Opinion
Nos. 34702-4-II; 34709-1-II; 34712-1-II.
May 15, 2007.
Appeals from a judgment of the Superior Court for Clark County, No. 05-1-01656-6, Robert L. Harris and John P. Wulle, J., entered April 19, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Quinn-Brintnall, J.
Rodney Steven Mituniewicz appeals the trial court's denial of the CrR 7.8 motions and motions to adjust his risk classification that he filed in three separate cases. We affirm.
FACTS Forgery Conviction
On March 12, 2003, the State charged Mituniewicz with one count of forgery under Clark County cause number 03-1-00525-8. Deputy Prosecutor Michael B. Dodds signed the charging information. Mituniewicz entered an Alford/Newton plea to this charge on July 18, 2003. On July 25, 2003, the trial court imposed a DOSA sentence and filed the judgment and sentence. There is no record of the July 25, 2003 hearing due to equipment malfunction. Mituniewicz did not appeal this conviction.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (a defendant may plead guilty while disputing the facts alleged by the prosecution); see also State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
Drug Offender Sentencing Alternative. RCW 9.94A.660.
Possession of Heroin Conviction
Meanwhile, on April 24, 2003, the State charged Mituniewicz with possession of heroin with intent to deliver, possession of methamphetamine, possession of morphine, possession of valium/diazepam, and reckless driving under Clark County cause number 03-1-00817-6. Deputy Prosecutor John P. Fairgrieve signed the charging information in this case.
Mituniewicz entered a straight guilty plea to the reduced charge of possession of heroin, admitting in his Statement of Defendant on Plea of Guilty (SDPG) that he had possessed 0.1 grams of heroin for personal use. Deputy Prosecutor Mike Vaughn signed the SDPG.
Although the trial court did not enter the judgment and sentence until August 6, 2003, the judgment and sentence shows that Mituniewicz entered his plea on July 25, 2003. Mituniewicz asserts that Dodds participated in the July 25 hearing, but, as previously noted, there is no record of the July 25, 2003 proceedings, and it is unclear whether the trial court addressed both the forgery and the drug possession cases at the same hearing or who participated in this hearing. The trial court sentenced Mituniewicz to 28 months confinement and 28 months community custody under DOSA and ordered that this sentence run concurrent to the forgery sentence.
Mituniewicz did not file a direct appeal challenging his drug conviction or the sentence. Instead, he filed a personal restraint petition challenging the standard range the trial court used at sentencing. On January 8, 2004, we found no error and dismissed the petition.
On September 3, 2004, Mituniewicz apparently filed a motion to withdraw his guilty plea or motion for specific performance. The trial court denied this motion on October 27, 2004. Mituniewicz appealed the denial of this motion. Accepting the State's concession, we granted relief in an unpublished opinion filed October 18, 2005, and vacated his sentence and remanded for resentencing because the trial court had miscalculated the sentence required under DOSA. State v. Mituniewicz, noted at 130, 138 Wn. App. 1004 (2005). This appeal mandated on January 3, 2006. On March 13, 2006, the trial court entered an order amending Mituniewicz's sentence on the drug conviction.
Second Degree Possession of Stolen Property Conviction
On July 29, 2005, the State charged Mituniewicz with first degree possession of stolen property under Clark County cause number 05-1-01656-6. Dodds signed this charging information.
On August 22, 2005, the State amended the charge to second degree possession of stolen property. Dodds also signed the amended information. That same day, Mituniewicz entered a straight guilty plea to second degree possession of stolen property.
The trial court filed the judgment and sentence on August 22, 2005. Mituniewicz appealed, arguing that his plea was involuntary because it lacked a factual basis and that the trial court erred when it refused to grant his request for yet another DOSA sentence. State v. Mituniewicz, noted at 134, 138 Wn. App. 1062 (2006). We affirmed in an unpublished opinion filed September 12, 2006. Mituniewicz, noted at 134, 138 Wn. App. 1062. This appeal mandated November 8, 2006.
