issues: personal restraint petitions

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  1. issues: personal restraint petitions
    1. Generally
    2. Right to counsel
    3. Threshold requirements
    4. Filing requirements
    5. Successive attack rules and the one-year limitation under RCW 10.74.130
    6. Intervening change of law
    7. RCW 10.73.090
    8. Successive attacks
    9. Cases barring subsequent attacks
    10. Cases allowing subsequent attacks
    11. Miscellaneous PRP cases:
      1. Sentencing based issues
      2. Institution-based issues:
      3. Institution-based issues: liberty interests
      4. Institution-based issues: good time/earned time
      5. Institution-based issues: miscellaneous
    12. Parole-based issues
    13. Involuntary Plea
    14. Sexually Violent Predator
    15. Miscellaneous

issues: personal restraint petitions

PERSONAL RESTRAINT PROVISIONS (PRPs) RAP Title 16, RCW 10.73.100-140

Generally

A petitioner is entitled to collateral relief via a personal restraint provision only if he proves 1) actual and substantial prejudice arising from constitutional error, or 2) non-constitutional error that inherently results in a “complete miscarriage of justice”. Where the petitioner has had no previous or alternatives avenue for obtaining state judicial review, he need only show that he is restrained, and that the restraint is unlawful. Personal Restraint of Hartzell, 108 Wn. App. 934, 939 (2001)(citations omitted).

Personal restraint procedure derives from the writ of habeas corpus, which is guaranteed by article IV, Section 4 of th WA. state consitution. PRP of West, 154, 204, 219(2005)(J. Johnson, dissenting) citing PRP of Hagler, 97 Wn.2d 818 (1982).

Right to counsel

Appointment of counsel for a PRP is made after an initial determination the petition is not frivolous. RAP 16.11, .15. State v. Robinson, 153 Wn.2d 689, 695 (2005).

In a capital case, counsel will be appointed on a first personal restraint petition provided the individual is found to be indigent. PRP of Woods, 154 Wn.2d 400, 411 (2005) See, RCW 10.73.150(3); RAP 16.25.

Threshold requirements

A PRP must be supported by facts, not merely conclusory allegations. The supporting evidence must be based on “more than speculation, conjecture or inadmissible hearsay”. Personal Restraint of Gronquist,138 Wn.2d 388, 396, 978 P.2d 1083 (1999) cert denied, 528 U.S. 1009 (1999); In re personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992); Personal Restraint of Thompson, 141 Wn.2d 712 (2000).

In a PRP challenging a prison disciplinary hearing a decision is reviewable only if the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding. A prison disciplinary proceeding is not arbitrary and capricious if the petitioner afforded minimum due process protections applicable in such cases. Personal Restraint of Gronquist,138 Wn.2d 388, 396, 978 P.2d 1083 (1999) cert denied, 528 U.S. 1009 (1999).

An erroneous or unlawful sentence based on an incorrect offender score constitutes a sentence in excess of statutory authority and presents a fundamental defect inherently resulting in a complete miscarriage of justice. A defendant can not waive a challenge to a miscalculated offender score based on a legal error, but waiver can be found where the alleged error involves an agreement to later disputed facts. PRP of Goodwin, 146 Wn.2d 861 (2002); Personal Restraint of Call, 144 Wn.2d 315 (2001); PRP of Johnson, 131 Wn.2d 558 (1997).

To prevail on a PRP, petitioner must show by a preponderance of evidence that constitutional error caused him actual harm. Personal Restraint of Stanphill, 134 Wn.2d 165, 169 (1998); In re PRP of Powell, 117 Wn.2d 175, 184, 814 P.2d 635 (1991). In re Cook, 114 Wn.2d 802, 792 P.2d 506 (1990).

Those types of constitutional errors which can never be considered harmless on direct appeal will also be presumed prejudicial in PRPs. In all other PRPs constitutional error is not presumed to have denied a convicted defendant the right to a fair trial, subject to rebuttal by proof that more likely than not the defendant’s right to a fair trial was actually and substantially prejudiced. State v. Kitchen, 110 Wn.2d 403, 413, 756 P.2d 105 (1988)(citations omitted)(denying PRP based on Petrich error); see also, In re St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992)(error in charging document not per se prejudicial under higher standard for collateral review).

