Opinion
No. 20815-0-III
Filed: March 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 98-1-01810-1. Judgment or order under review. Date filed: 12/20/2001. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Susan Marie Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
John Leonard Calvert appeals from a Spokane County Superior Court order summarily denying his CrR 7.8 motion for new trial and/or to vacate his 1999 convictions for first degree burglary and attempted first degree robbery. We agree with Mr. Calvert's contention that consideration of his motion as a personal restraint petition would serve the ends of justice. We, therefore, vacate the court's order dismissing Mr. Calvert's motion.
Mr. Calvert earlier filed a direct appeal from the judgment and sentence. This court affirmed the convictions and dismissed a consolidated personal restraint petition. See State v. Calvert, No. 18207-0-III, 2001 WL 108195 (Wash.Ct.App. Feb. 8, 2001). The judgment became final when the mandate was issued on September 20, 2001.
Mr. Calvert filed the current CrR 7.8 motion less than one year later, on December 13, 2001. He claimed, among other things, that his due process rights were violated because the court erroneously instructed the jury regarding accomplice liability under the intervening case, State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000). The superior court denied the motion, reasoning, 'The . . . case was decided in the Court of [A]ppeals, and that is now the law of the case.' Clerk's Papers at 32.
But the court did not address whether Mr. Calvert's motion warrants consideration under the successive personal restraint petition rules in RCW 10.73.140. The ends of justice will thus best be served if the Court of Appeals considers this matter as a personal restraint petition and makes that determination. See CrR 7.8(c)(2); see also In re Pers. Restraint of Perkins, 143 Wn.2d 261, 266-67, 19 P.3d 1027 (2001) (Court of Appeals retains power to transfer petition raising new grounds for relief to Supreme Court where good cause requirements of RCW 10.73.140 are not met). Accordingly, on the authority of RAP 12.2, we vacate the superior court's order dismissing Mr. Calvert's CrR 7.8 motion and refer the matter to the Chief Judge for further disposition as a personal restraint petition under RAP 16.11(b). Mr. Calvert's appointed attorney, Susan Marie Gasch, shall remain as counsel throughout the personal restraint petition proceedings.
The 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.
BROWN, C.J. and KATO, J., concurs.