In the Matter of the Personal Restraint of Lowell Deray Finstad, Petitioner, 177 Wash. 2d 501

González, J. ¶1 This case squarely asks whether petitioners collaterally challenging judgments and sentences based on a failure to follow statutory sentencing procedures must show that they were prejudiced by the claimed error. In 2007, Lowell Deray Finstad faced at least seven felony charges. After he was convicted by a jury on two of the charges, he and the State negotiated a global plea agreement on the remaining charges. The agreement likely resulted in less prison time for Finstad, and in exchange, Finstad agreed to dismiss his appeal of his jury convictions.

Under the agreement, most of the sentences would run concurrently. However, the State indicated it would ask the judge to run a sentence for delivery of a controlled substance conviction consecutive to the others. It appears that neither the State nor Finstad nor the court realized that this consecutive sentence would constitute an exceptional sentence and require special findings. The judge accepted the pleas and largely accepted the State’s sentencing recommendation without making any special findings. ¶2 Finstad did not appeal.

Three years later, Finstad filed this personal restraint petition, contending he received an exceptional sentence that did not comply with the requirements of RCW 9.94A.589 and RCW 9.94A.537. He asked this court to order the sentences be served concurrently. Reply Br. at 9. The State concedes that running the sentences consecutively resulted in an exceptional sentence and, since the trial judge did not make the requisite findings, that the judgments and sentences are not valid on their faces.

However, it contends that under the facts of this case, Finstad is not entitled to relief because he has not met his burden of showing he was prejudiced by the particular flaw. We agree and dismiss. Facts ¶3 In February 2007, a jury found Finstad guilty of one count of possession of a controlled substance with intent to deliver (cocaine) and one count of possession of a controlled substance (methamphetamine). Answer to Mot. for Discretionary Review, App. F. The next month, Judge Wulle sentenced Finstad to 40 months’ confinement. Id. App. F at 6.

Meanwhile, Finstad was facing two charges of possession of controlled substances (cocaine and methamphetamine) with intent to deliver stemming from a June 2006 event; a charge of delivery of a controlled substance stemming from an October 2006 event; a charge of intimidating a witness stemming from a 2005 event; and a charge of attempted arson committed sometime in 2006. Id. App. A at 12-13, Apps. H-J. The attempted arson charge carried a potential law enforcement victim aggravator. Id. App. A at 12. The possession charges carried potential firearms and school zone enhancements. Suppl. Br. of Resp’t, App.

A. ¶4 The State proposed a plea agreement under which Finstad would plead guilty to the pending charges and dismiss his appeal of his February convictions. In return, the State would not seek any sentencing enhancements. Answer to Mot. for Discretionary Review, App. A at 12-13. On its formal offer, the State spelled out its sentencing recommendation: 120 Months in Total Confinement. This 120 months would include the 40 months on 06-1-01073-6, which was sentenced previously this year, 40 months on 06-1-01137-6, 40 months on 06-1-02072-3, each consecutive to each other.

Additionally, the defendant would be sentenced to 40 months on 07-1-00611-7 (Witness [I]ntimidation), concurrent to all other causes, along with 40 Months on 07-1-01996-1 (Attempted Arson I), concurrent to all other causes. Id. at 13. ¶5 On November 14, 2007, Finstad pleaded guilty to the remaining charges under four separate cause numbers. Id. Apps. A-D. Judge Wulle accepted Finstad’s guilty pleas and largely accepted the State’s sentencing recommendation, though he sentenced Finstad to only 36 months on the attempted arson charge. Id. Apps. D, F-I, K.

While each individual sentence was within the standard range, Judge Wulle sentenced Finstad to consecutive sentences on the charges of possession with intent to deliver and the charge of delivery of a controlled substance. Id. In none of the four separate judgments and sentences issued that day did Judge Wulle make a specific finding that an exceptional sentence was appropriate under RCW 9.94A.589.

Id. ¶6 Three years later, Finstad filed this personal restraint petition, contending the judgments and sentences were invalid on their faces because they did not show that the trial judge made the findings required by RCW 9.94A.589 before running sentences consecutively and because the State had not filed a notice of an intent to seek an exceptional sentence as required by RCW 9.94A.537(1). He did not move to withdraw his guilty plea, which would have been untimely and could have put him at risk of the State seeking the sentencing enhancements it had abandoned.

The Court of Appeals effectively treated his petitions as a motion to withdraw his plea on only some of the charges in a “ ‘package deal’ ” and dismissed. Order Dismissing Pet. at 2 (No. 41877-1-II) (citing State v. Ermels, 156 Wn.2d 528, 540-41, 131 P.3d 299 (2006)). We granted review. Analysis ¶7 Initially, we note the State concedes that the judgments and sentences at issue are not valid on their faces because they do not show that the trial court complied with RCW 9.94A.589 before sentencing Finstad to consecutive sentences.

It also concedes that Finstad has overcome the time bar set forth in RCW 10.73.090 (“No petition or motion for collateral attack on a judgment 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 of competent jurisdiction.”).

