Piris v. Kitching, 71054–1–I.

CourtCourt of Appeals of Washington
Citation345 P.3d 13,186 Wash.App. 265
Decision Date09 March 2015
Docket NumberNo. 71054–1–I.,71054–1–I.
PartiesChristopher PIRIS, Appellant, v. Alfred KITCHING and Jane Doe Kitching, husband and wife and their marital community; Society of Counsel Representing Accused Persons (SCRAP); Eric Nielsen and Jane Doe Nielsen, husband and wife and their marital community; Nielsen, Broman & Koch P.L.L.C; and King County, Respondents.

186 Wash.App. 265
345 P.3d 13

Christopher PIRIS, Appellant
v.
Alfred KITCHING and Jane Doe Kitching, husband and wife and their marital community; Society of Counsel Representing Accused Persons (SCRAP); Eric Nielsen and Jane Doe Nielsen, husband and wife and their marital community; Nielsen, Broman & Koch P.L.L.C; and King County, Respondents.

No. 71054–1–I.

Court of Appeals of Washington, Division 1.

March 9, 2015.


345 P.3d 13

John Rothschild, Attorney at Law, Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Appellant.

345 P.3d 14

Christopher Holm Howard, Averil Budge Rothrock, Allison Kathleen Krashan, Schwabe Williamson & Wyatt PC, Rosemary Jane Moore, Jeffrey Paul Downer, Lee Smart PS Inc., David J. Hackett, King County Administration Building, Seattle, WA, for Respondents.

Opinion

LAU, J.

186 Wash.App. 267

¶ 1 Christopher Piris appeals the trial court's dismissal on summary judgment of his legal malpractice suit against his former attorneys and King County arising from his underlying criminal case. Piris contends the trial court erred when it determined that he failed to allege and prove his innocence of first degree rape of a child, a necessary requirement to maintain his legal malpractice lawsuit. We conclude that Piris's negligence allegations fall outside the narrow exception to the innocence requirement we recognized in Powell v. Associated Counsel for Accused, 125 Wash.App. 773, 106 P.3d 271 (2005) (Powell I ), and Powell v. Associated Counsel for Accused, 131 Wash.App. 810, 129 P.3d 831 (2006) (Powell II ). We affirm summary judgment dismissing as a matter of law Piris's legal malpractice claim.

FACTS

¶ 2 The material facts are not disputed. In 1997, the State charged Christopher Piris with three counts of first degree rape of a child based on crimes he committed when he was 13 years old. By the time he was charged with the offenses in Superior Court, Piris was 19 years old. Piris was represented at trial by attorney Alfred Kitching from the Society of Counsel Representing Accused Persons (SCRAP).1

¶ 3 On September 25, 1998, Piris pleaded guilty to two counts of first degree rape of a child. His statement of

186 Wash.App. 268

defendant on plea of guilty indicated a standard sentencing range for the crimes as 159 to 211 months of confinement.

¶ 4 At sentencing in May 1999, the trial court denied Piris's request for a 48–month exceptional sentence below the standard range. The court imposed a low-end sentence explaining:

THE COURT: ... Mr. Piris, I have considered these requests for exceptional sentence, and it's the conclusion of this court that there are not facts in this file that would support an exceptional sentence.
There are certainly—this file represents a tragedy undoubtedly in your life and a tragedy in the lives of many of your family. Be that as it may, I just do not feel there are facts in this file that will support an exceptional sentence down. What I am going to do, however, is I am going to sentence you at the bottom of the standard range which is—Mr. Rogers, I hope I'm correct on this—is 159 months.

¶ 5 Piris appealed the length of his sentence. Attorney Eric Nielsen, from Nielsen, Broman and Koch law firm was appointed to represent Piris on his appeal. Nielsen successfully argued on appeal that the standard range sentence of 159 to 211 months was erroneous because the trial court used the version of RCW 9.94A.360 in effect at the date of the sentencing hearing instead of the version in effect at the date the offenses were committed. This statute was amended in 1997, about two years before Piris was sentenced. Under the correct version of the statute, Piris's offender score calculation yielded an offender score of 6 rather than 7 and a standard range of 146 to 194 months rather than 159 to 211 months of confinement. Former RCW 9.94A.310 (1993).

¶ 6 In a February 14, 2000 per curiam opinion, we vacated Piris's sentence and remanded for resentencing based on the sentencing error. On the same day, the court clerk's office mailed a cover letter and a copy of the opinion to Nielsen and a prosecutor in the King County Prosecuting Attorney's Office. The cover letter was addressed to Eric

186 Wash.App. 269

Nielsen at Nielsen's then business address and to Gary Ernsdorff at the King County Prosecuting Attorney's Office. The same cover letter shows both the sentencing judge

345 P.3d 15

and Piris were copied in on the letter and opinion.2 Piris was never resentenced.

