In Re Stoudmire
In this personal restraint petition (PRP), we are asked to determine whether a defendant may withdraw his guilty plea when the plea form failed to inform him of the duration of mandatory community placement. Jerrod Duane Stoudmire, who pleaded guilty to several counts involving child molestation, claims that he would not have pleaded guilty had he known of the mandatory two-year term of residential placement after incarceration.
FACTS
On July 20, 1992, the State charged Stoudmire with one count of rape of a child in the second degree, under cause number XX-X-XXXXX-X. On the same day, he was charged with two counts of indecent liberties, one count of statutory rape in the second degree, one count of rape of a child in the second degree, and one count of rape of a child in the third degree, under cause number XX-X-XXXXX-X. Pursuant to a plea agreement, the prosecutor filed an amended information in the latter cause, charging one count of rape of a child in the second degree, and one count of assault in the third degree. All charges related to molesting children whom he was babysitting. The defendant entered guilty pleas to all charges.
The plea agreements stated that “[i]n addition to confinement, the judge will sentence me to community placement for at least 1 year,” and each contained language indicating that the prosecutor would recommend two years of community placement.2 Stoudmire acknowledged in court that he understood the recommendation for community placement. The presentence investigation report prepared by the Department of Corrections indicated that a two-year placement was mandatory. A copy of that report was sent to defense counsel, who acknowledged receiving it.
Because the parties had miscalculated the sentencing range and applicable offender score, Stoudmire withdrew his guilty pleas. But on September 20, 1993, Stoudmire entered guilty pleas again, this time to a second amended information charging the same crimes as the original information. By that time, he was already aware of the two-year mandatory placement.
At the sentencing hearing on September 28, 1993, the court imposed concurrent sentences totaling 198 months followed by two years of community placement. Stoudmire did not appeal, but on September 26, 1994, he filed a PRP, seeking to withdraw his plea because he was not informed of his correct offender scores or of the 15 percent limitation on earned early release time. On April 11, 1995, the Court of Appeals dismissed the petition. No appeal to this court was filed.
On January 20, 1999, Stoudmire, acting pro se, raised new issues in a second PRP. The Court of Appeals rejected the PRP, finding that he had not offered good cause for failing to raise the issues in the first PRP. This court granted discretionary review, and on August 10, 2000 granted relief on some of his claims, vacating the two convictions for indecent liberties and remanding for resentencing on some of the other convictions. In re Pers. Restraint of Stoudmire, 141 Wash.2d 342, 352-57, 5 P.3d 1240 (2000). We did not address the issue of whether Stoudmire was properly informed of the mandatory two-year community placement, because the petition was “mixed,” containing claims that were both timely and untimely under
ANALYSIS
Successive Petition
The prohibition on successive PRPs found in
[P]etitioner may resubmit this claim in a subsequent petition.
RAP 16.4(d) bars consideration of a second petition “for similar relief” without a showing of good cause. Following the definition of “similar relief” in Sanders v. United States, 373 U.S. 1, 14, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), this court in In re Personal Restraint of Haverty, 101 Wash.2d 498, 502-03, 681 P.2d 835 (1984) stated that a successive petition could be dismissed only where the prior application had been denied on grounds previously heard and determined on the merits. Since we are dismissing on procedural grounds petitioner‘s claim to withdrawal of his guilty pleas to second and third degree rape, we did not consider it on its merits.
Stoudmire, 141 Wash.2d at 350-51, 5 P.3d 1240. Thus, this PRP is not barred as a successive petition.
Time Bar Under RCW 10.73.090(1)
Motions for collateral attack, including PRPs, must normally be filed within one year of final judgment:
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.
