Opinion
No. 36038-1-II.
October 14, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 95-1-01236-3, Ronald E. Culpepper, J., entered February 5, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton and Armstrong, JJ.
Sylvester James Mahone seeks review of a trial court's order denying his motion to vacate judgment, following his guilty plea and conviction for second degree murder. At issue is the propriety of the trial court's denial of Mahone's motion. We affirm.
FACTS
Mahone pleaded guilty to second degree murder on September 22, 1995. His statement on plea of guilty provided that "[i]n addition to confinement, the judge will sentence me to community placement for at least one year." 1 CP at 8. No one discussed community placement during his plea hearing. During his sentencing hearing, the trial court stated that it would impose a mandatory 24-month term of community placement in addition to a high-end standard range sentence of 178 months. In Mahone's judgment and sentence, however, the community placement box was left unchecked, thus there was no indication on the judgment and sentence form that the court had imposed any period of community placement.
Ten years later, the Department of Corrections notified the State and the trial court that Mahone's judgment and sentence was deficient because it failed to include the mandatory 24-month term of community placement. The State moved to amend Mahone's judgment and sentence to correct the clerical error on August 17, 2005. In response, Mahone moved to set aside his plea.
On November 18, 2005, the trial court granted the State's motion and amended the judgment and sentence to include two years of community placement. The trial court also transferred Mahone's motion to this court for treatment as a personal restraint petition (PRP). After Mahone filed a direct appeal from the order amending his judgment and sentence, this court consolidated that appeal with Mahone's PRP, which raised the same issues.
On October 31, 2006, this court issued its unpublished opinion affirming the trial court's order correcting Mahone's judgment and sentence and denying his PRP. See State v. Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 (2006), review denied, 161 Wn.2d 1017 (2007). We rejected Mahone's contention that his plea was involuntary and rejected Mahone's argument that the amendment of his judgment and sentence to include a community placement term showed that he was misinformed about a direct consequence of his plea. See Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 at *1-*3. We additionally held that, in any event, Mahone had waived his right to challenge his plea when he failed to object or move to withdraw the plea during sentencing when he was informed about the 24-month mandatory community placement. See Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 at *3 (applying State v. Mendoza, 157 Wn.2d 582, 584, 141 P.3d 49 (2006)). This court also rejected the arguments presented in Mahone's pro se statement of additional grounds (SAG), including his assertion that the addition of the community placement period unlawfully exceeded the statutory maximum sentence permissible for his offense; and his assertion that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403 (2004), required that the relevant "maximum sentence" was the top of the standard range. See Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 at *4 (2006).
Although our unpublished opinion has no precedential value, see GR 14.1, for present purposes it provides the "law of the case." See State v. Schwab, 163 Wn.2d 664, 672, 185 P.3d 1151 (2008) (under law of the case doctrine, appellate court's holding must be followed in all subsequent stages of the same litigation).
Following our October 31, 2006 decision, Mahone filed "Defendant's CrR 7.8(b) Motion for Relief from Judgment or Order Vacating Judgment" in Pierce County Superior Court on November 22, 2006, arguing that his counsel was ineffective for failing to object or move for withdrawal of his plea when Mahone was sentenced in 1995. 2 CP at 298-478. On December 12, 2006, the judicial assistant for Pierce County Superior Court Judge Ronald Culpepper mailed a letter to Mahone acknowledging receipt of Mahone's CrR 7.8(b) motion and informing him that a copy of that filing had been forwarded to the deputy prosecutor. The letter also stated "[i]t appears that all issues raised have previously been decided by this court and recently affirmed by the Court of Appeals. No further action will be taken by this court." 3 CP at 479. On January 17, 2007, Mahone resubmitted his CrR 7.8(b) motion to the superior court. This motion was the same as that filed on November 22, but the conclusion was revised to acknowledge the judicial assistant's December 12 letter, and to note that "the specifics of this Ineffective Assistance of Counsel Claim ha[ve] never been plead[ed] to the Courts nor ruled on." 3 CP at 491.
On January 29, 2007, the superior court received a letter (dated January 25, 2007) from Mahone inquiring about the status of his CrR 7.8(b) motion that was filed on January 17. On February 5, 2007, Judge Culpepper responded in a letter to Mahone stating that the court had received his documents (filed January 17, 2007), that for "unknown reasons" the matter was not noted for hearing, that after receipt of Mahone's January 25 letter the matter had been decided in camera, that the motion was denied, and that a copy of the order was enclosed. 3 CP at 563. The order (dated February 5, 2007) stated "[i]t appearing that no hearing is needed and it appearing that no new issues are raised since denial of Mahone's last motion raising similar issues," the motion is denied. 3 CP at 564. Mahone filed a notice of appeal on February 27, 2007.
