Opinion
No. 60717-1-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 90-1-00252-0, Steven J. Mura, J., entered September 14, 2007.
Appeal dismissed and action converted to personal restraint petition by unpublished per curiam opinion.
Russell Leininger filed a CrR 7.8 motion to vacate his 1992 conviction for first degree rape. The trial court denied the motion as untimely under RCW 10.73.090, and Leininger appealed. But the applicable version of CrR 7.8(c) required the trial court to transfer the untimely motion to the Court of Appeals for consideration as a personal restraint petition. Accordingly, we vacate the trial court's denial of Leininger's motion, dismiss the appeal, and convert the matter for consideration as a personal restraint petition.
FACTS
In December 1992, Leininger pleaded guilty to one count of first degree rape. On September 6, 2007, he wrote to the Whatcom County Superior Court alleging, among other things, that he was denied effective assistance of counsel during the plea negotiations and that two Western State physicians "stated that I . . . had no comprehension of the guilty plea due to mental disease." The court treated the letter as a CrR 7.8 motion to vacate the 1992 conviction and denied it as untimely under RCW 10.73.090.
A Court of Appeals commissioner ruled that the trial court's decision was appealable. Appointed counsel argued that the trial court should have held a hearing to determine Leininger's competency at the time of the 1992 guilty plea. Leininger also filed a statement of additional grounds for review, challenging the voluntariness of his guilty plea. After the appeal was ready for determination, the parties were directed to file supplemental briefs addressing the applicability of State v. Smith, 144 Wn. App. 860, 184 P.3d 666 (2008).
DECISION
Prior to 2007, CrR 7.8(c) granted the superior court considerable discretion to transfer a motion to vacate judgment to the Court of Appeals "if such transfer would serve the ends of justice." Effective September 1, 2007, CrR 7.8(c)(2) specified the following procedure for such motions:
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 superior court can no longer deny a CrR 7.8 motion as untimely under RCW 10.73.90, but rather must transfer the motion for consideration as a personal restraint petition. Because Leininger's motion was filed after September 1, 2007, the trial court erred in denying his CrR 7.8 motion as untimely under RCW 10.73.090.
In State v. Smith, the superior court erroneously denied the defendant's CrR 7.8(c) motion as untimely under the amended version of RCW 10.73.090. On appeal, the court declined to convert the matter to a personal restraint petition because the defendant had not been advised that such a conversion could have future collateral consequences resulting from the successive petition rule. See Smith, 144 Wn. App. at 863-64; see also RCW 10.73.140. Consequently, the court remanded the matter to permit the superior court to enter an order complying with CrR 7.8(c).
Unlike the defendant in Smith, Leininger is well aware of the successive petition rule. By his own calculation, Leininger has filed at least 45 personal restraint petitions, and this court has repeatedly dismissed as successive Leininger's petitions challenging the 1992 guilty plea. See, e.g., No. 46552-0 (filed July 20, 2000); No. 43620-1, (filed March 2, 1999; No. 39635-8, (filed November 26, 1996). Because Leininger has long been subject to the successive petition rule, a remand for consideration of the concerns expressed in Smith would serve no meaningful purpose. Accordingly, we agree with the State that the appropriate remedy in this case is to convert the matter to a personal restraint petition.
Accordingly, we vacate the trial court's order, dismiss the appeal, and convert the matter for consideration as a personal restraint petition. The Court Administrator/Clerk is directed to open a personal restraint petition, and the case shall proceed as a personal restraint petition based solely on Leininger's September 6, 2007 letter to the superior court. See RAP 16.3 et seq.
For the court: