Opinion
No. 37509-5-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Cowlitz County, No. 07-1-00645-9, Stephen M. Warning, J., entered February 15, 2008.
Dismissed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton and Hunt, JJ.
Unpublished Opinion
Derek Wayne Williams appeals a Cowlitz County Superior Court order denying his CrR 7.8 motion to withdraw his guilty plea. He contends that the trial court failed to comply with CrR 7.8(c)(2) when it denied his timely motion on the basis that he had not made a substantial showing that would entitle him to relief and a factual hearing was not required. The State attempts to concede that the trial court erred but argues the error was its failure to transfer the motion to the Court of Appeals for consideration as a personal restraint petition (PRP). We agree that the trial court should have transferred the motion pursuant to CrR 7.8(c) but that failure to do so is no more than a harmless, technical error. Accordingly, we decline to remand Williams's motion or treat it as a PRP. We dismiss Williams's direct appeal without prejudice.
FACTS
On June 13, 2007, Williams pleaded guilty to one count of first degree possession of stolen property. The trial court sentenced him to 17 months incarceration. On February 5, 2008, Williams filed a CrR 7.8 motion to withdraw his guilty plea after learning that a trial court dismissed charges against his co-defendant following the suppression of evidence seized pursuant to a defective search warrant. Williams attached an affidavit to support his motion, as CrR 7.8(c)(1) requires. Additionally, Williams attached his co-defendant's motion, memorandum of authorities, and order of dismissal. On February 13, 2008, the trial court held a hearing and denied Williams's motion on the merits.
CrR 7.8(c)(1) states:
Application shall be made by motion stating the grounds upon which relief is asked, and supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based.
Williams timely appeals.
ANALYSIS
Williams argues that the trial court erred by denying his motion to withdraw his guilty plea in a manner consistent with former CrR 7.8 (1986) but inconsistent with the current rule. Former CrR 7.8(c)(2) allowed the superior court three options in these circumstances, one of which was to "deny a CrR 7.8 motion without a hearing if the alleged facts did not establish grounds for relief." State v. Smith, 144 Wn. App. 860, 862, 184 P.3d 666 (2008); see former CrR 7.8(c)(2) (the trial court may transfer a motion to us "if such transfer would serve the ends of justice"). Under the current version of CrR 7.8, however, the trial court is first required to find whether the motion is timely under RCW 10.73.090, and then whether the motion either makes a substantial showing that Williams is entitled to relief or requires a factual hearing for resolution. Smith, 144 Wn. App. at 863.
CrR 7.8(c)(2) states:
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.
Williams is correct that the trial court did not comply with the CrR 7.8 amendments. The State concedes that the trial court erred by failing to comply with CrR 7.8 but it argues that the error was the trial court's failure to transfer the motion to the Court of Appeals for consideration as a PRP. We accept the State's concession but decline to review the motion as a PRP for the same reason we decline to remand — the trial court's error is harmless.
A harmless error is one which is trivial, formal, or merely academic and which in no way affects the outcome of the case. Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (the purpose of the harmless error rule is to prevent setting aside convictions for small errors or defects that have little, if any, likelihood of changing the result of the trial). "[E]rror is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); accord State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
Considering the facts in this case, it is clear that the trial court did not err when it denied Williams's CrR 7.8 motion on the merits. See In re Pers. Restraint of Bybee, 142 Wn. App. 260, 267-68, 175 P.3d 589 (2007) (a guilty plea waives the right to challenge the admissibility of potential trial evidence). In his statement on plea of guilty, Williams stated:
I, in the County of Cowlitz, State of Washington, on or about May 9, 2007, did knowingly possess stolen property, to-wit: a 17 foot UHaul van, of a value in excess of $1,500, knowing that it had been stolen, and did withhold the same to the use of a person other than UHaul, the true owner.
Clerk's Papers at 11. The claims Williams raises in his CrR 7.8 motion do not pose any factual issues requiring resolution in the trial court. Though his motion was timely and the trial court did err by not making the requisite findings under CrR 7.8, this purely technical error is harmless. Nothing in the record suggests a different outcome. We note that if the trial court had properly transferred the motion to us for consideration as a PRP, we would have dismissed it as frivolous under RAP 16.11(b).
Under CrR 7.8, as amended, the trial court erred when it declined to transfer the case. But because the motion was timely and the trial court implicitly found that Williams did not make a substantial showing that he was entitled to relief, no evidentiary hearing was required. Correcting this purely technical error by remanding this case to the trial court for entry of these findings would benefit neither party and would be a futile waste of judicial resources. See State v. Gonzales, 90 Wn. App. 852, 855, 954 P.2d 360, review denied, 136 Wn.2d 1024 (1998) (affirming on the merits instead of reversing for harmless technical, procedural error).
Accordingly, we decline to remand for correction of this procedural error and dismiss Williams's direct appeal without prejudice.
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.
HOUGHTON, P.J. and HUNT, J., concur.