Personal Restraint Petition Of Vichai Saly ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
December 17, 2019
DIVISION II
In the Matter of the Personal Restraint of: No. 50884-2-II
VICHAI SALY, UNPUBLISHED OPINION
Petitioner.
GLASGOW, J. — Vichai Saly was charged with three counts of first degree assault in 1994,
when he was 16 years old. These charges triggered automatic transfer to the adult division of the
superior court under RCW 13.04.030(1)(e)(i). The prosecutor later reduced the charges from three
counts of first degree assault to three counts of second degree assault and added one count of taking
a motor vehicle without permission. The case was not transferred to the juvenile court even though
adult jurisdiction was no longer automatic. Saly pleaded guilty to the amended charges and was
sentenced as an adult. He finished serving his sentence for these convictions in 2001.
Saly was subsequently charged with first degree murder. He pleaded guilty and received
a 432-month sentence for the first degree murder conviction based on an offender score that
included his prior adult convictions for second degree assault. Saly remains incarcerated for this
crime.
Saly filed a personal restraint petition challenging the validity of the judgment and sentence
entered for his 1994 crimes and the resulting impact on his offender score for his subsequent
murder conviction. He argues that the adult court lacked jurisdiction to enter a judgment and
sentence for the prior 1994 assault convictions, thereby exempting him under RCW 10.73.090(1)
from the one-year time limit for filing a personal restraint petition. He also contends that he
No. 50884-2-II
received ineffective assistance of counsel when his attorney failed to move to transfer his case to
juvenile court for a decline hearing.
Even had the adult court lacked jurisdiction in 1994, overcoming the time bar for personal
restraint petitions—an issue we do not decide—Saly has failed to show the prejudice necessary to
warrant relief. Similarly, even if his counsel were deficient—another issue we do not decide—he
has not shown actual and substantial prejudice. We therefore deny Saly’s personal restraint
petition.
FACTS
In December 1994, 16-year-old Saly was charged with three counts of first degree assault
for assaults he had committed a few days earlier. Under RCW 13.04.030(1)(e)(v)(A),1 “serious
violent offenses” automatically subject juveniles to the jurisdiction of the adult court. The charges
against Saly automatically subjected him to the jurisdiction of the adult division2 of the Pierce
County Superior Court (“adult court”) because first degree assault is a serious violent offense
under RCW 9.94A.030(47)(a)(v).3
A few weeks later, the prosecutor filed an amended information, reducing the three counts
of first degree assault to three counts of second degree assault and adding one count of taking a
1
The legislature has amended RCW 13.04.030(1) several times since 1994, but because the
relevant language has not changed, we cite to the current version of the statute.
2
We use the terminology that the Washington Supreme Court and this court have used in prior
cases to distinguish between the juvenile division of the superior court and proceedings that treat
the juvenile as an adult. E.g., State v. Posey, 174 Wash. 2d 131, 144, 272 P.3d 840 (2012); State v.
Meridieth, 144 Wash. App. 47, 52, 180 P.3d 867 (2008).
3
The legislature has amended RCW 9.94A.030 several times since 1994, but because the
designation of first degree assault as a serious violent offense has not changed, we cite to the
current version of the statute.
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No. 50884-2-II
motor vehicle without permission. Under the amended charges, Saly was no longer subject to
automatic adult court jurisdiction. RCW 13.04.030(1)(e)(v); see also RCW 9.94A.030(47).
The adult court did not conduct a decline hearing or transfer to the juvenile division for a
decline hearing. Saly’s trial counsel did not move for a decline hearing. Saly pleaded guilty to
the reduced charges in the amended information. The adult court accepted Saly’s guilty plea and
sentenced him as an adult. Saly did not appeal. In 2001, he completed his sentence and received
a certificate of discharge.
In 2003, Saly was convicted of murder in King County. Saly’s criminal history for
purposes of calculating his offender score for the murder conviction was comprised of his three
1995 convictions for second degree assault. Because the assaults were violent offenses, they each
counted for two points, making a total of six points. RCW 9.94A.525(9).4 Saly received a 432-
month sentence for the murder conviction and he remains incarcerated.
In 2017, Saly filed a personal restraint petition, challenging the validity of the 1995
judgment and sentence that included the three counts of assault and that was entered in adult court.
ANALYSIS
Saly argues that his personal restraint petition should be granted because the adult court
did not have authority to enter a judgment and sentence for his 1995 assault convictions once the
amended information no longer included automatic decline offenses. The State concedes the trial
court erred by not transferring the matter to the juvenile court. Nevertheless, we hold that Saly
failed to demonstrate that he was prejudiced by the adult court’s error. We therefore deny his
4
RCW 9.94A.525 has been amended several times since 1995. Because the relevant language has
not changed, we cite to the current version of this statute.
