Opinion
Nos. 54268-1-I; 59353-6-I.
November 5, 2007.
Appeals from a judgment of the Superior Court for Whatcom County, No. 94-1-00117-8, Steven J. Mura, J., entered April 7, 2004.
Affirmed by unpublished opinion per Agid, J., concurred in by Schindler, A.C.J., and Dwyer, J.
In 1994, the trial court sentenced Richard Henry Mutch to life without possibility of parole under the Persistent Offender Accountability Act (POAA), based on its finding that he had two prior convictions for most serious crimes. One of those crimes — federal bank robbery — is no longer considered legally comparable to a most serious crime in Washington. Mutch appeals the dismissal of two CrR 7.8 motions challenging his life sentence, in which he failed to raise the comparability of his federal bank robbery conviction. Our review of a direct appeal from the denial of a CrR 7.8 motion is limited to determining whether the trial court abused its discretion in denying the motion. Because the trial court did not abuse its discretion and we are precluded from considering the comparability issue, we affirm.
Laws of 1994, ch. 1, §§ 1-3.
FACTS
On September 28, 1994, a jury convicted Mutch of five counts of second degree rape and one count of second degree kidnapping. After a contested sentencing hearing, the trial court sentenced Mutch to life without possibility of parole under the POAA based on its finding that he had two prior strike offenses. One of those prior strike offenses was a federal bank robbery conviction. The other was a California robbery conviction.
A strike offense is a "[m]ost serious offense" defined in former RCW 9.94A.030(21) (1994).
Mutch appealed his POAA sentence, arguing that his federal bank robbery conviction was not comparable to a Washington strike offense. This court held that the federal offense was comparable, affirmed his conviction, and on April 9, 1998, issued our mandate. In 2004, we effectively overruled our earlier decision by holding in State v. Freeburg that federal bank robbery is not legally comparable to a Washington strike offense. In In re Personal Restraint of Lavery, the Washington Supreme Court held that Freeburg represented a significant change in the law that entitled an offender with a POAA sentence based on federal bank robbery to resentencing.
State v. Mutch, 87 Wn. App. 433, 436, 942 P.2d 1018 (1997), review denied, 134 Wn.2d 1016 (1998).
Id. at 440.
120 Wn. App. 192, 193, 84 P.3d 292, review denied, 152 Wn.2d 1022 (2004).
154 Wn.2d 249, 261-62, 111 P.3d 837 (2005).
Since his 1994 conviction, Mutch has filed numerous unsuccessful collateral attacks. On March 15, 2004, after this court's decision in Freeburg but before the Supreme Court's decision in Lavery, Mutch filed a pro se CrR 7.8 motion seeking relief from his 1994 judgment. He argued that the maximum sentence for second degree rape under the sentencing guidelines was only 198 months and, therefore, the court lacked jurisdiction to sentence him to life without possibility of parole. The trial court denied his CrR 7.8 motion as untimely, procedurally-barred, and without merit. Mutch filed a second pro se CrR 7.8 motion on July 26, 2006, arguing that the court failed to make independent findings of fact and conclusions of law and that his 1966 California robbery conviction was not comparable to a Washington strike offense. The trial court denied this motion as untimely. Mutch appealed the denial of both CrR 7.8 motions separately, but in the interests of judicial economy, we linked the appeals.
DISCUSSION
I. CrR 7.8 Motions
We review a trial court's CrR 7.8 ruling for an abuse of discretion. A CrR 7.8 motion for relief from judgment is a collateral attack subject to certain time and procedural limitations. CrR 7.8 motions must be brought within one year of a judgment becoming final unless one of the exceptions set out in RCW 10.73.100 applies. And, if a petitioner has filed other collateral attacks in the past, he or she must "certif[y] that he or she has not filed a previous petition on similar grounds" and show good cause for not having raised the new grounds in a previous petition.
State v. Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 (2005).
RCW 10.73.140; see also State v. Brand, 120 Wn.2d 365, 370, 842 P.2d 470 (1992).
