State v. Robinson

• Decision Date: 29 January 2001
• Docket Number: No. 46141-9-I.,46141-9-I.
• Citation: 104 Wash.App. 657,17 P.3d 653
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Cynthia Lynn ROBINSON (aka Cynthia Root), Appellant.

17 P.3d 653

104 Wash.App. 657

STATE of Washington, Respondent, v. Cynthia Lynn ROBINSON (aka Cynthia Root), Appellant.

No. 46141-9-I.

Court of Appeals of Washington, Division 1.

January 29, 2001.

Reconsideration Denied March 26, 2001.

Jean Schiedler-Brown, Darrell Lahtinen, Seattle, for Appellant.

Erik Pedersen, Skagit County Pros. Atty. Office, Mount Vernon, for Respondent.

KENNEDY, J.

The Skagit County Superior Court declined to consider the merits of Cynthia Lynn Robinson's motion to withdraw guilty plea because the motion was filed more than one year after the date of the judgment and sentence, contrary to the time limitation for collateral attacks contained in RCW 10.73.090. Robinson appeals, contending (1) that the one-year time limit does not apply to her motion because the judgment and sentence is invalid on its face; (2) that if the one-year time limit does apply, her motion should be treated as timely filed because it was sent by priority mail three days before the expiration of the limitation period and the prosecutor's copy of the motion, which was sent by priority mail at the same time, was timely received; (3) that she substantially complied with the time limit by sending the motion by priority mail three days before the expiration of the limit; (4) that the time limit should be equitably tolled in the interests of justice; and (5) that equal protection and due process require that her motion be heard on its merits. We reject each of these contentions and affirm the trial court's ruling.

FACTS

On July 16, 1998, Robinson pleaded guilty to charges of robbery in the first degree with a deadly weapon enhancement, burglary in the first degree, and kidnapping in the first degree. The second amended information described the deadly weapon as a "knife having a blade longer than three inches, which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death, a violation of RCW 9.94A.125 and 9.94A.310." Clerk's Papers at 22.

In the judgment and sentence, the court made a special finding on the deadly weapon enhancement as required by RCW 9.94A.125. The judgment and sentence also informed Robinson that any collateral attack on the judgment would be subject to RCW 10.73.090 and RCW 10.73.100. Robinson received the top of the standard sentencing ranges on all counts. Judgment was entered on July 16, 1998.

Robinson subsequently filed a motion to withdraw plea of guilty, alleging that she had received ineffective assistance of counsel at the time of her plea and that the deadly weapon enhancement conviction was void. The State responded that Robinson's motion was time barred by court rule and statute because it was filed more than one year after entry of the judgment and sentence.

Robinson sent the motion to the clerk by priority mail on Wednesday, July 13, 1999, and on same day she sent a copy of the motion to the prosecutor, also by priority mail. The prosecutor, whose office is adjacent to the Skagit County Courthouse, received his copy on Friday, July 16, 1999. The Skagit County Clerk file-stamped the motion on Monday, July 19, 1999.

The trial court denied Robinson's motion without considering the merits, ruling that her motion was untimely because it was filed more than one year after final judgment was entered. The court also denied Robinson's motion for reconsideration. This appeal followed.

DISCUSSION

Robinson moved to withdraw her guilty plea based on CrR 7.8. This rule allows the court to relieve a party from a final judgment, order, or proceeding if, inter alia, the judgment is void, or for any other reason justifying relief from the operation of the judgment. CrR 7.8 further states that such motion for relief "shall be made within a reasonable time ... and is further subject to RCW 10.73.090, .100, .130, and .140."

RCW 10.73.090 imposes a one-year time limit on petitions or motions for collateral attack, including motions to vacate judgment and motions to withdraw guilty pleas. RCW 10.73.090(1) states: "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." This time limitation "is a mandatory rule that acts as a bar to appellate court consideration" of collateral attacks, unless the petitioner shows that an exception under RCW 10.73.100 applies. Shumway v. Payne, 136 Wash.2d 383, 397-98, 964 P.2d 349 (1998).

