In re Pers. Restraint of Yates

• Court: Washington Supreme Court
• Decided: March 20, 2014
• Docket: 87518-9
• Status: Published

Opinion

Fl LE Thi~_opinlon was flied for record at' ;.· a . ~ 2.0\L\.

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of ) No. 87518-9 ) ROBERT LEE YATES, JR., ) ) En Bane Petitioner. ) _ _ _ _ _ _ _ _ _ _ _) Filed MAR 2 0 2014

OWENS, J. -- Thirteen years ago, Robert Lee Yates Jr. agreed to plead guilty

to 13 counts of aggravated first degree murder and 1 count of attempted first degree

murder in exchange for a 408-year prison sentence. Yates now seeks to withdraw

those guilty pleas, claiming that he should technically have been sentenced to 408

years with a possible extension to life in prison rather than a determinate 408-year

sentence. Because he has not shown that he was prejudiced by this difference, we

dismiss this personal restraint petition.

FACTS

Yates has been convicted by two courts for a series of murders across

Washington State. In 2000, Yates pleaded guilty in Spokane County Superior Court

to 13 counts of aggravated first degree murder and 1 count of attempted first degree In re Pers. Restraint of Yates No. 87518-9

murder. Yates agreed to a 408-year sentence for these crimes. Then, in 2002, he was

convicted of two counts of aggravated first degree murder in Pierce County Superior

Court and was sentenced to death. This court affirmed Yates's Pierce County

convictions and death sentence in 2007. State v. Yates, 161 Wn.2d 714, 794, 168 P.3d

359 (2007). Yates filed a personal restraint petition in 2008 challenging the Pierce

County death sentence and this court recently dismissed that petition. In re Pers.

Restraint of Yates, 177 Wn.2d 1, 66, 296 P.3d 872 (2013).

Now Yates challenges his 2000 Spokane County judgment and sentence. That

judgment and sentence resulted from a plea deal negotiated with prosecutors. Yates

agreed to plead guilty to 13 counts of aggravated first degree murder and 1 count of

attempted first degree murder. In return, prosecutors in Spokane County agreed to

forgo the death penalty. As part of the deal, prosecutors agreed to dismiss one count

of first degree murder for the death of Shawn McClenahan in exchange for Yates

agreeing not to attempt to withdraw his guilty pleas or to collaterally attack the

sentence. Prosecutors reserved the right to refile the McClenahan murder charge-

and to seek the death penalty for that charge-if Yates violated that part of the

agreement.

In Yates's Spokane County judgment and sentence, the total sentence for the 14

counts was 4,900 months Gust over 408 years). At issue in this case are the sentences

for counts one and two. Those crimes occurred in 1975, prior to the Sentencing

2 In re Pers. Restraint of Yates No. 87518-9

Reform Act of 1981, chapter 9.94A RCW. The judge listed the sentences for counts

one and two each as 20 years. The sentences for all of the counts were to be served

consecutively.

Yates argues that his judgment and sentence is invalid because the 20-year

sentences for counts one and two exceeded the judge's legal authority under the law,

which required indeterminate life sentences (with a minimum of20 years) for those

counts. In his petition, Yates did not address the issue of prejudice or attempt to make

any showing thereof. The State contends that ( 1) Yates cannot file this personal

restraint petition because he agreed not to collaterally attack his plea, (2) the personal

restraint petition is time barred under RCW 10.73.090 because the judgment and

sentence was facially valid and the personal restraint petition was not filed within one

year of the judgment becoming final, and (3) Yates cannot withdraw his plea because

he failed to show any prejudice resulting from any error.

ISSUES PRESENTED

1. Is Yates precluded from filing this personal restraint petition because he

agreed not to collaterally attack his guilty plea in exchange for the State dismissing

one murder count against him?

2. Is Yates's judgment and sentence facially invalid, thus allowing his personal

restraint petition to avoid the one-year time bar?

3 In re Pers. Restraint of Yates No. 87518-9

3. Can Yates withdraw his guilty plea based on the misinformation in his

judgment and sentence despite his failure to make any showing of prejudice?

