State Of Washington, V Mark Virgil Perry Jr., Ii
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Opinion
Filed Washington State Court of Appeals Division Two
October 26, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54122-0-II
Respondent,
v. UNPUBLISHED OPINION
MARK VIRGIL PERRY, JR. II,
Appellant.
MAXA, J. – Mark Perry, Jr. appeals an order denying his CrR 7.8(b) motion to withdraw
his guilty plea to two counts of attempted theft of a motor vehicle, second degree unlawful
possession of a firearm, and obstructing a law enforcement officer.
Perry pled guilty to these offenses in 2015 in exchange for the State’s recommendation of
a drug offender sentencing alternative (DOSA), and the trial court imposed a DOSA. In 2019,
after he had served his DOSA sentence, Perry filed a motion under CrR 7.8(b) to withdraw his
guilty plea, arguing that he actually was not eligible for a DOSA because he had a prior Oregon
conviction for second degree robbery. The trial court denied his request to withdraw his plea,
but agreed that Perry’s judgment and sentence was facially invalid because he was not eligible
for a DOSA. The court then resentenced Perry to a standard range sentence.
Perry argues that (1) the trial court erred in denying his motion to withdraw his guilty
plea because his plea was not knowing, voluntary and intelligent; and (2) he received ineffective
assistance of counsel in 2015 when defense counsel failed to advise him that he was ineligible No. 54122-0-II
for a DOSA. However, we conclude that Perry’s motion to withdraw his guilty plea was time
barred because it was not filed within a “reasonable time” as required under CrR 7.8(b). We also
agree with the State that the trial court had no authority to resentence Perry. Accordingly, we
affirm the trial court’s denial of Perry’s motion to withdraw his guilty plea, but remand for the
trial court to vacate the 2019 judgment and sentence and reinstate the original judgment and
sentence.
FACTS
In April 2015, pursuant to a plea agreement, Perry pled guilty to several charges. As part
of the plea agreement, the State agreed to recommend that Perry receive a DOSA. Perry’s
criminal history included a 2009 second degree robbery conviction in Oregon. The trial court
agreed with the State’s sentence recommendation and imposed a DOSA with 25 months of total
confinement and 25 months of community custody.
In November 2019, after he had completed his sentence, Perry filed a motion for relief
from judgment under CrR 7.8(b)(5) to withdraw his guilty plea. Perry argued that his DOSA
was unlawful because of his prior Oregon robbery conviction.1
The trial court found that Perry’s judgment and sentence was facially invalid because he
was ineligible for a DOSA based on the prior Oregon second degree robbery conviction, which
occurred within 10 years of the current offense. The court also concluded, without doing a
comparability analysis, that the Oregon offense was equivalent to a second degree robbery in
Washington. Ultimately, the court ruled under CrR 7.8(c)(2) that Perry’s collateral attack was
1 Under former RCW 9.94A.660(1)(c) (2009), a person is not eligible for a DOSA if they have been convicted of a felony that is a violent offense within 10 years of the current offense. In Washington, second degree robbery is a violent offense. Former RCW 9.94A.030(54)(a)(xi) (2012).
2 No. 54122-0-II
timely and appropriate for the court to decide rather than transfer to this court as a personal
restraint petition (PRP).
After a show cause hearing, the trial court denied Perry’s request to withdraw his guilty
plea. The court applied the PRP standard for nonconstitutional error and concluded that Perry
had failed to show a complete miscarriage of justice.
The trial court then decided that it would resentence Perry on the four counts, even
though neither Perry nor the State requested resentencing. The court resentenced Perry to a
standard range sentence of 43 months of total confinement.
Perry appeals the trial court’s denial of his motion to withdraw his guilty plea.
ANALYSIS
A. CrR 7.8(b) LEGAL PRINCIPLES
A motion to withdraw a guilty plea made after judgment is a collateral attack governed
by CrR 7.8(b). State v. Buckman, 190 Wn.2d 51, 60, 409 P.3d 193 (2018). CrR 7.8(b) provides
five grounds for relieving a party from a final judgment. On appeal, Perry relies on two grounds:
“[t]he judgment is void,” CrR 7.8(b)(4); and “[a]ny other reason justifying relief from the
operation of the judgment,” CrR 7.8(b)(5).
Under CrR 7.8(c)(2), the trial court is required to transfer a CrR 7.8(b) motion to the
Court of Appeals for consideration as a PRP unless “the court determines that the motion is not
barred by RCW 10.73.090 and either (i) the defendant has made a substantial showing that he or
she is entitled to relief or (ii) resolution of the motion will require a factual hearing.” RCW
10.73.090(1) states, “No petition or motion for collateral attack on a judgment and sentence in a
criminal case may be filed more than one year after the judgment becomes final if the judgment
and sentence is valid on its face and was rendered by a court of competent jurisdiction.”
3 No. 54122-0-II
However, a CrR 7.8(b) motion must be filed “within a reasonable time.” This
requirement is independent of any time limits set forth in chapter 10.73 RCW. CrR 7.8(b).
We review a trial court’s decision on a CrR 7.8(b) motion for abuse of discretion. State
v. Crawford, 164 Wn. App. 617, 621, 267 P.3d 365 (2011).
B. MOTION TIME BARRED UNDER CRR 7.8(b)
Perry argues that the trial court erred in denying his motion to withdraw his guilty plea
and that he received ineffective assistance of counsel during his 2015 sentencing. We do not
address the merits of Perry’s claims because we conclude that Perry’s CrR 7.8(b) motion was not
filed within a reasonable time and therefore was untimely.
As noted above, CrR 7.8(b) specifically states that a motion must be filed “within a
reasonable time.” Here, Perry filed his CrR 7.8(b) motion based on the alleged invalidity of his
DOSA sentence (1) over four years after his guilty plea and (2) after he had completed his
sentence. The court rules do not define what a “reasonable time” means under CrR 7.8(b), and
no Washington court has provided a definition. But we conclude under the facts of this case that
Perry’s motion was not filed within a reasonable time.
The trial court did not base its denial of Perry’s motion on the reasonable time
requirement of CrR 7.8(b), but we can affirm under any grounds supported by the record. State
v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004). We hold that the trial court did not err in
denying Perry’s motion to withdraw his guilty plea because the motion was untimely.
C. UNAUTHORIZED RESENTENCING
The State argues that the trial court had no authority to resentence Perry after finding his
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