Clint L. POWELL, individually, Appellant,
v.
ASSOCIATED COUNSEL FOR the ACCUSED, aka ACA, a Washington State Corporation, Todd M. Gruenhagen and Jane Doe Gruenhagen, husband and wife and the marital community composed thereof, George Eppler and Jane Doe Eppler, husband and wife and the marital community composed thereof, John Doe 1-4, Respondents.

No. 52614-6-I.

Court of Appeals of Washington, Division 1.

February 14, 2005.

Larry J. Landry, Attorney at Law, Seattle, WA, for Appellant.

Christopher H. Howard, Holland Knight LLP, Seattle, WA, for Respondents.

*272 KENNEDY, J.

Clint Powell appeals the trial court's order granting a defense CR 12(b)(6) motion and dismissing his legal malpractice claim against the attorneys who represented him in a criminal matter because he failed to allege and could not prove his innocence after pleading guilty to a crime. Powell pleaded guilty to solicitation to deliver a material in lieu of a controlled substance, in violation of RCW 69.50.401(c). This offense is a gross misdemeanor, for which the maximum term of confinement is one year. But at the sentencing hearing, Powell was erroneously sentenced for a Class C felony to 38.25 months of confinement. When he discovered the error, Powell filed a personal restraint petition. Our Supreme Court granted the petition because the trial court had imposed a sentence beyond its authority, and remanded for resentencing for the gross misdemeanor. But by the time that Powell was released from prison, he had been incarcerated for over 20 months. On these facts, we conclude that the innocence requirement articulated in Falkner v. Foshaug 108 Wash.App. 113, 29 P.3d 771 (2001) and its progeny Ang v. Martin, 118 Wash.App. 553, 76 P.3d 787 (2003), review granted, 151 Wash.2d 1039, 95 P.3d 352 (2004), and Owens v. Harrison, 120 Wash.App. 909, 86 P.3d 1266 (2004) does not require dismissal of the lawsuit as a matter of law. Accordingly, we reverse the trial court's order and reinstate the legal malpractice lawsuit.

I

Attorneys Todd Gruenhagen and George Eppler of Associated Counsel for the Accused represented Clint Powell in the criminal matter. After his release from unlawful restraint, Powell filed a complaint against Gruenhagen, Eppler, and Associated Counsel for the Accused, alleging legal malpractice and claiming damages for the amount of time that he was incarcerated in excess of the 12 months allowed by law. The defendants moved to dismiss under CR 12(b)(6), arguing that Powell could not maintain a criminal legal malpractice claim because he failed to allege and could not prove his innocence as required by Falkner v. Foshaug. The trial *273 court granted the defense motion, dismissing Powell's complaint with prejudice. Powell appeals, arguing that Falkner and its progeny are distinguishable.

II

This court reviews de novo a trial court's decision to dismiss a complaint under CR 12(b)(6) for failure to state a claim for which relief may be granted. Reid v. Pierce County, 136 Wash.2d 195, 200-01, 961 P.2d 333 (1998). Dismissal is appropriate "only if it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery." Tenore v. AT & T Wireless Serv., 136 Wash.2d 322, 329-30, 962 P.2d 104 (1998) (citations omitted). When reviewing a dismissal under CR 12(b)(6), the plaintiff's allegations are presumed to be true and the court may consider hypothetical facts not included in the record. Id. at 330, 962 P.2d 104.

In Falkner v. Foshaug this court held that in addition to the elements of a civil legal malpractice claim, a plaintiff alleging legal malpractice occurring during representation in a criminal matter must (1) establish postconviction relief and (2) demonstrate his innocence by a preponderance of the evidence. The innocence requirement is based on a public policy determination that "`[r]egardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct consequence of his own perfidy,' and thus, cannot be the basis for civil damages." Falkner, 108 Wash.App. at 120, 29 P.3d 771 (alteration in original) (footnote omitted) (quoting Wiley v. County of San Diego, 19 Cal.4th 532, 79 Cal.Rptr.2d 672, 966 P.2d 983, 987 (1998)).