ANALYSIS

1. Yates's Plea Agreement Does Not Bar Collateral Attacks

As part of Yates's plea agreement, the prosecutors agreed to dismiss without

prejudice one count of aggravated first degree murder for the death of McClenahan.

In exchange, Yates agreed

that (a) any attempt to withdraw his guilty pleas; or (b) any attempt to collaterally attack any conviction entered under this cause, through personal restraint petition, habeas corpus action, or any other method, will authorize the State tore-file one count of aggravated first degree murder regarding the death of Shawn McClenahan and to seek any lawful sentence, including death.

Pers. Restraint Pet., App. D at 3-4 (Plea Agreement). The parties further agreed that a

breach of this provision by Yates would not be a ground for vacating any conviction

or guilty plea he entered under the agreement, even if the State had cause to refile the

murder charge for the death of McClenahan.

The State argues that the plea agreement constitutes a waiver of Yates's right to

collaterally attack his guilty plea and that his personal restraint petition is thus void ab

initio. The State is incorrect. Nothing in the plea agreement prohibits Yates from

filing a collateral attack on his plea. The agreement simply provides that if Yates

collaterally attacks his guilty plea, the State may refile charges based on the death of

McClenahan. This personal restraint petition is a collateral attack on Yates's guilty

4 In re Pers. Restraint of Yates No. 87518-9

plea. Therefore, the State may consider this personal restraint petition a breach of the

plea agreement and attempt to refile the McClenahan charge. However, Yates never

waived his right to collaterally attack his plea and thus he may proceed with this

petition. 1

2. Yates Is Not Subject to the One-Year Time Bar Because His Judgment and Sentence Is Facially Invalid

Generally, personal restraint petitions must be filed within one year of a

judgment becoming final. RCW 10.73.090(1). There are a number of exceptions to

this one-year requirement, including a judgment and sentence that is facially invalid.

RCW 10.73 .090( 1), .1 00. Yates argues that his judgment and sentence is facially

invalid and thus not subject to the one-year limit.

Specifically, Yates faults the trial court for imposing 20-year determinate

sentences for counts one and two. Those murders were committed on July 13, 1975-

prior to the Sentencing Reform Act of 1981. By law, when a court sentences an

individual for a crime that occurred before July 1, 1984, it must set a minimum term.

RCW 9.95.011(1). After the individual serves the minimum term, the Indeterminate

Sentence Review Board may consider him or her for parole, but may not reduce or

increase the minimum term set by the court. !d.

1 Because Yates did not waive his right to collateral attack, we do not address whether a complete waiver of collateral attack rights would be enforceable.

5 In re Pers. Restraint of Yates No. 87518-9

Generally, a judgment is facially invalid when "a court has in fact exceeded its

statutory authority in entering the judgment or sentence." In re Pers. Restraint of

Coats, 173 Wn.2d 123, 135, 267 P.3d 324 (2011). For example, when a defendant

pleaded guilty to a lesser charge in exchange for a prohibition on his ability to earn

early release time, we held that the judgment and sentence was facially invalid

because the judge lacked the statutory authority to restrict the defendant's ability to

earn early release time. In re Pers. Restraint of West, 154 Wn.2d 204, 215-16, 110

P.3d 1122 (2005).

In this case, the judge exceeded his statutory authority in entering the judgment

and sentence. He only had authority to impose a 20-year minimum sentence for

counts one and two, but instead he imposed a 20-year determinate, or maximum,

sentence. The authority for determining the maximum sentence rests with the

Indeterminate Sentencing Review Board. RCW 9.95.011(1). This case differs from

Coats, where the court found that a judgment and sentence was valid on its face when

the error related only to the sentencing range. 173 Wn.2d at 143. Here, the error

relates to the actual sentence imposed. The law does not allow the judge to set a

maximum or determinate sentence as the judge did on counts one and two. Thus, the

sentence was outside of the judge's statutory authority. Yates is correct that his

judgment and sentence is facially invalid and, as a result, his petition is not time

barred.