Stoudmire first claims that his petition falls under the exception provided in
Stoudmire‘s purported change in the law results from a 1996 case in which this court held that mandatory community placement is a direct consequence of a plea; i.e., a consequence that arises from the guilty plea itself rather than from other proceedings. State v. Ross, 129 Wash.2d 279, 284, 916 P.2d 405 (1996). This court had previously held that a defendant must be informed of all direct consequences of a plea. Id. (citing State v. Barton, 93 Wash.2d 301, 305, 609 P.2d 1353 (1980)). The Ross court therefore applied Barton in holding that a defendant who is not informed of mandatory placement may withdraw his plea. Id. at 280, 916 P.2d 405.
One test to determine whether an appellate decision represents a significant change in the law is whether the defendant could have argued this issue before publication of the decision. In re Pers. Restraint of Holmes, 121 Wash.2d 327, 332, 849 P.2d 1221 (1993). One year after Ross was decided, Division Three of the Court of Appeals held that Ross did not constitute a significant change in the law because the opinion merely applied settled case law to new facts. State v. Olivera Avila, 89 Wash.App. 313, 321, 949 P.2d 824 (1997). Stoudmire claims that Olivera-Avila,
The Greening court clarified the meaning of significant change:
While litigants have a duty to raise available arguments in a timely fashion and may later be procedurally penalized for failing to do so ... they should not be faulted for having omitted arguments that were essentially unavailable at the time, as occurred here. We hold that where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a “significant change in the law” for purposes of exemption from procedural bars.
Id. at 697, 9 P.3d 206 (footnote omitted).
Ross did not “effectively overturn” a previous appellate decision, and the arguments used in the case were previously available to litigants. We therefore adhere to the holding of Olivera-Avila and hold that Ross does not represent a “significant change in the law.” Thus, this petition does not fall under the exception in
Facial Invalidity
An alternative argument made by Stoudmire is that the conviction is facially invalid.
The plea form signed by Stoudmire was approved by this court in
Due process requires that a guilty plea be knowing, intelligent, and voluntary.
Here, Stoudmire was aware of the prosecutor‘s recommendation for a two-year placement, and knew that at least one year of community placement was mandatory. Thus, unlike the defendant in Rawson, Stoudmire knew that some term of mandatory community placement would be imposed. Stoudmire nevertheless argues that due process requires notice of the range of punishment in addition to the mere fact of punishment. We disagree. The plea form gave him adequate notice that mandatory community placement applied and that the prosecutor intended to recommend two years.
Yet, even if we were to hold that the plea agreement was facially invalid, Stoudmire‘s claim still fails. Knowledge of the direct consequences of a guilty plea can be satisfied either by the plea documents or by clear and convincing extrinsic evidence. Wood v. Morris, 87 Wash.2d 501, 507, 554 P.2d 1032 (1976). While Stoudmire‘s plea form stated only that community placement was mandatory for “at least one year,” his attorney acknowledged receipt of a presentence investigation report that clearly stated the mandatory minimum term. Stoudmire
CONCLUSION
This PRP is procedurally barred under
ALEXANDER, C.J., SMITH, JOHNSON, IRELAND and OWENS, JJ., concur.
CHAMBERS, J. (concurring)
I respectfully disagree with the majority‘s position that there has been no change in the law, but nevertheless concur in the result on the grounds that the Petitioner suffered no prejudice.
Jerrod Stoudmire‘s personal restraint petition was submitted in January 1999, over five years after the judgment and sentencing, and is therefore time barred unless it falls under one of the exceptions provided in
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:....
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other 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 the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
This Court has held that “where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a `significant change in the law\’ for purposes of exemption from procedural bars.” In re Pers. Restraint of Greening, 141 Wash.2d 687, 697, 9 P.3d 206 (2000). However, the Greening court did not address the circumstances here, where the intervening opinion clarified an area of law rather than directly overturning a prior decision.
It is well established that a defendant must be informed of all direct consequences of a plea. See State v. Barton, 93 Wash.2d 301, 305, 609 P.2d 1353 (1980). In 1996, this Court held that mandatory community placement is a direct consequence of a plea and that a defendant must be informed of mandatory placement. State v. Ross, 129 Wash.2d 279, 284, 916 P.2d 405 (1996). Stoudmire relies on Ross to argue that he falls within an exception to the one year time limit.
According to the majority, Ross does not change the law, because no court had previously held that community placement was not a direct consequence. See State v. Olivera-Avila, 89 Wash.App. 313, 321, 949 P.2d 824 (1997). However, prior to Ross, there was no indication in our case law that a defendant could withdraw a plea because he lacked information about the length of community placement. We should not expect an accused to divine the course of our jurisprudence.
Although I would hold that this personal restraint petition is not time barred and that Stoudmire should thus have been allowed to withdraw his plea if he could show prejudice, I nevertheless concur with the result reached by the majority. Stoudmire has the burden of establishing a prima facie case of actual prejudice. In re Pers. Restraint of Hews, 99 Wash.2d 80, 88, 660 P.2d 263 (1983). He has not met that burden. The plea documents advised him that there would be at least one year of community placement and that the
MADSEN, J., concurs.
SANDERS, J. (dissenting)
I agree with the majority that Jerrod Stoudmire‘s personal restraint petition (PRP) is not a successive petition barred by
I. The RCW 10.73.100(6) Exception to the One-Year Statute of Limitation
If Stoudmire meets the requirements in
There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other 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 the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
Although Justice Chambers concludes Stoudmire is not time barred under
II. Retroactivity
Stoudmire relies on a rule announced in State v. Ross, 129 Wash.2d 279, 916 P.2d 405 (1996), as a significant change in the law. He must show this new rule should be applied retroactively.
Due process requires guilty pleas be voluntary, knowing, and intelligent. State v. Walsh, 143 Wash.2d 1, 7, 17 P.3d 591 (2001). A plea is not voluntary when the defendant has not been informed of a direct consequence of the plea. Ross, 129 Wash.2d at 288, 916 P.2d 405; State v. Saas, 118 Wash.2d 37, 44, 820 P.2d 505 (1991). Ross announced the rule that mandatory community placement is a direct consequence of a plea and thus must be communicated to the defendant. Ross, 129 Wash.2d at 284-87, 916 P.2d 405. Therefore, a plea violates due process when the defendant has not been informed of mandatory community placement.
Because Stoudmire can show a(1) significant change in the law, (2) material to his conviction, and (3) the changed legal standard applies retroactively, his PRP is excepted under
III. Prima Facie Prejudice
Even if he successfully jumps through this procedural hoop, a petitioner still must adequately show he has been prejudiced. Therefore we must ask whether Stoudmire has made a prima facie case of actual prejudice arising from constitutional error. See In re Pers. Restraint of Hews, 99 Wash.2d 80, 87-88, 660 P.2d 263 (1983). If not, his PRP fails. Id. If so, we then ask whether Stoudmire can prove actual prejudice by a preponderance of evidence based on the record alone. Id. If he cannot make this heightened evidentiary showing, we do not dismiss the PRP but instead remand for a reference hearing on the merits. Id. However, if he can make this showing on the record, we grant the PRP. Id. Contrary to Justice Chambers, I conclude Stoudmire has presented at least a prima facie case of actual prejudice which deserves a reference hearing.
If the defendant was not apprised of the proper sentencing consequences and states he would not have pleaded guilty had he known of them, the court should examine the record to determine whether the failure to inform was material to the plea of guilty. State v. Oseguera Acevedo, 137 Wash.2d 179, 202-03, 970 P.2d 299 (1999); compare id. at 196, 970 P.2d 299 (concluding failure to inform defendant of community placement term was not material because record showed defendant would be deported at end of prison sentence and thus no community placement would in fact ever occur) with State v. Rawson, 94 Wash.App. 293, 298, 971 P.2d 578 (1999) (concluding failure to inform defendant of one-year community placement term was material because record showed defendant would serve it); see also Ross, 129 Wash.2d at 287-88, 916 P.2d 405 (looking to record for evidence that disputes defendant‘s assertion). In Rawson, the defendant pleaded guilty to a 90 month prison sentence in exchange for pleading guilty to reduced charges. 94 Wash.App. at 294, 971 P.2d 578. A one-year mandatory community placement term was not communicated to him during the plea, and Rawson later indicated he would have not entered the plea had he known of the mandatory community placement term. Id. at 297-98, 971 P.2d 578. After examining the record, the court reversed and remanded to allow Rawson to withdraw his guilty plea because, unlike in Oseguera Acevedo, the one additional year of punishment had a true direct consequence on Rawson. Id. at 299.
