### 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UNPUBLISHED OPINION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 relieffrom personal restraint imposed following his conviction ofunlawful sale of a controlled substance (heroin) with a special verdict finding that 

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

### court exceeded itsjurisdiction by imposing a sentence of 120 months ofincarceration and 9 to 12 months ofcommunity 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 weNo. 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### The facts underlying Burns' s conviction have been set forth in our unpublished opinion from his direct appeal and need not be repeated here.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 ofa school bus stop, the trial court sentenced Burns to 120 months of incarceration) and 9 to 12 months ofcommunity custody. ANALYSIS RCW 10. 73. 090( 1) provides, No petition or motion for collateral attack on ajudgment 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 ofcompetent jurisdiction. A personal restraint petition is a collateral attack on ajudgment. RCW 10. 73. 090(2).. Burns 

### filed this petition on January 14, 2014, more than one year after hisjudgment and sentence

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

### downward sentence of96 months ofincarceration plus a mandatory 24 months of incarceration 

### for committing his crime within 1, 000 feet ofa school bus stop. A notation on Burns' sjudgment 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 forthe offense.
2No. 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 showthat (1) RCW 10.73. 090(1) does not apply because hisjudgment and sentence is facially 

### invalid or not rendered by a court ofcompetentjurisdiction,or that (2) each ofhis 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 itsjurisdiction by imposing a sentence in excess ofthe statutory maximum penalty for his offense. 

### Burns asserts that the statutory maximum penalty for his offense is 60 months. We disagree. Burns was convicted ofviolating 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 ofmarihuana. 

### 2)(a) Any person convicted ofa violation of subsection (1) ofthis section shall receive a sentence ofnot more than five years in a correctional facility ofthe 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.
3No. 45851 -9 -II
may be punished ... 

### by imprisonment ofup 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 intentto manufacture, sell, or deliver a controlled substance if the crime is committed in certain locations, including within 1, 000 feet ofa school bus stop." 

### Here,thejury found by special verdict that Burns committed his offense within 1, 000 feet ofa school bus route stop, thus triggering RCW 69.50.435(2)(a)' s doubling provision. Therefore,the 

### statutory maximum penalty for Burns' s violation ofRCW 69.50.410 is 120 months not 60 months as Burns asserts. Accordingly,the sentencing court did not exceed itsjurisdiction 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 ofincarceration 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 ofcommunity custody exceeds the statutory maximum forthe 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 ofconfinement 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 ofconfinement plus the term of 

### community custody actually served exceed the statutory maximum for each offense" was not
4No. 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 forthe trial court to correct Burns' s sentence by reducing his community custody term to 0. 

### A majority ofthe panel having determined thatthis 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