IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the

Personal Restraint of

No. 48868-0-II

THOMAS J.D. CHANNON,

Petitioner.

UNPUBLISHED OPINION

BJORGEN, C.J. — Thomas J.D. Channon seeks relief from personal restraint imposed 

following his 1999 convictions of three counts of first degree assault and one count of first 

degree unlawful possession of a firearm. Channon argues that the sentencing court improperly 

calculated his offender score by including in its calculation four juvenile convictions that he had 

committed before the age of 15. Channon also argues that his judgment and sentence includes 

other technical errors not affecting his incarceration term that should be corrected on remand. 

We agree that under the law in effect at the time Channon committed his current offenses, the 

sentencing court erred by including certain juvenile offenses in its offender score calculation, 

which error rendered his judgment and sentence facially invalid. Accordingly, we grant 

Channon’s petition and remand for resentencing consistent with this opinion. 

Filed

Washington State

Court of Appeals

Division Two

November 22, 2016
No. 48868-0-II

2

FACTS

Following a jury trial, Channon was convicted of three counts of first degree assault and 

one count of first degree unlawful possession of a firearm. Channon committed the offenses on 

August 24, 1998. Channon’s judgment and sentence states his date of birth as June 5, 1969 and 

lists among his criminal history four prior offenses that he committed before the age of 15.1 

Following an appeal, we affirmed Channon’s convictions. State v. Channon, 105 Wn. App. 869, 

20 P.3d 476 (2001). We issued our mandate disposing of Channon’s direct appeal on October 9, 

2001. Channon filed this petition on April 25, 2016.

ANALYSIS

To obtain relief by means of a personal restraint petition, Channon must demonstrate 

either an error of constitutional magnitude that resulted in actual and substantial prejudice or 

nonconstitutional error that resulted in a complete miscarriage of justice. In re Pers. Restraint of 

Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). “[A] sentence that is based upon an incorrect 

offender score is a fundamental defect that inherently results in a miscarriage of justice.” In re 

Pers. Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618 (2002).

Generally, personal restraint petitions must be filed within one year after the judgment 

and sentence becomes final. RCW 10.73.090. Channon’s judgment and sentence became final 

on October 9, 2001, the date on which we issued a mandate disposing of his direct appeal. RCW 

10.73.090(3)(b). Channon filed this petition on April 25, 2016, more than one year after his 

 

1 These prior offenses include making a bomb threat (committed on April 23, 1982), two 

separate convictions of second degree burglary (committed on November 14, 1983 and 

December 30, 1983), and first degree malicious mischief (committed on May 1, 1984).
No. 48868-0-II

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judgment and sentence became final. Therefore, we must dismiss Channon’s petition as time 

barred unless he can show that his judgment and sentence is facially invalid or that an exception 

to the time bar under RCW 10.73.100 applies. RCW 10.73.090(1). A miscalculated offender 

score may render a judgment and sentence facially invalid. See, e.g., In re Pers. Restraint of 

LaChapelle, 153 Wn.2d 1, 6, 100 P.3d 805 (2004). Channon asserts that his petition is not 

subject to RCW 10.73.090’s time bar because his judgment and sentence is facially invalid due 

to the sentencing court’s miscalculation of his offender score. We agree.

The statutory provision in effect at the time Channon committed his current offenses, 

former RCW 9.94A.030(12) (1998), provided that criminal history included both prior 

convictions and juvenile adjudications. Before the 1997 amendment to this provision, a 

defendant’s criminal history was defined as including

juvenile convictions for sex offenses and serious violent offenses and shall also 

include a defendant’s other prior convictions in juvenile court if: (i) The conviction 

was for an offense which is a felony or a serious traffic offense and is criminal 

history as defined in RCW 13.40.020(9); (ii) the defendant was fifteen years of age 

or older at the time the offense was committed; and (iii) with respect to prior 

juvenile class B and C felonies or serious traffic offenses, the defendant was less 

than twenty-three years of age at the time the offense for which he or she is being 

sentenced was committed.

Former RCW 9.94A.030(12)(b) (1996). Under this pre-1997 provision, “juvenile felonies 

washed out after an offender reached age 23, and juvenile felonies committed when a defendant 

was less than age 15 were not included in calculating a subsequent offender score.” State v. 

Smith, 144 Wn.2d 665, 670-71, 30 P.3d 1245, 39 P.3d 294 (2001). 

In Smith, our Supreme Court held that the 1997 amendment changing the definition of 

criminal history to include all prior juvenile adjudications did not apply retroactively so as to 

allow sentencing courts to revive defendants’ previously washed out juvenile offenses. 144 
No. 48868-0-II

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Wn.2d at 673-75. As applicable here, we summarized the rule flowing from Smith and related 

cases as follows:

If the current adult offense occurred on or after July 1, 1997 but before June 13, 

2002, and the prior juvenile offense is not a sex offense, serious violent offense, or 

Class A felony committed while 15 or older:

a. The prior juvenile adjudication does not count if the defendant 

committed the underlying juvenile offense before age 15, provided 

that he or she attained age 15 before July 1, 1997.

In re Pers. Restraint of Jones, 121 Wn. App. 859, 871, 88 P.3d 424 (2004) (footnotes omitted).

Channon committed his current crimes on August 24, 1998, he attained the age of 15 

before July 1, 1997, and four of the juvenile adjudications included in his criminal history were 

committed before he was 15 years of age. Those prior juvenile adjudications were neither sex 

offenses nor serious violent offenses. Accordingly, under Smith, the sentencing court improperly 

included those juvenile adjudications when calculating Channon’s offender score. 144 Wn.2d at 

672-75. The improper inclusion of those previously washed out juvenile adjudications show a 

facial invalidity in Channon’s judgment and sentence. LaChapelle, 153 Wn.2d at 6. 

The State argues that Smith does not apply to Channon’s petition because the legislature 

effectively overturned the holding in Smith when it again amended the Sentencing Reform Act of 

1981, ch. 9.94A RCW, in 2002. LAWS OF 2002, ch. 107, § 2. But our Supreme Court rejected 

that same argument in LaChapelle, and we need not revisit it here. 153 Wn.2d at 11-13. 

Because the error in including previously washed out juvenile offenses in Channon’s offender 

score shows a facial invalidity in his judgment and sentence, his petition is not time barred. With 
No. 48868-0-II

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that, because the error in calculating Channon’s offender score demonstrates a fundamental 

defect resulting in a miscarriage of justice, we grant his petition and remand for resentencing.2

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

BJORGEN, C.J.

We concur:

MAXA, J.

MELNICK, J.

 

2 Because we remand for resentencing, we need not address Channon’s contentions with other 

alleged technical errors in his judgment and sentence that did not affect the length or conditions 

of his sentence.