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No. 50884-2-II
petition. Because Saly cannot establish prejudice, we need not address any other issue that he
raises. See In re Pers. Restraint of Meippen, 193 Wash. 2d 310, 312-13, 440 P.3d 978 (2019).5
A. Personal Restraint Petition Standards
A personal restraint petitioner must establish that his or her restraint was the product of
either a constitutional error that caused “actual and substantial prejudice” or a nonconstitutional
“‘fundamental defect’” that “‘inherently result[ed] in a complete miscarriage of justice.’” In re
Pers. Restraint of Swagerty, 186 Wash. 2d 801, 807, 383 P.3d 454 (2016) (quoting In re Pers.
Restraint of Cook, 114 Wash. 2d 802, 810-12, 792 P.2d 506 (1990)). The petitioner has the burden
of proving error and prejudice by a preponderance of the evidence under the totality of the
circumstances. In re Pers. Restraint of Brockie, 178 Wash. 2d 532, 539, 309 P.3d 498 (2013). These
requirements are designed to “‘preserve the societal interest in finality, economy, and integrity of
the trial process.’” In re Pers. Restraint of Wolf, 196 Wash. App. 496, 503, 384 P.3d 591 (2016)
(quoting In re Pers. Restraint of Woods, 154 Wash. 2d 400, 409, 114 P.3d 607 (2005)).
Saly raises a claim of nonconstitutional statutory error on the basis of the trial court’s
failure to transfer his case to the juvenile court for a decline hearing. Saly also raises a claim of
constitutional error on the basis of ineffective assistance of counsel due to his lawyer’s failure to
move for a decline hearing. To prevail on the nonconstitutional statutory error claim, Saly would
need to establish that the adult court’s failure to transfer to juvenile court was a “‘fundamental
defect’” that inherently resulted in a “‘complete miscarriage of justice.’” Swagerty, 186 Wash. 2d at
807 (quoting Cook, 114 Wash. 2d at 810-12). To prevail on the constitutional error claim, Saly would
5
Because Saly’s failure to show prejudice is dispositive in this case, we do not decide whether
Saly is under restraint for personal restraint petition purposes, whether his petition is time-barred,
or whether his petition is a mixed petition.
4
No. 50884-2-II
need to show that his trial counsel’s failure to move to transfer resulted in “actual and substantial
prejudice.” Id. Saly has failed to establish any prejudice.
B. No Prejudice Resulted from Nonconstitutional Error
The State correctly concedes that the trial court erred when it failed to transfer Saly’s case
to the juvenile court for a decline hearing. Under RCW 13.04.030(1), the juvenile court has
“exclusive and original” jurisdiction over proceedings involving juveniles, unless an exception
applies. Once the automatic decline exception was no longer applicable to Saly’s case due to the
prosecutor’s amended charges, the adult court no longer had authority to hear the case under the
automatic decline provision of RCW 13.04.030(1)(e)(v)(A). The adult court’s failure to transfer
for a decline hearing violated the statute.
The right of a juvenile charged with a crime to proceed in juvenile court is purely statutory,
not constitutional. There is no constitutional right to an adjudication in juvenile court, and the
Washington Supreme Court has held that automatic decline of juvenile court jurisdiction is
constitutionally permissible. State v. Watkins, 191 Wash. 2d 530, 535-36, 423 P.3d 830 (2018); In
re Boot, 130 Wash. 2d 553, 565-75, 925 P.2d 964 (1996). The trial court’s failure to transfer for a
decline hearing could warrant a remedy on collateral review only if the error rose to the level of a
fundamental defect that inherently resulted in a complete miscarriage of justice. In re Pers.
Restraint of Carrier, 173 Wash. 2d 791, 818, 272 P.3d 209 (2012). On collateral review, when
considering whether an error was prejudicial, courts look to the “practical effects that result from
the error.” In re Pers. Restraint of Yates, 180 Wash. 2d 33, 41, 321 P.3d 1195 (2014); see also State
v. Buckman, 190 Wash. 2d 51, 64, 409 P.3d 193 (2018).6
6
Although Yates and Buckman were discussing prejudice in the context of a constitutional error
where the standard is “actual and substantial prejudice,” there is no reason the consideration of
“practical effects” would not equally apply when we are considering whether there was a
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No. 50884-2-II
Here, Saly has not established any practical effect that continues to arise from the trial
court’s error. The sentence that Saly is currently serving for murder is not affected because Saly’s
offender score would have been the same regardless of whether he had previously been sentenced
as a juvenile or an adult. See RCW 9.94A.525(9).7 Under RCW 9.94A.525(2)(g) and (9), adult
and juvenile prior felony convictions are treated identically for purposes of calculating the offender
score for murder. Thus, had Saly pleaded guilty to the assaults in juvenile court rather than adult
court, his offender score would have been the same, and it would have had no effect on the length
of the sentence he is currently serving.
