IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Personal Restraint of:
CHRISTOPHER ZOEY SCHWARZBACH , Petitioner. ) ) ) ) ) No. 38128

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UNPUBLISHED OPINION

P ENNELL , C. J.

— Christopher Schwarzbach h as filed a petition for relief from personal restraint imposed following his 2019 conviction in Klickitat County for second degree burglary

. In November 2019 , Mr. Schwarzbach pleaded guilty to second degree burglary, and the trial court imposed a standard range se ntence of 51 months of
confinement based on an offender score of nine. Mr. Schwarzbach’s offender score included three Oregon felony convictions for possession of controlled substance s
. In February 2021 , the Washington Supreme Court decided State v . Blake , 197 Wn.2d 170, 173, 481 P.3d 521 (2021) , hol d ing that Washington’s possession of a controlled substance
statute, former RCW 69.50.4013 (2017) , violated the due process clauses of the state and federal constitutions, 1 and was therefore void

. Mr. Sc hwarzbach subsequently filed a

1 W ASH

. C ONST . art. I, § 3; U.S. C ONST . amend. XIV. 

### FILED JANUARY 13, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 3 8128

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2 CrR 7.8 motion for relief from judgment with the superior court that sought resentencing
pursuant to Blake . The superior court determined Mr. Schwarzbach’s motion was time

barred under RCW 10.73.090, and transferred the motio n to this court pursuant to
CrR 7.8(c)(2) as a personal restraint petition. In its response to the personal restraint petition, the State concede s Mr. Schwarzbach is entitled to resentencing for the recalculation of his offender score without the Oregon co nvictions for possession of a
controlled substance. For purposes of offender score calculations, the S entencing Reform Act of 1981 , chapter 9.94A RCW, provides that “[o]ut

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- state convictions for offenses shall be classified according to the comparable of fense definitions and sentences provided by Washington law.” RCW 9.94A.525(3). However, “ a prior conviction [that] has been previously determined to have been unconstitutionally obtained or which is constitutionally invalid on its face may no t be considere d” in a defendant’ s offender

score
. State v. Ammons , 105 Wn.2d 175, 187

- 88, 713 P.2d 719 , 713 P.2d 796 (1986). Thus, Blake requires remand for resentencing to recalculate an offender score that
does not include the out

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- state convictions for possession o f a controlled substance
because those crimes were not comparable to any valid Washington crime at the timeNo. 3 8128

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- III In re Pers. Restraint of Schwarzbach

3 Mr. Schwarzbach was sentenced

. State v. Markovich , 19 Wn. App. 2d. 157 , 173

- 74, 492 P.3d 206 (2021) , review denied , No. 100204

- 1 (Wash. Jan. 5, 2022 )

. Based on our own review of Mr. Schwarzbach’s petit ion, and the State’s
concession , we grant the personal restrain t petition and remand to the superior c ourt
for resentencing in accordance with Blake

. A majority of the panel has determined this opi nion will not be printed in
the Washington Appellate Reports, but it will be filed fo r public record pursuant to
RCW 2.06.040.

_________________________________ Pennell , C. J.
WE CONCUR:

___________________________ Siddoway, J.

______________________________ Staab , J.