In re Pers. Restraint of Yates ( 2014 )

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of
) No. 87518-9
)
ROBERT LEE YATES, JR., )
) En Bane
Petitioner. )
_ _ _ _ _ _ _ _ _ _ _) Filed MAR 2 0 2014
OWENS, J. -- Thirteen years ago, Robert Lee Yates Jr. agreed to plead guilty
to 13 counts of aggravated first degree murder and 1 count of attempted first degree
murder in exchange for a 408-year prison sentence. Yates now seeks to withdraw
those guilty pleas, claiming that he should technically have been sentenced to 408
years with a possible extension to life in prison rather than a determinate 408-year
sentence. Because he has not shown that he was prejudiced by this difference, we
dismiss this personal restraint petition.
FACTS
Yates has been convicted by two courts for a series of murders across
Washington State. In 2000, Yates pleaded guilty in Spokane County Superior Court
to 13 counts of aggravated first degree murder and 1 count of attempted first degree
In re Pers. Restraint of Yates
No. 87518-9
murder. Yates agreed to a 408-year sentence for these crimes. Then, in 2002, he was
convicted of two counts of aggravated first degree murder in Pierce County Superior
Court and was sentenced to death. This court affirmed Yates's Pierce County
convictions and death sentence in 2007. State v. Yates, 161 Wn.2d 714, 794, 168 P.3d
359 (2007). Yates filed a personal restraint petition in 2008 challenging the Pierce
County death sentence and this court recently dismissed that petition. In re Pers.
Restraint of Yates, 177 Wn.2d 1, 66, 296 P.3d 872 (2013).
Now Yates challenges his 2000 Spokane County judgment and sentence. That
judgment and sentence resulted from a plea deal negotiated with prosecutors. Yates
agreed to plead guilty to 13 counts of aggravated first degree murder and 1 count of
attempted first degree murder. In return, prosecutors in Spokane County agreed to
forgo the death penalty. As part of the deal, prosecutors agreed to dismiss one count
of first degree murder for the death of Shawn McClenahan in exchange for Yates
agreeing not to attempt to withdraw his guilty pleas or to collaterally attack the
sentence. Prosecutors reserved the right to refile the McClenahan murder charge-
and to seek the death penalty for that charge-if Yates violated that part of the
agreement.
In Yates's Spokane County judgment and sentence, the total sentence for the 14
counts was 4,900 months Gust over 408 years). At issue in this case are the sentences
for counts one and two. Those crimes occurred in 1975, prior to the Sentencing
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No. 87518-9
Reform Act of 1981, chapter 9.94A RCW. The judge listed the sentences for counts
one and two each as 20 years. The sentences for all of the counts were to be served
consecutively.
Yates argues that his judgment and sentence is invalid because the 20-year
sentences for counts one and two exceeded the judge's legal authority under the law,
which required indeterminate life sentences (with a minimum of20 years) for those
counts. In his petition, Yates did not address the issue of prejudice or attempt to make
any showing thereof. The State contends that ( 1) Yates cannot file this personal
restraint petition because he agreed not to collaterally attack his plea, (2) the personal
restraint petition is time barred under RCW 10.73.090 because the judgment and
sentence was facially valid and the personal restraint petition was not filed within one
year of the judgment becoming final, and (3) Yates cannot withdraw his plea because
he failed to show any prejudice resulting from any error.
ISSUES PRESENTED
1. Is Yates precluded from filing this personal restraint petition because he
agreed not to collaterally attack his guilty plea in exchange for the State dismissing
one murder count against him?
2. Is Yates's judgment and sentence facially invalid, thus allowing his personal
restraint petition to avoid the one-year time bar?
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In re Pers. Restraint of Yates
No. 87518-9
3. Can Yates withdraw his guilty plea based on the misinformation in his
judgment and sentence despite his failure to make any showing of prejudice?
ANALYSIS
1. Yates's Plea Agreement Does Not Bar Collateral Attacks
As part of Yates's plea agreement, the prosecutors agreed to dismiss without
prejudice one count of aggravated first degree murder for the death of McClenahan.
In exchange, Yates agreed
that (a) any attempt to withdraw his guilty pleas; or (b) any attempt to
collaterally attack any conviction entered under this cause, through
personal restraint petition, habeas corpus action, or any other method,
will authorize the State tore-file one count of aggravated first degree
murder regarding the death of Shawn McClenahan and to seek any
lawful sentence, including death.
