Filed Washington State Court of Appeals Division Two
March 9, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JOHN FREDRICK FLYNN, III, No. 53703-6-II
Appellant,
v.
PIERCE COUNTY, PUBLISHED IN PART OPINION
Respondent,
CHARLES BONET, LORI KENNEDY, and PATRICIA PETHICK,
Defendants.
CRUSER, J. – Following the State’s error in calculating his offender score and his defense
counsel’s failure to contest the State’s calculation, John Frederick Flynn, III spent approximately
31 months incarcerated beyond the high end of his correct standard range sentence. After Flynn’s
resentencing and subsequent release, Flynn filed a lawsuit against Pierce County, his trial criminal
defense counsel Charles Bonet, the deputy prosecuting attorney,1 and his appellate counsel
(collectively “the County”). The trial court entered an order dismissing Flynn’s claim pursuant to
CR 12(b)(6). Flynn appeals, arguing that his complaint was timely filed and that he alleged a set
1 Flynn’s claims against the deputy prosecuting attorney were for false imprisonment and for a violation of his rights under the Eighth Amendment to the United States Constitution raised under § 1983. Those claims were dismissed, and Flynn does not seek review of the dismissal. No. 53703-6-II
of facts in his complaint pertaining to criminal malpractice that would justify recovery.
Specifically, he asserts that the harm he suffered was caused by his attorneys’ negligence, and the
original sentencing court’s adoption of an erroneous offender score was not a superseding,
intervening event and thus did not absolve the county or its agents of liability.2
In the published portion of this opinion, we hold that Flynn’s claim is not barred by the
statute of limitations. In the unpublished portion of this opinion, we hold that Flynn cannot
establish causation as to his negligence claim because the original sentencing court’s adoption of
an incorrect offender score, despite its being advised of the correct offender score by the
Department of Corrections (DOC), was a superseding, intervening event that absolved the County
and its agents of liability. Because no set of facts exist that would justify recovery, we hold that
Flynn’s claim was properly dismissed pursuant to CR 12(b)(6).
Accordingly, we affirm.
FACTS
Flynn was convicted of one count of first degree rape and one count of first degree burglary
in a jury trial on March 3, 1994. He came before the superior court for sentencing on May 17,
1994. The Department of Corrections (DOC) reviewed Flynn’s criminal history prior to
sentencing, and in its Presentence Investigation Report (PSI), it determined that Flynn’s offender
score for the rape conviction was eight and that his offender score for the burglary conviction was
seven. Based on these offender scores, the PSI listed the standard range sentence as 185 to 245
2 Flynn additionally argues that the original sentencing court acted outside its authority in sentencing him beyond the standard range, but we do not reach this argument because Flynn fails to state a claim under CR 12(b)(6) on other grounds. 2 No. 53703-6-II
months confinement for the rape conviction and 67 to 89 months confinement for the burglary
conviction. Both convictions carried a statutory maximum sentence of life imprisonment.
The State’s offender score calculation differed from DOC’s, assigning to Flynn an offender
score of 13 for the rape conviction and 12 for the burglary conviction. For an offender score above
9 for the rape conviction, the standard range sentence was 210 to 280 months confinement, and for
an offender score above 9 for the burglary conviction, the standard range was 87 to 116 months.
In the PSI, DOC specifically noted that its offender score calculation differed from the State’s.
According to the facts averred in Flynn’s complaint, DOC set forth the basis for its offender score
calculation by listing the convictions and current offenses upon which it relied for its calculation.
Defense counsel appears to have not filed a sentencing memorandum, and he did not
otherwise contest the State’s calculation of Flynn’s offender score during the sentencing hearing.3
The original sentencing court adopted the State’s offender score calculation and sentenced Flynn
to the high end of the standard range. Flynn was thus sentenced to 280 months confinement on the
rape conviction and 116 months confinement on the burglary conviction, with the sentences to run
concurrently. The original sentencing court gave Flynn credit for the 201 days he had already
served.
Flynn appealed his convictions and filed a pro se personal restraint petition (PRP) that we
consolidated with his direct appeal. Appellate counsel did not assign error to the State’s offender
score calculation in Flynn’s direct appeal, and Flynn did not raise the issue in his PRP. We affirmed
3 The record does not contain a transcript of this hearing, and Flynn made this allegation in his complaint “[o]n information and belief.” Clerk’s Papers (CP) at 8. Because Flynn appeals a CR 12(b)(6) dismissal, we consider all facts alleged in the complaint as true. Woodward v. Taylor, 184 Wn.2d 911, 917, 366 P.3d 432 (2016). 3 No. 53703-6-II
Flynn’s convictions and dismissed his PRP. State v. Flynn, No. 18237-8-II (Wash. Ct. App. Aug.
