Opinion
No. 36866-8-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Ska-mania County, No. 92-1-00036-7, E. Thompson Reynolds, J., entered September 13, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridge-water and Armstrong, JJ.
UNPUBLISHED OPINION
Anton Lindbeck appeals a trial court decision denying his CrR 7.8 motion. We affirm the trial court because the remedy Lindbeck proposed was not appropriate.
FACTS
Lindbeck entered into a guilty plea for first degree murder on July 30, 1992. The trial court ordered Lindbeck to pay legal financial obligations (LFOs) and noted on the judgment and sentence that Lindbeck would not begin repayment until after his release from incarceration. Fourteen years later, in November of 2006, the Department of Corrections (DOC) began collecting payments for Lindbeck's LFOs from his offender trust account pursuant to RCW 72.09.111 and RCW 72.11.020.
Lindbeck moved for relief from judgment under CrR 7.8(b)(5). Representing himself, Lindbeck alleged that the State violated the plea agreement terms, when it acted, through DOC, to garnish money from this offender trust account. While not moving to withdraw his plea, he asked the trial court to terminate his LFOs and return any money taken. Without oral argument, the trial court denied Lindbeck's motion, stating "[p]ursuant to [ Anderson v. State, 159 Wn.2d 849, 154 P.3d 220 (2007)], the motion is denied." Clerk's Papers (CP) at 28.
Lindbeck now appeals.
ANALYSIS
Lindbeck argues that the trial court abused its discretion in considering his motion in that "the trial court failed to exercise its discretion at all." Appellant's Br. at 2. Lindbeck characterizes the trial court's denial of his motion this way because the trial court did not permit oral argument on the motion and because the trial court based its denial on a case Lindbeck believes is not on point. The State disagrees with Lindbeck, as do we.
Under the 2007 version of CrR 7.8(c)(2), oral argument is discretionary:
(2) Initial Consideration. The court may deny the motion without a hearing if the facts alleged in the affidavits do not establish ground for relief. The court may transfer a motion to the Court of Appeals for consideration as a personal restraint petition if such transfer would serve the ends of justice. Otherwise, the court 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.
A court may amend a judgment to correct an erroneous sentence under CrR 7.8. State v. Hardesty, 129 Wn.2d 303, 315, 915 P.2d 1080 (1996). We review a trial court's decision on a CrR 7.8 motion for abuse of discretion. Hardesty, 129 Wn.2d at 317. A trial court abuses its discretion when its decision is manifestly unreasonable or rests upon untenable grounds or reasons. State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981). Untenable decisions are those decisions where no reasonable person would adopt the view of the court. Cunningham, 96 Wn.2d at 34. We find no such abuse here.
Lindbeck filed his motion under the catch-all CrR 7.8(b)(5) provision, which states that "the court may relieve a party from a final judgment, order, or proceeding" for "any [] reason justifying relief from the operation of the judgment." Lindbeck specifically asked the trial court to relieve him of the LFOs prescribed in his judgment and sentence because the State, through the DOC, violated that judgment and sentence.
Total relief from paying LFOs was not an appropriate remedy. Lindbeck's own attorney concedes in briefing to us that Lindbeck offered the trial court "a solution that [was] not technically available." Appellant's Br. at 4. In the same briefing, Lindbeck's lawyer sets out the appropriate relief available to Lindbeck: "in the face of a violation of his plea agreement, [Lindbeck could] move to withdraw his plea or [] seek specific performance of his plea." Appellant's Br. at 4 (citing State v. Calhoun, 134 Wn. App. 84, 138 P.3d 659 (2006), withdrawn by order dated May 31, 2007 and superseded by State v. Calhoun, noted at 138 Wn. App. 1011, 2007)). He did neither. Because Lindbeck requested relief not available to him, the trial court properly denied his CrR 7.8 motion.
Lindbeck argues that the trial court should have recognized that he was really "moving to have the original rules of the game restored," and aided him in crafting an appropriate remedy. Appellant's Br. at 4. It is not, however, the responsibility of the trial court to argue and advance Lindbeck's case for him. Further, Lindbeck suggests that the trial court should have appointed counsel to help him "clarify" his motion. Appellant's Br. at 4. After entry of judgment and sentence, however, a criminal defendant has no constitutional right to counsel in post-conviction proceedings other than the first direct appeal of right. State v. Forest, 125 Wn. App. 702, 707, 105 P.3d 1045 (2005). We note that Lindbeck may file a motion seeking appropriate relief.
Affirmed.
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.
BRIDGEWATER, J. and ARMSTRONG, J., concur.