Opinion
No. 37031-0-II.
January 21, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03718-4, Lisa R. Worswick, J., entered October 16, 2007.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Hunt, J.
UNPUBLISHED OPINION
James Stogsdill appeals from the trial court's summary denial of his CrR 7.8 motions without first holding a show cause hearing. He raises additional arguments pro se. We reverse and remand.
FACTS
On March 2, 2006, Stogsdill pleaded guilty to second degree rape of a child. On March 31, the trial court sentenced him to 136 months to life imprisonment and lifetime community custody. As a part of his judgment and sentence, the trial court ordered him to have no contact with either A.T. or H.W., the two victims. As part of his community custody conditions, the trial court ordered him not to consume alcohol, have no contact with minor children, and register as a sex offender.
Stogsdill appealed and we affirmed. After we issued the mandate on July 31, 2007, Stogsdill moved to modify his judgment and sentence under CrR 7.8 by filing two separate motions on September 5. The two motions challenged his no contact order and sentencing. The trial court denied both of those motions separately on October 16. On November 21, Stogsdill appealed those two decisions to us. On November 27, this court opened an appeal. On December 13, the trial court ordered that Stogsdill's motions be converted to a personal restraint petition (PRP) under CrR 7.8(c)(2). On January 3, 2008, we declined to hear the matter because he had directly appealed the September 5, 2007 orders.
In affirming, we rejected Stogsdill's assignments of error based on the involuntariness of his guilty plea, the victim's age, and ineffective assistance of counsel. State v. Stogsdill, noted at 139 Wn. App. 1013 (2007).
We issued a corrected mandate on October 16, 2007.
ANALYSIS CrR 7.8
Stogsdill first contends that under CrR 7.8(c)(2), if the trial court does not transfer his motion to the Court of Appeals as a PRP, it must hold a show cause hearing under CrR 7.8(c)(3). The State concedes the issue and agrees that the trial court acted improperly when it applied an earlier version of the rule. The applicable version of CrR 7.8(c) provides:
We note, as the State does, that the pertinent amendment to CrR 7.8 took effect only four days before Stogsdill filed his CrR 7.8 motions.
(2) Transfer to Court of Appeals. The court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition unless the court determines that the motion is not barred by RCW 10.73.090 and either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.
(3) Order to Show Cause. If the court does not transfer the motion to the Court of Appeals, it shall enter an order fixing a time and place for hearing and directing the adverse party to appear and show cause why the relief asked for should not be granted.
Here, the trial court denied Stogsdill's timely motions without holding a show cause hearing. In doing so, it failed to comply with CrR 7.8(c)(3). State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008) (holding that under the version of CrR 7.8 adopted on September 1, 2007, the superior court has the authority to "rule on the merits of the motion when the motion is timely filed and either (a) the defendant makes a substantial showing that he is entitled to relief or (b) the motion cannot be resolved without a factual hearing").
Accordingly, we do not reach the merits of Stogsdill's motions because under RAP 2.2(a)(10), we review only whether the trial court abused its discretion in denying his CrR 7.8 motions, not the propriety of the underlying judgment. See State v. Larranaga, 126 Wn. App. 505, 509, 108 P.3d 833 (2005). Therefore, we remand to the trial court for a hearing in compliance with CrR 7.8.
A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007). Here, the trial court bases its decision on untenable grounds because the applicable rule required a hearing.
Statement of Additional Grounds
RAP 10.10.
In his Statement of Additional Grounds (SAG), Stogsdill raises other arguments. He claims that he should have been sentenced under the 1999 sentencing guidelines and that he received ineffective assistance of counsel when his attorney advised him to sign the guilty plea.
Stogsdill argues that he should have been sentenced under the 1999 guidelines because he signed a plea for one count of second degree rape of a child "that was allegedly committed on 4-1-99." SAG at 1. The record does not support his claims.
The amended information charges him with the crime during the period of September 2, 2001, and March 30, 2003. The judgment and sentence, which Stogsdill signed, lists the date of the crime as September 2, 2001, to March 30, 2003. He wrote in his statement on plea of guilty that the crimes occurred between September 2, 2001, and March 30, 2003. In his statement, he pleads to count I in the amended information.
Although the date of April 4, 1999, appears to have been crossed out and replaced with September 2, 2001, that change bears Stogsdill's signature. As he admits in his SAG, "[a]s you can see the 4-1-99 crossed out and yes I did sign next to were [sic] they crossed out which in fact makes it that I did agree to the new guied [sic] lines." SAG at 2. His argument fails.
Stogsdill argues that his counsel misinformed him of the consequences of his plea, that the prosecutor did not act in good faith by changing the negotiated plea deal without notice, and that his attorney "failed to inform [him] on the day of the plea deal I had the option to ask the court to pull out of the plea instead my attorney said there was nothing that could be done." SAG at 3. Because this argument references matters outside the record on direct appeal, we will not review it further. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) (ruling that a personal restraint petition is the appropriate method to obtain review of matters outside the record); see also RAP 16.4.
Reversed and remanded.
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.
Hunt, J. Van Deren, C.J. Concur.