FILED MARCH 7, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39363-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ZACHARY P. BERGSTROM, ) ) Appellant. )
LAWRENCE-BERREY, J. — Zachary Bergstrom appeals after the trial court
resentenced him in accordance with State v. Bergstrom, 199 Wn.2d 23, 502 P.3d 837
(2022). Mr. Bergstrom argues the trial court erred by refusing to consider his two
CrR 7.8 motions, which he asked to be heard at the resentencing hearing. We disagree,
but note that Mr. Bergstrom can have the arguments raised in those motions considered
by this court, once the trial court enters a transfer order with appropriate findings.
FACTS
The State, through amended information, charged Zachary Bergstrom with one
count of possession of a controlled substance, three counts of bail jumping, and one
count of escape from community custody under Spokane County Superior Court
No. 17-1-03794-1 (the 2017 case). A jury convicted him of all counts, except for the
possession of a controlled substance charge. Mr. Bergstrom appealed. State v. No. 39363-1-III State v. Bergstrom
Bergstrom, 15 Wn. App. 2d 92, 94, 474 P.3d 578 (2020) (published in part), aff’d,
199 Wn.2d 23.
In the published portion of our opinion, we held that Mr. Bergstrom was denied his
due process right to have the jury instructed on every element of bail jumping but that the
error was harmless beyond a reasonable doubt. Id. at 100. In the unpublished portion of
our opinion, we reversed one bail jumping conviction due to ineffective assistance of
counsel. State v. Bergstrom, No. 37023-2-III, slip op. at 14-15 (Wash. Ct. App. Oct. 15,
2020), (unpublished portion), https://www.courts.wa.gov/opinions/pdf/ 370232_pub.pdf.
The State petitioned the Washington Supreme Court for review, and the court
granted the State’s petition. Bergstrom, 199 Wn.2d at 33. The Supreme Court reached
the same result as we did. Id. at 45. It concluded that the jury was properly instructed on
every element of bail jumping, thus affirming the bail jumping convictions we had
affirmed through a harmless error analysis. Id. at 40. However, it left untouched our
vacation, in the unpublished portion of our opinion, of one of Mr. Bergstrom’s bail
jumping convictions. See id. Thus, after issuance of the Supreme Court’s mandate, the
trial court was required to vacate one of Mr. Bergstrom’s bail jumping convictions and
resentence him.
2 No. 39363-1-III State v. Bergstrom
Prior to resentencing, Mr. Bergstrom, through counsel, filed a CrR 7.8 motion.
The motion argued that his remaining convictions in the 2017 case must be vacated
because (1) they were predicated on an unconstitutional possession of a controlled
substance offense under State v. Blake,1 and (2) the seriousness level of the predicate
offenses could not be determined.
Scheduling hearing
Approximately nine months after the Supreme Court’s mandate, the parties
appeared in superior court for a scheduling hearing to discuss the 2017 case and a
separate 2018 case. With respect to the latter, the State sought to have Mr. Bergstrom’s
judgment and sentence corrected to include a community custody condition.
At the hearing, defense counsel explained that Mr. Bergstrom sought to be
resentenced in the 2017 case, that he had filed a motion to vacate the remaining
convictions in that case, and that Mr. Bergstrom, acting pro se, intended to file
supplemental motions. After some discussion, the trial court directed defense counsel to
file Mr. Bergstrom’s pro se motions.
That day, defense counsel filed Mr. Bergstrom’s pro se motion in the 2017 case.
In that motion, Mr. Bergstrom reiterated one of defense counsel’s arguments, that his
1 197 Wn.2d 170, 195, 481 P.3d 521 (2021).
3 No. 39363-1-III State v. Bergstrom
convictions for bail jumping and escape should be vacated because the underlying charge
was unconstitutional. The State responded and argued the court should not consider
either of Mr. Bergstrom’s motions.
Resentencing and motion hearing
The court held a hearing to resentence Mr. Bergstrom in the 2017 case and to
consider both parties’ CrR 7.8 motions. After some discussion, the trial court decided to
sentence Mr. Bergstrom in accordance with the mandate and to transfer both of the
parties’ CrR 7.8 motions to this court as a personal restraint petition.
