State v. Schwab

• Decision Date: 02 October 2007
• Docket Number: No. 34907-8-II.,No. 34093-3-II.,34907-8-II.,34093-3-II.
• Citation: 141 Wn. App. 85,167 P.3d 1225
• Parties: STATE of Washington, Respondent, v. Sean Paul SCHWAB, Appellant. In re Personal Restraint of Sean Paul Schwab, Petitioner.
• Court: Washington Court of Appeals

167 P.3d 1225

141 Wn. App. 85

STATE of Washington, Respondent, v. Sean Paul SCHWAB, Appellant In re Personal Restraint of Sean Paul Schwab, Petitioner.

No. 34907-8-II.

No. 34093-3-II.

Court of Appeals of Washington, Division 2.

October 2, 2007.

Kathryn A. Russell Selk, Russell Selk Law Office, Seattle, WA, for Appellant.

Sean Schwab, Tacoma, WA, Appearing Pro Se.

Kathleen Proctor, Pierce County Prosecuting Atty Ofc, P. Grace Kingman, Attorney at Law, Tacoma, WA, for Respondent.

QUINN-BRINTNALL, J.

¶ 1 This case involves a rare occurrence, the attempted withdrawal of a not guilty by reason of insanity plea entered under former RCW 10.77.060 (2000). On May 4, 2004, Sean Paul Schwab entered a plea of not guilty by reason of insanity to the charge that he committed first degree assault with a deadly weapon. On July 29, 2005, well over a year later, Schwab petitioned the court to withdraw his plea, arguing that the court and his attorney failed to inform him that he faced a maximum penalty of life in Western State Hospital. RCW 10.73.090 bars defendants from challenging a judgment and sentence in a criminal case more than one year after it has become final, but the trial court appointed new counsel and allowed Schwab to proceed with the motion. The court ruled that Schwab's not guilty by reason of insanity plea was voluntary.

¶ 2 Schwab appeals and files a personal restraint petition (PRP) with this court, which we consolidated. Our review in the direct appeal is limited to the validity of the trial court's denial of Schwab's CrR 7.8 motion.¹ Specifically, we must decide whether (1) Schwab's collateral attack on his judgment was timely; (2) Schwab's plea agreement was voluntary; (3) his counsel was ineffective; and (4) the issues raised in the statement of additional grounds for review (SAG) or PRP warrant reversal. We hold that Schwab's collateral attack was timely because he did not receive notice of the time bar as RCW 10.73.110 and .120 require, but that his motion to withdraw his plea fails on the merits because his counsel was not ineffective and the trial court clearly informed him when he entered his not guilty by reason of insanity plea of the maximum confinement he faced. We affirm the trial court's denial of Schwab's motion to withdraw the not guilty by reason of insanity plea and deny his PRP.

ANALYSIS

Timeliness

¶ 3 As he did below during his CrR 7.8 motion, on direct appeal Schwab asserts that his plea of not guilty by reason of insanity was not knowing, intelligent, and voluntary because it was based on a misunderstanding of the direct sentencing consequences of the plea. He claims that the trial court could properly decide the issue more than a year after the judgment was final because (1) neither the trial court nor the Department of Corrections (DOC) informed him of the one-year time limit for collateral attack or (2) the doctrine of equitable tolling applies. We agree that the trial court's failure to inform Schwab of the one-year limit for collateral attacks, as RCW 10.73.110 requires, relieved him of the one-year time bar under RCW 10.73.090.

¶ 4 Generally, no collateral attack on a judgment and sentence may be filed more than a year after the judgment is 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).² The defendant bears the burden to prove that an exception to the RCW 10.73.090 statute of limitations applies. Shumway v. Payne, 136 Wash.2d 383, 400, 964 P.2d 349 (1998). Courts do not have discretion to waive or alter the limitation period in RCW 10.73.090 because the time limit is written in mandatory terms and is a constitutionally valid means of controlling the flow of post-conviction collateral relief petitions, which "undermines the principles of finality of litigation, degrades the prominence of the trial, and sometimes costs society the right to punish admitted offenders." Payne, 136 Wash.2d at 398-99, 964 P.2d 349 (quoting In re Pers. Restraint of Cook, 114 Wash.2d 802, 809, 792 P.2d 506 (1990)).

¶ 5 It is undisputed that Schwab's CrR 7.8 motion³ was a collateral attack subject to the one-year time limit in RCW 10.73.090. See CrR 7.8 (explicitly limiting motions that do not comply with RCW 10.73.090's time limit). And it is undisputed that Schwab first asked the trial court to allow him to withdraw his plea on July 29, 2005, over a year after judgment was finalized on May 4, 2004. Thus, unless an exception applies, Schwab's motion was untimely.