23, 1996). The mandate issued on January 23, 1997.
In the years that followed, Flynn filed several additional PRPs, with one petition proving
successful. On July 1, 2016, the supreme court granted Flynn’s request for collateral relief,
agreeing that the original sentencing court erroneously calculated his offender score. Clerk’s
Papers (CP) at 126-27 (Order, In re Pers. Restraint of Flynn, No. 92411-2 (Wash. July 1, 2016)).
The State conceded that in calculating Flynn’s offender score, it included “some convictions for
crimes evidently committed by someone else,” and in other instances, “the history misidentified
the crimes of conviction.” Id. at 126.
The supreme court ruled that the correct calculation of Flynn’s offender score for the rape
conviction depended on the resolution of whether Flynn was under community supervision at the
time he committed the crime. The supreme court remanded for resentencing and instructed the
State to provide the sentencing court with the necessary documentation to prove Flynn’s offender
score and to allow the sentencing court to determine whether Flynn was under community
supervision when he committed the crimes.
On remand, the sentencing court recalculated Flynn’s offender score consistent with the
scores in DOC’s PSI. Consequently, the sentencing court determined that based on Flynn’s
offender score of 7 for the burglary conviction, the corresponding standard range sentence was 67
to 89 months confinement. On the rape conviction, the sentencing court determined that Flynn’s
offender score was 8 and his standard range sentence was 185 to 245 months. The sentencing court
sentenced Flynn to a total of 240 months confinement and acknowledged that Flynn had already
served 275 months and 26 days. A new judgment and sentence was entered on October 24, 2016,
4 No. 53703-6-II
and Flynn was released the following day. At the time of his release, Flynn had been incarcerated
for more than two and a half years longer than allowed by the correct standard range.
Flynn filed a complaint against the County in King County Superior Court on October 22,
2018. Flynn’s complaint alleged that the County was liable for the injuries he suffered due to his
overlong incarceration and that he was entitled to relief based on negligence, false imprisonment,
and a violation of his rights under the Eighth Amendment to the United States Constitution
pursuant to 42 U.S.C § 1983.
The County removed the case to federal court where Flynn voluntarily dismissed his §
1983 claims following Pierce’s County’s motion to dismiss. The federal court declined to exercise
its supplemental jurisdiction over Flynn’s remaining state law claims and remanded the matter to
King County Superior Court. By stipulated agreement, the parties changed the venue to Pierce
County.
Thereafter, the County moved to dismiss Flynn’s remaining claims of negligence and false
imprisonment under CR 12(b)(6), arguing that Flynn’s negligence claims failed because he did not
set forth a set of facts that would establish causation and that both claims should be dismissed
because the complaint was filed well after the applicable statute of limitations expired. Flynn
responded that his claim alleged sufficient facts to establish causation and that his cause of action
did not accrue until his resentencing, rendering his complaint timely. Flynn abandoned his false
imprisonment claim by the time he responded to the County’s motion.
The trial court agreed with the County and dismissed Flynn’s claims. Flynn appeals.
5 No. 53703-6-II
DISCUSSION
STATUTE OF LIMITATIONS
Flynn contends that his cause of action for criminal legal malpractice did not accrue until
his sentence was invalidated and his new sentence was imposed. Thus, he alleges that his claim
was timely because it was filed within three years of his post-conviction relief. We agree that
Flynn’s claim for legal malpractice was timely filed.
A. LEGAL PRINCIPLES
The applicable statute of limitations for a legal malpractice claim is three years. Cawdrey
v. Hanson Baker Ludlow Drumheller, P.S., 129 Wn. App. 810, 816, 120 P.3d 605 (2005). “Statutes
of limitations do not begin to run until a cause of action accrues,” which is usually “when the party
has the right to apply to a court for relief.” 1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn.2d
566, 575, 146 P.3d 423 (2006).
Under the discovery rule, a cause of action accrues “when the plaintiff discovers, or in the
reasonable exercise of diligence should discover, the elements of the cause of action.” Id. at 575-
76. The time of discovery is the point at which the plaintiff “discovers the salient facts underlying
the elements of the cause of action,” not when the plaintiff realizes that these facts give rise to a
legal claim. Id. at 576.
In Heck v. Humphrey, 512 U.S. 477, 490, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), the
United States Supreme Court held that a § 1983 cause of action “does not accrue until the
conviction or sentence has been invalidated.” The Court explained,
We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of
6 No. 53703-6-II
his conviction or confinement, just as it has always applied to actions for malicious prosecution.
We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
Id. at 486-87 (footnotes omitted).