“Newly discovered evidence” is a ground for obtaining relief in a PRP and has the same meaning as in a motion for new trial. In Re Lord, 123 Wn.3d 296, 319, 868 P.2d 835 (1994); Personal Restraint of Benn(II), 134 Wn.2d 868, 886 (1998) habeas corpus granted on other grounds by Benn v. Wood, 2000 U.S. Dist. Lexis 127841, 2000 WL 1031361 (W.D. Wash. June 30, 2000); RAP 16.4(c).

A PRP may be brought which challenges a condition of confinement that implicates an important constitutional right but does not relate to the validity of the inmates’s incarceration without first exhausting any civil remedies. Personal Restraint of Arseneau, 98 Wn. App. 368 (1999)(restriction on child sex offender’s mail correspondence with niece upheld).

A prison disciplinary hearing which carries potential loss of good time credits and disciplinary segregation is under “restraint” for purposes of RAP 16.4(b). Personal Restraint of McVay, 99 Wn. App. 502 (1999).

Filing requirements

The federal “mailbox” rule, i.e. pleadings “filed” when deposited in prison mailing system, does not apply to PRPs. PRP of Carlstad, 150 Wn.2d 583 (2003); Cf, State v. Hurt, 107 Wn. App. 816 (2001)(mailbox rule does apply to CrR 7.8 motions filed by incarcerated prisoners).

Successive attack rules and the one-year limitation under RCW 10.74.130

Generally, the availability of PRP as collateral relief is limited because it undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders. In re Personal Restraint of Cook, 114 Wn.2d 802, 792 P.2d 506 (1990); In re Hagler, 97 Wn.2d 818, 824, 650 P.2d 1103 (1982). A key exception to the one year rule is where the conviction is invalid on its face. In re PRP of Thompson, 141 Wn.2d 712,719 (2000)(conviction for non-existent crime); PRP of Hinton, 152 Wn.2d 853 (2004)(conviction for non-existent crime of felony murder on assault predicate).

The Supreme Court is not barred by RCW 10.73.140 from considering successive PRPs. State v. Brown, 154 Wn.2d 787 (2005)(supressing and reversing conviction in PRP where defendant passenger and no independent basis existed).

Intervening change of law

A PRP may not renew an issue raised and rejected on direct appeal unless the interests of justice require relitigation of that issue. The burden can be met by showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Personal Restraint of Stenson, 142 Wn.2d 710, 719-20 (2001) (citations omitted)(intervening change in law). The supreme court can review a case even after a prior petition has been dismissed. Personal Restraint of Crabtree, 141 Wn.2d 577 (2000)(significant, intervening retroactive change of law are exempt from the statute and constitute “good cause” for either reviewing a previously failed claim or failing to raise a claim in a prior petition). This extends to where an intervening legal opinion has effectively overturned a prior appellate decision originally determinative of a material issue. Personal Restraint of Greening, 141 Wn.2d 687 (2000); PRP of Smith, 117 Wn. App. 846 (2003)(material intervening change of law on accomplice liability constituted good cause, but error was harmless).

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. Personal Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000). One test for determining whether an appellate decision represents a “significant change in the law” is whether the defendant could have argued the issue before publication of the decision in question. Personal Restraint of Stoudmire, 143 Wn.2d 258, 265 (2001); PRP of Lavery, 154 Wn.2d 249(2005)(finding PRP not time barred or barred for successive filings where intervening change of law found federal bank robbery not comparable to State robbery second degree statute and vacating sentence); State v. Brown, 154 Wn.2d 787 (2005)(allowing successive petition after Rankin decided and supressing and vacating conviction).

RCW 10.73.090

RCW 10.73.090 bars a petition or motion for collateral attack filed more than one year after a facially valid judgment and sentence is final. The rule does not apply to claims based on a significant, intervening, retroactive change in the law. Whether a change in the law is material warranting an exception to the one-year rule depends upon the facts and circumstances of each case. Personal Restraint of Hartzell, 108 Wn. App. 934, 939 (2001); Personal Restraint of Crabtree, 141 Wn.2d 577, 9 P.3d 814 (2000)(criminal acts in fact occurred within time period covered by statute, unlike State v. Aho, 137 Wn.2d 736, 975 P.2d 512 (1999) where defendant convicted of acts outside of statutory charging period); see, PRP of Percer, 150 Wn.2d 41 (2003)(prior error involving constitutional right worked manifest injustice and could be heard despite RCW 10.73.090).