2006 Motions
On February 15, 2006, Mituniewicz filed identical pro se CrR 7.8(3)(b) motions in each of the above cases. In these motions, he appeared to argue that all three convictions should be vacated and the charges dismissed because (1) Dodds pursued these charges in order to carry out a personal vendetta against him; and (2) his trial counsel, Jeffrey D. Barrar, also committed misconduct by failing to prevent this and, possibly, by negotiating plea agreements with Dodds. He also appeared to argue that (1) Dodds had breached the plea agreement related to the drug charge by arguing at the July 25, 2003 hearing that Mituniewicz had possessed "40 or so bags of heroin" despite Mituniewicz only admitting to possessing 0.1 grams in his SDPG, CP (cause number no. 03-1-00525-8) at 66; (2) Dodds did not negotiate the plea agreements in good faith; (3) Dodds should have withdrawn from all three cases because, as Dodds himself apparently noted at the July 25, 2003 hearing, Mituniewicz had filed a disbarment complaint against him some time prior to July 25, 2003; and (4) Dodds overcharged him with first degree possession of stolen property when he should have only charged misdemeanor "Joy-Riding." See CP (no 03-1-00525-8) at 66.
Mituniewicz signed the motion under the penalty of perjury. He also attached a copy of Clark County Prosecuting Attorney's Office Offer of Settlement signed by Dodds in the possession of stolen property case.
Also on February 15, 2006, Mituniewicz filed identical motions entitled "Motion and Affidavit for Judgment and Resentences [sic] Risk Assessment for Crime Risk Management Category" in each case. CP (cause no. 03-1-00525-8) at 75; CP (cause no. 03-1-00817-6) at 62; CP (cause no. 05-1-01656-6) at 62. In this motion, he appeared to argue that his Department of Corrections (DOC) risk classification was improper because DOC had illegally entered into a licensing agreement for risk assessment tools with a foreign entity in violation of RCW 72.09.050. He appeared to assert that because the assessment tools were illegal, his risk level was invalid and he was somehow denied proper credit for time served or denied earned early release time.
The trial court briefly considered these motions at a hearing on March 13, 2006, but determined that the motions were not properly before it. On April 19, 2006, the trial court entered a written order denying "all of defendant's pro se motions filed as of this date," in each case. CP (cause no. 03-1-00817-6) at 112; CP (cause no. 05-1-01656-6) at 102; CP (cause no. 03-1-00525-8) at 103.
Meanwhile, on April 12, Mituniewicz filed three separate notices of appeal challenging the trial court's March 13, 2006 ruling. Attached to his notice of appeal, Mituniewicz included an "affidavit of grounds" that reiterated his arguments; clarified Dodds's role in the various proceedings at issue; stated that Dodds had been involved in several prior prosecutions against him, some of which had been dismissed; and clarified that Mituniewicz had filed his Bar complaint against Dodds in 1993.
Mituniewicz filed three separate appeals, cause number 34712-1-II, which related to the forgery conviction; cause number 34709-1-II, which related to the drug conviction; and cause number 34702-4-II, which related to the possession of stolen property conviction. We consolidated these three appeals to cause number 34702-4-II.
DISCUSSION CrR 7.8 Motions
Mituniewicz first argues that the trial court erred by denying his CrR 7.8 motions without first holding an evidentiary hearing.
CrR 7.8(c)(1) requires that a CrR 7.8 motion must "stat[e] the grounds upon which relief is asked" and that the moving party must support the motion "by affidavits setting forth a concise statement of the facts or errors upon which the motion is based." CrR 7.8(c)(2) provides that upon initial consideration:
The court may deny the motion without a hearing if the facts alleged in the affidavits do not establish grounds for relief. The court may transfer a motion to the Court of Appeals for consideration as a personal restraint petition if such transfer would serve the ends of justice. Otherwise, the court shall enter an order fixing a time and place for hearing and directing the adverse party to appear and show cause why the relief asked for should not be granted.
(Emphasis added).
CrR 7.8(b)(3) provides for relief based on mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or other grounds. It provides that the court "may relieve a party from a final judgment, order, or proceeding for . . . [f]raud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party[.]" CrR 7.8(b)(3). But such motions must be "made within a reasonable time" and are subject to RCW 10.73.090, .100, .130, and .140.
Even assuming Mituniewicz brought his CrR 7.8 motions within a reasonable time and the motions complied with the procedural requirements of chapter 10.73 RCW, we conclude that Mituniewicz failed to allege sufficient facts to justify relief, and the trial court properly denied the motions without holding an evidentiary hearing.
