State Of Washington, V Nicole M. Willyard

• Court: Court of Appeals of Washington
• Decided: August 1, 2023
• Docket: 56579-0
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

August 1, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 56579-0-II

Respondent,

v.

NICOLE MARIE WILLYARD, UNPUBLISHED OPINION

Appellant.

LEE, J. — Nicole M. Willyard1 appeals the trial court’s order affording relief from

judgment pursuant to State v. Blake,2 which vacated Willyard’s conviction for unlawful possession

of a controlled substance but left in place Willyard’s conviction for obstructing a public servant

(obstruction). Willyard argues that she should be allowed to withdraw her guilty pleas to both the

unlawful possession of a controlled substance and obstruction convictions because the guilty pleas

to unlawful possession of a controlled substance and obstruction are part of an indivisible plea.

We hold that while Willyard is entitled to have her unlawful possession of a controlled

substance conviction vacated, Willyard is not entitled to withdraw her plea to obstruction.

Accordingly, we affirm the trial court’s order.

1 Much of the record in this case refers to Willyard as Trichler. This opinion refers to the appellant as Willyard for consistency with the case caption. 2 197 Wn.2d 170, 481 P.3d 521 (2021). No. 56579-0-II

FACTS

Willyard was a passenger in a vehicle that was pulled over on September 24, 2003.

Willyard gave law enforcement officers a false name when they asked for her information. When

the officers searched the car, they found a pipe filled with methamphetamine where Willyard was

sitting.

On September 26, 2003, the State charged Willyard with one count of unlawful possession

of a controlled substance committed on September 24. The State later amended the information

to add a charge for obstructing a public servant (obstruction) committed on that same day.

Willyard pleaded guilty to both charges on October 21, 2003. On that same day, Willyard

also pleaded guilty to a separate charge in a different case for bail jumping. The statement of

defendant on plea of guilty for the unlawful possession of a controlled substance and obstruction

case was a different document than the statement of defendant on plea of guilty for the bail jumping

case. The unlawful possession of a controlled substance/obstruction case and the bail jumping

case were assigned different case numbers and the trial court entered separate judgment and

sentences for the two cases.3 Because Willyard did not file an appeal, Willyard’s judgment in this

case became final on October 21, 2003, the day it was filed with the superior court clerk.4

3 The case number for bail jumping conviction is Thurston County Superior Court case no. 03-1- 00645-2, and the case number for unlawful possession of a controlled substance and obstruction convictions is Thurston County Superior Court case no. 03-1-01829-9. 4 RCW 10.73.090(3) provides that

a judgment becomes final on the last of the following dates:

(a) The date it is filed with the clerk of the trial court;

2 No. 56579-0-II

In February 2021, our Supreme Court issued its opinion in Blake, holding that

Washington’s former unlawful possession of a controlled substance statute was unconstitutional

and void. 197 Wn.2d at 195.

In July 2021, Willyard filed a pro se motion for relief from judgment pursuant to CrR 7.8,

and hand wrote in case number 03-1-01829-9, which is the case number for the current case on

appeal involving the unlawful possession of a controlled substance and obstruction convictions.

In the motion, Willyard made arguments regarding bail jumping but did not discuss the obstruction

conviction.

After counsel was appointed for Willyard, Willyard’s counsel filed a motion under CrR

7.8, seeking to withdraw Willyard’s guilty plea based on our Supreme Court’s decision in Blake.

Willyard argued that her motion was not time barred because her judgment and sentences were

facially invalid due to the Blake decision. Willyard contended that she was entitled to withdraw

her plea to the unlawful possession of a controlled substance charge because that conviction was

void and should be vacated. Willyard also contended that her pleas to the unlawful possession of

a controlled substance charge and the obstruction charge constituted an indivisible plea agreement;

therefore, the entire plea must be withdrawn.

(b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction; or

(c) The date that the United States Supreme Court denies a timely petition for certiorari to review a decision affirming the conviction on direct appeal. The filing of a motion to reconsider denial of certiorari does not prevent a judgment from becoming final.

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The State opposed Willyard’s motion to withdraw her guilty plea. The State argued that

Willyard had not shown her plea was involuntary, Willyard’s motion was moot because she had

already served her sentence, and Willyard had not shown any prejudice resulting from her guilty

plea. However, the State conceded that Willyard’s motion relating to the unlawful possession of

a controlled substance conviction was not time barred because Blake was a substantial change in

the law that rendered the judgment and sentence facially invalid.

