Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal        )
Restraint of:                        )      No. 66340-2-I
                                     )
                                     )
ANTHONY C. LEE,                      )      DIVISION ONE
                                     )      UNPUBLISHED OPINION
                      Petitioner.    )
                                     )      FILED:  February 13, 2012

       PER CURIAM.  Anthony Lee filed a motion to modify or correct his judgment and 

sentence in King County Superior Court No. 09-1-04512-3 SEA and 08-1-03354-2 SEA 

and the superior court transferred the matter to this court for consideration as a personal 

restraint petition.  CrR 7.8(c)(2); Toliver v. Olsen, 109 Wn.2d 607, 612-13, 746 P.2d 

809 (1987). In order to obtain collateral relief by means of a personal restraint 

petition, Lee must demonstrate either an error of constitutional magnitude that gives 

rise to actual prejudice or a nonconstitutional error that inherently results in a 

"complete miscarriage of justice."  In re Pers. Restraint of Cook, 114 Wn.2d 802, 

813, 792 P.2d 506 (1990). As a general rule, personal restraint petitions must be 

filed within one year after the judgment and sentence becomes final.  RCW 

10.73.090.  Lee's judgment and sentence in No. 09-1-04512-3 SEA became final 

when filed in August 2010.  RCW 10.73.090(3)(a).  Lee's judgment and sentence in 

No. 08-1-03354-2 SEA became final when filed in July 2008.  RCW 10.73.090(3)(a).  

Lee filed his present motion for relief in the trial court in December 2010.  Thus, this 

petition is timely as to No. 09-1-04512-3 SEA, but any collateral attack on Lee's  

No. 66340-2-I/2

sentence in No. 08-1-03354-2 SEA is time-barred under RCW 10.73.090(1) unless 

he can show that his judgment and sentence is invalid on its face or an exception 

under RCW 10.73.100 applies.

       In No. 09-1-04512-3 SEA, Lee pleaded guilty to possession of cocaine and 

second degree theft and the sentencing court imposed a prison-based Drug Offender 

Sentencing Alternative (DOSA) of 9.75 months confinement for the possession and of 

19.5 months confinement for the theft.  In No. 08-1-03354-2 SEA, Lee pleaded guilty to 

conspiracy to deliver cocaine and the trial court imposed a standard range sentence of 9 

months.

       Although it is by no means clear, Lee appears to challenge the sentencing court's 

calculation of the midpoint of the standard range for the purposes of the DOSA.  The 

State concedes that the proper calculation of one-half the midpoint of the standard range 

of 12+ to 24 months for the possession would be 9 months and 9.75 months for the theft 

standard range of 17 to 22 months.  Under RCW 9.94A.662(1)(a), the court should have 

imposed 12 months on each count because a prison-based DOSA requires a period of 

total confinement that is the greater of "one-half the midpoint of the standard sentence 

range or twelve months." We accept the State's concession, grant the petition in part, 

and remand for resentencing in No. 09-1-04512-3 SEA with a proper DOSA term of 

confinement.

       Lee also appears to claim that the sentencing court miscalculated his offender 

score in No. 09-1-04512-3 SEA because the current offenses of possession of cocaine 

                                              2 

No. 66340-2-I/3

and theft should have been considered the same criminal conduct.  But Lee fails to 

argue or demonstrate that the two offenses require the same criminal intent, were 

committed at the same time and place, and involved the same victim.  RCW 

9.94A.589(1)(a).  His claim therefore fails.  Similarly, Lee fails to provide any support 

for his claim that the sentencing court erred by adding one point to his offender 

score for committing the current offenses while serving community custody on 

another charge.  In the defense sentencing memorandum, Lee admitted to being on 

community custody when he committed the current offenses.  See In re Pers. 

Restraint of Webster, 74 Wn. App. 832, 833, 875 P.2d 1244 (1994) ("Bare 

assertions and conclusory allegations are not sufficient to command judicial 

consideration and discussion in a personal restraint proceeding").

       Finally, Lee appears to contend that some counts should have been severed 

from others in No. 08-1-03354-2 SEA.  The judgment and sentence under that case 

number lists only one count and became final in July 2008.  Lee fails to identify any 

exception to the time bar or claim or establish any facial invalidity in the judgment and 

sentence.  Lee's challenge to his conviction in No. 08-1-03354-2 SEA is untimely and 

lacks merit.

       Granted in part and remanded for resentencing in No. 09-1-04512-3 SEA.

                                 For the court:

                                              3 

No. 66340-2-I/4

                                              4