Opinion
No. 59021-9-I.
February 25, 2008.
Appeal from a judgment of the Superior Court for King County, No. 95-1-01106-0, Douglas D. McBroom, J., entered October 23, 2006.
Affirmed by unpublished per curiam opinion.
In 1995, a jury found Stacie Avery guilty of first degree rape and first degree burglary. He subsequently filed a series of unsuccessful collateral attacks, challenging these convictions. Most recently, in May 2007, Avery filed a motion in King County Superior Court to vacate the convictions. Noting that the Court of Appeals had already dismissed a personal restraint petition in which Avery raised the same issue, the trial court denied the motion to vacate. Because Avery's collateral attack on his convictions is time-barred under RCW 10.73.090(1), the trial court did not abuse its discretion in denying the motion to vacate. Accordingly, we affirm.
In the direct appeal from his 1995 convictions, Avery argued, among other things, that the absence of the jury instructions from the record effectively deprived him of his right to appeal. We eventually permitted the State to supplement the record with the deputy prosecutor's set of instructions after the trial court held a hearing and found that the instructions accurately represented those given at trial. See State v. Avery, noted at 83 Wn. App. 1019 (1996), 1996 WL 523728, review denied, 132 Wn.2d 1001 (1997). In the motion to vacate, Avery argued that his due process rights were violated because he was not represented by counsel at the August 1996 hearing when the trial court settled the record regarding the jury instructions. See generally Chessman v. Teets, 354 U.S. 156, 77 S. Ct. 1127, 1 L. Ed. 2d 1253 (1957) (ex parte settlement of record violated defendant's due process rights).
RCW 10.73.090(1) prohibits the filing of a collateral attack on a facially valid judgment and sentence more than one year after the judgment becomes final. See In re Pers. Restraint of Runyan, 121 Wn.2d 432, 449-51, 853 P.2d 424 (1993). Avery has not alleged, much less demonstrated, that his convictions were facially invalid or that any of the exceptions to the one-year time limit apply to his claim. See RCW 10.73.100. Avery's judgment and sentence became final on June 16, 1997, when this court issued its mandate. RCW 10.73.090(3)(b). Because Avery's 2006 motion to vacate was time-barred, the trial court properly denied it.
This court has repeatedly rejected — as time-barred and successive — similar claims that Avery has raised in personal restraint petitions. See In re Pers. Restraint of Avery, No. 56825-6-I (filed September 26, 2005).
Avery has filed a statement of additional grounds for review as allowed by RAP 10.10. But despite an unexplained reference to CR 2A, Avery's challenge is essentially identical to that raised by counsel and is therefore time-barred under RCW 10.73.090(1).
Affirmed.