As the parties are not meaningfully adverse on these questions, we accept the State’s concessions. ¶8 However, while Finstad has overcome the time bar on review, more is required before a court will order relief from a settled judgment. “Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner must meet a high standard before this court will disturb an otherwise settled judgment.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011) (citing In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)).

Typically, this means a petitioner must show either that he or she was actually and substantially prejudiced by constitutional error or that his or her trial suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 (2007); Cook, 114 Wn.2d at 810-12. ¶9 Finstad does not specifically attempt to meet this standard.

Instead, he contends that because the judgments and sentences lack the finding required by RCW 9.94A.535, they were entered without authority of law, and thus, he contends, he is entitled to relief. As the State concedes, the sentencing process did not comply with the Sentencing Reform Act of 1981 (SRA),

chapter 9.94A RCW. RCW 9.94A.589(l)(

a) provides: Except as provided in (

b) or (

c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score .... Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.

Under RCW 9.94A.535: The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.[] Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. ¶10 While the SRA does not formally define “current offense,” the term is defined functionally as convictions entered or sentenced on the same day.

RCW 9.94A.525(1) (“Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed ‘other current offenses.’ ”) Generally, sentences on current offenses are presumed to be served concurrently rather than consecutively. RCW 9.94A.589(l)(a). In contrast, nothing in the SRA suggests that sentences issued on different days would not be presumptively served consecutively. ¶11 In Coats, we recognized that our case law had not been entirely consistent on whether mere invalidity, standing alone, was sufficient to justify relief.

Coats, 173 Wn.2d at 142-43 (citing cases). Coats did not give us an opportunity to decide the issue. But this case does. As the chief justice observed in Coats, RCW 10.73.090 presents “a procedural bar, not a substantive bar ” Id. at 145 (Madsen, C.J., concurring) (emphasis omitted). As such, overcoming it, by itself, does not entitle a petitioner to relief. A petitioner must also meet the substantive common law requirements articulated in Cook, 114 Wn.2d at 810-12. ¶12 In this case, the trial court’s failure to make the finding appears to us to be nonconstitutional error.

Accordingly, Finstad would be entitled to relief only if he establishes he has suffered from a complete miscarriage of justice. Elmore, 162 Wn.2d at 251. But even assuming that this error was of constitutional magnitude under Blakely v. Washington, 542 U.S. 296,124 S. Ct. 2531,159 L. Ed. 2d 403 (2004), Finstad still must show actual and substantial prejudice flowing from that error. In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994) (citing Cook, 114 Wn.2d at 810); cf. Coats, 173 Wn.2d at 142.

Any error here could have been avoided by simply scheduling the entry of the pleas for two successive days. Actual and substantial prejudice is made of sterner stuff. ¶13 An examination of the charging documents and documents attached to the defendant’s statement on plea of guilty also persuades us that Finstad did not suffer actual and substantial prejudice (let alone complete miscarriage of justice) from the claimed error. Finstad was facing not only five felony charges, he was facing considerable sentencing enhancements.

The original information charging two counts of possession with intent to deliver a controlled substance alleged that Finstad was armed with a 9 mm Beretta pistol, a .38 caliber Smith & Wesson revolver, and a .22 caliber pistol within 1,000 feet of a school zone. Suppl. Br. of Resp’t, App. A. If Finstad had gone to trial, the State intended to seek a law enforcement victim aggravator enhancement on the attempted arson charge. Id.; Answer to Mot. for Discretionary Review, App. A at 12.

The State dropped the sentencing enhancements in return for Finstad’s pleading guilty and dismissing his pending appeal of earlier convictions. Finstad had notice that the State would seek consecutive sentences. Under these facts, we respectfully disagree with our dissenting colleagues that Finstad has shown actual and substantial prejudice. Certainly, if we fix our eyes on the four corners of the four judgments and sentences, it might appear so.

But when we widen our gaze to include the documents associated with the plea agreement, any apparent prejudice evaporates. ¶14 Simply put, it appears to us that Finstad seeks to use a mutual mistake about the process required under the SRA to circumvent both the time limit on what amounts to a motion to withdraw a guilty plea and the principle that a global plea agreement is a contract and a petitioner cannot seek to invalidate only a portion of it. See CrR 4.2(f); Ermels, 156 Wn.2d at 540-41.

But even if this were a timely motion, a court will allow a petitioner to withdraw a guilty plea only if it appears “necessary to correct a manifest injustice.” CrR 4.2(f). Finstad has made no such showing. While the sentence violated procedural requirements of the SRA, it was within the trial court’s power to issue. RCW 9.94A.535. Given these facts, we find that Finstad has failed to show the requisite prejudice required for relief. ¶15 Our resolution today is consistent with our most recent word on the subject, State v. Chambers, 176 Wn.2d 573, 293 P.3d 1185 (2013).

In July 1999, Chambers pleaded guilty to charges relating to drug manufacturing in February and May of the same year. Id. at 577-78. That November, before he was sentenced, Chambers stole a car, killed a pedestrian, and committed other crimes. Id. at 578. Represented by able counsel, Chambers agreed to plead guilty to the November charges in return for the State not bringing a felony murder charge and not seeking a gun enhancement on the drug manufacturing charge. Id. at 578-79. The State sought, and Chambers agreed to, a 240 month sentence on the November crimes, which amounted to an exceptional sentence.