Pers. Restraint Pet., App. D at 3-4 (Plea Agreement). The parties further agreed that a
breach of this provision by Yates would not be a ground for vacating any conviction
or guilty plea he entered under the agreement, even if the State had cause to refile the
murder charge for the death of McClenahan.
The State argues that the plea agreement constitutes a waiver of Yates's right to
collaterally attack his guilty plea and that his personal restraint petition is thus void ab
initio. The State is incorrect. Nothing in the plea agreement prohibits Yates from
filing a collateral attack on his plea. The agreement simply provides that if Yates
collaterally attacks his guilty plea, the State may refile charges based on the death of
McClenahan. This personal restraint petition is a collateral attack on Yates's guilty
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In re Pers. Restraint of Yates
No. 87518-9
plea. Therefore, the State may consider this personal restraint petition a breach of the
plea agreement and attempt to refile the McClenahan charge. However, Yates never
waived his right to collaterally attack his plea and thus he may proceed with this
petition. 1
2. Yates Is Not Subject to the One-Year Time Bar Because His Judgment and
Sentence Is Facially Invalid
Generally, personal restraint petitions must be filed within one year of a
judgment becoming final. RCW 10.73.090(1). There are a number of exceptions to
this one-year requirement, including a judgment and sentence that is facially invalid.
RCW 10.73 .090( 1), .1 00. Yates argues that his judgment and sentence is facially
invalid and thus not subject to the one-year limit.
Specifically, Yates faults the trial court for imposing 20-year determinate
sentences for counts one and two. Those murders were committed on July 13, 1975-
prior to the Sentencing Reform Act of 1981. By law, when a court sentences an
individual for a crime that occurred before July 1, 1984, it must set a minimum term.
RCW 9.95.011(1). After the individual serves the minimum term, the Indeterminate
Sentence Review Board may consider him or her for parole, but may not reduce or
increase the minimum term set by the court. !d.
1
Because Yates did not waive his right to collateral attack, we do not address whether a
complete waiver of collateral attack rights would be enforceable.
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No. 87518-9
Generally, a judgment is facially invalid when "a court has in fact exceeded its
statutory authority in entering the judgment or sentence." In re Pers. Restraint of
Coats, 173 Wn.2d 123, 135, 267 P.3d 324 (2011). For example, when a defendant
pleaded guilty to a lesser charge in exchange for a prohibition on his ability to earn
early release time, we held that the judgment and sentence was facially invalid
because the judge lacked the statutory authority to restrict the defendant's ability to
earn early release time. In re Pers. Restraint of West, 154 Wn.2d 204, 215-16, 110
P.3d 1122 (2005).
In this case, the judge exceeded his statutory authority in entering the judgment
and sentence. He only had authority to impose a 20-year minimum sentence for
counts one and two, but instead he imposed a 20-year determinate, or maximum,
sentence. The authority for determining the maximum sentence rests with the
Indeterminate Sentencing Review Board. RCW 9.95.011(1). This case differs from
Coats, where the court found that a judgment and sentence was valid on its face when
the error related only to the sentencing range. 173 Wn.2d at 143. Here, the error
relates to the actual sentence imposed. The law does not allow the judge to set a
maximum or determinate sentence as the judge did on counts one and two. Thus, the
sentence was outside of the judge's statutory authority. Yates is correct that his
judgment and sentence is facially invalid and, as a result, his petition is not time
barred.
6
In re Pers. Restraint of Yates
No. 87518-9
3. Yates Does Not Show That the Judge's Sentence for Counts One and Two
Resulted in Any Prejudice
Yates seeks to withdraw his plea, contending that it was not knowing,
voluntary, and intelligent because he was not informed that the proper sentence for
counts one and two was an indeterminate sentence of 20 years to life rather than a
determinate sentence of20 years. Generally, a personal restraint petitioner alleging
constitutional error must show actual and substantial prejudice. In re Pers. Restraint
of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990). But Yates does not address the
issue of prejudice in his petition or reply-even though one of the State's primary
arguments in its response is that his petition fails because it does not show actual and
substantial prejudice. For support, Yates cites two cases that do not seem to require
prejudice under somewhat similar facts: In re Pers. Restraint of Isadore, 151 Wn.2d
294, 299-300, 88 P.2d 390 (2004), and In re Pers. Restraint ofBradley, 165 Wn.2d
934, 939-41' 205 p .3d 123 (2009).
