112 Wash. App. 749 | Wash. Ct. App. | 2002
Lead Opinion
Peter T. Littlefair, a resident alien, pleaded guilty after his attorney struck a portion of the plea form that would have told him deportation was a possible consequence. Relying on RCW 10.40.200, he moved to set aside his plea. The trial court denied his motion, but we reverse and remand.
Littlefair was born in Canada but raised in New Jersey, where his parents still reside. He is a resident alien but not a United States citizen.
In December 1995, the police searched Littlefair’s house and found growing marijuana plants. In March 1996, the State charged Littlefair with manufacturing marijuana. At all times thereafter, Littlefair had counsel.
In August 1996, during a pretrial hearing on a motion to suppress, Littlefair testified in open court “that he was born in Canada, and raised in New Jersey.”
On October 17, 1996, Littlefair pleaded guilty and was sentenced. The court imposed two days in jail, 240 hours of community service, two years of supervision, and about $3200 in costs and fines.
Before October 17, 1996, Littlefair’s attorney prepared a written plea form. The form had six pages and 12 numbered sections. Section 6 was subdivided into 16 lettered subsections, each of which described one or more consequences of pleading guilty.
(a) The crime with which I am charged carries a maximum sentence of 5 years imprisonment and/or $ 10,000.00 fine. The standard sentencing range is from 0 months to 3 months confinement....
(b) The standard sentencing range is based on the crime charged and my criminal history. . . .
(c) The prosecuting attorney’s statement of my criminal history is attached to this agreement. . . .
(d) If I am convicted of any new crimes before sentencing, or if any additional criminal history is discovered, both the standard range and the prosecuting attorney’s recommendation may increase. . . .
(e) In addition to sentencing me to confinement for the standard range, the judge will order me to pay $_ as a victim’s compensation fund assessment. . . .
(f) The prosecuting authority will make the following recommendation to the Judge: See Plea Agreement attached. . , .
(g) The judge does not have to follow anyone’s recommendation as to sentence. . ..
The crime of_has a mandatory minimum sentence of_years of total confinement. The law does not allow any reduction of this sentence. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)
X(XK The sentence imposed on Counts_will run consecutively unless the judge finds substantial and compelling reasons to do otherwise. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)
In addition to confinement, the judge will sentence me to community placement for at least one year. ... (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)
(k) The judge may sentence me as a first time offender instead of giving a sentence within the standard range if I qualify under RCW 9.94A.030(20). ... (If not applicable, this
52X)X This plea of guilty will result in revocation of my privilege to drive. ... (If not applicable, this paragraph should be stricken and initialed by the Defendant and the judge.)
If this crime involves a sexual offense, prostitution, or a drug offense associated with hypodermic needles, I will be required to undergo testing for the human immunodeficiency (AIDS) virus. (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)
Xf&X If I am not a citizen of the United States, a plea of guilty to an offense punishable as a crime under the state law is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
XQ5JC If this crime involves a sex offense or a violent offense, I will be required to provide a sample of my blood for . . . DNA identification analysis. ... (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)
If this crime involves a sex offense, I will be required to register with the sheriff of the county where I reside.... (If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.)[
On October 17,1996, about 15-20 minutes before he went into court, Littlefair met an associate of his attorney in the hallway of the courthouse. He had not met the associate before. The associate handed him the written plea form and told him to read it. Littlefair had not seen the plea form before, and the associate did not discuss it with him. Littlefair read the form as instructed — but not the eight subsections that had been marked out. Thinking that those eight did not apply to him, he “just skipped over them” and “read the ones that would be pertaining to the plea bargain.”
During the plea proceeding itself, no one followed the parenthetical instructions in subsections (6)(h) through (6)(m) and (6)(o) through (6)(p). Neither Littlefair nor the judge initialed the subsections that had been stricken, and no one noted that subsection (6)(n) was not supposed to be marked out.
After the plea and sentence, more than two years elapsed. Then, on November 2, 1998, the Immigration and Naturalization Service (INS) notified Littlefair that it would seek to deport him because of his conviction. At that time, for the first time, Littlefair “became aware of the deportation consequences as a result of his plea of guilty.”
