In the Matter of the Personal Restraint of: Anthony Marcel Millspaugh ( 2020 )

FILED
AUGUST 11, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of ) No. 37552-8-III
)
)
ANTHONY MARCEL MILLSPAUGH, ) PUBLISHED OPINION
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Petitioner. )
LAWRENCE-BERREY, J. — Anthony Millspaugh petitions for post-conviction relief
arising out of his 2004 conviction for murder in the second degree. RCW 10.73.090
generally bars petitions for such relief if filed more than one year after the judgment
becomes final. Millspaugh argues his petition is timely because Governor Jay Inslee’s
recent proclamation, Proclamation 20-47, waives and suspends RCW 10.73.090. We
disagree. We hold that Proclamation 20-47 preserves only existing rights, not expired
claims. And because Millspaugh’s right to assert his current claim expired years ago, his
petition is untimely, and we dismiss it.
FACTS
Millspaugh pleaded guilty to murder in the second degree on October 2, 2003.
The trial court sentenced him on January 8, 2004, and entered its judgment and sentence.
Millspaugh did not appeal. Pursuant to RCW 10.73.090(3)(a), the judgment became final
on that date.
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Prior to this petition, Millspaugh had sought collateral relief on at least three
separate occasions. In one of these petitions, Millspaugh argued that the prosecutor
breached the plea agreement. We have dismissed each of Millspaugh’s previous
petitions.
On May 11, 2020, Millspaugh filed in this court the present personal restraint
petition. He claims, once again, the State breached the plea agreement. We need not
address the substance of his arguments if his petition is time barred.
ANALYSIS
“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).
Here, Millspaugh does not argue that the judgment and sentence is invalid on its
face or that the trial court lacked jurisdiction. Instead, he argues that Governor Inslee’s
recent Proclamation 20-47 suspends the limitation period of RCW 10.73.090 and revives
his formerly expired claim.
We first discuss the relevant provisions of Proclamation 20-47. The proclamation
contains numerous recital paragraphs. These recital paragraphs explain that the need for
the proclamation arises out of a worldwide emergency created by COVID-19 that has
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impacted Washington State, requiring businesses in the state to be closed and restricting
the movement of residents. Proc. 20-47, ¶¶ 2, & 4-5. The proclamation, signed
April 14, 2020, provides in relevant part:
WHEREAS, directives issued by the Governor . . . and other restrictions
enacted in response to the COVID-19 pandemic, make access to
Washington State courts extremely limited and restrict court operations;
and
....
WHEREAS, preserving the rights of individuals to petition the court for
post-conviction relief is essential to our system of justice, and current
statutes also limit an individual’s right to seek such relief . . . .
....
NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington,
as a result of the above-noted situation, and under Chapters 38.08, 38.52
and 43.06 RCW, do hereby proclaim that a State of Emergency continues to
exist in all counties of Washington State, . . . and that Proclamation 20-05 is
amended to . . . waive and suspend statutes that limit an individual’s right
to seek post-conviction relief, during the COVID-19 pandemic.
....
FURTHERMORE, based on the above situation and under the provisions
of RCW 43.06.220(2)(g), I also find that strict compliance with [RCW
10.73.090] will restrict the ability of individuals to seek post-conviction
relief . . . [RCW 10.73.090] is hereby waived and suspended in its entirety,
except as otherwise provided herein, until midnight on May 14, 2020.
Proc. 20-47, ¶¶ 6, 8, 12 & 15 (italics added).
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We next discuss our rules for construing proclamations. A gubernatorial
proclamation that flows from a statutory grant of authority is construed in the same
manner as a statute. State v. Zack, 2 Wash. App. 2d 667, 673, 413 P.3d 65, review denied,
191Wn.2d 1011, 425 P.3d 517 (2018). Our goal in interpreting such a proclamation is to
discern and implement the governor’s intent. Id. We begin our inquiry by looking at the
plain meaning of the proclamation as expressed through the words themselves. Id. If the
meaning of the proclamation is plain on its face, we will apply that plain meaning. Id.
The governor’s express statement of intent in issuing a proclamation may be considered
by us for purposes of construing the meaning of the proclamation. Id.
Here, the plain meaning of the last sentence we quoted above is unclear:
RCW 10.73.090 “is hereby waived and suspended in its entirety, except as otherwise
provided herein.” It is unclear because there is nothing in the proclamation that expressly
limits the waiver or suspension of RCW 10.73.090. So what meaning must we give the
last five words?
A statute must be construed so that all the language used is given effect, with no
portion rendered meaningless or superfluous. G-P Gypsum Corp. v. Dep’t of Revenue,
169 Wash. 2d 304, 309, 237 P.3d 256 (2010). Because our rules for construing
proclamations mirror our rules for construing statutes, we must give effect to all language
in a proclamation so no portion is rendered meaningless or superfluous. We give
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meaning to “except as otherwise provided herein” by requiring the waiver or suspension
of RCW 10.73.090 to be consistent with the stated intent of the proclamation.
The proclamation explains that directives issued by the governor and other
restrictions have made access to the courts “extremely limited.” Proc. 20-47, ¶ 6. Thus,
the proclamation is intended to “preserv[e] the rights of individuals to petition for post-
conviction relief.” Proc. 20-47, ¶ 8 (emphasis added). Taken as a whole, the plain
meaning of the proclamation is clear: The proclamation temporarily waives and suspends
RCW 10.73.090 insofar as to preserve the right of individuals to petition for post-
conviction relief. We hold that Proclamation 20-47 preserves only rights that otherwise
would have expired during the proclamation’s one-month window. It does not resurrect
expired claims.
Here, absent facial invalidity or lack of trial court jurisdiction, Millspaugh’s right
to petition for post-conviction relief expired years ago, in January 2005, one year after his
judgment became final. See RCW 10.73.090(1), (3)(a). Because Proclamation 20-47
preserves only rights that otherwise would have expired during the proclamation’s one-
month window, Millspaugh’s long-expired claim is time barred.
Millspaugh’s narrow reading of the proclamation is inconsistent with the
governor’s stated intent to mitigate restrictions placed on access to the courts because of
the pandemic. Millspaugh has been in possession of the facts relevant to his asserted
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claim since he was sentenced in January 2004. Millspaugh’s ability to present his current
claim was not hindered in any way by the pandemic. To the contrary, Millspaugh’s
ability to present his claim by filing it during the pandemic and within the narrow one-
month window shows that the pandemic had no impact whatsoever on his ability to
access the courts.
Additionally, the statute conferring emergency power on the governor limits the
power to suspend statutes to situations where application of a statute would “prevent,
hinder, or delay necessary action in coping with the emergency.” RCW 43.06.220(2)(g).
Because reviving long-expired claims is unrelated to “coping with the emergency,” it
makes sense that the proclamation explains its intent is to preserve existing rights and to
aid litigants impacted by the present emergency. We construe the proclamation in
accordance with this, its stated purpose.
We dismiss Millspaugh’s most recent petition as time barred by RCW 10.73.090.1
Although time-barred petitions are typically dismissed through an order, this court
1
We deny Millspaugh’s request for appointed counsel. See In re Pers. Restraint
of Gentry, 137 Wash. 2d 378, 390, 972 P.2d 1250 (1999); RCW 10.73.150(4) (“Counsel
shall not be provided at public expense to file or prosecute a second or subsequent
collateral attack on the same judgment and sentence.”).
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exercises its discretion to decide this petition through an opinion. RAP 17 .6(b );
RAP 18.8(a).
WE CONCUR:
Pennell, C.J. Siddoway, J.
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