In the Matter of the Personal Restraint of Brenda Louise West, Petitioner, 154 Wash. 2d 204

¶1 In 1996, Brenda Louise West held up a Motel 6 clerk for $120. In exchange for a reduction of the charge from first degree robbery down to first degree theft, West agreed to serve an exceptional 10-year sentence. This eliminated the possibility that a conviction would result in her third strike. As part of her plea bargain, West also signed a waiver in which she agreed to serve the full 10-year sentence and requested that the Department of Corrections (Department) not make any calculation or application of earned early release time.

The sentencing judge made a handwritten notation on the judgment and sentence explaining that West stipulated to 10 years flat time with no earned early release. The Department reads this notation to prohibit it from applying any earned early release credit to West’s sentence. Bridge, J. ¶2 West filed a personal restraint petition alleging that the handwritten notation renders the judgment and sentence facially invalid because it is not within the superior court’s power to prohibit the accumulation of earned early release time.

The Court of Appeals dismissed the petition, concluding that the notation merely memorialized West’s stipulation to serve flat time, but did not actually prohibit the application of early release time. We disagree. ¶3 The handwritten notation was made by the trial court and became part of the judgment and sentence, thus carrying the imprimatur of the trial court. The Department considers itself bound by the trial court’s writing and reads it to prohibit the application of early release time.

Yet only the Department has the authority to grant or deny earned early release time, and thus the handwritten notation renders West’s judgment and sentence facially invalid. We reverse the Court of Appeals, grant the petition, and remand to the sentencing court for deletion of the notation from West’s judgment and sentence. Facts and Procedural History ¶4 On July 21, 1996 Brenda West held up a clerk of a Motel 6 with a handgun, stealing $120 from the hotel’s cash drawer. West was initially charged with one count of robbery in the first degree.

If convicted of first degree robbery, West would have faced a life sentence without the possibility of parole as a persistent offender. West entered into a plea agreement with the State in which the State agreed to reduce the charge to theft in the first degree in exchange for West’s guilty plea, her stipulation to an exceptional sentence of 10 years, and her waiver of any right to earned early release time. ¶5 West signed a written waiver of her earned early release time that acknowledged that only the Department has the authority to determine whether early release time has been earned.

The waiver stated, in part: I hereby waive my right to have any . . . earned credit applied to my sentence in this case and stipulate that I shall serve ten years, flat time, in the Department of Corrections. ... 7 request that the Department of Corrections not make any determination, calculation, or application of earned early release time in regards to my sentence so that the State may receive the benefit of its agreement with me. I do this freely and voluntarily as part of my plea agreement with the State. ...

I make this waiver to induce the State to file an Amended Information charging me with Theft in the First Degree rather than risk being convicted of a “most serious offense” and sentenced to life without possibility of parole. Def.’s Waiver of Earned Early Release Time as Condition of Plea Agreement at 1-2 (emphasis added). On January 13, 1997, West pleaded guilty to theft in the first degree. The court sentenced West to 10 years, the statutory maximum for first degree theft.

The judge also entered a handwritten notation on the judgment and sentence which reads, “defendant stipulates to flat time — no earned early release.” J. and Sentence at 5. f 6 West filed this petition more than one year after her judgment and sentence became final.

The chief judge of Division Two of the Court of Appeals dismissed West’s petition as untimely, concluding that the notation on West’s judgment and sentence merely reflected her stipulation and it did not usurp the Department’s authority: West’s agreement not to seek earned early release time does not bind the Department, which remains free to award or to withhold earned early release time as it sees fit. The trial court, therefore, did not exceed its sentencing authority in referring to this stipulation on the judgment and sentence. Order Dismissing Pet. at 3.

West filed a motion for discretionary review, which this court granted. Analysis ¶7 RCW 10.73.090 establishes a one-year time limit for collateral attack on a judgment and sentence. However, the one-year time limit does not apply if a judgment and sentence is invalid on its face. RCW 10.73.090. Even where a judgment and sentence is invalid, to justify collateral relief a nonconstitutional error must also constitute “ ‘a “fundamental defect which inherently results in a complete miscarriage of justice.” ’ ” See In re Pers. Restraint of Thompson, 141 Wn.2d 712, 719, 10 P.3d 380 (2000) (quoting In re Pers.

