Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 60180-6
Title of Case: Personal Restraint Petition Of Christopher Anthony Quinn
File Date: 03/08/2010
SOURCE OF APPEAL
Appeal from King County Superior Court
Docket No: 04-1-12352-2
Judgment or order under review
Authored by Stephen J Dwyer
Concurring: Anne Ellington
COUNSEL OF RECORD
Counsel for Petitioner(s)
Elaine L Winters
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Ann Marie Summers
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE ) DIVISION ONE
PERSONAL RESTRAINT OF: )
) No. 60180-6-I
CHRISTOPHER QUINN, )
) PUBLISHED OPINION
_______________________________ ) FILED: March 8, 2010
Dwyer, J. -- Today we decide which party in a collateral attack
proceeding -- the petitioner or the State -- bears the burden of establishing the
timeliness of a petition for relief. A personal restraint petitioner who collaterally
attacks a criminal judgment and sentence bears the overall burden of
demonstrating an entitlement to relief. In the absence of an applicable
exception, obtaining relief in a collateral proceeding is conditioned upon the
petition's timeliness under RCW 10.73.090, that is, within one year of the date
on which the criminal judgment and sentence became final. We hold that the
petitioner bears the burden of proving a petition's timeliness and that prison mail
records establish that Christopher Quinn timely filed his petition.
We also decide whether the waiver doctrine articulated by our Supreme
Court in State v. Mendoza, 157 Wn.2d 582, 141 P.3d 49 (2006), applies to a
criminal defendant who is affirmatively misinformed prior to pleading guilty that
he or she faces a sentence less onerous than in actuality, learns of the correct,
No. 60180-6-I / 2
more onerous sentence only after pleading guilty, and attempts to raise the claim
of being misinformed with the trial court prior to sentencing. We hold that such a
defendant has not waived the right to challenge the validity of his or her guilty
Quinn was affirmatively misinformed prior to pleading guilty that he would
be subject to a term of community custody less onerous than the term the trial
court was statutorily required to impose. Therefore, he did not plead guilty
knowingly, intelligently, and voluntarily. Because Quinn attempted to raise the
claim of being misinformed with the trial court prior to sentencing, he did not
waive the right to challenge the validity of his guilty plea. Accordingly, remand to
allow Quinn to withdraw his plea is required.
In 2004, Quinn was charged by information with two counts of child
molestation in the first degree, in violation of RCW 9A.44.083, and one count of
communication with a minor for immoral purposes, in violation of RCW
9.68A.090.1 Quinn was initially represented by counsel appointed through the
Defenders Association (TDA). The State initially offered to enter into a plea
agreement with Quinn, but Quinn did not accept the State's offer. A sentencing
recommendation form signed by a deputy prosecuting attorney indicated that the
State would recommend that Quinn be placed on community custody for a term
1 We base our recitation of facts relating to the entry of Quinn's guilty plea and his
subsequent motion for withdrawal of that plea on the superior court's uncontested findings of fact
entered after conducting an evidentiary hearing in this matter pursuant to this court's reference
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No. 60180-6-I / 3
of 36 to 48 months after fulfilling his term of confinement. However, Quinn's first
attorney does not recall having discussed this sentencing recommendation with
him. Quinn's first attorney subsequently disassociated himself from TDA. In
August 2005, Quinn was appointed replacement counsel, also through TDA.
In the fall of 2005, Quinn decided to enter a plea of guilty. His plea
hearing was scheduled for December 13, 2005. According to the superior
court's findings, defense counsel
visited Mr. Quinn, who was in custody during the pendency of his
case, and reviewed the plea form with him a few days prior to
December 13, 2005. [Defense counsel's] practice was to fill out
the Statement of Defendant on Plea of Guilty (plea form) and make
two copies, one for the TDA attorney file and one for the client.
She did that on this occasion and provided Mr. Quinn with his own
copy of the plea form, which he reviewed while she went over and
explained the plea form with him . . . . On the copy of the plea form
[defense counsel] provided to Mr. Quinn, and on the original form
that she provided to the prosecutor, the State's recommendation on
page 7, paragraph (g) indicates "36 to 48 mos cc." [Defense
counsel] read that paragraph to Mr. Quinn as it was written when
she reviewed the plea form with him.
After reviewing the plea form with Quinn, defense counsel transmitted the
original plea form to the prosecuting attorney.
Upon reviewing the plea form, the prosecuting attorney noted that part of
the entry concerning the State's sentencing recommendation, that Quinn serve a
term of community custody of 36 to 48 months, was inconsistent with statutory
requirements. By statute, Quinn was subject to a mandatory life term of
community custody for the crime to which he was agreeing to plead guilty.2 The
2 Because Quinn was pleading guilty to the offense of child molestation in the first
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No. 60180-6-I / 4
prosecutor's sentencing recommendation should have indicated that Quinn
would be subject to a life term of community custody. The prosecutor
subsequently altered the community custody recommendation by "whiting out"
the portion reading "36 -- 48 mos [sic]" and writing "life on" in its place. The
modified plea form now read: "The prosecuting attorney will make the following
recommendation to the judge: . . . life on cc." The prosecutor did not notify
defense counsel or Quinn of this change to the plea form.