Saly argues that the prejudice he suffered was the lost opportunity to have his charges
adjudicated in juvenile court. But he pleaded guilty to three counts of second degree assault as
charged in the amended information, and the record contains no clear statement from Saly that he
would not have pleaded guilty in juvenile court. Nor did Saly present evidence that the charges
against him might have been reduced had his case been transferred to juvenile court. Finally, Saly
presented no evidence to support his contention that his plea was not knowing, intelligent, and
voluntary. Absent evidence that his assault convictions themselves were somehow invalid, Saly
cannot establish any impact on the murder sentence he is currently serving.
Even where the defendant in Yates “indicated that he would not have taken the plea deal”
had he known what sentence the law actually required for the charges he faced, the court held that
the he nonetheless did not prove prejudice because he could not show the trial court’s error had
any “practical effect[]” on the length of sentence he received. 180 Wash. 2d at 41. Saly, likewise,
“‘complete miscarriage of justice.’” Yates, 180 Wash. 2d at 40-41; Buckman, 190 Wash. 2d at 64;
Swagerty, 186 Wash. 2d at 807 (quoting Cook, 114 Wash. 2d at 810-12).
7
While there have been some amendments to this statute, the relevant language has not changed
since Saly committed the murder in 2003.
6
No. 50884-2-II
has not established any facts to support that his criminal history, including the three convictions
for second degree assault, would have been different had the adult court transferred his case to
juvenile court.
Although it is possible that the juvenile court would have retained jurisdiction and
sentenced Saly differently for the assault convictions, Saly has already served his sentence for
these convictions, and he received a certificate of discharge that restored his rights. As a result,
we cannot grant Saly any effective relief in regard to the sentence imposed and already served for
his assault convictions.
Finally, our Supreme Court and this court have recognized that other collateral
consequences can stem from a conviction, including stigma that results from a felony conviction.
See In re Pers. Restraint of Martinez, 171 Wash. 2d 354, 363-64, 256 P.3d 277 (2011); see also In re
Det. of M.K., 168 Wash. App. 621, 625-26, 279 P.3d 897 (2012) and In re Det. of Cross, 99 Wash. 2d
373, 376-77, 662 P.2d 828 (1983). But again, Saly pleaded guilty and he has failed to state that
he would not have done so had his case been in juvenile court instead. Saly has also offered no
evidence of stigma unique to the fact that his convictions for assault were in adult court. Thus, he
has not shown that any collateral consequence of his conviction would have been different had he
pleaded guilty in juvenile court.
Saly cannot show that the trial court’s failure to transfer and conduct a decline hearing
constituted a “‘fundamental defect . . . result[ing] in a complete miscarriage of justice’” because
he has not shown that being in juvenile court would have affected his guilty plea decision, nor that
his later offender score in the murder case would have been different had he been sentenced in
juvenile court. Swagerty, 186 Wash. 2d at 807 (quoting Cook, 114 Wash. 2d at 810-12). He has
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No. 50884-2-II
articulated no other collateral consequences of the trial court’s error. Thus, his nonconstitutional
claim fails.
C. Constitutional Error Analysis
Saly also argues that he was actually and substantially prejudiced by ineffective assistance
of counsel due to his trial counsel’s failure to move to transfer his case to juvenile court. We
disagree.
Saly’s ineffective assistance of counsel claim is a constitutional claim. The Sixth
Amendment to the United States Constitution and article I, section 22 of the Washington
Constitution guarantee effective assistance of counsel. See, e.g., State v. Grier, 171 Wash. 2d 17, 32,
246 P.3d 1260 (2011). Ineffective assistance of counsel is a two-prong inquiry. Id. To prevail,
Saly must show that his counsel’s performance was deficient, and that his counsel’s deficient
performance prejudiced him. Id. at 32-33. A failure to prove either prong ends our inquiry. State
v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 (1996).
The Supreme Court held in In re Personal Restraint of Lui that “[w]e apply the same
prejudice standard to ineffective assistance claims brought in a personal restraint petition as we do
on appeal.” 188 Wash. 2d 525, 538, 397 P.3d 90 (2017). To successfully prove prejudice, a petitioner
bringing an ineffective assistance of counsel claim must show that, but for counsel’s deficient
performance, “there is a reasonable probability that the result of the proceeding would have been
different.” Id. Again, we examine the “practical effect” of the error the petitioner alleges. Yates,
180 Wash. 2d at 41; see also Buckman, 190 Wash. 2d at 64. For the same reasons that Saly could not
establish ongoing practical effects resulting from the trial court’s failure to transfer his case to the
juvenile court for a decline hearing, he cannot show that he suffered prejudice because his counsel
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No. 50884-2-II
did not request a transfer. We conclude that Saly has not shown “actual and substantial prejudice”
as required.
CONCLUSION
Saly has not shown that the practical effects of the judgment and sentence would have been
any different had his assault charges been adjudicated in juvenile court. Accordingly, Saly fails to
show that he is prejudiced by either the adult court’s failure to transfer his case to juvenile court
or by his counsel’s failure to move to transfer the case. Because Saly has not shown prejudice, we
deny his personal restraint petition.
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.
Glasgow, J.
We concur:
Maxa, C.J.
Melnick, J.
9