Opinion
No. 38430-2-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 98-1-02245-2, Bryan E. Chushcoff, J., entered October 10, 2008.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Penoyar, JJ.
Ernest Lee Brazzel appeals the trial court's order denying his CrR 7.8(b) motion for relief from judgment, which followed his March 18, 2008, judgment and sentence on plea of guilty to one count of first degree assault. He also requests that we remand for resentencing because issues of fact remain about his correct offender score. We hold that the trial court erred when it dismissed Brazzel's motion for relief from judgment without first ordering a show cause hearing as required by CrR 7.8(c)(3) and that the trial court must resentence Brazzel following a determination of his proper offender score. We vacate the order and remand for further proceedings.
FACTS
Brazzel was charged with and convicted of first degree assault (count I) and two counts of second degree assault (counts II and III), all with deadly weapon enhancements in 1998. He successfully appealed, was tried again in 2001, and found guilty of the same charges — with deadly weapon sentence enhancements on counts II and III only. State v. Brazzel, noted at 100 Wn. App. 1014 (2000). Brazzel was sentenced on August 17, 2001, after which he again appealed. On September 30, 2003, this court affirmed Brazzel's convictions in an unpublished decision. State v. Brazzel, noted at 118 Wn. App. 1054 (2003).
In 2007, the Ninth Circuit reversed Brazzel's first degree assault conviction, granting his motion for a writ of habeas corpus on that count only. Brazzel v. Washington, 491 F.3d 976, 986-87 (9th Cir. 2007). On February 4, 2008, Brazzel entered a plea to a fifth amended information that charged only one count of first degree assault. On March 18, 2008, the trial court imposed a sentence of 204 months, consecutive to the sentences imposed on the second degree assault convictions and enhancements, which remained in effect.
On May 21, 2008, Brazzel filed a CrR 7.8(b) motion asking the trial court to vacate the March 18, 2008, judgment and sentence based on an alleged error in the offender score. He argued that a 1991 Tennessee felony conviction that was included in his offender score calculation had washed out, as he had no other felony convictions until 1997. On May 21, 2008, finding that Brazzel's written materials established a basis for further consideration, the trial court ordered the State to file a response to Brazzel's motion. The State filed its response on July 11, 2008, and the trial court denied Brazzel's CrR 7.8(b) motion on August 14, 2008, without a hearing.
On August 18, 2008, Brazzel filed a notice of appeal with the trial court seeking review of that court's August 14 order. The trial court transferred the matter to us as a personal restraint petition by order entered August 22. We rejected the transfer in a September 23, 2008 order, noting it appeared that the trial court had failed to comply with CrR 7.8 as amended in September 2007. Our order explained that to properly transfer the underlying motion for relief from judgment as a personal restraint petition the trial court must first supersede its prior August 14 order denying relief and issue a new transfer order that complied with the current version of CrR 7.8(c)(2). On October 10, 2008, the trial court instead rescinded its August 22 transfer order, entered an order of indigency regarding Brazzel, and directed the superior court clerk to forward the indigency order and Brazzel's notice of appeal to us. Brazzel's appeal of the August 14 order is now before us.
DISCUSSION Requirements of CrR 7.8(c)
Brazzel contends that the trial court violated the mandates of CrR 7.8 when it denied his motion for relief from judgment without conducting a show cause hearing. We agree.
We decide whether the trial court abused its discretion in denying Brazzel's motion for relief from judgment. State v. Larranaga, 126 Wn. App. 505, 509, 108 P.3d 833 (2005). "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. A decision is manifestly unreasonable if, based on the facts and the applicable legal standard, the decision is outside the range of acceptable choices." In re Custody of Halls, 126 Wn. App. 599, 606, 109 P.3d 15 (2005) (citations omitted).
CrR 7.8 sets forth the criteria for seeking relief from judgment and the procedures the trial court must follow in addressing such motions. These procedures limit the court's discretion. Where a trial court fails to follow such mandatory procedures, it abuses its discretion. See State v. Smith, 144 Wn. App. 860, 864, 184 P.3d 666 (2008) (trial court acted without authority when it failed to follow dictates of CrR 7.8); see also State v. Mendoza, 165 Wn.2d 913, 921, 205 P.3d 113 (2009) (court rules are interpreted as though they were drafted by the legislature); cf. In re Marriage of Watson, 132 Wn. App. 222, 230, 130 P.3d 915 (2006) (trial court abuses its discretion when it fails to follow statutory procedures).
