FILED • 

COURT OF APPEALS

DIVISION II

2015 JAN 27 Al 8: 50

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re Personal Restraint Petition of

JASON ROSS BURNS, 

DIVISION II

Petitioner. 

No. 45851 -9 -II

UNPUBLISHED OPINION

SUTTON, J. — Jason R. Burns seeks relief from personal restraint imposed following his

conviction of unlawful sale of a controlled substance (heroin) with a special verdict finding that

he committed his crime within 1, 000 feet of a school bus stop. Burns asserts that the sentencing

court exceeded its jurisdiction by imposing a sentence of 120 months of incarceration and 9 to 12

months of community custody. Specifically, Burns contends that the statutory maximum penalty

for his offense is 60 months, and he requests this court to remand for resentencing to reduce his

incarceration term to 60 months and his community custody term to 0. 

We disagree with Burns' s contention that the statutory maximum for his offense is 60

months because under RCW 69. 50.435' s doubling provision, which provision the sentencing

court properly applied here, the statutory maximum for Burns' s offense is 120 months. But we
No. 45851 -9 -II

agree with Burns that his community custody term, when combined with his incarceration term, 

exceeds the statutory maximum penalty for his offense. We, thus, deny Burns' s petition in part, 

grant his petition in part, and remand to correct Burns' s sentence by reducing his community

custody term to 0. 

FACTS

The facts underlying Burns' s conviction have been set forth in our unpublished opinion

from his direct appeal and need not be repeated here. State v. Burns, noted at 166 Wn. App. 

1018, review denied, 174 Wn.2d 1013 ( 2012). Following Burns' s conviction for unlawful sale of

a controlled substance (heroin) with a special verdict finding that Burns committed his offense

within 1, 000 feet of a school bus stop, the trial court sentenced Burns to 120 months of

incarceration) and 9 to 12 months of community custody. 

ANALYSIS

RCW 10. 73. 090( 1) provides, 

No petition or motion for collateral attack on a judgment and sentence in a criminal

case may be filed 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. 

A personal restraint petition is a collateral attack on a judgment. RCW 10. 73. 090(2).. Burns

filed this petition on January 14, 2014, more than one year after his judgment and sentence

1 Burns' s judgment and sentence shows that the trial court sentenced Burns to an exceptional

downward sentence of 96 months of incarceration plus a mandatory 24 months of incarceration

for committing his crime within 1, 000 feet of a school bus stop. A notation on Burns' s judgment

and sentence indicates that the trial court' s sole basis for reducing Burns' s base sentence was to

accommodate the imposition ofhis mandatory 24 -month school zone enhancement without

exceeding the 10 -year statutory maximum penalty for the offense. 

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No. 45851 -9 -II

became final on August 16, 2012, the date we issued our mandate disposing of his direct appeal. 

RCW 10. 73. 090( 3)( b). Therefore, Burns' s petition must be dismissed as untimely unless he can

show that ( 1) RCW 10.73. 090( 1) does not apply because his judgment and sentence is facially

invalid or not rendered by a court of competent jurisdiction, or that (2) each of his claims falls

under one or more exception to the time bar enumerated in RCW 10. 73. 100. In re Pers. 

Restraint ofHankerson, 149 Wn.2d 695, 702 -03, 72 P. 3d 703 ( 2003). Burns contends that RCW

10. 73. 100( 5)' s exception to the time bar applies to his petition because the sentencing court

exceeded its jurisdiction by imposing a sentence in excess of the statutory maximum penalty for

his offense. 

Burns asserts that the statutory maximum penalty for his offense is 60 months. We

disagree. Burns was convicted of violating RCW 69. 50.410, which statute provides in relevant

part, 

1) Except as authorized by this chapter it is a class C felony for any person to sell

for profit any controlled substance ... classified in Schedule I, RCW 69.50.204,{21

except leaves and flowering tops of marihuana. 

2)( a) Any person convicted of a violation of subsection ( 1) of this section

shall receive a sentence of not more than five years in a correctional facility of the

department of social and health services for the first offense. 

Although RCW 69. 50.410(2)( a) states that the maximum penalty for a first offense is five

years, RCW 69. 50.435 provides in relevant part, 

1) Any person who violates RCW 69.50.401 by ... selling ... a controlled

substance listed under RCW 69.50.401... . 

c) Within one thousand feet of a school bus route stop designated by the

school district; 

2 RCW 69.50.204( b)( 11) classifies heroin as a schedule I controlled substance. 

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No. 45851 -9 -II

may be punished ... by imprisonment of up to twice the imprisonment otherwise

authorized by this chapter. 

In State v. Blade, 126 Wn. App. 174, 180, 107 P. 3d 775 ( 2005), we held, " The doubling

provision in RCW 69. 50.435 defines a new maximum penalty for the manufacture, sale, 

delivery, or possession with the intent to manufacture, sell, or deliver a controlled substance if

the crime is committed in certain locations, including within 1, 000 feet of a school bus stop." 

Here, the jury found by special verdict that Burns committed his offense within 1, 000 feet of a

school bus route stop, thus triggering RCW 69. 50.435( 2)( a)' s doubling provision. Therefore, the

statutory maximum penalty for Burns' s violation of RCW 69. 50.410 is 120 months not 60

months as Burns asserts. Accordingly, the sentencing court did not exceed its jurisdiction by

sentencing Burns to 120 months ofincarceration. 

Burns argues, and the State concedes, however, that the sentencing court exceeded its

jurisdiction by sentencing Burns to 120 months of incarceration plus 9 to 12 months of

community custody. We agree. 

RCW 9. 94A.701( 9) provides, 

The term of community custody specified by this section shall be reduced by the

court whenever an offender' s standard range term of confinement in combination

with the term of community custody exceeds the statutory maximum for the crime

as provided in RCW 9A.20.021. 

Under RCW 9. 94A.701( 9), the sentencing court here was required to reduce Burns' s community

custody term to 0 so that his term of confinement when combined with his community custody

term would not exceed the statutory maximum penalty for his offense; the sentencing court' s

notation that " under no circumstances shall the total term of confinement plus the term of

community custody actually served exceed the statutory maximum for each offense" was not

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No. 45851 -9 -II

sufficient to comply with RCW 9. 94.701( 9). Am. Pet., Ex. A. See State v. Boyd, 174 Wn.2d

470, 472, 275 P. 3d 321 ( 2012) ( "[ F] ollowing the enactment of [RCW 9. 94.701( 9)], the `Brooks[3' 

notation' procedure no longer complies with statutory requirements. "). 

Accordingly, we deny Burns' s petition in part, grant his petition in part, and remand with

directions for the trial court to correct Burns' s sentence by reducing his community custody term

to 0. 

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. 

1

SUTTON, J. 

We concur: 

JHANSON, C. 

MAXA, 

3 In re Pers. Restraint ofBrooks, 166 Wn.2d 664, 211 P. 3d 1023 ( 2009). 

5