We recently analyzed both Isadore and Bradley in In re Personal Restraint of
Stockwell,_ Wn.2d _ _, 316 P.3d 1007 (2014), where we directly addressed the
issue of whether a personal restraint petitioner alleging that misinformation rendered
his plea involuntary must show actual and substantial prejudice. !d. at 1015. In
Stockwell, we clarified that a personal restraint petitioner attempting to withdraw his
plea because of misinformation must show actual and substantial prejudice. !d. We
explained that Isadore did not require the petitioner to show actual and substantial
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In re Pers. Restraint of Yates
No. 87518-9
prejudice because the unique circumstances of the case compelled the court to apply
the direct appeal standard rather than the personal restraint petition standard. !d. at
1013. We also explained that Bradley cited Isadore, thus applying that same standard.
!d. at 1013-14, 1015. We ultimately issued a clear holding: "a [personal restraint]
petitioner seeking to withdraw a plea based on a misstatement of the statutory
maximum is required to satisfy the actual and substantial prejudice standard on
collateral attack." !d. at 1015. That holding is on point in this case.
Applying our holding in Stockwell, Yates must show actual and substantial
prejudice in order to obtain relief through this personal restraint petition. As noted
above, Yates did not address prejudice in his petition or in his reply. His only attempt
to show that he was prejudiced by the error in his sentence was in a later supplemental
declaration where he indicated that he would not have taken the plea deal if he had
known that the sentences for two of his murder charges were 20 years rather than
what the law required: an indeterminate life sentence with a minimum of 20 years.
However, we do not attempt to look into the mind and motivations of the defendant
when determining whether an error resulted in prejudice. !d. Instead, we evaluate the
practical effects that result from the error. !d.
In this case, there was no practical effect resulting from the error. Yates agreed
to a sentence of 408 years in prison and he should have been sentenced to a minimum
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In re Pers. Restraint of Yates
No. 87518-9
of 408 years with a potential extension to a life sentence. 2 Given the reality of the
human life-span, there is no difference between those two sentences. There is simply
no way to find prejudice in this context. Without a showing of prejudice, the petition
must be dismissed.
CONCLUSION
To avoid the death penalty for 13 murders, Yates agreed to plead guilty and
spend the rest of his life in prison by way of a 408-year sentence. He was fully
informed of the consequence of that plea: there was no possibility that he would ever
be released from prison, regardless of how long he lived. We see no reason to
invalidate his plea. His petition is dismissed.
2
The dissent contends that there are two practical differences between the 408-year
sentence Yates received and the sentence he should have received. First, the two 20-year
sentences for counts one and two could have run concurrently rather than consecutively.
Second, Yates may have been eligible for parole on counts one and two. But, of course,
neither of those differences would have had any effect until after Yates had served his
368-year sentence on the rest of the counts. We stand by our conclusion that humans do
not live long enough for these differences to have any practical effect.
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In re Pers. Restraint of Yates
No. 87518-9
WE CONCUR:
10
In re Pers. Restraint of Yates (Robert Lee)
No. 87518-9
STEPHENS, J. (concurring)-! agree with much of the analysis in Justice
Gordon McCloud's dissent. In particular, the relevant question in deciding whether
Yates may withdraw his guilty plea should be whether the (acknowledged)
misadvisement about the sentence he faced rendered his plea involuntary. This was
the inquiry in our key decisions on this topic. In re Pers. Restraint of Hews, 108
Wn.2d 579, 594, 597, 741 P.2d 983 (1987) (Hews II) (court must examine "'totality
of circumstances"' to determine whether petitioner understood the nature of the
charge, the elements, and whether Hews "had discussed with his attorney alternative
courses of action"); In re Pers. Restraint ofMendoza Montoya, 109 Wn.2d 270, 277,
744 P.2d 340 (1987). It was also the focus of the United States Supreme Court's
principal decision on this topic. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct.