Mutch filed his 2004 CrR 7.8 motion over six years after his judgment became final. He essentially argued that his motion was not subject to the one year time limit under RCW 10.73.100(5) because the sentence imposed was in excess of the court's jurisdiction. But Mutch failed to understand the basis for his sentence. He argued that the sentencing guidelines allow for only 198 months' incarceration for second degree rape and, thus, the court exceeded its jurisdiction by imposing a life sentence. But his life sentence was imposed under the POAA, not the standard sentencing guidelines for second degree rape. Mutch failed to certify that he had not raised the issue in a previous petition, so his motion was also procedurally barred under RCW 10.73.140. Thus, the trial court properly dismissed his 2004 CrR 7.8 motion as untimely, procedurally barred, and without merit.
Mutch filed his 2006 CrR 7.8 motion more than eight years after his judgment became final. Mutch argued his claims were not time-barred because Freeburg represented a significant change in the law and rendered the original sentence invalid on its face, the court exceeded its jurisdiction, and a federal court order tolled his time for collateral attack. While Freeburg does represent a significant change in the law, it does so only in regard to the comparability of the federal bank robbery conviction, which Mutch did not challenge in this motion. Instead, he challenged the comparability of the California robbery conviction, which Freeburg did not even discuss. Nor does Freeburg discuss facial invalidity. As with his 2004 motion, Mutch's jurisdictional argument lacked merit. Finally, Mutch's reliance on the federal court order was misplaced because it only applied to collateral attacks in federal court and did not affect this case. Thus, the trial court did not abuse its discretion by again dismissing his 2006 CrR 7.8 motion as untimely.
See Lavery, 154 Wn.2d at 261-62.
Mutch also contends that the trial court erred in capitalizing the words "The State of Washington" in its order dismissing his 2006 CrR 7.8 motion. This argument lacks merit because the capitalization of letters has no effect on the validity of an order. See State v. Saunders, 120 Wn. App. 800, 826, 86 P.2d 232 (2004) (omission of the word "the" in a judicial oath has no effect on the authority of the judge) (citing State v. Britton, 27 Wn.2d 336, 344-46, 178 P.2d 341 (1947)).
II. Authority to Consider Mutch's Resentencing Argument
Despite the absence of any error in the decisions appealed, Mutch asks this court to consider his argument that Lavery renders his POAA sentence invalid and entitles him to resentencing. Although the State initially conceded that Mutch was entitled to resentencing under Lavery, we questioned our authority to remand in the absence of any error in the decisions appealed. The State then filed a brief arguing that we lacked jurisdiction under these circumstances.
In considering a direct appeal from the denial of a CrR 7.8 motion, an appellate court's review is limited to whether the trial court abused its discretion in denying the motion. A challenge to the underlying judgment and sentence that was not raised in the CrR 7.8 motion cannot be raised for the first time in a direct appeal from the denial of that motion.
State v. Larranaga, 126 Wn. App. 505, 509, 108 P.3d 833 (2005) (citing State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653, review denied, 145 Wn.2d 1002 (2001)).
See State v. Gaut, 111 Wn. App. 875, 882, 46 P.3d 832 (2002) ("New assignments of error to the circumstances of the plea and the judgment of conviction are not reviewable on appeal from an order denying a motion to vacate.").
Mutch argues we should review his claim that he is entitled to resentencing under Lavery, despite his failure to raise it in either CrR 7.8 motion. He relies on a line of cases holding that a sentencing error can be raised for the first time on appeal. But these cases all address RAP 2.5(a)'s requirement that issues be raised below. That rule does not apply here, and the cited cases all deal with the ability of a party to raise an alleged error in the decision appealed for the first time on direct appeal. Here, there was no error in the decisions appealed. The sentencing error occurred in 1994, and was objected to unsuccessfully both below and on direct appeal, but not in the currently appealed denials of Mutch's CrR 7.8 motions. Thus, Mutch's failure to raise his Lavery argument in his CrR 7.8 motions precludes our review on appeal.
See State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 452 (1999); see also State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69 (1996).
Mutch also cites a number of personal restraint petition cases allowing prisoners to attack the validity of their sentences for the first time in a collateral attack. See In re Pers. Restraint of Hinton, 152 Wn.2d 853, 860, 100 P.3d 801 (2004); see also In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 869, 50 P.3d 618 (2002) (citing In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980)). But a direct appeal of a CrR 7.8 motion is not a personal restraint petition. While we cannot grant Mutch the relief he seeks on direct appeal of the denial of his CrR 7.8 motions, our decision does not prevent him from properly filing a personal restraint petition requesting resentencing under Lavery.
We affirm.
WE CONCUR: