Personal Restraint Petition Of Terrance T. Powell

Opinion

Filed Washington State Court of Appeals Division Two

March 30, 2021

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of No. 53010-4-II the Personal Restraint of

TERRANCE TERRIEL POWELL, UNPUBLISHED OPINION

Petitioner.

MAXA, J. – Terrance Powell seeks relief from personal restraint imposed as a result of

his 1995 plea of guilty to second degree assault, a crime he committed when he was 16 years old.

We conclude that Powell has failed to show that the alleged error resulted in a complete

miscarriage of justice, which is necessary to warrant relief for the alleged nonconstitutional error.

Therefore, we deny Powell’s petition.

FACTS

The State initially charged Powell with first degree assault. Because first degree assault

was a serious violent offense, juvenile court jurisdiction was automatically declined and the case

was assigned to adult criminal court under former RCW 13.04.030(1)(e)(iv)(A) (1994). The

State and Powell reached a plea agreement, under which the State amended the charge to second

degree assault, a crime that is not subject to automatic declination of the juvenile court’s

exclusive jurisdiction. Powell did not waive juvenile court jurisdiction and the adult superior

court did not conduct a declination hearing or refer to the juvenile court to conduct a declination

hearing. No. 53010-4-II

Powell pleaded guilty in superior court. On June 22, 1995, when Powell still was under

the age of 18, the superior court entered a judgment and sentence that imposed a sentence of nine

months in jail and 12 months of community supervision. Powell served his sentence and has not

been under supervision by the Department of Corrections pursuant to this judgment and sentence

since 2003.

In 1997, Powell murdered a man. A jury subsequently convicted Powell of first-degree

murder with a firearm enhancement, and the superior court sentenced him to 407 months in

prison. Powell currently is in custody serving this sentence for murder.

In 2018, Powell filed a motion for relief from judgment in the trial court, arguing that

because his 1995 judgment and sentence was entered in adult superior court, not juvenile court,

that judgment and sentence is facially invalid. He sought dismissal of the conviction. The

superior court transferred the motion to this court pursuant to CrR 7.8(c)(2).

ANALYSIS

A. PRP PRINCIPLES

We will grant appropriate relief when petitioners establish that they are under restraint

that is unlawful for one of certain specified reasons. RAP 16.4(a)-(c). To prevail in a PRP, a

petitioner must establish (1) a constitutional error that resulted in actual and substantial

prejudice, or (2) a fundamental defect of a nonconstitutional nature that inherently resulted in a

complete miscarriage of justice. In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383

P.3d 454 (2016). The petitioner must make this showing by a preponderance of the evidence. In

re Pers. Restraint of Dove, 196 Wn. App. 148, 154, 381 P.3d 1280 (2016).

Under RCW 10.73.090(1), a petitioner generally must file a PRP within one year after a

trial court judgment and sentence becomes final if the judgment and sentence is valid on its face.

2 No. 53010-4-II

The one year time bar does not apply if the judgment and sentence is invalid on its face. In re

Pers. Restraint of Hemenway, 147 Wn.2d 529, 532-33, 55 P.3d 615 (2002).

B. NO MISCARRIAGE OF JUSTICE

Powell argues that his judgment and sentence was invalid on its face because the juvenile

court, not the adult superior court, had exclusive jurisdiction. The State argues that although the

superior court erred by not finding a waiver of juvenile court jurisdiction or conducting a

declination hearing, the judgment and sentence is not invalid on its face. We need not resolve

this issue because Powell fails to show that a complete miscarriage of justice resulted from the

superior court’s error.

There is no constitutional right to an adjudication in juvenile court. State v. Watkins, 191

Wn.2d 530, 535-36, 423 P.3d 830 (2018). Therefore, the adult superior court’s failure to

conduct or transfer for a declination hearing warrants a remedy on collateral review only if the

error rose to the level of a fundamental defect that inherently resulted in a complete miscarriage

of justice. See Swagerty, 186 Wn.2d at 807.

Here, Powell has not established any practical effect that arose from the superior court’s

error. The record contains no clear statement that Powell would not have pleaded guilty if the

case had been transferred to juvenile court. Nor does Powell present evidence that the charges

against him might have been further reduced had his case been transferred to juvenile court.

Finally, the sentence for murder that Powell currently is serving was not affected by the fact that

he was convicted in adult superior court rather than in juvenile court because his offender score

would have been the same regardless of whether he was convicted as an adult or as a juvenile.

Former RCW 9.94A.360(10) (1992).

3 No. 53010-4-II

We conclude that Powell has failed to show that the superior court’s error in not

transferring the case to juvenile court constituted a fundamental defect that resulted in a complete

miscarriage of justice. Therefore, his claim of unlawful restraint fails.

CONCLUSION

We deny Powell’s petition and his request for appointment of counsel.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

MAXA, J.

We concur:

WORSWICK, P.J.

VELJACIC, J.