a class A felony"); former

RCW 9A.36.011(2) (1986) ("Assault in the first degree is a class A felony.");

former RCW 9A.56.200(2) (1975) ("Robbery in the first degree is a Class A

felony.").

6 Former RCW 9.94A.400(1)(a) (1996) ("whenever a person is to be

sentenced for two or more current offenses, the sentence range for each current

offense shall be determined by using all other current and prior convictions as if

they were prior convictions for the purpose of the offender score"); former

RCW 9.94A.360(9); former RCW 9.94A.030(38)(a) (class A felonies are violent

offenses and assault in the second degree is a violent offense); former RCW

9A.52.020(2) (1996) ("Burglary in the first degree is a class A felony.").

7 Former RCW 9.94A.360(9); former RCW 9.94A.030(38)(a);

RCW 9A.56.200(2).

Former RCW 9.94A.400(1)(a); former RCW 9.94A.360(9); former

RCW 9.94A.030(38)(a); former RCW 9A.36.011(2) (1986) ("Assault in the first

degree is a class A felony.").

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No. 75934-5-1/ 5

assault in the first degree and robbery in the first degree convictionsg and two

points for his current offenses of assault in the first degree and assault in the

second degree." But the trial court incorrectly calculated the burglary offender

score as nine. The court miscalculated only the offender score for the burglary

count.

The State concedes that the trial court miscalculated the burglary offender

score. But it contends that this court should not consider the issue, claiming that

Alexander did not timely file his attack on a facially valid judgment and sentence.

RCW 10.73.090 prohibits a collateral attack on a judgment and sentence in a

criminal case more than one year after the judgment becomes final "if the

judgment and sentence is valid on its face and was rendered by a court of

competent jurisdiction." We do not reach the facial invalidity question because

the issue is moot.

"A case is moot if a court can no longer provide effective relief?" A PRP

is moot when the offender has fully served his sentence." Alexander does not

show how we can provide effective relief by remanding for resentencing. He

acknowledges that the confinement portion of his burglary sentence has expired.

9 Former RCW 9.94A.360(9); former RCW 9.94A.030(38); former

RCW 9A.36.011; former RCW 9A.56.200(2).

1° Former RCW 9.94A.400(1)(a); former RCW 9.94A.360(9); former

RCW 9.94A.030(38)(a); former RCW 9A.36.011.

11 Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984).

12 In re Pers. Restraint of Bovan, 157 Wn. App. 588, 592, 238 P.3d 528

(2010); In re Pers. Restraint of Erickson, 146 Wn. App. 576, 582, 191 P.3d 917

(2008).

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No. 75934-5-1/6

He claims, however, that the issue is not moot because if he were resentenced,

the sentencing court would have discretion to address his request for an

exceptional sentence downward on the assault 1 count because of his youth at

the time he committed the offenses. He relies on our Supreme Court's more

recent decision that a defendant's youth can be a mitigating factor justifying an

exceptional sentence below the standard range and that change in law is a

significant change in law that applies retroactively.13 But Alexander's argument is

based on pure speculation. The record contains no indication that the court

would impose an exceptional downward sentence.

Alexander also argues that a judgment and sentence indicating an

offender score of 9 rather than 8 could adversely influence a court's discretionary

decision in a future sentencing. But our decision not to remand for resentencing

today does not preclude Alexander from demonstrating in a future sentencing

proceeding that the judgment and sentence in this case reflects an improper

offender score. The issue is moot.

Second, Alexander contends and the State concedes that the firearm

enhancement for assault 2 should be 36 months, not 60 months. Assault 2 is a

13 State v. O'Dell, 183 Wn.2d 680, 698-99, 358 P.3d 359 (2015) ("We hold

that a defendant's youthfulness can support an exceptional sentence below the

standard range applicable to an adult felony defendant, and that the sentencing

court must exercise its discretion to decide when that is."); In re Pers. Restraint of

Light-Roth, 200 Wn. App. 149, 160, 401 P.3d 459 (concluding that O'Dell

announced "a significant change in the law"), review granted, 189 Wn.2d 1030

(2017).

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No. 75934-5-1 / 7

class B felony." The firearm enhancement for a class B felony is 36 months.15

But the court imposed a 60-month enhancement on that count. When the trial

court imposes a sentence in excess of statutory authority, the defendant is

entitled to be resentenced." But, like on the burglary 1 count, Alexander has

already served the period of confinement on this count. Alexander does not

show that the court can offer any relief on remand, so this issue is also moot.

Finally, Alexander contends and the State concedes that the court

exceeded its statutory authority when it imposed a combined term of

incarceration and community placement of 125 months on the assault 2 count.

The combined term of confinement and community placement cannot exceed the

statutory maximum." The statutory maximum for assault 2 is 120 months." The

court imposed 113 months' confinement plus a 12-month term of community

placement, thus exceeding its statutory authority. We remand for the court to

amend the sentence to comport with the maximum sentence allowed by law.

14 Former RCW 9A.36.021(2) (1988). The offenses occurred on April 7,

1997. Thus, for sentencing purposes we look to the statutes in effect on that

date. State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004).

15 Former RCW 9A.94A.310(3)(b).

16 In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 868-69, 50 P.3d 618

(2002).

11 Former RCW 9.94A.120(13) (1996).

18 Former RCW 9A.20.021(1)(b) (1982); former RCW 9A.36.021(2).

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No. 75934-5-1/ 8

Conclusion

We remand to the trial court solely for correction of Alexander's sentence

on the assault 2 count.

WE CONCUR:

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