Restraint of Fleming, 129 Wn.2d 529, 532, 919 P.2d 66 (1996) (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990))). ¶8 The Court of Appeals concluded that the handwritten notation on West’s judgment and sentence simply reflected West’s waiver of earned early release time and mere acknowledgment of West’s stipulation would not bind the Department or exceed the trial court’s sentencing authority. Order Dismissing Pet. at 3. However, in State v. Phelps, 113 Wn. App. 347, 57 P.3d 624 (2002), the same division of the Court of Appeals reached a different conclusion.

In that case, the trial court included on the judgment and sentence a handwritten notation stating “ ‘[t]he defendant agrees to extend the statute of limitation for refiling Count I for a period of 7 years from this Judgment and Sentence.’ ” Id. at 352 (quoting Clerk’s Papers (CP) at 36). The Phelps court held that regardless of whether the trial court intended the notation to be a part of the sentencing order or merely an acknowledgment of the agreement, including the notation on the judgment and sentence gave it the imprimatur of the trial court. Id. at 357.

We believe the Phelps court’s conclusion is the correct one. In West’s case, the Department reports that it is bound by the “plain language of the judgment and sentence” which “expressly states ‘defendant stipulates to flat time — no earned early release.’ ” Resp. of Dep’t of Corr. at 3 (quoting the judgment and sentence notation). The plain language of the notation does not limit its application and nothing suggests that the notation carries less than the full weight of the trial court’s sentencing authority. See Phelps, 113 Wn. App. at 356-57.

Therefore, we consider the notation to be part of the sentencing order. ¶9 The dissent cites to State v. Pharris, 120 Wn. App. 661, 86 P.3d 815 (2004) to support its conclusion that the Department can simply overlook the trial court’s notation in this case. In Pharris, the defendant pleaded guilty to assault and unlawful imprisonment based on an incident in which he beat, stabbed, and burned his girl friend over a period of seven hours. Id. at 666. On the same day, he pleaded guilty to drug charges. Id.

The trial judge entered findings to support an exceptional sentence in the assault/ unlawful imprisonment case and ordered that the concurrent standard range sentences for assault and unlawful imprisonment would be served consecutively to the standard range drug sentence. See RCW 9.94A.535 and 9.94A-.589(1)(a), (b). On the judgment and sentence in the drug case, the trial judge included a handwritten notation that read, “ ‘[t]he sentence herein shall run consecutively with the sentence in [the assault conviction] but concurrently to any other felony cause not referred to in this Judgment.’ ” Pharris, 120 Wn.

App. at 667 (quoting CP at 25). Pharris argued that this notation on the drug judgment and sentence created an unsupported exceptional sentence in the drug case. The Court of Appeals disagreed, holding that the notation did not impose an exceptional sentence in the drug case, but instead was “nothing but a cross reference to the exceptional sentence in the assault case.” Id. In doing so, the Court of Appeals determined what the trial court meant by its handwritten notation. ¶10 In Phelps, as in this case, the key issue was not what the trial court meant by its notation, but what weight the notation carried.

In contrast, in Pharris, the key question involved the meaning of the notation itself. Moreover, in Pharris the trial court’s notation referenced another judgment and sentence, which independently carried the authority of the trial court. In Phelps and in this case, the trial courts did not reference another valid judgment and sentence, but instead recited agreements between the prosecution and the defense that did not otherwise carry the authority of the trial court.

See Phelps, 113 Wn.2d at 356-57; Waiver at 1-2. ¶11 The key question here, like in Phelps, is not what the notation means, but what weight it carries. The Department considers itself bound by the trial court’s writing and reads it to prohibit the application of early release time. Again, we agree with the Phelps court’s conclusion that regardless of whether the trial court intended the notation to be a part of the sentencing order, including it in the judgment and sentence gave it the imprimatur of the trial court.

