Opinion
No. 36477-8-II.
April 22, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 95-1-01997-0, Frederick W. Fleming, J., entered June 14, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Penoyar, J.
Dean Alan Royer appeals the trial court's denial of his CrR 7.8 motion challenging his 1996 sentence to life without parole under the Persistent Offender Accountability Act (POAA). He argues that (1) the trial court erred in ruling his motion untimely under RCW 10.73.090(1); (2) his CrR 7.8 motion was not subject to the one-year time bar because the trial court exceeded its jurisdiction when it imposed the POAA sentence in 1996; and (3) his 1996 POAA judgment and sentence was facially invalid because it depended on a 1990 strike offense that was also facially invalid. We affirm.
Because Royer committed these offenses on April 21, 1995, he was sentenced under former RCW 9.94A.120(4) (1995). The Legislature has since recodified this provision as RCW 9.94A.505(2)(a)(v) and RCW 9.94A.570.
FACTS I. 1996 Convictions and Sentencing
On April 26, 1995, the State charged Royer with first degree burglary with a deadly weapon enhancement, unlawful possession of a firearm, second degree assault, and two counts of first degree assault. Royer pleaded guilty to the unlawful possession of a firearm charge. A jury found him guilty of first degree burglary with a deadly weapon enhancement and three counts of second degree assault.
At the time of his January 22, 1996 sentencing for these offenses, Royer's criminal history included prior convictions for second degree robbery and second degree assault. Because these two prior convictions and several of his current convictions were "most serious offenses" under RCW 9.94A.030(29)(a), (b), and (o), the trial court found Royer was a persistent offender under former RCW 9.94A.120(4), and it imposed sentences of life without parole for the first degree burglary and second degree assault convictions.
Royer committed the robbery in 1987. He was originally convicted of first degree robbery. Following a successful direct appeal of his first degree robbery conviction, State v. Royer, 58 Wn. App. 778, 794 P.2d 1325 (1990), he pleaded guilty to second degree robbery in 1990.
Before his 1966 sentencing, Royer filed a motion asserting that the trial court should not sentence him under the POAA because it was unconstitutional. He did not assert in this motion, however, that his 1990 second degree robbery plea was invalid.
On February 9, 1996, Royer appealed his 1996 convictions and sentences. Our court commissioner affirmed Royer's convictions and life sentences. The direct appeal mandated in August 1998.
II. CrR 7.8 Motions
More than eight years later, on December 27, 2006, and March 30, 2007, Royer filed identical CrR 7.8 motions moving to modify his 1996 POAA sentences because they were based on his 1990 second degree robbery plea, which was constitutionally invalid. He contended that (1) the elements set out in the statement of defendant on his 1990 plea of guilty and his statement in the plea did not set out all of the elements of second degree robbery or establish a factual basis for his plea; and (2) because of this facial invalidity, his CrR 7.8 motions were not untimely under RCW 10.73.100 or former CrR 7.8(a) and (b). In support of his motions, he attached copies of his 1990 statement of defendant on plea of guilty.
This 1990 statement of defendant on plea of guilty included the following assertion:
The elements of the crime(s) are: On or about April 24, 1987, in Pierce Co., WA., the defendant did unlawfully and feloniously take personal property from the person or in the presence of another against their will.
Clerk's Papers (CP) at 28, 48. This statement also noted that Royer was pleading guilty to the crime of second degree robbery "as charged in the amended information," CP at 29, 49, and the following reason for pleading guilty:
I want to plead guilty to take advantage of the plea bargain. I have reviewed the evidence in this case and understand that there is a reasonable likelihood of conviction should I go to trial and I don't want to risk that.
CP at 30, 50.
The trial court ruled that Royer's motions were time barred under RCW 10.73.090 and denied them, without addressing the merits of Royer's arguments. Royer appeals the trial court's denial of his CrR 7.8 motions.
The trial court did not transfer Royer's CrR 7.8 motions to this court for consideration as personal restraint petitions under former CrR 7.8(c)(2). We note that the current version of CrR 7.8(c)(2), which went into effect September 1, 2007, would have required the trial court to transfer Royer's motions to us for consideration as personal restraint petitions when it determined that they were untimely.
ANALYSIS I. Standard of Review
We review a trial court's denial of a CrR 7.8 motion for abuse of discretion. State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994); State v. Aguirre, 73 Wn. App. 682, 686, 871 P.2d 616, review denied, 124 Wn.2d 1028 (1994). A trial court abuses its discretion if its decision is manifestly unreasonable, or if it bases its decision on untenable grounds or for untenable reasons; basing a decision on an erroneous view of the law is an abuse of discretion. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003); Aguirre, 73 Wn. App. at 686. Such is the case here.
II. Time Bar
Royer contends that the trial court erred when it concluded that his CrR 7.8 motions were time barred. He argues that (1) because he brought these motions under CrR 7.8(b)(4) and (5), they were not subject to the one-year limit in CrR 7.8(b); (2) the one-year time bar in RCW 10.73.090(1) does not apply because his 1996 judgment and sentence is facially invalid; and (3) RCW 10.73.090(1) does not apply because his 1996 sentence exceeded the trial court's jurisdiction. Regardless of whether the one-year time limit of CrR 7.8(b) applies, Royer fails to show that RCW 10.73.090(1) does not apply.
