State v. Wheeler ( 2015 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 90367-1
Respondent, )
)
v. )
) En Bane
ROBERT WHEELER, )
)
Petitioner. ) Filed APR 3 0 2015
_______________________ )
GONZALEZ, J.-After his 18th birthday, Robert Wheeler was charged
with and pleaded guilty to first degree child rape and first degree child
molestation for offenses he committed when he was 13 or 14 years old that
came to light when he was 17 and a half. His convictions have been final since
2006.
Wheeler contends we have the authority to, and should, revisit his
previously rejected claim that his plea was involuntary because he was
misinformed of the maximum sentences for his crimes. He also challenges his
convictions as the product of unconstitutional preaccusatorial delay and seeks
to avoid the time bar for collateral attack by claiming he has newly discovered
evidence that the State delayed filing charges until Wheeler aged out of
State v. Wheeler, No. 90367-1
juvenile court. We reject Wheeler's arguments and affirm the Court of
Appeals.
FACTS
Between December 2000 and December 200 1, when Wheeler was 13 or ·
14 years old, he sexually abused his 6 or 7 year old twin stepsisters. The abuse
came to light in late 2004 when Wheeler was 17 and a half years old. On May
4, 2005, a little more than a month after Wheeler's 18th birthday, the State filed
an information charging Wheeler as an adult with first degree child rape and
first degree child molestation. The information was originally dated in typeface
March 26, 2005-three days before Wheeler's 18th birthday-but that date was
changed in handwriting to May 4, 2005.
The parties negotiated a plea agreement. Wheeler pleaded guilty to the
offenses as charged and was sentenced under the Special Sex Offender
Sentencing Alternative (SSOSA), RCW 9.94A.670, on Apri117, 2006. Our
legislature created the SSOSA program to give certain first time sex offenders
the opportunity, and incentive, to receive sex offender treatment. See State v.
Pannell, 173 Wash. 2d 222, 227, 267 P.3d 349 (2011). Offenders who
successfully complete the program can have all or some of their sentences
suspended. Id. First degree child rape and first degree child molestation are
class A felonies subject to a maximum sentence of life in prison and a $50,000
fine. RCW 9A.44.073(2), .083(2); RCW 9A.20.021(1)(a). Wheeler's plea
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State v. Wheeler, No. 90367-1
statement correctly recited the maximum life sentence for each count once but
also erroneously listed the maximum sentence as 20 years on each count. The
judgment and sentence also incorrectly stated the maximum sentences. The
court imposed standard range sentences of 131.7 5 months of confinement on
count I and 89 months of confinement on count II (to run concurrently) but
suspended the sentences in accordance with the SSOSA. Wheeler did not
appeal. His judgment and sentence became final when it was filed by the
superior court clerk on April17, 2006. RCW 10.73.090(3)(a).
Wheeler failed to comply with several of his community custody
conditions, and the State petitioned to revoke his SSOSA. On September 11,
2009, the court fmmd Wheeler violated his community custody conditions "just
about every way you can, short of formally re-offending"; revoked the SSOSA;
and ordered Wheeler to serve the remainder of his standard range sentence.
State's Resp. toPers. Restraint Pet., App. Eat 4 (Verbatim Transcript of
Proceedings (Sept. 11, 2009) (VTP) at 4). Wheeler did not appeal the
revocation.
At the 2009 SSOSA revocation hearing, the parties acknowledged that
Wheeler's crimes had come to light when he was still a minor but charges were
not filed until he was an adult:
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State v. Wheeler, No. 90367-1
THE COURT: Yeah. I remember this case, Mr. Wheeler, because
I remember the State had waited until you were an adult to charge you. I
didn't think that was necessarily the fairest way to treat a 13-year old.
Although maybe this didn't come to light. I think it still came to light
when you were a minor.
THE DEFENDANT: Yes.
THE COURT: They still waited.
[THE PROSECUTOR]: It was 17, Your Honor.
Id. at 3 (VTP at 3).
In 2010, Wheeler filed a personal restraint petition, arguing he was
entitled to withdraw his 2006 guilty plea because his judgment and sentence
was facially invalid as a result of the misstated maximum sentences. After
staying the matter pending our decision in In re Personal Restraint of Coats,
173 Wn.2d 123,267 P.3d 324 (2011), the Court of Appeals concluded in 2012
that Wheeler was not entitled to withdraw his guilty plea and that his remedy
was limited to correction of his judgment and sentence. The Court of Appeals
"grant[ ed] the petition only for the purpose of remanding to the trial court for
correction of the maximum sentences set forth in Wheeler's judgment and
sentence." Order Terminating Review, In re Pers. Restraint of Wheeler, No.