RCW 10.73.100 enumerates exceptions to the one-year time limit if the motion alleges (1) newly discovered evidence; (2) a statute that is unconstitutional on its face or as applied to the defendant; (3) double jeopardy; (4) insufficiency of the evidence; (5) a sentence in excess of the court's jurisdiction; or (6) a significant change in the law that is material to the conviction, sentence, or other order. In light of these explicit statutory exceptions, our Supreme Court has cautioned that a reviewing court should not look behind the judgment of a court of competent jurisdiction unless expressly permitted to do so by the Legislature. See In re Personal Restraint of Runyan, 121 Wash.2d 432, 442-44, 853 P.2d 424 (1993).

A trial court's CrR 7.8(b) decision is reviewed for abuse of discretion. State v. Olivera-Avila, 89 Wash.App. 313, 317, 949 P.2d 824 (1997) (citing State v. Ellis, 76 Wash.App. 391, 394, 884 P.2d 1360 (1994)).

We first examine Robinson's contention that her judgment and sentence is invalid on its face. Robinson claims that the sentencing court did not enter a finding of fact that she was armed with a deadly weapon at the time of the robbery as required by RCW 9.94A.125.¹ She reasons that her due process rights were thereby violated and that RCW 10.73.100(2) applies. She also contends that the portions of the record that were considered by the sentencing court would not support such a finding, if the court had made one.

Under RCW 10.73.100(2), the one-year time limit under RCW 10.73.090 does not apply to a petition or motion that is based solely on the claim that "[t]he statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct[.]" Although Robinson does not challenge the constitutionality of the deadly weapon enhancement statute, she does argue that the statute was unconstitutionally applied to her conduct because the court failed to make the necessary finding to support the deadly weapon sentence enhancement. Under RCW 10.73.100(4) the one-year time limit also does not apply if the motion is based solely on a claim of insufficiency of the evidence. Robinson also claims that the portions of the record considered by the sentencing court are insufficient to support a deadly weapon finding, if one had been made.

As a preliminary matter, since RCW 10.73.100 states that RCW 10.73.090 does not apply to petitions or motions "based solely" on the enumerated grounds, Robinson's RCW 10.73.100(2) contention could only extend to the portions of her motion that request that the judgment and sentence be vacated because the sentencing court failed to make a deadly weapon finding as required by RCW 9.94A.125 and that challenge the sufficiency of the evidence to support such a finding in any event. Her other basis for the motion, ineffective assistance of counsel, does not fit under any provisions of RCW 10.73.100.

While Robinson bases her argument on RCW 10.73.100(2), it is not necessary to reach that provision, as the one-year time limit under RCW 10.73.090 only applies in the first place "if the judgment and sentence is valid on its face[.]" See In re Personal Restraint of Thompson, 141 Wash.2d 712, 718, 10 P.3d 380 (2000) ("Instead of determining whether Thompson's petition fits under the RCW 10.73.100(2) exception to the one-year limit, we instead [sic] discuss whether pursuant to RCW 10.73.090 the judgment and sentence was valid on its face.") "`Constitutionally invalid on its face' means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.'" Id. (quoting State v. Ammons, 105 Wash.2d 175, 188, 713 P.2d 719, 718 P.2d 796 (1986)). "The phrase `on its face' has been interpreted to mean those documents signed as part of a plea agreement." Id. (citing State v. Phillips, 94 Wash. App. 313, 317, 972 P.2d 932 (1999)).

Robinson's judgment is valid on its face. The judgment and sentence she signed states that the court made a finding on the deadly weapon enhancement as required by RCW 9.94A.125. That finding is supported by the affidavit of probable cause which described the knife as a "long filet type knife with a plastic handle" and by Robinson's statement on plea of guilty in which she admitted that she took money from a person by threat or force while armed with a "knife (deadly weapon.)" The second amended information included an allegation that Robinson committed an offense with "a knife having a blade longer than three inches[.]" In addition, Robinson received notice in the judgment and sentence, as required by RCW 10.73.110, that any collateral attack on the judgment was subject to the limitations of RCW 10.73.090 and RCW 10.73.100. Robinson's motion to withdraw her plea and to vacate the judgment and sentence is thus subject to the one-year limitation.

Robinson next contends that her motion should be treated as timely filed under Moore v. Burdman, 84 Wash.2d 408, 413-14, 526 P.2d 893 (1974). Moore held that a notice of appeal that is mailed in sufficient time to ordinarily reach an appellate court within the time set by statute or court rule, but that arrives one day late solely due to delay caused by postal authorities, is to be considered despite such delay Moore involved a petition for writ of habeas corpus to secure child custody, not a collateral attack on a final...