* Personal Restraint Petition Of Benjamin Lee Smalls

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

o If. i f. Ui" WAonihu i i
20IUUI. ii* 	AMU: 2,
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Personal 	) 	No. 68740-9-1
Restraint Petition of 	)
) 	DIVISION ONE
BENJAMIN LEE SMALLS, 	)
) 	PUBLISHED OPINION
Petitioner. 	)
) 	FILED: 	July 14, 2014
Leach, J. — Benjamin Lee Smalls collaterally attacks his 2009 convictions
for assault in the second degree and murder in the second degree. 	He seeks to
withdraw his guilty pleas to both crimes and dismissal of the assault charge.
Smalls's judgment and sentence shows that he was charged and convicted of
assault in violation of the statute of limitations. 	As a result, the State concedes
that the assault charge should be dismissed.
Smalls also contends that this facial error and a sentencing error for his
murder conviction entitle him to collaterally challenge his guilty plea to murder
more than one year after his judgment and sentence became final. 	Because he
identifies no facial error relating to his murder conviction, RCW 10.73.090(1) bars
this collateral challenge. 	Smalls's sole remedy, which he has not requested, is
correction of his sentence for this conviction.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/2
FACTS
On March 3, 2008, the State charged Smalls with murder in the second
degree for shooting and killing Stephen Kirk in 2002. 	The State sought a firearm
sentencing 	enhancement. 	On April 	25, 	2008, 	the 	State filed 	an 	amended
information that added a charge for assault in the second degree for pointing a
handgun at a witness after shooting 	Kirk. 	The 	State also sought a firearm
sentencing enhancement on this count.
Smalls pleaded guilty to murder in the second degree and to assault in the
second degree1 in exchange for dismissal of the firearm enhancement request
on the assault charge and dismissal of a pending charge in an unrelated case.2
Based upon an offender score of 9, the trial court imposed concurrent sentences
of 418 months' confinement for the murder count and 84 months' confinement for
the assault count.
Smalls appealed to this court. 	He alleged that his plea was involuntary
because of postplea changes in the law about the length of community custody
authorized for his crimes, as well as numerous other claims. 	In an unpublished
opinion, we remanded for entry of an order amending the community custody
1 Before sentencing, Smalls sought to withdraw his guilty plea, claiming
that 	he 	was 	incompetent. 	Two 	evaluations 	concluded 	that 	Smalls 	was
competent. 	State v. Smalls, noted at 158 Wn. App. 1031, 2010 WL 4400088, at
*1.
2The State later agreed to destroy the evidence in the unrelated case.
-2-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/3
period but otherwise affirmed Smalls's judgment and sentence. This court issued
its mandate on March 18, 2011.
On April 12, 2012, Smalls filed in the sentencing court a CrR 7.8(b) motion
for relief from judgment seeking "to have his sentence for murder in the second
degree with firearm enhancement and assault in the second degree vacated; to
withdraw his plea to both counts I and II and to have count II dismissed . . . ."
The 	court 	transferred 	Smalls's 	motion 	to 	this 	court for 	consideration 	as 	a
personal restraint petition.
STANDARD OF REVIEW
To prevail on a collateral attack on a judgment and sentence by way of a
personal restraint petition, a petitioner must establish that a constitutional error
has occurred and it has resulted in actual and substantial prejudice or that a
nonconstitutional error has caused a complete miscarriage of justice.3
ANALYSIS
The State's appropriate concession on the assault conviction leaves one
issue 	for 	this 	court 	to 	decide: 	Can 	Smalls 	collaterally 	attack 	his 	murder
conviction on the grounds alleged? 	He cannot, because he filed his motion more
than one year after the judgment in his case became final and no recognized
exception to this time bar applies to his allegations.
3 In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212, 227 P.3d 285
(2010) (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d
390 (2004)).
