In re the Personal Restraint of Fawcett
In re the Personal Restraint of Fawcett
Opinion of the Court
— Benjamin Fawcett pleaded guilty to first degree child molestation. At the time he pleaded guilty, Fawcett was told he would serve at least one year of community placement, even though the law in effect at the time Fawcett pleaded guilty mandated he serve at least two years of community placement. The sentencing court ultimately imposed two years of community placement. In this personal restraint petition (PRP), we must determine whether this misinformation actually and substantially prejudiced Fawcett. We hold that it did not.
FACTS
On November 9, 1998, Benjamin Fawcett pleaded guilty to one count of first degree child molestation committed on August 1, 1990. The plea form Fawcett signed stated the judge would sentence Fawcett “to community placement for at least one year.” PRP Ex.l at 5. At the time Fawcett pleaded guilty, Washington law mandated he serve at least
The sentencing court entered judgment and sentence on December 7,1998. The court imposed a sex offender special sentencing alternative (SOSSA), suspending Fawcett’s sentence of 68 months provided he serve 6 months in the King County jail and comply with all the conditions of his community placement.
For reasons that are not part of the record on appeal, the trial court revoked Fawcett’s SOSSA on July 22, 1999, within one year of his release from total confinement. The trial court ordered Fawcett to serve the remainder of his 68-month sentence in the custody of the Department of Corrections.
On November 8, 1999, Fawcett appealed his judgment and sentence to the Court of Appeals. He sought to abandon that direct appeal in November, 2000, and the Court of Appeals issued its mandate terminating review on November 27, 2000. On December 15, 1999, Fawcett filed a PRP with the Court of Appeals. The Court of Appeals denied Fawcett’s first PRP.
On September 19, 2001, within one year of the Court of Appeals mandate in his direct appeal, Fawcett filed his second PRP, which is the PRP now before this court. In an unpublished opinion, the Court of Appeals denied Fawcett’s petition because he had already filed a PRP in which he challenged his conviction. However, it granted the State’s request to remand the case to allow the sentencing court to correct several errors on the face of the judgment and sentence.
ANALYSIS
Fawcett complains that his guilty plea was involuntary because the plea form he signed stated he was subject to at least one year of community placement, whereas the mandatory minimum community placement was two years. A petitioner alleging constitutional error in a personal restraint petition must show he was actually and substantially prejudiced by the error. In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994). An error that does not actually and substantially prejudice a personal restraint petitioner does not warrant the granting of the personal restraint petition—if an error did not harm the petitioner, it is not a legally cognizable error in a personal restraint petition.
Given Fawcett’s violation of the community placement conditions, the only way he can establish actual and substantial prejudice from the alleged error is if he violated the conditions outside the period of community placement time he alleges he should have received but within the period of time actually imposed. Because Fawcett violated the conditions of his community placement within the first two months of his community placement, we conclude he cannot establish that he was actually and substantially prejudiced by the alleged error.
Because Fawcett’s SOSSA was revoked, he will suffer no future prejudice from the two-year community placement term which was imposed as part of his revoked SOSSA. By violating the terms of his community placement, Fawcett removed himself from the SOSSA alternative and subjected himself to the 1998 standard sentencing provisions applicable to a first-time first degree child molester with an offender score of zero. Those provisions allowed for a 51 to 68 month sentence and a two-year community placement term. Former RCW 9.94A.310, .120(9)(b).
CONCLUSION
Fawcett alleges his guilty plea was involuntary because the plea form erroneously implied he could receive a one-
Therefore, Fawcett’s personal restraint petition is denied.
Alexander, C.J., and Smith, Madsen, Sanders, Ireland, Bridge, Chambers, and Owens, JJ., concur.
The judgment and sentence listed the date of offense as February 21, 1997, even though Fawcett pleaded guilty to molesting a child on August 1, 1990. The
Reference
- Full Case Name
- In the Matter of the Personal Restraint of Benjamin H. Fawcett
- Cited By
- 8 cases
- Status
- Published