In re the Personal Restraint of Stoudmire , 145 Wash. 2d 258 ( 2001 )

Bridge, J.

In this personal restraint petition (PRP), we are asked to determine whether a defendant may withdraw his guilty plea when the plea form failed to inform him of the duration of mandatory community placement. Jerrod Duane Stoudmire, who pleaded guilty to several counts involving child molestation, claims that he would not have pleaded guilty had he known of the mandatory two-year term of residential placement after incarceration. We hold that this PRP is procedurally barred under RCW 10.73.090d).¹

FACTS

On July 20, 1992, the State charged Stoudmire with one count of rape of a child in the second degree, under cause number 92-1-02984-9. On the same day, he was charged with two counts of indecent liberties, one count of statutory rape in the second degree, one count of rape of a child in the second degree, and one count of rape of a child in the third degree, under cause number 92-1-02985-7. Pursuant to a plea agreement, the prosecutor filed an amended information in the latter cause, charging one count of rape of a child in the second degree, and one count of assault in the third degree. All charges related to molesting children whom he was baby-sitting. The defendant entered guilty pleas to all charges.

The plea agreements stated that “[i]n addition to confinement, the judge will sentence me to community placement for at least 1 year,” and each contained language indicating that the prosecutor would recommend two years of community placement.² Stoudmire acknowledged in court that he understood the recommendation for community placement. The presentence investigation report prepared by the Department of Corrections indicated that a two-year placement was mandatory. A copy of that report was sent to defense counsel, who acknowledged receiving it.

Because the parties had miscalculated the sentencing range and applicable offender score, Stoudmire withdrew his guilty pleas. But on September 20, 1993, Stoudmire entered guilty pleas again, this time to a second amended information charging the same crimes as the original information. By that time, he was already aware of the two-year mandatory placement.

At the sentencing hearing on September 28, 1993, the court imposed concurrent sentences totaling 198 months followed by two years of community placement. Stoudmire did not appeal, but on September 26, 1994, he filed a PRP, seeking to withdraw his plea because he was not informed of his correct offender scores or of the 15 percent limitation on earned early release time. On April 11, 1995, the Court of Appeals dismissed the petition. No appeal to this court was filed.

On January 20, 1999, Stoudmire, acting pro se, raised new issues in a second PRP. The Court of Appeals rejected the PRP, finding that he had not offered good cause for failing to raise the issues in the first PRP. This court granted discretionary review, and on August 10, 2000 granted relief on some of his claims, vacating the two convictions for indecent liberties and remanding for resentencing on some of the other convictions. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 352-57, 5 P.3d 1240 (2000). We did not address the issue of whether Stoudmire was properly informed of the mandatory two-year community placement, because the petition was “mixed,” containing claims that were both timely and untimely under RCW 10.73.100. Id. at 350. In dictum, the court stated that Stoudmire would have the option to resubmit that claim in a subsequent petition. Id. at 350-51. Stoudmire has accepted our invitation.

ANALYSIS

Successive Petition

The prohibition on successive PRPs found in RCW 10.73.140³ limits the jurisdiction of the Court of Appeals but does not limit this court’s jurisdiction. In re Pers. Restraint of Johnson, 131 Wn.2d 558, 565, 933 P.2d 1019 (1997). RAP 16.4(d)⁴ bars consideration of a second petition for “similar relief” without a showing of good cause, but this court has already indicated that Stoudmire’s claim does not fall within the scope of “similar relief” contemplated by the rule:

[P]etitioner may resubmit this claim in a subsequent petition. RAP 16.4(d) bars consideration of a second petition “for similar relief” without a showing of good cause. Following the definition of “similar relief” in Sanders v. United States, 373 U.S. 1, 14, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963), this court in In re Personal Restraint of Haverty, 101 Wn.2d 498, 502-03, 681 P.2d 835 (1984) stated that a successive petition could be dismissed only where the prior application had been denied on grounds previously heard and determined on the merits. Since we are dismissing on procedural grounds petitioner’s claim to withdrawal of his guilty pleas to second and third degree rape, we did not consider it on its merits.

Stoudmire, 141 Wn.2d at 350-51. Thus, this PRP is not barred as a successive petition.

Time Bar Under RCW 10.73.090(1)

Motions for collateral attack, including PRPs, must normally be filed within one year of final judgment:

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.

RCW 10.73.090(1). This petition was filed over five years after the final judgment, and is barred unless it falls under a statutory exception or the conviction is facially invalid.

Stoudmire first claims that his petition falls under the exception provided in RCW 10.73.100(6), which allows a claim to be raised at a later date when it is based on a significant change in the law. He supports this with dicta from the previous Stoudmire opinion, wherein this court opined that the community placement issue “appears to fall within RCW 10.73.100(6).” Stoudmire, 141 Wn.2d at 346 (emphasis added). Stoudmire does not claim that any other statutory exception to the time bar applies.

Stoudmire’s purported change in the law results from a 1996 case in which this court held that mandatory community placement is a direct consequence of a plea; i.e., a consequence that arises from the guilty plea itself rather than from other proceedings. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996). This court had previously held that a defendant must be informed of all direct consequences of a plea. Id. (citing State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). The Ross court therefore applied Barton in holding that a defendant who is not informed of mandatory placement may withdraw his plea. Id. at 280.

