In re Adolph

• Decision Date: 18 November 2010
• Docket Number: No. 82868-7.,82868-7.
• Citation: 243 P.3d 540,170 Wash.2d 556
• Parties: In the Matter of the Personal Restraint of Vincent ADOLPH, Petitioner.
• Court: Washington Supreme Court

243 P.3d 540

170 Wash.2d 556

In the Matter of the Personal Restraint of Vincent ADOLPH, Petitioner.

No. 82868-7.

Supreme Court of Washington, En Banc.

Argued May 18, 2010.

Decided Nov. 18, 2010.

David L. Donnan, Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Petitioner.

Karl F. Sloan, Okanogan County Prosecutor's Office, Okanogan, WA, for Respondent.

FAIRHURST, J.

¶ 1 Vincent Adolph challenges a sentence enhancement imposed as part of his conviction for vehicular homicide. Adolph asserts that the two-year sentence enhancement he received based on a 1992 driving under the influence (DUI) conviction in Lincoln County was not supported by sufficient evidence. The State asserts that Adolph's personal restraint petition (PRP) is procedurally barred for numerous reasons and also asserts that the record was sufficient to prove the Lincoln County DUI conviction. We hold that Adolph's PRP is not procedurally barred and is properly before this court. But, because sufficient evidence supported the Lincoln County DUI conviction, we deny the PRP.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 On a foggy night in January 2003, Loretta Aguilar was driving home on a state highway outside Omak when she missed a turn into a driveway. She stopped on the highway, backed up, and turned perpendicular to the roadway so that she was facing the driveway. The evidence shows that Adolph crossed the center line and struck Aguilar's car on the driver's side, killing Aguilar and injuring her passenger. At the hospital, Adolph's blood alcohol level tested at 0.14.

¶ 3 Adolph was charged and convicted of vehicular homicide and vehicular assault. With regard to vehicular homicide convictions involving alcohol, RCW 46.61.520(2) imposes two-year sentence enhancements for each prior DUI conviction under RCW 46.61.5055. At Adolph's sentencing hearing, the State presented evidence that Adolph had three prior DUIs. Two Okanogan County DUI convictions were supported by a certified docket and have not been challenged. The third DUI conviction, from Lincoln County, was supported by a certified copy of Adolph's Department of Licensing (DOL) driving record abstract and a copy of a defendant case history from the District and Municipal Court Information System (DISCIS). Adolph objected to thesufficiency of the record for the Lincoln County DUI conviction. The trial court concluded that the State had met its burden and imposed three separate two-year sentence enhancements for the prior DUIs.

¶ 4 After the court had announced its sentence, the State submitted a certified copy of the citation for the Lincoln County DUI and a certified copy of the Lincoln County District Court docket that referenced Adolph's DUI. The trial court admitted the documents into the record but explicitly stated that its prior ruling on the existence of the Lincoln County DUI conviction did not rely on the documents.

¶ 5 Adolph appealed to the Court of Appeals, asserting issues of no relevance here. The Court of Appeals affirmed on the merits, and we denied Adolph's petition for review. State v. Adolph, 163 Wash.2d 1030, 185 P.3d 1194 (2008). While his petition for review was pending before this court, Adolph, acting pro se, filed a PRP with the Court of Appeals arguing that the combination of confinement and community custody exceeded the maximum possible sentence. Adolph's PRP was dismissed. He moved for discretionary review before this court, asserting an additional claim that because the two Okanogan DUIs were deferred and the Lincoln County DUI should have washed out, they should not have counted for enhancement purposes. Commissioner Steven Goff denied Adolph's motion.

¶ 6 Adolph, acting pro se, filed this current PRP in the Court of Appeals on July 21,2008. He argues that the State provided insufficient evidence to prove the Lincoln County DUI. The Court of Appeals dismissed his petition as successive. Adolph moved for discretionary review before this court and his motion was granted. In re Pers. Restraint of Adolph, 166 Wash.2d 1025, 217 P.3d 336 (2009).

II. ISSUES

¶ 7A. Is Adolph's PRP procedurally barred?

¶ 8B. Was there sufficient evidence in the trial court record to find by a preponderance that Adolph had been convicted of DUI in Lincoln County?

III. ANALYSIS

A. Adolph's PRP is properly before this court

¶ 9 The State asserts that Adolph's PRP is procedurally barred for four reasons: (1) the PRP is untimely, (2) the PRP has failed to state a ground for relief under RAP 16.4(c), (3) the PRP raises issues that could have been raised on appeal, and (4) the PRP is successive or is an abuse of the writ.

