State v. Cervantes
273 P.3d 484
Wash. Ct. App.2012Background
- Gomez Cervantes appeals a trial court denial of his 2010 CrR 7.8 motion to vacate a 1994 judgment and sentence, arguing ineffective assistance due to immigration consequences.
- In 2005 Gomez had successfully vacated the conviction under RCW 9.94A.640 after completing sentence; immigration consequences persisted.
- Gomez was not a U.S. citizen in 1994; he is now in federal custody awaiting removal, with removal stayed pending federal habeas litigation.
- Gomez based the 2010 motion on Padilla v. Kentucky, asserting counsel failed to inform him of deportation risks, rendering plea involuntary.
- The trial court denied the 2010 motion, noting the 1994 judgment had previously been vacated; the issue on appeal is whether it retained authority to entertain a second vacatur.
- The court ultimately held the CrR 7.8 motion was time-barred, though it acknowledged the court retained jurisdiction to consider vacatur under rehabilitative grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err by denying vacatur where the judgment had already been vacated? | Gomez argues the trial court retained jurisdiction to consider vacatur on other grounds. | State contends the judgment had been vacated and no controversy remained. | Court had jurisdiction but could not grant relief due to time limits. |
| Does Padilla create a significant change in law that excuses the time bar for a CrR 7.8 motion? | Padilla is a significant, retroactive change that tolls the time limit. | Padilla is not a retroactive change; it applies existing immigration-risk law. | Padilla does not constitute a significant retroactive change; time bar applies. |
| Is Gomez's 2010 motion timely under RCW 10.73.090/100 for ineffective assistance claims? | The timing should be relaxed due to Padilla creating a new ineffective assistance claim. | Padilla does not create an exception to the one-year limit. | Motion is time-barred; not timely under RCW 10.73.090. |
Key Cases Cited
- State v. Swan, 114 Wash.2d 613 (1990) (abuse of discretion standard for CrR 7.8)
- State v. Neal, 30 P.3d 1255 (2001) (abuse of discretion; untenable grounds)
- State v. Quismundo, 192 P.3d 342 (2008) (wrong legal standard; untenable reasons)
- Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 858 P.2d 1054 (1993) (abuse of discretion; erroneous view of law)
- In re Pers. Restraint of Hemenway, 55 P.3d 615 (2002) (plea-informed consequences; time limits)
- In re Pers. Restraint of Clark, 230 P.3d 156 (2010) (Padilla-related claims viability)
- State v. Wade, 138 P.3d 168 (2006) (ineffective assistance claims and time limits)
- State v. Olivera-Avila, 949 P.2d 824 (1997) (significant change in law exception analysis)
- In re Pers. Restraint of Domingo, 119 P.3d 816 (2005) (retroactivity considerations for restraint petitions)