1709, 23 L. Ed. 2d 274 (1969). This measure of prejudice is similarly reflected in
landmark decisions on the related topic of what constitutes ineffective assistance of
counsel in the plea-advice context. Lafler v. Cooper, _U.S._, 132 S. Ct. 1376,
1390-91, 182 L. Ed. 2d 398 (2012) (distinguishing inquiry applicable to ineffective
In re Pers. Restraint of Yates, Jr. (Robert Lee), 87518-9 (Stephens, J. Concurrence)
assistance claim arising in the plea context from requirement that the plea itself be
"knowing and voluntary"; treating prejudice in the former context as having adverse
effect on cost-benefit analysis involved in deciding whether to plead guilty); Padilla
v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (defense
counsel must advise defendant pleading guilty of the consequence of deportation to
provide effective assistance).
Nonetheless, I find it difficult to distinguish this case from the court's recent
decision in In re Personal Restraint of Stockwell,_ Wn.2d _ , 316 P.3d 1007(2014). There, this court found no prejudice because:
the sentence [Stockwell] received was statutorily authorized. Although the
judgment and sentence misstated the maximum, he received an exceptional
downward sentence, below both the stated maximum and the actual
maximum. Moreover, his sentence was completed over two decades ago. See
State v. Hardesty, 129 Wash.2d 303, 313-14, 915 P.2d 1080 (1996)
(discussing double jeopardy as applied to sentencing and acknowledging that
an erroneous sentence that has been fully served precludes imposition of a
heightened sentence where the defendant acquires a legitimate expectation
of finality). Under the facts here, Stockwell has failed to meet his burden to
show that the error complained of resulted in actual and substantial prejudice.
I d. at 1015. Applying that reasoning here, Yates cannot demonstrate prejudice. As
the majority notes, even though his sentence was unauthorized, there is no practical
difference in a human life span between the sentence imposed and the one Yates
should have received. See majority at 9 & n.2.
While I joined the dissent in Stockwell, it did not carry the day. At the same
time, the court in Stockwell did not purport to overrule any cases. Thus, being true
to all the relevant precedent-not just Stockwell, but also Hews II, Mendoza
-2-
In re Pers. Restraint of Yates, Jr. (Robert Lee), 87518-9 (Stephens, J. Concurrence)
Montoya, and the federal cases cited above-we should not so easily dismiss Yates's
personal restraint petition. We should instead consider whether he has overcome the
strong presumption that his guilty plea was validly entered.
In so doing, we need not accept at face value Yates's self-serving statement,
made years after the fact, that he would not have pleaded guilty in an effort to avoid
a death sentence had he known that he faced less than 408 years in prison but would
still be in prison for the rest of his life. Cf State v. Osborne, 102 Wn.2d 87, 97, 684
P.2d 683 (1984) (defendant seeking to withdraw plea must present some evidence
of involuntariness beyond his self-serving allegations). Because I agree with the
majority that "there was no possibility that he would ever be released from prison,"
majority at 9, Yates has not demonstrated that the misadvisement he received about
the particular sentence he faced invalidated his decision to plead guilty. For this
reason, I concur in the majority's conclusion that he has not demonstrated prejudice
entitling him to relief in this personal restraint petition.
-3-
In re Pers. Restraint of Yates, Jr. (Robert Lee), 87518-9 (Stephens, J. Concurrence)
s~/~-
-4-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
No. 87518-9
GORDON McCLOUD, J. (dissenting)-This personal restraint
petition (PRP) was filed by a man, Robert Lee Yates Jr., who received an
illegal sentence. The majority acknowledges this. Majority at 6. This PRP
is timely, given that the illegality of the sentence is clear from the face of the
judgment. The majority acknowledges this, too. Majority at 6-7. This PRP
is based on proof that Yates was given misinformation about the sentence he
would receive for two of his murder convictions if he pleaded guilty, along
with proof (in the form of the judgment & sentence) that the trial judge in
fact imposed illegal sentences on those two convictions. The majority
acknowledges this as well. Majority at 6. In fact, the sentence was not just
"illegal" in a technical sense but, under the controlling legislation, the
sentence fell outside the authority of the judge to impose. The majority
acknowledges this final point, too. ld.
The majority, however, asserts that the PRP raises a single claim of
invalidity of the plea due to misinformation about its consequences; that
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
Yates must prove prejudice to prevail on this claim; and that Yates failed to
prove prejudice because both the legal and illegal sentences, and both the
misinformation and true information about sentencing consequences, were
so similar.