6 In re Pers. Restraint of Yates No. 87518-9

3. Yates Does Not Show That the Judge's Sentence for Counts One and Two Resulted in Any Prejudice

Yates seeks to withdraw his plea, contending that it was not knowing,

voluntary, and intelligent because he was not informed that the proper sentence for

counts one and two was an indeterminate sentence of 20 years to life rather than a

determinate sentence of20 years. Generally, a personal restraint petitioner alleging

constitutional error must show actual and substantial prejudice. In re Pers. Restraint

of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990). But Yates does not address the

issue of prejudice in his petition or reply-even though one of the State's primary

arguments in its response is that his petition fails because it does not show actual and

substantial prejudice. For support, Yates cites two cases that do not seem to require

prejudice under somewhat similar facts: In re Pers. Restraint of Isadore, 151 Wn.2d

294, 299-300, 88 P.2d 390 (2004), and In re Pers. Restraint ofBradley, 165 Wn.2d

934, 939-41' 205 p .3d 123 (2009).

We recently analyzed both Isadore and Bradley in In re Personal Restraint of

Stockwell,_ Wn.2d _ _, 316 P.3d 1007 (2014), where we directly addressed the

issue of whether a personal restraint petitioner alleging that misinformation rendered

his plea involuntary must show actual and substantial prejudice. !d. at 1015. In

Stockwell, we clarified that a personal restraint petitioner attempting to withdraw his

plea because of misinformation must show actual and substantial prejudice. !d. We

explained that Isadore did not require the petitioner to show actual and substantial

7 In re Pers. Restraint of Yates No. 87518-9

prejudice because the unique circumstances of the case compelled the court to apply

the direct appeal standard rather than the personal restraint petition standard. !d. at

1013. We also explained that Bradley cited Isadore, thus applying that same standard.

!d. at 1013-14, 1015. We ultimately issued a clear holding: "a [personal restraint]

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." !d. at 1015. That holding is on point in this case.

Applying our holding in Stockwell, Yates must show actual and substantial

prejudice in order to obtain relief through this personal restraint petition. As noted

above, Yates did not address prejudice in his petition or in his reply. His only attempt

to show that he was prejudiced by the error in his sentence was in a later supplemental

declaration where he indicated that he would not have taken the plea deal if he had

known that the sentences for two of his murder charges were 20 years rather than

what the law required: an indeterminate life sentence with a minimum of 20 years.

However, we do not attempt to look into the mind and motivations of the defendant

when determining whether an error resulted in prejudice. !d. Instead, we evaluate the

practical effects that result from the error. !d.

In this case, there was no practical effect resulting from the error. Yates agreed

to a sentence of 408 years in prison and he should have been sentenced to a minimum

8 In re Pers. Restraint of Yates No. 87518-9

of 408 years with a potential extension to a life sentence. 2 Given the reality of the

human life-span, there is no difference between those two sentences. There is simply

no way to find prejudice in this context. Without a showing of prejudice, the petition

must be dismissed.

CONCLUSION

To avoid the death penalty for 13 murders, Yates agreed to plead guilty and

spend the rest of his life in prison by way of a 408-year sentence. He was fully

informed of the consequence of that plea: there was no possibility that he would ever

be released from prison, regardless of how long he lived. We see no reason to

invalidate his plea. His petition is dismissed.

2 The dissent contends that there are two practical differences between the 408-year sentence Yates received and the sentence he should have received. First, the two 20-year sentences for counts one and two could have run concurrently rather than consecutively. Second, Yates may have been eligible for parole on counts one and two. But, of course, neither of those differences would have had any effect until after Yates had served his 368-year sentence on the rest of the counts. We stand by our conclusion that humans do not live long enough for these differences to have any practical effect.

9 In re Pers. Restraint of Yates No. 87518-9

WE CONCUR:

10 In re Pers. Restraint of Yates (Robert Lee)

No. 87518-9

STEPHENS, J. (concurring)-! agree with much of the analysis in Justice

Gordon McCloud's dissent. In particular, the relevant question in deciding whether

Yates may withdraw his guilty plea should be whether the (acknowledged)

misadvisement about the sentence he faced rendered his plea involuntary. This was

the inquiry in our key 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 the nature of the

charge, the elements, and whether Hews "had discussed with his attorney alternative

courses of action"); In re Pers. Restraint ofMendoza Montoya, 109 Wn.2d 270, 277,

744 P.2d 340 (1987). It was also the focus of the United States Supreme Court's

principal decision on this topic. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct.