B. APPLICATION
Flynn’s negligence claim is based on an allegation of legal malpractice in a criminal case,
which requires the plaintiff to have obtained postconviction relief “as a prerequisite” to
establishing proximate causation, a necessary element. Piris v. Kitching, 185 Wn.2d 856, 862, 375
P.3d 627 (2016). The public policy rationale supporting this requirement stems from the idea that
it is “‘inappropriate to treat victims of alleged negligence by defense counsel as having been
“harmed,” for the purpose of maintaining a legal malpractice action . . . unless they show that their
counsel failed to meet the established standards in a way that would make postconviction relief
appropriate.’” Falkner v. Foshaug, 108 Wn. App. 113, 118, 29 P.3d 771 (2001) (imposing, for the
first time, the requirement that a plaintiff alleging legal malpractice in a criminal case demonstrate
a successful post-conviction challenge) (alteration in original) (quoting Stevens v. Bispham, 316
Or. 221, 851 P.2d 556, 562 (1993)).
Applying the principles set forth in Piris and Heck, Flynn could not have brought this
action until he obtained post-conviction relief from his sentence because he was not able to litigate
the validity of his sentence in a civil tort claim. Stated another way, Flynn could not prove a claim
7 No. 53703-6-II
for legal malpractice in a criminal case predicated on an allegation that his counsel failed to
challenge an incorrect offender score calculation while still serving an ostensibly valid sentence
based on that score. See Heck, 512 U.S. at 486-87. Resolving Flynn’s legal malpractice claim
would necessarily require the civil court to decide whether his sentence was unlawful.
Further, Flynn could not have applied to a court for relief until his sentence had been
invalidated because post-conviction relief is a prerequisite to establishing proximate cause for a
legal malpractice claim in a criminal case. See Piris, 185 Wn.2d at 862. In that same vein, Flynn
could not have been aware of all “salient facts” pertaining to his claim until his sentence was
invalidated. See 1000 Virginia Ltd. P’ship, 158 Wn.2d at 576.
The County argues that under the discovery rule, Flynn’s cause of action accrued when he
was initially sentenced and that the rule articulated in Heck does not apply here because that rule
pertains only to unlawful convictions rather than unlawful sentences. These arguments are not well
taken. First, as explained above, even if Flynn knew he was incorrectly sentenced based on an
improperly calculated offender score at his initial sentencing hearing, he could not have brought
his legal malpractice claim until he obtained postconviction relief. See Piris, 185 Wn.2d at 862;
see also 1000 Virginia Ltd. P’ship, 158 Wn.2d at 576. Second, the Court in Heck did not limit the
accrual rule to civil tort suits that would challenge the validity of an underlying conviction; instead,
it also expressly referred to challenges to the validity of a sentence. 512 U.S. at 486-87. The
County’s contention that exoneration is not the same as a challenge to sentence length is thus an
unavailing distinction.
We agree with Flynn that his cause of action did not accrue until he obtained post-
conviction relief through resentencing. Therefore, his claim was timely commenced.
8 No. 53703-6-II
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2.06.040, it is so ordered.
Unpublished text follows.
CAUSATION
Flynn contends that the trial court erred in dismissing his negligence claim under CR
12(b)(6) because his complaint set forth facts which, if proven, would entitle him to recovery. The
County asserts that the trial court properly dismissed Flynn’s claim because Flynn cannot prove
that the County was the cause in fact of Flynn’s injuries when the original sentencing court’s order
was a superseding and intervening event.
We agree with the County.
A. STANDARD OF REVIEW
Under CR 12(b)(6) a trial court may dismiss a complaint that fails to “state a claim upon
which relief can be granted.” Dismissal on this basis is appropriate where “‘the court concludes,
beyond a reasonable doubt, the plaintiff cannot prove any set of facts which would justify
recovery.’” FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954,
962, 331 P.3d 29 (2014) (internal quotation marks omitted) (quoting Kinney v. Cook, 159 Wn.2d
837, 842, 154 P.3d 206 (2007)). We review a dismissal under CR 12(b)(6) de novo. Id.
When determining whether dismissal is appropriate, “[a]ll facts alleged in the complaint
are taken as true, and we may consider hypothetical facts supporting the plaintiff's claim.” Id. A
complaint cannot be dismissed if “‘any set of facts could exist that would justify recovery.’” Id. at
963 (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)). Therefore, a CR 12(b)(6)
9 No. 53703-6-II
motion should be granted “‘sparingly and with care’ and, as a practical matter, ‘only in the unusual
case in which plaintiff includes allegations that show on the face of the complaint that there is
some insuperable bar to relief.’” Kinney, 159 Wn.2d at 842 (internal quotation marks omitted)
(quoting Hoffer, 110 Wn.2d at 420)
B. LEGAL PRINCIPLES
Flynn’s negligence claim arises under a theory of legal malpractice. To establish a claim
of legal malpractice, the plaintiff has the burden of showing,
(1) [t]he existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.
