Opinion
No. 31436-3-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No: 02-1-00164-4. Judgment or order under review. Date filed: 02/06/2004. Judge signing: Hon. Kenneth Day Williams.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), Deborah Snyder Kelly, Attorney at Law, 223 E 4th St Ste 11, Port Angeles, WA 98362-3015.
Fenton R. Authier appeals the trial court's order revoking his Special Sexual Offender Sentencing Alternative (SSOSA). He argues that his July 2002 guilty plea is invalid and should be withdrawn because the plea form and the judge who took the plea erroneously identified the standard sentencing range for his convictions. Because Authier's collateral attack is procedurally barred under RCW 10.73.090(1) and not subject to any exception under RCW 10.73.100, we affirm Authier's judgment and sentence.
FACTS
The State charged Authier with three counts of first degree child rape under RCW 9A.44.073. In July 2002, Authier pleaded guilty to two counts. In exchange for his plea, the State dismissed one count, amended the existing counts to avoid potential indeterminate sentencing, and recommended a SSOSA. The plea document identified the standard sentencing range as 120 to 136 months. The judge repeated this sentencing range to Authier when the plea was taken.
On September 26, 2002, the court and the parties received a Department of Corrections presentence report that accurately stated the standard sentencing range for his child rape charges as 120 to 160 months. Authier did not file a motion to withdraw his plea. On October 4, 2002, Authier was sentenced on his guilty plea before a different judge and with a different prosecutor. During the sentencing hearing, the court accurately identified the standard sentencing range as 120 to 160 months. Neither Authier nor his attorney raised the issue of the inaccurate range discussed at the time of his plea. Authier was sentenced to 132 months, but the sentence was suspended and a SSOSA was imposed in accord with the plea agreement. At the conclusion of the sentencing hearing, the court asked Authier if he had any questions and he replied, 'No, I just want to say thank you.' Report of Proceedings (Oct. 4, 2002) at 14. The judgment and sentence correctly identified the standard sentencing range of 120 to 160 months for his convictions. Authier did not move to withdraw his plea nor did he appeal his convictions or the sentence.
Authier's 132-month sentence was within the sentencing range recited at the plea, as well as the correct range in the PSI and recited at sentencing.
Soon after sentencing Authier violated the conditions of his SSOSA. The court declined to revoke the SSOSA sentence and, instead, imposed 60 days of confinement. In July 2003, Authier was convicted of second degree burglary and theft. In February 2004, the court did revoke Authier's SSOSA and imposed confinement for the remainder of his 132-month sentence. The burglary and theft convictions were the primary basis for the revocation. Authier timely appealed the court's order revoking his SSOSA.
ANALYSIS
Authier does not challenge the court's grounds for revoking his SSOSA. Instead, he asserts that his guilty plea and rape convictions are invalid and he should be allowed to withdraw his plea because the plea form and the trial court inaccurately stated the standard range sentence at the time of his plea. The State responds that Authier's challenge to his guilty plea is an untimely collateral attack that is procedurally barred under RCW 10.73.090(1).
RCW 10.73.090(1) provides:
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.
A post-judgment motion to withdraw a guilty plea is a collateral attack. RCW 10.73.090(2). Under RCW 10.73.090(3)(a), a final judgment can be '[t]he date it is filed with the clerk of the trial court.' See also In re Personal Restraint of Carlstad, 150 Wn.2d 583, 591-92, 80 P.3d 587 (2003).
RCW 10.73.090(1) bars appellate review of an untimely collateral attack unless the appellant demonstrates that the judgment and sentence are facially invalid or an exception applies under RCW 10.73.100. Shumway v. Payne, 136 Wn.2d 383, 397-98, 964 P.2d 349 (1998). The constitutionality of the time limits and exceptions under RCW 10.73.090 and RCW 10.73.100 are noncontroversial. See, e.g., Shumway, 136 Wn.2d at 399.
RCW 10.73.100 provides:
The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:
(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct;
(3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution;
(4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction;
(5) The sentence imposed was in excess of the court's jurisdiction; or
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government.
'Under [RCW 10.93.090(1)] the 'facial invalidity' inquiry is directed to the judgment and sentence itself. 'Invalid on its face' means the judgment and sentence evidences the invalidity without further elaboration.' In re Personal Restraint of Hemenway, 147 Wn.2d 529, 532, 55 P.3d 615 (2002) (emphasis added). Further, when a defendant's untimely collateral attack asserts an invalid plea, '[t]he question is not, however, whether the plea documents are facially invalid, but rather whether the judgment and sentence is invalid on its face.' Hemenway, 147 Wn.2d at 533 (emphasis added).
Here, Authier has never filed a motion to withdraw his plea under CrR 4.2(f) or CrR 7.8. His appeal was filed more than one year after the judgment and sentence became final, and he challenges his plea's validity only after the court revoked his SSOSA sentence due to a subsequent felony conviction. And Authier does not challenge the factual basis underlying his child rape convictions or the accuracy of the burglary and theft convictions that were the basis for the trial court's revocation of his SSOSA. Thus, Authier's collateral attack on his plea is time barred under RCW 10.73.090(1) unless he can show that his October 2002 sentence is facially invalid or an exception under RCW 10.73.100 applies.
But Authier does not treat his challenge as a collateral attack and he thus provides no argument under RCW 10.73.090 and RCW 10.73.100. As the State correctly emphasizes, Authier's judgment and sentence is facially valid and accurately identifies Authier's standard sentencing range. Thus, Authier's collateral attack is procedurally barred under RCW 10.73.090(1) and our review ends.
Finally, the circumstances here demonstrate the purpose of not reviewing an untimely collateral attack that complies with RCW 10.73.090 and does not meet RCW 10.73.100's allowable exceptions. Authier's judgment and sentence is facially valid and no RCW 10.73.100 exceptions apply. And an untimely collateral attack conflicts with long-standing principles of finality and justice to crime victims. See Shumway, 136 Wn.2d at 399 (noting the importance of RCW 10.73.090(1)'s time limits because collateral relief can 'undermine the principles of finality of litigation' and can 'cost society the right to punish admitted offenders.') (citations omitted).
We affirm Authier's judgment and sentence.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.