Adolph's PRP is timely

¶ 10 The State asserts that Adolph's PRP is untimely. A PRP is untimely if it is not brought within one year of the judgment becoming final. RCW 10.73.090(1). One way a judgment becomes final is when "an appellate court issues its mandate disposing of a timely direct appeal from the conviction." RCW 10.73.090(3)(b). Here, the mandate issued on June 11, 2008. Adolph filed this PRP on July 21, 2008. Therefore, the PRP is well within the one year time limit.

Review of Adolph's PRP does not violate RAP 16.4(c)

¶ 11 The State argues that Adolph's PRP is improper because he has not shown that his restraint is unlawful for one of the reasons in RAP 16.4(c). RAP 16.4 establishes the criteria required to grant a PRP, not to review one. To review the merits of a nonconstitutional error in a PRP, the petitioner must make a threshold showing that he or she is unlawfully detained due to "a fundamental defect which inherently results in a complete miscarriage of justice."In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990). Here, Adolph argues that two years of his sentence were imposed unlawfully because the State did not prove he committed the DUI that triggered the sentence enhancement. We have identified that sentences entered in excess of lawful authority are fundamental defects that result in miscarriages of justice. See In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 868-69, 50 P.3d 618 (2002). Adolph has made a prima facie showing that he suffered a fundamental defect that resulted in a miscarriage of justice and has met the burden to avoid summary dismissal of his PRP. If we were to agree that Adolph's sentence was unlawful, he would satisfy the grounds for relief in RAP 16.4(c)(2) because his sentence would have been entered in violation of the laws of Washington.

Adolph's failure to raise issues on appeal does not bar his PRP

¶ 12 The State argues that Adolph may not challenge the validity of the sentence enhancement by PRP because he failed to raise this issue on direct appeal. This court has rejected the notion that failure to address an issue on appeal bars addressing that same issue in a PRP. Hews v. Evans, 99 Wash.2d 80, 87, 660 P.2d 263 (1983) ("We hereby hold the failure to raise a constitutional issue for the first time on appeal is no longer a reason for automatic rejection of a Personal Restraint Petition."); Cook, 114 Wash.2d at 812, 792 P.2d 506 ("[W]e now reject the automatic bar to advancing a nonconstitutional argument in a personal restraint petition merely because the argument was not advanced earlier."). Instead, we require a heightened standard for collateral attacks where the petitioner had a previous opportunity for judicial review. In re Pers. Restraint of Grantham, 168 Wash.2d 204, 214, 227 P.3d 285 (2010). Accordingly, Adolph's failure to challenge the sentence enhancement on direct appeal does not bar this PRP.

[243 P.3d 544, 170 Wash.2d 564]

Adolph's PRP is neither successive nor an abuse of the writ

¶ 13 A petition may be successive under either RCW 10.73.140 or RAP 16.4(d). In re Pers. Restraint of VanDelft, 158 Wash.2d 731, 737, 147 P.3d 573 (2006). RCW 10.73.140 applies only to the Court of Appeals. Id. The statute calls for dismissal of a PRP where the petitioner has not established good cause why the issues in the current PRP were not raised in an earlier PRP. RCW 10.73.140. Because RCW 10.73.140 applies only to the Court of Appeals, a PRP that is barred as successive in the Court of Appeals may be perfectly cognizable before this court. In re Pers. Restraint of Perkins, 143 Wash.2d 261, 265, 19 P.3d 1027 (2001) (citing In re Pers. Restraint of Johnson, 131 Wash.2d 558, 566, 933 P.2d 1019 (1997)). We have concluded that where the Court of Appeals is barred from reviewing a PRP under RCW 10.73.140, but this court is not barred, the Court of Appeals should transfer the case to this court. Id. at 266, 19 P.3d 1027. Because the chief judge concluded that Adolph's PRP was successive under RCW 10.73.140, the judge should have transferred the PRP to this court. As the PRP is now before this court, and RCW 10.73.140 does not apply to this court, the PRP is not barred as successive under RCW 10.73.140.

¶ 14 Nor is the PRP barred under RAP 16.4(d). Under RAP 16.4(d), "[n]o more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown." We have construed "similar relief" to mean "(1) where the prior application had been denied on 'grounds previously heard and determined'; or (2) 'if there has been an abuse of the writ.' " In re Pers. Restraint of Haverty, 101 Wash.2d 498, 503, 681 P.2d 835 (1984) (quoting Sanders v. United States, 373 U.S. 1, 15, 17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)). An issue has been "previously heard and determined" when: " '(1) [T]he same ground presented in the subsequent application was determined adversely to the applicant on the prior application,(2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.' " Id. (alteration in original) (quoting Sanders, 373 U.S. at 15, 83 S.Ct. 1068).

¶ 15 In his first PRP, Adolph argued that the combination of his sentence and community custody exceeded the maximum possible sentence for his crime....