Under the collateral bar rule of RCW 10.73, DOC was required to advise persons previously convicted and serving a term of incarceration, parole, or community supervision for a felony conviction. Failure to do so does not bar later consideration of personal restraint petition. Personal Restraint of Bratz, 101 Wn. App. 662 (2000).

The one year time limit of RCW 10.73.090 does not apply to judgements not valid on their face. Personal Restraint of Thompson, 141 Wn.2d 712 (2000). The statute does not state that “valid” means only “constitutionally valid”. A judgment and sentence that contains juvenile convictions that, post Smith, should not have been counted as a matter of law is not time barred under RCW 10.73.090 if more than one year has passed. PRP of Goodwin, 146 Wn.2d 861 (2002); PRP of Dalluge, 152 Wn.2d 772 788 (2004)(procedural bar avoided where adult criminal court lacked jurisdiction over juvenile case).

Successive attacks

PRPs must raise new points of fact and law that were not or could not have been raised in the principal action. Certain motions are considered the functional equivalent of PRPs for the purpose of applying statutory limitations on successive writs, including motion to vacate judgment, motion to withdraw guilty plea, motion for a new trial, motion to arrest judgement and a habeas corpus petition, and RALJ appeal.
A first PRP after any prior collateral attack motion will be barred unless it raises a new issue. Personal Restraint of Becker, 143 Wn.2d 491 (2001)(habeas corpus writ after RALJ appeal on same issues barred)(J. Sanders, dissenting. Note: Read dissent because it explains why Becker is inconsistent with Bailey, 141 Wn.2d, 1 P.3d 1120 (2000)).

A 7.8 motion filed with the trial court and transferred to the appeal courts for consideration as a PRP, after the prior filing of a PRP, will be barred by RCW 10.73.140 from successive petitions without good cause. PRP of Vasquez, 108 Wn. App. 307 (2001)(since defendant raised new issue, matter remanded to see if good cause, i.e. an external objective impediment and not a self-created hardship, exists).

The procedural bar to successive PRPs does not apply to the Supreme Court. Personal Restraint of Perkins, 143 Wn.2d 261 (2001); Personal Restraint of Stoudmire, 145 Wn.2d 258 (2001).

Cases barring subsequent attacks

Personal Restraint of Stoudmire, 145 Wn.2d 258 (2001)(petitioner failed to provide a statutory exception to the time bar and failed to show plea form and other documents facially invalid).

Personal Restraint of Becker, 143 Wn.2d 491 (2001)(habeas corpus writ after RALJ appeal on same issues barred)(J. Sanders, dissenting. Note: Read dissent because it explains why Becker is inconsistent with Bailey).

State v. Brand, 120 Wn.2d 365, 842 P.2d 470 (1992)(CrR 7.8 motion for new trial in trial court after prior unsuccessful PRP on same issue barred by RCW 10.73.040)

Personal Restraint of Well, 133 Wn.2d 433 (1997)(collateral attack applies to commitment entered pursuant to an acquittal on criminal charge on grounds of insanity).

In re Personal Restraint of Cook, 114 Wn.2d 802 (1990)(was second PRP and 10.73.140 applied).

Cases allowing subsequent attacks

PRP of Grasso, 151 Wn.2d 1 (2004)(right protected by the “testifies” requirements is fundamentally constitutional in nature, and was never addressed in prior argument).

Personal Restraint of Bailey, 141 Wn.2d, 1 P.3d 1120 (2000)(first PRP after CrR 7.8(b) motion in trial court, thus RCW 10.73.140 did not apply).

Personal Restraint of Perkins, 143 Wn.2d 261 (2001)(petitioner sentenced in excess of statutory maximum for crime, in violation of Hopkins rule).

Miscellaneous PRP cases:

Sentencing based issues

An erroneous or unlawful sentence constitutes a fundamental defect inherently resulting in a complete miscarriage of justice. Personal Restraint of Call, 144 Wn.2d 315 (2001)(error in calculation relating to “wash out” of points); PRP of West, 154 Wn.2d 204 (2005)(court erred in writing in Judgment and Sentence that defendant “stipulates to flat time–no earned early release”); PRP of Goodwin, 146 Wn.2d 861 (2002)(erroneous inclusion of points based on juvenile offenses despite boilerplate language in plea agreement); Personal Restraint of Jones, 121 Wn. App. 859 (2004); Personal Restraint of Greening, 141 Wn.2d 687, 9 P.3d 206 (2000)(sentence improperly run consecutively rather than concurrently); In re Pers. Restraint of Johnson, 131 Wn.2d 558, 568-69, 933 P.2d 1019 (1997)(incorrectly calculated offender score); Personal Restraint of Hartzell, 108 Wn. App. 934, 939 (2001)(incorrect community placement period).