Mr. Bergstrom timely appealed.
PROCEDURE DURING PENDENCY OF APPEAL
While this appeal was pending, the trial court transferred the three CrR 7.8
motions to this court for consideration as a personal restraint petition. In the findings
attached to the transfer order, the trial court found the motions should be considered
by this court “because there were no new facts for the trial court to consider.” Ord.
Transferring CrR 7.8 Mot. to Ct. of Appeals, Ex. A, at 1, State v. Bergstrom, No. 18-1-
02398-1 (Spokane County Super. Ct., Wash. May 2, 2023). We denied review because
the trial court failed to enter adequate findings under CrR 7.8(c)(2). Ord. Dismissing
Pers. Restraint Pet., In re Pers. Restraint of Bergstrom, No. 39737-8-III (Wash. Ct. App.
4 No. 39363-1-III State v. Bergstrom
Nov. 16, 2023). We remanded with instructions for the trial court to either hold an
evidentiary hearing or clarify its transfer order. Id. at 2.
In response, perhaps, a cover sheet with multiple judgments and sentences was
filed. Cover Sheet, In re Pers. Restraint of Bergstrom, No. 39737-8-III (Wash. Ct. App.
Nov. 9, 2023). The cover sheet read: “Certified copies of Judgments and Sentences used
to determine offender score.” Id. at 1. Misreading the tea leaves, we inferred that the
trial court had resolved the CrR 7.8 issues on the merits. Order Dismissing Personal
Restraint Petition, at 3, In re Pers. Restraint of Bergstrom, No. 39737-8-III (Wash. Ct.
App. Nov. 16, 2023). Because the trial court’s decision would be subject to direct review,
we dismissed the petition as procedurally barred. Id. at 4. Mr. Bergstrom did not request
reconsideration of the dismissal order on the basis that the CrR 7.8 issues had not been
resolved by the trial court.
ANALYSIS
CrR 7.8 TRANSFER ORDER ERROR
As a threshold matter, the State correctly concedes that the trial court’s findings
accompanying its transfer order were inadequate.
“Collateral attacks filed in superior court are governed by CrR 7.8, and ‘when a
superior court receives a CrR 7.8 motion, it should follow the CrR 7.8(c) procedures.’”
5 No. 39363-1-III State v. Bergstrom
State v. Molnar, 198 Wn.2d 500, 508-09, 497 P.3d 858 (2021) (quoting State v. Waller,
197 Wn.2d 218, 220, 481 P.3d 515 (2021)).
CrR 7.8(c)(2) provides:
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MARCH 7, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 39363-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ZACHARY P. BERGSTROM, ) ) Appellant. )
LAWRENCE-BERREY, J. — Zachary Bergstrom appeals after the trial court
resentenced him in accordance with State v. Bergstrom, 199 Wn.2d 23, 502 P.3d 837
(2022). Mr. Bergstrom argues the trial court erred by refusing to consider his two
CrR 7.8 motions, which he asked to be heard at the resentencing hearing. We disagree,
but note that Mr. Bergstrom can have the arguments raised in those motions considered
by this court, once the trial court enters a transfer order with appropriate findings.
FACTS
The State, through amended information, charged Zachary Bergstrom with one
count of possession of a controlled substance, three counts of bail jumping, and one
count of escape from community custody under Spokane County Superior Court
No. 17-1-03794-1 (the 2017 case). A jury convicted him of all counts, except for the
possession of a controlled substance charge. Mr. Bergstrom appealed. State v. No. 39363-1-III State v. Bergstrom
Bergstrom, 15 Wn. App. 2d 92, 94, 474 P.3d 578 (2020) (published in part), aff’d,
199 Wn.2d 23.
In the published portion of our opinion, we held that Mr. Bergstrom was denied his
due process right to have the jury instructed on every element of bail jumping but that the
error was harmless beyond a reasonable doubt. Id. at 100. In the unpublished portion of
our opinion, we reversed one bail jumping conviction due to ineffective assistance of
counsel. State v. Bergstrom, No. 37023-2-III, slip op. at 14-15 (Wash. Ct. App. Oct. 15,
2020), (unpublished portion), https://www.courts.wa.gov/opinions/pdf/ 370232_pub.pdf.
