State v. Hurt

• Decision Date: 07 August 2001
• Docket Number: No. 19263-6-III.,19263-6-III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Sidney A. HURT aka Bruce A. Pivarnrk, Appellant.

27 P.3d 1276

107 Wash. App. 816

STATE of Washington, Respondent, v. Sidney A. HURT aka Bruce A. Pivarnrk, Appellant.

No. 19263-6-III.

Court of Appeals of Washington, Division 3, Panel One.

August 7, 2001.

Hugh M. Spall, Jr., Ellensburg, for Appellant.

Laura Candace Hooper, Deputy Prosecuting Attorney, for Respondent.

SWEENEY, J.

Under the federal "mailbox rule" pleadings are deemed "filed" when they are properly deposited in a prison mailing system. Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The first question raised in Sidney Hurt's collateral attack on his guilty plea is whether Washington should adopt the federal "mailbox rule" for pro se, incarcerated petitioners. We conclude that it should and do so here.

The next question is whether a statement on plea of guilty that informed Mr. Hurt that his community placement would be at least one year adequately informed him of the direct consequences of his plea, when the required community placement was actually at least two years. We conclude that the plea form did not adequately inform Mr. Hurt of the direct consequences of his plea. And we therefore reverse the trial court's order denying Mr. Hurt's motion to withdraw his plea.

FACTS

Mr. Hurt was charged with vehicular homicide by driving under the influence (RCW 46.61.520(1)(a)) after his passenger was killed in a car crash. Both men were intoxicated. Mr. Hurt was driving.

He entered an Alford¹ plea. The plea form he signed was out of date. The form said the court would impose community placement of at least one year. The statutory minimum was actually two years for vehicular homicide. The State recommended the low end of the standard range, 129 months. The court sentenced Mr. Hurt to the high end, 171 months, plus the two years of community placement, plus restitution.

The amount of restitution was not entered until sentencing, some days after the plea was entered. The amount included $12,175.75 to reimburse the state agency that advanced funds to the victim's family to cover medical and funeral expenses; $2,250.00 to the family directly for additional expenses not included in the advance; and $500.00 victim assessment. The court entered the judgment and sentence on August 7, 1998. In January 1999, the front page of the judgment and sentence was amended to change the spelling of Mr. Hurt's first name from Sydney to Sidney.

Incarcerated and acting pro se, Mr. Hurt mailed a motion to withdraw his plea on August 3, 1999, to the Kittitas County Superior Court. He also submitted a sworn declaration that he mailed the motion on August 3. The motion was received by the Kittitas County Clerk on August 10.

Mr. Hurt claims his plea was involuntary because he was not properly informed of the consequences of the plea, namely, the minimum amount of community placement. He also asserted that the amount of restitution was more than he could have anticipated. He claimed he would not have pleaded guilty had he been properly informed about the restitution before the sentencing hearing. Several months later, Mr. Hurt amended his motion to include a claim of ineffective assistance of counsel.

Following a hearing, the trial court concluded that Mr. Hurt's collateral challenge was technically late. Even so, the court went on to decide that his plea was knowing and voluntary with respect to both community placement and restitution, and that Mr. Hurt had failed to make a showing that his representation was deficient. The court then denied his motion to withdraw the plea.

MAILBOX RULE

The federal mailbox rule deems pro se incarcerated defendants' pleadings as "filed" at the time they are deposited for mailing in prison, instead of when the court clerk receives or stamps them. Houston, 487 U.S. 266, 108 S.Ct. 2379. Mr. Hurt urges us to adopt the mailbox rule. This is an issue of first impression.

APPEALABILITY

Mr. Hurt mailed his motion August 3. The one-year deadline for a collateral challenge of the conviction was August 7. The court received and filed the motion on August 10. The trial court did not, however, dismiss this motion as untimely. It ruled instead on the merits. But the timeliness issue is not moot. Mr. Hurt presents a substantive challenge to the voluntariness of his plea, which we can only address if the motion is not procedurally barred.

Mr. Hurt did not argue his mailbox rule theory before the trial court. His only argument was that the one-year statute of limitations did not start to run until the amended judgment was filed in January 1999. Mr. Hurt abandons this argument on appeal.

We ordinarily do not consider arguments offered for the first time on appeal. RAP 2.5(a); State v. Riley, 121 Wash.2d 22, 31, 846 P.2d 1365 (1993). But RAP 2.5(a) is discretionary, not absolute, and does not bar review of an issue first raised on appeal. State v. Ford, 137 Wash.2d 472, 477, 973 P.2d 452 (1999). And this is a question of some moment that deserves a definitive answer.

