IN RE CARLSTAD, No. 49080-0-I.

• Court: Court of Appeals of Washington
• Writing for the Court: KENNEDY, J.
• Citation: 58 P.3d 301,114 Wash.App. 447
• Parties: In re Personal Restraint Petition of Monti J. CARLSTAD, Petitioner.
• Docket Number: No. 49080-0-I.
• Decision Date: 25 November 2002

58 P.3d 301
114 Wash.App. 447

In re Personal Restraint Petition of Monti J. CARLSTAD, Petitioner

No. 49080-0-I.

Court of Appeals of Washington, Division 1.

November 25, 2002.

As Amended December 6, 2002.

58 P.3d 302

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant

Daniel Jason Clark, King County Prosecuting Attorney, Seattle, WA, for Respondent.

KENNEDY, J.

Monti Carlstad, who is incarcerated at a state prison near Spokane, handed his personal restraint petition to prison officials for mailing five days before the expiration of the one-year deadline. However, the petition was not filed at this court until one day after the deadline. Carlstad argues that his petition was timely filed according to the federal mailbox rule, which deems pro se incarcerated defendants' pleadings as "filed" when they are properly deposited into the prison mailing system. See Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). We hold that application of the federal mailbox rule to Carlstad's cases is foreclosed by RAP 16.17 and RAP 18.6(c), which specify that "filing" of a personal restraint petition occurs when it is received by the appellate court. Because Carlstad's petition was not timely filed, we cannot reach the merits of his claim that he is being unlawfully restrained.

FACTS

On March 28, 1998, police officers arrested Carlstad after he was caught inside an air vent above a Coldwell Banker office in North Bend. Carlstad was wearing gloves and carrying a bag of burglary tools. On June 4, 1999, the State filed an information against Carlstad alleging one count of burglary in the second degree. In the meantime, Bellevue police were investigating a series of burglaries in that area involving the same modus operandi. On November 1, 1999, the State filed a second information against Carlstad alleging two counts of burglary in the second degree. On January 20, 2000, the State added an additional eight counts of burglary in the second degree to the second information based on newly discovered evidence.

On January 20, 2000, Carlstad pleaded guilty to all counts charged in both informations. Under the terms of a plea agreement, the parties agreed that Carlstad's offender score was 30 and that his standard range for each count was 51 to 68 months. The plea agreement also stated that there was a substantial and compelling basis to impose an exceptional sentence pursuant to RCW 9.94A.390(2)(I). The State agreed to recommend no more than 15 years of confinement, and Carlstad agreed to request no less than 13 years. The parties further agreed that if Carlstad were able to provide information that would lead the police reasonably to conclude that he was responsible for an additional 48 unsolved burglaries, the State would not file additional charges stemming from those incidents.

On April 14, 2000, Carlstad moved to withdraw his guilty pleas. Carlstad argued that the pleas were not entered into knowingly, voluntarily and intelligently because he was under the mistaken impression that he could appeal an exceptional sentence if the court decided to impose it. The court asked defense counsel if his argument would be rendered moot if the court imposed a standard range sentence. Defense counsel argued that it would not. The State argued that Carlstad had not in fact waived his right to appeal an exceptional sentence, even though

58 P.3d 303

such an appeal would likely prove unsuccessful given the terms of his plea bargain. The trial court denied Carlstad's motion to withdraw his pleas, finding that he was fully informed and entered into the plea agreement knowingly and voluntarily

On the same day, the same court sentenced Carlstad. As per the plea agreement, the State recommended an exceptional sentence of 15 years, and Carlstad asked for a 13-year sentence. The court imposed 68 months for the single charge contained in the first information, and 68 months for each of the ten counts contained in the second information, those sentences to run concurrently with each other but consecutively to the charge contained in the first information. In all, the court sentenced Carlstad to 136 months of confinement, or 11.3 years. The State objected to the court's decision not to impose an exceptional sentence. However, the State advised the trial court that it did have the authority to impose the sentences consecutively or concurrently because they were "separate criminal conduct," and defense counsel agreed. The judgment and sentence was filed on April 17, 2000. Carlstad did not appeal the trial court's denial of his motion to withdraw his guilty plea; neither did he appeal his convictions and sentence.

The parties agree that the one-year statutory deadline for filing the personal restraint petition was April 17, 2001. See RCW 10.73.090(1). Acting pro se, Carlstad mailed a personal restraint petition to this court, challenging the trial court's imposition of consecutive sentences. Prison records show that Carlstad handed his personal restraint petition to prison authorities for mailing on Thursday, April 12, 2001, at 5:36 p.m. But the petition did not arrive at this court for filing until Wednesday, April 18, 2001 — one day after expiration of the statutory deadline.

DISCUSSION

In Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) the pro se petitioner deposited a notice of appeal with prison authorities for mailing, and it arrived at the court one day after the 30-day deadline for filing appeals. Id. at 268, 108 S.Ct. 2379. The United States Supreme Court adopted the "federal mailbox rule" and held that pro se prisoners' notices of appeal to the federal courts are "filed" at the moment of delivery to prison authorities by the prisoner. The Houston Court noted that the federal rule for filing appeals did not define "filing;" neither did it designate where or with whom to file the appeal.¹ Id. at 272, 108 S.Ct. 2379. The Court reasoned that the prison mailbox rule is fair because:

Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice.... And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier) ... knowing that if the mail goes awry they can personally deliver notice at the last moment ... Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.

Id. at 271, 108 S.Ct. 2379.

Federal courts have since extended the federal mailbox rule to the one-year filing deadline for pro se federal habeas petitions, as well as to numerous other situations involving pro se prisoners. See Burns v. Morton, 134 F.3d 109, 112-13 (3d Cir.1998) (summarizing federal cases). "The lesson of these cases is that whenever the rule or statute does not explicitly preclude it, the Houston rule is applied." State v. Hurt, 107 Wash. App. 816, 824, 27 P.3d 1276 (2001), citing Nigro v. Sullivan, 40 F.3d 990, 994 (9th Cir.1994).

Because Houston interpreted a federal rule, not the Constitution, it is not binding on state courts. However, many states considering the issue have adopted a prison

58 P.3d 304

mailbox rule for various pro se filings.² These courts generally find the reasoning of Houston persuasive and apply it in the absence of any countervailing statute or court rule. Those states that have declined to adopt the mailbox rule³ generally have done so on the grounds that a statute or rule governing filing deadlines explicitly precludes it. In addition, some courts do not accept the reasoning of Houston or do not feel compelled to apply it in state cases, on policy grounds or because state prisons, unlike federal prisons, may not have a detailed mail record-keeping system

Division Three of this court recently adopted the federal mailbox rule for incarcerated pro se petitioners filing CrR 7.8 motions for relief from judgment. See State v. Hurt, 107 Wash.App. 816, 27 P.3d 1276. In Hurt, the incarcerated defendant, acting pro se, mailed a motion to withdraw his guilty plea four days before the one-year deadline for collateral challenge. However, the trial court did not receive and file the...