In Re Bybee
¶ 1 In these consolidated personal restraint petitions (PRPs), Michael Robert Bybee and Ethan Durden seek relief from personal restraint imposed after each pleadеd guilty to first degree kidnapping (with a firearm sentencing enhancement), first degree robbery, two counts of first degree burglary, and first degree unlawful possession of a firearm. Both seek dismissal of their kidnapping convictions as incidental to their robbery convictions under State v. Korum, 120 Wash.App. 686, 702-07, 86 P.3d 166 (2004), rev‘d in part and aff‘d in part, 157 Wash.2d 614, 141 P.3d 13 (2006).1 They also contend that their PRPs meet several exceptions to the one-year time-bar. Because Bybee and Durden meet no time-bar exceptions, we deny their PRPs as untimely.
FACTS
¶ 2 Michael Bybee and Ethan Durden pleaded guilty to first degree kidnapping with a firearm sentencing enhancement, first degree robbery, two counts of first degree burglary, and first degree unlawful possession of a firearm in Pierce County Superior Court cause numbers XX-X-XXXXX-X and XX-X-XXXXX-X. Bybee‘s judgment and sentence2 became final on July 17, 2000, and Durden‘s judgment and sentence3 became final on November 30, 2000, when we issued the mandates disposing of their respective direct appeals. See
ANALYSIS
I. One-Year Time Limit For Filing a PRP
¶ 3 A PRP is a form of collateral attack оn a criminal judgment and sentence.
¶ 4 Bybee and Durden filed their PRPs more than one year after their respective judgmеnts became final. Therefore, we must reject both PRPs as untimely unless they fall within an exemption or an exception to the one-year limit. They do not, however, meet any exemption or exception.
II. Facial Invalidity Exemption
¶ 5 If a petitioner proves his judgment and sentence is facially invalid or that the issuing court lacked jurisdiction, the petitioner may collaterally attack the judgment at any time.
III. Statutory Exceptions to One-year Time Limit
¶ 6 A petitioner may file an otherwise untimely PRP by demonstrating that his restraint is unlawful based solely on one or more of the following six grounds that
The time limit specified in
RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant‘s conduct;
(3) The conviction was barred by double jeopardy under
Amendment V of the United States Constitution orArticle I, section 9 of the state Constitution ;(4) The defendant pled not guilty and the evidence introduced аt trial was insufficient to support the conviction;
(5) The sentence imposed was in excess of the court‘s jurisdiction; or
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or оther order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in thе law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
A. Merger and Double Jeopardy — Korum
¶ 7 Both Bybee and Durden argue that their restraint is unlawful based on our Korum decision. They primarily claim that we held Korum‘s kidnapping cоnvictions merged with his robbery convictions because Korum‘s kidnappings were merely incidental to his robberies. Both Bybee and Durden assert that the robbery and the kidnapping to which they pleaded guilty were identical to those charged against Korum. Bybee and Durden аrgue, therefore, that (1) their respective kidnapping convictions also merge with their robbery convictions under Korum; and (2) because convicting a defendant of two merged crimes would violate double jeopardy, we must similarly vacate their kidnapping convictions under Korum. State v. Freeman, 153 Wash.2d 765, 770-73, 108 P.3d 753 (2005).
¶ 8 Based on their substantive merger/double jeopardy argument, Bybee and Durden claim to meet four statutory time-bar exceptions for filing PRPs. First, they argue that their kidnapping convictions place them in double jeopardy and, therefore, the kidnapping statute is unconstitutional as applied to them.
¶ 9 Finally, they argue that by merging co-defendant Korum‘s kidnapping and robbery jury convictions, Korum was a significant, material, and retroactive change in the law, namely a change in the interpretation of the kidnapping and robbery statutes to rеquire
¶ 10 Bybee and Durden characterize our Korum holding as merging Korum‘s jury-trial kidnapping convictions with his jury-trial robbery convictions, apparently because we held that under the facts proved at Korum‘s trial, the kidnappings were merely incidental to the robberies and, therefore, the evidence was insufficient to support kidnapping convictions separate from the rоbbery convictions. Bybee and Durden argue that their guilty-plea kidnapping convictions were identical to Korum‘s jury-trial convictions and, therefore, their kidnapping convictions similarly should merge with their robbery convictions. But Bybee and Durden misapprehend our holding in Korum. Thus, all of their сlaimed grounds for statutory exceptions to the one-year time limit fail.
¶ 11 In Korum, we dismissed several of the jury‘s kidnapping convictions because they were “incidental to the robberies” for which the jury also convicted Korum. Korum, 120 Wash.App. at 689, 86 P.3d 166. The Washington State Supreme Court affirmed our dismissаl of these kidnapping counts without substantive discussion because the State did not seek review of that part of our decision. Korum, 157 Wash.2d at 620, 623-25, 141 P.3d 13.5 Korum‘s kidnapping convictions were “incidental to the robberies” because the jury received insufficient evidence to prove kidnappings independent of and with a different purpose than the robberies.6 E.g., Korum, 120 Wash.App. at 702-03, 86 P.3d 166.
¶ 12 In Korum, we explicitly relied on State v. Green, 94 Wash.2d 216, 225-28, 616 P.2d 628 (1980), a case that applied what was then a new sufficient-evidence standard to hold that evidence of restraint (necessary to prove kidnapping) was insufficient under the faсts of that case to prove kidnapping because that same restraint was incidental to an attempted rape.7 Although Green borrowed the “incidental restraint” concept from an earlier merger case,8 it incorporated this concept into а new standard for determining sufficiency of evidence on appeal.9 Thus, as we applied Green in Korum, when the only evidence presented to the jury demonstrates that the restraint is merely incidental to completing another crime, the jury has not received sufficient evidence to convict the defendant of a separately charged kidnapping.
¶ 13 We dismissed Korum‘s kidnapping convictions because the jury received insufficient evidence of independent kidnappings distinct from the robberies, not because those convictions mergеd or violated double
B. Guilty Plea Waives Challenge to Sufficiency of Evidence
¶ 14 In his reply brief, adopted by Durden, Bybee asserts a fifth statutory exception under
¶ 15 Furthermore, a guilty plea waives or renders irrelevant all constitutional violations that occurred before the guilty plea, except those related to the circumstances of the plea or to the government‘s legal power to prosecute regardlеss of factual guilt. See Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975); State v. Saylors, 70 Wash.2d 7, 9, 422 P.2d 477 (1966); Woods v. Rhay, 68 Wash.2d 601, 606-07, 414 P.2d 601, cert. denied, 385 U.S. 905, 87 S.Ct. 215, 17 L.Ed.2d 135 (1966); In re Salter, 50 Wash.2d 603, 606, 313 P.2d 700 (1957). By pleading guilty, a defendant admits factual and legal guilt for the charged crime. E.g., United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); see also State v. Davis, 29 Wash.App. 691, 696, 630 P.2d 938 (1981). The guilty plea thus provides a sufficient and independent factual basis for conviction and punishment. See Haring v. Prosise, 462 U.S. 306, 321, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Menna, 423 U.S. at 63 n. 2, 96 S.Ct. 241. A claim that potential trial evidence, never presented because the defendant pleaded guilty, would have been constitutionally insufficient is therefore irrelevant and precluded by the guilty plea. See State v. Carrier, 36 Wash. App. 755, 757, 677 P.2d 768 (1984).
¶ 16 Bybee and Durden pleaded guilty, but they now seek the benefit of legal rulings obtained by a co-defendant who proceeded to trial. They assert thаt no published case governs such a situation. In Broce, however, the United States Supreme Court rejected a similar claim, stating, “[A] strategic miscalculation” does “not justify setting aside an otherwise valid guilty plea.” Broce, 488 U.S. at 571, 109 S.Ct. 757. This Broce principle provides additional support for our holding here. When Bybee and Durden pleaded guilty to both kidnapping and robbery, they admitted a sufficient factual basis for both charges. Whether the State‘s proof of restraint, had they gone to trial, would have been insufficient as merely incidental to the robbery under Korum, is therefore unknown and irrelevant.
¶ 17 Bybee‘s and Durden‘s guilty pleas bar them from claiming insufficient evidence based on Korum‘s incidental restraint analysis.10 Thus, Bybee and Durden do not meet their final claimed time-bar exception for PRPs based on a material, significant, and retroactive change in the law. See
¶ 18 We hold, therefore, that Bybee‘s and Durden‘s PRPs аre untimely. Accordingly, we deny their requests for relief from restraint.
We concur: BRIDGEWATER, J., and VAN DEREN, A.C.J.