¶ 6 We review findings of fact for substantial evidence and conclusions of law de novo. State v. Levy, 156 Wash.2d 709, 733, 132 P.3d 1076 (2006). Here, the trial court found that it had implicitly extended Schwab's motion to extend the time permitted for relief from judgment pursuant to CrR 7.8 when it granted Schwab's motion for independent counsel. And the court concluded that "[t]he one year [t]ime limit for relief of judgment does not apply." Clerk's Papers (CP) at 135. The facts are not in dispute and so we review de novo whether the trial court had legal authority to extend the time limit.

¶ 7 Schwab invokes the notice exception to the RCW 10.73.090(1) time bar. When a statute requires that a court or DOC notify a defendant of a time bar and the notice is not given, this omission creates an exemption to the time bar and a court, therefore, must treat the defendant's petition for collateral review as timely. In re Pers. Restraint of Vega, 118 Wash.2d 449, 450-51, 823 P.2d 1111 (1992) (applying rule to RCW 10.73.120); State v. Golden, 112 Wash.App. 68, 78, 47 P.3d 587 (2002) (apply Vega rule to RCW 10.73.110), review denied, 148 Wash.2d 1005, 60 P.3d 1212 (2003). Under RCW 10.73.110, the trial court must advise a defendant of the one-year statute of limitations when it pronounces judgment and sentence. And under RCW 10.73.120, the DOC must make a good faith effort to advise defendants of the one-year time limit.⁴ There is no evidence in our record showing that the trial court or DOC notified Schwab that he had only one year to collaterally attack the judgment. Thus, Schwab did not receive the notice that RCW 10.73.110 and .120 require and his CrR 7.8 motion must be deemed timely.

¶ 8 The State argues that Schwab received actual notice and, therefore, the one-year time limit applies. It cites Vega, 118 Wash.2d at 451, 823 P.2d 1111, for the proposition that if a defendant received actual notice of the time limit, failure to comply with RCW 10. 73.110 and .120 does not exempt the time limit. We note initially that actual notice was not given in Vega and, therefore, the reference that "[h]ad there been actual notification or even attempted notification, the petition would have been properly denied" is mere dicta. 118 Wash.2d at 451, 823 P.2d 1111.

¶ 9 Without deciding the issue of whether actual notice exempts compliance with RCW 10.73.090(1), we hold that the record before us does not contain facts sufficient to hold that Schwab received actual notice sufficient to satisfy the statutory notice provisions. Schwab's attorney, Jean O'Loughlin, declared: "I . . . met with Mr. Schwab and informed him that I saw no legal basis for vacating the judgment, and I stressed the importance of him bringing any motions before May 4, 2005, (one year of entry of the judgment entered in his case)." CP at 124. Schwab argues that this declaration is selfserving and does not state the date on which this conversation took place. There is, however, no indication that O'Loughlin perjured herself in the declaration and the conversation probably took place sometime before May 4, 2005.

¶ 10 But it is impossible to discern when O'Loughlin notified Schwab of the statute's time bar. By statute, the trial court is required to notify a defendant at sentencing that he must file any collateral attack within a year. RCW 10.73.110. If the court gave this notice, Schwab would have had one year in which to prepare his collateral attack. By contrast, O'Loughlin's declaration does not indicate that Schwab received notice shortly after sentencing; and it is possible that she notified him only a month or a day before expiration of the one-year deadline. Such tardy notice is legally insufficient to bar Schwab's collateral attack. We, therefore, hold that the trial court did not err when it deemed Schwab's, petition timely, as we may affirm a trial court ruling on any ground that the record supports. State v. Huynh, 107 Wash.App. 68, 74, 26 P.3d 290 (2001).

Motion to Withdraw Plea

¶ 11 We now address the merits of Schwab's motion to withdraw his plea. We hold that the trial court properly dismissed Schwab's CrR 7.8 motion.

¶ 12 Schwab made only one argument to support his motion to withdraw his plea, that he was not advised of the maximum term of confinement at Western State Hospital if he entered the plea agreement. See State v. Brasel, 28 Wash.App. 303, 313, 623 P.2d 696 (1981) (holding that due process requires that a defendant entering a plea of not guilty by reason of insanity understand that, if the plea is accepted, he could be committed to a state hospital for the criminally insane for a term up to the maximum possible penalty for the offense charged). The record belies this claim.

¶ 13 Schwab's attorney, Michael Kawamura, told the trial court, "I've advised [Schwab] that he can — the result of [the plea], if the Court accepts it, would be that he can be held for the statutory period of the offense which is life imprisonment." Report of Proceedings (RP) (May 4, 2004) at 5. And the trial court discussed this aspect of the plea with Schwab:

THE COURT: And as Mr. Kawamura indicated, the potential, of course, is that you could be committed for the statutory period which would be up to life in prison, but he said that the doctors and the evaluators have indicated that it's quite possible that with proper medication and treatment that you might not, in fact, be committed...