Defendant’s plea to a charge that didn’t exist at the time invalid on its face, plea was not made knowingly and intelligently because no evidence supports petitioner knew he was pleading guilty to an invalid charge, plea bargain did not waive rights under ex post facto clause and due process clauses. Personal Restraint of Thompson, 141 Wn.2d 712 (2000).

Change in earned early release in RCW 9.94A.150(1)(1996) from 1/3 to .15 % applying to some Class B felonies constituted substantive change increasing the quantum of punishment and violated ex post fact laws. Granted. Personal Restraint of Smith, 139 Wn.2d 199 (1999).

1994 amendment to RCW 9.94A.142, relating to restitution, applies retroactively, in this case to a 1986 Judgement and Sentence financial obligation, but language of statute applies only to charge of conviction and subsequent incarceration on separate conviction does not “toll” requirement. Hence, restitution obligation lapsed after ten years. Personal Restraint of Sappenfield, 92 Wn. App. 729, 964 P.2d 1204 affirmed, 138 Wn.2d 588 (1999).

PRP dismissed because application of SRA ranges to pre-SRA conviction did not, on facts presented, violate ex post facto prohibition. Personal Restraint of Stanphill, 134 Wn.2d 165 (1998).

Petitioner failed to provide sufficient documentation he was sentenced on basis of an incorrectly calculated offender score, and particularly with respect to whether some of the prior convictions constituted “same criminal conduct”. Court goes out of its way to say that parties, include pro se litigants, must have properly authenticated documents if the court is to rely on them. Further, petitioner failed to establish that defense counsel’s affirmative acknowledgment of score at felony sentencing was not done for tactical advantage. Personal Restraint of Connick, 144 Wn.2d 442 (2001)(J. Sanders, dissenting).

Petitioner failed to show that misinformation about length of community placement actually and substantially prejudiced him. The actual length of community placement was 24 months but the pea indicated it was only 12 months. Here, petitioner violated his SSOSA two months into it. He could only show prejudice if he violated his SSOSA after twelve months. Personal Restraint of Fawcett, 147 Wn.2d 2988 (2002).

Institution-based issues:

There are three options for judicial review of PRPs: 1) dismissal of the petition, 2) vacation of the infraction and restoration of lost good time credits, 3) a remand for hearing on the merits. PRP of Hews, 99 Wn.2d 80, 88 (1983).

DOC lacks jurisdiction to rehold a prison disciplinary hearing while a PRP is pending. PRP of Leland, 115 Wn. App. 517 (2003)(also finding denial of due process at initial infraction hearing).

Institution-based issues: liberty interests

A prisoner’s statutory right to earn early release credits is a protected liberty interest. Personal Restraint of Hartzell, 108 Wn. App. 934, 939 (2001)(erroneous sentencing affecting earned early release calculation); PRP of Dutcher, 114 Wn. App. 755, 758 (2002)(noting an inmate has a limited liberty interest in good time credits). Therefore, Washington prisoners are entitled to minimum due process in serious infraction hearing where sanction include loss of good time credits. Minimum due process means the prisoner must receive notice of the charges against him, 2) be provided an opportunity to present documentary evidence and call witnesses when not unduly hazardous to institutional safety and correctional goals, and 3) receive a written statement of the evidence relied upon and the reasons for the disciplinary action. Personal Restraint of Gronquist,138 Wn.2d 388, 397, 978 P.2d 1083 (1999) cert denied, 528 U.S. 1009 (1999)(citations omitted)(where the sanction involves only loss of privileges, the only “due process” afforded is that afforded by regulation). Minimum due process rights do not include assistance of a staff advisor to prepare. Personal Restraint of McVay, 99 Wn. App. 502 (1999); see also, Personal Restraint of Addleman, 139 Wn.2d 751 (2000)(relief from ISRB decision based on exercise of First Amendment rights).