As we have previously noted, for more than 20 years, from its 1986 adoption until its 2007 amendment, CrR 7.8(c) allowed the superior court to deny a CrR 7.8 motion for relief from judgment without a hearing if the alleged facts did not establish grounds for relief. See Smith, 144 Wn. App. at 862 (discussing former CrR 7.8(c)). But on September 1, 2007, the rule was amended and now provides:
Procedure on Vacation of Judgment.
(1) Motion. Application shall be made by motion stating the grounds upon which relief is asked, and supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based.
(2) Transfer to Court of Appeals. The court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition unless the court determines that the motion is not barred by RCW 10.73.090 and either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.
(3) Order to Show Cause. If the court does not transfer the motion to the Court of Appeals, it shall enter an order fixing a time and place for hearing and directing the adverse party to appear and show cause why the relief asked for should not be granted.
CrR 7.8(c) (emphasis omitted). See Smith, 144 Wn. App. at 862-63.
The amended rule provides mandatory procedures and criteria for determining when to transfer the motion to the Court of Appeals and when to retain the motion; and, if retained, what further procedures the trial court must employ. Restated, the rule directs the trial court to transfer the motion to the Court of Appeals unless the trial court first determines that (1) the motion is timely (i.e., not barred by RCW 10.73.090) and (2) either the motion is meritorious or it raises a question the resolution of which requires a factual hearing. Under the current rule, a trial court can only retain a CrR 7.8(b) motion if it first makes the enumerated determinations. CrR 7.8(c)(2). If it retains the motion, it must then order a show cause hearing on that motion. CrR 7.8(c)(3).
Here, in response to Brazzel's CrR 7.8(b) motion, the trial court took none of these steps. It retained and decided Brazzel's motion after ordering a response from the State upon finding that Brazzels' motion "establish[ed] a basis for further consideration." Clerk's Papers (CP) at 178. The trial court entered no finding that Brazzel's motion was timely, a determination required by CrR 7.8(c)(2). Nor did the court order a show cause hearing as required by CrR 7.8(c)(3), when it retained and decided the motion. Accordingly, we hold that the trial court abused its discretion when it failed to employ the procedures and criteria required by CrR 7.8(c)(2) and (3). Smith, 144 Wn. App. 864.
REMEDY
Brazzel asks us to remand, with direction to the trial court to hold a show cause hearing under CrR 7.8(c)(3) on the merits of his motion. The State responds, conceding that the trial court failed to comply with CrR 7.8(c), but it contends that the proper remedy on remand is for the trial court to transfer Brazzel's CrR 7.8(b) motion to this court because, the State contends, it is nonmeritorious.
Based on the present record, we direct the trial court, on remand, to hold a show cause hearing as required by CrR 7.8(c)(3). We note that the prerequisites for such hearing are met. First, Brazzel's motion was timely. It was filed on May 21, 2008, and sought relief from Brazzel's March 18, 2008, judgment and sentence. Also, the motion raises a colorable challenge to Brazzel's sentence, arguing that his offender score was miscalculated because it was based on a washed out 1991 Tennessee felony conviction.
Brazzel's motion is not barred by RCW 10.73.090(1) which 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."
The trial court's prior determination that Brazzel's motion warranted further consideration also suggests that further fact finding is warranted.
The State argues that transfer is appropriate because Brazzel's motion is deficient in that it contains no affidavit asserting that he spent 5 years in the community crime free as required by the wash-out provision of RCW 9.94A.525(2)(c). The State's contention fails because Brazzel's criminal history as listed in the judgment and sentence itself indicates a gap of more than five years between Brazzel's 1991 conviction and the next listed 1997 conviction. Also, whether Brazzel has other convictions that would thwart the wash-out provision, as the State contends, is another inquiry that requires resolution at a factual hearing. Accordingly, we direct the trial court to enter an appropriate order in compliance with CrR 7.8(c)(2), reflecting that Brazzel's CrR 7.8(b) motion is timely, raises issues warranting a factual hearing, and ordering a show cause hearing as required by CrR 7.8(c)(3).
