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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  41719-7-II

                             Respondent,

       v.

RUSSELL LEWIS O'BRIEN,                                     UNPUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  Russell O'Brien appeals the trial court's order denying his motion to 

correct his judgment and sentence.  He argues that the trial court erroneously concluded that his 

judgment and sentence did not contain a mistake.  In the alternative, he asserts that his plea was 

involuntary and, thus, he should be allowed to withdraw it.  O'Brien also submits a statement of 

additional grounds (SAG).1  We affirm.

                                            FACTS

       In June 2006, O'Brien pleaded guilty to cause numbers 05-1-06126-1, 05-1-05591-1, and 

05-1-05727-2; the trial court subsequently sentenced him under the Drug Offender Sentencing 

Alternative (DOSA).  O'Brien's DOSA sentence was revoked, and in October 2007, the State 

charged O'Brien, under a new cause number, with two counts of second degree burglary and one 

count of attempted second degree burglary.  

       In December 2007, pursuant to plea negotiations, the State filed an amended information 

reducing the charge to one count of second degree burglary.  The plea agreement between the 

State and O'Brien reads:

              The prosecuting attorney will make the following recommendation to the 

1 RAP 10.10. 

41719-7-II

       judge:  60 months in custody credit for 60 days served $200 costs, $500 [crime 
       victim penalty assessment] CVPA, $100 DNA sample $400 [district attorney's] 
       DAs recoupment, restitution concurrent with 05-1-06126-1, 05-1-05591-1, and 05-
       1-05727-2.

Clerk's Papers (CP) at 9.

       O'Brien pleaded guilty to one count of second degree burglary.  At the plea hearing, the 

trial court asked O'Brien: "At sentencing the prosecutor is going to be recommending 60 months 

in custody, as well as the legal financial obligations concurrent with three other cause numbers, 

you understand that?" CP at 74.  O'Brien responded, "Yes, ma'am." CP at 74.

       At sentencing, the prosecutor asked the sentencing court 

       to impose 60 months in prison.  Credit for time served is 60 days.  Legal financial 
       obligations of $500 crime victim penalty assessment; $200 costs; $100 DNA 
       testing fee.  Restitution to all victims, and I believe that there was a [DOSA] that 
       was revoked, Your Honor, so the restitution would be concurrent with the 
       restitution that was ordered in the [DOSA] revocation.

CP at 75.  

       O'Brien did not object to the prosecutor's recommendation but asked the sentencing court 

for drug addiction treatment and to "keep any discretionary fines and costs as low as possible."  

CP at 76.

       On December 17, 2007, the trial court sentenced O'Brien to 60 months' confinement.  

The judgment and sentence reads: "The sentence herein shall run consecutively to all felony 

sentences in other cause numbers prior to the commission of the crime(s) being sentenced." CP at 

21.  "Concurrent with: 05-1-06126-1, 05-1-05591-1, 05-1-05727-2" is handwritten next to the 

portion of the sentence addressing "RESTITUTION." CP at 19.

       In February 2008, O'Brien wrote a letter to the superior court "to inform [the trial court] 

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that [t]he  Department of Corrections . . . [was] not following the current time that I was 

sentenced to by your Honor." CP at 30.  The trial court sent O'Brien a letter informing him that 

"the Court does not act on ex-parte letters" and, thus, his letter had been forwarded to the 

attorneys of record.  CP at 29.

       In November 2009, O'Brien filed a pro se CrR 7.8 motion for relief from judgment or 

order.  CP at 35-36.  On February 8, 2010, O'Brien moved, pro se, for a hearing without oral 

argument on his motion for relief from his judgment.  In March, he wrote a letter to the superior 

court, inquiring about the status of his motion.  

       On November 3, O'Brien, through counsel, filed a "motion to correct" the December 

2007 judgment and sentence.  CP at 49.  O'Brien argued that, based on the record,

       it is clear the State and Defense negotiated a sentencing recommendation of 60 
       months to run concurrently with those of the revoked DOSA.  The State and 
       Defense both anticipated the sentences running concurrently.  There is no evidence 
       either party knowingly recommended a sentence not allowed by law.  The parties 
       were mistaken as to the applicable law.

CP at 50.  

       At the hearing on O'Brien's motion, his original defense counsel stated, "The discussions 

that I had with my client were that the State would recommend that the sentences run 

concurrently.  The sentence in this case would run concurrently with the sentences on three other 

cause numbers."  Report of Proceedings (RP) at 3.  Defense counsel asserted:

              [T]he State's reading would not be logical that we would recommend only 
       restitution run concurrent, especially with different cause numbers several years 
       apart.  And so nowhere does it mention that the sentences should run 
       consecutively.  It's not logical that only restitution would run concurrently, and 
       you know, candidly, Your Honor, you know how quickly things happened up on 
       the fifth floor several years ago.

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41719-7-II

RP at 8.

       The prosecutor, who was not originally assigned to the case, responded that a mutual 

mistake did not occur because the record did not mention that the sentence should run 

concurrently with the revoked DOSA sentence.  The prosecutor acknowledged that the State may 

have offered to recommend that the sentences run concurrent; however, the prosecutor asserted 

that it is the trial court that "ultimately ordered the sentence." RP at 7.

       The trial court denied the motion, reasoning that "I think that if by operation of law the 

sentence could not be run concurrent with a revoked DOSA, and it was clear at the time of the 

sentencing that he had a revoked DOSA, then this was the proper sentence, and it was not 

concurrent with the revoked DOSA.  It was consecutive."    RP at 9.  O'Brien appeals "the order 

denying [his] motion to modify judgment and sentence." CP at 104.

