IN THE MATTER OF THOMPSON

• Decision Date: 28 September 2000
• Docket Number: No. 67705-1.,67705-1.
• Citation: 141 Wash.2d 712,10 P.3d 380
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of: Elijah THOMPSON, Petitioner.

10 P.3d 380

141 Wash.2d 712

In the Matter of the Personal Restraint of: Elijah THOMPSON, Petitioner.

No. 67705-1.

Supreme Court of Washington, En Banc.

Argued March 20, 2000.

Decided September 28, 2000.

Elijah J. Thompson, Airway Heights, Sheryl G. McCloud, Seattle, for Petitioner.

Russell Hauge, Kitsap County Prosecutor, Randall Sutton, Deputy Kitsap County Prosecutor, Port Orchard, for Respondent.

GUY, C.J.

In a personal restraint petition (PRP) filed more than one year after judgment became final, Petitioner Elijah Thompson seeks relief from his sentence on the basis that his criminal conduct occurred before the effective date of the statute creating the offense.

Because we find Petitioner's judgment and sentence to be invalid on its face, his PRP is not barred from consideration by the one-year time limit of RCW 10.73.090. Petitioner's plea agreement does not constitute a waiver of his right to complain of violations of the ex post facto and due process clauses of the state and federal constitutions. Because he did not knowingly plead guilty to an invalid charge and because the sentence imposed pursuant to the agreement was not authorized by statute, we do not hold Thompson to his bargained-for plea agreement. Because Thompson did not knowingly set up an error and then complain about it on appeal, we do not apply the doctrine of invited error to his PRP. We do not reach the other issues raised by the parties.

Thompson is entitled to the relief he requests. We vacate his conviction and dismiss Count III of the information without prejudice to the State to refile the information. Such actions return the parties to the status quo ante, that is, to the position they were in before they entered into the agreement. The statute of limitation does not bar prosecution of Thompson under former RCW 9A.44.070 (1986), repealed by Laws of 1988, ch. 145, § 24, provided the amended information is timely refiled, and the State may charge him with having committed an offense related to the conduct he admitted to under Count III of the amended information. The State may also reinstate the charges for Counts I and II, which were dismissed pursuant to the plea bargain.

FACTS

On June 30, 1994 Petitioner pleaded guilty to one count (Count III) of first degree rape of a child. Answer to Pet. for Review (State's Answer), App. B, Statement of Def. on Plea of Guilty at 3; Am. Information at 2. As part of the plea agreement, the State dismissed two other counts (Counts I and II) of first degree rape of a child. State's Answer at 3; State's Answer, App. B, Am. Information at 1-2. The amended information, which had been incorporated by reference into the plea statement, stated the period in which the offense occurred as "1/1/85 through 12/31/86." Id. at 2. The statute creating the offense Petitioner was charged with was not enacted until 1988, nearly two years after the conduct occurred. RCW 9A.44.073; Laws of 1988, ch. 145, § 2. The trial court sentenced Thompson to 180 months confinement, well beyond the standard sentencing range for his offense. State's Answer, App. B, Judgment and Sentence at 2, 5. Petitioner appealed the length of his sentence, and on July 12, 1996, the Court of Appeals, Division Two, affirmed the trial court. Id., App. D. The Court of Appeals mandate was issued on November 19, 1996. Id., App. E. Petitioner filed his PRP on January 7, 199[9] (clerical error of "1998" on original), more than two years after the mandate. On February 1, 1999, the Court of Appeals dismissed his petition as time-barred. State's Answer, App. A. Thompson submitted a motion for discretionary review in this court on February 24, 1999. This court granted Petitioner's motion on November 2, 1999.

ISSUES

(1) Is Petitioner Thompson barred by RCW 10.73.090 from challenging his conviction

and sentence because he filed his PRP more than one year after the judgment became final?

(2) Does Petitioner's guilty plea constitute a waiver of his right to complain of any constitutional violations not inhering in the plea process itself?

(3) Where Petitioner has bargained for and received a benefit in exchange for his plea, must he be held to his bargain?

(4) Should this court apply the invited error doctrine to Petitioner?

(5) Is Petitioner entitled to relief from his sentence because he pleaded guilty to an offense which occurred before the effective date of the statute creating the offense?

(6) Does the statute of limitation bar the State from charging Petitioner with an offense under former RCW 9A.44.070?