We note that the CrR 7.8 motion related to the forgery charge was clearly time barred under RCW 10.73.090(1) and that CrR 7.8 motion related to the drug charge was, at best, subject to the successive petition rule of RCW 10.73.140 and was also likely time barred under RCW 10.73.090(1).
We note that the trial court could have transferred all of these motions to this court under CrR 7.8(c)(2) for consideration as personal restraint petitions.
At best, Mituniewicz asserted that (1) Dodds had prosecuted him in several cases over many years; (2) he had filed a Bar complaint against Dodds in 1993, several years before any of the cases at issue; (3) he believed Dodds had overcharged him with first degree possession of stolen property; and (4) Dodds may have breached a plea agreement by arguing at a sentencing proceeding that he had possessed more drugs than he had admitted to in his guilty plea. These facts and Mituniewicz's bare assertion that Dodds acted with animus toward him are not sufficient to establish that Dodds pursued these charges in order to carry out a personal vendetta against him, that Dodds did in fact overcharge him with first degree possession of stolen property, that Dodds did not negotiate any potential plea agreements in good faith, or that Dodds should have withdrawn from any of these proceedings. Furthermore, even if Dodds breached the plea agreement related to the drug charge by arguing at the July 25, 2003 hearing that Mituniewicz had possessed "40 or so bags of heroin" despite the fact Mituniewicz admitted to possessing only 0.1 grams in his SDPG, Mituniewicz received the DOSA sentence he requested, so he does not show that he was harmed by any potential breach of the plea agreement.
Accordingly, the trial court did not err when it denied the CrR 7.8 motions without an evidentiary hearing.
Risk Assessment Motion
In a Statement of Additional Grounds (SAG), Mituniewicz next challenges the trial court's denial of his "Motion and Affidavit for Judgment and Resentences [sic] Risk Assessment for Crime Risk Management Category." Again, he asserts that (1) the risk assessment tools applied by DOC were invalid because DOC was not authorized to enter into a licensing agreement with a foreign corporation; and (2) this somehow resulted in DOC failing to credit him with the proper earned early release time. He appears to claim that in entering this license agreement DOC exceeded its authority under RCW 72.09.050.
RAP 10.10.
Even assuming that this motion was properly before the trial court, which is highly unlikely, the motion had no merit and was properly denied.
RCW 72.09.050 defines the powers and duties of the DOC secretary. It provides:
The secretary shall manage the department of corrections and shall be responsible for the administration of adult correctional programs, including but not limited to the operation of all state correctional institutions or facilities used for the confinement of convicted felons. In addition, the secretary shall have broad powers to enter into agreements with any federal agency, or any other state, or any Washington state agency or local government providing for the operation of any correctional facility or program for persons convicted of felonies or misdemeanors or for juvenile offenders. Such agreements for counties with local law and justice councils shall be required in the local law and justice plan pursuant to RCW 72.09.300. The agreements may provide for joint operation or operation by the department of corrections, alone, for by any of the other governmental entities, alone. Beginning February 1, 1999, the secretary may expend funds appropriated for the 1997-1999 biennium to enter into agreements with any local government or private organization in any other state, providing for the operation of any correctional facility or program for persons convicted of felonies. Between July 1, 1999, and June 30, 2001, the secretary may expend funds appropriated for the 1999-01 biennium to enter into agreements with any local government or private organization in any other state, providing for the operation of any correctional facility or program for persons convicted of felonies. The secretary may employ persons to aid in performing the functions and duties of the department. The secretary may delegate any of his or her functions or duties to department employees, including the authority to certify and maintain custody of records and documents on file with the department. The secretary is authorized to promulgate standards for the department of corrections within appropriation levels authorized by the legislature.
Pursuant to the authority granted in chapter 34.05 RCW, the secretary shall adopt rules providing for inmate restitution when restitution is determined appropriate as a result of a disciplinary action.
(Emphasis added).
This statute clearly governs the secretary's ability to enter into agreements with others to operate correctional facilities and related programs. A licensing agreement allowing for the use of risk assessment tools is not an agreement to operate a correctional facility or a related program. Accordingly, this motion was clearly without merit and was properly denied.
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.
We concur:
Quinn-Brintnall, J.
Van Deren, A.C.J.