Opinion
No. 31195-0-II
Filed: April 27, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 92-1-02985-7. Judgment or order under review. Date filed: 11/21/2003. Judge signing: Hon. R. Worswick Lisa.
Counsel for Appellant(s), Stephanie C. Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Jerrod Duane Stoudmire appeals the trial court's denial of his motion to withdraw his 1993 guilty pleas under CrR 4.2 and CrR 7.8. Because Stoudmire's motion is an untimely collateral attack and because the Supreme Court has already addressed the issue of whether Stoudmire's pleas were voluntary, we affirm.
FACTS
On September 20, 1993, Jerrod Duane Stoudmire entered a guilty plea in Pierce County Superior Court to five counts: count I and II, indecent liberties; count III, second degree statutory rape; count IV, second degree child rape; and count V, third degree child rape. The trial court imposed concurrent sentences totaling 198 months.
After the sentencing hearing, Stoudmire filed a personal restraint petition challenging his guilty plea, arguing that he made it unknowing of the consequences and challenging his offender score. In 1999, Stoudmire filed his second personal restraint petition, alleging: (1) the statute of limitations had run on the two indecent liberties charges; (2) his sentences for second and third degree child rape exceeded statutory maximums; (3) his plea was involuntary because the court did not advise him that he was subject to a mandatory two-year community placement; (4) the court applied the incorrect seriousness levels to his indecent liberties and second degree child rape offenses; (5) his offender score was incorrectly calculated; (6) trial counsel was ineffective; and (7) no factual basis existed for the third degree child rape charge. See In re Stoudmire, 141 Wn.2d 342, 347, 5 P.3d 1240 (2000). We dismissed the petition, ruling that Stoudmire failed to show good cause why the new grounds were not raised in his prior petition. See Stoudmire, 141 Wn.2d at 348.
On review, the Supreme Court dismissed as untimely Stoudmire's ineffective assistance and lack of factual basis claims. Stoudmire, 141 Wn.2d at 350. In addition, the court dismissed his involuntary plea claim because it was part of a `mixed petition;' the court suggested that Stoudmire could resubmit the claim in another petition. Stoudmire, 141 Wn.2d at 350.
But the court reversed Stoudmire's indecent liberties convictions because the statute of limitations had expired. Stoudmire, 141 Wn.2d at 355. Additionally, the court vacated the sentences for second degree and third degree child rape, counts IV and V, and remanded for resentencing. Stoudmire, 141 Wn.2d at 356-57. The lower court corrected these sentences without disturbing the sentence for count III.
Stoudmire petitioned again, arguing that his pleas were facially invalid because the trial court failed to inform him of the mandatory two-year community placement term. See Stoudmire, 145 Wn.2d 258, 266, 36 P.3d 1005 (2001). In 2001, the Supreme Court ruled that the petition was procedurally time-barred under RCW 10.73.090(1). Stoudmire, 145 Wn.2d at 267. Moreover, the court held that Stoudmire's claim failed on its merits. The court reasoned that Stoudmire was aware of the prosecutor's recommendation for a two-year placement when he pleaded, and he knew that at least one year of community placement was mandatory. Stoudmire, 145 Wn.2d at 267. In addition, the plea form gave Stoudmire notice that mandatory community placement applied and that the prosecutor intended to recommend two years. Stoudmire, 145 Wn.2d at 267.
Then in 2002, Stoudmire moved in superior court to withdraw his guilty plea under CrR 4.2(f). He argues that (1) his counsel was ineffective; (2) he was not fully informed of the direct consequences of his guilty plea; (3) no factual basis existed for a finding of guilt; and (4) the prosecutor committed misconduct. The trial court refused to consider the motion because the Court of Appeals had jurisdiction of the case under number 26725-0-II. See State v. Stoudmire, No. 26725-0-II, 2003 WL 21387166 (unpublished).
In that appeal, we held that the offender score failed to account for the different sentencing law in effect at the time Stoudmire committed count III. Stoudmire, 2003 WL 21387166, at *1. Further, we held that the count III sentence was wrongly based on an offender score that included the two convictions for indecent liberties the Supreme Court had vacated. We remanded for resentencing on count III. Stoudmire, 2003 WL 21387166, at *2.
At resentencing, Stoudmire renewed his motion to withdraw his plea based on CrR 4.2(f) and CrR 7.8. The trial court denied the motion, explaining:
I have reconsidered my ruling with regard to the timeliness of that. I noticed that all of his arguments that he's making before me at this level have all been made at the Court of Appeals and they've been rejected for purposes of timeliness.
With regard to the fact that there was no final judgment, I think that the arguments that he's making with regards to ineffective assistance of counsel, notice of the two-year community custody, and the factual basis for the plea all relate back to his original plea date back in '93 or '95.