I respectfully disagree. As I read the PRP, Yates has raised not one
but three claims based on this set of facts: ( 1) that the plea is invalid because
it was not knowing, intelligent, and voluntary, PRP at 3-4, 9-10 (citing,
among other things, the misinformation about consequences provided to
Yates by both the trial court at sentencing and the "Statement of Defendant
on Plea of Guilty"); (2) that the sentence actually imposed is illegal because
it exceeds the authority of the court, PRP at 4-7; and (3) that the sentence
actually imposed is illegal because it violates due process clause protections
against retrospective application of new criminal punishments, PRP at 9.
Only Yates's first claim potentially entitles him to the relief he seeks-
withdrawal of his plea-but each claim merits examination.
A. A Petitioner Claiming a Plea Was Involuntary Must Show
Prejudice, and Yates Has Done So Here
Yates's first claim is that his guilty plea was not 1mowing, intelligent,
and voluntary, and that he suffered prejudice because material
misinformation affected his decision about whether to plead guilty. The
- 2-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
majority, however, characterizes the prejudice question as whether the
illegal 408-year determinate sentence imposed is really worse, as a practical
matter, than a legal sentence of "408 years with a possible extension to life
in prison" would have been. Majority at 1. The majority then answers the
question no-it rules that sentences of 408 years, or 408 years give or take a
few, are not meaningfully different.
I disagree with the majority's analysis of prejudice for two reasons.
First, the determinate SRA 1 sentence that was illegally imposed-a total of
40 years-is actually more harsh, not less harsh, than the legal,
indeterminate, sentence (which could have been reviewed for parolability in
13 years and 4 months) would have been. Second, comparing the length of
the sentence that should have been imposed with the length of the sentence
that was actually imposed is the wrong way to decide if misinformation
caused prejudice. Instead, this court should ask whether the misinformation
affected the decision to plead guilty.
1. Yates's Sentence Is More Harsh, Not More Lenient,
Than a Lawful Sentence Would Have Been
Under the sentencing law applicable to Yates's two 1975 cnmes,
Yates's sentence for each of those pre-SRA crimes should have been 20
1
Sentencing Reform Act of 1981, chapter 9.94A RCW.
-3-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
years to life. But those 20-year pre-SRA sentences were not as harsh as the
20-year SRA sentences that Yates actually received, for several reasons.
First, the illegal determinate SRA sentences actually imposed had to
run consecutively. RCW 9.94A.589(1)(b). The pre-SRA sentences for the
1975 crimes could have been run concurrently-a point that the PRP makes.
PRP at 13.
Next, the illegal determinate SRA sentences actually imposed did not
allow accrual of good time. They required service of a full 20 years, plus
another full 20 years, without "any . . . form of early release." RCW
9.94A.540(1)(a), (2). 2 In contrast, defendants sentenced for murder under
the pre-SRA law (which should have applied to Yates's two 1975
convictions) were entitled to up to one-third of their sentences off for good
time-meaning that a defendant sentenced to 20 years could have a first
parolability hearing at 13 years, 4 months. See RCW 9.95.110(1)
(establishing up to one-third off sentence for good time for "an offender
2
Note that this statute was recodified from former RCW 9.94A.590 (2000),
which went into effect in 2001, the year after Yates entered his guilty pleas. LAWS
OF 2000, ch. 28, §§ 7, 46. However, the legislature made clear that the 2001
amendments to the SRA were for clarifying purposes only and not to be construed
as making "a substantive change in the sentencing reform act." !d. § 1. The
determinate sentencing statute in effect at the time of Yates's guilty pleas also
required a 20-year minimum sentence without any form of early release. Former
RCW 9.94A.120(4) (1998).
- 4-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
convicted of a cnme committed before July 1, 1984"); RCW 9.95.115
(establishing availability of parole after "twenty consecutive years less
earned good time").