40489-3-II, at 3 (Wash. Ct. App. July 3, 2012) (Order). Wheeler did not seek
our review of that decision, nor did he ask the Court of Appeals to reconsider
its decision under RAP 2.5( c)(2).
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State v. Wheeler, No. 90367-1
In October 2012, the trial court entered an order correcting the erroneous
maximum sentences set forth in the judgment and sentence. Wheeler sought
direct review, arguing, again, that his guilty plea was involuntary because he
was misinformed of the statutory maximum sentences for his crimes and that
counsel on remand was ineffective in failing to ask the trial court to consider
the involuntary plea claim.
Meanwhile, Wheeler's appellate counsel submitted a Public Records
Act, ch. 42.56 RCW, request (PRA request) for records relating to the charges
against Wheeler. Among other things, the State produced an unfiled draft
information with a juvenile court heading dated approximately three weeks
before Wheeler's 18th birthday. Based in part on these records, Wheeler filed a
personal restraint petition, arguing the State violated due process by delaying
filing charges resulting in the prejudicial loss of juvenile court jurisdiction.
The Court of Appeals consolidated the appeal and the personal restraint
petition. The Court of Appeals held that the validity of Wheeler's guilty plea
was not an appealable issue because the trial court did not independently
review and rule on it; rejected Wheeler's claim of ineffective assistance,
reasoning that counsel was not obligated to advance an argument that was
unlikely to succeed; and dismissed Wheeler's personal restraint petition as
untimely. State v. Wheeler, noted at 181 Wash. App. 1018 (2014). We granted
5
State v. Wheeler, No. 90367-1
Wheeler's petition for review. State v. Wheeler, 181 Wash. 2d 1021, 337 P.3d
327 (2014). 1
ANALYSIS
I. Challenge to the Validity of Wheeler's Guilty Plea
First, Wheeler seeks to withdraw his guilty plea on the grounds that he
was misinformed of the maximum sentences for his crimes. Wheeler
previously brought this claim in an untimely personal restraint petition, and the
Court of Appeals found he was entitled only to a remand for the technical
correction of his judgment and sentence. Wheeler did not seek our review of
that decision, nor did he ask the Court of Appeals to reconsider its decision
under RAP 2.5(c)(2). Instead, he sought direct review of the technical
correction of his judgment and sentence on remand, raising the same argument.
The Court of Appeals properly found there was no issue to review. Wheeler
now asks us to contravene well-settled precedent and hold that the limited
remand for correction of his judgment and sentence gave him another
opportunity to challenge the validity of his guilty plea through a direct appeal.
We decline to do so.
We reject Wheeler's contention that the Court of Appeals had discretion
to consider his challenge under RAP 2.5( c)(1) on remand for a technical
1Wheeler did not seek review of the Court of Appeals' holding regarding ineffective
assistance of counsel.
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State v. Wheeler, No. 90367-1
correction. 2 RAP 2.5(c) pertains to the common law "law ofthe case" doctrine,
which, among other things, treated some legal rulings in a case as binding on
the parties if not appealed. See State v. France, 180 Wash. 2d 809, 816, 329 P.3d
864 (2014) (citing Tonkovich v. Dep'tofLabor &Indus., 31 Wn.2d 220,225,
195 P.2d 638 (1948)). RAP 2.5(c)(1) puts some restrictions on the law of the
case doctrine, but it "does not revive automatically every issue or decision
which was not raised in an earlier appeal. Only if the trial court, on remand,
exercised its independent judgment, reviewed and ruled again on such issue
does it become an appealable question." State v. Barberio, 121 Wash. 2d 48, 50,
846 P.2d 519 (1993); State v. Kilgore, 167 Wash. 2d 28, 39-41, 216 P.3d 393
(2009). RAP 2.5(c)(1) does not apply here because the trial court merely
executed the technical correction mandated by the appellate court order and did
not independently review the validity of the guilty plea.
The trial court's discretion was clearly constrained by the Court of
Appeals' specific language "granting the petition only for the purpose of
remanding to the trial court for correction of the maximum sentences set forth
in Wheeler's judgment and sentence." Order at 3; see Godefroy v. Reilly, 140
2
RAP 2.5(c)(l) provides:
If a trial court decision is otherwise properly before the appellate court, the
appellate court may at the instance of a party review and determine the propriety
of a decision of the trial court even though a similar decision was not disputed in
an earlier review of the same case.
