Flynn v. Pierce Cnty.

Citation482 P.3d 980
Decision Date09 March 2021
Docket NumberNo. 53703-6-II,53703-6-II
CourtWashington Court of Appeals
Parties John Fredrick FLYNN, III, Appellant, v. PIERCE COUNTY, Respondent, Charles Bonet, Lori Kennedy, and Patricia Pethick, Defendants.

482 P.3d 980

John Fredrick FLYNN, III, Appellant,
PIERCE COUNTY, Respondent,

Charles Bonet, Lori Kennedy, and Patricia Pethick, Defendants.

No. 53703-6-II

Court of Appeals of Washington, Division 2.

Filed March 9, 2021

Michael Charles Kahrs, Kahrs Law Firm PS, 2208 Nw Market St. Ste. 414, Seattle, WA, 98107-4097, for Appellant.

Peter J. Helmberger, Pierce County Prosecuting Attorney/Civil, 955 Tacoma Ave. S Ste. 301, Tacoma, WA, 98402-2160, for Respondent.


Cruser, J.

¶1 Following the State's error in calculating his offender score and his defense counsel's failure to contest the State's calculation, John Frederick Flynn, III spent approximately 31 months incarcerated beyond the high end of his correct standard range sentence. After Flynn's resentencing and subsequent release, Flynn filed a lawsuit against Pierce County, his trial criminal defense counsel Charles Bonet, the deputy prosecuting attorney,1 and his appellate counsel (collectively "the County"). The trial court entered an order dismissing Flynn's claim pursuant to CR 12(b)(6). Flynn appeals, arguing that his complaint was timely filed and that he alleged a set of facts in his complaint pertaining to criminal malpractice that would justify recovery. Specifically, he asserts that the harm he suffered was caused by his attorneys’ negligence, and the original sentencing court's adoption of an erroneous offender score was not a superseding, intervening event and thus did not absolve the county or its agents of liability.2

¶2 In the published portion of this opinion, we hold that Flynn's claim is not barred by the statute of limitations. In the unpublished portion of this opinion, we hold that Flynn cannot establish causation as to his negligence claim because the original sentencing court's adoption of an incorrect offender score, despite its being advised of the correct offender score by the Department of Corrections (DOC), was a superseding, intervening event that absolved the County and its agents of liability. Because no set of facts exist that would justify recovery, we hold that Flynn's claim was properly dismissed pursuant to CR 12(b)(6).

¶3 Accordingly, we affirm.


¶4 Flynn was convicted of one count of first degree rape and one count of first degree burglary in a jury trial on March 3, 1994. He came before the superior court for sentencing on May 17, 1994. The Department of Corrections (DOC) reviewed Flynn's criminal history prior to sentencing, and in its Presentence Investigation Report (PSI), it determined that Flynn's offender score for the rape conviction was eight and that his offender score for the burglary conviction was seven. Based on these offender scores,

482 P.3d 982

the PSI listed the standard range sentence as 185 to 245 months confinement for the rape conviction and 67 to 89 months confinement for the burglary conviction. Both convictions carried a statutory maximum sentence of life imprisonment.

¶5 The State's offender score calculation differed from DOC's, assigning to Flynn an offender score of 13 for the rape conviction and 12 for the burglary conviction. For an offender score above 9 for the rape conviction, the standard range sentence was 210 to 280 months confinement, and for an offender score above 9 for the burglary conviction, the standard range was 87 to 116 months. In the PSI, DOC specifically noted that its offender score calculation differed from the State's. According to the facts averred in Flynn's complaint, DOC set forth the basis for its offender score calculation by listing the convictions and current offenses upon which it relied for its calculation.

¶6 Defense counsel appears to have not filed a sentencing memorandum, and he did not otherwise contest the State's calculation of Flynn's offender score during the sentencing hearing.3 The original sentencing court adopted the State's offender score calculation and sentenced Flynn to the high end of the standard range. Flynn was thus sentenced to 280 months confinement on the rape conviction and 116 months confinement on the burglary conviction, with the sentences to run concurrently. The original sentencing court gave Flynn credit for the 201 days he had already served.

