State v. Wheeler

• Decision Date: 30 April 2015
• Docket Number: No. 90367–1.,90367–1.
• Citation: 349 P.3d 820,183 Wash.2d 71
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Robert WHEELER, Petitioner.

183 Wash.2d 71

349 P.3d 820

STATE of Washington, Respondent

v.Robert WHEELER, Petitioner.

No. 90367–1.

Supreme Court of Washington, En Banc.

Argued Feb. 26, 2015.

Decided April 30, 2015.

Jeffrey Erwin Ellis, Portland, OR, B. Renee Alsept, Attorney at Law, Vancouver, WA, for Petitioner.

Kathleen Proctor, Brian Neal Wasankari, Jason Ruyf, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

Opinion

GONZÁLEZ, J.

¶ 1 After his 18th birthday, Robert Wheeler was charged with and pleaded guilty to first degree child rape and first degree child molestation for offenses he committed when he was 13 or 14 years old that came to light when he was 17 and a half. His convictions have been final since 2006.

¶ 2 Wheeler contends we have the authority to, and should, revisit his previously rejected claim that his plea was involuntary because he was misinformed of the maximum sentences for his crimes. He also challenges his convictions as the product of unconstitutional preaccusatorial delay and seeks to avoid the time bar for collateral attack by claiming he has newly discovered evidence that the State delayed filing charges until Wheeler aged out of juvenile court. We reject Wheeler's arguments and affirm the Court of Appeals.

Facts

¶ 3 Between December 2000 and December 2001, when Wheeler was 13 or 14 years old, he sexually abused his 6 or 7 year old twin stepsisters. The abuse came to light in late 2004 when Wheeler was 17 and a half years old. On May 4, 2005, a little more than a month after Wheeler's 18th birthday, the State filed an information charging Wheeler as an adult with first degree child rape and first degree child molestation. The information was originally dated in typeface March 26, 2005—three days before Wheeler's 18th birthday—but that date was changed in handwriting to May 4, 2005.

¶ 4 The parties negotiated a plea agreement. Wheeler pleaded guilty to the offenses as charged and was sentenced under the Special Sex Offender Sentencing Alternative (SSOSA), RCW 9.94A.670, on April 17, 2006. Our legislature created the SSOSA program to give certain first time sex offenders the opportunity, and incentive, to receive sex offender treatment. See State v. Pannell, 173 Wash.2d 222, 227, 267 P.3d 349 (2011). Offenders who successfully complete the program can have all or some of their sentences suspended. Id. First degree child rape and first degree child molestation are class A felonies subject to a maximum sentence of life in prison and a $50,000 fine. RCW 9A.44.073(2), .083(2); RCW 9A.20.021(1)(a). Wheeler's plea statement correctly recited the maximum life sentence for each count once but also erroneously listed the maximum sentence as 20 years on each count. The judgment and sentence also incorrectly stated the maximum sentences.

The court imposed standard range sentences of 131.75 months of confinement on count I and 89 months of confinement on count II (to run concurrently) but suspended the sentences in accordance with the SSOSA. Wheeler did not appeal. His judgment and sentence became final when it was filed by the superior court clerk on April 17, 2006. RCW 10.73.090(3)(a).

¶ 5 Wheeler failed to comply with several of his community custody conditions, and the State petitioned to revoke his SSOSA. On September 11, 2009, the court found Wheeler violated his community custody conditions “just about every way you can, short of formally re-offending”; revoked the SSOSA; and ordered Wheeler to serve the remainder of his standard range sentence. State's Resp. to Pers. Restraint Pet., App. E at 4 (Verbatim Transcript of Proceedings (Sept. 11, 2009) (VTP) at 4). Wheeler did not appeal the revocation.

¶ 6 At the 2009 SSOSA revocation hearing, the parties acknowledged that Wheeler's crimes had come to light when he was still a minor but charges were not filed until he was an adult:

THE COURT: Yeah. I remember this case, Mr. Wheeler, because I remember the State had waited until you were an adult to charge you. I didn't think that was necessarily the fairest way to treat a 13–year old. Although maybe this didn't come to light. I think it still came to light when you were a minor.

THE DEFENDANT: Yes.

THE COURT: They still waited.

[THE PROSECUTOR]: It was 17, Your Honor.

Id. at 3 (VTP at 3).

¶ 7 In 2010, Wheeler filed a personal restraint petition, arguing he was entitled to withdraw his 2006 guilty plea because his judgment and sentence was facially invalid as a result of the misstated maximum sentences. After staying the matter pending our decision in In re Personal Restraint of Coats, 173 Wash.2d 123, 267 P.3d 324 (2011), the Court of Appeals concluded in 2012 that Wheeler was not entitled to withdraw his guilty plea and that his remedy was limited to correction of his judgment and sentence. The Court of Appeals “grant[ed] the petition only for the purpose of remanding to the trial court for correction of the maximum sentences set forth in Wheeler's judgment and sentence.” Order Terminating Review, In re Pers. Restraint of Wheeler, No. 40489–3–II, at 3 (Wash.Ct.App. July 3, 2012) (Order). Wheeler did not seek our review of that decision, nor did he ask the Court of Appeals to reconsider its decision under RAP 2.5(c)(2).