Meanwhile, in the time period between his review of the plea form with his
counsel and the date of his plea hearing, Quinn wrote a letter to his attorney
expressing his desire to plead guilty by means of an Alford3 plea. He also
sought clarification as to whether he "would be done with DOC" after completing
a community custody term of 36 to 48 months. However, Quinn's counsel did
not receive this letter prior to Quinn's scheduled plea hearing.
At the December 13, 2005 plea hearing, Quinn signed the original plea
form, which now contained the changes made by the prosecutor concerning the
length of community custody. However, neither Quinn nor his lawyer was aware
of this change. Before the trial court questioned Quinn to ascertain whether he
degree, the trial court was required to sentence him to a term of confinement ranging from a
minimum term of imprisonment to the statutory maximum punishment -- life imprisonment. See
former RCW 9.94A.712 (2005), recodified as RCW 9.94A.507; RCW 9A.20.021(1)(a); RCW
9A.44.083(2). In addition, in the event that Quinn was released from prison before the maximum
term of imprisonment expired, the trial court was required to sentence Quinn to a term of
community custody that would run until the expiration of the maximum term of imprisonment.
See former RCW 9.94A.712(5). Thus, the trial court was required to sentence Quinn to a life
term of community custody.
3 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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No. 60180-6-I / 5
was knowingly, intelligently, and voluntarily pleading guilty, Quinn asked his
lawyer whether she had received his letter and stated that he wished to enter an
Alford plea. The trial court briefly recessed the proceeding to enable Quinn to
discuss this matter with his counsel. After discussing the potential
consequences of entering an Alford plea with his counsel, Quinn decided not to
do so. Quinn's lawyer did not discuss community custody with him at this time.
The entry of Quinn's guilty plea was rescheduled for December 15, 2005.
As of that date, Quinn's attorney still had not received Quinn's letter concerning
community custody. Moreover, Quinn's attorney was unable to attend the
rescheduled plea hearing, necessitating that another lawyer associated with
TDA stand in as Quinn's counsel. Nothing in the case file or in the notes given
to the replacement attorney indicated that Quinn had any questions about
community custody or that any changes had been made to the plea form after
Quinn had initially reviewed it with his primary lawyer. The replacement attorney
did not speak to Quinn about the term of community custody. Indeed, she did
not speak to him at all until the court called his case and he was escorted by
security into the courtroom. However, the replacement attorney did alter the
sentencing recommendation on the copy of the plea form retained by TDA to be
consistent with the original plea form as modified by the prosecutor.
Quinn pleaded guilty to one count of child molestation in the first degree.
The trial court accepted his plea as being entered knowingly, intelligently, and
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No. 60180-6-I / 6
voluntarily. It also instructed the parties to initial those sections of the plea
agreement that had been crossed out as being inapplicable. However, the
initials of neither the replacement counsel nor Quinn appear near the changes
made by the prosecuting attorney to the State's recommendation concerning the
term of community custody. Furthermore, the section of the signed plea form
setting forth the standard sentencing range, which bears a check mark that does
not appear on the copy initially presented to Quinn, does not mention community
custody. During its brief plea colloquy with Quinn, the trial court did not
articulate the State's sentencing recommendation concerning the length of
Shortly after entering his guilty plea, Quinn expressed a desire to
withdraw it, asserting that his counsel had been ineffective. On January 13,
2006, the scheduled date for Quinn's sentencing, Quinn's counsel withdrew from
representation. The sentencing was postponed, and replacement counsel was
appointed to represent Quinn on his motion for withdrawal of the plea.
A hearing on Quinn's motion for withdrawal of the plea was scheduled for
May 5, 2006. Approximately one week before the hearing date, Quinn's counsel
provided him with a copy of the briefing in support of the motion. The briefing
did not address the changes made on the original plea form concerning the
length of community custody.4 Attached to the brief, however, was a copy of the
4 Quinn's counsel contended that Quinn's guilty plea was invalid because the written plea
agreement did not include a written promise that the State would move to dismiss the remaining
counts in the information. Thus, Quinn's counsel argued, the plea agreement did not confer a
substantial benefit on Quinn in exchange for his guilty plea.
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No. 60180-6-I / 7
original, modified plea form that Quinn had signed the previous December.
Upon reading this copy of the plea form, Quinn learned for the first time that his
term of community custody would be for life, not for the range of 36 to 48 months
stated on the plea form he had initially reviewed.
At the May 5 hearing on Quinn's motion to withdraw his guilty plea,
Quinn's counsel advanced the argument presented in the supporting briefing.5
The trial court indicated that it would deny the motion.
Quinn then personally addressed the court. He complained that, prior to
signing the plea form and formally entering his plea, he was not informed of the
change concerning community custody. Specifically, he stated that he was
unaware that the term of community custody to which he had subjected himself
had increased from a range of 36 to 48 months to a term of life.
The trial court did not consider Quinn's argument. The trial court
observed that the issue had not been briefed, and the prosecutor -- the same
individual who changed the plea form after Quinn had reviewed it -- asserted that
the term of community custody was "simply not an issue." In response to the
prosecutor's statement, the trial court remarked that changes to a plea
agreement without the defendant's knowledge may very well be significant. But
rather than informing the trial court that he had, in fact, made changes to the
original plea form, the prosecutor argued that it would be improper for the trial
5 It is not clear from the record whether Quinn's replacement counsel was by this time
aware of the modification made to the plea form.
