Opinion
No. 62461-0-I.
March 1, 2010.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-01094-3, Steven J. Mura, J., entered September 5, 2008, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Dwyer, J.
Marlow Eggum filed a CrR 7.8 motion to vacate one count of his guilty plea to two counts of stalking and one count of felony harassment as lacking a factual basis. The superior court denied the motion as clearly without merit, and Eggum appealed. Because Eggum made no substantial showing that he was entitled to the requested relief, the current version of CrR 7.8 required the superior court to transfer the motion to the Court of Appeals for consideration as a personal restraint petition (PRP) rather than deny the motion on the merits. We therefore vacate the superior court's denial of Eggum's motion, dismiss the appeal, and convert the matter for consideration as a PRP. We deny Eggum's PRP on the merits because a defendant may not challenge only a portion of a plea as involuntary when, as here, the entire plea agreement was indivisible.
Background
The circumstances surrounding Eggum's plea bargain to an agreed exceptional sentence of 72 months for two counts of stalking and one count of felony harassment have been previously set forth in full in this court's opinions in Nos. 60703-1-I and 60667-1-I, which affirmed denials of Eggum's earlier attempts to collaterally attack his convictions through postsentencing motions in the trial court. Those facts are well known to the parties and need not be repeated here except as necessary to explain our ruling.
On January 24, 2007, Eggum entered his guilty plea. After the trial court denied his earlier attempts to withdraw his plea and challenge his agreed exceptional sentence, Eggum filed a pro se motion to withdraw his plea as to count III only, based on his claim that a factual basis for that count was lacking in the prosecutor's statement of probable cause on which his plea was based. Following a hearing, the court denied Eggum's motion, finding that a factual basis existed for the challenged count.
Eggum 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
Eggum contends that the affidavit of probable cause, which he had incorporated by reference into his plea statement, failed to provide a factual basis to support his plea to count III, felony harassment, because there was insufficient proof that he had threatened the victim of that count with death.
The State counters that withdrawal of a plea to only one count of an indivisible plea agreement involving multiple counts is not a proper remedy for an allegedly partially involuntary plea. The State further argues, alternatively, that the mere absence of a factual basis for a plea does not necessarily establish an independent constitutional violation or basis to withdraw a plea. As a third alternative, the State also contends that a death threat is sufficiently implied from Eggum's multiple threatening statements to the victim recounted in the affidavit to provide a factual basis for count III in any event.
See State v. Zhao, 157 Wn.2d 188, 200-203, 137 P.3d 835 (2006).
See State v. C.G., 150 Wn.2d 604, 608-09, 80 P.3d 594 (2003).
Because it is clear under our Supreme Court's opinions in State v. Bisson, State v. Ermels, and State v. Turley that a trial court may not grant a motion to withdraw a plea as to an individual count when the defendant pleaded guilty to multiple counts in one agreement, we agree with the State's first argument and therefore do not address the other contentions.
156 Wn.2d 507, 518-20, 130 P.3d 820 (2006).
156 Wn.2d 528, 541, 131 P.3d 299 (2006).
149 Wn.2d 395, 398-400, 69 P.3d 338 (2003).
Eggum does not dispute that his plea to three counts with an agreed exceptional sentence on the State's promise not to file twelve additional counts constituted an indivisible plea agreement. He suggests, however, that this court could rely on the Supreme Court's opinion in State v. Knight, 162 Wn.2d 806, 812, 174 P.3d 1167 (2008), to conclude that he may still challenge only a single count, but Knight's holding is limited to the context of the double jeopardy claim raised in that case and does nothing to undermine the reasoning in Bisson, Ermels, and Turley, which Eggum does not discuss, and which clearly controls here.
The State correctly argues that Eggum's motion clearly lacked merit under Bisson, Ermels, and Turley but also properly concedes that the superior court lacked authority to deny Eggum's motion on the merits. 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 require 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 as clearly lacking merit. Rather, the court must transfer the motion to the Court of Appeals for consideration as a PRP. Thus, the superior court erred in denying Eggum's CrR 7.8 motion as without merit.
Cf. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008).
Smith, 144 Wn. App. at 863.
The State requests that, in the interests of judicial economy, this court convert this matter to a personal restraint petition and deny the petition under the controlling authority provided by Ermels, Bisson, and Turley. The State acknowledges that in State v. Smith, a panel of Division Two of this court declined to proceed in this fashion in somewhat similar circumstances. We agree with the State that Smith's holding is properly distinguished here.
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 RCW 10.73.090. The reviewing court declined the State's request 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 for 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, Eggum has already filed multiple posttrial motions and petitions collaterally attacking his judgment and sentence, so he is already subject to the successive petition rule. Furthermore, remand would not conserve judicial resources because Eggum's claim involves a legal issue that does not require resolution of any factual dispute 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 and to deny Eggum's petition on the merits.
See Nos. 60703-1-I (appeal of denial of CrR 7.8 motion); 60667-1-I (same); 61180-1-I (personal restraint petition); RCW 10.73.140; State v. Brand, 120 Wn.2d 365, 369-71, 842 P.2d 470 (1992) (bar to subsequent petitions absent showing of good cause applies to collateral attacks filed in trial court after earlier personal restraint petition). As the State correctly notes, even the motion that is the subject of this appeal was filed in violation of this rule because Eggum failed to explain why he could not have raised his claim here in his earlier collateral attacks. However, the same statute requires dismissal of frivolous petitions regardless of whether they are first or subsequent petitions. Such is the case here because Eggum's only request for relief is contrary to controlling law.
Conclusion
Converting the matter for consideration as a PRP, we deny Eggum's PRP on the merits as an improper attempt to withdraw only a portion of his plea that was part of an indivisible plea agreement.
WE CONCUR: