In re Pers. Restraint Petition Stockwell

• Decision Date: 23 January 2014
• Docket Number: No. 86001–7.,86001–7.
• Court: Washington Supreme Court
• Parties: In re Personal Restraint Petition of Daniel J. STOCKWELL, Petitioner.

179 Wash.2d 588

316 P.3d 1007

In re Personal Restraint Petition of Daniel J. STOCKWELL, Petitioner.

No. 86001–7.

Supreme Court of Washington, En Banc.

Jan. 23, 2014.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Seattle, WA, for Petitioner.

Kathleen Proctor, Pierce County Prosecuting Atty Office, Tacoma, WA, for Respondent.

Jeffrey Erwin Ellis, Portland, OR, Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

MADSEN, C.J.

¶ 1 Petitioner Daniel Stockwell seeks to withdraw his guilty plea to a 1986 charge of statutory rape in the first degree. Stockwell's plea statement and judgment and sentence misstated the statutory maximum sentence. We hold that in a personal restraint petition (PRP), a petitioner must show actual and substantial prejudice in a challenge to a guilty plea based on such a misstatement. Because Stockwell fails to make this showing, we affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 1985, Daniel Stockwell was convicted of indecent liberties and given a special sex offender sentencing alternative (SSOSA). During his required outpatient treatment, he admitted to having sexual contact with a minor. Subsequently, he was charged with one count of statutory rape in the first degree, which he pleaded guilty to on July 29, 1986. His plea form stated the prosecutor would recommend an exceptional sentence within SSOSA guidelines. However, the plea statement and judgment and sentence both misstated the maximum sentence as 20 years, with a $50,000 fine, when in fact the statutory maximum was life.

¶ 3 Stockwell received a SSOSA exceptional sentence downward, including 24 months of outpatient treatment and 12 months of community supervision. He completed the terms of his sentence and was discharged on October 25, 1989.

¶ 4 Meanwhile, the legislature enacted a one year time limit on collateral attacks of criminal convictions, which became effective on July 23, 1989. RCW 10.73.120. This time limit applies to all petitions filed more than one year after the effective date of the statute. RCW 10.73.130. The Department of Corrections (DOC) was directed to attempt to advise every person who, on the effective date, was “serving a term of incarceration, probation, parole, or community supervision pursuant to a conviction of a felony,” of the change. RCW 10.73.120. The director of the division of community corrections issued a memorandum dated December 5, 1989, directing community corrections and work release supervisors to post a DOC notice addressing the time limit change. Stockwell's community custody ended about six weeks before the memorandum was issued, and he claims he was not notified of the time limit.

¶ 5 In 2004, Stockwell was convicted of first degree child molestation and attempted first degree child molestation. The trial court imposed a persistent offender sentence of life without the possibility of early release, relying on the earlier convictions. Stockwell subsequently filed a PRP challenging the 1986 judgment and sentence. He first contended he was not time barred because his sentence was facially invalid and he did not receive notice from DOC. He also argued his guilty plea was involuntary because the plea statement incorrectly stated the maximum. The acting chief judge dismissed his petition as time barred.

¶ 6 Stockwell filed a motion for discretionary review in this court, which was stayed pending In re Personal Restraint of McKiearnan, 165 Wash.2d 777, 203 P.3d 375 (2009). After McKiearnan, the matter was referred to a department of the court, which granted review and remanded to the Court of Appeals for reconsideration in light of McKiearnan.

¶ 7 On remand, the Court of Appeals determined that Stockwell's petition was not time barred because DOC failed to provide notice of the time limit. In re Pers. Restraint of Stockwell, 161 Wash.App. 329, 334, 254 P.3d 899 (2011). Considering the merits, the court held that although Stockwell demonstrated a constitutional error based on misinformation of the statutory maximum, he failed to show resulting prejudice. Stockwell then filed a motion for discretionary review in this court. This motion was stayed pending In re Personal Restraint of Coats, 173 Wash.2d 123, 267 P.3d 324 (2011). Following Coats, the court granted review.

ANALYSIS

¶ 8 Before addressing Stockwell's substantive arguments, we must determine whether Stockwell's petition is time barred. “No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.” RCW 10.73.090. Facial invalidity can exist if a trial court lacked the statutory authority to impose a sentence. In re Pers. Restraint of Scott, 173 Wash.2d 911, 916, 271 P.3d 218 (2012); see also Coats, 173 Wash.2d at 144, 267 P.3d 324 (“[w]e have found only errors that result from a judge exceeding the judge's authority to render a judgment and sentence facially invalid.”).

