Opinion
NO. 93775-3
04-12-2017
In the MATTER OF the Personal Restraint of: Arthur Lewis DOVE, Petitioner.
RULING DENYING REVIEW
¶ 1 Arthur Dove pleaded guilty in Pierce County Superior Court to second degree child rape. The trial court imposed certain mandatory legal financial obligations and a discretionary legal financial obligation consisting of $500 for court-appointed attorney and defense costs. Mr. Dove did not appeal, and therefore the judgment and sentence became final when it was filed with the trial court on March 21, 2014. On July 15, 2015, Mr. Dove filed a personal restraint petition in Division Two of the Court of Appeals, challenging the legal financial obligations in light of State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015). The Court of Appeals issued a published, split decision denying Mr. Dove's petition as time-barred. In re Pers. Restraint of Dove, 196 Wn.App. 148, 381 P.3d 1280 (2016). Mr. Dove now seeks this court's discretionary review. RAP 16.14(c).
¶ 2 To obtain review in this court, Mr. Dove must demonstrate that the Court of Appeals decision conflicts with a decision of this court or another Court of Appeals decision, or that he is raising a significant constitutional question or an issue of substantial public interest. RAP 13.4(b); RAP 13.5A(a)(1), (b). And because he filed his current collateral challenge more than one year after his judgment and sentence became final, Mr. Dove must demonstrate that the judgment and sentence is facially invalid or was entered without competent jurisdiction under RCW 10.73.090(1), or he must assert solely grounds for relief exempt from the one-year limit under RCW 10.73.100. In re Pers. Restraint of Adams, 178 Wn.2d 417, 422, 309 P.3d 451 (2013).
¶ 3 In Blazina, this court held that under RCW 10.73.160(3), a trial court must engage in an individualized inquiry into a defendant's present and future ability to pay discretionary legal financial obligations before it imposes them at sentencing. Blazina, 182 Wn.2d at 838. Mr. Dove relies on Blazina to argue that the trial court did not make this individualized inquiry and that his petition is timely under the exemption for a significant and material change in the law that is retroactively applicable to his previously final judgment. RCW 10.73.100(6). But this court has since held that Blazina does not constitute a significant change in the law. In re Pers. Restraint of Flippo, 187 Wn.2d 106, 111-13, 385 P.3d 128 (2016). Mr. Dove thus cannot rely on RCW 10.73.100(6) to avoid the time limit.
¶ 4 Mr. Dove also argues that his judgment and sentence is facially invalid under RCW 10.73.090(1) because the trial court did not engage in the individualized inquiry required under Blazina. But this court also held in Flippo that failure to engage in the individualized inquiry required by Blazina does not render a judgment and sentence facially invalid. Flippo, 187 Wn.2d at 110-11.
¶ 5 In sum, the Court of Appeals sustainably held Mr. Dove's personal restraint petition to be untimely.
¶ 6 The motion for discretionary review is denied.
-------- Notes: A motion for reconsideration was granted for the purpose of waiving the imposition of appellate costs. The State's motion for a stay pending finality of this court's decision in Flippo is denied as moot.