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State v. Wheeler, No. 90367-1
Wash. 650, 657, 250 P. 59 (1926). Despite this clear language, Wheeler argues
that the trial court had discretion to consider a motion to withdraw his guilty
plea. He relies on RAP 12.2, which provides in part that "[a]fter the mandate
has issued, the trial court may[] ... hear and decide postjudgment motions
otherwise authorized by statute or court rule so long as those motions do not
challenge issues already decided by the appellate court." RAP 12.2 (emphasis
added). RAP 12.2 recognizes both appellate court power to order appropriate
relief "as the merits of the case and the interest of justice may require" and trial
court power to entertain appropriate postjudgment motions once the appellate
opinion has mandated. By its plain language, RAP 12.2 situates trial court
discretion within the boundaries of statutes and other court rules that apply to
postjudgment motions, and CrR 7 .8(b) and RAP 16.4(d) provide that
postjudgment motions to withdraw a guilty plea are subject to RCW 10.73.090
and RCW 10.73.100. Thus RAP 12.2 subjects Wheeler's challenge to the
statutory time bar. It does not provide an avenue to circumvent it. Finally, the
trial court's RAP 12.2 power to entertain postjudgment motions extends only to
motions that "do not challenge issues already decided by the appellate court."
The Court of Appeals already considered Wheeler's challenge to the validity of
his guilty plea and decided he was entitled only to a correction of his judgment
and sentence. RAP 12.2 does not provide Wheeler a vehicle to renew his
challenge to his guilty plea.
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State v. Wheeler, No. 90367-1
We stress, again, that a mere misstatement of the maximum sentence
does not by itself render a judgment and sentence facially invalid, and a
petitioner's remedy for such an error through an untimely personal restraint
petition is limited to a technical correction of the judgment and sentence. In re
Pers. Restraint of Coats, 173 Wash. 2d at 135, 143-44. Wheeler's argument that
the remand for the entry of that correction restores a petitioner's right to raise
the very same issue in a direct appeal has no basis in law. An untimely
personal restraint petition is.simply not a vehicle for an untimely motion to
withdraw a guilty plea. In re Pers. Restraint of Coats, 173 Wash. 2d at 143-44;
see also In re Pers. Restraint of Snively, 180 Wash. 2d 28, 31-32, 320 P.3d 1107
(2014). Wheeler makes no argument that our controlling precedent is incorrect
or harmful.
II. Newly Discovered Evidence Claim
In his personal restraint petition, which was filed more than one year
after his conviction was final, Wheeler argues the State violated due process by
intentionally or negligently delaying filing charges until juvenile court
jurisdiction lapsed. The legislature has imposed a one year time bar for
collateral attacks on conviction but has exempted, among other things, petitions
based solely on newly discovered evidence "if the defendant acted with
reasonable diligence in discovering the evidence and filing the petition." RCW
10.73.100(1). Wheeler argues that documents produced by the prosecutor's
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State v. Wheeler, No. 90367-1
office in response to his 2013 PRA request-including a draft information in
juvenile court, a statement of probable cause, and a redacted log of case
activity-are newly discovered evidence ofpreaccusatorial delay and so his
preaccusatorial delay claim is exempt from the one year time bar. We find
Wheeler's petition is time barred, and we affirm the Court of Appeals.
Wheeler has not met his obligation under RCW 10.73.100(1) to show
that he acted with reasonable diligence in filing the petition because he has not
shown he could not have raised the preaccusatorial delay claim at the time he
was charged. A defendant raises a claim of preaccusatorial delay by showing
he or she was prejudiced by the State's delay. State v. Dixon, 114 Wash. 2d 857,
860,792 P.2d 137 (1990) (citing State v. Lidge, 111 Wash. 2d 845, 848, 765 P.2d
1292 (1989)). If this had been timely raised, Wheeler may have been entitled
to relief: we have found a defendant met the minimal prerequisite of prejudice
based on the fact that his offense was discovered five months before his 18th
birthday but charges were not filed until after his birthday. State v. Calderon,
102 Wash. 2d 348, 352-53, 684 P.2d 1293 (1984). If the defendant shows ach1al
prejudice, then the court must determine the reasons for the delay and must
balance the State's reasons against the prejudice to the accused to determine
"whether fundamental conceptions of justice would be violated by allowing
prosecution." State v. Oppelt, 172 Wash. 2d 285, 295, 257 P.3d 653 (2011); see
Dixon, 114 Wash. 2d at 860. Wheeler was well aware ofhis own age when he
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State v. Wheeler, No. 90367-1
was charged, and he provides no reason he could not have raised the claim at
that time based on the apparent prejudice and the evidence he had (in the form
of the hand-edited charging document that seemed to have originally been
dated three days earlier than his 18th birthday) tending to show that the
prosecutor was ready to file charges before he turned 18. 3
The trial judge at Wheeler's 2008 SSOSA revocation hearing drew
additional attention to the issue, telling Wheeler he recalled that the conduct
"came to light when you were a minor" but the State "waited until you were an
adult to charge you." State's Resp. toPers. Restraint Pet., App. Eat 3 (VTP at
3). The fact that Wheeler did not file his claim until approximately five years
later in 2013 also weighs against finding reasonable diligence. Where, as here,
a juvenile knows at the time of arraignment the facts supporting a prosecutorial
delay claim and has evidence in the form of a revised and re-dated charging
instn1ment which tends to support that claim, reasonable diligence must require
that the juvenile raise this issue sooner than seven years after his judgment
became final or else we undermine principles of finality. See In re Pers.
