In re Personal Restraint Petition of DANIEL J. STOCKWELL
No. 86001-7
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JAN 23 2014
MADSEN, C.J.
En Banc
MADSEN, C.J.—Petitioner Daniel Stockwell seeks to withdraw his guilty plea to a 1986 charge of statutory rape in the first degree. Stockwell‘s plea statement and judgment and sentence misstated the statutory maximum sentence. We hold that in a personal restraint petition (PRP), a petitioner must show actual and substantial prejudice in a challenge to a guilty plea based on such a misstatement. Because Stockwell fails to make this showing, we affirm the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In 1985, Daniel Stockwell was convicted of indecent liberties and given a special sex offender sentencing alternative (SSOSA). During his required outpatient treatment, he admitted to having sexual contact with a minor. Subsequently, he was charged with one count of statutory rape in the first degree, which he pleaded guilty to on July 29, 1986. His plea form stated the prosecutor would recommend an exceptional sentence
Stockwell received a SSOSA exceptional sentence downward, including 24 months of outpatient treatment and 12 months of community supervision. He completed the terms of his sentence and was discharged on October 25, 1989.
Meanwhile, the legislature enacted a one year time limit on collateral attacks of criminal convictions, which became effective on July 23, 1989.
In 2004, Stockwell was convicted of first degree child molestation and attempted first degree child molestation. The trial court imposed a persistent offender sentence of life without the possibility of early release, relying on the earlier convictions. Stockwell subsequently filed a PRP challenging the 1986 judgment and sentence. He first
Stockwell filed a motion for discretionary review in this court, which was stayed pending In re Personal Restraint of McKiearnan, 165 Wn.2d 777, 203 P.3d 375 (2009). After McKiearnan, the matter was referred to a department of the court, which granted review and remanded to the Court of Appeals for reconsideration in light of McKiearnan.
On remand, the Court of Appeals determined that Stockwell‘s petition was not time barred because DOC failed to provide notice of the time limit. In re Pers. Restraint of Stockwell, 161 Wn. App. 329, 334, 254 P.3d 899 (2011). Considering the merits, the court held that although Stockwell demonstrated a constitutional error based on misinformation of the statutory maximum, he failed to show resulting prejudice. Stockwell then filed a motion for discretionary review in this court. This motion was stayed pending In re Personal Restraint of Coats, 173 Wn.2d 123, 267 P.3d 324 (2011). Following Coats, the court granted review.
ANALYSIS
Before addressing Stockwell‘s substantive arguments, we must determine whether Stockwell‘s petition is time barred. “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
Stockwell‘s petition was filed over two decades after his judgment became final. He also received an exceptional sentence downward, a legal sentence both under the erroneous maximum and the correct legal maximum. Thus, his sentence was facially valid and time barred.
Stockwell, however, argues
Here, notices were not posted until after Stockwell was discharged. The State argues the act of posting notices alone is sufficient to meet the statutory requirements under In re Personal Restraint of Runyan, 121 Wn.2d 432, 453, 853 P.2d 424 (1993). In Runyan, this court held the time bar applied to a petitioner on parole who regularly
Turning to the merits of the petition, Stockwell contends that misinformation regarding the legal maximum sentence renders his plea involuntary, violating the due process clause of the United States and Washington Constitutions. In light of this error, he argues he need not show actual and substantial prejudice because an involuntary plea creates a presumption of prejudice in a direct appeal and that same standard also applies in a PRP.
Where we have addressed the standards in a direct appeal, we have stated that “[d]ue process requires an affirmative showing that a defendant entered a guilty plea intelligently and voluntarily.” State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996) (citing State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980)). A guilty plea may be considered involuntary when it is based on misinformation regarding a direct consequence of the plea, which includes the statutory maximum. State v. Mendoza, 157 Wn.2d 582, 591, 141 P.3d 49 (2006) (“a guilty plea may be deemed involuntary when 1 The State contends that the Court of Appeals exceeded the scope of our remand order by reassessing its prior decision on the issue of notice. While we remanded for reconsideration in light of McKiearnan, which involved facial invalidity, nothing in the order precluded review of the timeliness issue. Additionally,
We have acknowledged that a petitioner may seek to withdraw a plea on direct appeal where the defendant has been misinformed of the maximum sentence. See, e.g., Mendoza, 157 Wn.2d at 592; Weyrich, 163 Wn.2d at 556; Walsh, 143 Wn.2d at 10. For example, in Mendoza, a miscalculated offender score resulted in a lower range than indicated in the plea agreement. Id. at 584-85. During sentencing proceedings, the State explained the error and requested a lower sentence within the correct range. Id. Mendoza moved to withdraw his plea on grounds unrelated to the erroneous score. Id. at 585. The sentencing court rejected Mendoza‘s motion. Id. On review, this court stated that “[a]bsent 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.” Id. at 591. However, Mendoza waived his right to challenge the plea as involuntary because he
Similarly, in Weyrich, a plea statement and judgment and sentence mistakenly described one of the charges as having a maximum sentence of five years, when in fact the maximum was 10 years. 163 Wn.2d at 556. Despite the error, Weyrich was sentenced within the correct range. Id. Prior to sentencing, Weyrich moved to withdraw his pleas, which he argued were not knowingly, voluntarily, and intelligently made. Id. The trial court denied the motion and the Court of Appeals affirmed. State v. Weyrich, noted at 137 Wn. App. 1011 (2007). We reversed the Court of Appeals and noted that “[t]he State‘s argument that the error did not actually affect Weyrich‘s decision to plead guilty requires the sort of subjective hindsight inquiry into Weyrich‘s decision of which Mendoza and Isadore disapprove.”2 Weyrich, 163 Wn.2d at 557.
Here, Stockwell‘s judgment and sentence did not reflect the correct statutory maximum of life imprisonment. On direct appeal this error would be presumed prejudicial and, unless waived, would support Stockwell‘s motion to withdraw his plea. The issue here is whether Stockwell is entitled to the same presumption of prejudice on collateral review or whether he bears the burden to show the error caused actual and substantial prejudice.
The court continued its course correction in In re Personal Restraint of St. Pierre, 118 Wn.2d 321, 823 P.2d 492 (1992). Prior to St. Pierre, in several cases, the court presumed prejudice on collateral review when the error would never be harmless on direct appeal. See State v. Kitchen, 110 Wn.2d 403, 413, 756 P.2d 105 (1988); In re Pers. Restraint of Boone, 103 Wn.2d 224, 233, 691 P.2d 964 (1984); In re Pers. Restraint of Gunter, 102 Wn.2d 769, 774, 689 P.2d 1074 (1984); In re Pers. Restraint of Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983). In Richardson, the error at issue was a conflict of interest arising from Richardson‘s attorney‘s representation of a witness who was called at the trial. Id. at 678. There, this court acknowledged that ordinarily one raising an error in a PRP must also demonstrate prejudice. Id. at 679. However, under the facts, we concluded that the error, if proved, would provide automatic proof of the prejudice. Id. In Boone, we interpreted Richardson as suggesting that certain constitutional errors that are never harmless on direct will be presumed prejudicial in a PRP. Boone, 103 Wn.2d at 233 (“This court has recently held that prejudice to a personal restraint petitioner will be presumed for certain types of constitutional error. In Re Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983).“).
Retreating from the broad holding in Boone, we stated in St. Pierre that “[i]n dicta, we have previously suggested constitutional errors which can never be considered harmless on direct appeal will also be presumed prejudicial for the purposes of personal
Unlike the error in Richardson, deprivation of counsel, the error here is a misstatement of sentencing consequences. Following St. Pierre, this court has addressed the burden to show actual and substantial prejudice arising from an incorrect statement of sentencing consequences. In In re Pers. Restraint of Fawcett, 147 Wn.2d 298, 53 P.3d 972 (2002), the petitioner argued that his guilty plea was involuntary because the plea form erroneously implied he could receive a one year community placement term when the law in fact required two. Id. at 299-300. Fawcett violated the conditions of his community placement two months into his term, which resulted in revocation of his SSOSA. Id. at 300. This court held that despite misinformation about the term of community placement, the petitioner failed to show actual and substantial prejudice 3 Justice Gordon McCloud‘s concurrence contends we have used St. Pierre to adopt a “one-size-fits-all” approach whereby all errors must be supported by actual and substantial prejudice. Concurrence at 4. This is incorrect. To the contrary, we recognize that not all errors that are per se prejudicial on direct review will also be per se prejudicial on collateral review.
We adopt St. Pierre insofar as it rejected a categorical approach. St. Pierre does speak of errors that “can never be considered harmless on direct appeal“—a category that would include the misstatement of Stockwell‘s statutory maximum. 118 Wn.2d at 328.
In In re Personal Restraint of Isadore, 151 Wn.2d 294, 88 P.3d 390 (2004), we again acknowledged the burden to show actual and substantial prejudice in a PRP but declined to impose the burden where it would not further the goals of finality. In Isadore, the petitioner pleaded guilty after being told that he would not face community placement as a consequence of his plea. Id. at 297. Over a year later, the prosecutor‘s office was notified that community placement was statutorily required and so the petitioner‘s sentence was amended to add community placement. Id. The petitioner filed a PRP seeking enforcement of the original plea agreement. Id. On review, this court acknowledged the burden on the petitioner to show prejudice. However, because Isadore did not have a prior opportunity for judicial review, the court applied the standard in In re Personal Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994), and only required Isadore to show unlawful restraint.
Against this backdrop, Stockwell makes several arguments in support of his claim that he is not required to show that he suffered actual and substantial prejudice as a result of the misstatement of the maximum sentence. First, he says that Isadore and In re Pers. Restraint of Bradley, 165 Wn.2d 934, 205 P.3d 123 (2009), acknowledge that certain errors on direct appeal are presumed prejudicial in a PRP. We disagree. As mentioned earlier, the court in Isadore did discuss the actual and substantial standard but held that the Cashaw standard applied instead.4 In Bradley the court cited to Isadore. The issue of whether errors that are presumed prejudicial on direct appeal are presumed prejudicial in a PRP was not before the court in either of these cases. As the Court of Appeals stated in ETCO, Inc. v. Department of Labor & Industries, 66 Wn. App. 302, 307, 831 P.2d 1133 (1992):
Where the literal words of a court opinion appear to control an issue, but where the court did not in fact address or consider the issue, the ruling is not dispositive and may be reexamined without violating stare decisis in the same court or without violating an intermediate appellate court‘s duty to accept the rulings of the Supreme Court. “An opinion is not authority for what is not mentioned therein and what does not appear to have been suggested to the court by which the opinion was rendered.” Continental Mut. Sav. Bank v. Elliot, 166 Wash. 283, 300, 6 P.2d 638, 81 A.L.R. 1005 (1932).
(Footnote omitted.)
Stockwell also argues that older cases, Kitchen, Boone, Richardson, and Gunter, support his claim that he is not required to meet the actual and substantial prejudice standard. As discussed above, this court specifically rejected the broad language in these cases that would hold that “constitutional errors which can never be considered harmless on direct appeal will also be presumed prejudicial for the purposes of personal restraint 4 Arguably Isadore‘s discussion of the actual and substantial standard is dicta. However, even if it is essential to our holding, the discussion was in response to the State‘s argument that Isadore was required to show that misinformation about the direct consequences of his plea was material to his decision to plead guilty. The court was not answering the question posed here: is an error which is presumed prejudicial on direct review also presumed prejudicial on collateral review.
Stockwell also argues that court rules support the conclusion that prejudice resulting from misinformation of a sentencing consequence argued on direct appeal is sufficient to meet actual and substantial prejudice in a PRP. He contends that the manifest injustice requirement in
First, Stockwell‘s argument fails to recognize that
Finally, Stockwell argues that we are precluded from applying the actual and substantial prejudice standard because it would require a materiality inquiry that was rejected under Isadore, 151 Wn.2d at 302. See also Bradley, 165 Wn.2d at 940. In Isadore, we declined to adopt a materiality test that would consider how material an error was to a defendant‘s decision to plead guilty. 151 Wn.2d at 302.9 However, a materiality inquiry, involving a hindsight review of defendant‘s motivations, is distinct from consideration of actual and substantial prejudice, which looks to the practical effects of a sentence. Considerations of actual and substantial prejudice do not require insight into 9 It should be noted that even this court‘s views on materiality have changed over time. See State v. Oseguera Acevedo, 137 Wn.2d 179, 203, 970 P.2d 299 (1999) (plurality opinion) (considering whether the facts represented a “material factor” to the defendant‘s plea of guilty).
We do recognize that there may be some confusion arising from Bradley because there the court relied on direct appeal cases and on Isadore without discussing the prejudice standard imposed on a personal restraint petitioner. We take this opportunity to clarify that a PRP petitioner seeking to withdraw a plea based on a misstatement of the statutory maximum is required to satisfy the actual and substantial prejudice standard on collateral attack.
We next consider whether Stockwell was actually and substantially prejudiced by the misstatement of the maximum sentence.
Stockwell does not argue that he was actually and substantially prejudiced, nor do the facts suggest that he was. First, the sentence he received was statutorily authorized. Although the judgment and sentence misstated the maximum, he received an exceptional downward sentence, below both the stated maximum and the actual maximum. Moreover, his sentence was completed over two decades ago. See State v. Hardesty, 129 Wn.2d 303, 313-14, 915 P.2d 1080 (1996) (discussing double jeopardy as applied to sentencing and acknowledging that an erroneous sentence that has been fully served precludes imposition of a heightened sentence where the defendant acquires a legitimate expectation of finality). Under the facts here, Stockwell has failed to meet his burden to show that the error complained of resulted in actual and substantial prejudice.
We hold that Stockwell was required to demonstrate actual and substantial prejudice resulting from the erroneous misstatement of the statutory maximum and that he has failed to meet this burden. We affirm the Court of Appeals.
Madsen, C.J.
WE CONCUR:
But I disagree with the two pillars of the majority‘s analysis. First, the majority completely redefines what “prejudice” means in this context. The majority holds that in the plea-bargain context, prejudice means only a sentence that is longer than the statutory maximum or longer than the maximum of which the petitioner was advised. But the due process clause actually guarantees a procedure that allows the defendant to make a knowing, intelligent, and voluntary plea decision. “Prejudice,”
ANALYSIS
The majority‘s principal error is totally redefining what “prejudice” means in this context. The majority asserts that erroneous misadvice in the plea-bargain context does not cause prejudice unless the defendant gets a sentence higher than the maximum, majority at 15, or higher than what the plea agreement said, id. at 14. The majority even asserts that this prejudice inquiry “do[es] not require insight into
This flatly contradicts state and federal due process clause jurisprudence. When we are dealing with the voluntariness of a plea, an error causes harm if it undermines the voluntariness of the decision to plead guilty—the process which is supposed to ensure a knowing, intelligent, and voluntary decision, not a particular sentence. This is true under our seminal decisions on this topic. In re Pers. Restraint of Hews, 108 Wn.2d 579, 594, 597, 741 P.2d 983 (1987) (Hews II) (court must examine “‘totality of circumstances‘” to determine whether petitioner understood nature of charge, elements, and whether Hews “had discussed with his attorney alternative courses of action“); In re Pers. Restraint of Mendoza Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987).1 This is true under the United States Supreme Court‘s seminal decisions on this topic. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). This is true under United States Supreme Court decisions on the related topic of what constitutes ineffective assistance of Although our recent decisions on this topic apply the prejudice inquiry applicable on direct appeal (as opposed to PRP), they clearly state that the due process clause protects the voluntariness of the decision—the cost-benefit analysis—involved in the guilty plea process, regardless of the ultimate sentence imposed. See State v. Weyrich, 163 Wn.2d 554, 556-57, 182 P.3d 965 (2008); State v. Mendoza, 157 Wn.2d 582, 587, 590-91, 141 P.3d 49 (2006); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297-98, 88 P.3d 390 (2004).
The majority‘s approach departs from this constitutionally required focus on the voluntariness of the plea procedure. This flouts state and federal constitutional law. It is also illogical: since the defendant‘s only claim is that his plea was involuntary, that should be the center of the court‘s inquiry.
The majority supports its analysis with dicta from St. Pierre about a heightened prejudice standard ostensibly applicable in most—though St. Pierre did not say all2—PRPs. The majority suggests that St. Pierre established a one-size-fits-all “actual and substantial prejudice” prerequisite to relief for all PRPs.3
The majority does accurately report some of St. Pierre‘s discussion. In the 20 years since St. Pierre was decided, however, its dicta has been substantially eroded. In fact, contrary to St. Pierre‘s dicta, there is no single rule that personal restraint petitioners must show actual and substantial prejudice to obtain relief in all cases. Rather, under our controlling precedent, I identify four categories of PRPs triggering distinct analyses of prejudice.
First, we have PRPs alleging constitutional errors of the “trial”4 type (as opposed to the “structural” type). In those cases, the petitioner must generally prove actual and substantial prejudice by a preponderance of the evidence to prevail. E.g., In re Pers. Restraint of Haverty, 101 Wn.2d 498, 504, 681 P.2d 835 (1984); St. Pierre, 118 Wn.2d at 329.
Next, we have PRPs raising claims of nonconstitutional error. In those cases, the petitioner must prove a fundamental defect resulting in a complete miscarriage of justice, also by a preponderance of the evidence, to prevail. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005) (citing In re Pers. Restraint of Isadore, 151 Wn.2d 298, 88 P.3d 390 (2004)),
In addition, this court has clearly recognized a category of PRP where the petitioner need not prove harm in addition to that which is inherent in proof of the error itself. This category includes claims of ineffective assistance of counsel and prosecutorial withholding of material exculpatory evidence. In re Pers. Restraint of Crace, 174 Wn.2d 835, 843, 280 P.3d 1102 (2012) (explaining that claims of ineffective assistance of counsel and prosecutorial withholding of exculpatory evidence “share [an] important characteristic . . . [in that] a petitioner who proves a violation [necessarily] shows prejudice,” without any further, secondary requirement of additional prejudice on collateral review).5 This category makes
Then there are PRPs raising claims of so-called “structural” error. Structural errors do not really trigger a presumption of harm at all. Instead, they so fundamentally undermine the adversarial process that they “defy analysis by ‘harmless-error’ standards.” Fulminante, 499 U.S. at 309 (Rehnquist, C.J., concurring); see also United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n. 4, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). “Structural” errors resulting in automatic reversal on direct appeal include courtroom closure, State v. Wise, 176 Wn.2d 1, 15, 288 P.3d 1113 (2012); complete lack of counsel, Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); judicial bias, Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927); race discrimination in grand jury selection, Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); and defective reasonable doubt instructions, Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). Our court has treated some errors of this sort as requiring automatic reversal when raised in a collateral attack, though without using the label “structural” error. E.g., Richardson, 100 Wn.2d at 673-74. This category makes sense because, as discussed above, structural defects “defy analysis by ‘harmless-error’ standards.” Fulminante, 499 U.S. at 309 (Rehnquist, C.J., concurring).
To be sure, this court has not yet decided whether all structural errors, or to use different language, all errors that result in automatic reversal on direct appeal without proof of prejudice, must also result in automatic reversal in a PRP. But it has certainly held that some do. See Kitchen, 110 Wn.2d at 413 (“[t]hose types of constitutional errors which can never be considered harmless on direct appeal will also be presumed prejudicial for purposes of personal restraint petitions“). This court has, in effect, treated double jeopardy clause violations as falling into this category. In re Pers. Restraint of Orange, 152 Wn.2d 795, 820-22, 100 P.3d 291 (2004); In re Pers. Restraint of Francis, 170 Wn.2d 517, 524, 242 P.3d 866 (2010); State v. Mutch, 171 Wn.2d 646, 663-64, 254 P.3d 803 (2011). It has ruled that the failure to require the State to prove its case beyond a reasonable doubt falls into this category. Gunter, 102 Wn.2d at 774. It has placed conflict of interest resulting in deprivation of counsel into this category. Richardson, 100 Wn.2d at 679 (counsel‘s actual conflict of interest falls into this category; query whether proof that the conflict was actual rather than potential in fact places this in the category with Crace-type errors).
