Piris v. Kitching

• Decision Date: 07 July 2016
• Docket Number: No. 91567–9,91567–9
• Citation: 185 Wash.2d 856,375 P.3d 627
• Court: Washington Supreme Court
• Parties: Christopher Piris, Petitioner, 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.

185 Wash.2d 856

375 P.3d 627

Christopher Piris, Petitioner

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. 91567–9

Supreme Court of Washington, En Banc.

Filed July 7, 2016

Suzanne Lee Elliott, Attorney at Law, Hoge Building, 705 2nd Avenue Suite 1300, Seattle, WA, 98104–1797, Counsel for Petitioner.

Christopher Holm Howard, Averil Budge Rothrock, Allison Kathleen Krashan, Schwabe Williamson & Wyatt PC, 1420 5th Avenue Suite 3400, Seattle, WA, 98101–4010, Rosemary Jane Moore, Lee Smart PS Inc., 4607 N 37th St., Tacoma, WA, 98407–4803, Jeffrey Paul Downer, Lee Smart PS Inc., 701 Pike St. Suite 1800, Seattle, WA, 98101–3929, David J. Hackett, King County Administration Building, 500 4th Avenue Suite 900, Seattle, WA, 98104–2316, Prosecuting Attorney King County, King County Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Counsel for Respondents.

JOHNSON, J.

This case asks us to decide whether the “actual innocence” element of a criminal malpractice¹ claim against a trial attorney, an appellate attorney, and King County through its agency, the Department of Public Defense, applies to the facts of this case to bar the action. The complaint here alleges negligence based on the failure to schedule a resentencing hearing after the Court of Appeals remanded, and asserts that the defendant served more prison time than he otherwise would have had he been promptly resentenced. In this case, we hold that actual innocence is a necessary requirement to pursue the criminal malpractice claim and that no exception applies. We affirm the Court of Appeals, upholding the trial court's grant of summary judgment of dismissal in favor of all respondents.

Facts and Procedural History

¶ 2 Rape of a child in the first degree is a class A felony carrying a maximum term of confinement of life imprisonment. Christopher Piris was charged with three counts of first degree rape of a child, which occurred between September 27, 1990, and September 27, 1993. Piris pleaded guilty to two of those counts. The rape charges arose out of two separate incidents that occurred when Piris (who was between 11 and 13 years old at the time) had sexual intercourse with his stepbrother (who was then between 9 and 11 years old). Although the rapes occurred between 1990 and 1993 when Piris was a minor, he was charged in 1997 when he was 19 years old and in 1998 pleaded guilty to two counts of first degree rape of a child.

¶ 3 On May 14, 1999, Judge Charles Mertel of the King County Superior Court sentenced Piris to 159 months of imprisonment—the bottom of the standard sentencing range of 159 to 211 months—which was calculated using an offender score of seven. At the sentencing hearing, Judge Mertel stated that although he did not find the facts justified an exceptional sentence downward, he was “going to sentence [Piris] at the bottom of the standard range[,] which is ... 159 months.” Clerk's Papers (CP) at 69. Alfred Kitching, an attorney with Society of Counsel Representing Accused Persons (SCRAP) (collectively Kitching), represented Piris at the trial court.

¶ 4 On appeal, Eric Nielsen, of the law firm Nielsen, Broman & Koch PLLC, represented Piris and argued that the trial court incorrectly calculated Piris's offender score. Division One of the Court of Appeals agreed in an unpublished opinion, finding that Piris should have been sentenced with an offender score of 6, rather than 7. This score would have resulted in a standard range sentence of 146 to 194 months, rather than 159 to 211 months. The court vacated Piris's sentence and remanded for resentencing.

That order was filed on February 14, 2000, and the mandate issued on April 7, 2000.

¶ 5 The Court of Appeals sent a copy of the opinion to both Nielsen and Piris. Nielsen asserted that upon receipt of the opinion, “based on his invariable habit, custom and practice, he [would have] sent a copy of the opinion to Mr. Piris with a cover letter explaining the decision.” CP at 98. Nielsen also claimed that upon receipt of the mandate, he wrote to Piris, enclosing the mandate and informing Piris that he was closing Piris's file. In addition, Nielsen “wrote to King County Office of Public Defense to inform that office of the decision, ... that a resentencing hearing should be scheduled,” and that Piris would need representation. CP at 99. Nielsen “may also have sent a copy of the decision to SCRAP and to Mr. Kitching or informed them of the decision.” CP at 99. Piris denies that he heard from Nielsen regarding the reversal of his sentence.