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No. 60180-6-I / 8
court to address the issue of community custody because Quinn's counsel had
not raised the issue. The trial court declined to hear any further argument
concerning whether Quinn had been misinformed about the term of community
custody, indicating to Quinn, however, that he could bring additional motions at
"a future time."6
6 After counsel addressed the arguments advanced in the briefing attendant to Quinn's
motion for withdrawal, the following colloquy occurred:
THE COURT: Frankly, a guilty plea, because of the significant rights that
a defendant gives up, in this case, Mr. Quinn, there are always -- the motion to
withdraw a guilty plea can be brought, I think, pretty much at any time where
there is a manifest injustice as far as what was promised and the State not
carrying out what it had promised.
[QUINN]: This copy that was given to me, of the plea agreement, Your
Honor, the day before I was signing it, it had been altered. It was changed. I
was never informed that these changes were made.
THE COURT: What changes are you talking about?
[QUINN]: From minimum term of sixty months to thirty-six, and forty-
eight months of community custody to a lifetime of community custody and a
minimum of sixty months.
THE COURT: Well, this hasn't been briefed and are we prepared to
discuss this matter? I'm not sure. I have not read this.
No, let's do one thing at a time.
[THE PROSECUTOR]: No, frankly, Your Honor, this is not an issue at
this time. I mean, it's just simply not an issue.
THE COURT: Well, Mr. Quinn has raised something that, whenever I
hear that something was added to a plea agreement without his knowledge, if
that's the case, then that certainly could have some significance. But I don't
know if I know the facts of this case well enough or whether or not we can
dispose of it now or whether or not it should be the subject of a future hearing.
[THE PROSECUTOR]: Here's my difficulty. Mr. Quinn is represented by
counsel. He can't bring his own motions.
THE COURT: Correct.
[THE PROSECUTOR]: I assume that [defense counsel] has met with Mr.
Quinn, has reviewed the record. He is bringing whatever legal motions he
thought he could bring, based on what he reviewed, to withdraw the guilty plea.
That's all I'm aware that we would be here on, and I would ask the Court not to
allow Mr. Quinn now to sort of raise all of his own issues on his own. He has got
to do it through counsel.
THE COURT: I think that's appropriate. The only reason I engaged in
this was in case there was a simple explanation for this, and it could be resolved
without our needing to come back for another hearing. But [the prosecutor],
speaking for the State, is correct.
Mr. Quinn, you are represented by counsel. You certainly should talk to
your attorney, take his advice as far as how to proceed and that's the manner in
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No. 60180-6-I / 9
A week later on May 12, 2006, the trial court conducted Quinn's
sentencing hearing. At this hearing, Quinn did not raise the issue of
misinformation about the term of community custody. The trial court imposed an
indeterminate sentence, sentencing Quinn to a term of imprisonment for a
minimum of 60 months and a maximum of life and to a term of community
custody for life if released before the expiration of the statutory maximum
sentence. The trial court also dismissed the two counts remaining in the
information. Quinn's judgment and sentence was filed with the superior court
clerk and became final on May 15, 2006.
Well after he was sentenced, Quinn moved to withdraw his guilty plea,
contending that he was misinformed about the length of the term of community
which we conduct theses [sic], in an orderly manner.
[QUINN]: This is the third time I have seen this gentleman since January
19th. I have written him numerous times. I have tried to raise him by phone.
He only told me last week that I would be having this hearing today.
[THE COURT]: Well, I mean, the effective -- many times, there are
questions as to what a party, a defendant in a criminal case, believes is the
effective assistance of counsel. And I think it's -- obviously, it's a joint effort
between the attorney and the client to work and endeavor to properly and
effectively defend a criminal case. So I'm not going to make any judgments now
about the number of phone calls that are necessary or the number of visits that
You talk with your attorney, you should talk with your attorney, explain
your situation. If you are not satisfied, there are legal remedies that you can ask
for. Again, there is no guarantee the Court will accept it. At some point, the
Court needs to trust the judgment of the persons, that are trained in the law, as
far as what they are going to do.
So, in this case, I'm not going to hear what your position is or any
problems you have, but I want to make sure you understand that I don't consider
that you are waiving or giving up any rights that you have to be effectively
represented by an attorney.
So I guess there will be, in terms of talking to your attorney, if there are
more motions, either that your attorney agrees with or a motion on your part
because of disagreements, that will remain for a future time.
I have signed the order.
Report of Proceedings (May 5, 2006) at 11 -- 14.
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No. 60180-6-I / 10
custody to which he would be subject as a result of pleading guilty. The
chronology of when Quinn filed his motion is not precisely known. A date stamp
on the motion indicates that it was received by the King County Superior Court
on June 7, 2007, that is, more than one year after the date on which the
judgment became final. However, there are other indicators that Quinn mailed
his motion from prison to the superior court within one year of the date on which
the judgment and sentence became final. Although the motion itself is not
signed or dated, it contains a handwritten notation requesting a hearing for April
27, 2007. Also attached to the motion is a blank form titled "DECLARATION"
that is signed by Quinn and dated April 6, 2007. In addition, prison mail system
records indicate that Quinn mailed a variety of legal documents to the King
County Superior Court on April 13 and 17 and May 2, 7, and 8, 2007.
After receiving Quinn's motion, the superior court transferred it to this
court pursuant to CrR 7.8(c)(2) for treatment as a personal restraint petition.7
7 CrR 7.8(c) sets forth the procedures for a superior court's consideration of a motion to
vacate a criminal judgment. It provides:
(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
(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.
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No. 60180-6-I / 11
The State did not initially challenge Quinn's petition as untimely.8 Rather, based
on the signed and dated declaration attached to the petition and the dates
extracted from the prison mail log, the State "assumed" that Quinn's petition was
timely filed pursuant to the mailbox rule set forth in General Rule (GR) 3.1.9
8 Except in certain circumstances not presented herein, a collateral attack on a judgment
and sentence in a criminal case, which includes a motion to withdraw a guilty plea and a
personal restraint petition, must be filed within one year of the date on which the judgment and
sentence becomes final. RCW 10.73.090. The statute provides:
(1) 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.
(2) For the purposes of this section, "collateral attack" means any form
of postconviction relief other than a direct appeal. "Collateral attack" includes,
but is not limited to, a personal restraint petition, a habeas corpus petition, a
motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new
trial, and a motion to arrest judgment.
(3) For the purposes of this section, a judgment becomes final on the
last of the following dates:
(a) The date it is filed with the clerk of the trial court;
(b) The date that an appellate court issues its mandate disposing of a
timely direct appeal from the conviction; or
(c) The date that the United States Supreme Court denies a timely
petition for certiorari to review a decision affirming the conviction on direct
appeal. The filing of a motion to reconsider denial of certiorari does not prevent
a judgment from becoming final.
9 GR 3.1 provides, in full:
(a) If an inmate confined in an institution files a document in any
proceeding, the document is timely filed if deposited in the institution's internal
mail system within the time permitted for filing.
(b) Whenever service of a document on a party is permitted to be made
by mail, the document is deemed "mailed" at the time of deposit in the
institution's internal mail system addressed to the parties on whom the document
is being served.
(c) If an institution has a system designed for legal mail, the inmate
use that system to receive the benefit of this rule. Timely filing or mailing may
be shown by a declaration or notarized affidavit in form substantially as follows:
I, [name of inmate], declare that, on [date], I deposited the foregoing
[name of document], or a copy thereof, in the internal mail system of
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No. 60180-6-I / 12
Upon reviewing the parties' submittals regarding Quinn's petition, we
ordered an evidentiary reference hearing in superior court to determine whether
Quinn knew that if he pleaded guilty his sentence would include a possible
lifetime of community custody. In so doing, we observed that the State did not
dispute that Quinn's petition was timely filed pursuant to GR 3.1. The superior
court conducted the evidentiary hearing and entered detailed findings of fact
concerning the entry of Quinn's guilty plea and his subsequent effort to withdraw
it. The superior court concluded that Quinn was affirmatively misinformed about
the length of community custody to which he would be subject by pleading guilty
and that, although Quinn understood that he was facing a possible life sentence
of imprisonment, he believed that he would face a term of community custody
ranging only from 36 to 48 months. The superior court further concluded that, at
the time he entered his guilty plea, Quinn was unaware of the modification made
to the plea form by the prosecutor and that he remained unaware of this change
until his replacement counsel presented him with a copy of the original, signed
plea form as part of the motion for plea withdrawal that his counsel had
[name of institution] and made arrangements for postage, addressed to:
[name and address of court or other place of filing];
[name and address of parties or attorneys to be served].
I declare under penalty of perjury under the laws of the State of
Washington that the foregoing is true and correct.
DATED at [city, state] on [date].
(d) Whenever a party has the right or is required to do some act or take
some proceedings within a prescribed period after filing or service of a
document, and if an inmate files or serves the document under this rule, that
period shall begin to run on the date the document is received by the party.
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No. 60180-6-I / 13
After the superior court's findings were transmitted to this court, we
directed the State to file additional briefing addressing the effect of the trial
court's factual findings on Quinn's petition. The State did not challenge the
superior court's findings from the reference hearing. Instead, it argued for the
first time that Quinn's petition should be dismissed as untimely because Quinn
had failed to provide sufficient proof, pursuant to GR 3.1(c), that he had mailed
his petition by May 15, 2007, the one-year anniversary of his conviction
becoming final. The State also argued, in the alternative, that Quinn had waived
the right to challenge his plea under Mendoza because he did not formally seek
relief premised upon his lack of notice regarding lifetime community custody
prior to sentencing even though he was, by then, aware of the issue.
The acting chief judge determined that Quinn's petition and the State's
response presented several nonfrivolous questions, appointed appellate counsel
to represent Quinn, and directed the parties to file additional briefing. See RAP
16.11(b). Specifically, the parties were directed to address (1) whether it is the
State or Quinn who bears the burden of establishing timely filing based on
compliance with GR 3.1; (2) whether the existing record or a supplemented
record would show that there was compliance with GR 3.1 in light of the properly-
allocated burden; (3) whether the State waived any objection based on GR 3.1
or RCW 10.73.090 by failing to argue that the petition was time-barred in its
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No. 60180-6-I / 14
initial response or at least at some point prior to the conclusion of the reference
hearing; and (4) whether, under Mendoza, Quinn waived the issue of
misinformation regarding community custody.