So the pre-SRA sentence that should have been imposed was really
more lenient, not less lenient, than the SRA sentence that was actually
imposed. 3 The majority therefore errs in concluding that the pre-SRA
3 To be sure, this conclusion is based on some guesswork about which
version of the illegal SRA sentence was really imposed, and what the consequence
of a pre-SRA indeterminate sentence would have been. The rules applicable to
pre-SRA prisoners have changed over time. In 1991, after the two murders at
issue but before Yates's 2000 pleas, pre-SRA prisoners argued that because former
RCW 9.95.115 (1989) allowed parole consideration as early as 20 years less good
time from the date upon which they began serving their sentences, while a new
law, enacted as Substitute H.B. 1457, 51st Leg., Reg. Sess. (Wash. 1989) (SHB
1457), required the Indeterminate Sentence Review Board to set minimum terms
for those with life sentences '"reasonably consistent"' with SRA guidelines, that
new law retrospectively increased their punishment. In re Pers. Restraint of
Powell, 117 Wn.2d 175, 187, 814 P.2d 635 (1991) (quoting RCW 9.95.009(2)).
These inmates explained that SRA guidelines provide sentences that are, on the
whole, much higher than the 20 years less good time that former RCW 9.95.115
required prior to parole consideration, and this court agreed. We stated, "It is
therefore unlikely that a 20-year minimum term will be given under the SRA to a
person serving a mandatory life term. In fact, the sentences given to petitioners in
this case clustered in the 25- to 27-year range." !d. at 188. "Thus, argue
petitioners, since adherence to the SRA actually results in a longer period of
incarceration before they can be considered for parole, the law which requires that
adherence works to their disadvantage and is ex post facto." !d. This court
rejected the petitioner's conclusion only because the old SRA sentences left some
discretion-they would not necessarily become more harsh under SHB 1457.
This court's reasoning, however, was based on the clear belief that the SRA itself
was more harsh-and mandatorily so-than pre-SRA law.
-5-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
sentences that should have been imposed and the SRA sentences that were
illegally imposed are indistinguishable.
11. Prejudice Means That Misinformation Stripped the Plea
Process of a Knowing, Intelligent, and Voluntary
Character, Not That the Result Was a Particular Term of
Years
The majority also asserts that Yates alleged no other prejudice at all:
"Yates does not address the issue of prejudice in his petition or reply-even
though one of the State's primary arguments in its response is that his
petition fails because it does not show actual and substantial prejudice."
Majority at 7; see also id. at 8 ("Yates did not address prejudice in his
petition or in his reply").
The majority errs on this point, too. Yates addressed prejudice in his
PRP by describing the misinformation he received. PRP at 9-12. He did
state that prejudice should be presumed, but he also explained that the
misinformation concerned a critical "direct consequence" of his plea. PRP
at 12-13. Yates then explained in detail, in a signed declaration submitted in
support of his PRP, that he would not have accepted the plea agreement if he
How this would have affected Yates, in particular, however, might well be
a factual question. If such facts are in dispute, they should be fleshed out at an
evidentiary hearing under RAP 16.11 (b), not assumed by this court. See In re
Pers. Restraint of Rice, 118 Wn.2d 876, 885-87, 828 P.2d 1086 (1992).
-6-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
had been correctly informed-he stated under penalty of perjury that it
affected his decision-making process. Pet'r' s Suppl. Decl. (Decl. of Robert
Yates ~ 3) ("If I had been told that Counts I and II required indeterminate
life sentences, I would not have pleaded guilty and would not have accepted
the State's 'package deal."').
The majority acknowledges that Yates submitted the supplemental
declaration, explaining Yates's position that "he would not have taken the
plea deal if he had known that the sentences for two of his murder charges
were 20 years rather than what the law required: an indeterminate sentence
with a minimum of 20 years." Majority at 8 (referencing Yates's
declaration). The State provided no contrary declaration, affidavit, or
statement of facts on this point. But, giving the State and the majority the
benefit of the doubt, let us assume there is-good-reason to question Yates's
version of the facts. We would then be faced with the question of what to do
when the material facts-here, whether the misinformation affected Yates's
decision to plead guilty-are in dispute. Under controlling precedent and
court rules, the answer is that this court must refer the PRP to the superior
court for a reference hearing under RAP 16.11(b), not summarily reject it.
See In re Pers. Restraint of Rice, 118 Wn.2d 876, 886-87, 828 P.2d 1086- 7-
In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
(1992) ("[T]he State must meet the petitioner's evidence with its own
competent evidence. If [there are] material disputed issues of fact, then the
superior court will be directed to hold a reference hearing .... ").