-3-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/4
RCW 10.73.090 prohibits filing 	a 	collateral 	attack on 	a judgment and
sentence in a criminal case 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." Smalls contends that this one-year requirement does not
apply to his challenge because his judgment and sentence is invalid on its face
and the trial court was not a court of competent jurisdiction. 	In addition, Smalls
claims that a statutory exception to the one-year limit applies because "[t]he
sentence imposed was in excess of the court's jurisdiction."4
The State concedes that Smalls's judgment and sentence is facially invalid
in two ways. 	It affirmatively shows that the State charged Smalls with assault in
the second degree after the statute of limitations expired. 	Thus, the trial court
had no authority to convict Smalls of that crime. As Smalls has requested, he is
entitled to withdraw his guilty plea to this crime and 	have the corresponding
charge dismissed.
The State also concedes the facial invalidity of the sentence imposed for
Smalls's murder conviction. 	A sentence imposed 	based 	upon an erroneous
offender score is facially invalid.5 	The trial court used an offender score of 9 for
the murder conviction, including 2 points for the invalid assault conviction. 	His
correct offender score is 7, which 	reduces his standard 	range from 298-397
4 RCW 10.73.100(5).
s In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866-67, 50 P.3d 618
(2002).
-4-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/5
months 	to 	216-316 	months, 	plus 	60 	months 	for 	the 	firearm 	enhancement.
Therefore, Smalls's 418-month sentence violates Washington law. 	Smalls is
entitled to some relief from this sentence under RAP 16.4(c)(2).6 	He has not
requested this.
Smalls asks to withdraw his murder plea. 	But the fact that a portion of the
judgment and sentence is facially invalid does not make the entire judgment and
sentence invalid. 	It "does not affect the finality of that portion of the judgment
and sentence that was correct and valid at the time it was pronounced."7
Smalls does not challenge the facial validity of the murder conviction, only
the facial validity of the sentence for it. 	Instead, he challenges the subject matter
jurisdiction of the trial court to enter the murder conviction8 on three grounds.
First, he alleges that the entire plea bargain exceeded the trial court's authority
because he pleaded guilty to the assault charge and agreed to a sentence based
upon an offender score that included the erroneous assault charge. 	Second, he
asserts that the plea bargain was inconsistent with the interests of justice and
prosecution standards, 	in violation 	of RCW 9.9A.431(1), 	because it 	required
conviction for 	a 	time-barred 	crime and 	a 	sentence 	based 	upon an 	incorrect
6 This rule states, "The conviction was obtained or the sentence or other
order entered in a criminal proceeding or civil proceeding instituted by the state
or local government was imposed or entered in violation of the Constitution of the
United States or the Constitution or laws of the State of Washington."
7 In re Pers. Restraint of Carle, 93 Wn.2d 31, 34, 604 P.2d 1293 (1980)
(citing McNuttv. Delmore, 47 Wn.2d 563, 565, 288 P.2d 848, 850 (1955)).
8 A party may challenge subject matter jurisdiction for the first time at any
point in a proceeding, even on appeal. State v. Peltier, 176 Wn. App. 732, 744,
309 P.3d 506 (2013) (quoting In re Marriage of McDermott, 175 Wn. App. 467,
479, 307 P.3d 717 (2013)), review granted, 179 Wn.2d 1014 (2014).
-5-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/6
offender score. 	Finally, 	he claims that his 	plea was involuntary because of
misinformation about the possible charges and sentence that he could face at
trial. 	We reject these contentions.
The superior court has original subject matter jurisdiction over all felony
criminal proceedings.9 	A court lacks subject matter jurisdiction when it attempts
to decide a type of controversy that it has no authority to decide.10 	A court does
not lack subject matter jurisdiction merely because it may lack authority to enter a
given order.11 	Smalls concedes our holding that a statute of limitations does not
divest a trial court of subject matter jurisdiction, 	but 	preserves this 	issue for
further review.12 	While Smalls could 	not waive the statute of limitations for
assault by pleading guilty,13 	he fails to show that the trial court lacked subject
matter jurisdiction 	to 	enter 	his judgment and 	sentence. 	It lacked 	statutory
authority to enter only parts of it.
