Opinion
No. 61247-6-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 04-1-00218-7, Steven J. Mura, J., entered January 18, 2008.
Reversed and remanded by unpublished opinion per Lau, J., concurred in by Schindler, C.J., and Grosse, J.
Kirk Rishor filed several post judgment motions in superior court seeking to withdraw his guilty plea to one count of second degree assault. The court summarily denied the motions, and Rishor appealed. But under the current version of CrR 7.8(c), the superior court should not have ruled on the merits of the motions unless it determined that Rishor had made a substantial showing that he was entitled to relief or that a factual hearing was necessary to resolve the motions. We therefore vacate the trial court's order and remand to permit the trial court to consider Rishor's motions in light of the requirements of CrR 7.8.
FACTS
On January 8, 2007, following remand after a successful appeal, Rishor pleaded guilty to one count of second degree assault. On November 21, 2007, he filed a motion to dismiss in Whatcom County Superior Court, alleging governmental misconduct under CrR 8.3(b). Rishor later filed a motion to withdraw his guilty plea and a petition for writ of habeas corpus. In each of those pleadings, Rishor raised similar challenges to the voluntariness of his guilty plea, alleging, among other things, that after remand he had not been properly arraigned or advised of the charge and that he had not validly waived his right to counsel.
The trial court eventually denied Rishor's motions without a hearing. Rishor appeals.
DECISION
Rishor contends that the trial court erred in summarily dismissing his challenges to the voluntariness of his guilty plea. He argues that he should be permitted to withdraw his guilty plea because he was not properly advised of the charges and did not validly waive the right to counsel following the remand.
Prior to 2007, CrR 7.8(c) granted the superior court considerable discretion to transfer a motion for relief from 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.
If the court does not transfer the motion to the Court of Appeals, "it 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." CrR 7.8(c)(3).
The superior court's written order rejected several of Rishor's factual allegations on the merits, finding that he had been validly arraigned following remand and that he was aware of the charges. But under CrR 7.8(c), the superior court may not rule on the merits of the motion unless the motion is timely under RCW 10.73.090 "and either (a) the defendant makes a substantial showing that he is entitled to relief or (b) the motion cannot be resolved without a factual hearing." State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008). Because the trial court should not have denied the motions on their merits without making the prerequisite determinations, we accept the State's concession of error, vacate the trial court's order, and remand to permit the trial court to review Rishor's motions in light of the current version of CrR 7.8.
The State suggests that in the alternative, this court could convert the notice of appeal and consider the matter as a personal restraint petition. See Smith, 144 Wn. App. at 863. Although conversion to a personal restraint petition might be preferable in some circumstances, we decline to apply this approach here. The record does not clearly indicate whether the trial court considered Rishor's claim that he did not validly waive his right to counsel. Under the circumstances, we find it appropriate to remand to permit the trial court to consider all of Rishor's motions in light of the requirements of CrR 7.8.
Rishor asserts that he is entitled to have his claims heard on direct appeal. But because he has not presented any legal argument or citation to relevant authority to support this contention, we decline to consider it. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989). Rishor's motions are appropriately considered under CrR 7.8. See CrR 4.2(f) (motion to withdraw guilty plea after judgment is governed by CrR 7.8).
Nothing in the record indicates that Rishor perfected his petition for habeas corpus as required by chapter 7.36 RCW. See State v. Dallman, 112 Wn. App. 578, 583-84, 50 P.3d 274 (2002). Accordingly, the allegations in that document are also appropriately considered under CrR 7.8.
The trial court's order is vacated and the matter remanded for consideration consistent with the current version of CrR 7.8. See Smith, 144 Wn. App. at 864.
Vacated and remanded.
WE CONCUR.