One test to determine whether an appellate decision represents a significant change in the law is whether the defendant could have argued this issue before publication of the decision. In re Pers. Restraint of Holmes, 121 Wn.2d 327, 332, 849 P.2d 1221 (1993). One year after Ross was decided, Division Three of the Court of Appeals held that Ross did not constitute a significant change in the law because the opinion merely applied settled case law to new facts. State v. Olivera-Avila, 89 Wn. App. 313, 321, 949 P.2d 824 (1997). Stoudmire claims that Olivera-Avila was poorly reasoned and should be overruled by this court. However, this court has recently had an opportunity to overrule Olivera-Avila but declined to do so. In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000).

The Greening court clarified the meaning of significant change:

While litigants have a duty to raise available arguments in a timely fashion and may later be procedurally penalized for failing to do so . . . they should not be faulted for having omitted arguments that were essentially unavailable at the time, as occurred here. We hold that where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a “significant change in the law” for purposes of exemption from procedural bars.

Id. at 697 (footnote omitted).

Ross did not “effectively overturn” a previous appellate decision, and the arguments used in the case were previously available to litigants. We therefore adhere to the holding of Olivera-Avila and hold that Ross does not represent a “significant change in the law.” Thus, this petition does not fall under the exception in RCW 10.73.100(6).

Facial Invalidity

An alternative argument made by Stoudmire is that the conviction is facially invalid. RCW 10.73.090(1) forbids collateral attack more than one year after judgment if the judgment and sentence is valid on its face. This court has held that the phrase “on its face” includes those documents signed as part of a plea agreement. Stoudmire, 141 Wn.2d at 353 (citing State v. Phillips, 94 Wn. App. 313, 317, 972 P.2d 932 (1999)).

The plea form signed by Stoudmire was approved by this court in former CrR 4.2(g)(6)(j). In it, he was advised that a mandatory term of “at least one year” of community placement applied, but not that the mandatory term was two years. Stoudmire was advised in the plea form and acknowledged that the prosecutor would recommend two years of community placement. He nevertheless claims that because of the reference to “at least one year” he was affirmatively misadvised.

Due process requires that a guilty plea be knowing, intelligent, and voluntary. U.S. Const, amend. 14; Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). This court held in Ross that a defendant is unable to enter an intelligent, voluntary plea unless he is informed of mandatory community placement. Ross, 129 Wn.2d at 288. In a later case, the Court of Appeals vacated a guilty plea on direct appeal because the plea form did not explicitly warn the defendant of mandatory community placement. State v. Rawson, 94 Wn. App. 293, 297-98, 971 P.2d 578 (1999). In Rawson, the plea form stated that “ The Judge may sentence me to community placement for at least 1 year,’ ” but the defendant was unaware that the placement was mandatory. Id. at 295 (first emphasis added).

Here, Stoudmire was aware of the prosecutor’s recommendation for a two-year placement, and knew that at least one year of community placement was mandatory. Thus, unlike the defendant in Rawson, Stoudmire knew that some term of mandatory community placement would be imposed. Stoudmire nevertheless argues that due process requires notice of the range of punishment in addition to the mere fact of punishment. We disagree. The plea form gave him adequate notice that mandatory community placement applied and that the prosecutor intended to recommend two years.

Yet, even if we were to hold that the plea agreement was facially invalid, Stoudmire’s claim still fails. Knowledge of the direct consequences of a guilty plea can be satisfied either by the plea documents or by clear and convincing extrinsic evidence. Wood v. Morris, 87 Wn.2d 501, 507, 554 P.2d 1032 (1976). While Stoudmire’s plea form stated only that community placement was mandatory for “at least one year,” his attorney acknowledged receipt of a presentence investigation report that clearly stated the mandatory minimum term. Stoudmire subsequently withdrew his guilty plea for other reasons, but later pleaded guilty again. At that point, even though the plea form once again did not specify the mandatory length of placement, Stoudmire was on notice of the required term from the presentence report. His assertion that he was unaware of the mandatory nature of the prosecutor’s two-year recommendation is untenable.

CONCLUSION

This PRP is procedurally barred under RCW 10.73.090(1). Stoudmire has not provided a statutory exemption to the time bar, nor has he demonstrated that the plea form is facially invalid. We therefore deny the petition.

Alexander, C.J., and Smith, Johnson, Ireland, and Owens, JJ., concur.

1 In deciding a previous PRP from Stoudmire, this court dismissed the issue he now raises on procedural grounds, holding that the issue could not be raised in a “mixed” PRP but stating in dicta that Stoudmire would not be barred from raising the issue in a separate PRP. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 350-51, 5 P.3d 1240 (2000).

2 State’s Resp. to Pers. Restraint Pet., Apps. F, G.

3 If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon receipt of a personal restraint petition, the court of appeals shall review the petition and determine whether the person has previously filed a petition or petitions and if so, compare them. If upon review, the court of appeals finds that the petitioner has previously raised the same grounds for review, or that the petitioner has failed to show good cause why the ground was not raised earlier, the court of appeals shall dismiss the petition on its own motion without requiring the state to respond to the petition.

RCW 10.73.140.

4 The appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances and if such relief may be granted under RCW 10.73.090, .100, and .130. No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.

RAP 16.4(d).