FILE IN CLERKS OFFICE IIJIAENE COURT, STATE OF WASHINGTON a 2014 DATE JAN .2 ?21a~.C:¥ JUSTICE~ CHIEF
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re Personal Restraint Petition of ) No. 86001-7 ) DANIEL J. STOCKWELL, ) EnBanc ) Petitioner. ) Filed - - - -3 201~- - JAN 2 -- )
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
\ No. 86001-7
within SSOSA guidelines. However, the plea statement and judgment and sentence both
misstated the maximum sentence as 20 years, with a $50,000 fine, when in fact the
statutory maximum was life.
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. RCW 10.73.120. This
time limit applies to all petitions filed more than one year after the effective date of the
statute. RCW 10.73.130. The Department of Corrections (DOC) was directed to attempt
to advise every person who, on the effective date, was "serving a term of incarceration,
probation, parole, or community supervision pursuant to a conviction of a felony," of the
change. RCW 10.73.120. The director of the division of community corrections issued a
memorandum dated December 5, 1989, directing community corrections and work
release supervisors to post a DOC notice addressing the time limit change. Stockwell's
community custody ended about six weeks before the memorandum was issued, and he
claims he was not notified of the time limit.
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
2 No. 86001-7
contended he was not time barred because his sentence was facially invalid and he did
not receive notice from DOC. He also argued his guilty plea was involuntary because the
plea statement incorrectly stated the maximum. The acting chief judge dismissed his
petition as time barred.
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
3 No. 86001-7
rendered by a court of competent jurisdiction." RCW 10.73.090. Facial invalidity can
exist if a trial court lacked the statutory authority to impose a sentence. In re Pers.
Restraint of Scott, 173 Wn.2d 911, 916, 271 P.3d 218 (2012); see also Coats, 173 Wn.2d
at 144 ("[w]e have found only errors that result from a judge exceeding the judge's
authority to render a judgment and sentence facially invalid.").
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 RCW 10.73.090 should not bar his PRP because DOC
did not attempt to give him notice of the time bar amendment. When the legislature
amended chapter 10.73 RCW to include the time bar, it required DOC to "attempt to
advise" everyone who, on July 23, 1989, was under community supervision pursuant to a
felony conviction. RCW 10.73.120. While actual notice was not required, an attempt
was necessary. See In re Pers. Restraint of Vega, 118 Wn.2d 449, 823 P.2d 1111 (1992)
(time limit did not apply where no attempt was made to notify petitioner serving federal
prison sentence).
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
4 No. 86001-7
reported to his parole officer, where notices were placed in community correction offices.
!d. at 438, 451. There, the petitioner was unable to show that DOC did not attempt
notice. !d. at 453. Unlike the petitioner in Runyan, Stockwell did not have a similar
opportunity to potentially see the notices. Accordingly, the time bar does not apply to
Stockwell's petition. 1
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, RAP 2.5(c)(2) allows an appellate court to "review the propriety of an earlier decision of the appellate court ... and, where justice would best be served, decide the case on the basis ofthe appellate court's opinion of the law at the time ofthe later review." See Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988). 5 No. 86001-7
based on misinformation regarding a direct consequence on the plea"); State v. Weyrich,
163 Wn.2d 554, 557, 182 P.3d 965 (2008) ("A defendant must be informed of the
statutory maximum for a charged crime, as this is a direct consequence of his guilty
plea.). An involuntary plea constitutes a manifest injustice. State v. Walsh, 143 Wn.2d 1,
6, 17 P.3d 591 (2001). Under CrR 4.2(f), a court must allow a defendant to withdraw a
guilty plea where withdrawal is necessary to correct a manifest injustice. However, if the
motion for withdrawal is made after the judgment, it is governed by CrR 7.8(b ), which
states that a court "may relieve a party from a final judgment" for several reasons
including mistake, newly discovered evidence, fraud, a void judgment, or any other - - -
reason justifying relief.
We have acknowledged that a petitioner may seek to withdraw a plea on direct
appeal where the defendant has been misinfonned 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. !d. at 584-85. During sentencing proceedings, the State
explained the error and requested a lower sentence within the correct range. !d.
Mendoza moved to withdraw his plea on grounds unrelated to the erroneous score. !d. at
585. The sentencing court rejected Mendoza's motion. !d. 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." !d. at
591. However, Mendoza waived his right to challenge the plea as involuntary because he
6 No. 86001-7
did not object to sentencing or move to withdraw his plea when he learned of the mistake
in the offender score before sentencing, and he received a lower sentence than statutorily
authorized by his correct score. Id.
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.
2 Stockwell argues that Weyrich was a "collateral attack" as defined under RCW 10.73 .090(2). This is incorrect. Weyrich was a direct appeal and RCW 10.73.090(2) does not apply. 7 No. 86001-7
A petitioner's burden on collateral review has evolved over the course of several
decades. In In re Personal Restraint of Hagler, 97 Wn.2d 818, 650 P .2d 1103 (1982), we
discussed the origin ofPRPs in the State's habeas corpus remedy under article IV, section
4 of the Washington State Constitution. Id. at 823. We stated that a PRP, like a petition
for a writ of habeas corpus, is not a substitute for an appeal. Id. In discussing the
standard to be applied we stated, "While the presumption of prejudice is appropriate to
direct review of a conviction, it is not appropriate to collateral review by way of personal
restraint petition." Id. We acknowledged collateral review is distinct from a direct appeal
because collateral relief "undermines the principles of finality of litigation, degrades the
prominence of the trial, and sometimes costs society the right to punish admitted
offenders." Id. at 824 (citing Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d
783 (1982)). We also stated that under federal habeus standards, the burden is on the
petitioner to show "'not merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions."' I d. at 825 (quoting United States v.
Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)). We held that the
same burden should be met in PRPs challenging trial error. I d. Then, in In re Personal
Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990), we addressed the
petitioner's burden when raising constitutional trial error stating that "in the context of a
constitutional error, a petitioner must satisfy his threshold burden of demonstrating actual
8 No. 86001-7
and substantial prejudice." !d. (citing In re Pers. Restraint of Haverty, 101 Wn.2d 498,
504,681 P.2d 835 (1984)).
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. !d. 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. !d. 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
9 No. 86001-7
restraint petitions. We now reject this proposition." St. Pierre, 118 Wn.2d at 328 (citing
Boone, 103 Wn.2d at 233). This court declined to adopt a rule that "would categorically
equate per se prejudice on collateral review with per se prejudice on direct review." ld. at
329. Citing to Richardson, we opined that "some errors which result in per se prejudice
on direct review will also be per se prejudicial on collateral attack" but that the interests
of finality demand a higher standard in a collateral attack. Jd. 3 As to the error claimed by
St. Pierre, a defective charging document, we required the petitioner to prove actual and
substantial prejudice on collateral review. ld.
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. ld. at 299-300. Fawcett violated the conditions of his
community placement two months into his term, which resulted in revocation of his
SSOSA. I d. 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. 10 No. 86001-7
because he would suffer no future prejudice from the two year term that had been
revoked during the first year. Id. at 302.
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 ofCashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994), and only
required Isadore to show unlawful restraint. RAP 16.4(b ), (c); Isadore, 151 Wn.2d at 299
(citing Cashaw, 123 Wn.2d at 148-49 (determining threshold PRP requirements did not
apply where there was no prior opportunity or avenue for obtaining judicial review)). We
also noted that even if Isadore were required to meet the PRP prejudice standard, he had
done so.
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.
11 No. 86001-7
Restraint ofBradley, 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 Cas haw 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. Bankv. 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. 12 No. 86001-7
petitions." St. Pierre, 118 Wn.2d at 328 (citing Boone, 103 Wn.2d at 233). While
acknowledging that some per se errors on direct review could also be per se prejudicial
on collateral attack, we have had no occasion to decide whether a personal restraint
petitioner who claims he was misinformed about the consequences of his plea must show
that he was actually and substantially prejudiced by that error. 5
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 CrR 4.2 6 and manifest error requirement in RAP 2.5(a?
mirror the prejudice required in a PRP. In support, he cites to Walsh for the court's
discussion that "manifest" means a showing of prejudice is made. Walsh, 143 Wn.2d at
8.
First, Stockwell's argument fails to recognize that CrR 4.2 is a trial court rule.
Moreover, a motion to withdraw a plea after a judgment is entered is governed by CrR
7.8, not simply CrR 4.2(f). 8 CrR 7.8 states that a court may grant relief from a final
judgment for mistakes, newly discovered evidence, fraud, where a judgment is void, or
any other reason justifying relief. It applies to motions made within a reasonable time,
5 The concurrence's characterization that stmctural errors defy a harmless error analysis is misplaced. Concurrence at 7. 6 "The court shall allow a defendant to withdraw the defendant's plea of guilty whenever it
appears that the withdrawal is necessary to correct a manifest injustice." CrR 4.2. 7 "A party may raise the following claimed errors for the first time in the appellate court: ... (3) manifest error affecting a constitutional right." RAP 2.5(a). 8 "If the motion for withdrawal is made after judgment, it shall be governed by CrR 7.8." CrR
4.2(±). 13 No. 86001-7
and in the case of mistakes and newly discovered evidence, not more than one year after
the judgment was entered. CrR 7.8(b). As we said in State v. Lamb, 175 Wn.2d 121,
128, 285 P.3d 27 (2012), "[a] finding of 'manifest injustice' does not automatically
establish that relief is available under CrR 7 .8(b)(5)." See also State v. Robinson, 172
Wn.2d 783, 263 P.3d 1233 (2011) (stating that if the petitioner had moved to withdraw
his plea after the judgment was entered, he would have had to satisfy CrR 7. 8(b) in
addition to CrR 4.2(±)). CrR 7.8 represents a potentially higher standard than CrR 4.2(±)
for withdrawing a plea. Just as a petitioner may need to meet a higher burden when
withdrawing a plea postjudgment versus prejudgment, so should a petitioner in the
context of a PRP. As to RAP 2.5, this rule pertains to the court's discretion to hear issues
on appeal or review that were not objected to at trial. The rule does not govern a
petitioner's burden in a PRP.
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). 14 No. 86001-7
the defendant's state of mind and motivations, but simply look at the practical effects that
resulted from error.
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.
15 No. 86001-7
CONCLUSION
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.
16 No. 86001-7
·Yrk~)c CJ I I
WE CONCUR:
17 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
No. 86001-7
GORDON McCLOUD, J. ( concurring)-This is a case about whether a
personal restraint petitioner must show "actual and substantial prejudice" to prevail
on a collateral challenge to a guilty plea where the petitioner was misadvised that
the statutory maximum was 20 years when the actual maximum was life and where
the sentence imposed was far lower than either 20 years or life. Under our prior case
law, these are constitutional errors that would have been presumed prejudicial on
appeal. The majority holds that for this particular constitutional error, the greater
interest in finality that attaches postappeal militates in favor of an actual prejudice
inquiry on personal restraint petition (PRP). I agree.
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," In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
therefore, occurs when an error undermines that procedure and the voluntariness of
the plea-regardless of the sentence imposed. Second, the majority uses this case
to undertake a radical reanalysis ofthe sort of prejudice that every personal restraint
petitioner has been required to show in every other type of PRP. That radical
reanalysis is not necessary to decide this case. In fact, the rule established in In re
Personal Restraint of Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983),
overruled on other grounds by State v. Dhaliwal, 150 Wn.2d 559, 568, 79 P.3d 432
(2003), State v. Kitchen, 110 Wn.2d 403, 413, 756 P.2d 105 (1988), and In re
Personal Restraint of Gunter, 102 Wn.2d 769, 774, 689 P.2d 1074 (1984), and
restated in In re the Personal Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P .2d
492 (1992)-that errors which are presumptively prejudicial on direct appeal will
generally be presumed prejudicial in a PRP-is still good law. So although I concur
in the outcome, I disagree with the majority's two main points.
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
2 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
the defendant's state of mind and motivations, but simply look[s] at the practical
effects that resulted from error." Majority at 14-15 (emphasis added).
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
1 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). 3 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
counsel in the plea-advice context. Lafler v. Cooper,_ U.S._, 132 S. Ct. 1376,
1390-91, 182 L. Ed. 2d 398 (2012) (distinguishing inquiry applicable to ineffective
assistance claim arising in the plea context from requirement that plea itself be
"knowing and voluntary"; treating prejudice in the former context as having adverse
effect on cost-benefit analysis involved in deciding whether to plead guilty); Padilla
v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (defense
counsel must advise defendant pleading guilty of the consequence of deportation to
provide effective assistance).
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 al1 2-PRPs. The majority suggests that St. Pierre established a one-size-fits-
all "actual and substantial prejudice" prerequisite to relief for all PRPs. 3
2 In fact, St. Pierre explicitly stated that "some errors which result in per se prejudice on direct review will also be per se prejudicial on collateral attack .... " St. Pierre, 118 Wn.2d at 329.
3 I note the majority's attempt to distance itself from this position. Majority at 10 n.3. The majority is correct to do that. As discussed below, however, the majority's 4 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
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 ofPRPs 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
analysis could be used to conflate harmless error review of constitutional issues with harmless error review of nonconstitutional issues. 4 See generally Arizona v. Fulminante, 499 U.S. 279, 309-311, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (Rehnquist, C.J., concurring) (holding admission of coerced confession to be "a classic 'trial error' ... similar in both degree and kind to the erroneous admission of other types of evidence" and thus reviewable for harmlessness). 5 In re Pers. Restraint ofStockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
Isadore, 151 Wn.2d 298, 88 P.3d 390 (2004)), overruled in part on other grounds
by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). This
category includes, for example, many errors in sentencing calculation. E.g., In re
Pers. Restraint of Goodwin, 146 Wn.2d 861, 864-65, 50 P.3d 618 (2002). These
first two categories make sense because the value of finality weighs more heavily in
favor of repose at the collateral challenge, as opposed to the appeal, stage of criminal
proceedings.
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
5 Accord Kylesv. Whitley, 514 U.S. 419,435-36, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (on federal habeas review of alleged Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) violation, once petitioner shows prosecutorial withholding of exculpatory evidence and materiality "there is no need for further harmless-error review"). 6 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
sense because in these cases, proof of a harmful effect on the trial outcome inheres
in claim itself.
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." Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct.
1246, 113 L. Ed. 2d 302 (1991) (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 673-7 4. 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). 7 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
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 ofFrancis, 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 77 4. 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, 8 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
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
6The majority cites State v. Oseguera Acevedo, 137 Wn.2d 179, 203, 970 P.2d 299 (1999) (plurality opinion), as showing that "even this court's views on materiality have changed over time." Majority at 14 n.9. This is misleading. As this court unanimously recognized in Isadore, Acevedo was a plurality opinion stemming from "unique" facts and was never "intended to alter the longstanding rule ... that a defendant must be informed of[all] direct consequences ofhis guilty plea." Isadore, 151 Wn.2d at 302. It is inaccurate to imply that a majority of this court ever employed a materiality inquiry-as opposed to a "direct consequence" inquiry-is cases where the defendant alleges his plea was not knowing, intelligent, and voluntary. 9 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
material to his decision to plead guilty; given peculiar procedural posture, however,
we applied the direct appeal prejudice standard).
The one exception is In re Personal Restraint ofBradley, 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. I d. 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
7 Because the period for direct appeal had passed when the community placement at issue was added to Isadore's original sentence, the court declined to apply "the heightened threshold requirements applicable to personal restraint petitions." Isadore, 151 Wn.2d at 299. The court expressly noted, however, that Isadore's claim would have succeeded even if he had been required to meet "the standard personal restraint petition requirements." Id. at 300. 10 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
case law. It essentially treats claims of constitutional error in the plea-bargain
process as nonconstitutional errors subject to a far more demanding prejudice
inquiry. The majority does this by demanding proof of not just actual and substantial
prejudice to the right at issue-the right to a knowing, intelligent, and voluntary plea
process-but something more. That something more seems to be proof of a far
longer sentence.
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
8 This is particularly unfortunate given the internal contradictions in St. Pierre. In that case, this court considered whether an error in the charging document established per se prejudice on collateral review. St. Pierre, 118 Wn.2d at 328-29. The court concluded that it did not, and that the petitioner was not entitled to relief. !d. at 329-30. While its holding was limited to that relatively narrow issue, the St. Pierre opinion included several broad assertions about a petitioner's burden on collateral review generally. Those assertions conflate several distinct categories of PRP, with the result that the St. Pierre opinion is at times self-contradictory. For example, St. Pierre affirms the "actual and substantial prejudice" standard for relief on collateral review but notes that that burden "may be waived where the error gives rise to a conclusive presumption of prejudice." !d. at 328 (citing Richardson, 100 Wn.2d at 679). It also acknowledges that "some errors which result in per se prejudice on direct review will also be per se prejudicial on collateral attack," but nevertheless concludes that "the interests of finality ... demand that a higher standard be satisfied in a collateral proceeding." !d. at 329. 11 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
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
Stricklancf and Bradyl 0 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
9 Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
10 Brady v. Maryland, 373 U.S. 83. 12 In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7 Gordon McCloud, J., Concurrence
than the maximum or a longer sentence than he expected; in short, he need not prove
the sort of complete miscarriage of justice that the majority's redefinition of
"prejudice" would require.
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.
13 In re the Personal Restraint of Stockwell (Daniel), No. 86001-7 Gordon McCloud, J., Concurrence
14'