Restraint of Grantham, 168 Wash. 2d 204, 210-12, 227 P.3d 285 (2010). 4
3The State's willingness to offer a SSOSA may have weighed on that decision.
4
Wheeler argues that his diligence "should be measured in light of both Banks [v. Dretke,
540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004)] and [In re Pers. Restraint oj]
Stenson[, 174 Wash. 2d 474, 276 P.3d 286 (2012)]," cases that concerned Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1993), challenges. Suppl. Br.
of Robert Wheeler at 8. Wheeler, however, did not raise a Brady claim in his personal
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State v. Wheeler, No. 90367-1
Moreover, to be entitled to a new proceeding based upon newly
discovered evidence, a personal restraint petitioner must show evidence that
"'(1) will probably change the result of the trial; (2) was discovered since the
trial; (3) could not have been discovered before trial by the exercise of due
diligence; (4) is material; and (5) is not merely cumulative or impeaching."' In
re Pers. Restraint ofLord, 123 Wash. 2d 296, 320, 868 P.2d 835 (1994) (quoting
State v. Williams, 96 Wn.2d 215,223, 634 P.2d 868 (1981)). The absence of
any one of the five factors is grounds for denying a new proceeding. In re
Pers. Restraint ofBrown, 143 Wn.2d 431,453,21 P.3d 687 (2001) (citing
Williams, 96 Wash. 2d at 222-23).
The Court of Appeals properly held Wheeler has not met his burden to
show the evidence could not have been discovered by the exercise of due
diligence before he pleaded guilty, and we also find the documents at issue are
cumulative. See In re Pers. Restraint ofBrown, 143 Wash. 2d at 454 (citing
Williams, 96 Wash. 2d at 223-24). Contrary to Wheeler's assertions, the
documents do not establish that the State intentionally delayed or was negligent
restraint petition. Wheeler makes the conclusory allegation in his motion for
discretionary review and supplemental brief that the State had a constitutional obligation
to disclose the documents, but he did not raise this issue below. Because it was not
properly presented and we lack adequate briefing, we decline to opine on the State's
disclosure obligations relative to these documents or extend Brady to draft charging
documents. Had Wheeler brought a Brady claim, our analysis might proceed differently.
See, e.g., In re Pers. Restraint of Stenson, 174 Wash. 2d at 485.
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State v. Wheeler, No. 90367-1
in investigating the case. Instead, they show that the State was investigating
the case before Wheeler's 18th birthday, which he already knew, and that the
State drafted an information and statement of probable cause before his 18th
birthday, which was evident from the face of the charging document actually
filed. 5
Wheeler has not shown his personal restraint petition is exempt from the
time bar under RCW 10.73.100(1).
CONCLUSION
Neither RAP 2.5(c)(1) nor RAP 12.2 provide an avenue for Wheeler to
circumvent the time bar and argue his guilty plea was invalid. Wheeler has not
shown his consolidated personal restraint petition alleging preaccusatorial delay
is exempt from the time bar under RCW 10.73.100(1). We affirm the Court of
Appeals.
5
Both parties raised untimely arguments regarding the propriety of applying the five-part
newly discovered evidence test. First, Wheeler's counsel at oral argument posited that
Wheeler is not required to meet the test because he is asserting a preaccusatorial delay
claim. But Wheeler did not assign error to the Court of Appeals' application of the test.
Second, the State argued for the first time in its supplemental brief (1) that Wheeler's
petition does not fit into RCW 10.73.1 00(1) because the exception contemplates only
substantive evidence that could be entered at a trial and (2) that Wheeler waived his
newly discovered evidence claim by pleading guilty. Because these issues were not
properly raised and sufficiently briefed, we decline to consider and decide them in this
case. See State v. Williams, 158 Wash. 2d 904, 908 n.1, 148 P.3d 993 (2006) (citing State v.
Collins, 121 Wash. 2d 168, 847 P.2d 919 (1993); Douglas v. Freeman, 117 Wash. 2d 242, 814
P.2d 1160 (1991)); RAP 13.7(b).
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State v. Wheeler, No. 90367-1
WE CONCUR:
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