Opinion
No. 29017-4-III.
April 19, 2011.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-1-00437-5, Donald W Schacht, J., entered April 12, 2010.
Affirmed by unpublished opinion per Korsmo, A.C.J., concurred in by Sweeney and Brown, JJ.
Ricardo Aguilar appeals the denial of his second motion to withdraw his guilty plea, arguing that the trial court abused its discretion in denying the motion. We agree with the trial court that this collateral attack was untimely and affirm.
FACTS
Pursuant to a plea agreement, Mr. Aguilar pleaded guilty January 31, 2008, to three of the eight charges filed against him in the Walla Walla County Superior Court. He was sentenced February 25, 2008, to concurrent terms on the three charges. The longest sentence was 120 months for possessing cocaine with intent to deliver while armed with a firearm. That sentence included a 36-month firearm enhancement. The court also imposed 9-12 months of community supervision.
Mr. Aguilar moved to withdraw his guilty plea on April 2, 2008. That motion was denied and he appealed on May 5, 2008. While that appeal was pending in this court, the trial court entered an order clarifying the judgment and sentence to reflect that the 120-month sentence on the cocaine count consisted of a 36-month enhancement and an 84-month base sentence, and that the enhancement would run consecutive to the other sentences. The order, entered December 29, 2008, also clarified that the combined period of incarceration and supervision would not exceed 120 months.
This court affirmed the ruling denying withdrawal of the plea. State v. Aguilar, No. 27099-8-III, noted at 152 Wn. App. 1006 (Sept. 3, 2009), review denied, 168 Wn.2d 1024 (2010). Before that ruling issued, Mr. Aguilar filed a motion to vacate the judgment on the basis that the combined period of incarceration and supervision exceeded the statutory maximum sentence. The trial court denied that motion. Mr. Aguilar did not appeal.
On March 16, 2010, Mr. Aguilar once again moved to withdraw his guilty plea, arguing that the 36-month weapon enhancement constituted an improper additional punishment. The trial court denied the motion, finding that it was time barred, barred by collateral estoppel, and without merit. Mr. Aguilar again appealed to this court.
ANALYSIS
Mr. Aguilar raises three claims in this appeal. Because this action was untimely filed in the superior court, we only address that aspect of the trial court's ruling.
RCW 10.73.090 limits the time period for filing collateral attacks on a criminal judgment and sentence. Attacks on a facially valid judgment entered by a court of competent jurisdiction must be commenced within one year of the judgment becoming final. RCW 10.73.090(1). A collateral attack is "any form of postconviction relief other than a direct appeal," and includes a motion to withdraw a guilty plea. RCW 10.73.090(2).
For 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; or
(c) The date that the United States Supreme Court denies a timely petition for certiorari to review a decision affirming the conviction on direct appeal. The filing of a motion to reconsider denial of certiorari does not prevent a judgment from becoming final.
The motion currently on appeal was filed two years after the judgment entered on February 25, 2008. Because there was no appeal from the original judgment, but only collateral attacks and appeals from those attacks, the finality date was not extended by RCW 10.73.090(3)(b). The judgment became final when it was entered on February 25, 2008.
Even if the order clarifying the judgment entered December 29, 2008, had constituted an amended judgment and sentence, the current motion was filed more than one year after that date.
This appeal is thus untimely unless an exception to the time bar exists. RCW 10.73.100 provides six exceptions to the one year limit. Mr. Aguilar, however, argues that the judgment is not valid on its face and, hence, the one year limit of RCW 10.73.090 does not apply. Specifically, he argues that the judgment does not clarify that the enhancement was to be served consecutively to the other sentences. His argument does not establish facial invalidity.
A facially invalid judgment is "a conviction which without further elaboration evidences infirmities of a constitutional magnitude." In re Pers. Restraint of Thompson, 141 Wn.2d 712, 718, 10 P.3d 380 (2000). Courts may include documents entered as part of the plea agreement in assessing a claim of facial invalidity. Id.
The judgment and sentence reflected that 36 months of the 120 months imposed on the cocaine conviction constituted a firearm enhancement. The only error in the judgment form is that it does not reflect the ordering of the enhancement with respect to the other two counts. Mr. Aguilar, however, had been informed in the guilty plea form that the enhancement would run consecutively to the other sentences. Clerk's Papers at 74. The judgment form reflects a correct sentence of 120 months on the cocaine delivery conviction consisting of a base sentence and a firearm enhancement. The 2008 judgment is not facially invalid. Mr. Aguilar did not timely challenge that document in this proceeding.
The trial court properly denied the 2010 motion to withdraw the guilty plea.
Under CrR 7.8(c)(2), the trial court was required to transfer the matter to this court once it found the collateral attack was untimely. The failure to do so, however, did not harm Mr. Aguilar.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J. and Brown, J., concur.