Opinion
No. 62978-6-I.
November 16, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 93-1-00095-5, Ira Unrig, J., entered January 29, 2009, together with a petition for relief from personal restraint.
Appeal dismissed and petition denied by unpublished opinion per Leach, J.,
James Thomas Baird filed a CrR 7.8 motion to vacate the exceptional sentence entered on his first degree assault conviction. The superior court denied the motion as untimely under RCW 10.73.090, and Baird appealed. But the amended version of CrR 7.8 required the superior court to transfer the untimely motion to the Court of Appeals for consideration as a personal restraint petition (PRP). We therefore vacate the superior court's denial of Baird's motion, dismiss the appeal, and convert the matter for consideration as a PRP. We further deny Baird's PRP as untimely because State v. Carreno-Maldonado does not represent a significant change in the law that is material to Baird's sentence.
135 Wn. App. 77, 143 P.3d 343 (2006).
Background
In 1993, Baird attacked his wife. He beat her unconscious with lead-lined gloves and then surgically disfigured her face by cutting off her nose and slicing her eyelids. A jury convicted him of first degree assault on April 1, 1994, and the court imposed an exceptional sentence of 240 months' confinement. Baird unsuccessfully appealed his sentence, and the mandate affirming his conviction was issued on March 19, 1997.
On October 7, 2008, Baird filed a CrR 7.8 motion in Whatcom County Superior Court, asserting that his exceptional sentence should be vacated under Carreno-Maldonado because the prosecutor had improperly made statements on behalf of Baird's wife. Following a hearing, the court held that Carreno-Maldonado did not apply and denied Baird's motion as untimely and without merit. Baird appeals.
Standard of Review
We review a superior court's CrR 7.8 ruling for an abuse of discretion. The court abuses its discretion when it bases its decisions on untenable or unreasonable grounds.
State v. Larranaga, 126 Wn. App. 505, 509, 108 P.3d 833 (2005).
State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007).
Analysis
Baird argues the superior court lacked authority to deny his CrR 7.8 motion as untimely under RCW 10.73.090. The State properly concedes this error.
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."
Before 2007, CrR 7.8(c) granted the superior court discretion to transfer a motion for relief from judgment to the Court of Appeals for consideration as a PRP "if such transfer would serve the ends of justice." But on September 1, 2007, this rule was amended to provide the following procedure:
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.
CrR 7.8(c)(2).
Under the amended rule, the superior court can no longer dismiss a CrR 7.8 motion if it is untimely under RCW 10.73.090. Rather, the court must transfer the motion for consideration as a PRP. Thus, the superior court erred in denying Baird's CrR 7.8 motion as untimely under RCW 10.73.090.
State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008).
Smith, 144 Wn. App. at 863.
Given this error, Baird asks that we remand his case to the superior court to allow it to enter an order complying with CrR 7.8. In support of this request, he cites State v. Smith. The State responds that Smith is distinguishable and asserts that the proper remedy is to convert the matter for consideration as a PRP and to dismiss it as time barred.
144 Wn. App. 860, 184 P.3d 666 (2008).
In Smith, the superior court erroneously denied the defendant's CrR 7.8(c) motion as time barred under the amended version of RCW 10.73.090. On appeal, Division Two declined to convert the notice of appeal to a PRP, reasoning that such a conversion could "infringe on [the defendant's] right to choose whether he wanted to pursue a personal restraint petition because he would then be subject to the successive petition rule in RCW 10.73.140 as a result of our conversion of the motion." Therefore, the court remanded the case to permit the superior court to enter an order complying with CrR 7.8(c).
Smith, 144 Wn. App. at 863-64.
Smith, 144 Wn. App. at 864.
Smith, 144 Wn. App. at 864.
The concerns expressed in Smith are not present in this case. Unlike the defendant in Smith, Baird has previously filed two PRPs collaterally attacking his judgment and sentence, so he is already subject to the successive petition rule. Furthermore, remand would not conserve judicial resources because Baird's claim involves a legal issue that does not pose any factual issues requiring resolution in the trial court. Accordingly, we agree with the State that the appropriate remedy here is to convert the matter for consideration as a PRP.
We further agree with the State that Baird's claim, treated as a PRP, is time barred. Generally, a PRP must be filed within one year after the judgment and sentence become final. But in cases where there has been a "significant change in the law" that is "material" to the conviction and sentence, the one-year time limit does not apply.
Baird contends that Carreno-Maldonado represents a significant change in the law material to his sentence. There, Division Two held that the deputy prosecutor's statements at a sentencing hearing, purportedly made on behalf of the victims, breached a plea agreement by undercutting the State's agreed sentencing recommendation. As the superior court correctly noted, Carreno-Maldonado does not apply here, however, because it concerns allegations regarding the breach of plea agreement. No such allegations were made in this case. Accordingly, we deny Baird's PRP as untimely.
Carreno-Maldonado, 135 Wn. App. at 86-87.
We do not address whether Baird's PRP is barred as successive under RCW 10.73.140 because his reliance on Carreno-Maldonado is misplaced.
Conclusion
The amended version of CrR 7.8 does not permit the superior court to deny a CrR 7.8 motion as untimely under RCW 10.73.090. We therefore vacate the superior court's denial of Baird's motion and dismiss his appeal. Converting the matter for consideration as a PRP, we deny Baird's PRP as untimely. Carreno-Maldonado does not represent a significant change in the law that is material to Baird's sentence.
WE CONCUR: