In re Personal Restraint Petition of Dalluge

• Decision Date: 04 November 2004
• Docket Number: No. 73608-1.,73608-1.
• Citation: 152 Wash.2d 772,100 P.3d 279
• Parties: In the Matter of the PERSONAL RESTRAINT PETITION OF Amel W. DALLUGE, Petitioner.
• Court: Washington Supreme Court

100 P.3d 279

152 Wash.2d 772

In the Matter of the PERSONAL RESTRAINT PETITION OF Amel W. DALLUGE, Petitioner.

No. 73608-1.

Supreme Court of Washington, En Banc.

Argued January 13, 2004.

Decided November 4, 2004.

David Zuckerman, Seattle, for Petitioner.

John Knodell, Grant County Prosecutor, Teresa Chen, Deputy, Carolyn Jones Fair, Ephrata, for Respondent.

BRIDGE, J.

At the age of 17, Amel Dalluge was tried and convicted as an adult of two counts of rape in the third degree, and these convictions were upheld on appeal.In a personal restraint petition, Dalluge now contends that either his convictions should be reversed because he was improperly tried as an adult, or his case should be remanded to superior court for a hearing on whether the juvenile court should have retained jurisdiction.Dalluge also asserts that both his trial and appellate counsel were ineffective for failing to object to improper adult criminal court jurisdiction at trial and on appeal.

By the terms of our grant of review, the only issues before this court relate to the absence of a juvenile court decline hearing.However, the Court of Appeals chief judge disposed of the petition on its merits and consequently declined to address the procedural validity of the petition.Thus, we must also determine, as an initial matter, whether the petition is procedurally barred.

We conclude that the petition is not procedurally barred, the adult criminal court lacked jurisdiction, and Dalluge suffered from ineffective assistance of appellate counsel because on direct appeal his attorney failed to challenge the adult criminal court's lack of jurisdiction.We grant the petition and remand to the superior court for a hearing on whether the juvenile court would have retained jurisdiction in this case pursuant to Dillenburg v. Maxwell,70 Wash.2d 331, 413 P.2d 940, 422 P.2d 783(1966).

IFacts and Procedural History

On August 21, 1997, Amel Dalluge and two other high school boys gave 15-year-old H.B. a ride home from an unsupervised teenage party.When the group left the party, H.B. was so intoxicated that she could not stand, and she had to be carried to the car.Instead of taking H.B. directly home, the boys drove her to a remote location.The boys pulled her out of the car and eventually placed her on her back on the gravel road.Even though H.B. did not move or respond, the boys took turns having sex with H.B. Dalluge held H.B.'s leg so that another boy could position himself on top of her and later had sex with H.B. himself.Afterward, the boys picked H.B. up off the ground, helped her into the car, and dropped her off near her home.

On September 18, 1997, the State charged 17-year-old Dalluge with rape in the first degree by means of forcible compulsion and kidnapping.Because Dalluge was over 16 and the charged crime was a serious violent offense, the adult criminal court automatically had exclusive original jurisdiction.RCW 13.04.030(1)(e)(v)(A).The State later amended the information, reducing the charges to include one charge of rape in the third degree by complicity (because Dalluge had helped one of the other boys to rape H.B.) and a second charge of rape in the second degree, or in the alternative, rape in the third degree.Although these charges no longer resulted in automatic adult criminal court jurisdiction, neither attorney requested a remand to the juvenile court, and the trial judge did not remand on his own motion.

On March 30, 1998, Dalluge was convicted by a jury in adult criminal court of one count of third degree rape as principal and one count of third degree rape by complicity.Dalluge was sentenced to 14 months on each count to be served concurrently, followed by 36 months in community custody.Dalluge appealed his conviction and the State appealed the sentence.The Court of Appeals affirmed the conviction but remanded for resentencing.State v. Dalluge,No. 17541-3-III, 98 Wash.App. 1016, 1999 WL 1079190, at *6(Wash.Ct.App.Nov.23, 1999).Upon resentencing, Dalluge received 25 months on each count to be served concurrently, followed by 36 months in community custody.A mandate was issued on March 9, 2000.Dalluge appealed the amended sentence but the Court of Appeals affirmed.State v. Dalluge,No. 20054-0-III, 111 Wash.App. 1014, 2002 WL 596816, at *2(Wash.Ct.App.Apr.18, 2002).A second mandate was issued on May 20, 2002.

