State v. Miller

• Decision Date: 13 May 2014
• Docket Number: No. 42899–7–II.,42899–7–II.
• Parties: STATE of Washington, Appellant, v. Spencer MILLER, Respondent.
• Court: Washington Court of Appeals

181 Wash.App. 201

324 P.3d 791

STATE of Washington, Appellant,

v.Spencer MILLER, Respondent.

No. 42899–7–II.

Court of Appeals of Washington, Division 2.

May 13, 2014.

Stephen D. Trinen, Pierce County Prosecutors Ofc, Tacoma, WA, for Appellants.

Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondents.

BJORGEN, J.

¶ 1 The State appeals from the superior court's order vacating Spencer Miller's sentence and requiring a new sentencing hearing under CrR 7.8. Because the superior court did not err in determining that a significant intervening change in the law, material to Miller's sentence, established a fundamental defect in the original sentencing proceeding, we affirm.

FACTS

¶ 2 In October 2010, Miller, a Washington State Department of Corrections inmate, filed a motion pro se to vacate his judgment and sentence under CrR 7.8. A jury had found Miller, along with two codefendants, guilty of two counts of attempted first degree murder based on charges stemming from a 2001 shooting. The trial court had sentenced Miller near the bottom of the standard range, imposing two consecutive 200–month terms of incarceration. In his motion, Miller argued that the superior court should hold a new sentencing hearing because the original sentencing court had failed to recognize, based on a misunderstanding of the law, that it had discretion to impose concurrent sentences as an exceptional downward departure, thus depriving Miller of the opportunity to argue for such an exceptional sentence. Miller pointed out that our Supreme Court had subsequently held in In re Personal Restraint of Mulholland, 161 Wash.2d 322, 166 P.3d 677 (2007), that sentencing courts have discretion to impose concurrent sentences for multiple serious violent felonies, despite the mandatory consecutive sentencing provision of RCW 9.94A.589(1)(b). After obtaining counsel, Miller filed a motion to modify or correct the judgment and sentence based on substantially the same grounds.

¶ 3 After holding hearings on Miller's motion, the superior court concluded that (1) the one-year time bar of RCW 10.73.090 did not apply to Miller's collateral attack because the motion was based entirely on a significant change in the law; (2) Miller had made a substantial showing that he was entitled to relief; (3) the sentencing court had failed to realize it could run Miller's sentences concurrently; ¹ and (4) despite the fact that Miller had not, in fact, requested a mitigated sentence, the sentencing court's failure to recognize its discretion constituted a fundamental defect inherently resulting in a miscarriage of justice. The court therefore vacated the sentence and ordered a new sentencing hearing. Prior to Miller's resentencing, the State timely appealed.

ANALYSIS

¶ 4 The State's six assignments of error may be condensed to two essential issues: whether the superior court erred in determining that (1) the relevant holding in Mulholland constitutes a significant change in the law, material to Miller's sentence; and (2) the original sentencing court failed to recognize its discretion to impose concurrent terms of confinement, inherently resulting in a miscarriage of justice.

¶ 5 If the holding in Mulholland does not represent a significant change in the law, the rest of the superior court's findings and conclusions were necessarily erroneous. We thus first address whether the relevant holding in Mulholland constituted a significant change in the law. Concluding that it did, we then consider whether Miller's failure to request a mitigated sentence at the time of sentencing precludes relief, an issue raised through the assignments of error. Holding that relief is not precluded, we consider whether the superior court properly found that the sentencing court had failed to recognize its discretion to impose concurrent terms, and if so, whether such failure amounts to a fundamental defect entitling Miller to a new sentencing hearing. Concluding that superior court did not err, we affirm its decision vacating Miller's sentence and requiring a new sentencing hearing.

I. Standard of Review

¶ 6 Our Supreme Court succinctly articulated the applicable standard of review in a recent case:

A trial court's order on a motion to withdraw a guilty plea or vacate a judgment is reviewed for abuse of discretion. A trial court abuses its discretion if its decision is manifestly unreasonable or based upon untenable grounds or reasons. A court's decision is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard. The untenable grounds basis applies if the factual findings are unsupported by the record.

