In re Bonds

• Court: Washington Supreme Court
• Writing for the Court: C. Johnson
• Citation: In re Bonds, 196 P.3d 672, 165 Wn.2d 135 (Wash. 2008)
• Decision Date: 26 November 2008
• Docket Number: No. 80995-0.
• Parties: In the Matter of the Personal Restraint Petition of Robert Charles BONDS, Jr., Respondent.

196 P.3d 672

165 Wn.2d 135

In the Matter of the Personal Restraint Petition of Robert Charles BONDS, Jr., Respondent.

No. 80995-0.

Supreme Court of Washington, En Banc.

Argued June 24, 2008.

Decided November 26, 2008.

Michelle Luna-Green, Pierce Co. Prosecutor's Office, Tacoma, WA, for Petitioner.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Respondent.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

C. JOHNSON, J.

¶ 1 We are asked to determine whether, under the facts of this case, we will recognize equitable tolling as an exception to the time bar provided under RCW 10.73.090 and permit Robert Charles Bonds, Jr., to submit an otherwise untimely amended personal restraint petition (PRP). The Court of Appeals applied equitable tolling to allow Bonds to amend his PRP more than one year after his judgment and sentence became final. This permitted Bonds to raise a claim alleging violation of his right to a public trial and the public's right to open court proceedings. The Court of Appeals granted relief, vacated Bonds's convictions, and ordered a new trial. We find that equitable tolling does not apply in these circumstances and reverse the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Bonds was tried and convicted in Pierce County of two counts of attempted first degree murder and one count of unlawful possession of a firearm. During trial, the court admitted redacted out-of-court statements of Bonds's codefendants. Four times during trial, the court closed the proceedings while certain witnesses testified.

¶ 3 Division Two of the Court of Appeals affirmed Bonds's convictions on direct appeal, State v. Miller, noted at 122 Wash.App. 1074 (2004), and the judgment and sentence became final on May 9, 2005. Bonds timely filed a PRP in the Court of Appeals on July 22, 2005, asserting that the out-of-court statements of his codefendants violated his confrontation rights and that appellate counsel was ineffective in not raising that issue. Bonds also requested the assistance of counsel. The State filed its answering brief on October 10, 2005. For reasons unknown, the acting chief judge did not rule on Bonds's petition until May 4, 2006. At that time, the judge found Bonds's PRP was not frivolous, referred the petition to a panel of judges for a decision on the merits, and appointed counsel. The one year time limit on collateral attack under RCW 10.73.090 passed a few days later.

¶ 4 On July 25, 2006, Bonds's counsel moved under RAP 16.4 (PRP grounds for remedy) to submit an amended PRP, adding the claim that the trial court violated Bonds's right to a public trial and the public's right to open court proceedings. The State objected, but a Court of Appeals commissioner granted Bonds's motion. The Court of Appeals denied the State's motion to modify the commissioner's ruling, and this court denied discretionary review, leaving the State free to argue to the Court of Appeals that Bonds did not timely raise the public trial issue. The parties then briefed that issue.

¶ 5 The Court of Appeals held that equitable tolling allowed the court to consider the public trial issue by way of Bonds's otherwise untimely amended PRP, held that Bonds's public trial right was violated, and granted the PRP in a split and unpublished decision. The court reversed Bonds's convictions and remanded for a new trial. In re Pers. Restraint of Bonds, noted at 141 Wash.App. 1032, 2007 WL 3378567 (2007). We granted the State's motion for discretionary review.

ISSUE

Whether equitable tolling permits Bonds to submit an otherwise untimely amended PRP.

ANALYSIS

¶ 6 Under RCW 10.73.090 the time limit for collateral attack of a criminal judgment and sentence is one year after the judgment becomes final.¹ Collateral attack includes the filing of a PRP. RCW 10.73.090 is a mandatory rule that acts as a bar to appellate court consideration of PRPs filed after the limitation period has passed, unless the petitioner demonstrates that the petition is based on one of the exemptions enumerated in RCW 10.73.100.² We have upheld the constitutionality of RCW 10.73.090. In re Pers. Restraint of Runyan, 121 Wash.2d 432, 444, 853 P.2d 424 (1993).