In re Personal Restraint of Snivelv14 controls the timeliness of Smalls's
three challenges to his murder conviction. 	In Snivelv, the defendant sought to
withdraw a guilty plea to indecent liberties because of a facially invalid sentence.
9 State v. Golden, 112 Wn. App. 68, 73, 47 P.3d 587 (2002) (citing Wash.
Const, art. IV, § 6; RCW 2.08.010; State v. Werner, 129 Wn.2d 485, 492, 918
P.2d 916 (1996)).
10 Peltier, 176 Wn. App. at 744 (quoting Marlev v. Dep't of Labor & Indus.,
125 Wn.2d 533, 539, 886 P.2d 189 (1994)).
11 	Peltier, 	176 Wn. App. at 	743 	(quoting 	In re 	Personal 	Restraint of
Stoudmire, 141 Wn.2d 342, 353, 5 P.3d 1240 (2000)).
12 Peltier, 176 Wn. App. at 746. 	("[A] statute may not divest a superior
court of subject matter jurisdiction unless 	it, 	at the 	same time, assigns that
subject matter jurisdiction to some other court. 	Obviously, a statute of limitation
does not do this.").
13 Peltier, 176 Wn. App. at 749.
14180Wn.2d28,320P.3d 1107(2014).
-6-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/7
The Supreme Court held that he could not, explaining, "Although Snively avoids
the time bar so as to allow him to challenge the facially invalid sentence, his
claim that his plea was involuntary due to misinformation as to sentencing is not
by itself an exempt ground for relief under RCW 10.73.100."15 	Accordingly, the
court concluded, "Snively may not rely on the existence of a facial sentencing
error to assert other time barred claims."16 	When a judgment and sentence is
facially invalid, the proper remedy is remand to correct the error.17 	In Snivelv, the
Supreme Court explained that the "sole remedy" was correction of the erroneous
sentence.18
Similarly, 	the facial 	errors in Smalls's judgment and 	sentence can 	be
corrected by allowing him to withdraw his assault plea, dismissing the assault
charge, and correcting his erroneous murder sentence. 	Thus, this is the sole
relief 	available 	to 	him. 	RCW 	10.73.090 	bars 	his 	three 	untimely 	collateral
challenges to his murder conviction because none fit within any of the exceptions
listed in chapter 10.73 RCW. 	Although Smalls does not ask us to remand for
15 Snivelv. 180 Wn.2d at 32 (citing In re Pers. Restraint of Toledo-Sotelo,
176 Wn.2d 759, 770, 297 P.3d 51 (2013); In re Pers. Restraint of Clark, 	168
Wn.2d 581, 587, 230 P.3d 156 (2010)).
16 Snivelv. 180 Wn.2d at 32 (citing In re Pers. Restraint of Adams, 178
Wn.2d 417, 424-25, 309 P.3d 451 (2013)).
17 In re Pers. 	Restraint of Tobin, 	165 Wn.2d 	172, 	176, 	196 P.3d 670
(2008) (citing Goodwin, 146 Wn.2d at 877; In re Pers. 	Restraint of West, 154
Wn.2d 204, 215, 110 P.3d 1122 (2005)).
18 Snivelv, 180 Wn.2d at 32 (citing Adams, 178 Wn.2d at 427).
-7-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/8
correction 	of the 	erroneous 	portion 	of 	his 	sentence, 	our decision 	does 	not
preclude Smalls from making this request in the trial court.19
Smalls claims that our Supreme Court's opinion in In re Personal Restraint
of 	Yates20 	entitles 	him 	to 	withdraw 	his 	pleas 	because 	he 	demonstrates
prejudice—that he would not have pleaded guilty but for the misinformation. 	To
support this claim, he cites to language in the Yates opinion dismissing Yates's
personal restraint petition because he made no showing of prejudice.21 	Smalls
misreads Yates.
