Opinion
No. 53482-3-I
Filed: August 1, 2005
Appeal from Superior Court of Whatcom County. Docket No: 01-1-00612-9. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Michael F. Moynihan.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.
Steven A. Tubbs — Doc #77074 (Appearing Pro Se), High Desert State Prison, P.O. Box 650, Indian Springs, NV 89018.
Counsel for Respondent(s), Royce Scott Buckingham, Attorney at Law, Whatcom Co Prosc Atty Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Steven Tubbs contends the trial court erred in denying his motion to withdraw his guilty plea to two counts of second degree child rape. But Tubbs' motion to withdraw was untimely and therefore barred. We affirm.
Tubbs was charged with raping his daughter. He pleaded guilty and asked the court to impose a Special Sex Offender Sentencing Alternative. The court denied his request and imposed a standard range sentence. The judgment and sentence was entered on September 4, 2002. Tubbs mailed a pro se motion to withdraw his plea to the court and it was filed on Friday, September 5, 2003. The trial court denied the motion and Tubbs has appealed.
Tubbs contends the court's findings are not supported by the evidence and that the court erred in not having him present for the hearing on his motion. However, as the State points out, the motion to withdraw was barred by RCW 10.73.090 because it was filed more than one year after the judgment was final.
RCW 10.73.090 provides:
"(1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
"(2) For the purposes of this section, "collateral attack" means any form of postconviction relief other than a direct appeal. "Collateral attack" includes, but is not limited to, a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a motion to arrest judgment.
"(3) For the purposes of this section, a judgment becomes final on the last of the following dates:
"(a) The date it is filed with the clerk of the trial court;
"(b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction; or
"(c) The date that the United States Supreme Court denies a timely petition for certiorari to review a decision affirming the conviction on direct appeal. The filing of a motion to reconsider denial of certiorari does not prevent a judgment from becoming final."
Tubbs contends his petition was mailed on August 29, 2003, and that it was therefore timely under the federal mailbox rule, which allows a pleading by an incarcerated party to be considered filed on the day it is deposited with the penal institution's mail system. But Washington does not follow this rule. Because the motion to withdraw was not filed within the time allowed by RCW 10.73.090, it was barred.
In re Personal Restraint of Carlstad, 150 Wn. 2d 583, 592, 80 P.3d 587 (2003); State v. Robinson, 104 Wn. App. 657, 17 P.3d 653 (2001).
Tubbs alternatively contends that the time limit does not apply because his motion falls under exceptions (1) and (4) of RCW 10.73.100.
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 one year time limit does not bar a motion to withdraw based on newly discovered evidence. Tubbs contends he found out that the only evidence the court was using to get him to plead guilty was a confession taken without proper Miranda warnings. This appears to be a contention that he only recently discovered his confession should have been suppressed or that his counsel was ineffective in failing to so move.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
There are several reasons why this argument is not persuasive. First, the claim that the confession should have been suppressed or that counsel should have pursued suppression is not `newly discovered evidence.' It may be newly discovered argument but it is not evidence. Second, Tubbs has not made a sufficient factual showing to support this claim. It is clear from the record that Tubbs wanted to spare his daughter from further trauma, was motivated by the possibility of receiving a SSOSA, and admitted the abuse on a number of occasions. Tubbs confessed after voluntarily taking and not passing a polygraph examination. Tubbs' defense counsel informed the court that his efforts had been primarily devoted to supporting Tubbs' request for a SSOSA. Because of the way the case was defended, the issue of whether the confession should have been suppressed was never raised and the facts supporting such a claim, or a claim that counsel was ineffective, simply do not appear in the record. Third, Tubbs has not shown that the validity of his confession is a material issue. Contrary to his contention, the confession was not the only evidence against Tubbs. As he acknowledges, his daughter reported the abuse to the police and this fact is set out in the certificate of probable cause. RCW 10.73.100(1) does not exempt Tubbs' motion to withdraw from the one year limit of RCW 10.73.090.
Tubbs' contention that RCW 10.73.100(4) applies is incorrect. By its terms, this provision applies only when the defendant does not enter a guilty plea.
In his pro se statement of additional grounds, Tubbs explains that he was transferred to a Nevada prison, that his library resources were limited, and that he did not adjust well to the move. Tubbs does not specifically ask that we equitably toll the limitation period, but his explanation is in the nature of such an argument. However, equitable tolling is generally available only where there is evidence of bad faith, false assurances, or deception. As there is no such evidence here, equitable tolling would not apply.
In re Personal Restraint of Carlstad, 150 Wn. 2d at 593.
In light of our conclusion that the motion to withdraw is time barred, we do not need to address the other arguments presented by counsel or by Tubbs in his statement of additional grounds. Tubbs makes extensive claims of ineffective assistance but none of them directly relate to his motion to withdraw his guilty plea and all of them appear to rely on information not contained in the record and therefore must be pursued, if at all, in a personal restraint petition.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Affirmed.