In re Pers. Restraint Petition of Daniel Stockwell

• Decision Date: 19 April 2011
• Docket Number: No. 37230–4–II.,37230–4–II.
• Citation: 254 P.3d 899,161 Wash.App. 329
• Parties: In re Personal Restraint Petition of Daniel STOCKWELL, Petitioner.
• Court: Washington Court of Appeals

161 Wash.App. 329

254 P.3d 899

In re Personal Restraint Petition of Daniel STOCKWELL, Petitioner.

No. 37230–4–II.

Court of Appeals of Washington, Division 2.

April 19, 2011.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Seattle, WA, for Petitioner.Kathleen Proctor, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.ARMSTRONG, P.J.

[161 Wash.App. 331] ¶ 1 Daniel Stockwell seeks to withdraw his guilty plea to a 1986 first degree statutory rape conviction, arguing (1) his judgment and sentence is facially invalid because it contains the wrong maximum term, (2) his personal restraint petition (PRP) is not time barred because the Department of Corrections (DOC) did not inform him of the one year limitation, and (3) he should be allowed to withdraw his guilty plea because he was not informed of the true maximum sentence. Because Stockwell has not shown that he was actually prejudiced by the misstated maximum sentence, we dismiss his petition.

FACTS

¶ 2 In 1985, Stockwell was convicted of indecent liberties, given a Special Sex Offender Sentencing Alternative (SSOSA), and required to participate in outpatient treatment. During treatment, Stockwell admitted to having sexual contact with a minor. In response, the State charged Stockwell with first degree statutory rape. In 1986, Stockwell pleaded guilty. Because Stockwell had voluntarily revealed his offense and was doing well in treatment, the State and trial court agreed to give him another SSOSA. Stockwell's guilty plea form stated that the maximum sentence was “twenty (20) years” when the actual maximum was life. Personal Restraint Petition (PRP), Ex. 2 at 1. His judgment and sentence also identified the maximum term as “20 years.” PRP, Ex. 3 at 2. Stockwell did not appeal the conviction or sentence from his 1986 guilty plea.

¶ 3 Stockwell served his sentence and was discharged from confinement and DOC supervision in October 1989. While Stockwell was on supervision, the legislature enacted a time-bar statute limiting collateral petitions, with a few exceptions, to those filed within one year of the judgment and sentence. RCW 10.73.090. The legislature required the DOC to attempt to notify persons subject to DOC supervision of the time-bar statute. RCW 10.73.120.

¶ 4 In 2004, Stockwell was convicted of first degree child molestation and first degree attempted child molestation. The trial court found that he was a persistent offender, counting the 1986 guilty plea conviction, and sentenced him to life without the possibility of parole.

¶ 5 In 2007, Stockwell filed this PRP, arguing his guilty plea was invalid and the one-year time bar of RCW 10.73.090(1) did not apply because (1) the DOC did not make a good faith effort to notify him of the time bar and (2) his judgment and sentence is facially invalid because it contains the wrong maximum penalty. We dismissed the PRP as untimely. The Supreme Court accepted review and remanded the case back to us to reconsider in light of In re Personal Restraint of McKiearnan, 165 Wash.2d 777, 203 P.3d 375 (2009).¹

[254 P.3d 901 , 161 Wash.App. 333]

ANALYSIS

I. Time–Bar Statute Notice Requirement

¶ 6 On July 23, 1989, three years after Stockwell's judgment and sentence were final,² the legislature amended chapter 10.73 RCW to provide: “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(1); Laws of 1989, ch. 395 § 1. The legislature also required the DOC to notify persons subject to the new limitation:

As soon as practicable after July 23, 1989, the department of corrections shall attempt to advise the following persons of the time limit specified in RCW 10.73.090 and 10.73.100: Every person who, on July 23, 1989, is serving a term of incarceration, probation, parole, or community supervision pursuant to conviction of a felony.RCW 10.73.120. Thus, the time bar applies to Stockwell only if the DOC can show that it attempted to notify him of it. See RCW 10.73.120; In re Pers. Restraint of Runyan, 121 Wash.2d 432, 451, 853 P.2d 424 (1993); In re Pers. Restraint of Vega, 118 Wash.2d 449, 451, 823 P.2d 1111 (1992).

¶ 7 The State argues that Stockwell received notice because the DOC posted notice of the new statute at all community corrections offices and work release centers. Such notice satisfies the DOC's statutory duty to give notice to those persons still under DOC supervision. Runyan, 121 Wash.2d at 437–38, 853 P.2d 424. In Runyan, our Supreme Court rejected the petitioners' argument that they never received actual notice of the time-bar statute, reasoning that RCW 10.73.120 does not require actual notice, only “[a] good faith effort to advise.” Runyan, 121 Wash.2d at 452, 853 P.2d 424. The court concluded that posting notices was a good faith attempt to provide notice. Runyan, 121 Wash.2d at 436, 853 P.2d 424.

