Personal Restraint Petition Of Marlon Octavius Luvell House ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
July 23, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint Petition No. 51943-7-II
of:
MARLON OCTAVIUS LUVELL HOUSE,
Petitioner.
UNPUBLISHED OPINION
MELNICK, P.J. — Marlon Octavius Luvell House plead guilty to two counts of rape of a
child in the first degree. In a personal restraint petition (PRP), House contends he received
ineffective assistance of counsel and that the trial court erred in sentencing him. Because House
filed his PRP more than one year from the date his appeal became final and House does not allege
an exception to the time bar applies, we deny his PRP.
FACTS
The State charged House with four counts of rape of a child in the first degree and two
counts of child molestation in the first degree in two separate cases.1 House plead guilty to two
counts of rape of a child in the first degree, one in each case. He admitted guilt and took full
responsibility for his crimes.
1
See State v. House, No. 75641-9-I (Wash. Ct. App. Nov. 21, 2016) (unpublished),
https://www.courts.wa.gov/opinions/pdf/756419.pdf.
51943-7-II
House appealed his convictions and we affirmed. The court issued its mandate in House’s
appeal on May 5, 2017.2 The trial court filed the mandate in one case number on May 17 and in
the other case number on May 24. House filed his PRP on May 24, 2018.
ANALYSIS
A petitioner may request relief through a PRP when he or she is under an unlawful restraint.
RAP 16.4(a)-(c). “A personal restraint petitioner must prove either a (1) constitutional error that
results in actual and substantial prejudice or (2) nonconstitutional error that ‘constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.’” In re Pers.
Restraint of Monschke, 160 Wn. App. 479, 488, 251 P.3d 884 (2010) (quoting In re Pers. Restraint
of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004) (internal quotations omitted)). The petitioner
must prove the error by a preponderance of the evidence. In re Pers. Restraint of Lord, 152 Wn.2d
182, 188, 94 P.3d 952 (2004).
The State contends that we should dismiss House’s PRP as untimely because he filed it
more than one year after judgment became final. It claims that this court’s mandate on House’s
appeal issued on May 5, 2017 and he filed his PRP on May 24, 2018, more than one year later.
House responds by arguing that appellate mandates do not “issue” until the trial court files them,
which it did on May 17 in one case and May 24 in the other. Because this court, not the trial court,
“issues” the mandate, House’s PRP is untimely.
“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
2
House contends that an appellate court’s mandate does not actually “issue” until it is filed in the
trial court. We address his argument below.
2
51943-7-II
valid on its face and was rendered by a court of competent jurisdiction.” RCW 10.73.090(1). A
judgment becomes final on the last of:
(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.
RCW 10.73.090(3).
“RCW 10.73.090 is not ambiguous.” In re Pers. Restraint of Skylstad, 160 Wn.2d 944,
948, 162 P.3d 413 (2007). Each requirement of RCW 10.73.090(3) “sets the final judgment date
to when all litigation on the merits ends.” Skylstad, 160 Wn.2d at 948. If a defendant chooses not
to appeal, “judgment is final when the trial court clerk files the judgment,” but if a defendant
appeals, “then the judgment is final when the appellate court issues its mandate ‘disposing of direct
appeal.’” Skylstad, 160 Wn.2d at 948 (quoting RCW 10.73.090(3)(b)). The appellate court issuing
its mandate “terminates review and similarly ends all litigation on the merits” and causes the
judgment to become final, absent a petition to the United States Supreme Court. Skylstad, 160
Wn.2d at 949 (footnote omitted).
A “‘mandate’ is the written notification by the clerk of the appellate court to the trial court
and to the parties of an appellate court decision terminating review.” RAP 12.5(a). The court of
appeals issues its mandate terminating review thirty days after the decision is filed unless:
3
51943-7-II
(i) a motion for reconsideration of the decision or a motion to publish has been
earlier filed; (ii) a petition for review to the Supreme Court has been earlier filed,
or (iii) the decision is a ruling of the commissioner or clerk and a motion to modify
the ruling has been earlier filed.
RAP 12.5(b)(1). A mandate issues from the Supreme Court twenty days after the decision is filed,
unless there is a motion for reconsideration. RAP 12.5(c)(2).
House contends that an appellate court does not “issue” its mandate until the mandate is
filed in the trial court. He relies on definitions and interpretations of the word “issue,” which
means “‘officially put forth or distribute[],’” “‘go forth by authority,’” or “‘cause to appear or
become available by officially putting forth.’” Reply Br. of Petitioner at 3 (quoting Rizzuti v. Basin
Travel Serv., 125 Wn. App. 602, 612, 105 P.3d 1012 (2005)). RCW 10.73.090 specifies that a
judgment becomes final when the “appellate court issues its mandate.” House has not provided
any valid basis for considering the date the trial court files the mandate as a date the appellate court
issues it other than the definition of “issue.”
House’s interpretation is at odds with the language of RCW 10.73.090, the rules of
appellate procedure, and appellate cases that have discussed the judgment date in deciding whether
PRPs are timely. The “mandate” is a document the appellate court issues to notify the trial court
its review is complete. Any action the trial court takes relating to the mandate has nothing to do
with the date the appellate court issues it. The mandate in House’s appeal issued on May 5, 2017.
Accordingly, his PRP filed on May 24, 2018 is untimely.
4
51943-7-II
House does not claim that any time bar exceptions in RCW 10.73.100 apply in his case.
We deny his PRP as untimely and do not address his substantive arguments.
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 in accordance with RCW 2.06.040,
it is so ordered.
Melnick, P.J.
We concur:
Sutton, J.
Glasgow, J.
5