Personal Restraint Petition Of Navin A Milko

CourtCourt of Appeals of Washington
DecidedMay 19, 2025
Docket87066-1
StatusUnpublished

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Personal Restraint Petition Of Navin A Milko, (Wash. Ct. App. 2025).

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 87066-1-I In the Matter of the Personal Restraint Petition of: DIVISION ONE

NAVIN AVERY MILKO UNPUBLISHED OPINION

Petitioner.

DÍAZ, J. — In 2020, a jury convicted Navin Milko of ten crimes involving five

victims, including attempted and completed rape, attempted and completed

burglary, and completed kidnapping. This court affirmed his convictions on direct

appeal and Milko then filed a timely pro se personal restraint petition (PRP).

Milko’s court-appointed attorney later filed a supplemental brief claiming that one

conviction suffers from insufficient evidence, that an offender score error occurred,

and that the exceptional sentence required a jury finding. Finding no reversible

error or inter alia a sufficient showing of prejudice, we deny his PRP.

I. BACKGROUND

We incorporate the facts set forth in this court’s prior opinion resolving

Milko’s direct appeal. State v. Milko, 21 Wn. App. 2d 279, 505 P.3d 1251 (2022)

(published in part).

Between August and October 2018, Milko on five separate occasions No. 87066-1-I/2

contacted women who worked as paid escorts and arranged to meet them at two

houses in Puyallup which he did not live in or own and, when each woman arrived,

Milko displayed a knife in an attempt to take their money or to rape them. Id. at

282. In 2009 and 2010, Milko had engaged in two similar incidents in Florida

involving paid escorts and pleaded guilty to charges related to both incidents. Id.

And, as stipulated by Milko at trial, the Florida Department of Corrections had

released Milko in August 2018.

In August 2020, a jury convicted Milko on ten of twelve charged crimes,

including one count of rape in the first degree, two counts of attempted rape in the

first degree, one count of burglary in the first degree, one count of attempted

burglary in the first degree, two counts of burglary in the second degree, two counts

of attempted kidnapping in the first degree, and one count of felony harassment.

The jury also found an aggravating factor of rapid recidivism for each conviction.

RCW 9.94A.535(3)(t). As will be elaborated below, the court adopted the State’s

recommendation and imposed an exceptional indeterminate sentence of 602

months in confinement.

In March 2022, this court affirmed Milko’s convictions. Id. Our Supreme

Court denied his petition for review on July 13, 2022, and a mandate was issued

on July 19, 2022. On July 10, 2023, Milko filed a timely pro se PRP (hereinafter,

his “Initial PRP”). On June 21, 2024, Milko’s court-appointed attorney filed a

supplemental brief making additional claims (hereinafter, his “Supplemental

Brief”). 1

1 In July 2024, his counsel filed a reply brief and Milko pro se filed a separate reply

brief, the latter of which the clerk of this court rejected. The following month, Milko 2 No. 87066-1-I/3

II. ANALYSIS

A. Standard of Review

PRPs are a “‘modern version of ancient writs, most prominently habeas

corpus, that allow petitioners to challenge the lawfulness of confinement.’” In re

Pers. Restraint of Meirhofer, 182 Wn.2d 632, 648, 343 P.3d 731 (2015) (quoting

In re Pers. Restraint of Coats, 173 Wn.2d 123, 128, 267 P.3d 324 (2011)). “But

relief by way of personal restraint petition is extraordinary” and “‘[t]o prevent it from

becoming a substitute for an appeal, and to protect the finality of judgments, this

court has imposed significant threshold, prima facie burdens on the petitioner

before the merits of the substantive claim will be considered.’” Id. (alteration in

original) (citation omitted) (quoting In re Pers. Restraint of Grantham, 168 Wn.2d

204, 211, 227 P.3d 285 (2010)). Specifically, a petitioner must show timeliness,

error, and prejudice. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 820, 226

P.3d 208 (2010) (timeliness); In re Pers. Restraint of Heidari, 159 Wn. App. 601,

604, 248 P.3d 550 (2011) (error and prejudice).