On May 3, 1999, Littlefair moved to withdraw his guilty plea. He stated that he “would not have changed his plea. . . had [he] known that he in fact would be deported.”*
On July 16, 1999, a hearing was held. The trial court ruled that Littlefair’s motion was “not timely’ because
First of all, there’s a distinction between the paragraph concerning citizenship and the other paragraphs that must be stricken .... All of those [other paragraphs] . . . have . . . parentheses that state, “If not applicable, this paragraph should be stricken and initialed by the defendant and the judge.” That parenthetical language does not appear on the paragraph concerning citizenship.
In other words, that paragraph applies to every judgment and sentence. It is not a paragraph that should be stricken. . . . The only thing was that somebody put in three Xs there. . . .
Mr. Littlefair had an opportunity to read all of the plea statement. He indicated by his signature that he did. . . . Also, if you look at the case of State v. Malik, 37 Wn. App. 414[, 680 P.2d 770 (1984)], which was decided in 1984, that case stated that, “Failure to advise a defendant of immigration consequences is not grounds to withdraw a plea because it’s a collateral not a direct consequence of the plea. And the court does not have to advise the defendant of all collateral consequences of a plea.”[13 ]
Based on these rulings, the court entered written findings and an order denying Littlefair’s motion to withdraw his plea.
On appeal, the parties debate two main issues. (1) Did the trial court err by holding that Littlefair’s motion was time-barred? (2) If not, did the trial court err by holding that Littlefair was not entitled to withdraw his plea? We address each in turn.
I
The first issue is whether the trial court erred by holding that Littlefair’s motion to withdraw his plea was time-barred. RCW 10.73.090 provides:
*757 (1) 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.
(2) For purposes of this section, “collateral attack” means any form of postconviction relief other than a direct appeal. “Collateral attack” includes ... a motion to withdraw a guilty plea . . . .[14 ]
The State contends that Littlefair was required to file his motion to withdraw his plea within one year of October 17, 1996; that he failed to do that; and thus that he is time barred. Littlefair acknowledges that he did not file his motion within one year after October 17, 1996. He claims, however, that he “did not receive notice from the INS until November, 1998”; that until then he had no way to know he was subject to deportation; and that to hold his motion untimely would be “to ignore the equity of [his] plight [J”
A
In re Personal Restraint of Hoisington
Hoisington relied on State v. Duvall.
If the Legislature intended the 60-day period as a jurisdictional limit, then the court was without power to determine restitution after 60 days had expired. But if the Legislature intended the 60-day period to operate as an ordinary statute of limitations, then the limit is subject to principles of waiver and estoppel, including the doctrine of equitable tolling. The doctrine of equitable tolling permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed.[19 ]
Hoisington is supported by federal cases, and also by a commentator who has examined RCW 10.73.090 in depth. The federal cases hold that an analogous statutory time limit
First, the statute’s text, legislative history, structure, purpose, and policy implications indicate that the time limit is a*759 statute of limitation, not a jurisdictional bar, and thus can be equitably tolled. Second, the state and federal collateral attack filing deadlines are analogous statutes; because Washington law is virtually silent on whether RCW 10.73.090 is subject to equitable tolling, state courts should follow the reasoning of the wealth of federal authority holding that the federal time limit can be equitably tolled.[22 ]
Based on these authorities, we hold that RCW 10.73.090 can be subject to equitable tolling in a proper case.
B
In State v. Robinson,
Equitable tolling “permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed.” State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997), review denied, 134 Wn.2d 1012 (1998). “Appropriate circumstances generally include “bad faith, deception, or false assurances by the defendant, and the exercise of diligence by the plaintiff.’ ” Id. at 875 (quoting Finkelstein v. Sec. Props., Inc., 76 Wn. App. 733, 739-40, 888 P.2d 161 (1995). “Courts typically permit equitable tolling to occur only sparingly, and should not extend it to a ‘garden variety claim of excusable neglect.’ ” Id. (quoting Irwin v. Dep’t*760 of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)).[25 ]
Although originally applied in civil cases, these principles have also been applied in at least three criminal cases. The first involved former RCW 9.94A.142, while the others involved RCW 10.73.090.
