IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Personal Restraint of:

CHRISTOPHER ZOEY SCHWARZBACH,

Petitioner.

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No. 38128-5-III

UNPUBLISHED OPINION

PENNELL, C.J. — Christopher Schwarzbach has 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 sentence 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 substances. In 

February 2021, the Washington Supreme Court decided State v. Blake, 197 Wn.2d 170,

173, 481 P.3d 521 (2021), holding 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. Schwarzbach subsequently filed a 

 1 WASH. CONST. art. I, § 3; U.S. CONST. amend. XIV.

FILED

JANUARY 13, 2022

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 38128-5-III

In re Pers. Restraint of Schwarzbach

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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 timebarred under RCW 10.73.090, and transferred the motion 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 concedes Mr. Schwarzbach is entitled to resentencing for the 

recalculation of his offender score without the Oregon convictions for possession of a 

controlled substance.

For purposes of offender score calculations, the Sentencing Reform Act of 1981, 

chapter 9.94A RCW, provides that “[o]ut-of-state convictions for offenses shall be 

classified according to the comparable offense 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 not be considered” 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-of-state convictions for possession of a controlled substance

because those crimes were not comparable to any valid Washington crime at the time 
No. 38128-5-III

In re Pers. Restraint of Schwarzbach

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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 petition, and the State’s 

concession, we grant the personal restraint petition and remand to the superior court 

for resentencing in accordance with Blake. 

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

the Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

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Pennell, C.J.

WE CONCUR:

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Siddoway, J.

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Staab, J.