Where a prisoner loses good time as sanction for a serious infraction and claims he never received notice of the proscribed conduct some evidence in the record must support a finding the inmate did receive fair notice. If not in the record, it can not be supplied post hoc. PRP of Krier, 108 Wn. App. 31 (2001).

Institution-based issues: good time/earned time

Offenders sentenced to DOSA are entitled to earned early release credits in the same manner as other inmates, regardless of whether that time was spent before or after an inmate fails the DOSA program. PRP of Taylor, 122 Wn. App. 880 881 (2004); PRP of Reifschneider, 130 Wn. App. 498 (2005)(erroneous denial of good time credits applied to revoked DOSA sentence for period of incarceration on first part of DOSA sentence between earned early release date and actual release based on failure to provide satisfactory release address).

Sanction of losing good time for refusing to complete stress and anger management classes implemented in 1993 did not violate ex post facto clause of Washington and U.S. Constitution for 1988 conviction. PRP of Forbis, 150 Wn.2d 91 (2003).

Institution-based issues: miscellaneous

Denial of parole by the ISRB in retaliation for a prisoner’s exercise of constitutional rights provides a basis for obtaining relief regardless of whether the prisoner can show actual injury from the constitutional violation. Denial reversed and remanded. Personal Restraint of Addleman, 139 Wn.2d 751 (2000).

Dismissal of PRP affirmed because the interest at stake, i.e. extended family visits, constitutes a privilege and not a constitutionally protected liberty interest. Personal Restraint of Dyer, 143 Wn.2d 384(2001)(J. Sanders, dissenting).

Parole-based issues

Parole revocation hearings, like parolability hearings, are reviewable only by PRPs. When the parole board fails to follow its own regulations, a PRP petitioner is not required to show prejudice if the petitioner otherwise meets the requirements of RAP 16.4 Personal Restraint of Mines, 149 Wn.2d 279 (2002) (failure to record parole revocation hearing).

Involuntary Plea

Defendant who is misinformed of a direct consequence of his guilty plea need not make a special showing of materiality in order to be afforded a remedy for an involuntary plea. PRP of Isadore, 151 Wn.2d 294 (2004)(period of community placement, a direct consequence of sentence, left out of plea agreement; defendant entitled to specific enforcement).

Sexually Violent Predator

The sexual predator civil commitment statute, RCW 71.09 is constitutional and the remedy for constitutionally insufficient treatment program availability is remediation of the program, not release. Detention of Campbell, 139 Wn.2d 34 (1999); see also, Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993)(holding, among other things, the SVP requires a unanimous verdict); Detention of Turay, 139 Wn.2d 379 (1999)(various issues under SVP); PRP of Turay, 150 Wn.2d 71 (2003)(third PRP time barred)(J. Sanders dissenting because criminal provision does not apply to civil commitment).

Miscellaneous

Malfeasance by WSP chemist devastated his credibility and entitled one defendant to PRP, and one to new trial for newly discovered evidence. State v. Roche, 114 Wn. App. 424 (2002); Cf Personal Restraint of Brennan, 117 Wn. App. 797 (2003)(post plea evidence of later illegal drug use by state chemist did not establish grounds for relief absent evidence test results were inaccurate)

PRP of Sims, 118 Wn. App. 471 (2003)(petitioner met burden of proving jury verdict likely affected by instructional error in accomplice liability instruction)

Secondary PRP in aggravated murder/death penalty case after original PRP resulted in remand for evidentiary hearing on selected questions. Court denies multiple bases raised. Personal Restraint of Benn, 134 Wn.2d 868 (1998).

Petitioner claiming ineffectiveness of appellate counsel must show 1) the issue which appellate counsel failed to raise had merit, and 2) petitioners were actually prejudiced by the failure to raise or adequate raise the issue. Personal Restraint of Maxfield, 133 Wn.2d 332 (1997). The proper standard for evaluating claims of ineffective assistance of appellate counsel derives from the Strickland standard. PRP of Dalluge, 152 Wn.2d 772 788 (2004)(finding appellate counsel ineffective and resulting prejudice for counsel’s failure to question lack of juvenile declination hearing after amended charge).

Counsel was ineffective where he failed to advise client of right to specific enforcement of the plea bargain where a mistake was made with reference to the statutory maximum and instead only advised client of right to withdraw plea and stand trial or agree to a supplemental stipulated agreement correcting the error. Personal Restraint of Hoisington, 99 Wn. App. 423 (2000).
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