Discussion
An order denying a motion to vacate a judgment under CrR 7.8(b) is appealable as of right. RAP 2.2(a)(10) (motion to vacate); RAP 2.2(a)(13) (any order entered after judgment affecting a substantial right). State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002). On review of an order denying a motion to vacate, "only `the propriety of the denial not the impropriety of the underlying judgment' is before the reviewing court." Gaut, 111 Wn. App. at 881 (citing Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
The narrow issue before us is the propriety of the trial court's denial of Mahone's CrR 7.8(b) motion. The trial court engaged in no discussion of any substantive issues in rendering its decision, it merely decided the motion on procedural grounds, denying the motion on the basis that Mahone had raised "no new issues." 3 CP at 564. See State v. Brand, 120 Wn.2d 365, 370, 842 P.2d 470 (1992) (a court may not consider a CrR 7.8(b) motion if the movant has previously brought a collateral attack on similar grounds). Here, Mahone's motion raised a claim of ineffective assistance, which was based on this court's October 31, 2006 decision, that held in part that he had waived his plea challenge by not objecting to the imposition of mandatory community placement at his sentencing hearing. Mahone correctly asserted to the trial court that no court had specifically addressed that particular claim of ineffective assistance. That fact is not dispositive, however.
Mahone has previously raised claims of ineffective assistance, but not the specific claim at issue here.
While "new issues" may be raised on collateral attack, a new issue is not created merely by supporting a previous ground for relief with different factual allegations or with different legal arguments. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004). Specifically, a defendant "may not recast the same issue as an ineffective assistance claim; simply recasting an argument in that manner does not create a new ground for relief or constitute good cause for reconsidering the previous rejected claim." In re Davis, 152 Wn.2d at 671 (citations and internal quotations omitted). See also In re Pers. Restraint of Elmore, 162 Wn.2d 236, 273, 172 P.3d 335 (2007). Here, Mahone's ineffective assistance claim is premised upon his prior assertion that his plea was involuntary because he entered his plea without being adequately informed about the resulting mandatory community placement. We rejected Mahone's "involuntary plea" argument in his prior appeal. See Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 at *1-*3. Mahone now contends that because his plea was involuntary, his counsel should have objected or moved to withdraw his plea at sentencing when the mandatory community placement was imposed. Accordingly, Mahone's ineffective assistance claim is premised upon his prior "involuntary plea" argument and is largely a reiteration of that argument in a different guise. Because we have previously rejected Mahone's "involuntary plea" argument, the trial court correctly ruled that his present CrR 7.8(b) motion presents "no new issues." 3 CP at 564. In re Davis, 152 Wn.2d at 671.
Mandatory community placement is a direct consequence of a guilty plea, and the failure to inform a defendant that he will be subject to mandatory community placement if he pleads guilty will render his plea invalid. See e.g. State v. Ross, 129 Wn.2d 279, 280, 916 P.2d 405 (1996); State v. Turley, 149 Wn.2d 395, 398-99, 69 P.3d 338 (2003); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004); State v. Rawson, 94 Wn. App. 293, 295-96, 971 P.2d 578 (1999).
Mahone's brief does not address this threshold procedural issue, but instead presents substantive arguments that his plea was involuntary and his trial counsel was ineffective. These arguments presume that the trial court reached the merits of his claims. But, as noted, the trial court correctly rejected Mahone's CrR 7.8(b) motion solely on procedural grounds. See Brand, 120 Wn.2d at 371 (declining to address other issues where CrR 7.8(b) motion was procedurally barred as a subsequent collateral attack on similar grounds).
Notably, even after the State pointed out this threshold procedural issue in its response, Mahone did not submit a reply addressing that issue.
The State argues alternatively that this court could also dismiss Mahone's CrR 7.8(b) motion as time barred under RCW 10.73.090's one-year time limit for filing collateral attacks on final judgments. See RCW 10.73.090 (1); CrR 7.8(b) (a subsection b motion is "subject to" RCW 10.73.090). Although we need not address this issue to resolve this case, we note that the State's contention — that Mahone's judgment and sentence became final in 1998 when the mandate issued on his first direct appeal — ignores our prior holding, which rejected that argument. See Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 at *3 (holding Mahone's judgment and sentence was not final until amended in 2005).
Mahone has filed a SAG, but he only raises the same issue argued in his appellate counsel's brief — ineffective assistance. Mahone's SAG does not address the threshold procedural issue and thus suffers the same failing as appellant counsel's brief as discussed above. See State v. Johnston, 100 Wn. App. 126, 132, 996 P.2d 629, review denied, 141 Wn.2d 1030 (2000) (reviewing court need not separately address SAG arguments that simply repeat or paraphrase arguments presented in appellate counsel's brief). Accordingly, we hold that the trial court did not err in denying Mahone's CrR 7.8(b) motion on procedural grounds.
Mahone also argues that prejudice is presumed because the imposition of community placement resulted in a sentence beyond the top of the standard range. We rejected that argument in his prior appeal and he offers no convincing reason to revisit that determination. See Mahone, noted at 135 Wn. App. 1033, 2006 WL 3088427 at *4. See also State v. Worl, 129 Wn.2d 416, 425, 918 P.2d 905 (1996) (reviewing court will reconsider the same issues decided in an earlier appeal only when the court determines that its earlier holdings were clearly erroneous).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, PJ., and Armstrong, J., concur.