Id., at 357. ¶12 A judgment and sentence is invalid on its face if it exceeds the duration allowed by statute and the alleged defect is evident on the face of the document without further elaboration. See In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 532, 55 P.3d 615 (2002); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866, 50 P.3d 618 (2002); Thompson, 141 Wn.2d at 718-19. Whether the sentencing court has exceeded its statutory authority under the Sentencing Reform Act of 1981 (SRA),

chapter 9.94A RCW, is an issue of law. State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003). ¶13 When West was sentenced, former RCW 9.94A.150 (1996) controlled early release from a correctional facility. The statute required that no offender could be released prior to the expiration of his or her sentence except as provided in the statute. Former RCW 9.94A.150(1). The statute allowed an offender’s sentence to be reduced by earned early release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined.

The earned early release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction. Former RCW 9.94A.150(1) (emphasis added). Notably, the statutory language grants authority to determine a prisoner’s earned early release time to the correctional agency having jurisdiction over the offender. ¶14 This court has recognized that former RCW 9.94A.150 provides no authority for the superior court to grant early release time. In re Pers. Restraint of Mota, 114 Wn.2d 465, 478, 788 P.2d 538 (1990).

In Mota, we noted that: For offenders sentenced to incarceration in a state institution, the statute gives the authority to grant good time only to the DOC [Department of Corrections]. [Former] RCW 9.94A.150 states that the sentence is reduced in accordance with procedures developed and promulgated by the DOC. The DOC determines the standards of good behavior and good performance. Id. at 477 (emphasis added); see also State v. Hale, 94 Wn. App. 46, 56, 971 P.2d 88 (1999) (“Under RCW 9.94A.150, only the correctional agency (county jail or DOC) has the ability to grant ‘good time.’ ”).

Presumably, if the trial court has no authority to grant earned early release time, it also has no authority to restrict it. ¶15 This conclusion is supported by the underlying purpose of earned early release time. See In re Pers. Restraint of Williams, 121 Wn.2d 655, 661, 853 P.2d 444 (1993). In Williams, we recognized that “the award or denial of good time serves important disciplinary goals.” Id. at 661.

If a correctional institution is to be able to effectively administer its good-time policies in order to further prison discipline, it must actually have control over the award or denial of good time for offenders under its jurisdiction. . . . Accordingly, the statute grants control over the award or denial of good time to the institution in which the offender is actually incarcerated. Id. at 662.

The plain language of former RCW 9.94A.150, this court’s prior discussion of the statute, and the underlying purpose of earned early release time all clearly indicate that sentencing courts have no authority to restrict the imposition of earned early release time. Imposition of a sentence that is not authorized by the Sentencing Reform Act is a fundamental defect which justifies collateral relief. In re Pers.

Restraint of Breedlove, 138 Wn.2d 298, 304, 979 P.2d 417 (1999); see also Goodwin, 146 Wn.2d at 877 (“[T]he court has granted relief to personal restraint petitioners in the form of resentencing within statutory authority where a sentence in excess of that authority had been imposed, without regard to the plea agreements involved.”). ¶16 The State and the Department argue that, even if the sentencing court acted outside its authority, West waived any right to earned early release time as part of her plea agreement, thereby precluding collateral relief.

They are correct that direct appeal and collateral attack are not always available for defendants who have entered into plea agreements. Goodwin, 146 Wn.2d at 874 (“waiver can be found where the alleged error involves an agreement to facts, later disputed, or where the alleged error involves a matter of trial court discretion”). But “waiver does not apply where the alleged sentencing error is a legal error leading to an excessive sentence.” Id. ¶17 This court has repeatedly held that “an individual cannot, by way of a negotiated plea agreement, agree to a sentence in excess of that allowed by law.” In re Pers.

Restraint of Hinton, 152 Wn.2d 853, 861, 100 P.3d 801 (2004). See also Goodwin, 146 Wn.2d at 870 (“ ‘a plea bargaining agreement cannot exceed the statutory authority given to the courts.’ ” (quoting In re Pers. Restraint of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001 (1980)); Thompson, 141 Wn.2d at 723 (“ ‘[T]he actual sentence imposed pursuant to a plea bargain must be statutorily authorized ....’” (quoting In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991)). A defendant simply “cannot empower a sentencing court to exceed its statutory authorization.” State v.