Piris, 185 Wn.2d at 861 (alteration in original) (quoting Hizey v. Carpenter, 119 Wn.2d 251, 260-
61, 830 P.2d 646 (1992). Proximate causation contains two elements: cause in fact and legal
causation. Ang v. Martin, 154 Wn.2d 477, 482, 114 P.3d 637 (2005).
Cause in fact, also described as “‘but for’” causation, “refers to ‘the physical connection
between an act and an injury.’” Id. (quoting Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77
(1985)). A defendant is liable for a negligent action if that action, “unbroken by any new
independent cause,” is responsible for the harm alleged. Schooley v. Pinch’s Deli Market Inc., 134
Wn.2d 468, 482, 951 P.2d 749 (1998). But an intervening event will sever the chain of causation
and absolve the defendant of liability only where it is “so unexpected that it falls outside the realm
of the reasonably foreseeable.” Davis v. Baugh Indus. Contractors, Inc., 159 Wn.2d 413, 418, 150
P.3d 545 (2007). An exception to this general rule, applied with most frequency in the negligent
supervision context, exists where court intervention is identified as the potential superseding and
intervening cause of an alleged injury. Tyner v. Dep’t of Soc. & Health Servs., 141 Wn.2d 68, 86,
10 No. 53703-6-II
1 P.3d 1148 (2000). Where a judicial determination is involved, it will act as a superseding,
intervening event “if all material information has been presented to the court and reasonable minds
could not differ as to this question.” Id. at 88.
C. APPLICATION
Flynn contends that he has shown a set of facts which would justify recovery under CR
12(b)(6), and that the trial court erred in dismissing his negligence claim on this basis. Focusing
on foreseeability, Flynn asserts that the original sentencing court’s acceptance of the State’s
incorrect offender score calculation was a foreseeable harm and thus not a superseding cause that
would absolve the County of liability for the harm he suffered. In addition, Flynn contends that
the original sentencing court did not have all material information because his counsel did not
challenge the State’s offender score calculation.
However, Flynn acknowledged in his complaint both that the PSI contained the correct
offender score and that the PSI specifically alerted the sentencing court to the fact that its
calculation differed from the State’s. Further, Flynn’s complaint notes that DOC set forth Flynn’s
criminal history in the PSI to explain the basis of its calculation.
Flynn does not dispute that the sentencing court knew of the discrepancy between the two
offender score calculations. Rather, Flynn contends that because his counsel did not alert the court
to the discrepancy, and because “the PSI being present is not enough,” material information was
withheld. Reply Br. of Appellant at 7. There is no logic to Flynn’s suggested distinction.
When considering whether a judicial determination severed the causal chain, the
dispositive issue is the materiality of the withheld information. Tyner, 141 Wn.2d at 87. The
identity of the party who ultimately provides the material information is of no consequence
11 No. 53703-6-II
because the court is able to make a fully informed and independent decision regardless of the
presenter. Moreover, Flynn provides no support for his assertion that the information must be
presented by any particular individual or party to qualify as “material” in this context. We may
therefore assume that no such supporting authority exists. See State v. Arredondo, 188 Wn.2d 244,
262, 394 P.3d 348 (2017) (citing State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978)).
Because the original sentencing court was presented with the correct calculation of Flynn’s
offender score by DOC, along with the reasoning supporting that calculation as set forth in the
PSI, and it opted to adopt the erroneous calculation proffered by the State, Flynn’s erroneous
sentence was the product of independent judgment by the court. The original sentencing court’s
decision, therefore, constituted an intervening and superseding cause of Flynn’s harm. See Tyner,
141 Wn.2d at 88. 4 Thus, the trial court did not err in granting the County’s motion to dismiss.
ATTORNEY FEES
Flynn requests attorney fees on appeal, citing only RAP 14.3, which lists the type of costs
that are recoverable. But only a substantially prevailing party is entitled to costs on appeal. RAP
14.2. Because Flynn does not substantially prevail, he is not entitled to recover costs or fees under
RAP 14.3. See RAP 14.2.
CONCLUSION
We hold that Flynn’s complaint was timely filed. However, because the original sentencing
court’s sentencing order was an intervening, superseding cause of Flynn’s erroneous sentence,
4 Because we resolve the cause in fact element in the County’s favor, we need not reach the legal causation element. See Ang, 154 Wn.2d at 482. 12 No. 53703-6-II
Flynn failed to demonstrate any set of facts that would support recovery. Flynn’s complaint was
thus properly dismissed under CR 12(b)(6).
CRUSER, J. We concur:
SUTTON, A.C.J.
GLASGOW, J.