In Yates, 	decided the same day as Snivelv, the defendant sought to
withdraw guilty pleas to 13 counts of aggravated first degree murder because the
judgment and sentence was facially invalid. It imposed a determinate 408-year
sentence instead of 408 years with a possible extension to life in prison.22 	The
petitioner argued that his plea was invalid because he was not correctly informed
that the proper sentence was an indeterminate sentence of 20 years to life rather
than a determinate sentence of 20 years on two counts.23
19 See Snivelv, 180 Wn.2d at 32 n.2 ("Snively does not ask for correction
of the sentence but seeks only to withdraw his plea and ultimately be released
from civil 	commitment. 	Our decision today does 	not 	preclude Snively from
requesting correction of the judgment and sentence in the trial court.").
20180Wn.2d33, 321 P.3d 1195(2014).
21Yates, 180Wn.2dat35.
22 Yates, 180Wn.2dat39.
23 Yates, 180 Wn.2d at 39-40.
-8-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/9
The court agreed that the judgment and sentence was facially invalid and
his petition was 	not time barred.24 But it held that to obtain relief through a
personal restraint petition, Yates needed to show a practical difference between
the sentence actually imposed and the sentence that he should have received.25
The court stated,
[The petitioner's] only attempt to show that he was prejudiced by
the error in his sentence was in a later supplemental declaration
where he indicated that he would not have taken the plea deal if he
had known that the sentences for two of his murder charges were
20 years rather than what the law required: 	an indeterminate life
sentence with a minimum of 20 years. 	However, we do not attempt
to 	look 	into 	the 	mind 	and 	motivations 	of the 	defendant when
determining whether an error resulted 	in prejudice. 	Instead, we
evaluate the practical effects that result from the error.[26]
Thus, 	because the sentencing court could provide Yates no meaningful relief
from the sentencing error by correcting the judgment and sentence, the court
dismissed 	his petition 	instead 	of remanding to the 	trial 	court to correct the
sentence.27 	The 	court considered 	Yates's failure 	to 	show 	prejudice 	in this
context. 	It did not consider the merits of Yates's request to withdraw his guilty
pleas and find them wanting.
24 Yates, 180Wn.2dat39.
25 Yates, 180Wn.2dat41.
26 Yates, 180Wn.2dat41 (citing In re Pers. Restraint of Stockwell, 179
Wn.2d 588, 602, 316 P.3d 1007 (2014).
27 Yates, 	180 Wn.2d at 41. 	The court concluded, "Yates agreed to a
sentence of 408 years 	in 	prison and he should have been sentenced to a
minimum of 408 years with a potential extension to a life sentence. 	Given the
reality 	of the 	human 	life-span, 	there 	is no difference 	between those 	two
sentences. 	There is simply no way to find prejudice in this context." 	(Footnote
omitted.)
-9-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 68740-9-1/10
We 	reconcile 	Snivelv with 	Yates. 	A 	petitioner whose judgment and
sentence is facially invalid may obtain relief by showing that this facial invalidity
had a practical effect on his sentence. 	A petitioner who makes this showing is
entitled only to a 	remand to the trial court to correct the invalidity but is not
entitled to assert a time-barred challenge to the validity of his plea. 	If, like Yates,
the petitioner cannot show prejudice caused by the sentencing court, he is not
entitled to any relief and his petition will be dismissed.
CONCLUSION
Smalls's judgment and sentence is facially invalid because the trial court
had no authority to convict for assault in the second degree or impose the murder
sentence. 	But, RCW 10.73.090 bars Smalls's request to withdraw his guilty plea
to 	murder. 	The 	personal 	restraint 	petition 	is 	granted 	in 	part, 	the 	assault
conviction 	is 	vacated, 	and 	the 	matter 	is 	remanded 	for 	further 	proceedings
consistent with this opinion.
WE CONCUR:
y-^/zvx^ UM
-10-