In re the Personal Restraint of Vazquez

108 Wash. App. 307, 2001 WL 1002702
CourtCourt of Appeals of Washington
DecidedSeptember 4, 2001
DocketNo. 43703-8-I
StatusPublished
Cited by5 cases

This text of 108 Wash. App. 307 (In re the Personal Restraint of Vazquez) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Personal Restraint of Vazquez, 108 Wash. App. 307, 2001 WL 1002702 (Wash. Ct. App. 2001).

Opinion

Appelwick, J.

In this personal restraint petition (PRP), Miguel Vazquez, Jr., petitions this court for relief from judgment. The primary issue is whether the PRP is barred by RCW 10.73.140, which prevents this court from considering, without good cause, a PRP from a petitioner who has “previously filed” a PRP. Vazquez previously filed a motion to vacate the judgment in the trial court. Pursuant to CrR 7.8, the trial court transferred the motion to this court, where it was relabeled and decided as a PRP. We hold that the motion transferred under CrR 7.8 is a “previously filed” PRP for purposes of RCW 10.73.140. We remand to the trial [309]*309court for a determination of whether Vazquez can show good cause for failing to raise in his previous petition the issues he now wishes to raise.

FACTS

Miguel Vazquez, Jr., was convicted of the crime of possessing cocaine with intent to manufacture or deliver.1 Following a jury trial, Vazquez was sentenced to a term of 27 months on April 10, 1992. Vazquez appealed his conviction to the Court of Appeals, Division One.

The Washington Appellate Defender Association (WADA) was appointed to represent Vazquez on appeal. A WADA attorney filed an appellant’s brief. The sole issue the WADA attorney raised was a challenge to the trial court’s jury instruction on accomplice liability. The State filed a motion on the merits to affirm the conviction. A hearing on the motion was scheduled.

Some months later, private attorney George Trejo was substituted as counsel in Vazquez’s appeal, and WADA withdrew. Trejo filed a motion to vacate the judgment in the trial court on November 16, 1994, citing CrR 7.8(b). In the motion, Trejo asserted a double jeopardy challenge and a claim that Vazquez’s trial counsel was ineffective for failing to seek suppression of evidence seized pursuant to a search warrant. Trejo admitted that he could not argue the ineffective assistance of counsel issue, because he had not yet reviewed the search warrant affidavit.

On the same date, Trejo filed a motion to stay proceedings in the Court of Appeals pending the trial court’s decision on the motion to vacate the judgment. Trejo noted in the motion to stay that he was raising two new issues before the trial court: a double jeopardy challenge and an ineffective assistance of counsel claim.

Trejo mailed copies of his motions to Vazquez, together with a letter dated November 17, 1994. Trejo stated in the [310]*310letter that he was raising new claims regarding double jeopardy and ineffective assistance of counsel.

Vazquez claims that after the November 17, 1994, letter, he never heard from Trejo again. Vazquez claims that Trejo neither communicated with him nor provided him with copies of any subsequent briefs or court documents. Consequently, Vazquez was unaware of any of the further developments in his case.

The trial court issued an order transferring the motion to vacate the judgment to the Court of Appeals pursuant to CrR 7.8(c)(2). The Court of Appeals accepted the motion as a personal restraint petition, and consolidated it with Vazquez’s appeal. Vazquez claims that he was not notified that he now had a personal restraint petition pending in the appellate court.

The State filed a responsive brief addressing the double jeopardy issue. But the State did not respond to Trejo’s claim that counsel was ineffective for failing to challenge the search warrant. The State noted that Trejo had presented no factual basis for the claim.

On August 28, 1997, this court entered an order granting the State’s motion on the merits to affirm the conviction and dismissing the personal restraint petition. In the order, the court addressed the double jeopardy and accomplice liability jury instruction issues. The order did not mention or address Trejo’s claim that trial counsel was ineffective for failing to move to suppress evidence.

Vazquez claims that he never received a copy of this court’s order, nor was he otherwise informed that his conviction had been affirmed or that he had a right to move to modify the order. He claims that he never learned of the dismissal of a personal restraint petition in his name or of his right to move for discretionary review of the dismissal.

On November 13, 1997, the mandate issued, formally ending Vazquez’s appeal.

One year later, Vazquez filed another personal restraint petition. In the petition, he argued that (1) he was denied [311]*311his right to appeal when he was not kept informed of the status of proceedings in the Court of Appeals and the need to move to modify the court’s decision affirming his conviction and (2) both his trial and appellate attorneys were ineffective for failing to challenge the sufficiency of the search warrant.

In its response, the State did not address the merits of Vazquez’s claims. Instead, the State argued that the PRP was procedurally barred under RCW 10.73.140 and RAP 16.4(d), because this court had previously entertained a PRP for Vazquez. In the alternative, the State argued that this court should remand for a reference hearing to determine whether Vazquez could establish good cause to bring this successive petition.

This court entered an order directing Vazquez’s attorney George Trejo to file an affidavit regarding his handling of the case. In response, Trejo attested that although his file contained no notes indicating that he had advised Vazquez of his right to move to modify or seek discretionary review of this court’s order granting the motion on the merits and dismissing the PRP, he has always informed his clients of this right.

ANALYSIS

Before we can reach the merits of Vazquez’s personal restraint petition, we must decide the procedural issue that is now before us. The question is whether Vazquez’s PRP is barred because this court has already considered a PRP on Vazquez’s behalf. The PRP is potentially barred under RCW 10.73.140 and RAP 16.4(d).

I. RCW 10.73.140

RCW 10.73.140 provides:

If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon [312]*312receipt of a personal restraint petition, the court of appeals shall review the. petition and determine whether the person has previously filed a petition or petitions and if so, compare them.

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Bluebook (online)
108 Wash. App. 307, 2001 WL 1002702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-vazquez-washctapp-2001.