In State v. Duvall,
In In re Personal Restraint of Hoisington,
The circumstances here are appropriate for equitable tolling. Mr. Hoisington clearly raised the specific enforcement/ineffective assistance issue in his pro se brief in his first appeal. The court did not address the issue in its opinion deciding that appeal. He raised the issue again in a subsequent appeal and in a prior personal restraint petition, but the court continued to ignore it. Mr. Hoisington exercised due diligence. The fault is with the corut for not addressing his claim when he first raised it in his direct appeal. We therefore hold that the one-year statute of limitation of RCW 10.73.090 was equitably tolled ... ,[33 ]
In State v. Robinson,
As in Duvall and Hoisington, the unique circumstances here are appropriate for equitable tolling. When Littlefair pleaded, he did not know that he was likely to be deported. His lack of knowledge was not due to any fault or omission on his part; rather, it was due to a series of mistakes by his attorney, the court, and arguably the INS. The attorney failed to inquire about citizenship. He had also stricken subsection (n), contrary to the instructions on the written plea form. Quite reasonably and understandably, Littlefair did not think the stricken subsections applied to him, so he did not read them. The court failed to note that subsection (n) had been stricken contrary to the form’s instructions, and it did not ascertain whether Littlefair had been properly advised of possible deportation consequences. Neither Littlefair nor the court initialed the subsections that had been stricken, so subsection (n) was not noted even for its absence. Inexplicably, the INS delayed more than two years before notifying Littlefair that
II
The second issue is whether the trial court erred by denying Littlefair’s motion to withdraw his plea of guilty. Littlefair claims (1) that RCW 10.40.200 was not followed; (2) that his plea was not knowing, voluntary or intelligent; and (3) that he did not receive effective assistance of counsel. His first claim is dispositive, so we do not reach the others.
RCW 10.40.200 provides:
(1) The legislature finds and declares that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is further the*764 intent of the legislature that at the time of the plea no defendant be required to disclose his or her legal status to the court.
(2) Prior to acceptance of a plea of guilty to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall determine that the defendant has been advised of the following potential consequences of conviction for a defendant who is not a citizen of the United States: Deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. A defendant signing a guilty plea statement containing the advisement required by this subsection shall be presumed to have received the required advisement. If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty. Absent a written acknowledgement by the defendant of the advisement required by this subsection, the defendant shall be presumed not to have received the required advisement.
(3) With respect to pleas accepted prior to September 1,1983, it is not the intent of the legislature that a defendant’s failure to receive the advisement required by subsection (2) of this section should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid.
The operative language of this statute is in its second subsection, which contains four sentences. The first sentence applies at the time of the plea. It requires that the court ascertain, before accepting the plea, that the defendant has been advised of the deportation consequences of his plea.
The third sentence applies after the plea and, when necessary, after judgment. It requires that the plea and judgment be set aside if the defendant was not properly
The second and fourth sentences establish presumptions to be used when determining whether the defendant was properly advised. The second sentence states if the defendant signed a written plea form containing appropriate language, he or she shall be presumed to have received the required advisement. The fourth sentence states that in the absence of a plea form or other “written acknowledgment,” the defendant shall be presumed not to have received the required advisement.
In this case, Littlefair signed a written plea form in which his attorney had “place [d] three X’s on paragraph (n) indicating that the paragraph did not apply.”
This presumption is confirmed by the trial court’s express findings of fact. Neither Littlefair’s attorney nor the attorney’s associate ever advised Littlefair concerning “the immigration consequences” of his plea,
Our conclusion is supported by the history of RCW 10.40.200, which begins with a case called State v. Malik,
On February 14, 1983, members of the legislature introduced a bill requiring that a defendant be advised of deportation consequences before pleading guilty.
In June 1983,
On April 30, 1984, Division One issued its opinion in Malik’s appeal. Quoting from a 1973 federal case and a 1976 federal case, it held that “[t]he possibility of deportation was a collateral consequence of Malik’s guilty plea,” and that “[t]he trial court did not err by denying his motion to withdraw the plea.”
We draw two lessons from this history, each of which supports our conclusion above. First, when the legislature enacted ROW 10.40.200, it intended to grant a statutory right to be advised of deportation consequences that would supplement whatever constitutional right a defendant might (or might not) have. Second, Division One’s opinion in Malik may be correct as to pleas entered before September 1, 1983, but it is incomplete and thus inaccurate as to pleas entered thereafter. It discusses only the constitutional right to be advised, omitting even to mention the statutory right that took effect September 1, 1983.
Our conclusion is further supported by State v. Holley
Our conclusion is consistent with the remainder of the cases decided since Malik. In In re Personal Restraint of Peters,
In In re Personal Restraint of Yim
In State v. Jamison,
In State v. Cortez,
In summary, RCW 10.40.200 gave Littlefair a statutory right, independent of any constitutional right, to be advised of the deportation consequences his plea. He was not so advised due to a series of miscues by his attorney and the trial court. Thus, we vacate the plea and sentence and remand for further proceedings.
Quinn-Brintnall, A.C.J., concurs.
Littlefair’s counsel at the trial level was different from his counsel on appeal.
Clerk’s Papers (CP) at 49.
The form that was used had not been updated to account for amendments to CrR 4.2(g) that took effect on September 1, 1996. Those amendments, however, are not material here.
CP at 5-8.
Report of Proceedings (RP) at 17.
Suppl. finding 6.
Suppl. finding 3.
Suppl. finding 7.
The trial judge did note this at a hearing held three years later. See RP 73-74.
CP at 51, lines 3-4.
CP at 20.
RP at 73; see also RP at 75.
RP at 73-74.
CrR 7.8(b) contains parallel provisions. It adds little to the statute for purposes of this case. For convenience, we refer only to the statute.
Br. of Appellant at 32.
99 Wn. App. 423, 993 P.2d 296 (2000).
In re Pers. Restraint of Hoisington, 99 Wn. App. at 431; see also State v. Robinson, 104 Wn. App. 657, 667, 17 P.3d 653, review denied, 145 Wn.2d 1002 (2001) (recognizing that RCW 10.73.090 can be equitably tolled, but declining to toll it in the particular case). For additional cases in which the court or a party referred to RCW 10.73.090 as a statute of limitation, or as a procedural bar instead of a jurisdictional bar, see In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 267, 36 P.3d 1005 (2001); In re Pers. Restraint of Meyer, 142 Wn.2d 608, 614, 16 P.3d 563 (2001); Shumway v. Payne, 136 Wn.2d 383, 397, 964 P.2d 349 (1998); In re Pers. Restraint of Benn, 134 Wn.2d 868, 884 n.3, 952 P.2d 116 (1998).
86 Wn. App. 871, 940 P.2d 671 (1997), review denied, 134 Wn.2d 1012 (1998).
Duvall, 86 Wn. App. at 874 (footnotes omitted).
28 U.S.C. § 2255 provides in part that “[a] 1-year period of limitation shall apply” to a motion that collaterally attacks a judgment.
See, e.g., United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000); Valverde v. Stinson, 224 F.3d 129,133 (2d Cir. 2000); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999); Calderon v. United States Dist. Court, 163 F.3d 530, 542 (9th Cir.), cert. denied, 523 U.S. 1063, 118 S. Ct. 1395, 140 L. Ed. 2d 653 (1998).
Mark A. Wilner, Notes and Comments, Justice at the Margins: Equitable Tolling of Washington’s Deadline for Filing Collateral Attacks on Criminal Judgments, 75 Wash. L. Rev. 675, 695 (2000).
Incidentally, this conclusion is consistent with In re Personal Restraint of Stoudmire, 145 Wn.2d 258, and In re Personal Restraint of Stoudmire, 141 Wn.2d 342, 5 P.3d 1240 (2000). In those cases, Stoudmire alleged that his plea was invalid because he had not known that mandatory community placement would last two years. He sought postconviction relief on September 26,1994, but he “was already aware of the two-year mandatory placement” on September 20, 1993. In re Pers. Restraint of Stoudmire, 145 Wn.2d at 262. He did not claim equitable tolling, and he could not successfully have done so where he knew all necessary facts more than a year before filing.
104 Wn. App. 657, 17 P.3d 653 (2001).
Robinson, 104 Wn. App. at 667; see also Duvall, 86 Wn. App. at 874-75; Hoisington, 99 Wn. App. at 430-31.
86 Wn. App. 871, 940 P.2d 671 (1997), review denied, 134 Wn.2d 1016 (1998).
99 Wn. App. 423, 993 P.2d 296 (2000).
110 Wn.2d 528, 535, 756 P.2d 122 (1988).
This was actually the second sentence the trial court imposed, but that makes no difference here.
Hoisington, 99 Wn. App. at 431-32.
104 Wn. App. 657, 17 P.3d 653 (2001).
104 Wn. App. at 668. For reasons not related to equitable tolling, the later case of State v. Hurt, 107 Wn. App. 816, 27 P.3d 1276 (2001), trumps Robinson with respect to incarcerated prisoners. Hurt adopted “the federal mailbox rule,” under which the motion of an incarcerated prisoner is deemed filed when mailed. 107 Wn. App. at 828.