1709, 23 L. Ed. 2d 274 (1969). This measure of prejudice is similarly reflected in

landmark decisions on the related topic of what constitutes ineffective assistance of

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 In re Pers. Restraint of Yates, Jr. (Robert Lee), 87518-9 (Stephens, J. Concurrence)

assistance claim arising in the plea context from requirement that the 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).

Nonetheless, I find it difficult to distinguish this case from the court's recent

decision in In re Personal Restraint of Stockwell,_ Wn.2d _ , 316 P.3d 1007

(2014). There, this court found no prejudice because:

the sentence [Stockwell] 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 Wash.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.

I d. at 1015. Applying that reasoning here, Yates cannot demonstrate prejudice. As the majority notes, even though his sentence was unauthorized, there is no practical

difference in a human life span between the sentence imposed and the one Yates

should have received. See majority at 9 & n.2.

While I joined the dissent in Stockwell, it did not carry the day. At the same

time, the court in Stockwell did not purport to overrule any cases. Thus, being true

to all the relevant precedent-not just Stockwell, but also Hews II, Mendoza

-2- In re Pers. Restraint of Yates, Jr. (Robert Lee), 87518-9 (Stephens, J. Concurrence)

Montoya, and the federal cases cited above-we should not so easily dismiss Yates's

personal restraint petition. We should instead consider whether he has overcome the

strong presumption that his guilty plea was validly entered.

In so doing, we need not accept at face value Yates's self-serving statement,

made years after the fact, that he would not have pleaded guilty in an effort to avoid

a death sentence had he known that he faced less than 408 years in prison but would

still be in prison for the rest of his life. Cf State v. Osborne, 102 Wn.2d 87, 97, 684

P.2d 683 (1984) (defendant seeking to withdraw plea must present some evidence

of involuntariness beyond his self-serving allegations). Because I agree with the

majority that "there was no possibility that he would ever be released from prison,"

majority at 9, Yates has not demonstrated that the misadvisement he received about

the particular sentence he faced invalidated his decision to plead guilty. For this

reason, I concur in the majority's conclusion that he has not demonstrated prejudice

entitling him to relief in this personal restraint petition.

-3- In re Pers. Restraint of Yates, Jr. (Robert Lee), 87518-9 (Stephens, J. Concurrence)

s~/~-

-4- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

GORDON McCLOUD, J. (dissenting)-This personal restraint

petition (PRP) was filed by a man, Robert Lee Yates Jr., who received an

illegal sentence. The majority acknowledges this. Majority at 6. This PRP

is timely, given that the illegality of the sentence is clear from the face of the

judgment. The majority acknowledges this, too. Majority at 6-7. This PRP

is based on proof that Yates was given misinformation about the sentence he

would receive for two of his murder convictions if he pleaded guilty, along

with proof (in the form of the judgment & sentence) that the trial judge in

fact imposed illegal sentences on those two convictions. The majority

acknowledges this as well. Majority at 6. In fact, the sentence was not just

"illegal" in a technical sense but, under the controlling legislation, the

sentence fell outside the authority of the judge to impose. The majority

acknowledges this final point, too. ld.

The majority, however, asserts that the PRP raises a single claim of

invalidity of the plea due to misinformation about its consequences; that In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

Yates must prove prejudice to prevail on this claim; and that Yates failed to

prove prejudice because both the legal and illegal sentences, and both the

misinformation and true information about sentencing consequences, were

so similar.

I respectfully disagree. As I read the PRP, Yates has raised not one

but three claims based on this set of facts: ( 1) that the plea is invalid because

it was not knowing, intelligent, and voluntary, PRP at 3-4, 9-10 (citing,

among other things, the misinformation about consequences provided to

Yates by both the trial court at sentencing and the "Statement of Defendant

on Plea of Guilty"); (2) that the sentence actually imposed is illegal because

it exceeds the authority of the court, PRP at 4-7; and (3) that the sentence

actually imposed is illegal because it violates due process clause protections

against retrospective application of new criminal punishments, PRP at 9.