See RCW 10.73.100(5).
In a footnote, Royer also asserts that when he entered his plea in 1990, he was never advised of the one-year time limit under RCW 10.73.090(1). This assertion involves matters that are outside the record on appeal and, therefore, we do not consider it further.
A. 1996 Judgment and Sentence Not Facially Invalid
RCW 10.73.090(1) provides:
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.
Royer's 1996 judgment and sentence became final when his direct appeal mandated in 1998. RCW 10.73.090(3)(b).
A judgment and sentence is facially invalid if "the judgment and sentence evidences the invalidity without further elaboration." In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866, 50 P.3d 618 (2002) (citing In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 5 P.3d 1240 (2000); In re Pers. Restraint of Thompson, 141 Wn.2d 712, 10 P.3d 380 (2000)). There is nothing on the face of petitioner's 1996 judgment and sentence suggesting any facial invalidity.
We may, however, look to "related documents, i.e., charging instruments, statements of guilty pleas, [and] jury instructions," to determine whether a judgment and sentence is facially invalid. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 858, 100 P.3d 801 (2004) (citing In re Pers. Restraint of Hemenway, 147 Wn.2d 529, 532, 55 P.3d 615 (2002)). But even assuming we are entitled to examine Royer's 1990 statement pleading guilty to the second degree robbery, in order to determine the facial validity of the 1996 judgment and sentence, Royer fails to establish that the 1990 plea-based judgment and sentence was facially invalid.
At best he shows that (1) his 1990 guilty plea statement did not expressly include each element of the offense of second degree burglary; and (2) because it was an Alford Newton plea, he never admitted to each element of the offense. But this assertion does not establish that other documents relevant to his 1990 guilty plea, including the amended information specifically cited in his 1990 guilty plea statement, did not inform him of each element of the offense or establish a factual basis for the plea. Nor does Royer show that the trial court otherwise failed to ensure that his plea was constitutionally sufficient when it accepted his guilty plea in 1990. See State v. Ammons, 105 Wn.2d 175, 189, 713 P.2d 719, 718 P.2d 796 (1986) (holding that the guilty plea form did not, on its face, show that the defendant's plea was constitutionally invalid because it did not show that all constitutional safeguards were not provided by other means); State v. Lewis, 141 Wn. App. 367, 396-97, 166 P.3d 786 (2007) ("When challenging a guilty plea to be used at a later sentencing, the defendant must not only show that the plea forms were deficient, but he must also show that the sentencing court deprived him of constitutional safeguards.") (citing State v. Gimarelli, 105 Wn. App. 370, 376, 20 P.3d 430, review denied, 144 Wn.2d 1014 (2001)); see also State v. Thompson, No. 34540-4-II, slip op. at 5-6 (Wash.Ct.App. April 8, 2008) (claim of facial invalidity must be established on the face of judgment and sentence and related documents alone).
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (a defendant may plead guilty while disputing the facts alleged by the prosecution); see also State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
Accordingly, we hold that Royer did not establish facial invalidity of his 1996 judgment and sentence.
B. 1996 Sentence Did Not Exceed Trial Court's Jurisdiction
Citing RCW 10.73.100(5), Royer further asserts that, even if RCW 10.73.090(1) applies, his claims fall under an exception to the one-year time bar. Again, we disagree.
RCW 10.73.100 provides six exceptions to the one-year time bar for challenging judgments and sentences. The only potentially applicable exception here is RCW 10.73.100(5), which, as Royer notes, provides that RCW 10.73.090(1) does not apply if "[t]he sentence imposed was in excess of the court's jurisdiction." Royer contends that because his 1990 guilty plea was invalid, the trial court exceeded its jurisdiction by using it to impose a POAA life sentences for his 1996 convictions. This argument fails.
Royer also argues that his trial counsel was ineffective for failing to challenge the validity of his 1990 plea when the trial court used it at his 1996 sentencing hearing. But we do not consider this argument because, as we have discussed above, (1) Royer failed to establish that the one-year time bar does not apply to his CrR 7.8 motions; and (2) his ineffective assistance of counsel claim clearly does not fall under any exception to the time bar stated in RCW 10.73.100.
Even assuming this assertion could theoretically establish that the trial court exceeded its jurisdiction when it sentenced Royer in 1996, as we discuss above, Royer failed to establish that his prior 1990 plea was invalid. Therefore, he has not shown that the trial court exceeded it jurisdiction when it used his 1990 judgment and sentence in 1996 to impose POAA life sentences for his 1995 convictions.
Royer having failed to show that his 1996 judgment and sentence was facially invalid or that the trial court's sentences exceeded its jurisdiction, we hold that the trial court did not err when it denied Royer's CrR 7.8 motions as untimely.
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, C.J., and PENOYAR, J., concur.