August 19, 2011 Leave a comment
STATE of Washington, Respondent,
Flint G. Hastings, Appellant.
In re the Personal Restraint Petition of Flint G. Hastings.
Court of Appeals of Washington
August 17, 2011.
Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing the State of Washington.
Flint G. Hastings, Pro Se, for Appellant.
Flint G. Hastings seeks relief from personal restraint imposed for his December 19, 2006 Stevens County convictions upon plea of guilty to one count each of second-degree child rape and third-degree child rape. Mr. Hastings did not file a direct appeal. The judgment and sentence did, however, contain ambiguity as to whether he received a Special Sex Offender Sentencing Alternative (SSOSA) sentence. On January 4, 2007, the superior court entered an order clarifying the judgment and sentence that Mr. Hastings did not receive a SSOSA suspended sentence.
On July 6, 2010, Mr. Hastings filed this petition in the Supreme Court, which transferred it to this court in March 2011. See RAP 16.3(c); RAP 16.5(d). Because Mr. Hastings filed this petition more than one year from when the judgment and sentence became final, it is barred as untimely under RCW 10.73.090(1) unless the judgment is invalid on its face or the petition is based solely on one or more fo the exceptions in RCW 10.73.100(1)-(6).
In his first ground for relief, Mr. Hastings claims the trial court abused its discretion in imposing an exceptional sentence by running the two counts consecutive under a SSOSA sentence. He is correct that a sentencing court lacks authority to impose consecutive sentences when the defendant is given a SSOSA sentence. State State v. Goss, 56 Wn. App. 541, 544-45, 784 P.2d 194 (1990). But his claim lacks merit in light of the superior court’s order clarifying that he did not receive a SSOSA sentence.
The propriety of Mr. Hastings’ consecutive sentences is nevertheless still at issue. In a statement of additional authorities filed on June 3, 2011, he cites to State v. Washington, 135 Wn. App. 42, 143 P.3d 606 (2006), as applicable to his case. Washington reiterates well settled principles that when a defendant (such as Mr. Hastings) is convicted of multiple offenses that are not “serious violent offenses” under RCW 9.94A.589(1)(b), the sentences are presumed to run concurrently and may not be ordered to run consecutively unless a proper aggravating factor is found under the exceptional sentencing provisions of RCW 9.94A.535. Washington, 135 Wn. App. at 52-53.
Mr. Hastings had no prior criminal history, making his offender score “3″ for each current offense. The court sentenced him to a 102-month standard minimum term and community custody for up to the life statutory maximum for the second-degree child rape (count 1), and 34-month standard range sentence and community custody for a period of 36-48 months for the third-degree child rape (count II). The court ran the sentences consecutively for a total 136-month sentence, making only the notation “2 different victims.” (Judgment and Sentence at 7) A previous section of the judgment and sentence, Paragraph 2.4 entitled “Exceptional Sentence,” is left blank. And the court made no finding on the document or in any appendix supplied to this court that substantial and compelling reasons justify an exceptional sentence.
The judgment and sentence document on its face is thus, at best, unclear as to the legal basis for which the court imposed consecutive sentences, leaving this court unable to determine facial validity. The court thus orders the matter remanded to the superior court for written clarification of the judgment and sentence as to the basis articulated by the court during the December 19, 2006 sentencing hearing for imposing consecutive sentences. See RAP 16.11 (b) (Chief Judge may enter orders necessary to obtain a prompt determination of the petition on the merits.)
Also as part of his first ground for relief, Mr. Hastings claims that at the sentencing hearing on December 19, 2006, the prosecutor violated his obligation under the parties’ plea agreement to recommend a SSOSA sentence. He says the prosecutor informed the trial court that the State no longer wanted to pursue a SSOSA sentence. (Petitioner’s Brief at 3, 6) But a claim that the prosecutor breached the plea agreement does not fall within any RCW 10.73.100 exception to the one-year time bar. The claim is rejected as untimely under RCW 10.73.090(1).
Mr. Hastings next claims the judgment and sentence is facially invalid because the combination of a 34-month prison sentence and 36-48 months in community custody exceeds the five-year statutory maximum sentence for the Class C Felony third-degree child rape. RCW 9A.20.021(1)(c); RCW 9A.44.079(2). The State concedes this point and agrees that the appropriate remedy is a remand for the superior court to amend the sentence with respect to count II to explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum. In re Pers. Restraint of Brooks, 166 Wn.2d 664, 675, 211 P.3d 1023 (2009). The court accepts that concession and orders the sentence amended to comport with Brooks.
In his reply brief, Mr. Hastings raises new claims that his 30-day appeal period and one-year period for filing a collateral attack should each be equitable tolled because (1) his trial counsel (James F. Irwin) failed to perfect an appeal despite Mr. Hastings’ belief he was doing so, and (2) another attorney (Paul Wasson) was hired to pursue the appeal but took no action. Mr. Hastings contends the false promises and deception by counsel deprived him of his rights to a timely direct appeal and collateral attack.
As this court reiterated in Hoisington:
“The doctrine of equitable tolling permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed.” State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997), review denied, 134 Wn.2d 1012 (1998). Appropriate circumstances for equitable tolling include ” ‘bad faith, deception, or false assurances by the defendant, and the exercise of diligence by the plaintiff.’ ” Id. at 875 (quoting Finkelstein v. Security Properties, INc., 76 Wn. App. 733, 739 – 40, 888 P.2d 161, review denied, 127 Wn.2d 1002 (1995)).
In re Pers. Restaint of Hoisington, 99 Wn. App. 423, 430 – 31, 993 P.2d 296 (2000).
Mr. Hastings provides no evidentiary documentation beyond his own statements to support his claim that neither Mr. Irwin or Mr. Wasson acted in bad faith, deceived him, or gave him false assurances about pursuit of a timely direct appeal. Moreover, he provides no evidence that he has diligently attempted to preserve his appeal rights prior to filing this personal restraint petition some 3 1/2 years after his judgment and sentence was entered. One the record presented, his equitable tolling claim amounts to a self-serving conclusory allegation that is insufficient to command further review. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). FN2 The court also notes that Mr. Hastings makes no claim that the sentencing court failed to apprise him of his direct appeal rights.
In summary, Mr. Hastings’ claims that the prosecutor breached the plea agreement is dismissed as time-barred. RCW 10.73.090(1). His equitable tolling claim is dismissed as factually unsupported and frivolous. RAP 16. 11(b). The matter is remanded to the Stevens County Superior Court for (1) written clarification of the judgment and sentence to reflect the court’s basis articulated at the December 19, 2006 sentencing hearing for imposing consecutive sentences, and (2) amendment of the judgment and sentence in accordance with Brooks to explicitly state that the combination of confinement and community custody for court II shall not exceed the statutory maximum. The court directs that the superior court take these action on its earliest available docket, no later than 30 days hereof. The court further directs that the State file in this court the clarified/amended judgment and sentence within 7 days of entry by the superior court. Thereafter, this court will determine the steps necessary to properly decide any remaining issues in this petition, see RAP 16.11(b), and whether Mr. Hastings will receive appointed counsel.
Dated: August 17, 2011
Honorable Kevin M. Korsmo, Acting Chief Judge
*Prosecutor’s Note: The Superior Court did revisit this case and based upon written and oral arguments the trial court judge accepted the State’s recommendation that Mr. Hastings be sentenced to a minimum of 130 months to life imprisonment for Count 1 – Rape of Child in the Second Degree. Count 2 would run concurrently as required by the legislature.