Only Yates's first claim potentially entitles him to the relief he seeks-

withdrawal of his plea-but each claim merits examination.

A. A Petitioner Claiming a Plea Was Involuntary Must Show Prejudice, and Yates Has Done So Here

Yates's first claim is that his guilty plea was not 1mowing, intelligent,

and voluntary, and that he suffered prejudice because material

misinformation affected his decision about whether to plead guilty. The

- 2- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

majority, however, characterizes the prejudice question as whether the

illegal 408-year determinate sentence imposed is really worse, as a practical

matter, than a legal sentence of "408 years with a possible extension to life

in prison" would have been. Majority at 1. The majority then answers the

question no-it rules that sentences of 408 years, or 408 years give or take a

few, are not meaningfully different.

I disagree with the majority's analysis of prejudice for two reasons.

First, the determinate SRA 1 sentence that was illegally imposed-a total of

40 years-is actually more harsh, not less harsh, than the legal,

indeterminate, sentence (which could have been reviewed for parolability in

13 years and 4 months) would have been. Second, comparing the length of

the sentence that should have been imposed with the length of the sentence

that was actually imposed is the wrong way to decide if misinformation

caused prejudice. Instead, this court should ask whether the misinformation

affected the decision to plead guilty.

1. Yates's Sentence Is More Harsh, Not More Lenient, Than a Lawful Sentence Would Have Been

Under the sentencing law applicable to Yates's two 1975 cnmes,

Yates's sentence for each of those pre-SRA crimes should have been 20

1 Sentencing Reform Act of 1981, chapter 9.94A RCW.

-3- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

years to life. But those 20-year pre-SRA sentences were not as harsh as the

20-year SRA sentences that Yates actually received, for several reasons.

First, the illegal determinate SRA sentences actually imposed had to

run consecutively. RCW 9.94A.589(1)(b). The pre-SRA sentences for the

1975 crimes could have been run concurrently-a point that the PRP makes.

PRP at 13.

Next, the illegal determinate SRA sentences actually imposed did not

allow accrual of good time. They required service of a full 20 years, plus

another full 20 years, without "any . . . form of early release." RCW

9.94A.540(1)(a), (2). 2 In contrast, defendants sentenced for murder under

the pre-SRA law (which should have applied to Yates's two 1975

convictions) were entitled to up to one-third of their sentences off for good

time-meaning that a defendant sentenced to 20 years could have a first

parolability hearing at 13 years, 4 months. See RCW 9.95.110(1)

(establishing up to one-third off sentence for good time for "an offender

2 Note that this statute was recodified from former RCW 9.94A.590 (2000), which went into effect in 2001, the year after Yates entered his guilty pleas. LAWS OF 2000, ch. 28, §§ 7, 46. However, the legislature made clear that the 2001 amendments to the SRA were for clarifying purposes only and not to be construed as making "a substantive change in the sentencing reform act." !d. § 1. The determinate sentencing statute in effect at the time of Yates's guilty pleas also required a 20-year minimum sentence without any form of early release. Former RCW 9.94A.120(4) (1998).

- 4- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

convicted of a cnme committed before July 1, 1984"); RCW 9.95.115

(establishing availability of parole after "twenty consecutive years less

earned good time").