At the show cause hearing on Willyard’s CrR 7.8 motion, Willyard argued that she was

entitled to a vacation of her unlawful possession of a controlled substance conviction because it is

a nonexistent crime, rendering the conviction invalid. Willyard also argued that the plea to

unlawful possession of a controlled substance was part of an indivisible plea agreement that

included another charge, so she was entitled to withdraw her guilty pleas to all charges that were

part of the indivisible plea.

The State conceded that Willyard was entitled to a vacation of the unlawful possession of

a controlled substance conviction. But the State argued that Willyard was not entitled to withdraw

her guilty plea to the obstruction charge and the obstruction conviction should remain.

The trial court ruled that withdrawal of the entire plea agreement was not the appropriate

legal remedy. Instead, the appropriate remedy was vacating and dismissing the unlawful

possession of a controlled substance conviction. Accordingly, the trial court vacated Willyard’s

unlawful possession of a controlled substance conviction but denied Willyard’s motion to

withdraw her guilty pleas. The trial court entered a written order vacating and dismissing

Willyard’s unlawful possession of a controlled substance conviction and ordering that the

obstruction conviction remain.

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Willyard appeals.

ANALYSIS

Willyard argues that Blake rendered unlawful possession of a controlled substance a

nonexistent crime, and therefore, she is entitled to withdraw her guilty pleas to both unlawful

possession of a controlled substance and obstruction. Willyard contends that because her

convictions resulted from an indivisible plea agreement, she must be entitled to withdraw both

guilty pleas.

A. TIME BAR

Although Willyard filed her motion to withdraw her pleas more than one year after her

judgment became final, Willyard argues that her motion to withdraw her guilty pleas to both

unlawful possession of a controlled substance and obstruction meets certain exceptions to the time

bar. The State conceded below that the motion was not time barred. However, on appeal the State

argues that its concession does not apply beyond vacation of Willyard’s unlawful possession of a

controlled substance conviction. We hold that while Willyard is entitled to a vacation of the

unlawful possession of a controlled substance conviction, Willyard’s motion to withdraw her plea

to the obstruction charge is time barred.

1. Legal Principles

“A motion to withdraw a plea after judgment has been entered is a collateral attack.” State

v. Buckman, 190 Wn.2d 51, 60, 409 P.3d 193 (2018). RCW 10.73.090(1) provides that “[n]o

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

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face and was rendered by a court of competent jurisdiction.” RCW 10.73.100 lists six exceptions

to the one-year time bar.

The relevant RCW 10.73.100 exceptions argued are:

(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant’s conduct; [or]

....

(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

The person collaterally attacking the judgment and sentence has the burden of showing that a time

bar exception applies. In re Pers. Restraint of Fuamaila, 131 Wn. App. 908, 918, 131 P.3d 318

(2006).

Once the one-year time limit has run, a collateral attack “may seek relief only for the defect

that renders the judgment not valid on its face (or one of the exceptions listed in RCW 10.73.100).”

In re Pers. Restraint of Adams, 178 Wn.2d 417, 424, 309 P.3d 451 (2013). Claims that fall within

the exceptions to the time bar in RCW 10.73.100 will be considered, but all other claims that do

not fall into one of the exceptions will not be considered. Id. at 425.

A defendant is entitled to withdraw all pleas in an indivisible plea agreement if they

demonstrate they are entitled to withdraw at least one guilty plea in the indivisible plea agreement.

State v. Olsen, ___ Wn. App. 2d ___, 530 P.3d 249, 255 (2023); see State v. Turley, 149 Wn.2d

395, 400, 69 P.3d 338 (2003). A plea agreement is indivisible if “‘pleas to multiple counts or

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charges were made at the same time, described in one document, and accepted in a single

proceeding.’” State v. Coombes, 191 Wn. App. 241, 256, 361 P.3d 270 (2015) (internal quotation

marks omitted) (quoting In re Pers. Restraint of Bradley, 165 Wn.2d 934, 941-42, 205 P.3d 123

(2009)), review denied, 185 Wn.2d 1020 (2016). In the absence of a showing that the pleas are

indivisible, the proper remedy for an invalid unlawful possession of a controlled substance

conviction on a judgment and sentence as a result of a guilty plea is vacation of the invalid unlawful

possession of a controlled substance conviction, not withdrawal of the guilty plea. See Olsen, 530

P.3d at 257 (holding that constitutional invalidity of unlawful possession of a controlled substance

conviction entitled offender to vacating the conviction but not withdrawing the plea).