RCW 9.94A.525(2)(c) provides:
[C]lass C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including fulltime residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.
We also note that Brazzel's 1991 Tennessee felony conviction was imposed for a crime that purportedly occurred on November 30, 1990. At that time, the above noted wash-out provision was codified as former RCW 9.94A.360(2) (1989). See Laws of 1990, ch. 3, § 706 (amending RCW 9.94A.360(2)) and § 1406 (making section 706 effective on July 1, 1990, and expressly applicable to crimes committed on or after that date). Thus, former RCW 9.94A.360(2) as amended and effective at the time of Brazzel's noted Tennessee crime and conviction provided in relevant part:
Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including fulltime residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without being convicted of any felonies.
Former RCW 9.94A.360(2); Laws of 1990, ch. 3, § 706.
Statement of Additional Grounds for Review (SAG)
In his SAG, Brazzel contends that remand for a show cause hearing is warranted because at sentencing the State never presented evidence of the existence or comparability of his Tennessee conviction. This also is a matter suitable for further fact finding.
While the State bears the burden at sentencing to prove the existence of prior convictions by a preponderance of the evidence, that burden is obviated where the defendant affirmatively acknowledges his criminal history. Mendoza, 165 Wn.2d at 920. Here, however, the extent and continued efficacy of Brazzel's acknowledgement is unclear from the present record. As noted, he pleaded guilty to the fifth amended information. "A guilty plea generally waives challenges to the defendant's offender score because a defendant's agreed standard range sentence is based in part on his criminal history and because guilty plea agreements usually contain a stipulation to criminal history." State v. Harris, 148 Wn. App. 22, 29, 197 P.3d 1206 (2008). See also Mendoza, 165 Wn.2d at 928 n. 7. In Harris, we held there was no waiver where the plea agreement stated the standard range sentence was to be determined at a later date and where the plea form provided that the defendant agreed with the prosecutor's attached criminal history, but no such history was attached. 148 Wn. App. at 29. Here, Brazzel's statement on plea of guilty states the offender score is "6" and provides that the he agrees that the prosecutor's statement of criminal history as attached to the form is correct and complete. But the copy of the plea statement in the clerk's papers has no such attachment.
Further, Brazzel's SAG correctly notes that a defendant's acknowledgement of his criminal history must be affirmative and that merely failing to object to the State's assertions of criminal history does not amount to acknowledgment. See Mendoza, 165 Wn.2d at 926-29 (discerning such rule in discussing State v. Bergstrom, 162 Wn.2d 87, 169 P.3d 816 (2007); State v. Ross, 152 Wn.2d 220, 95 P.3d 1225 (2004); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002); State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999)). He points to the form stipulation about his prior record and offender score that was filed the same day as his sentence, March 18, 2008. Defense counsel signed that stipulation, but Brazzel's signature block states "Refused to sign." CP at 163. Brazzel contends that at sentencing he was unsure about the State's calculation of his offender score and for that reason did not sign the stipulation. The transcript of the sentencing hearing does not mention the stipulation.
Brazzel asks that we remand for a show cause hearing at which the State must establish the existence and comparability of his 1991 Tennessee conviction. In Mendoza, our Supreme Court remanded for resentencing, allowing the State to put on new evidence to prove the defendant's prior convictions, where criminal history was not acknowledged or objected to at sentencing, but was subsequently challenged. 165 Wn.2d at 930. That is the equivalent remedy that Brazzel seeks, and such remedy would be appropriate, provided Brazzel did not affirmatively acknowledge his criminal history or successfully withdraw such acknowledgement. Again, a factual hearing on the efficacy of Brazzel's acknowledgement of his criminal history is warranted.
Accordingly, we vacate the trial court's order dismissing Brazzel's CrR 7.8(b) motion for relief from judgment and remand for the trial court to order a show cause hearing as required by CrR 7.8(c)(3) and for resentencing.
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.
HOUGHTON, J. AND PENOYAR, J., concur.