Opinion
No. 61246-8-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-00061-0, Ira Uhrig, J., entered January 4, 2006.
Reversed and remanded by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Grosse, J.
Paul Hill filed a CrR 7.8 motion to modify or correct the sentence entered after he pleaded guilty to second degree burglary. The trial court denied the motion as untimely under RCW 10.73.090, and Hill appealed. But the current version of CrR 7.8 does not permit the trial court to deny the motion on this basis. Accordingly, we accept the State's concession of error, vacate the trial court's order, and remand for further proceedings.
FACTS
On June 22, 2006, Hill pleaded guilty to one count of second degree burglary, and the court imposed a 51-month standard range sentence. On December 26, 2007, Hill filed a CrR 7.8 motion in superior court, asking the court to amend the judgment and sentence to specify that the burglary sentence run concurrently with two 2003 Spokane County convictions. Hill maintained that this result was mandated by paragraph 4.5 of the burglary judgment and sentence and was therefore part of his plea agreement. Hill alleged that the Department of Corrections refused to enforce the terms of the judgment and sentence.
On January 4, 2008, the trial court denied Hill's motion as untimely under RCW 10.73.090. Hill appeals.
DECISION
On appeal, Hill contends that the trial court erred in denying his CrR 7.8 motion as time barred under RCW 10.73.090. The State agrees, and we accept the State's concession of error.
Prior to 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 personal restraint petition "if such transfer would serve the ends of justice." Effective September 1, 2007, CrR 7.8(c)(2) specified 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.
Consequently, the trial court must now transfer such motions to the Court of Appeals to be considered as a personal restraint petition or hold a show cause hearing. See CrR 7.8(c)(3); State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008) (trial court erred in dismissing CrR 7.8 motion as untimely instead of transferring it to Court of Appeals).
We vacate the trial court's order denying Hill's motion and remand for consideration in light of the requirements of CrR 7.8. See Smith, 144 Wn. App. at 864. Contrary to Hill's contention, he is not entitled to counsel until the trial court determines that there is a ground for relief. See State v. Robinson, 153 Wn.2d 689, 699, 107 P.3d 90 (2005).
Hill also challenges the January 10, 2008 hearing on his motion, alleging that the ex parte hearing violated the appearance of fairness doctrine and his right to be present and to the assistance of counsel. But the record indicates that the order denying Hill's CrR 7.8 motion was entered before the hearing, on January 4, 2008. The later hearing occurred before a different judge and apparently had no effect on the order challenged on appeal. Under the circumstances, we do not consider Hill's challenge to the hearing.
Vacated and remanded
WE CONCUR.