State v. Lamb, 175 Wash.2d 121, 127, 285 P.3d 27 (2012) (internal citations and quotation marks omitted). When we consider whether a trial court properly applied the correct legal standard, “we review de novo the choice of law and its application to the facts in the case.” State v. Corona, 164 Wash.App. 76, 79, 261 P.3d 680 (2011); accord, Barton v. Dep't of Transp., 178 Wash.2d 193, 201–02, 308 P.3d 597 (2013). Thus, we limit our review of challenged factual findings to whether substantial evidence in the record supports them, but consider de novo whether the challenged conclusions of law properly follow from the supported facts.

II. Mulholland Worked a Significant Change in the Law

¶ 7 Trial courts have discretion under CrR 7.8(b) to “relieve a party from a final judgment, order, or proceeding” for various enumerated reasons, as well as the catchall “[a]ny other reason justifying relief.” The rule provides, however, that

[t]he court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition unless the court determines that the motion is not barred by [the one-year limit provided in] RCW 10.73.090 and either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.

CrR 7.8(c)(2). Miller filed his motion more than one year after his judgment and sentence became final. Thus, the trial court could consider the motion on its merits only if it properly determined that the statutory time bar on collateral attacks did not apply. The rule also required the superior court to properly determine that either Miller had made a substantial showing that his claim had merit or that proper resolution required a factual hearing.

¶ 8 The trial court concluded that Miller's collateral attack was not time barred based on a statutory exception, which provides that the time limitation of RCW 10.73.090

does not apply to a petition or motion that is based solely on ... a significant change in the law, whether substantive or procedural, which is material to the conviction [or] sentence, ... and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard. RCW 10.73.100(6). Thus, we must first decide whether the holding in Mulholland on which Miller relies qualifies as a “ significant change in the law” under RCW 10.73.100(6).

¶ 9 The State points out that courts have interpreted “significant change in the law” in RCW 10.73.100(6) “as a change that effectively overturns prior material law so that the arguments currently at issue were previously unavailable to the litigants” and argues, without elaboration, that “ Mulholland did not constitute a significant change in the law where it did not reverse established precedent.” Br. of Appellant 24 (citing In re Pers. Restraint of Domingo, 155 Wash.2d 356, 119 P.3d 816 (2005)). Miller asserts first that the State has failed to present argument in support of its position, as required by RAP 10.3(a)(6), and therefore invites this court to refuse to consider the State's assignment of error on the issue. Miller further argues that the superior court did not err in determining that Mulholland effected a significant change, pointing to State v. Flett, 98 Wash.App. 799, 806, 992 P.2d 1028 (2000), an opinion of this court contrary to the relevant holding of the Mulholland court.

¶ 10 Turning to Miller's initial argument, we acknowledge that the State's brief in this appeal contains a large amount of irrelevant material,² while its entire argument on the key issue in this case, whether Mulholland worked a significant change in the law, amounts to two short paragraphs. Nonetheless, we conclude that the State has presented sufficient argument and citation to authority to merit review.

¶ 11 On the merits of the issue, the State's sole contention is that an appellate decision only qualifies as a significant change in the law if it reverses prior precedent. The authorities cited, however, do not establish this proposition.

¶ 12 The State's argument relies on the following language from Domingo:

[I]t is untenable to claim that [State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000) ] and [State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000) ] “effectively overturned a prior appellate decision that was originally determinative of a material issue” as required by [In re Pers. Restraint of Greening, 141 Wash.2d 687, 697, 9 P.3d 206 (2000)]; see also In re Pers. Restraint of Turay, 150 Wash.2d 71, 83, 74 P.3d 1194 (2003) (stating that an appellate decision that merely settles a point of law without overturning precedent, or applies settled law to new facts, does not constitute a significant change in the law).

155 Wash.2d at 368, 119 P.3d 816 (quoting Greening, 141 Wash.2d at 697, 9 P.3d 206). The portion of Greening cited by the...