In replying to the State's contentions regarding the timeliness of his
petition, Quinn asserted that his petition was timely and that the burden of
proving otherwise lies with the State. He also submitted additional documents
indicating that he filed his petition within one year of the date on which his
conviction became final, including a declaration in which he averred that he
placed his petition "in the prison legal mail system approximately four weeks
before the May 15[, 2007] deadline." In addition, he submitted postage receipts
indicating that, on April 17, 2007, he mailed a "motion and supporting docs" to
the King County Superior Court and to the trial court judge directly and a "motion
and exhibits" to the prosecuting attorney. Also included in Quinn's supplemental
submissions is a signed "declaration of service by mailing" dated April 12, 2007,
indicating that Quinn mailed a copy of the motion to withdraw his guilty plea and
supporting documents to the prosecuting attorney. At oral argument, the State
maintained that Quinn was required to affirmatively demonstrate the timeliness
of his petition at the time of its filing, but conceded that the supplemental
documents submitted by Quinn established the timeliness of his petition under
RCW 10.73.090 and GR 3.1.
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No. 60180-6-I / 15
We begin with the threshold issue of whether Quinn bears the burden of
proving that his petition was timely. We conclude that he does.
Neither chapter 10.73 RCW nor the Rules of Appellate Procedure
governing our review of collateral attacks on criminal judgments10 expressly
allocate the burden of proof with respect to the issue of proving whether a
petition is timely. As a general rule, however, the petitioner collaterally attacking
a judgment and sentence in a criminal case bears the overall burden of
demonstrating an entitlement to relief. See In re Pers. Restraint of Gentry, 137
Wn.2d 378, 409, 972 P.2d 1250 (1999) (citing In re Pers. Restraint of Hews, 99
Wn.2d 80, 89, 660 P.2d 263 (1983)); see also In re Pers. Restraint of Runyan,
121 Wn.2d 432, 452 n.16, 853 P.2d 424 (1993) (citing Miesbauer v. Rhay, 79
Wn.2d 505, 509, 487 P.2d 1046 (1971), overruled in part on other grounds by
Wood v. Morris, 87 Wn.2d 501, 554 P.2d 1032 (1976)).
Together, RCW 10.73.090 and RAP 16.4(d) condition the grant of relief in
a collateral attack proceeding on the timely filing of the petition -- that is, within
one year after the petitioner's conviction becomes final -- unless an exception
applies.11 Shumway v. Payne, 136 Wn.2d 383, 397, 400, 964 P.2d 349 (1998).
Pursuant to RCW 10.73.090, "[n]o 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
10 RAP 16.3 -- .15 and 16.24 -- .27 govern our view of collateral attack proceedings.
11 Numerous exceptions to the one-year limitation period for bringing a collateral attack
are articulated in RCW 10.73.100. As explained, supra, none of these exceptions applies to
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No. 60180-6-I / 16
was rendered by a court of competent jurisdiction." Our Supreme Court has
explained that RCW 10.73.090 is a "mandatory rule that acts as a bar to
appellate court consideration of PRPs filed after the limitation period has
passed, unless the petitioner demonstrates that the petition is based on one of
the exemptions enumerated in RCW 10.73.100." In re Pers. Restraint of Bonds,
165 Wn.2d 135, 140, 196 P.3d 672 (2008).
Further, an "appellate court will . . . grant relief by a personal restraint
petition [only] if other remedies which may be available to petitioner are
inadequate under the circumstances and if such relief may be granted under
RCW 10.73.090, .100, and .130." RAP 16.4(d) (emphasis added). In addition,
RAP 16.9 directs the appellate court to consider whether a collateral attack is
timely even before the State responds.12
In view of the restriction on our power to grant relief only in the event of a
timely filed petition and the allocation of the overall burden of proof to the
petitioner, we conclude that the burden of proving that a petition was timely filed
is properly assigned to the petitioner. The scheme for judicial review of a
collateral attack conditions the grant of relief on the timely filing of the petition.
Therefore, a showing that a petition is timely is no less of a prerequisite for
obtaining relief than is a demonstration of the merits of the petitioner's claim.
See RAP 16.4(c)(2). Given that the petitioner bears the burden of proving the
12 RAP 16.9 provides: "The respondent must serve and file a response within 60 days
after the petition is served, unless the time is extended by the commissioner or clerk for good
cause shown, or unless the court can determine without requiring a response that the petition
should be dismissed under RCW 10.73.090 or RCW 10.73.140."
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No. 60180-6-I / 17
latter, it is consistent with the statutory and procedural scheme for the petitioner
to also bear the burden of demonstrating the former.
Having clarified that the petitioner bears the burden of proving the
timeliness of a petition, we must determine whether a petitioner must
unequivocally demonstrate the timeliness of a petition contemporaneously with
filing it and, if not, elucidate the appropriate procedure for determining whether
the petition was timely filed. Although the State previously assumed that Quinn's
petition was timely, it now contends that Quinn cannot meet his burden because
it is not clear on the face of his petition that the petition was timely filed.
For the proposition that Quinn was required to unequivocally establish the
timeliness of his petition at the time of its filing, the State relies on GR 3.1.
Again, GR 3.1 provides that an inmate who is confined in an institution is
deemed to have filed a document in any proceeding on the date on which the
inmate deposits the document in the institution's internal mail system. GR
3.1(a). The rule specifies that "[i]f an institution has a system designed for legal
mail, the inmate must use that system to receive the benefit of this rule." GR
3.1(c). The rule further provides that "[t]imely filing or mailing may be shown by
a declaration or notarized affidavit" that substantially follows the template set
forth in the rule. GR 3.1(c)
We interpret court rules using principles of statutory construction. State
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No. 60180-6-I / 18
v. Blilie, 132 Wn.2d 484, 492, 939 P.2d 691 (1997) (citing State v. Greenwood,
120 Wn.2d 585, 592, 845 P.2d 971 (1993)). Thus, "[w]e interpret a court rule as
though it were enacted by the legislature, giving effect to its plain meaning as an
expression of legislative intent." State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d
234 (2007) (citing Greenwood, 120 Wn.2d at 592). We discern a rule's plain
meaning by "reading the rule as a whole, harmonizing its provisions, and using
related rules to help identify the legislative intent embodied in the rule." Chhom,
162 Wn.2d at 458 (citing State v. Williams, 158 Wn.2d 904, 908, 148 P.3d 993
The State misreads GR 3.1(c) as requiring a petitioner to submit a
declaration concerning the date of mailing contemporaneously with the petition
itself. A basic principle of statutory construction is that the legislature does not
intend to create inconsistencies in statutory language. Am. Legion Post No. 149
v. Dep't of Health, 164 Wn.2d 570, 588, 192 P.3d 306 (2008) (citing State ex rel.
Peninsula Neighborhood Ass'n v. Dep't of Transp., 142 Wn.2d 328, 342, 12 P.3d
134 (2000)). Thus, we presume that our Supreme Court, in promulgating the
General Rules, did not intend to create inconsistencies in the language used in
the rules. Further, we "must, when possible, 'give effect to every word, clause
and sentence of a statute.'" Am. Legion Post No. 149, 164 Wn.2d at 585
(quoting Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985)).
General Rule 3.1(c) mandates that a petitioner use the prison mail system
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No. 60180-6-I / 19
to receive the benefit of the rule. Cf. Jessup v. Clallam County, 7 Wn. App. 692,
693 -- 94, 502 P.2d 1220 (1972) (explaining that the term "must," when used in a
statute, creates an imperative condition). However, the rule does not plainly
require a petitioner to file a declaration concerning the date of filing. Rather, it
provides that such a declaration may be used to establish timely filing. Cf. N.W.
Ecosystem Alliance v. Forest Practices Bd., 149 Wn.2d 67, 76, 66 P.3d 614
(2003) (explaining that the use of the term "may" in a statute does not require an
action but, rather, permits an action). That a petitioner may prepare a
declaration does not mean that the petitioner must do so. Further, GR 3.1 does
not indicate that a declaration concerning the date of mailing is the exclusive
form of proof of the date of filing pursuant to GR 3.1. Indeed, if the superior
court clerk's date stamp on Quinn's petition had indicated that the superior court
received the petition prior to May 15, 2007, instead of on June 7, 2007, that fact
would tend to establish that Quinn's petition had been timely filed. Although the
inclusion of a declaration as to the date of mailing with a petition for relief might
help to resolve issues concerning timeliness, GR 3.1 does not require such a
As explained above, Quinn has filed documents indicating that he mailed
his motion to withdraw his guilty plea and supporting documents to both the trial
court and the prosecuting attorney before May 15, 2007. The State conceded at
oral argument that these documents establish that Quinn's petition was timely
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No. 60180-6-I / 20
filed. Accordingly, we conclude that Quinn's petition was timely filed.13
Finally, the State contends that, even if Quinn was affirmatively
misinformed about the consequences of pleading guilty at the time he entered
his plea, he has waived the right to seek withdrawal of his plea because he was
aware of the misinformation before sentencing but moved to withdraw his plea
after sentencing. We disagree.
A defendant's decision to plead guilty must be knowing, intelligent, and
voluntary. Mendoza, 157 Wn.2d at 587 (citing In re Pers. Restraint of Isadore,
151 Wn.2d 294, 297, 88 P.3d 390 (2004)). To qualify as a knowing and
intelligent plea, a guilty plea must be made with a correct understanding of the
charge and the consequences of pleading guilty. State v. Wakefield, 130 Wn.2d
464, 472, 925 P.2d 183 (1996). A guilty plea is not knowingly made when it is
based on misinformation regarding sentencing consequences. State v. Miller,
110 Wn.2d 528, 531, 756 P.2d 122 (1988). A defendant need not, however, be
advised of all collateral consequences of pleading guilty. State v. Ward, 123
Wn.2d 488, 512, 869 P.2d 1062 (1994). The distinction between collateral and
direct consequences depends upon whether the consequence "'represents a
definite, immediate and largely automatic effect on the range of the defendant's
punishment.'" Ward, 123 Wn.2d at 512 (quoting State v. Barton, 93 Wn.2d 301,
13 Because of the resolution of this issue, we need not address the issue of whether the
State waived its challenge to the timeliness of Quinn's petition by not raising that argument at the
outset of this proceeding.
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No. 60180-6-I / 21
305, 609 P.2d 1353 (1980)).
The imposition of mandatory community placement or community custody
is a direct consequence of a guilty plea. State v. Turley, 149 Wn.2d 395, 399,
69 P.3d 338 (2003); State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996).
There is no guarantee, however, that Quinn will be placed on community
custody. He was sentenced under former RCW 9.94A.712 (2005), the statute
governing sentences for nonpersistent sex offenders, and is serving a minimum
sentence of 60 months of imprisonment with a statutory maximum sentence of
life imprisonment. It is possible that he will be released before serving the
maximum term, but his release is not guaranteed. Therefore, in this context,
community custody might be properly characterized as a collateral consequence
of Quinn's plea. Cf. Ross, 129 Wn.2d at 284 (explaining that a sentencing
consequence is direct when "'the result represents a definite, immediate and
largely automatic effect on the range of the defendant's punishment'") (quoting
Barton, 93 Wn.2d at 305).
That a sentencing consequence may be collateral does not necessarily
preclude withdrawal of a guilty plea. See State v. Stowe, 71 Wn. App. 182,
187 -- 88, 858 P.2d 267 (1993) (explaining that an affirmative misrepresentation
concerning a collateral consequence may warrant withdrawal of a guilty plea).
Further, our Supreme Court has indicated that a sentence of community custody
is a direct consequence not because it is guaranteed but because the specific
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No. 60180-6-I / 22
term is triggered by the guilty plea. "[C]ommunity placement is a direct
consequence because it 'affects the punishment flowing immediately from the
guilty plea' and 'imposes significant restrictions on a defendant's constitutional
freedoms.'" Mendoza, 157 Wn.2d at 588 (quoting Ross, 129 Wn.2d at 285, 286).
Regardless of how Quinn's sentence of community custody is characterized -- as
a direct or a collateral consequence -- the result is the same: by pleading guilty,
he necessarily became subject to a life term of community custody, not a range
of 36 to 48 months as he was initially informed. Quinn's guilty plea, not some
other action, necessarily subjected him to a potential lifetime of community
custody. There is no meaningful distinction between characterizing the term of
community custody applicable to Quinn as either a direct consequence or a
collateral consequence of his guilty plea. Accordingly, even though there
remains some uncertainty as to whether Quinn will ever be released from prison
and placed on community custody, the same principles that underlie a
defendant's right to seek withdrawal of a guilty plea "when he [or she] was not
informed of mandatory community placement," Mendoza, 157 Wn.2d at 588,
apply in this context.
After conducting an evidentiary hearing in accordance with our referral of
this matter, the superior court found that Quinn, prior to entering his guilty plea,
was affirmatively misinformed about the term of community custody to which he
would be subject by pleading guilty. In addition, the superior court found that
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No. 60180-6-I / 23
this misinformation was not corrected before Quinn entered his plea. Further,
the court determined that Quinn first learned of the life term of community
custody only shortly before the hearing on his motion for withdrawal of his guilty
plea, which was based on other grounds. Neither party challenges the superior
court's findings or conclusions. A review of the record indicates that the superior
court's findings and conclusions are well supported by the evidence.
Accordingly, we treat the superior court's findings as verities. Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992).
The general rule is that "a guilty plea may be deemed involuntary when
based on misinformation regarding a direct consequence on the plea, regardless
of whether the actual sentencing range is lower or higher than anticipated."
Mendoza, 157 Wn.2d at 591. "Absent a showing that the defendant was
correctly informed of all of the direct consequences of his guilty plea, the
defendant may move to withdraw the plea." Mendoza, 157 Wn.2d at 591.
However, our Supreme Court also made clear in Mendoza that a defendant's
right to challenge a guilty plea is constrained by both temporal considerations
and the type of effect on sentencing terms caused by the correction to any
misinformation. See Mendoza, 157 Wn.2d at 591 -- 92.
At issue in Mendoza was "whether a defendant is 'misinformed of the
direct consequences of a plea' so as to render the plea involuntary when the
defendant is told after his plea is entered that he faces a lower standard range
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No. 60180-6-I / 24
sentence than indicated in the plea agreement." 157 Wn.2d at 590. Mendoza
was informed in his plea agreement that, by pleading guilty, he would receive an
offender score of 7 and would be subject to a standard sentence range of 51 to
60 months and that the State would recommend a 60-month sentence.
Mendoza, 157 Wn.2d at 584. Mendoza pleaded guilty. Mendoza, 157 Wn.2d at
584. Prior to sentencing, Mendoza's offender score was recalculated, resulting
in a lower offender score of 6 and a correspondingly lower standard sentencing
range of 41 to 54 months. Mendoza, 157 Wn.2d at 584. At Mendoza's
sentencing, the State explained that Mendoza's score had been "erroneously
calculated in the plea agreement" and then recommended a sentence of 54
months, the high end of the recalculated standard range. Mendoza, 157 Wn.2d
at 585. "Mendoza did not object to the State's revised recommendation or
mention any concern about his offender score or the lower standard range."
Mendoza, 157 Wn.2d at 585.
Before he was sentenced, Mendoza moved to withdraw his guilty plea, but
he did not do so out of concern that his offender score and the standard
sentencing range had initially been miscalculated. Mendoza, 157 Wn.2d at 585,
592. The trial court denied Mendoza's motion and sentenced him to 52 months
of imprisonment. Mendoza, 157 Wn.2d at 586. Mendoza then appealed directly
from his judgment and sentence, "arguing his plea was involuntary because he
was not informed of the correct standard range prior to pleading guilty."
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No. 60180-6-I / 25
Mendoza, 157 Wn.2d at 586.