¶ 8 In October 2012, the trial court entered an order correcting the erroneous maximum sentences set forth in the judgment and sentence. Wheeler sought direct review, arguing, again, that his guilty plea was involuntary because he was misinformed of the statutory maximum sentences for his crimes and that counsel on remand was ineffective in failing to ask the trial court to consider the involuntary plea claim.

¶ 9 Meanwhile, Wheeler's appellate counsel submitted a Public Records Act, ch. 42.56 RCW, request (PRA request) for records relating to the charges against Wheeler. Among other things, the State produced an unfiled draft information with a juvenile court heading dated approximately three weeks before Wheeler's 18th birthday. Based in part on these records, Wheeler filed a personal restraint petition, arguing the State violated due process by delaying filing charges resulting in the prejudicial loss of juvenile court jurisdiction.

¶ 10 The Court of Appeals consolidated the appeal and the personal restraint petition. The Court of Appeals held that the validity of Wheeler's guilty plea was not an appealable issue because the trial court did not independently review and rule on it; rejected Wheeler's claim of ineffective assistance, reasoning that counsel was not obligated to advance an argument that was unlikely to succeed; and dismissed Wheeler's personal restraint petition as untimely. State v. Wheeler, noted at 181 Wash.App. 1018, 2014 WL 2547756 (2014). We granted Wheeler's petition for review. State v. Wheeler, 181 Wash.2d 1021, 337 P.3d 327 (2014).¹

Analysis

I. Challenge to the Validity of Wheeler's Guilty Plea

¶ 11 First, Wheeler seeks to withdraw his guilty plea on the grounds that he was misinformed of the maximum sentences for his crimes. Wheeler previously brought this claim in an untimely personal restraint petition, and the Court of Appeals found he was entitled only to a remand for the technical correction of his judgment and sentence. Wheeler did not seek our review of that decision, nor did he ask the Court of Appeals to reconsider its decision under RAP 2.5(c)(2). Instead, he sought direct review of the technical correction of his judgment and sentence on remand, raising the same argument. The Court of Appeals properly found there was no issue to review. Wheeler now asks us to contravene well-settled precedent and hold that the limited remand for correction of his judgment and sentence gave him another opportunity to challenge the validity of his guilty plea through a direct appeal. We decline to do so.

¶ 12 We reject Wheeler's contention that the Court of Appeals had discretion to consider his challenge under RAP 2.5(c)(1) on remand for a technical correction.² RAP 2.5(c) pertains to the common law “law of the case” doctrine, which, among other things, treated some legal rulings in a case as binding on the parties if not appealed. See State v. France, 180 Wash.2d 809, 816, 329 P.3d 864 (2014) (citing Tonkovich v. Dep't of Labor & Indus., 31 Wash.2d 220, 225, 195 P.2d 638 (1948) ). RAP 2.5(c)(1) puts some restrictions on the law of the case doctrine, but it “does not revive automatically every issue or decision which was not raised in an earlier appeal. Only if the trial court, on remand, exercised its independent judgment, reviewed and ruled again on such issue does it become an appealable question.” State v. Barberio, 121 Wash.2d 48, 50, 846 P.2d 519 (1993) ; State v. Kilgore, 167 Wash.2d 28, 39–41, 216 P.3d 393 (2009). RAP 2.5(c)(1) does not apply here because the trial court merely executed the technical correction mandated by the appellate court order and did not independently review the validity of the guilty plea.

¶ 13 The trial court's discretion was clearly constrained by the Court of Appeals' specific language “granting the petition only for the purpose of remanding to the trial court for correction of the maximum sentences set forth in Wheeler's judgment and sentence.” Order at 3; see Godefroy v. Reilly, 140 Wash. 650, 657, 250 P. 59 (1926). Despite this clear language, Wheeler argues that the trial court had discretion to consider a motion to withdraw his guilty plea. He relies on RAP 12.2, which provides in part that “[a]fter the mandate has issued, the trial court may[ ] ... hear and decide postjudgment motions otherwise authorized by statute or court rule so long as those motions do not challenge issues already decided by the appellate court.”RAP 12.2 (emphasis added). RAP 12.2 recognizes both appellate court power to order appropriate relief “as the merits of the case and the interest of justice may require” and trial court power to entertain appropriate postjudgment motions once the appellate opinion has mandated. By its plain language, RAP 12.2 situates trial court discretion...