Opinion
No. 33713-4-II.
October 31, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 01-1-01443-2, Chris Wickham, J., entered July 18, 2005.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, Po Box 58, Centralia, WA, 98531-0058.
Counsel for Respondent(s), James C. Powers, Thurston County Prosecuting Attorney Ofc, 2000 Lakeridge Dr Sw, Olympia, WA, 98502-6001.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Van Deren, JJ.
Gregory Chapman appeals a trial court's decision to deny his CrR 7.8 motion for a new trial without first holding an evidentiary hearing. Pro se, he also argues that the trial court erred in denying his CrR7.8 motion for a new trial and in denying his motion without entering findings of fact and conclusions of law. Because RCW 10.73.140 bars his claims, we affirm.
FACTS
On September 11, 2001, the State charged Chapman with two counts of second degree assault while armed with a deadly weapon and firearm, first degree kidnapping while armed with a firearm, first degree extortion, and second degree unlawful possession of a firearm. See State v. Chapman, No. 28159-7-II, 2004 Wn. App. LEXIS 1569, *7 (unpublished opinion), review denied, 154 Wn.2d 1004 (2004). On November 16, 2001, a jury found him guilty as charged and the trial court imposed a sentence on December 3, 2001. Chapman, 2004 Wn. App. LEXIS 1569 at *10.
On March 13, 2002, after Chapman's conviction and sentencing, a forensic scientist in the Washington State Patrol Crime Laboratory DNA tested a knife involved in the offenses. The scientist concluded that blood on the knife could not have been the victim's. Chapman, 2004 Wn. App. LEXIS 1569 at *11. Chapman filed a Personal Restraint Petition (PRP) arguing that the newly discovered evidence entitled him to a new trial. Chapman, 2004 Wn. App. LEXIS 1569 at *23-24.
Chapman appealed his case, and this court consolidated his appeal with his PRP. Chapman, 2004 Wn. App. LEXIS 1569 at *23. Based on instructional error, we reversed and remanded his extortion conviction. We affirmed his other convictions and denied his PRP. Chapman, 2004 Wn. App. LEXIS 1569 at *30.
On remand, the trial court conducted a re-sentencing hearing. The State elected not to retry Chapman for the extortion charge. Acting pro se, he submitted a motion for a new trial under CrR 7.8. His motion included no argument as to why he did not raise the issues in this motion in his first PRP. The trial court denied his request for a new trial in a letter opinion without granting an evidentiary hearing.
Chapman appeals.
ANALYSIS
Chapman contends that the trial court erred in denying his CrR 7.8 motion for a new trial without first holding an evidentiary hearing. Because RCW 10.73.140 barred the trial court's review of his motion as a successive collateral attack, we disagree.
RCW 10.73.140 provides:
If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon receipt of a personal restraint petition, the court of appeals shall review the petition and determine whether the person has previously filed a petition or petitions and if so, compare them. If upon review, the court of appeals finds that the petitioner has previously raised the same grounds for review, or that the petitioner has failed to show good cause why the ground was not raised earlier, the court of appeals shall dismiss the petition on its own motion without requiring the state to respond to the petition. Upon receipt of a firs or subsequent petition, the court of appeals shall, when ever possible, review the petition and determine if the petition is based on frivolous grounds. If frivolous, the court of appeals shall dismiss the petition on its own motion without first requiring the state to respond to the petition.
Under CrR 7.8(b), a court may relieve a party from a final judgment, order, or proceeding for mistakes in obtaining the judgment or order, newly discovered evidence, fraud, void judgment, or any other reason justifying relief from the operation of the judgment. This court reviews a trial court's CrR 7.8 ruling for an abuse of discretion. State v. Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 (2005).
CrR 7.8(b) provides that motions brought under CrR 7.8 are subject to RCW 10.73.140, which bars successive collateral attacks unless the person moving for collateral relief "certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why [he or she] did not raise the new grounds in the previous petition." See also State v. Brand, 120 Wn.2d 365, 370, 842 P.2d 470 (1992) (holding that RCW 10.73.140 applies to CrR 7.8 motions by analogy).
In his CrR 7.8 Motion, Chapman raised a number of issues already addressed by us in Chapman, 2004 Wn. App. LEXIS 1569. He presents no argument as to why he did not raise any new issues in his first appeal or in his PRP.
Based on the record before us, Chapman fails to show that this court did not already address the issues he raised in his CrR 7.8 motion or that he had good cause for failing to raise any new issues not addressed in his prior PRP. Accordingly, the trial court properly denied his CrR 7.8 motion.
Moreover, Chapman improperly presented his motion to the trial court. CrR 7.8(c)(1); RCW 9A.72.085(1)-(3); see also Forest, 125 Wn. App. at 706-07 (holding that because defendant improperly submitted unsworn written statement, the appellate court need not address his claim). His hand-written statement stated, "Petitioner swears under the penalty of perjury according to the laws of the State of Washington that the foregoing is true and correct to the best of his belief and knowledge," but, among other things, he failed to sign or date the document. Clerk's Papers at 78.
In his Statement of Additional Grounds, RAP 10.10, Chapman also asserts that the trial court erred in denying his CrR 7.8 motion without entering findings of fact or conclusions of law. Nothing in CrR 7.8 requires a trial court to enter findings of fact or conclusions of law when denying a CrR 7.8 motion and his argument fails.
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.
HUNT, J. and DEREN, J., Concur.