Into which category does the plea-advice error alleged in this case fall? On direct appeal, we have presumed prejudice from an error in counsel‘s advice so apparently important that it could be presumed to have affected the knowing, intelligent, and voluntary nature of the plea. State v. Weyrich, 163 Wn.2d 554, 557, 182 P.3d 965 (2008); State v. Mendoza, 157 Wn.2d 582, 590, 141 P.3d 49 (2006); Isadore, 151 Wn.2d at 302.6 On PRP, however, we traditionally put such errors into the first category described above, for constitutional errors of the “trial type,” and required some proof of an effect on the petitioner‘s decision about whether to plead guilty. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983) (Hews I) (“An invalid plea of guilty constitutes actual prejudice.“); Hews II, 108 Wn.2d at 588-89 (“actual prejudice” established where petitioner shows that, when he pleaded guilty, “he did not possess the requisite understanding of the law in relation to the facts” (citing Hews I, 99 Wn.2d at 87)). When the petitioner claimed such prejudice, and the State disputed the existence of prejudice, the petitioner would get a reference hearing to resolve that factual issue. Hews I, 99 Wn.2d at 88 (citing RAP 16.11(a), 16.12). Cf. Isadore, 151 Wn.2d at 300 (where prosecutor neglected to inform petitioner of a direct consequence of his plea—a mandatory one-year community placement—petitioner was not required to show that the misinformation was
The one exception is In re Personal Restraint of Bradley, 165 Wn.2d 934, 205 P.3d 123 (2009). In Bradley, we held that the petitioner was entitled to withdraw his plea where the prosecution failed to advise him that his juvenile convictions “should have ‘washed out’ of his offender score,” id. at 938, because the court “will not speculate” about that misadvice‘s actual effect but will instead presume that the misadvice caused the plea. Id. at 940 (citing Isadore, 151 Wn.2d at 302). The Bradley decision simply cited Isadore for this rule without noting that Isadore was not subject to regular PRP requirements, given the peculiar procedural posture of that case.7 Bradley is therefore out of step with Hews I, Hews II, Montoya, and their progeny. Instead, even though we presume prejudice on appeal from misadvice like the misadvice in this case, we require a petitioner to show prejudice to prevail in a PRP.
But the majority‘s erroneous redefinition of “prejudice” is completely out of step with all of our prior case law and all of the United States Supreme Court‘s prior
In sum, the majority has watered down the “prejudice” standard for this category of constitutional error. Its analysis is not compelled by precedent. In fact, it conflicts with our seminal PRP plea-advice cases and with state and federal authority holding that the due process clause protects the plea process, not just the plea outcome. The majority instead cites St. Pierre. But it cites St. Pierre‘s dicta—much of it now discredited—rather than St. Pierre‘s holding.8
Under our prior cases, a personal restraint petitioner can prevail only if he or she shows (1) a constitutional error that caused actual and substantial prejudice for constitutional errors of the “trial” type; (2) a nonconstitutional error that inherently caused a complete miscarriage of justice; (3) a limited number of constitutional errors where prejudice inheres in proof of the error itself—Crace explicitly placed Strickland9 and Brady10 errors into this category; or (4) structural errors (e.g., biased judge, courtroom closure, complete deprivation of counsel, improper beyond a reasonable doubt instruction) resulting in automatic reversible error. Here, Stockwell raises a constitutional error of the first type. He pleaded guilty after being erroneously advised that he faced a maximum sentence of 20 years, when the maximum sentence was actually imprisonment for life. In re Pers. Restraint of Stockwell, 161 Wn. App. 329, 331-32, 254 P.3d 899 (2011). Stockwell did not receive a sentence as high as either 20 years or life; he received a 24 month special sex offender sentencing alternative (SSOSA) sentence. He must therefore prove actual and substantial prejudice to his right to a knowing, intelligent, and voluntary plea-bargain process to prevail on his PRP. He need not prove a longer sentence
He has not met his burden. He has made no allegation of prejudice at all. I would therefore deny Mr. Stockwell‘s PRP because he fails to meet the actual and substantial prejudice standard. I would not silently overrule the definition of prejudice that we adopted as far back as Hews I and Montoya, as the majority seems to do. I would not silently overrule our prior precedent retaining automatic reversible error on PRPs for certain especially intractable errors, e.g., Richardson, Orange, Francis, Gunter, Mutch, as the majority does. And I would not place this constitutional error into the nonconstitutional error category, as the majority does.
Gordon McCloud, J.
Stephens, J.