So the pre-SRA sentence that should have been imposed was really

more lenient, not less lenient, than the SRA sentence that was actually

imposed. 3 The majority therefore errs in concluding that the pre-SRA

3 To be sure, this conclusion is based on some guesswork about which version of the illegal SRA sentence was really imposed, and what the consequence of a pre-SRA indeterminate sentence would have been. The rules applicable to pre-SRA prisoners have changed over time. In 1991, after the two murders at issue but before Yates's 2000 pleas, pre-SRA prisoners argued that because former RCW 9.95.115 (1989) allowed parole consideration as early as 20 years less good time from the date upon which they began serving their sentences, while a new law, enacted as Substitute H.B. 1457, 51st Leg., Reg. Sess. (Wash. 1989) (SHB 1457), required the Indeterminate Sentence Review Board to set minimum terms for those with life sentences '"reasonably consistent"' with SRA guidelines, that new law retrospectively increased their punishment. In re Pers. Restraint of Powell, 117 Wn.2d 175, 187, 814 P.2d 635 (1991) (quoting RCW 9.95.009(2)). These inmates explained that SRA guidelines provide sentences that are, on the whole, much higher than the 20 years less good time that former RCW 9.95.115 required prior to parole consideration, and this court agreed. We stated, "It is therefore unlikely that a 20-year minimum term will be given under the SRA to a person serving a mandatory life term. In fact, the sentences given to petitioners in this case clustered in the 25- to 27-year range." !d. at 188. "Thus, argue petitioners, since adherence to the SRA actually results in a longer period of incarceration before they can be considered for parole, the law which requires that adherence works to their disadvantage and is ex post facto." !d. This court rejected the petitioner's conclusion only because the old SRA sentences left some discretion-they would not necessarily become more harsh under SHB 1457. This court's reasoning, however, was based on the clear belief that the SRA itself was more harsh-and mandatorily so-than pre-SRA law.

-5- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

sentences that should have been imposed and the SRA sentences that were

illegally imposed are indistinguishable.

11. Prejudice Means That Misinformation Stripped the Plea Process of a Knowing, Intelligent, and Voluntary Character, Not That the Result Was a Particular Term of Years

The majority also asserts that Yates alleged no other prejudice at all:

"Yates does not address the issue of prejudice in his petition or reply-even

though one of the State's primary arguments in its response is that his

petition fails because it does not show actual and substantial prejudice."

Majority at 7; see also id. at 8 ("Yates did not address prejudice in his

petition or in his reply").

The majority errs on this point, too. Yates addressed prejudice in his

PRP by describing the misinformation he received. PRP at 9-12. He did

state that prejudice should be presumed, but he also explained that the

misinformation concerned a critical "direct consequence" of his plea. PRP

at 12-13. Yates then explained in detail, in a signed declaration submitted in

support of his PRP, that he would not have accepted the plea agreement if he

How this would have affected Yates, in particular, however, might well be a factual question. If such facts are in dispute, they should be fleshed out at an evidentiary hearing under RAP 16.11 (b), not assumed by this court. See In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-87, 828 P.2d 1086 (1992).

-6- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

had been correctly informed-he stated under penalty of perjury that it

affected his decision-making process. Pet'r' s Suppl. Decl. (Decl. of Robert

Yates ~ 3) ("If I had been told that Counts I and II required indeterminate

life sentences, I would not have pleaded guilty and would not have accepted

the State's 'package deal."').

The majority acknowledges that Yates submitted the supplemental

declaration, explaining Yates's position that "he would not have taken the

plea deal if he had known that the sentences for two of his murder charges

were 20 years rather than what the law required: an indeterminate sentence

with a minimum of 20 years." Majority at 8 (referencing Yates's

declaration). The State provided no contrary declaration, affidavit, or

statement of facts on this point. But, giving the State and the majority the

benefit of the doubt, let us assume there is-good-reason to question Yates's

version of the facts. We would then be faced with the question of what to do

when the material facts-here, whether the misinformation affected Yates's

decision to plead guilty-are in dispute. Under controlling precedent and

court rules, the answer is that this court must refer the PRP to the superior

court for a reference hearing under RAP 16.11(b), not summarily reject it.

See In re Pers. Restraint of Rice, 118 Wn.2d 876, 886-87, 828 P.2d 1086

- 7- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

(1992) ("[T]he State must meet the petitioner's evidence with its own

competent evidence. If [there are] material disputed issues of fact, then the

superior court will be directed to hold a reference hearing .... ").

The State, and the majority, discount this allegation of prejudice by

saying it is not the kind of prejudice that counts: '"'[W]e do not attempt to

look into the mind and motivations of the defendant when determining

whether an error resulted in prejudice. Instead, we evaluate the practical

effects that result from the error." Majority at 8 (emphasis added) (citation

omitted) (citing In re Pers. Restraint of Stockwell,_ Wn.2d _, 316 P.3d

1007, 1014-15 (2014)). "In this case, there was no practical effect resulting

from the error. Yates agreed to a sentence of 408 years in prison and he

should have been sentenced to a minimum of 408 years with a potential

extension to a life sentence." Majority at 8-9 (emphasis added).

As discussed above, it is factually incorrect to say there was no

practical effect from the error.

It is also legally incorrect. It is the wrong definition of what

"prejudice" means in this context. As I explained in my concurrence in

Stockwell, controlling United States Supreme Court authority instead holds

that misadvice in this context causes prejudice when it affects the criminal

-8- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

defendant's decision-making process. Boykin v. Alabama, 395 U.S. 238,

242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Controlling authority from

this court says the same thing. In re Pers. Restraint of Hews, 108 Wn.2d

579, 594, 741 P.2d 983 (1987). I acknowledge that a majority of this court

recently retreated from that definition of "prejudice" in certain contexts.

Stockwell, 316 P.3d 1007. But I believe that we are not free to retreat from

United States Supreme Court authority on this point, particularly as it

applies to Yates.

I therefore conclude that Yates has alleged prejudice as a matter of

law, and also as a matter of fact.

B. The Illegality of the Sentence Is a Separate Legal Claim, Cognizable for the First Time in This Timely PRP; Had Yates Requested Resentencing, It Would Require Relief without Any Additional Showing of Prejudice

Yates's allegation that the sentence imposed was illegal is a separate

claim. A claim that the sentence actually imposed was outside the court's

power is separately cognizable in a PRP and warrants relief. In fact, this

court did a voluminous analysis of this issue about a decade ago in In re

Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002). The

Goodwin court unanimously concluded that an erroneous sentence imposed

without statutory authorization can be challenged via a PRP, even outside

-9- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

the one-year time limit, and that the prisoner proving such a claim is entitled

to relief. !d. at 873-77; see also In re Pers. Restraint of Moore, 116 Wn.2d

30, 803 P.2d 300 (1991).

Yates, however, asks this court to remand to the superior court to

permit him to withdraw all of his "package" guilty pleas. PRP at 13. This

remedy is not available to him. The remedy for the illegal sentences in

Goodwin and Moore was resentencing-the petitioner in those cases did not

seek to withdraw a plea. Yates would be entitled to resentencing had he

requested it. But the illegality of the sentence does not, alone, allow Yates

to withdraw his plea agreement.

C. The Retrospective Application of the Sentence Is a Separate Due Process Claim, Cognizable for the First Time in This Timely PRP; Had Yates Requested Resentencing, It Would Also Require Relief without Any Additional Showing ofPrejudice

Finally, the majority ignores Yates's claim that his SRA sentences on

the two pre-SRA crimes violated the ex post facto and due process clauses of

the state and federal constitutions. PRP at 9. A claim of such a

constitutional violation is separately cognizable in a PRP. RAP 16.4(c)( 6).

The ex post facto clause "'forbids the application [by the legislature]

of any new punitive measure to a crime already consummated.'" Kansas v.

Hendricks, 521 U.S. 346, 370, 117 S. Ct. 2072, 183 L. Ed. 2d 501 (1997)

- 10- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

(quoting Cal. Dep't ofCorr. v. Morales, 514 U.S. 499, 505, 115 S. Ct. 1597,

131 L. Ed. 2d 588 (1995)); see also U.S. CONST. art. I, § 10, cl. 1; CONST.

art. I, § 23. "A law violates the ex post facto clause if it: (1) is substantive,

as opposed to merely procedural; (2) is retrospective . . . ; and (3)

disadvantages the person affected by it." In re Pers. Restraint of Powell,

117 Wn.2d 175, 185, 814 P.2d 635 (1991) (citing Weaver v. Graham, 450

U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981)). That test is satisfied

here. The length and conditions of Yates's murder sentences are

substantive, not merely procedural. 4 The SRA sentences were applied

retrospectively to conduct occurring before the SRA's enactment. And, as

discussed above, the two consecutive 20-year flat-time sentences likely

disadvantaged Yates because he might have served legal sentences in 13

years, 4 months under the old law. 5 The legislature, however, is not at fault;

4In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 170, 949 P.2d 365 (1998) (in context of ex post facto challenge, changes to compel "application of determinate sentencing to a pre-SRA offender fundamentally alter[] the sentencing scheme and [we] hold the changes are substantive"). 5 Cf Powell, 117 Wn.2d 175 (SHB 1457 not ex post facto as applied to prisoners who were not certified as parolable by superintendent of their prison on its effective date but was ex post facto as applied to prisoners certified as parolable before then); In re Pers. Restraint of Haynes, 100 Wn. App. 366, 377-78, 996 P.2d 637 (2000) (addition of subsection (3) to RCW 9.95.009 does not violate ex post facto clause because the claim that it was disadvantageous was too speculative).

