Opinion
No. 34939-6-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Clallam County, No. 99-1-00065-9, George L. Wood, J., entered May 18, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Quinn-Brintnall, JJ.
David Vessey appeals the trial court's dismissal of his CrR 7.8 motion to modify his sentence by removing a community placement condition prohibiting him from using alcohol and remaining in drinking establishments. Because Vessey has previously filed a personal restraint petition (PRP) and a CrR 7.8 motion, RCW 10.73.140 requires him to show good cause for raising this new issue in his third collateral attack. Vessey has not shown good cause; accordingly, we affirm.
FACTS
In 1999, David Vessey pleaded guilty to two counts of second degree rape of a child and was sentenced to 119 months in prison to be followed by three years of community placement. One of the community placement conditions the court imposed required Vessey to abstain from using alcohol and to remain out of places where alcohol is the chief item of sale.
In 2002, Vessey filed a PRP, alleging that his counsel ineffectively represented him. We held that Vessey received adequate assistance and dismissed the PRP. Order Denying Personal Restraint Petition, State v. Vessey, No. 28868-1-II (Wash.Ct.App. Oct. 15, 2002). In 2005, Vessey filed a CrR 7.8 motion seeking clarification of a community placement condition that barred him from having contact with females under 18 years of age.
Vessey's first PRP is not part of the appellate record.
The order to dismiss is also not part of the appellate record.
In 2006, Vessey filed this CrR 7.8 motion asking the trial court to strike the alcohol-related community placement condition. Without reaching the merits of Vessey's argument, the trial court dismissed his motion as untimely. On appeal, Vessey argues that his CrR 7.8 motion was not time-barred and that we should strike the offending community placement condition.
ANALYSIS
Vessey contends that his CrR 7.8 motion was not time-barred because RCW 10.73.100 provides several exceptions to the one-year time limit for filing a collateral attack on a judgment and sentence. See CrR 7.8(b); RCW 10.73.090. But his problem lies not with RCW 10.73.100, but with RCW 10.73.140, which precludes successive collateral attacks absent a showing of good cause.
Although not considered below, RCW 10.73.140 applies because "an appellate court may sustain a trial court on any correct ground, even though that ground was not considered by the trial court." Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986) (citations omitted).
The purpose of RCW 10.73.140 is to prevent the abuse of collateral review. In Re Pers. Restraint of Vazquez, 108 Wn. App. 307, 313, 31 P.3d 16 (2001) (citing State v. Brand, 120 Wn.2d 365, 368-69, 842 P.2d 470 (1992)). The statute reads, in relevant part:
If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon receipt of a personal restraint petition, the court of appeals shall review the petition and determine whether the person has previously filed a petition or petitions and if so, compare them. If upon review, the court of appeals finds that the petitioner has previously raised the same grounds for review, or that the petitioner has failed to show good cause why the ground was not raised earlier, the court of appeals shall dismiss the petition on its own motion without requiring the state to respond to the petition.
Although RCW 10.73.140 refers specifically to PRPs, "certain motions are considered the functional equivalent of personal restraint petitions for the purpose of applying statutory limitations on successive writs." In re Pers. Restraint of Becker, 143 Wn.2d 491, 496, 20 P.3d 409 (2001) (citing Brand, 120 Wn.2d at 369-71). CrR 7.8(b) provides that motions brought under CrR 7.8 are subject to RCW 10.73.140, and the Supreme Court has held that RCW 10.73.140 applies to CrR 7.8 motions by analogy. Brand, 120 Wn.2d at 370. "To hold otherwise would thwart the legislative purpose by allowing repetitious collateral attacks in the trial courts in contravention of the policy limiting collateral review." Brand, 120 Wn.2d at 370.
Vessey has already filed two collateral attacks on his judgment and sentence, and he does not explain why he did not raise his current issue therein. Accordingly, the trial court properly dismissed his CrR 7.8 motion.
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.
HUNT, J. and QUINN-BRINTNALL, J., concur.