The State, and the majority, discount this allegation of prejudice by
saying it is not the kind of prejudice that counts: '"'[W]e do not attempt to
look into the mind and motivations of the defendant when determining
whether an error resulted in prejudice. Instead, we evaluate the practical
effects that result from the error." Majority at 8 (emphasis added) (citation
omitted) (citing In re Pers. Restraint of Stockwell,_ Wn.2d _, 316 P.3d
1007, 1014-15 (2014)). "In this case, there was no practical effect resulting
from the error. Yates agreed to a sentence of 408 years in prison and he
should have been sentenced to a minimum of 408 years with a potential
extension to a life sentence." Majority at 8-9 (emphasis added).
As discussed above, it is factually incorrect to say there was no
practical effect from the error.
It is also legally incorrect. It is the wrong definition of what
"prejudice" means in this context. As I explained in my concurrence in
Stockwell, controlling United States Supreme Court authority instead holds
that misadvice in this context causes prejudice when it affects the criminal
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In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
defendant's decision-making process. Boykin v. Alabama, 395 U.S. 238,
242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Controlling authority from
this court says the same thing. In re Pers. Restraint of Hews, 108 Wn.2d
579, 594, 741 P.2d 983 (1987). I acknowledge that a majority of this court
recently retreated from that definition of "prejudice" in certain contexts.
Stockwell, 316 P.3d 1007. But I believe that we are not free to retreat from
United States Supreme Court authority on this point, particularly as it
applies to Yates.
I therefore conclude that Yates has alleged prejudice as a matter of
law, and also as a matter of fact.
B. The Illegality of the Sentence Is a Separate Legal Claim,
Cognizable for the First Time in This Timely PRP; Had Yates
Requested Resentencing, It Would Require Relief without Any
Additional Showing of Prejudice
Yates's allegation that the sentence imposed was illegal is a separate
claim. A claim that the sentence actually imposed was outside the court's
power is separately cognizable in a PRP and warrants relief. In fact, this
court did a voluminous analysis of this issue about a decade ago in In re
Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002). The
Goodwin court unanimously concluded that an erroneous sentence imposed
without statutory authorization can be challenged via a PRP, even outside
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In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
the one-year time limit, and that the prisoner proving such a claim is entitled
to relief. !d. at 873-77; see also In re Pers. Restraint of Moore, 116 Wn.2d
30, 803 P.2d 300 (1991).
Yates, however, asks this court to remand to the superior court to
permit him to withdraw all of his "package" guilty pleas. PRP at 13. This
remedy is not available to him. The remedy for the illegal sentences in
Goodwin and Moore was resentencing-the petitioner in those cases did not
seek to withdraw a plea. Yates would be entitled to resentencing had he
requested it. But the illegality of the sentence does not, alone, allow Yates
to withdraw his plea agreement.
C. The Retrospective Application of the Sentence Is a Separate
Due Process Claim, Cognizable for the First Time in This
Timely PRP; Had Yates Requested Resentencing, It Would Also
Require Relief without Any Additional Showing ofPrejudice
Finally, the majority ignores Yates's claim that his SRA sentences on
the two pre-SRA crimes violated the ex post facto and due process clauses of
the state and federal constitutions. PRP at 9. A claim of such a
constitutional violation is separately cognizable in a PRP. RAP 16.4(c)( 6).
The ex post facto clause "'forbids the application [by the legislature]
of any new punitive measure to a crime already consummated.'" Kansas v.
Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 183 L. Ed. 2d 501 (1997)
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(Gordon McCloud, J., Dissenting)
(quoting Cal. Dep't ofCorr. v. Morales, 514 U.S. 499, 505, 115 S. Ct. 1597,
131 L. Ed. 2d 588 (1995)); see also U.S. CONST. art. I, § 10, cl. 1; CONST.
art. I, § 23. "A law violates the ex post facto clause if it: (1) is substantive,
as opposed to merely procedural; (2) is retrospective . . . ; and (3)
disadvantages the person affected by it." In re Pers. Restraint of Powell,
117 Wn.2d 175, 185, 814 P.2d 635 (1991) (citing Weaver v. Graham, 450
U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981)). That test is satisfied
here. The length and conditions of Yates's murder sentences are
substantive, not merely procedural. 4 The SRA sentences were applied
retrospectively to conduct occurring before the SRA's enactment. And, as
discussed above, the two consecutive 20-year flat-time sentences likely
disadvantaged Yates because he might have served legal sentences in 13
years, 4 months under the old law. 5 The legislature, however, is not at fault;
4In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 170, 949 P.2d 365(1998) (in context of ex post facto challenge, changes to compel "application of
determinate sentencing to a pre-SRA offender fundamentally alter[] the sentencing
scheme and [we] hold the changes are substantive").