Compare State v. Holley, 75 Wn. App. 191, 192, 194, 876 P.2d 973 (1994) (judgment entered October 29, 1992; notice of deportation received March 24, 1993); State v. Martinez-Lazo, 100 Wn. App. 869, 871-72, 999 P.2d 1275 (judgment entered January 1998; notice of deportation received October 1998), review denied, 142 Wn.2d 1003 (2000).
To the extent that CrR 7.8(b) might differ from RCW 10.73.090, we also conclude that Littlefair filed his motion within “a reasonable time.”
Suppl. finding 4.
RCW 10.40.200(2), fourth sentence (emphasis added).
Suppl. findings 3, 7.
Suppl. finding 6; see also suppl. findings 3, 5, 7.
We do not overlook the trial court’s finding that because subsection (n) was not completely obliterated — it had only three Xs through its letter designation— Littlefair “had the opportunity” to read it. Original finding of fact VIII, CP at 52, line 11. Littlefair’s “opportunity” to read the paragraph was a factor to be considered, but its force was exhausted once the trial court found that Littlefair had not been advised of the deportation consequences of his plea. See Suppl. finding 6.
See e.g„ Clark v. Dwyer, 56 Wn.2d 425, 431, 353 P.2d 941 (1960) (“power of the legislature to enact all reasonable laws is unrestrained except where, either expressly or by fair inference, it is prohibited by the state and federal constitutions”); Wash. Const, art. II, § 1 (“legislative authority of the state of Washington shall be vested in the legislature”); Brower v. State, 137 Wn.2d 44, 54, 969 P.2d 42 (1998) (“legislative authority of the State is vested in the Legislature”).
In making this statement, we do not consider the current viability of the somewhat arbitrary distinction between a plea’s “direct” and “collateral” consequences. Recently, however, we noted that the distinction may be breaking down. See State v. McDermond, 112 Wn. App. 239, 246, 47 P.3d 600, 603 (2002).
37 Wn. App. 414, 680 P.2d 770, review denied, 102 Wn.2d 1023 (1984).
Malik, 37 Wn. App. at 415.
1 House Journal, 48th Leg., Reg. Sess. 290-91 (Wash. 1983) (Substitute H.B. 522).
1 House Journal, 48th Leg., Reg. Sess. 860 (Wash. 1983) (Substitute H.B. 522); 1 Senate Journal, 48th Leg., Reg. Sess. 1293 (Wash. 1983) (Substitute H.B. 522); Laws of 1983, ch. 199, § 1, codified at RCW 10.40.200.
Laws of 1983, ch. 199, § 1, codified at RCW 10.40.200.
99 Wn.2d at 1119-22.
CrR 4.2; 99 Wn.2d at 1122.
Malik, 37 Wn. App. at 416.
75 Wn. App. 191, 876 P.2d 973 (1994).
50 Wn. App. 702, 750 P.2d 643 (1988).
139 Wn.2d 581, 989 P.2d 512 (1999).
100 Wn. App. 869, 999 P.2d 1275 (2000).
The Yim court also cited State v. Ward, 123 Wn.2d 488, 512-13, 869 P.2d 1062 (1994) and Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir. 1976). Ward discussed direct and collateral consequences generally. It did not address deportation consequences or RCW 10.40.200. Fruchtman antedated RCW 10.40.200.
105 Wn. App. 572, 20 P.3d 1010, review denied, 144 Wn.2d 1018 (2001).
73 Wn. App. 838, 871 P.2d 660 (1994).
Dissenting Opinion
(dissenting) — Peter T. Littlefair, a Canadian citizen, appeals the trial court’s order denying his 1999 motion to vacate his judgment and sentence and withdraw his 1996 guilty plea. I would hold that even though Littlefair was not advised of deportation possibilities when he entered his plea, his motion to vacate was untimely because it was not brought within one year after judgment. The parties did not raise equitable tolling, and I would hold it to be inapplicable without further briefing and argument. And I would affirm our holding in State v. Holley, 75 Wn. App. 191, 876 P.2d 973 (1994), that the failure to advise a defendant of possible deportation consequences is a collateral consequence of a conviction. Thus, because the trial court made specific findings that were not challenged, that Littlefair’s attorneys did not affirmatively misrepresent to him deportation consequences, the error does not rise to constitutional harm or ineffective assistance of counsel. I would affirm the conviction.
In March 1996, the State charged Peter T. Littlefair with both manufacturing marijuana and possession of marijuana with intent to deliver. Littlefair testified that he told the Skamania County Jail personnel that he was a Canadian citizen.
During the plea hearing, the trial court inquired whether Littlefair’s attorney had gone over the agreement with him and whether he understood it. Littlefair responded that he did and admitted he committed the crime. The court accepted Littlefair’s guilty plea and sentenced him to two days confinement, 240 hours of community service work, 24 months supervision and about $3,200 in costs and fines.
In November 1998, the Immigration and Naturalization Service informed Littlefair that it intended to hold an administrative hearing to determine if it should deport him for committing a felony. In response, in May 1999, Littlefair filed a motion to vacate his 1996 judgment and sentence. In the motion, Littlefair claimed that he would not have pleaded guilty to the manufacture of marijuana charge if he had known that it could result in his deportation. The court, however, denied his motion to vacate and his subsequent motion for reconsideration.
After oral argument on appeal, we sent the matter back to the trial court for an evidentiary hearing under RAP 9.11. The trial court made the following pertinent findings:
• Littlefair did not tell his attorney or anyone else involved in the case that he was not a U.S. citizen, except a booking officer;
• Littlefair was not told anything about why paragraph “n” was crossed out;
• Littlefair was not affirmatively misinformed about the deportation consequences of pleading guilty;
• Littlefair’s attorneys neglected to inform him of the deportation consequences.
I. CrR 7.8(b)
The applicable superior court criminal rule to vacate a criminal judgment is CrR 7.8(b), which provides as follows:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.6;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and .140. Amotion under section (b) does not affect the finality of the judgment or suspend its operation.
The trial court reviewed Littlefair’s motion to vacate under CrR 7.8(b)(1). Littlefair contends that review should
It is undisputed that the crossed out deportation warning in Littlefair’s statement on plea of guilty was a mistake under CrR 7.8(b)(1). Littlefair’s argument that the mistake was substantial enough to fall under CrR 7.8(b)(5), however, is unpersuasive.
Relief under CrR 7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the rule. State v. Brand, 120 Wn.2d 365, 369, 842 P.2d 470 (1992); State v. Olivera-Avila, 89 Wn. App. 313, 319, 949 P.2d 824 (1997); State v. Cortez, 73 Wn. App. 838, 841-42, 871 P.2d 660 (1994). “[E]xtraordinary circumstances must relate to fundamental, substantial irregularities in the court’s proceedings or to irregularities extraneous to the court’s action.” Olivera-Avila, 89 Wn. App. at 319 (citing State v. Aguirre, 73 Wn. App. 682, 688, 871 P.2d 616, review denied, 124 Wn.2d 1028 (1994)). A conviction should be vacated only in those limited circumstances, “where the interests of justice most urgently require.” State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989). CrR 7.8(b)(5) “does not apply when the circumstances allegedly justifying the relief existed at the time the judgment was entered.” Gomez-Florencio, 88 Wn. App. at 259.
In Gomez-Florencio, 88 Wn. App. 254, the defendant contended that the trial court erred in not highlighting for him the deportation warning in his plea agreement. The court held that CrR 7.8(b)(5) did not apply because the prior convictions, which the State failed to discover, existed at the time of the defendant’s original sentencing. The court also ruled that although the defendant alleged it was the State’s neglect, and the State alleged it was the defendant’s
Littlefair also contends that the court erred in ruling that his CrR 7.8(b) motion was untimely. He argues that RCW 10.40.200
II. Equitable Tolling
It was abundantly clear that Littlefair did not raise the doctrine of equitable tolling at the trial court or on his appeal. Littlefair relied on CrR 7.8(b)(5), which did not have the one-year limitation. The majority applies the doctrine of
In any event, I would not apply the doctrine of equitable tolling to the error Littlefair’s attorney committed in this case. The cases that have permitted its use, as noted by the majority, have allowed it only sparingly and have found circumstances for its use where there has been bad faith, deception, or false assurances on one side and due diligence on the part of the other. See In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 430, 993 P.2d 296 (2000). In this case, when the trial court took testimony regarding Littlefair’s attorney’s actions, it did not find bad faith, deception, or false assurances, it found neglect. Without a basis of bad faith, deception, or false assurances (within this last category, I would permit “affirmative misrepresentations” to form a basis for application of the doctrine), I would not apply equitable tolling as to the error Littlefair’s attorney committed. Also, because the error does not rise to constitutional significance, it is not ineffective assistance under Holley, 75 Wn. App. at 198, the neglect should not trigger equitable tolling.
