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State v. Jackson

The Court of Appeals of Washington, Division Two
Nov 23, 2004
124 Wn. App. 1021 (Wash. Ct. App. 2004)

Opinion

No. 30510-1-II

Filed: November 23, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No. 98-1-03232-6. Judgment or order under review. Date filed: 06/13/2003. Judge signing: Hon. Thomas J. Felnagle.

Counsel for Appellant(s), Sean P. Wickens, Berneburg Wickens Armijo PS, 602 S Yakima, Tacoma, WA 98405-4801.

Counsel for Respondent(s), Mary Elizabeth Robnett, Pierce County Prosecutor's Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.


Ronald Jackson appeals the denial of his CrR 7.8(b) motion for relief from judgment. Jackson filed his motion more than a year after this court issued its mandate in his direct appeal. He argues that his attorney was ineffective for failing to interview a potential witness and that he may bring this motion, more than a year after his judgment was final, because he did so within a reasonable time. Because the one-year time bar in RCW 10.73.090(1) applies to Jackson's motion, we affirm.

FACTS

On December 9, 1998, a jury convicted Jackson of second degree child rape and unlawful delivery of a controlled substance. On January 13, 1999, the Pierce County Superior Court entered the judgment and sentence. We affirmed Jackson's convictions and issued our mandate on March 27, 2001. On October 17, 2002, Jackson moved for relief from judgment under CrR 7.8. Jackson claimed that his attorney was ineffective for failing to locate and call Anthony Johnson to testify at his trial. Jackson submitted Johnson's affidavit in which Johnson stated that the victim was using crack at the time of the alleged incident, was flirtatious, and said she was 19 years old. Jackson declared that he told his trial attorney that Johnson could confirm that the rape victim misrepresented her age.

ANALYSIS

A court may relieve a party from a final judgment because of (1) mistakes, inadvertence, surprise, excusable neglect, or irregularity in obtaining the judgment, (2) newly discovered evidence, (3) fraud, (4) if the judgment is void, or (5) for any other reason justifying relief from the judgment. CrR 7.8(b)(1)-(5). Here, Jackson relies on CrR 7.8(b)(5). The court may vacate a judgment under CrR 7.8(b)(5) only under `extraordinary circumstances not covered by any other section of the rule.' State v. Olivera-Avila, 89 Wn. App. 313, 319, 949 P.2d 824 (1997) (citing State v. Brand, 120 Wn.2d 365, 369, 842 P.2d 470 (1992)). These circumstances `must relate to fundamental, substantial irregularities in the court's proceedings or to irregularities extraneous to the court's action.' Olivera-Avila, 89 Wn. App. at 319 (citations omitted). CrR 7.8(b)(5) motions, `shall be made within a reasonable time' and are further subject to RCW 10.73.090, .100., .130, and .140.

RCW 10.73.090 imposes a one-year time limit to collaterally attack final criminal judgments, provided the judgment and sentence is facially valid and was rendered by a court of competent jurisdiction. A judgment becomes final on the date it is filed with the trial court clerk, the date an appellate court issues its mandate, or the date the United States Supreme Court denies a timely petition for certiorari, whichever is latest. RCW 10.73.090(3)(a)-(c).

The one-year time limit in RCW 10.73.090 is subject to the six exceptions in RCW 10.73.100, but none of these exceptions apply here.

RCW 10.73.100 provides:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:

(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;

(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct;

(3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution;

(4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction;

(5) The sentence imposed was in excess of the court's jurisdiction; or

(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

The judgment and sentence were filed with the Pierce County Superior Court clerk on January 13, 1999; we issued our mandate on March 27, 2001. Thus, Jackson's judgment and sentence became final on March 27, 2001. RCW 10.73.090(3)(a), (b). Jackson moved for relief from judgment on October 17, 2002, well after the one-year time limit in RCW 10.73.090.

Jackson attempts to avoid the one-year time limit by arguing that a motion under CrR 7.8(b)(5) may be brought more than a year after the judgment becomes final if it is brought within a reasonable time.

In In re the Personal Restraint Petition of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000), the Washington Supreme Court adopted the `mixed petition' doctrine, under which personal restraint petitions based in part on any grounds outside the six exceptions listed in RCW 10.73.100 must be dismissed unless the claims fit within one of the exceptions to RCW 10.73.090 itself. Stoudmire also specifically held that a claim of ineffective assistance must be brought within one year of the final judgment. Stoudmire, 141 Wn.2d at 349-50.

Jackson has based his motion on ineffective assistance of counsel and argues this appeal on the same ground, under CrR 7.8(b)(5), which allows a party to move for relief from judgment for `[a]ny other reason' not enumerated in CrR 7.8(b)(1)-(4). Thus, Jackson's motion is not `based solely on one or more of the . . . grounds' listed in RCW 10.73.100. Thus, Stoudmire controls and the trial court did not err in denying Jackson's motion.

Jackson does not argue that Johnson's proposed testimony is newly discovered evidence, a ground which does fit within an exception to RCW 10.73.090's one-year time limit if `the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion.' RCW 10.73.100(1).

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 VAN DEREN, J., Concur.


Summaries of

State v. Jackson

The Court of Appeals of Washington, Division Two
Nov 23, 2004
124 Wn. App. 1021 (Wash. Ct. App. 2004)
Case details for

State v. Jackson

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. RONALD JACKSON, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Nov 23, 2004

Citations

124 Wn. App. 1021 (Wash. Ct. App. 2004)
124 Wash. App. 1021