¶ 7 In 2010, Piris was released from prison after serving his original sentence. In May 2012, he was summoned to King County Superior Court for a probation violation. While reviewing Piris's file, a superior court judge discovered that Piris had never been resentenced.3 The judge imposed a low-end sentence of 146 months, with credit for all time previously served. The record is silent as to the resentencing court's rationale for the sentence imposed.

¶ 8 Piris sued Kitching, Kitching's employer (SCRAP), Nielsen, and the Nielsen Broman & Koch law firm, alleging malpractice.4 In a second amended complaint, Piris named King County as a defendant.

¶ 9 In September 2013, Nielsen moved to dismiss Piris's lawsuit on summary judgment, alleging that Piris “cannot prove, and does not assert, his actual innocence of the crimes of which he was convicted. Therefore, his claims of legal malpractice is barred under Washington law.” King County and Kitching joined in the motion.

¶ 10 The trial court granted the summary judgment in favor of all the defendants. In its written order, the court reasoned, “The basis for the dismissal is the ‘actual innocence’ requirement as set out in Ang v. Martin, 154 Wash.2d 477[, 114 P.3d 637] (2005).” The court also denied Piris's subsequent reconsideration motion. Piris appealed.5

186 Wash.App. 270

ANALYSIS

¶ 11 Piris maintains the trial court erred by applying the “actual innocence” requirement “in a case alleging malpractice at sentencing....” Appellant's Br. at 1. He argues, “A plaintiff in a legal malpractice action alleging sentencing errors only is not required to demonstrate ‘actual innocence.’ ” Appellant's Reply Br. at 1. Piris does not contend he is innocent of the crimes for which he was convicted. He relies mainly on the narrow exception to the innocence requirement we adopted in Powell I and Powell II .

¶ 12 This court reviews de novo a trial court's decision to dismiss a complaint on summary judgment. Powell, 125 Wash.App. at 775, 106 P.3d 271. The parties agree that this issue should be decided as a matter of law. Legal issues are reviewed de novo. State v. Williams, 96 Wash.2d 215, 220, 634 P.2d 868 (1981).

¶ 13 In criminal malpractice6 cases, proof of innocence is an indispensable element of a plaintiff's cause of action. In Falkner v. Foshaug, 108 Wash.App. 113, 29 P.3d 771 (2001), addressing an issue of first impression, we held that a plaintiff alleging legal malpractice occurring during representation in a criminal matter must establish postconviction relief and demonstrate his innocence by a preponderance of the evidence, in addition to the elements of a civil legal malpractice claim. The core dispute in this case involves the innocence element. Because Piris entered a knowing and voluntary guilty plea, he cannot allege his innocence in this civil malpractice action. Falkner, 108 Wash.App. at 120, 29 P.3d 771. The actual innocence requirement is one of two proximate cause requirements a malpractice plaintiff must

186 Wash.App. 271

establish. Ang v. Martin, 154 Wash.2d 477, 482, 114 P.3d 637 (2005). The other—postconviction relief—is not at issue here.

¶ 14 The innocence requirement is based on compelling public policy considerations.

345 P.3d 16
Requiring a defendant to prove by a preponderance of the evidence that he is innocent of the charges against him will prohibit criminals from benefiting from their own bad acts, maintain respect for our criminal justice system's procedural protections, remove the harmful chilling effect on the defense bar, prevent suits from criminals who “may be guilty, [but] ... could have gotten a better deal,” and prevent a flood of nuisance litigation. These considerations all support our conclusion that postconviction relief is a prerequisite to maintaining the suit and proof of innocence is an additional element a criminal defendant/malpractice plaintiff must prove to prevail at trial in his legal malpractice action.

Falkner, 108 Wash.App. at 123–24, 29 P.3d 771 (footnotes omitted) (alteration in original).

¶ 15 In Owens v. Harrison, 120 Wash.App. 909, 86 P.3d 1266 (2004), Owens appealed a trial court order dismissing his malpractice...

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1 cases
  • Piris v. Kitching, 91567–9
    • United States
    • United States State Supreme Court of Washington
    • 7 Julio 2016
    ...make such a showing “because he pleaded guilty to two charges 375 P.3d 630 and he does not claim to be innocent.” Piris v. Kitching , 186 Wash.App. 265, 280, 345 P.3d 13 (2015). Piris petitioned this court, and we granted review. Piris v. Kitching , 183 Wash.2d 1017, 355 P.3d 1153 (2015).An......

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