(11/21/03) RP 5. Then the court entered a corrected judgment and sentence on count III, second degree statutory rape, on November 21, 2003. Stoudmire appealed on December 4, 2003.
ANALYSIS
Stoudmire argues that the 1993 judgment is not the final judgment because it contained invalid convictions and required correction. He reasons that the November 2003 sentence is the final judgment and, therefore, his motion to withdraw his guilty plea is not time-barred. In the alternative, he argues that justice requires that the time limit be equitably tolled because his plea was not `conscious, intelligent, and willing' under the circumstances. Br. of Appellant at 16. The State argues that the issue is not whether his claims are timely under the `corrected' judgment and sentence; the issue is whether Stoudmire, 141 Wn.2d 342, and Stoudmire, 145 Wn.2d 258, control this case.
1. Appeal of a Motion to Withdraw Guilty Plea
Stoudmire moved to withdraw his pleas under CrR 4.2(f) and CrR 7.8(b). A motion to withdraw a guilty plea under CrR 4.2(f) is governed by CrR 7.8, if the motion is made after judgment. Stoudmire collaterally attacks his 1993 pleas; thus, CrR 7.8 applies. We review a trial court's decision under CrR 7.8(b) for abuse of discretion. State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653 (2001) (citing State v. Olivera-Avila, 89 Wn. App. 313, 317, 949 P.2d 824 (1997)). A CrR 7.8(b) motion is subject to the time limitations set out in RCW 10.73.090. Olivera-Avila, 89 Wn. App. at 317 (citing CrR 7.8(b)).
RCW 10.73.090 limits the time that a defendant may collaterally attack a conviction or sentence. It provides in relevant part:
(1) 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.
(2) `[C]ollateral attack' includes . . . a motion to withdraw guilty plea.
(3) For the purposes of this section, a judgment becomes final on the last of the following dates:
(a) The date it is filed with the clerk of the trial court;
(b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction.
Although RCW 10.73.100 enumerates exceptions to the one-year time limit, Stoudmire does not argue that his motion fits within an exception.
A. Case History
In Stoudmire, 141 Wn.2d at 350, the Supreme Court held that Stoudmire's claims that counsel was ineffective and that no factual basis existed for a finding of guilt could not be considered because his personal restraint petition was untimely. The court also refused to consider his claim that his plea was involuntary because he was not informed of the mandatory two-year community placement. Stoudmire, 141 Wn.2d at 350.
In Stoudmire, 145 Wn.2d at 264, Stoudmire argued that RCW 10.73.100(6) applied, so his involuntary plea claim was not time-barred. He relied on State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996), where the court held that a defendant who is not informed of mandatory placement may withdraw his plea. See Stoudmire, 145 Wn.2d at 264. The court held, however, that Ross did not represent a "significant change in the law" and, therefore, Stoudmire's petition did not fall under RCW 10.73.100(6). Stoudmire, 145 Wn.2d at 265 (quoting In re Pers. Restraint of Greening, 141 Wn.2d 698, 697, 9 P.3d 206 (2000)).
But in Stoudmire, 145 Wn.2d at 267, the court held that even if the plea was facially invalid, there was clear and convincing extrinsic evidence that Stoudmire knew of the mandatory two-year minimum term when he pleaded for the second time. In particular, the court noted that Stoudmire's attorney received a presentence investigation report that clearly stated the two-year minimum term. Stoudmire, 145 Wn.2d at 266-67. And Stoudmire withdrew his pleas for other reasons and then pleaded guilty again. Stoudmire, 145 Wn.2d at 267.
B. Whether the Original Judgments Should Be Considered Final
In support of his final judgment argument, Stoudmire cites 13 Washington Criminal Practice and Procedure, section 4912 (3rd. ed. 2004). That section states that federal certiorari is available only to review `a final judgment of the highest court of a state in which review can be had, when the decision depends on the resolution of federal questions.' 13 Wash. Crim. Prac. and Proced., sec. 4912. It further explains that a judgment is final when the state court has `disposed of the case, so that further proceedings are not necessary.' For example, when a state supreme court orders a new trial, there is no final judgment until the new trial is held. 13 Wash. Crim. Prac. and Proced., sec. 4912. This section is not helpful.
Stoudmire also argues that under State v. Smissaert, 103 Wn.2d 636, 640, 694 P.2d 654 (1985), the effective date of a corrected judgment is the date of entry, not the date of the original judgment. In Smissaert, the defendant was convicted of first degree murder and sentenced to a maximum of 20 years in prison. Smissaert, 103 Wn.2d at 638. Then the superior court entered an amended judgment nunc pro tunc, to correct the sentence to a life sentence. See Smissaert, 103 Wn.2d at 638. The Court of Appeals dismissed his appeal as over two years late. See Smissaert, 103 Wn.2d at 638.