The State petitioned the Washington Supreme Court for review, and the court
granted the State’s petition. Bergstrom, 199 Wn.2d at 33. The Supreme Court reached
the same result as we did. Id. at 45. It concluded that the jury was properly instructed on
every element of bail jumping, thus affirming the bail jumping convictions we had
affirmed through a harmless error analysis. Id. at 40. However, it left untouched our
vacation, in the unpublished portion of our opinion, of one of Mr. Bergstrom’s bail
jumping convictions. See id. Thus, after issuance of the Supreme Court’s mandate, the
trial court was required to vacate one of Mr. Bergstrom’s bail jumping convictions and
resentence him.
2 No. 39363-1-III State v. Bergstrom
Prior to resentencing, Mr. Bergstrom, through counsel, filed a CrR 7.8 motion.
The motion argued that his remaining convictions in the 2017 case must be vacated
because (1) they were predicated on an unconstitutional possession of a controlled
substance offense under State v. Blake,1 and (2) the seriousness level of the predicate
offenses could not be determined.
Scheduling hearing
Approximately nine months after the Supreme Court’s mandate, the parties
appeared in superior court for a scheduling hearing to discuss the 2017 case and a
separate 2018 case. With respect to the latter, the State sought to have Mr. Bergstrom’s
judgment and sentence corrected to include a community custody condition.
At the hearing, defense counsel explained that Mr. Bergstrom sought to be
resentenced in the 2017 case, that he had filed a motion to vacate the remaining
convictions in that case, and that Mr. Bergstrom, acting pro se, intended to file
supplemental motions. After some discussion, the trial court directed defense counsel to
file Mr. Bergstrom’s pro se motions.
That day, defense counsel filed Mr. Bergstrom’s pro se motion in the 2017 case.
In that motion, Mr. Bergstrom reiterated one of defense counsel’s arguments, that his
1 197 Wn.2d 170, 195, 481 P.3d 521 (2021).
3 No. 39363-1-III State v. Bergstrom
convictions for bail jumping and escape should be vacated because the underlying charge
was unconstitutional. The State responded and argued the court should not consider
either of Mr. Bergstrom’s motions.
Resentencing and motion hearing
The court held a hearing to resentence Mr. Bergstrom in the 2017 case and to
consider both parties’ CrR 7.8 motions. After some discussion, the trial court decided to
sentence Mr. Bergstrom in accordance with the mandate and to transfer both of the
parties’ CrR 7.8 motions to this court as a personal restraint petition.
Mr. Bergstrom timely appealed.
PROCEDURE DURING PENDENCY OF APPEAL
While this appeal was pending, the trial court transferred the three CrR 7.8
motions to this court for consideration as a personal restraint petition. In the findings
attached to the transfer order, the trial court found the motions should be considered
by this court “because there were no new facts for the trial court to consider.” Ord.
Transferring CrR 7.8 Mot. to Ct. of Appeals, Ex. A, at 1, State v. Bergstrom, No. 18-1-
02398-1 (Spokane County Super. Ct., Wash. May 2, 2023). We denied review because
the trial court failed to enter adequate findings under CrR 7.8(c)(2). Ord. Dismissing
Pers. Restraint Pet., In re Pers. Restraint of Bergstrom, No. 39737-8-III (Wash. Ct. App.
4 No. 39363-1-III State v. Bergstrom
Nov. 16, 2023). We remanded with instructions for the trial court to either hold an
evidentiary hearing or clarify its transfer order. Id. at 2.
In response, perhaps, a cover sheet with multiple judgments and sentences was
filed. Cover Sheet, In re Pers. Restraint of Bergstrom, No. 39737-8-III (Wash. Ct. App.
Nov. 9, 2023). The cover sheet read: “Certified copies of Judgments and Sentences used
to determine offender score.” Id. at 1. Misreading the tea leaves, we inferred that the
trial court had resolved the CrR 7.8 issues on the merits. Order Dismissing Personal
Restraint Petition, at 3, In re Pers. Restraint of Bergstrom, No. 39737-8-III (Wash. Ct.