Id. at 579. The trial judge accepted the plea and the sentencing recommendation and sentenced accordingly, without making the findings required by RCW 9.94A.589. We found that the judgment and sentence was invalid on its face but that Chambers failed to demonstrate the requisite level of prejudice required for relief. Chambers, 176 Wn.2d at 583-87.

Chambers, like Finstad, “received the precise sentence he stipulated to in the plea agreement.” Id. at 586. “The failure of the trial judge to check the exceptional sentence box and enter a finding of fact does not require resentencing when the sentence was requested by the defendant.” Id. at 587 (citing In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999)). The Chambers principle applies here.

Conclusion ¶16 Under the facts of this case, Finstad has not shown that he suffered actual and substantial prejudice from the trial judge’s failure to make the specific findings required by the SRA before entering consecutive sentences on current offenses. Accordingly, we affirm the Court of Appeals on slightly different grounds and dismiss this petition. Madsen, C.J., and Owens, Fairhurst, J.M. Johnson, and Stephens, JJ., concur. Charged under Clark County Superior Court No. 06-1-01137-6. Charged under Clark County Superior Court No. 06-1-02072-3. Charged under Clark County Superior Court No. 07-1-00611-7.

Charged under Clark County Superior Court No. 07-1-01996-1. Finstad does not renew his RCW 9.94A.537 challenge before this court, and we do not reach it. He also now seeks resentencing rather than the nunc pro tunc order correcting the judgment and sentence he originally sought. RCW 9.94A.537 was enacted in the wake of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), see Laws or 2005, ch. 68 § 4, and was amended in response to our opinion in State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007), see Laws or 2007, ch. 205.

It establishes several procedural requirements before the State may seek an aggravated sentence based on facts that must be found by a jury beyond a reasonable doubt or admitted by the defendant. RCW 9.94A.537(3), (6). It does not apply to sentence calculations not based on aggravating factors that must be found beyond a reasonable doubt or admitted to by the defendant. While Finstad contended that his sentence violated RCW 9.94A.537 in his original petition, he does not renew that argument and we do not reach it.

Finstad does not contend at this court that his sentence violated Blakely, likely because it is well established that Blakely, like Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), before it, does not apply to questions of consecutive sentencing. See State v. Vance, 168 Wn.2d 754, 762, 230 P.3d 1055 (2010) (citing Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 717, 172 L. Ed. 2d 517 (2009)). Therefore, we respectfully disagree with our learned colleague in dissent that Blakely is implicated in this case or that we should raise the matter where counsel declined to.

While it is not before us, we note the sentence in this case is simply not the type of sentence the Blakely Court was concerned about: one based on facts not admitted by the defendant or found by a jury beyond a reasonable doubt. See State v. Evans, 154 Wn.2d 438, 442, 114 P.3d 627 (2005) (citing Blakely, 542 U.S. 296). However, given that the statutes at issue in this case implemented Blakely, we err on the side of caution and apply the constitutional standard. Given our resolution, we do not reach whether relief would violate the principles set forth in Ermels, 156 Wn.2d 528.

The dissent contends that our resolution is inconsistent with the principle “that criminal defendants may not agree to punishment in excess of what the legislature has provided for in the SRA.” Dissent at 516 (citing State v. Barber, 170 Wn.2d 854, 870-71, 248 P.3d 494 (2011); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 871, 50 P.3d 618 (2002); In re Pers. Restraint of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991); In re Pers. Restraint of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001 (1980); In re Pers. Restraint of Carle, 93 Wn.2d 31, 33-34, 604 P.2d 1293 (1980)).

The principle is, largely speaking, sound but conflates the trial court’s substantive power to sentence (limited to those sentences authorized by law) with the trial court’s duty to follow the statutory procedures. When the trial court imposes a sentence that is too long or contains unlawful conditions, this court will regularly correct that sentence, whether challenged directly or collaterally. All the cases cited above demonstrate that principle.

See Barber, 170 Wn.2d at 874 (petitioner not entitled to specific performance of an illegal term in a plea agreement); Goodwin, 146 Wn.2d at 876-77 (imposition of a sentence predicated on a miscalculated offender score unlawful regardless of petitioner’s earlier acquiescence); Moore, 116 Wn.2d at 38-39 (pre-SRA sentence of life without possibility of parole not authorized by relevant statutes); Gardner, 94 Wn.2d at 506 (fine in excess of twice the defendant’s gain or the victim’s loss not authorized by relevant statute); Carle, 93 Wn.2d at 33-34 (imposition of firearm enhancement unlawful under controlling case law and statutes).

By contrast, when the trial court imposes a lawful sentence but commits some legal error along the way, collateral relief is available only when the petitioner demonstrates he or she has suffered the requisite harm. See, e.g., Coats, 173 Wn.2d at 144. Finstad has not done so.