- 11 - In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

it was the sentencing court, not the legislature, that applied the SRA

sentences retrospectively. But we have clearly held that similar rules apply

to the courts: the due process clause forbids the application by the courts of

any new punitive measure to a crime already consummated. State v. Aha,

137 Wn.2d 736, 741-42, 975 P.2d 512 (1999). Application of the SRA

sentence for first degree murder to Yates's conduct, which occurred before

the SRA was enacted, is therefore unconstitutional.

Finally, no additional prejudice need be shown on this claim.

Imposing a new and more harsh sentence on a defendant whose cnmes

occurred before the new sentencing law is, alone, reversible error. 6

The remedy for a sentence that violates ex post facto principles,

however, is, in the circumstances of this case, the same as the remedy for an

illegal sentence-resentencing. See In re Pers. Restraint of Stanphill, 134

Wn.2d 165, 168-69, 949 P.2d 365 (1998) (discussing petitioner's request for

his sentencing to be based on law in place at the time). Yates did not request

resentencing, and he is not entitled to withdraw his plea agreement on the

basis of the due process clause violation at issue here.

6 See In re Pers. Restraint of Thompson, 141 Wn.2d 712, 725, 10 P.3d 380 (2000) ("Thompson is therefore entitled to relief from his sentence because he pleaded guilty to an offense which occurred before the effective date of the statute creating the offense.").

- 12- In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

Yates raises three arguments: ( 1) that he is entitled to withdraw his

plea because misinformation rendered his plea involuntary, (2) that his

sentence was illegally imposed, and (3) that his sentence violates due

process clause protections against retroactive application of laws by the

judiciary. The majority addresses only one of those arguments on its

merits-the involuntary plea argument-and holds that Yates cannot show

prejudice because the sentence that should have been imposed and the

sentence that was illegally imposed are both extremely long. But Yates has

alleged prejudice of two sorts: he has alleged that the misadvice affected his

plea, and he has alleged that the SRA sentence imposed results in a longer

term of imprisonment than did the pre-SRA sentence that should have been

imposed.

If there is any question about whether the illegal SRA sentence

imposed on Yates was more harsh than a legal indeterminate sentence would

have been despite the general differences between those two sentences

summarized in Part (A)(i) above, that is a factual question about how Yates

might have fared in a parolability hearing, which must be resolved via a

reference hearing under RAP 16.11 (b). And the United States Supreme

- 13 - In re the Pers. Restraint of Yates, No. 87518-9 (Gordon McCloud, J., Dissenting)

Court has held that the application of parole laws by parole boards, in

practice, can be considered in determining whether changes in those laws

would have been more or less harsh in practice. 7

Yates has also proved his two other claims. The only remedy

available for those two errors, however, is resentencing, and Yates has not

requested this; thus he is not entitled to relief on those two claims.

I would therefore remand this case to the trial court with instructions

to hold a reference hearing under RAP 16.11(b) as required by Rice, 118

Wn.2d at 885-87, to determine the factual issues identified above in Part A:

( 1) whether Yates can prove by the appropriate legal standard that a legal

pre-SRA sentence would have been shorter than the sentence he actually

received, and (2) whether the misinformation Yates received about his

sentence actually affected his decision to plead guilty.

I respectfully dissent.

7 Garner v. Jones, 529 U.S. 244, 120 S. Ct. 1362, 146 L. Ed. 2d 236 (2000); Morales, 514 U.S. 499 (ex post facto clause context).

- 14- In re the Pers. Restraint of Yates, No. 87518-9 Gordon McCloud, J., Dissenting