Eilts, 94 Wn.2d 489, 495-96, 617 P.2d 993 (1980). The fact that a defendant agreed to a particular sentence does not cure a facial defect in the judgment and sentence where the sentencing court acted outside its authority. ¶18 The State also argues that even if the sentencing court erred in attempting to govern West’s earned early release time, West invited the error. State’s Resp. to Pers. Restraint Pet. at 6.

But Washington courts have held that even where a defendant clearly invited the challenged sentence by participating in a plea agreement, to the extent that he or she “can show that the sentencing court exceeded its statutory authority, the invited error doctrine will not preclude appellate review.” Phelps, 113 Wn. App. at 354 (citing Goodwin, 146 Wn.2d at 872).

The Phelps court relied on Goodwin where this court clarified that “a sentence in excess of statutory authority is subject to collateral attack” and “a defendant cannot agree to punishment in excess of that which the Legislature has established.” 146 Wn.2d at 873-74. The Goodwin court allowed collateral review of a post-plea agreement sentence, despite the invited error doctrine. See id. at 872-74.

Therefore, the invited error doctrine does not apply where a sentence is outside the authority of the sentencing court. ¶19 In sum, the handwritten notation on West’s sentence constitutes a fundamental defect justifying collateral relief because the sentence exceeds the sentencing court’s statutory authority and the defect is not cured by the fact that West agreed to the limitation of her earned early release time as part of her plea bargain.

Moreover, we do not apply the invited error doctrine where the sentencing court has acted outside of its statutory authority. ¶20 This court has been clear that “the imposition of an unauthorized sentence does not require vacation of the entire judgment or granting of a new trial. The error is grounds for reversing only the erroneous portion of the sentence imposed.” Eilts, 94 Wn.2d at 496 (citation omitted).

See also Goodwin, 146 Wn.2d at 877 (“Correcting an erroneous sentence in excess of statutory authority does not affect the finality of that portion of the judgment and sentence that was correct and valid when imposed.”) and Phelps, 113 Wn. App. at 358 (reversing only an incorrect notation on a judgment and sentence). In this case, the only portion of the judgment and sentence that is invalid is the sentencing judge’s handwritten notation regarding earned early release time. In fact, West has requested only that we vacate the part of her judgment and sentence that forbids the award of early release time.

Mot. for Discretionary Review at 11. Therefore, we reverse the Court of Appeals, grant the petition, and remand for correction of the invalid judgment and sentence in the form of deletion of the handwritten notation. Conclusion ¶21 The handwritten notation on the judgment and sentence carries the imprimatur of the sentencing court and we consider it to be part of the sentencing order. The sentencing court exceeded its statutory authority when it purported to govern West’s earned early release time.

Because a defendant cannot agree to a sentence in excess of the court’s statutory authority, West’s waiver cannot cure the defect on the judgment and sentence. Therefore, the judgment and sentence is fundamentally defective, justifying collateral relief. We reverse the Court of Appeals, grant the petition, and remand to the sentencing court for deletion of the handwritten notation. Alexander, C.J., and Madsen, Sanders, Chambers, Owens, and Fairhurst, JJ., concur.

In contrast the notation imposing the exceptional sentence on the assault judgment and sentence read “1 the court finds that an exceptional sentence is appropriate, and [the sentence in the drug charge] is to be run consecutively.’ ” Pharris, 120 Wn. App. at 667 n.12 (quoting CP at 25). Collateral documents, signed as part of a plea agreement, may be considered when those documents are relevant in assessing the validity of the judgment and sentence. Hemenway, 147 Wn.2d at 532. The current equivalent provision can be found at RCW 9.94A.728. The relevant language remains identical. RCW 9.94A.728(1).

See also State v. Gronnert, 122 Wn. App. 214, 224-25, 93 P.3d 200 (2004). The dissent points to Breedlove, 138 Wn.2d at 311, to support its conclusion that West invited the trial court’s error in this case. Dissent at 222. But Breedlove predates Goodwin, and Breedlove was not a case where the trial court acted outside of its sentencing authority. See Breedlove, 138 Wn.2d at 310. In fact, the Breedlove court noted that “[i]mposition of a sentence which is not authorized by the SRA is a fundamental defect which may justify collateral relief.” Id. at 304.