As to timeliness, a petitioner generally must file their PRP within one year

of their judgment becoming final. RCW 10.73.090(1). Here, the one-year time bar

is measured from the date of the mandate. Id. Petitions filed outside this one-year

time bar must fall under an exception. In re Pers. Restraint of Turay, 150 Wn.2d

71, 85-86, 74 P.3d 1194 (2003).

The State originally averred both Milko’s Initial PRP and his Supplemental

moved to have his reply brief considered. A commissioner of this court denied his motion. Milko, through his counsel, then moved to modify the commissioner’s ruling under RAP 16.10, RAP 10.1, and RAP 1.2. The motion, having been referred to this panel, is hereby denied. The court is sufficiently and fully advised of the issues herein. 3 No. 87066-1-I/4

Brief “must be dismissed as mixed,” because some claims fell outside the

exceptions to the one-year time limit, while some did not. However, the State

abandoned this argument prior to oral argument. We accept this concession and

hold Milko’s claims within his Initial PRP and Supplemental Brief meet the

timeliness requirements of RCW 10.73.090 and RCW 10.73.100.

After the timeliness threshold is met, the petitioner must establish error and

prejudice. Heidari, 159 Wn. App. at 604. The petitioner must make a “threshold

showing of constitutional error from which he has suffered actual prejudice or

nonconstitutional error that constitutes a fundamental defect that inherently

resulted in a complete miscarriage of justice.” Id. For constitutional errors, the

petitioner “must show by a preponderance of the evidence that a constitutional

error has caused them actual prejudice.” In re Pers. Restraint of Powell, 117

Wn.2d 175, 184, 814 P.2d 635 (1991). A “general claim of possible prejudice is

not sufficient to establish actual prejudice.” In re Pers. Restraint of Delgado, 160

Wn. App. 898, 912, 251 P.3d 899 (2011).

A “petitioner who collaterally attacks a criminal judgment and sentence

bears the overall burden of demonstrating an entitlement to relief.” Quinn, 154

Wn. App. at 820. To carry this burden, a PRP “must be supported by facts or

evidence upon which the petitioner’s claim of unlawful restraint is based and not

solely upon conclusory allegations” or “speculation, conjecture, or inadmissible

hearsay.” In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083

(1999) (citation omitted). In other words, “‘[b]are allegations unsupported by

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Related

In Re Personal Restraint of Gronquist
978 P.2d 1083 (Washington Supreme Court, 1999)
State v. Parker
937 P.2d 575 (Washington Supreme Court, 1997)
State v. Smith
864 P.2d 1371 (Washington Supreme Court, 1993)
State v. Walton
824 P.2d 533 (Court of Appeals of Washington, 1992)
State v. Sardinia
713 P.2d 122 (Court of Appeals of Washington, 1986)
State v. Gotcher
759 P.2d 1216 (Court of Appeals of Washington, 1988)
In the Matter of Personal Restraint of Powell
814 P.2d 635 (Washington Supreme Court, 2004)
State v. Green
616 P.2d 628 (Washington Supreme Court, 1980)
In Re Martinez
256 P.3d 277 (Washington Supreme Court, 2011)
In Re Delgado
251 P.3d 899 (Court of Appeals of Washington, 2011)
In Re Davis
101 P.3d 1 (Washington Supreme Court, 2004)
In Re Grantham
227 P.3d 285 (Washington Supreme Court, 2010)
In Re Elmore
172 P.3d 335 (Washington Supreme Court, 2007)
In Re Quinn
226 P.3d 208 (Court of Appeals of Washington, 2010)
State v. Brune
725 P.2d 454 (Court of Appeals of Washington, 1986)
In Re Heidari
248 P.3d 550 (Court of Appeals of Washington, 2011)
In Re Turay
74 P.3d 1194 (Washington Supreme Court, 2003)
In Re Cruze
237 P.3d 274 (Washington Supreme Court, 2010)
In the Matter of the Pers. Restraint of Merle William Harvey
415 P.3d 253 (Court of Appeals of Washington, 2018)
In re the Personal Restraint of Cross
327 P.3d 660 (Washington Supreme Court, 2014)

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