¶ 7 Though the appellate rules do not expressly authorize or prohibit amendment to PRPs, we have accepted amendments to a PRP made within the statutory time limit. This discretionary allowance accords with RAP 16.10(c), which permits an appellate court to call for additional briefs at any stage of consideration of a PRP.³

¶ 8 The State submits that the time limit in RCW 10.73.090 is a jurisdictional requirement, which precludes application of equitable tolling, and that we should reverse on this basis. We disagree. This court has previously referred to the time limit in RCW 10.73.090 as a statute of limitation. In re Pers. Restraint of Benn, 134 Wash.2d 868, 938-39, 952 P.2d 116 (1998). And the Court of Appeals has expressly held that RCW 10.73.090 functions as a statute of limitation and not as a jurisdictional bar, and is thus subject to the doctrine of equitable tolling. In re Pers. Restraint of Hoisington, 99 Wash.App. 423, 431, 993 P.2d 296 (2000). We reject the contention that the statute is jurisdictional and address whether equitable tolling applies in this case.

¶ 9 We begin our analysis by looking to the statute. Equitable tolling of a statute of limitation is appropriate when consistent with the policies underlying the statute and the purposes underlying the statute of limitation. The purpose underlying the time limit in RCW 10.73.090 is to manage the flow of post-conviction collateral relief petitions by requiring collateral attacks to be brought promptly. Limiting attacks to a one-year period, except in instances provided in RCW 10.73.100, also promotes finality of judgments. Here, we must determine whether application of equitable tolling in these circumstances would be consistent with the purposes of RCW 10.73.090. Case law from this court is instructive.

¶ 10 Equitable tolling is a remedy that permits a court to allow an action to proceed when justice requires it, even though a statutory time period has elapsed. In re Pers. Restraint of Carlstad, 150 Wash.2d 583, 593, 80 P.3d 587 (2003). It acts as an exception to the statute of limitations that should be used sparingly and does not extend broadly to allow claims to be raised except under narrow circumstances. We have adopted a framework to determine when equitable tolling should apply in the civil context, and all three divisions of the Court of Appeals have incorporated this analysis into criminal cases. Millay v. Cam, 135 Wash.2d 193, 206, 955 P.2d 791 (1998). In Millay, a civil case, we established that equitable tolling is allowed when justice requires and when the predicates for equitable tolling are met. The predicates we identified there were bad faith, deception, or false assurances by the defendant and the exercise of diligence by the plaintiff. We agree that these same factors apply in the criminal context.

¶ 11 We have previously touched on application of equitable tolling in the criminal context. Carlstad, 150 Wash.2d 583, 80 P.3d 587. In Carlstad, a petitioner gave a PRP to prison officials for mailing days before the one-year time limit was to expire. Due to delay in mailing, the PRP was not filed until after expiration of the statutory deadline. We declined to decide the issue of equitable tolling, the form of relief requested as an alternative to adoption of a mailbox rule. We did, however, recognize that equitable tolling was unavailable under the circumstances because the petitioner did not demonstrate that the prison officials acted in bad faith, deception, or false assurances. This reasoning is consistent with the narrowness of the equitable tolling exception.

¶ 12 The State argues that the Court of Appeals, by accepting Bonds's amended PRP after the filing deadline, undermined principles of finality and acted contrary to Benn, 134 Wash.2d 868, 952 P.2d 116. In Benn, the petitioner filed a timely PRP, then moved to supplement his petition with new issues nearly three years later. Noting that the appellate rules had no analog to CR 15(c) allowing an amendment to relate back to the date of the original pleading, and further noting that RAP 18.8(a) (authorizing waiver or alteration of court rules) does not apply to a statute of limitation like RCW 10.73.090, we held the newly raised theories were time-barred. Though Benn is factually analogous to the present case and supports our conclusion here, in Benn, petitioner did not assert application of equitable tolling.

¶ 13 However, in both Carlstad and Benn, we adhered rather strictly to the statute of limitation applicable to post-conviction collateral attack. And though we did not foreclose equitable tolling in Carlstad, we suggested a rule, synonymous to the rule in civil cases, which would make equitable tolling available only in instances where petitioner missed the filing deadline due to another's malfeasance. The Court of Appeals, however, has applied equitable tolling less sparingly. See Hoisington, 99 Wash.App. 423, 993 P.2d 296 (equitably tolling one-year time limit where court failed on three occasions to address petitioner's meritorious attack on his guilty plea); State v. Littlefair, 112 Wash.App. 749, 51 P.3d 116 (2002), review denied, 149 Wash.2d 1020, 72 P.3d 761 (2003) (applying equitable tolling in split decision, where, due to mistakes by petitioner's attorney, the court, and the immigration service, petitioner was unaware until after a one-year time limit that he would be deported if he pleaded guilty).

¶ 14 Here, Bonds contends that equitable tolling should apply because the court's inaction in reviewing his PRP to determine its merit left him in a situation where his counsel, once appointed, could not discover the public...