                                          ANALYSIS

I.     Motion to Correct Judgment and Sentence

       O'Brien contends that the trial court erred by declining to correct the judgment and run 

O'Brien's sentence concurrent with his revoked DOSA sentence.  We disagree.

       A.     Standard of Review

       We  review a ruling on a CrR 7.8 motion for an abuse of discretion.  State v. Gomez-

Florencio, 88 Wn. App. 254, 258, 945 P.2d 228 (1997).  A trial court abuses its discretion when 

it exercises  its  discretion in a manner that is manifestly unreasonable or  based on untenable 

grounds.  State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008) (quoting Wash. State 

Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)).

       B.     Relief from Judgment or Order

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41719-7-II

       The State contends that the judgment did not contain a mistake, as the record "does not 

support defendant's claim that the State agreed to recommend concurrent sentencing" and "[t]he 

sentencing court did not take any of the steps necessary to impose an exceptional sentence such as 

that suggested by defendant." Resp't's Br. at 5, 8.

       Under CrR 7.8(a), "[c]lerical mistakes in judgments, orders or other parts of the record

and errors therein arising from oversight or omission may be corrected by the court at any time of 

its own initiative or on the motion of any party and after such notice, if any, as the court orders."  

"[W]henever a person while under sentence for conviction of a felony commits another felony and 

is sentenced to another term of confinement, the latter term shall not begin until expiration of all 

prior terms." RCW 9.94A.589(2)(a).  The sentencing court may impose a sentence outside the 

standard sentence range when there are "substantial and compelling reasons justifying an 

exceptional sentence;" however, in that instance, "the court shall set forth the reasons for its 

decision in written findings of fact and conclusions of law.  A sentence outside the standard 

sentence range shall be a determinate sentence." RCW 9.94A.535.

       Here, as the State points out, the record does not support O'Brien's contention that the 

State recommended concurrent sentencing.  At sentencing, the prosecutor asked the sentencing 

court

       to impose 60 months in prison.  Credit for time served is 60 days.  Legal financial 
       obligations of $500 crime victim penalty assessment; $200 costs; $100 DNA 
       testing fee.  Restitution to all victims, and I believe that there was a [DOSA] that 
       was revoked, Your Honor, so the restitution would be concurrent with the 
       restitution that was ordered in the [DOSA] revocation.

CP at 75.  The judgment and sentence reflected the prosecutor's request that restitution run 

concurrent with the revoked DOSA's restitution:  "[c]oncurrent with: 05-1-06126-1, 05-1-05591-

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41719-7-II

1, 05-1-05727-2"     is handwritten next to the portion of the sentence addressing 

"RESTITUTION." CP at 19.

       Further, the record does not indicate that the trial court intended to impose an exceptional 

sentence.  At the time of O'Brien's sentencing hearing, he was sentenced to another term of 

confinement; thus, under RCW 9.94A.545, the sentencing court had to enter written findings of 

fact and conclusions of law to impose an exceptional sentence.  The trial court did not take steps 

to impose an exceptional sentence.  As the trial court noted at the hearing on O'Brien's motion to 

correct his judgment and sentence, O'Brien's sentence was the "proper sentence."   RP at 9.  We 

hold that the trial court did not err by denying O'Brien's motion to correct his judgment and 

sentence.

II.    Voluntariness of Plea

       O'Brien argues, in the alternative, that his plea was involuntary and, thus, he should be 

allowed to withdraw his plea or enforce his bargain at a new sentencing hearing.  The State 

contends that the only ruling before us is the trial court's denial of O'Brien's CrR 7.8 motion.  We 

agree with the State.

       "The appellate court will, at the instance of the appellant, review the decision or parts of 

the decision designated in the notice of appeal." RAP 2.4(a).  RAP 2.4(c) states:

              Except as provided in rule 2.4(b),[2] the appellate court will review a final 
       judgment not designated in the notice only if the notice designates an order 
       deciding a timely post-trial motion based on (1) CR 50(b) (judgment as a matter of 
       law), (2) CR 52(b) (amendment of findings), (3) CR 59 (reconsideration, new trial, 
       and amendment of judgments), (4) CrR 7.4 (arrest of judgment), or (5) CrR 7.5 

2 RAP 2.4(b) states, "The appellate court will review a trial court order or ruling not designated in 
the notice, including an appealable order, if (1) the order or ruling prejudicially affects the 
decision designated in the notice, and (2) the order is entered, or the ruling is made, before the 
appellate court accepts review."
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41719-7-II

       (new trial).

       Here, O'Brien appealed only "the order denying [his] motion to modify judgment and 

sentence."  CP at 104.  Thus, the question on appeal is whether the trial court abused its 

discretion by denying the motion to correct the judgment.  The voluntariness of his plea relates to 

the underlying judgment, not the order denying his motion to modify his judgment and sentence.  

To the extent that O'Brien is arguing that the trial court should have granted his motion on the 

basis of "[a]ny other reason justifying relief from the operation of the judgment" under CrR 

7.8(b)(5), he failed to make the motion within one year after the judgment was entered, as CrR 

7.8 and RCW 10.73.090 require.

III.   Statement of Additional Grounds

       In his SAG, O'Brien argues that there is an error in his judgment and sentence, repeating 

an argument that appellate counsel addresses in this appeal.  We do not address arguments that 

simply repeat or paraphrase arguments presented in the appellate counsel's brief.  State v. 

Johnston, 100 Wn. App. 126, 132, 996 P.2d 629 (2000).

       Affirmed.

       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.

                                                           Penoyar, C.J.

We concur:

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41719-7-II

       Hunt, J.

       Johanson, J.

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