¶7 Flynn appealed his convictions and filed a pro se personal restraint petition (PRP) that we consolidated with his direct appeal. Appellate counsel did not assign error to the State's offender score calculation in Flynn's direct appeal, and Flynn did not raise the issue in his PRP. We affirmed Flynn's convictions and dismissed his PRP. State v. Flynn , No. 18237-8-II, 82 Wash.App. 1068 (Wash. Ct. App. Aug. 23, 1996). The mandate issued on January 23, 1997.

¶8 In the years that followed, Flynn filed several additional PRPs, with one petition proving successful. On July 1, 2016, the supreme court granted Flynn's request for collateral relief, agreeing that the original sentencing court erroneously calculated his offender score. Clerk's Papers (CP) at 126-27 (Order, In re Pers. Restraint of Flynn , ––– Wash.2d ––––, 378 P.3d 154 (2016) ). The State conceded that in calculating Flynn's offender score, it included "some convictions for crimes evidently committed by someone else," and in other instances, "the history misidentified the crimes of conviction." Id. at 126.

¶9 The supreme court ruled that the correct calculation of Flynn's offender score for the rape conviction depended on the resolution of whether Flynn was under community supervision at the time he committed the crime. The supreme court remanded for resentencing and instructed the State to provide the sentencing court with the necessary documentation to prove Flynn's offender score and to allow the sentencing court to determine whether Flynn was under community supervision when he committed the crimes.

¶10 On remand, the sentencing court recalculated Flynn's offender score consistent with the scores in DOC's PSI. Consequently, the sentencing court determined that based on Flynn's offender score of 7 for the burglary conviction, the corresponding standard range sentence was 67 to 89 months confinement. On the rape conviction, the sentencing court determined that Flynn's offender score was 8 and his standard range sentence was 185 to 245 months. The sentencing court sentenced Flynn to a total of 240 months confinement and acknowledged that Flynn had already served 275 months and 26 days. A new judgment and sentence was entered on October 24, 2016, and Flynn was released the following day. At the time of his release, Flynn had been incarcerated for more than two and a half years longer than allowed by the correct standard range.

482 P.3d 983

¶11 Flynn filed a complaint against the County in King County Superior Court on October 22, 2018. Flynn's complaint alleged that the County was liable for the injuries he suffered due to his overlong incarceration and that he was entitled to relief based on negligence, false imprisonment, and a violation of his rights under the Eighth Amendment to the United States Constitution pursuant to 42 U.S.C § 1983.

¶12 The County removed the case to federal court where Flynn voluntarily dismissed his § 1983 claims following Pierce's County's motion to dismiss. The federal court declined to exercise its supplemental jurisdiction over Flynn's remaining state law claims and remanded the matter to King County Superior Court. By stipulated agreement, the parties changed the venue to Pierce County.

¶13 Thereafter, the County moved to dismiss Flynn's remaining claims of negligence and false imprisonment under CR 12(b)(6), arguing that Flynn's negligence claims failed because he did not set forth a set of facts that would establish causation and that both claims should be dismissed because the complaint was filed well after the applicable statute of limitations expired. Flynn responded that his claim alleged sufficient facts to establish causation and that his cause of action did not accrue until his resentencing, rendering his complaint timely. Flynn abandoned his false imprisonment claim by the time he responded to the County's motion.

¶14 The trial court agreed with the County and dismissed Flynn's claims. Flynn appeals.



¶15 Flynn contends that his cause of action for criminal legal malpractice did not accrue until his sentence was invalidated and his new sentence was imposed. Thus, he alleges that his claim was timely because it was filed within three years of his post-conviction relief. We agree that Flynn's claim for legal malpractice was timely filed.


¶16 The applicable statute of limitations for a legal malpractice claim is three years. Cawdrey v. Hanson Baker Ludlow Drumheller, P.S. , 129 Wash. App. 810, 816, 120 P.3d 605 (2005). "Statutes of limitations do not begin to run until a cause of action accrues," which is usually "when the party has the right to apply to a court for relief." 1000 Virginia Ltd. P'ship v....

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