Here, Stoudmire states unequivocally in an affidavit that had he known of the mandatory minimum term of two years, he would not have pleaded guilty. Had the State agreed to dismiss certain charges in exchange for the plea, i.e., a true plea “bargain,” it perhaps may be more inviting to doubt Stoudmire‘s claim that community placement was a material factor in his plea decision. However, Stoudmire did not receive any benefit in exchange for pleading guilty; he pleaded guilty to all the crimes charged. Moreover, as discussed more fully below, like in Rawson, nothing in the record contradicts Stoudmire‘s statement.
The plea forms themselves did not just fail to inform Stoudmire of the mandatory minimum two-year community placement—they misinformed Stoudmire that the mandatory
Justice Chambers also argues Stoudmire has not made a prima facie case of actual prejudice because he “acknowledged the prosecutor‘s recommendation and did not take exception to it,” and the sentence imposed was the same as the prosecutor‘s recommendation. Concurrence at 1011. However, while the prosecutor recommended two years of community placement, the recommendation does not state two years is mandatory. Thus, by virtue of receiving the recommendation alone, Stoudmire was not informed of a direct consequence of the plea, which is the requirement. See Rawson, 94 Wash.App. at 298-99, 971 P.2d 578 (finding specious State‘s argument defendant was not prejudiced because he ended up receiving same length of sentence as in prosecutor‘s recommendation); see id. (“Rawson‘s bargain was with the prosecutor, not the court, and it was for a recommendation, not a specific sentence.“). Also, at the plea hearing, the judge made it clear to Stoudmire the judge was not bound by the prosecutor‘s recommendation. See State‘s Resp. to PRP, App. L at 9-10 (Verbatim Report of Proceedings (VRP) of Second Plea Hearing); see also id. at App. H at 8 (VRP of First Plea Hearing). The judge‘s statement is reiterated expressly on the plea forms. See id. at App. F at (6)(g) (“The judge does not have to follow anyone‘s recommendation as to sentence.“); App. G (same); App. M (same); App. N (same). If anything, Stoudmire knew not to rely on the prosecutor‘s recommendation.
Although never reaching the “actual prejudice” requirement, the majority asserts Stoudmire was on notice of the mandatory term due to receiving a presentence investigation (PSI). See majority at 1010. However the PSI pertained to the first plea agreement which was vacated on other grounds. It also addressed charges different from those Stoudmire pleaded guilty to the second time. Lastly, all plea forms contained the misinformation about the mandatory minimum community placement. Thus, the PSI in the first plea did not even prompt the judge or the State to correct the error. See Rawson, 94 Wash.App. at 299, 971 P.2d 578 (“A strong inference can be made that if the State and the court were not informed of the mandatory term, then neither was the defendant.“).
The trial court at the plea hearing never informed Stoudmire of the two-year mandatory community placement. The judge inquired into whether Stoudmire understood the prosecutor‘s recommendation and the plea form itself. As noted above, the recommendation should not be a source of a defendant‘s proper legal understanding of the direct consequences of a plea. Moreover, the plea form misadvised Stoudmire of the mandatory term.
Finally, on a purely syllogistic note, Stoudmire is able to show actual prejudice. As
IV. Conclusion
For these above reasons, I concur with Justice Chambers’ conclusion that Stoudmire can take exception to the one-year PRP filing deadline pursuant to
I therefore dissent.