The majority also declines to address any impact of our referral back to the trial court for an evidentiary fact-finding hearing. The majority states, “His [Littlefair’s] lack of knowledge was not due to any fault or omission on his part.” Majority opinion at 762. This is not supported by any evidence or by any of the facts adduced at the fact-finding hearing (there is no duty under the statute for the alien to disclose his status in this country at the time of plea, RCW 10.40.200(1)). The majority also relies on no fact for the proposition that Littlefair should not have known that his status might be in jeopardy with the commission of a felony.
III. Direct or Collateral Consequence — Due Process
Littlefair contends that because he was not sufficiently warned about deportation consequences at the time he entered his guilty plea, his guilty plea was involuntary. His contention fails.
Due process requires that a guilty plea be knowing, intelligent, and voluntary. State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996); In re Pers. Restraint of Peters, 50 Wn. App. 702, 704, 750 P.2d 643 (1988). Due process also requires that a guilty plea be made with knowledge of its direct consequences. Peters, 50 Wn. App. at 704; Holley, 75
It is well settled that deportation is a collateral consequence of a guilty plea. State v. Jamison, 105 Wn. App. 572, 591-92, 20 P.3d 1010, review denied, 144 Wn.2d 1018 (2001); In re Pers. Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999); Holley, 75 Wn. App. at 196; State v. Ward, 123 Wn.2d 488, 513, 869 P.2d 1062 (1994); Peters, 50 Wn. App. at 704. “Deportation with no possibility of reentry into the United States, even if an absolute certainty following conviction of an aggravated felony as defined by federal law, remains collateral to the criminal prosecution because it is ‘not the sentence of the court which accepted the plea but of another agency over which the trial judge has no control and for which he has no responsibility.’ ” Jamison, 105 Wn. App. at 593 (quoting State v. Martinez-Lazo, 100 Wn. App. 869, 877, 999 P.2d 1275, review denied, 142 Wn.2d 1003 (2000)). Thus, the fact that a defendant entered a guilty plea, unaware of the potential deportation consequences of conviction, does not, by itself, establish a due process violation. Holley, 75 Wn. App. at 196. That a defendant may subjectively feel that deportation and permanent exclusion is a harsh punishment does not alter the analysis. Jamison, 105 Wn. App. at 593.
Although Littlefair was not warned as required under RCW 10.40.200, because deportation is a collateral consequence of a guilty plea, the court did not err in denying Littlefair’s motion to vacate judgment and withdraw his guilty plea.
IV. Ineffective Assistance of Counsel
Finally, Littlefair contends that because his attorney did not inform him of deportation consequences, he received ineffective assistance of counsel. As we noted in Holley, trial counsel has an obligation to aid a defendant “ ‘in evaluating the evidence against him and in discussing the possible direct consequences of a guilty plea.’ ” Holley, 75 Wn. App. at 197 (quoting State v. Malik, 37 Wn. App. 414, 417, 680 P.2d 770, review denied, 102 Wn.2d 1023 (1984)). A defendant, however, need not be advised of the possibility of deportation because a deportation proceeding that occurs subsequent to the entry of a guilty plea is merely a collateral consequence of that plea. Yim, 139 Wn.2d at 588.
But, as we pointed out in Holley, “erroneous advice about a matter collateral to the conviction can constitute constitutionally deficient performance.” Holley, 75 Wn. App. at 198 (citing State v. Stowe, 71 Wn. App. 182, 858 P.2d 267 (1993)). Littlefair asserted a constitutional error, that being ineffective assistance of counsel, and hoped to avoid any time limitation upon his claim.
I would affirm the conviction.
RCW 10.40.200(2) states in pertinent part as follows:
If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty.
RCW 10.40.200 requires that a defendant, who is not a United States citizen, be warned before accepting a guilty plea of the potential conviction consequences
I would not rule upon a time limit for raising a violation of effective assistance of counsel under the U.S. Const, amend. VI because it is not before us.