2. Motion to Withdraw Pleas is Time Barred

Here, Willyard identified one error on her judgment and sentence: a constitutionally invalid

conviction for unlawful possession of a controlled substance. Willyard argues that this error is a

facial invalidity that entitles her to withdraw her guilty pleas to both unlawful possession of a

controlled substance and obstruction because the pleas were part of an indivisible agreement.

Here, the parties do not dispute that Willyard’s challenge to the unlawful possession of a

controlled substance conviction is not time barred. However, the parties dispute whether

Willyard’s challenge to the obstruction conviction is time barred. Unless Willyard’s plea to the

obstruction charge is part of an indivisible plea agreement and Willyard is allowed to withdraw

her guilty plea to the unlawful possession of a controlled substance charge, Willyard’s challenge

to the obstruction charge is time barred. See id. at 255, 257.

We agree that the guilty pleas were part of an indivisible plea agreement because the

unlawful possession of a controlled substance and obstruction charges were committed on the same

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day, charged in the same information, pleaded guilty to on the same day and in the same document,

and resolved in the same judgment and sentence. See Coombes, 191 Wn. App. at 256. However,

Willyard has not shown that she is entitled to withdraw her guilty plea to the unlawful possession

of a controlled substance conviction. See Olsen, 530 P.3d at 255. Without a showing that Willyard

can withdraw at least one plea within the agreement, Willyard cannot show that she is entitled to

withdraw all her pleas in the agreement. See id. at 253-55, 257 (a defendant who is unable to show

they are entitled to withdraw their guilty plea to unlawful possession of a controlled substance is

only entitled to a vacation of the invalid unlawful possession of a controlled substance conviction,

not withdrawal of their guilty plea to all charges in the plea agreement).

Because more than one year has passed since Willyard’s judgment became final, Willyard

may only seek relief for the defect that renders her judgment and sentence invalid on its face—

vacation of the unlawful possession of a controlled substance conviction. See Adams, 178 Wn.2d

at 424. Willyard has failed to show any facial invalidity or defect that entitles her to seek the relief

requested—withdrawal of her guilty plea to the obstruction charge.5 Therefore, Willyard’s motion

to withdraw her guilty plea to the obstruction charge is time barred.

B. ACTUAL AND SUBSTANTIAL PREJUDICE

Even if Willyard’s motion to withdraw her plea to the obstruction charge is not time barred,

her motion fails because she fails to show actual and substantial prejudice. To obtain relief in a

5 Willyard also argues other exceptions to the time bar under RCW 10.73.100. Regardless of which exceptions Willyard argues, her arguments fail because she has not shown any defect entitling her to withdrawal of both her guilty pleas. See Adams, 178 Wn.2d at 424 (when challenging a judgment and sentence more than a year after its finality, an offender “may seek relief only for the defect that renders the judgment not valid on its face (or one of the exceptions listed in RCW 10.73.100).”).

8 No. 56579-0-II

collateral attack, the person bringing the motion must show both error and that they were actually

and substantially prejudiced. Buckman, 190 Wn.2d at 60. For a motion to withdraw a plea, the

person bringing the motion must show that it is more likely than not that they would have refused

to plead guilty and would have gone to trial. Id. at 65. A bare allegation is not sufficient. Id. at

67. To show actual and substantial prejudice, Willyard must show that more likely than not she

would have refused to plead guilty and would have insisted on going to trial. Id. at 65.

Here, Willyard makes no argument attempting to show actual and substantial prejudice.

Willyard does not even make a bare assertion she would have not pleaded guilty or entered the

plea agreement in this case. Therefore, we hold that the trial court did not abuse its discretion in

denying Willyard’s motion to withdraw her guilty plea to the obstruction charge.

Willyard is entitled to have her unlawful possession of a controlled substance conviction

vacated. However, Willyard is not entitled to withdraw her guilty plea to the obstruction charge.

Therefore, Willyard’s motion to withdraw her guilty plea to the obstruction charge is time barred.

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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.

Lee, J. We concur:

Maxa, P.J.

Che, J.