Requiring a defendant to prove by a preponderance of the evidence that he is innocent of the charges against him will prohibit criminals from benefiting from their own bad acts, maintain respect for our criminal justice system's procedural protections, remove the harmful chilling effect on the defense bar, prevent suits from criminals who "may be guilty, [but] could have gotten a better deal," and prevent a flood of nuisance litigation.

108 Wash.App. at 123-24, 29 P.3d 771 (footnotes omitted) (quoting in part Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 565 (1993)).

Powell contends that the innocence requirement in Falkner should not apply here because he is not alleging that his attorneys' actions caused him to be convicted of a crime that he did not commit, but that by failing to meet the requisite standard of care, his attorneys caused him to serve over 8 months in prison beyond the maximum sentence for his crime. To support his contention that application of the rule to his case would be unfair, Powell refers to authorities considered in Falkner: Gebhardt v. O'Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994), Krahn v. Kinney, 43 Ohio St.3d 103, 538 N.E.2d 1058 (1989), and Susan M. Treyz, "Criminal Malpractice: Privilege of the Innocent Plaintiff?", 59 Fordham L.Rev. 719 (1991). Falkner, 108 Wash.App. at 119 n. 11, 29 P.3d 771 (noting Michigan and Ohio courts refused to impose innocence requirement where defense counsel failed to convey immunity offer and plea offer and citing Treyz article as example of commentators who have "criticized the innocence requirement as unnecessary and unfair"); but see Owens v. Harrison, 120 Wash.App. 909, 914, 86 P.3d 1266 (2004) (noting that Michigan and Ohio cases did not address public policy rationale supporting holding in Falkner).

The Respondents point out that in the Wiley opinion, cited repeatedly with approval in Falkner, the California court reviewed the difference between criminal and civil legal malpractice claims and the public policy rationale for the innocence requirement in criminal malpractice claims, and observed that where criminal defense attorneys are negligent, whether at trial, or concerning sentencing matters or plea bargaining, "postconviction relief will provide what competent representation should have afforded in the first instance: dismissal of the charges, a reduced sentence, an advantageous plea bargain." Wiley, 19 Cal.4th at 542-43, 79 Cal.Rptr.2d 672, 966 P.2d 983. "If the defendant has in fact committed a crime, the remedy of a new trial or other relief is sufficient reparation in light of the countervailing public policies *274 and considering the purpose and function of constitutional guaranties." Id. at 543, 79 Cal.Rptr.2d 672, 966 P.2d 983. Because by pleading guilty, Powell admitted that he is guilty of a crime, respondents argue that his remedies for any attorney error at sentencing are limited to those available within the criminal justice system such as the personal restraint petition by which Powell won his release from unlawful restraint.

Although we have no particular quarrel with the innocence requirement generally, we agree with Powell that its application in this case is unfair. And we observe that postconviction relief, in this instance, has not entirely provided Powell with what competent representation should have afforded in the first instance. Powell has served substantially more time than the trial court was authorized to impose for a gross misdemeanor. We conclude that blind application of the innocence requirement to the facts of this case would go beyond the public policy to be served by the innocence requirement.

The policy to be served is that regardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct result of his own perfidity, and no one should be permitted to take advantage of his own wrong. Wiley, 19 Cal.4th at 539, 79 Cal.Rptr.2d 672, 966 P.2d 983. But "an innocent person wrongfully convicted due to inadequate representation has suffered a compensable injury because in that situation the nexus between the malpractice and palpable harm is sufficient to warrant a civil action, however inadequate, to redress the loss." Id. (citation omitted).

Powell's situation is closer to that of an innocent person wrongfully convicted than of a guilty person attempting to take advantage of his own wrongdoing. Powell has no quarrel with having been incarcerated for the period of time justified by the gross misdemeanor that he pleaded guilty to having committed. In sum, we decline to extend the innocence requirement to these facts, for to do so would not serve the public policy pronounced in Wiley, and adopted in Falkner and its progeny here in Washington.

Reversed and remanded for reinstatement of Powell's legal malpractice claim.

WE CONCUR: BAKER, J. and BECKER, J.