DISCUSSION

We first consider whether Petitioner Thompson is barred by RCW 10.73.090 from challenging his conviction and sentence because he filed his PRP more than one year after the judgment became final. Noting that Thompson's judgment and sentence became final on November 19, 1996 and that his PRP was filed on January 7, 1999, the Court of Appeals found that the Petitioner failed to establish that any of the exceptions in RCW 10.73.100 to the time bar applied in his case. State's Answer, App. A. The court therefore dismissed his petition. The second of the six grounds listed in RCW 10.73.100 reads: "The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct[.]" RCW 10.73.100(2). Petitioner pleaded guilty on June 30, 1994 to the crime of first degree rape of a child as charged in the amended information. State's Answer, App. B, Statement of Def. on Plea of Guilty at 3. The amended information stated the period during which the offense occurred as "1/1/85 through 12/31/86." State's Answer, App. B, Am. Information at 2. The statute creating that offense was not enacted until 1988, nearly two years after the offense occurred. RCW 9A.44.073; Laws of 1988, ch. 145, § 2. Petitioner contends that application of this 1988 statute to conduct occurring before its enactment is unconstitutional under the Washington State and United States Constitutions whether viewed as a violation of the ex post facto clause or the due process clause. Supplemental Br. of Pet'r at 10. He argues that his petition is based upon the grounds in RCW 10.73.100(2) and that the one-year time limit should not be applied to his PRP.

Instead of determining whether Thompson's petition fits under the RCW 10.73.100(2) exception to the one-year limit, we instead discuss whether pursuant to RCW 10.73.090 the judgment and sentence was valid on its face. "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). "Constitutionally invalid on its face" means a conviction which without further elaboration evidences infirmities of a constitutional magnitude. State v. Ammons, 105 Wash.2d 175, 188, 713 P.2d 719, 718 P.2d 796 (1986). In rejecting a challenge to the constitutional validity of a prior conviction, this court in Ammons stated that a claim that jury instructions were unconstitutional cannot be determined facially because the trial court would have to go behind the verdict, sentence, and judgment to make such a determination. Id. at 189, 713 P.2d 719. The phrase "on its face" has been interpreted to mean those documents signed as part of a plea agreement. State v. Phillips, 94 Wash. App. 313, 317, 972 P.2d 932 (1999) (citing Ammons, 105 Wash.2d at 187-89,713 P.2d 719). A superior court sentence valid at the time it was entered became "invalid on its face" when the federal sentence it referred to was reversed and where there was no longer a previous sentence on which the state sentence could operate. State v. Klump, 80 Wash.App. 391, 396-97, 909 P.2d 317 (1996). Under such circumstances, the one-year time limit of RCW 10.73.090 does not apply. Id. at 397, 909 P.2d 317. An untimely PRP was not barred by RCW 10.73.090 where the statute of limitation had expired on one count or where the sentence imposed for other convictions was in excess of the duration allowed by statute; on each ground the judgment or sentence was invalid on its face. In re Personal Restraint of Stoudmire, 141 Wash.2d 342, 354-56, 5 P.3d 1240 (2000).

An examination of the documents signed as part of Petitioner's plea agreement shows that Thompson was charged with first degree rape of a child, which did not become a crime until nearly two years after the offense or offenses occurred. Thus, we find the judgment and sentence invalid on its face, and consideration of the merits of Thompson's PRP is not barred by the one-year time limit of RCW 10.73.090.

We now consider whether Petitioner is entitled to relief. In order to obtain collateral relief by means of a PRP, a person must establish that he or she is being unlawfully restrained due to "a `fundamental defect which inherently results in a complete miscarriage of justice.'" In re Personal Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) (quoting In re Personal Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990)). We find that the incarceration of Petitioner for an offense which was not criminal at the time he committed it is unlawful and a miscarriage of justice.

The State, however, argues that by pleading guilty, the Petitioner waived all claims preceding the plea, including constitutional violations not inhering in the plea process itself. State's Answer at 12. The case law cited by the State as authority for this proposition does not support such a sweeping claim. In a case out of this court, State v. Majors, 94 Wash.2d 354, 356-57, 616 P.2d 1237 (1980), petitioner waived specific enumerated rights, some of them constitutional, such as trial by jury and self-incrimination. Majors does not stand for the proposition that any and all rights preceding a plea are waived by it. Thompson's plea agreement does not waive his right to complain...