¶ 8 But Stockwell was discharged from DOC supervision in October 1989, and the DOC posted notice in December 1989. Although Stockwell was still under DOC supervision in July 1989, and was, therefore, a person to whom the DOC had to give notice, he was not under supervision in December 1989 when the DOC posted the notice. Because the DOC could have had no reasonable expectation that the postings would reach inmates released from its supervision, the postings were not a good faith effort to notify Stockwell of the new time limit on PRPs. The DOC has offered no evidence that it made any other effort to notify discharged inmates of the new statutory time bar. Where the DOC has made no effort to notify a particular individual, the time bar does not apply. ³ Vega, 118 Wash.2d at 451, 823 P.2d 1111. Accordingly, we address the merits of Stockwell's petition.

II. Guilty Plea

¶ 9 Stockwell contends that he is entitled to withdraw his guilty plea because he was misinformed about the statutory maximum term. Although Stockwell's argument would succeed on direct appeal, he cannot meet the heightened PRP standard of establishing actual prejudice.

¶ 10 A PRP is not a substitute for an appeal. In re Pers. Restraint of Hagler, 97 Wash.2d 818, 823–24, 650 P.2d 1103 (1982). A personal restraint petitioner must prove either a constitutional error that caused actual prejudice or a nonconstitutional error that caused a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990). If a petitioner claims a constitutional error but fails to make a prima facie showing of actual prejudice, we must dismiss the petition. In re Pers. Restraint of Hews, 99 Wash.2d 80, 88, 660 P.2d 263 (1983).

¶ 11 A defendant must be informed of the statutory maximum sentence for a charged crime because it is a direct consequence of his guilty plea. State v. Weyrich, 163 Wash.2d 554, 557, 182 P.3d 965 (2008). In Weyrich, the defendant was misinformed that the statutory maximum for the charged crimes was 5 years, rather than 10 years. Weyrich, 163 Wash.2d at 556, 182 P.3d 965. Because the misinformation concerned a direct consequence of his guilty plea, the plea was not voluntary and the defendant was entitled to withdraw it. Weyrich, 163 Wash.2d at 557, 182 P.3d 965. Here, Stockwell was misinformed that the statutory maximum sentence for the charged crime was 20 years, rather than life. This misinformation concerned a direct consequence of his guilty plea. Weyrich, 163 Wash.2d at 557, 182 P.3d 965. Thus, Stockwell has shown a constitutional error.

¶ 12 But Stockwell fails to explain how he was actually prejudiced by the error. Instead of demonstrating actual prejudice, Stockwell argues that we must presume prejudice, relying on Weyrich, State v. Mendoza, 157 Wash.2d 582, 141 P.3d 49 (2006), and In re Personal Restraint of Isadore, 151 Wash.2d 294, 88 P.3d 390 (2004). Stockwell correctly contends that Weyrich and Mendoza held that a defendant seeking to withdraw a guilty plea need not establish a causal link between the misinformation and his decision to plead guilty; nor did either case discuss actual prejudice to the defendant. See Weyrich, 163 Wash.2d at 557, 182 P.3d 965; Mendoza, 157 Wash.2d at 590–91, 141 P.3d 49. But both Weyrich and Mendoza were direct appeals, not PRPs.

¶ 13 Isadore was a PRP, but it is distinguishable. In Isadore, the State attempted to add a community custody term to Isadore's sentence after the time for a direct appeal had passed. Isadore, 151 Wash.2d at 299–300, 88 P.3d 390. Because Isadore did not have an opportunity to challenge that decision on direct appeal, the court did not apply the heightened PRP standards: “Instead, the petitioner need show only that he is restrained ... and that the restraint is unlawful.” Isadore, 151 Wash.2d at 299, 88 P.3d 390. Consistent with this standard of review, the court ultimately concluded that Isadore's plea was involuntary because he was misinformed about community custody, a direct consequence of the plea. Isadore, 151 Wash.2d at 302, 88 P.3d 390. Because his plea was involuntary, his restraint was unlawful and the court granted his petition. Isadore, 151 Wash.2d at 302, 88 P.3d 390.

¶ 14 Although its holding is consistent with direct appeal standards, the Isadore court also stated, in dicta, that “even if Isadore were required to meet the standard personal restraint petition requirements, he has done so in this petition.” Isadore, 151 Wash.2d at 300, 88 P.3d 390. The court then analyzed whether a defendant seeking to withdraw a guilty plea due to misinformation about direct consequences must show that the misinformation was material to his decision to plead guilty. Isadore, 151 Wash.2d at 300–02, 88 P.3d 390. The court's analysis was based on direct appeal cases— State v. Acevedo, 137 Wash.2d 179, 970 P.2d 299 (1999), State v. Ross, 129 Wash.2d 279, 916 P.2d 405 (1996), and State v. Walsh, 143 Wash.2d 1,...