The Supreme Court held that because the trial court increased Smissaert's sentence after the time to appeal had run, Smissaert was denied his constitutional right to appeal. Smissaert, 103 Wn.2d at 643. Moreover Smissaert had relied on the original 20-year sentence in deciding not to appeal. Smissaert, 103 Wn.2d at 643. The Supreme Court held that when the trial court imposes an increased sentence to correct a judicial error, the defendant should be placed in the same position as if the error had not occurred. Smissaert, 103 Wn.2d at 643. Accordingly, final judgment dates from entry of the amended judgment. See Smissaert, 103 Wn.2d at 643.
But Stoudmire was not subjected to an increased penalty when the court resentenced him in 2003. Nor did he waive his right to an appeal based on a judicial sentencing error. And, as the trial court commented, `[N]othing has changed based on the new judgment which resentenced him.' Report of Proceedings (RP) (Nov. 21, 2003) at 5. Rather, Stoudmire's motion to withdraw his pleas reached back to the original sentencing in 1993. Smissaert does not help Stoudmire.
Finally, Stoudmire offers no new grounds for review. He relies solely on his argument that his motion is not time-barred. And the Supreme Court in Stoudmire, 141 Wn.2d 342, and Stoudmire, 145 Wn.2d 258, addressed the timeliness of Stoudmire's ineffective assistance and lack of factual basis claims and the merits of his involuntary plea claim.
2. Whether the One-Year Time Limit Should be Equitably Tolled
Stoudmire claims that even if his motion would otherwise be time-barred, the trial court should have found that the time limit was equitably tolled because he diligently sought review of his guilty plea.
The equitable tolling doctrine "permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed." In re Carlstad, 150 Wn.2d 583, 593, 80 P.3d 587 (2003) (quoting State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997)) (emphasis added). The remedy is `generally used . . . when the plaintiff exercises diligence and there is evidence of bad faith, deception, or false assurances by the defendant.' Carlstad, 150 Wn.2d at 593. Courts typically permit equitable tolling only sparingly and do not extend it to `a `garden variety claim of excusable neglect.'' State v. Littlefair, 112 Wn. App. 749, 759-60, 51 P.3d 116 (2002), review denied, 149 Wn.2d 1020 (2003) (citations omitted). RCW 10.73.090 can be subject to equitable tolling in a proper case. Littlefair, 112 Wn. App. at 759.
In Littlefair, the court identified a proper case. There, an immigrant defendant pleaded to a deportable offense. Two years after the judgment and sentence was entered, the Immigration and Naturalization Service (INS) notified Littlefair that it would seek to deport him because of his conviction. Littlefair, 112 Wn. App. at 755. Littlefair was not aware of his possible deportation when he pleaded guilty. Littlefair, 112 Wn. App. at 763. Because this was not his fault and because he would not have pleaded guilty if he had known he could be deported, the court concluded that the one-year time period in RCW 10.73.090 should be equitably tolled. Littlefair, 112 Wn. App. at 763.
In contrast, in Robinson, justice did not require equitable tolling. Robinson, 104 Wn. App. at 661. In that case, almost a year after a defendant pleaded guilty, she mailed a motion to withdraw her plea to the trial court clerk. Robinson, 104 Wn. App. at 661. However, the clerk did not receive her motion until three days after the one-year time-bar had passed. Robinson, 104 Wn. App. at 661. Robinson claimed that the time limit should be equitably tolled because she `diligently pursued her cause and but for either the lateness of the mail or the failure of the clerk to stamp the motion as filed, she would have filed the motion before the expiration date.' Robinson, 104 Wn. App. at 667. Division One held that justice did not require equitable tolling because postal delay was the most likely explanation for Robinson's tardiness and `postal delay is such a common experience that any litigant who has a statute of limitations looming, as this one was . . . should probably either file by facsimile transmission where permitted . . . or mail the document . . . early enough to account for all but the most egregious postal delay.' Robinson, 104 Wn. App. at 668-69.
Similar to Robinson, Stoudmire has not shown a need for equitable tolling. He has sought review of his guilty plea several times over. But he failed originally to bring his claim in a timely fashion, and the Supreme Court has twice held that his motion was time-barred. The fact that he continues to seek review does not remedy that initial lack of diligence, and Stoudmire has not otherwise explained why justice requires the court to equitably toll the time limits of RCW 10 73.090. Furthermore, the Supreme Court has already addressed the merits of Stoudmire's involuntary plea argument. See Stoudmire, 145 Wn.2d at 267.
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.
MORGAN, A.C.J. and HOUGHTON, J., Concur.