In re Personal Restraint Petition of Carter, No. 37048-4-II (Wash. App. 3/9/2010)
| Decision Date | 09 March 2010 |
| Docket Number | No. 37048-4-II.,37048-4-II. |
| Court | Washington Court of Appeals |
| Parties | In re Personal Restraint Petition of: ERNEST CARTER, Petitioner. |
Appeal from Pierce County Superior Court. Docket No: 97-1-04547-1. Judgment or order under review. Date filed: 09/23/1998. Judge signing: Honorable Thomas J Felnagle.
Counsel for Petitioner(s), Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, 705 2nd Ave Ste 401, Seattle, WA, 98104-1718.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Pros Attorney, 955 Tacoma Ave S. Ste 301, Tacoma, WA, 98402-2160.
Ernest Carter1 contends in this personal restraint petition that his rights to due process and a fair trial were violated during his 1998 trial on two counts of first degree robbery when he appeared in shackles visible to at least one juror. He also contends that his persistent offender sentence is unlawful because his California assault conviction is not comparable to a Washington "strike" offense. We agree that Carter's California assault is not a strike offense, therefore, we vacate Carter's persistent offender sentence and remand for resentencing. We reject the shackling challenge as untimely.
When tried in Pierce County for first degree robbery in 1998, Carter had prior convictions in California and Oregon for assault with a firearm on a peace officer and attempted murder. Consequently, he was eligible for life imprisonment without the possibility of parole under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.120 (1994), if found guilty of one or both robbery counts. On the first day of trial, the State noted for the record that Carter had chosen to wear shackles instead of a stun belt and that the parties had located a garbage can so that the jury could not see his restraints. Two days later, defense counsel asked to be heard during a recess. He informed the court that when his client was being taken out of the courtroom, a juror saw him shackled. The defense moved for a mistrial. A police officer explained that it was jail policy to apply leg restraints or a stun belt in three strikes cases. After confirming that the policy was legitimate because of the potential for escape, the trial court questioned the juror implicated.
The juror admitted to seeing Carter under escort but not in restraints, and he added that he had not discussed the matter with any other jurors. The juror volunteered, however, that he had seen Carter's leg restraints on the first day of voir dire. He denied saying anything about the restraints to his fellow jurors but added that the restraints Report of Proceedings (RP) at 355.
After the court excused the juror, the defense renewed its motion for a mistrial, contending that if one juror saw the shackles, others might have seen them, and adding that Carter had a constitutional right not to be seen in shackles. The court denied the motion. The jury convicted Carter on both counts. The trial court concluded that Carter's California assault and Oregon attempted murder convictions were comparable to most serious offenses in Washington and sentenced him to life in prison.
Carter appealed, and two of the issues he raised concerned his shackling and the comparability of his California conviction. In an unpublished opinion, this court held that Carter had not shown prejudice as a result of his shackling because a defendant is not prejudiced by his mere appearance in restraints during jury selection. State v. Carter, 100 Wn. App. 1028, 2000 WL 420660, at *5. Consequently, the trial court did not abuse its discretion in denying Carter's motion for a mistrial. This court also rejected Carter's contention that his California assault conviction was comparable to third degree assault of a police officer in Washington and thus not a most serious offense. Carter, at *12-13.
Carter petitioned the Washington Supreme Court for review, arguing that his California assault conviction was not comparable to Washington's assault statute because the California statute did not require the specific intent the Washington statute required. Our Supreme Court denied his petition for review, and we issued our mandate on October 18, 2000. When Carter filed a habeas petition raising the comparability issue, a federal district court dismissed it as procedurally barred on March 29, 2002.
Carter filed this personal restraint petition on October 3, 2007. He again seeks relief on the shackling and comparability issues.
Personal restraint procedure has its origins in the state's habeas corpus remedy. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 823, 650 P.2d 1103 (1982). Fundamental to the nature of habeas corpus relief is the principle that the writ will not serve as a substitute for appeal. Hagler, 97 Wn.2d at 823. A personal restraint petition, like a petition for a writ of habeas corpus, is not a substitute for an appeal. Hagler, 97 Wn.2d at 824. On collateral review, the burden is on the petitioner to establish either constitutional error that caused actual and substantial prejudice to his case or nonconstitutional error resulting in a complete miscarriage of justice. In re Pers Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990).
Personal restraint petitions generally are prohibited if not filed within one year after the judgment and sentence becomes final. RCW 10.73.090(1). The petitioner bears the burden of proving that an exception to the RCW 10.73.090 statute of limitation applies. State v. Schwab, 141 Wn. App. 85, 90, 167 P.3d 1225 (2007), review denied, 164 Wn.2d 1009, 195 P.3d 86 (2008), cert. denied, 129 S. Ct. 1348, 173 L. Ed. 2d 614, 77 USLW 3469 (2009).
Carter filed his petition almost seven years after his judgment and sentence became final. See RCW 10.73.090(3)(b) (). He claims, however, that his petition is exempt from the time limit because he did not receive notice of the one-year statute of limitation from the trial court. See RCW 10.73.110 (). When a statute requires notice, the failure to comply creates an exemption to the time bar. In re Pers. Restraint of Vega, 118 Wn.2d 449, 451, 823 P.2d 1111 (1992).
After hearing oral argument, we remanded for a reference hearing on the notice issue. The superior court found that the sentencing court did not orally inform Carter of his collateral attack rights at any time during sentencing and that Carter did not receive a copy of the "Advice of Collateral Attack Time Limit" form filed in his case until 2007. Findings of Fact 3, 8, 11. The superior court also found, however, that Carter received a copy of his judgment and sentence at sentencing and from his habeas attorney in 2002. Carter argues that the finding stating that he received a copy of his judgment and sentence at sentencing lacks evidentiary support. He contends further that he did not read the page of his judgment and sentence containing the collateral attack information when he received it in 2002, and that even if he did, the language was insufficient to provide him proper notice.
We need not review the evidence supporting the challenged finding. Even if the superior court incorrectly found that Carter received a copy of his judgment and sentence at sentencing, Carter acknowledges receiving a copy in 2002. Carter's judgment and sentence states that "[p]ursuant to RCW 10.73.090 and RCW 10.73.100, the defendant's right to file any kind of post sentence challenge to the conviction or the sentence may be limited to one year." Petition, App. A, at 7. Carter claims that he did not read this information until 2007, but receipt of the judgment and sentence is sufficient to constitute notice. See In re Pers. Restraint of Runyan, 121 Wn.2d 432, 453 n.16, 853 P.2d 424 (1993) (); State v. Robinson, 104 Wn. App. 657, 661, 669-70, 17 P.3d 653 (2001) (). Insofar as Carter challenges the language in the judgment and sentence, we find it sufficient to convey the requisite notice. Robinson, 104 Wn. App. at 669-70; see also Payne v. Mount, 41 Wn. App. 627, 635, 705 P.2d 297 (1985) (). Having received notice of the one-year time limit in 2002, Carter's petition is untimely unless he can establish that an exception to that time limit applies.
Carter argues that a recent change in the law justifies this court's reconsideration of the shackling issue. See RCW 10.73.100(6) ().
A defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances. State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967 (1999). Generally, when a jury views a shackled defendant, that defendant's constitutional right to a fair and impartial trial is impaired. State v. Elmore,139 Wn.2d 250, 273, 985 P.2d 289 (1999). In rejecting Carter's appeal, however, we stated that when the jury's view of a defendant in shackles is brief or inadvertent, the defendant must make an affirmative showing of prejudice. Carter, at *5 (citing Elmore, 139 Wn.2d at 273). Because Carter failed to show any prejudice resulting from his...
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