App. Nov. 16, 2023). Because the trial court’s decision would be subject to direct review,
we dismissed the petition as procedurally barred. Id. at 4. Mr. Bergstrom did not request
reconsideration of the dismissal order on the basis that the CrR 7.8 issues had not been
resolved by the trial court.
ANALYSIS
CrR 7.8 TRANSFER ORDER ERROR
As a threshold matter, the State correctly concedes that the trial court’s findings
accompanying its transfer order were inadequate.
“Collateral attacks filed in superior court are governed by CrR 7.8, and ‘when a
superior court receives a CrR 7.8 motion, it should follow the CrR 7.8(c) procedures.’”
5 No. 39363-1-III State v. Bergstrom
State v. Molnar, 198 Wn.2d 500, 508-09, 497 P.3d 858 (2021) (quoting State v. Waller,
197 Wn.2d 218, 220, 481 P.3d 515 (2021)).
CrR 7.8(c)(2) provides:
The court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition 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 they are entitled to relief or (ii) resolution of the motion will require a factual hearing.
Here, the trial court found that the CrR 7.8 motions were not barred by the one-
year time bar of RCW 10.73.090. Neither the transfer order nor the accompanying
findings shed light on whether the motions were timely, whether Mr. Bergstrom2 made a
substantial showing he was entitled to relief, or whether the resolution of his motions
required a factual hearing. These deficiencies were not cured by the later filing that
attached various judgments and sentences.
REFUSAL TO RULE ON MERITS OF CrR 7.8 MOTIONS
Mr. Bergstrom contends the trial court erred when it refused to rule on the merits
of his various CrR 7.8 motions. We disagree.
2 We do not address the trial court’s attempt to transfer the State’s CrR 7.8 motion to this court as a personal restraint petition. To be entitled to relief in a personal restraint petition, the State would have to show it is unlawfully restrained. RAP 16.7(a)(2).
6 No. 39363-1-III State v. Bergstrom
At the resentencing hearing, the trial court orally determined that Mr. Bergstrom’s
motions were not barred by RCW 10.73.090 and their resolutions did not require a factual
hearing. These findings were sufficient to warrant transferring Mr. Bergstrom’s motions
to this court as a personal restraint petition. Thus, the trial court did not err by refusing to
consider the motions. The error occurred because the findings that accompanied the
transfer order were inadequate. The findings merely stated there were “no new facts for
the trial court to consider.” Order Transferring CrR 7.8 Mot. to Ct. of Appeals,
Ex. A, at 1, Court’s Findings Regarding Post-Conviction Motions, State v. Bergstrom,
No. 18-1-02398-1 (Spokane County Super. Ct., Wash. May 2, 2023).
The merits of Mr. Bergstrom’s CrR 7.8 arguments have yet to be determined by
any court. We conceive of no reason why Mr. Bergstrom’s arguments, raised by
collateral attack within one year of the Supreme Court’s mandate, may not be considered
by this court. We await a transfer order accompanied by adequate findings.
VICTIM PENALTY ASSESSMENT (VPA)
Mr. Bergstrom argues the VPA must be struck from his judgment and sentence due
to recent legislation. The State concedes. We accept the State’s concession.
Under former RCW 7.68.035(1)(a) (2018), the trial court was required to impose a
VPA on any individual found guilty of a crime. Effective July 1, 2023, the legislature
7 No. 39363-1-III State v. Bergstrom
amended RCW 7 .68.035 to preclude superior courts from imposing a VPA on a defendant
who, at the time of sentencing, is found to be indigent as defined in RCW 10.01.160(3).
See LAWS OF 2023, ch. 449, § 1(4). Statutory amendments related to legal financial
obligations imposed upon conviction generally apply to all cases pending on direct appeal
that are not yet final. See, e.g., State v. Wemhoff, 24 Wn. App. 2d 198, 201-02, 519 P .3d
297 (2022); State v. Ramirez, 191 Wn.2d 732,749,426 P.3d 714 (2018).
Mr. Bergstrom's case is pending on direct appeal and is not yet final. The record
shows that the trial court found him to be indigent. Therefore, the amended statute
applies, and we direct the trial court to strike the VP A from his judgment and sentence.
Affirmed, but remanded to strike VPA.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
Fearing,C~ ) Staab, J.