¶ 6 Piris was not resentenced for another 12 years. On May 7, 2012, Piris appeared before Judge Timothy Bradshaw (Judge Mertel had since retired) on an alleged violation of his supervised release terms. Realizing that Piris had never been resentenced, Judge Bradshaw imposed a sentence of 146 months for the two counts of rape of a child in the first degree. While this sentence was at the bottom of the corrected standard sentencing range, the record does not indicate the judge's reasoning for choosing this term of confinement. By the time Piris was resentenced, he alleged he had served all 159 months of his original term of imprisonment.

¶ 7 In March 2013, Piris filed this legal malpractice action against Kitching and Nielsen. He later amended his complaint to include King County. Piris alleged that due to his attorneys' negligence, he was incarcerated for 13 months longer than his sentence allowed. The defendants all moved for summary judgment, which the superior court granted, stating, “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)

.” CP at 249. The court denied Piris's motion for reconsideration, and Piris timely appealed.

¶ 8 In a published opinion, Division One of the Court of Appeals affirmed, holding that Piris had to prove he was actually innocent of the underlying criminal charges. The court held that he could not make such a showing “because he pleaded guilty to two charges 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).

Analysis

¶ 9 The Court of Appeals affirmed summary judgment for the defendants. We review an order granting summary judgment de novo, “ ‘taking all facts and inferences in the light most favorable to the nonmoving party.’ ” Jackowski v. Borchelt , 174 Wash.2d 720, 729, 278 P.3d 1100 (2012)

(quoting Biggers v. City of Bainbridge Island , 162 Wash.2d 683, 693, 169 P.3d 14 (2007) ). Summary judgment is appropriate where the moving party shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). To establish a claim for legal malpractice, generally, a plaintiff must prove

(1) [t]he existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.

Hizey v. Carpenter , 119 Wash.2d 251, 260–61, 830 P.2d 646 (1992)

.

¶ 10 A plaintiff also bears the burden of proving two additional elements concerning proximate cause when alleging criminal malpractice. First, as a prerequisite, the plaintiff must have obtained postconviction relief. Second, the plaintiff must prove actual innocence of the underlying criminal charge by a preponderance of the evidence. At issue here is the actual innocence requirement.

¶ 11 We addressed this requirement in the context of a criminal malpractice case in Ang.

In that case, the Angs were a married couple indicted on 18 criminal counts related to Social Security fraud. They hired two defense attorneys for trial. Before trial, the attorneys negotiated a plea bargain, which the Angs rejected, and the case proceeded to a jury trial. Five days into trial, the Angs' attorneys recommended a second plea deal. The Angs viewed this plea agreement as the least desirable. Mr. Ang “was allegedly told that Mrs. Ang could face sexual assault in prison,” which convinced the couple to take the agreement offered during trial and plead guilty to 2 of the 18 counts. Ang , 154 Wash.2d at 480, 114 P.3d 637. The Angs sought an outside opinion from another attorney, who concluded that the government failed to meet its burden of proof and that the plea agreement the Angs accepted provided them no material benefit. Through another attorney, the Angs then successfully moved to withdraw their pleas (which the judge had not formally accepted) and the matter moved to a bench trial. At the new trial, the government offered yet another plea agreement, which was rejected, and the Angs were acquitted on all 18 counts. The Angs sued their former attorneys, claiming malpractice, and the case went to trial before a jury. The jury found that the Angs failed to prove by a preponderance of the evidence that they were innocent of all criminal charges against them. The Angs appealed.

¶ 12 We held that for a plaintiff to bring a malpractice action against a criminal defense attorney, he or she must establish actual innocence of the underlying charge by a preponderance of the evidence. We reasoned that for legal causation to satisfy proximate cause, the actual innocence requirement was rooted in public policy: “To determine whether the cause in fact ... should also be deemed the legal cause of [plaintiff's] harm, a court may consider, among other things, the public policy implications of holding the defendant liable.” Ang , ...