Although our Supreme Court indicated that Mendoza's plea might not
have been a knowing, voluntary, and intelligent one, Mendoza, 157 Wn.2d at
590 -- 91, it concluded that Mendoza had "waived his right to challenge the
voluntariness of his guilty plea." Mendoza, 157 Wn.2d at 592. The court
declared that "when the defendant is informed of the less onerous standard
range before he is sentenced and given the opportunity to withdraw the plea, the
defendant may waive the right to challenge the validity of the plea." Mendoza,
157 Wn.2d at 591. It distinguished Mendoza's situation from circumstances in
which a defendant may not be deemed to have waived the right to challenge a
plea, such as where the defendant was "not informed of the mistake before
sentencing" or "had agreed to be subject to a higher sentence than authorized
by statute." Mendoza, 157 Wn.2d at 591 (distinguishing State v. Walsh, 143
Wn.2d 1, 17 P.3d 591 (2001) and In re Pers. Restraint of Goodwin, 146 Wn.2d
861, 50 P.3d 618 (2002)). But "waiver is permitted when the defendant is
advised of the correct standard range before sentencing and is sentenced within
a statutorily authorized lower standard range than contemplated by the plea
agreement." Mendoza, 157 Wn.2d at 591 -- 92. Mendoza waived the right to
challenge his plea because he "did not object to sentencing or move to withdraw
his plea as involuntary and because his lower sentence [was] statutorily
authorized." Mendoza, 157 Wn.2d at 592.
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No. 60180-6-I / 26
The State misreads Mendoza as standing for the broad proposition that a
defendant waives the right to challenge a guilty plea on the basis of
misinformation whenever the defendant (1) is made aware of the misinformation
and the effect of any correction prior to sentencing and (2) fails to move for
withdrawal of the plea before being sentenced, regardless of whether the
correction results in a sentence that is less or more onerous than initially
anticipated. The court in Mendoza held that "if the defendant was clearly
informed before sentencing that the correctly calculated offender score rendered
the actual standard range lower than had been anticipated at the time of the
guilty plea, and the defendant does not object or move to withdraw the plea on
that basis before he is sentenced, the defendant waives the right to challenge
the voluntariness of the plea." Mendoza, 157 Wn.2d at 592 (emphasis added).
This is not the situation in which Quinn finds himself.
"Plea agreements are contracts and are analyzed under basic contract
principles." State v. Harris, 102 Wn. App. 275, 280, 6 P.3d 1218 (2000) (citing
State v. Sledge, 133 Wn.2d 828, 838, 947 P.2d 1199 (1997)). Because a plea
agreement implicates fundamental constitutional rights of the accused, the
defendant's contract rights implicate due process considerations. Sledge, 133
Wn.2d at 839. "Due process requires a prosecutor to adhere to the terms of the
agreement." Sledge, 133 Wn.2d at 839. "[T]he terms of . . . [a plea] agreement
are generally defined by what the defendant understood them to be when he or
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No. 60180-6-I / 27
she entered into the plea agreement." State v. Oliva, 117 Wn. App. 773, 779, 73
P.3d 1016 (2003) (citing State v. Cosner, 85 Wn.2d 45, 51 -- 52, 530 P.2d 317
It is established that Quinn was affirmatively misinformed prior to entering
his guilty plea that he would be subject to a term of community custody ranging
from 36 to 48 months as opposed to a life term. It is further established that
Quinn was unaware that the prosecuting attorney modified the community
custody information in the plea form prior to Quinn entering his plea.
Accordingly, based on Quinn's understanding of the sentencing consequences,
the terms of his plea agreement provided that he would be subject to a sentence
of community custody less onerous than the sentence ultimately imposed.
Unlike the situation presented in Mendoza, Quinn's liability as a result of
pleading guilty increased, unbeknownst to him, after the plea form was altered.
Thus, it cannot be reasonably said that Quinn obtained the expected benefit of
the bargain forged pursuant to his plea agreement.
Nor does the record herein indicate that Quinn was dilatory in raising the
misinformation issue once he learned of its existence. Unlike Mendoza, who
raised no objection when the prosecuting attorney notified him of the favorable,
recalculated offender score, Quinn personally attempted to raise the issue of
misinformation at the hearing on his motion for plea withdrawal. We recognize
that a trial court has the discretion to decline "to consider [a] pro se motion . . .
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No. 60180-6-I / 28
[when a defendant is] represented by competent counsel." State v. Bergstrom,
162 Wn.2d 87, 97, 169 P.3d 816 (2007). But, while the trial court was within its
rights not to address Quinn's concern at the time he personally raised it, it is
nevertheless clear that Quinn was not lying in the weeds, in order to later spring
this issue upon the prosecutor, nor was he acquiescing in the situation.
Moreover, it is notable that the prosecutor took no steps to inform the trial court
of the facts surrounding Quinn's claim of misinformation, instead choosing to be
dismissive of Quinn's factually correct assertions. Finally, it is notable that
Quinn did exactly as the trial court instructed him to -- raise the issue at a "future
time," consistent with court rules.14 The facts of this case do not warrant a
conclusion that Quinn waived this claim.
It is established that Quinn was misinformed about the consequences of
pleading guilty. Therefore, his guilty plea was not knowingly, intelligently, and
voluntarily made. He is entitled to withdraw it.
Remanded for further proceedings.
14 As our Supreme Court recently explained, the same standard of review applies to a
motion for withdrawal of a guilty plea regardless of whether the motion is brought before or after
sentencing. See State v. A.N.J., No. 81236-5, 2010 WL 314512, at *6 (Wash. Jan. 28, 2010).
Thus, by reading the applicable rule, Quinn would not have been alerted that he was waiving his
right to seek relief by waiting until after sentencing to do so.
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