On September 27, 2002, Dalluge filed a personal restraint petition at the Court of Appeals, which included an argument that the adult criminal court had no jurisdiction over Dalluge and he had been denied his right to a decline hearing in juvenile court.The chief judge of the Court of Appeals, Division Three, dismissed the petition on the merits, stating that although the failure to remand for a decline hearing was error, because Dalluge raised the decline hearing issue for the first time on collateral review, in order to prevail he must demonstrate actual and substantial prejudice by showing that the juvenile court would have retained jurisdiction over him.The chief judge determined that Dalluge failed to prove actual and substantial prejudice.Because the petition was dismissed on the merits, the chief judge did not consider the timeliness of Dalluge's petition.

Dalluge filed a motion for discretionary review in this court, arguing again that his convictions should be reversed because he was improperly tried as an adult.This court granted review "only as to the issues regarding the absence of a juvenile court decline hearing, including whether trial or appellate counsel was ineffective."Order (Sept. 30, 2003).

II

Generally, upon collateral review, a petitioner may raise a new error of constitutional magnitude or a nonconstitutional error which constitutes a fundamental defect that inherently results in a miscarriage of justice.In re Pers. Restraint of Lord,123 Wash.2d 296, 303, 868 P.2d 835(1994).Where constitutional error or fundamental defect is alleged, the petitioner must show that he or she was actually and substantially prejudiced by the error.Id.If a petitioner raises ineffective assistance of appellate counsel on collateral review, he or she must first show that the legal issue that appellate counsel failed to raise had merit.In re Pers. Restraint of Maxfield,133 Wash.2d 332, 344, 945 P.2d 196(1997).Second, the petitioner must show that he or she was actually prejudiced by appellate counsel's failure to raise the issue.Id.

This court must first address whether Dalluge's petition is procedurally barred.RCW 10.73.090.If the petition is not time barred then we must also determine the proper remedy for the trial court's failure to remand to juvenile court once the adult court lost automatic jurisdiction.Closely related to the question of the proper remedy for any trial court error, we must determine whether Dalluge's appellate counsel was ineffective when he failed to raise the adult court's lack of jurisdiction on direct appeal.

Procedural Bar

This court limited review to "the issues regarding the absence of a juvenile court decline hearing, including whether trial or appellate counsel was ineffective."Order (Sept. 30, 2003).However, the Court of Appeals chief judge declined to address the timeliness of the petition and disposed of the petition on its merits.The State continues to argue that Dalluge's petition is time barred because he filed his personal restraint petition more than one year after the mandate was issued terminating the appeal from his conviction.¹

RCW 10.73.090 provides that "[n]o 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."RCW 10.73.090(1).However, the RCW 10.73.090 time bar applies only if the judgment and sentence "[were] rendered by a court of competent jurisdiction."RCW 10.73.090(1).Dalluge contends that because the juvenile court had exclusive jurisdiction over his proceedings, the adult criminal court lacked competent jurisdiction in his case.The State seems to argue, for the first time at oral argument, that the adult criminal court did have jurisdiction in this case based on Dalluge's failure to object at trial to adult criminal court jurisdiction or request a remand to juvenile court after the information was amended.²

In State v. Werner,129 Wash.2d 485, 487918 P.2d 916(1996), this court specifically clarified the nature of juvenile court jurisdiction.Significantly, the juvenile court is a division of the superior court; it is not a separate court.Id. at 492, 918 P.2d 916.The Werner court recognized that there are "`three jurisdictional elements in every valid judgment, namely, jurisdiction of the subject matter, jurisdiction of the person, and the power or authority to render the particular judgment.'"Id. at 493, 918 P.2d 916(quotingIn re Marriage of Little,96 Wash.2d 183, 197, 634 P.2d 498(1981)).The superior court has jurisdiction over the subject matter of juvenile offenses under article IV, section 6 of the Washington ConstitutionandRCW 2.08.010.Superior courts also have personal jurisdiction over juveniles who commit crimes in Washington.RCW 9A.04.030;State v. Golden,112 Wash.App. 68, 74, 47 P.3d 587(2002).

However, by statute, only the juvenile division of the superior court has the power to hear and determine certain juvenile matters.RCW 13.04.030(1) provides that juvenile divisions of the superior courts in Washington have "exclusive original jurisdiction over all proceedings ... (e)[r]elating to juveniles alleged or found to have committed offenses, traffic or civil infractions, or [enumerated] violations,"(emphasis added)unless one of the exceptions in RCW 13.04.030(1)(e) applies.Black's Law Dictionary defines "exclusive jurisdiction" as "[a]court's power to adjudicate an action or class of actions to the exclusion of all other courts."BLACK'S LAW DICTIONARY 856 (7th...