5 Cf Powell, 117 Wn.2d 175 (SHB 1457 not ex post facto as applied to
prisoners who were not certified as parolable by superintendent of their prison on
its effective date but was ex post facto as applied to prisoners certified as parolable
before then); In re Pers. Restraint of Haynes, 100 Wn. App. 366, 377-78, 996 P.2d
637 (2000) (addition of subsection (3) to RCW 9.95.009 does not violate ex post
facto clause because the claim that it was disadvantageous was too speculative).
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In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
it was the sentencing court, not the legislature, that applied the SRA
sentences retrospectively. But we have clearly held that similar rules apply
to the courts: the due process clause forbids the application by the courts of
any new punitive measure to a crime already consummated. State v. Aha,
137 Wn.2d 736, 741-42, 975 P.2d 512 (1999). Application of the SRA
sentence for first degree murder to Yates's conduct, which occurred before
the SRA was enacted, is therefore unconstitutional.
Finally, no additional prejudice need be shown on this claim.
Imposing a new and more harsh sentence on a defendant whose cnmes
occurred before the new sentencing law is, alone, reversible error. 6
The remedy for a sentence that violates ex post facto principles,
however, is, in the circumstances of this case, the same as the remedy for an
illegal sentence-resentencing. See In re Pers. Restraint of Stanphill, 134
Wn.2d 165, 168-69, 949 P.2d 365 (1998) (discussing petitioner's request for
his sentencing to be based on law in place at the time). Yates did not request
resentencing, and he is not entitled to withdraw his plea agreement on the
basis of the due process clause violation at issue here.
6
See In re Pers. Restraint of Thompson, 141 Wn.2d 712, 725, 10 P.3d 380(2000) ("Thompson is therefore entitled to relief from his sentence because he
pleaded guilty to an offense which occurred before the effective date of the statute
creating the offense.").
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In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
CONCLUSION
Yates raises three arguments: ( 1) that he is entitled to withdraw his
plea because misinformation rendered his plea involuntary, (2) that his
sentence was illegally imposed, and (3) that his sentence violates due
process clause protections against retroactive application of laws by the
judiciary. The majority addresses only one of those arguments on its
merits-the involuntary plea argument-and holds that Yates cannot show
prejudice because the sentence that should have been imposed and the
sentence that was illegally imposed are both extremely long. But Yates has
alleged prejudice of two sorts: he has alleged that the misadvice affected his
plea, and he has alleged that the SRA sentence imposed results in a longer
term of imprisonment than did the pre-SRA sentence that should have been
imposed.
If there is any question about whether the illegal SRA sentence
imposed on Yates was more harsh than a legal indeterminate sentence would
have been despite the general differences between those two sentences
summarized in Part (A)(i) above, that is a factual question about how Yates
might have fared in a parolability hearing, which must be resolved via a
reference hearing under RAP 16.11 (b). And the United States Supreme
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In re the Pers. Restraint of Yates, No. 87518-9
(Gordon McCloud, J., Dissenting)
Court has held that the application of parole laws by parole boards, in
practice, can be considered in determining whether changes in those laws
would have been more or less harsh in practice. 7
Yates has also proved his two other claims. The only remedy
available for those two errors, however, is resentencing, and Yates has not
requested this; thus he is not entitled to relief on those two claims.
I would therefore remand this case to the trial court with instructions
to hold a reference hearing under RAP 16.11(b) as required by Rice, 118
Wn.2d at 885-87, to determine the factual issues identified above in Part A:
( 1) whether Yates can prove by the appropriate legal standard that a legal
pre-SRA sentence would have been shorter than the sentence he actually
received, and (2) whether the misinformation Yates received about his
sentence actually affected his decision to plead guilty.
I respectfully dissent.
7
Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000);
Morales, 514 U.S. 499 (ex post facto clause context).
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In re the Pers. Restraint of Yates, No. 87518-9
Gordon McCloud, J., Dissenting
15