STANDARD OF REVIEW

A motion to withdraw a guilty plea is governed by CrR 7.8(b). We review the decision for abuse of discretion. State v. Olivera-Avila, 89 Wash.App. 313, 317, 949 P.2d 824 (1997). Mr. Hurt asks us to review the trial court's interpretation of RCW 10.73.090(1). We review the trial court's interpretation of statutes de novo. State v. Avila, 102 Wash.App. 882, 888, 10 P.3d 486 (2000), review denied, 143 Wash.2d 1009, 21 P.3d 290 (2001).

RCW 10.73.090

A motion for relief from judgment in a criminal case must be made within one year. CrR 7.8(b); RCW 10.73.090(1); Olivera-Avila, 89 Wash.App. at 317, 949 P.2d 824.

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).

The statute recognizes certain exceptions to this deadline. RCW 10.73.100. But Mr. Hurt does not claim any.

FEDERAL PRACTICE

No Washington case is directly on point. We look then to decisions analyzing corresponding federal law for guidance in the absence of Washington cases. Turner v. Kohler, 54 Wash.App. 688, 693-94, 775 P.2d 474 (1989) (citing Rinke v. Johns-Manville Corp., 47 Wash.App. 222, 225, 734 P.2d 533 (1987)). Federal collateral attack time limitation law is analogous to Washington's. Federal cases are both instructive and highly persuasive. Mark A. Wilner, Comment, Justice at the Margins: Equitable Tolling of Washington's Deadline for Filing Collateral Attacks on Criminal Judgments, 75 WASH. L.REV. 675, 702 (2000).

The federal courts have adopted a mailbox filing rule for pro se incarcerated defendants seeking postconviction relief. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). In Houston, the Court noted that the federal rule for filing appeals did not define what constituted filing. Neither did the rule designate where or with whom the appeal must be filed. Id. at 272, 108 S.Ct. 2379. The Court observed that courts generally deem appeals filed when received, not when formally stamped "filed." Id. at 272-73, 108 S.Ct. 2379. This is because, once delivered to the court, the filing is beyond the control of the litigant. Id. at 270-71, 108 S.Ct. 2379. The Court reasoned that the same considerations applied to incarcerated pro se defendants. They have no choice but to entrust the fate of their petitions to prison authorities who are beyond their control or supervision and who "may have every incentive to delay." Id. at 271, 108 S.Ct. 2379.

The federal court rules incorporated the prison mailbox rule for the filing of appeals by incarcerated pro se defendants:

Appeal by an Inmate Confined in an Institution.

(1) If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing.

Fed. R.App. P. 4(c). This was in direct response to Houston. Fed. R.App. P. 4(c) advisory committee notes.

The federal courts uniformly apply the Houston mailbox rule whenever a filing statute or rule is ambiguous enough to permit this construction. Nigro v. Sullivan, 40 F.3d 990, 994 (9th Cir.1994). The reasoning of Houston has been extended to include the one-year filing deadline of federal habeas corpus petitions. Burns v. Morton, 134 F.3d 109 (3d Cir.1998). Burns cites additional instances of federal filing deadlines encompassed by the Houston rule. These include 42 U.S.C. § 1983 complaints, and motions to extend the time to correct filing deficiencies. Cases cited at Burns, 134 F.3d at 112-13. The Ninth Circuit has further extended the Houston rule to civil filings by pro se prisoners; for example, Fed.R.Civ.P. 5(b) (commencement of civil action) and Fed.R.Civ.P. 33 and Fed.R.Civ.P. 34 (discovery). Nigro, 40 F.3d at 994. See also Murrell v. Bennett, 615 F.2d 306, 310 (5th Cir.1980)

(discovery).

The lesson of these cases is that whenever the rule or statute does not explicitly preclude it, the Houston rule is applied. Nigro, 40 F.3d at 994.

Mr. Hurt contends that CrR 7.8(b) is comparable to the federal rule, and that the same public policy and equal protection considerations therefore apply. He urges us to adopt the federal practice and interpret the loosely-defined "filed" so as to put incarcerated pro se defendants in the same position as non-incarcerated petitioners or those with counsel, each of whom can monitor the progress of a last-minute filing and ensure its timeliness. To do otherwise, he contends, effectively shortens the statute of limitations for unrepresented people in prison.

OTHER STATES

Houston interprets a federal statute, not the Constitution. It is not, therefore, binding on state courts. State v. Smith, 123 Ohio App.3d 48, 50, 702 N.E.2d 1245 (1997). Nonetheless state courts do follow the rule. E.g., Hickey v....