¶ 9 Stockwell's petition was filed over two decades after his judgment became final. He also received an exceptional sentence downward, a legal sentence both under the erroneous maximum and the correct legal maximum. Thus, his sentence was facially valid and time barred.

¶ 10 Stockwell, however, argues RCW 10.73.090 should not bar his PRP because DOC did not attempt to give him notice of the time bar amendment. When the legislature amended chapter 10.73 RCW to include the time bar, it required DOC to “attempt to advise” everyone who, on July 23, 1989, was under community supervision pursuant to a felony conviction. RCW 10.73.120. While actual notice was not required, an attempt was necessary. See In re Pers. Restraint of Vega, 118 Wash.2d 449, 823 P.2d 1111 (1992) (time limit did not apply where no attempt was made to notify petitioner serving federal prison sentence).

¶ 11 Here, notices were not posted until after Stockwell was discharged. The State argues the act of posting notices alone is sufficient to meet the statutory requirements under In re Personal Restraint of Runyan, 121 Wash.2d 432, 453, 853 P.2d 424 (1993). In Runyan, this court held the time bar applied to a petitioner on parole who regularly reported to his parole officer, where notices were placed in community correction offices. Id. at 438, 451, 853 P.2d 424. There, the petitioner was unable to show that DOC did not attempt notice. Id. at 453, 853 P.2d 424. Unlike the petitioner in Runyan, Stockwell did not have a similar opportunity to potentially see the notices. Accordingly, the time bar does not apply to Stockwell's petition.¹

¶ 12 Turning to the merits of the petition, Stockwell contends that misinformation regarding the legal maximum sentence renders his plea involuntary, violating the due process clause of the United States and Washington Constitutions. In light of this error, he argues he need not show actual and substantial prejudice because an involuntary plea creates a presumption of prejudice in a direct appeal and that same standard also applies in a PRP.

¶ 13 Where we have addressed the standards in a direct appeal, we have stated that “[d]ue process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily.” State v. Ross, 129 Wash.2d 279, 284, 916 P.2d 405 (1996) (citing State v. Barton, 93 Wash.2d 301, 304, 609 P.2d 1353 (1980)). A guilty plea may be considered involuntary when it is based on misinformation regarding a direct consequence of the plea, which includes the statutory maximum. State v. Mendoza, 157 Wash.2d 582, 591, 141 P.3d 49 (2006) (“a guilty plea may be deemed involuntary when based on misinformation regarding a direct consequence on the plea”); State v. Weyrich, 163 Wash.2d 554, 557, 182 P.3d 965 (2008) (“A defendant must be informed of the statutory maximum for a charged crime, as this is a direct consequence of his guilty plea.”). An involuntary plea constitutes a manifest injustice. State v. Walsh, 143 Wash.2d 1, 6, 17 P.3d 591 (2001). Under CrR 4.2(f), a court must allow a defendant to withdraw a guilty plea where withdrawal is necessary to correct a manifest injustice. However, if the motion for withdrawal is made after the judgment, it is governed by CrR 7.8(b), which states that a court “may relieve a party from a final judgment” for several reasons including mistake, newly discovered evidence, fraud, a void judgment, or any other reason justifying relief.

¶ 14 We have acknowledged that a petitioner may seek to withdraw a plea on direct appeal where the defendant has been misinformed of the maximum sentence. See, e.g., Mendoza, 157 Wash.2d at 592, 141 P.3d 49;Weyrich, 163 Wash.2d at 556, 182 P.3d 965;Walsh, 143 Wash.2d at 10, 17 P.3d 591. For example, in Mendoza, a miscalculated offender score resulted in a lower range than indicated in the plea agreement. Id. at 584–85, 141 P.3d 49. During sentencing proceedings, the State explained the error and requested a lower sentence within the correct range. Id. Mendoza moved to withdraw his plea on grounds unrelated to the erroneous score. Id. at 585, 141 P.3d 49. The sentencing court rejected Mendoza's motion. Id. On review, this court stated that “[a]bsent a showing that the defendant was correctly informed of all of the direct consequences of his guilty plea, the defendant may move to withdraw the plea.” Id. at 591, 141 P.3d 49. However, Mendoza waived his right to challenge the plea as involuntary because he did not object to sentencing or move to withdraw his plea when he learned of the mistake in the offender score before sentencing, and he received a lower sentence than statutorily authorized by his correct score. Id.

¶ 15 Similarly, in Weyrich, a plea statement and judgment and sentence mistakenly described one of the charges as having a maximum sentence of five...