                                                               was filed for record

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f -f-CLiAkAAAA-r 'M ■                                     SUSAN L CARLSON
^ -^GM^MSIKE^^—I                                     SUPREME COURT CLERK


      IN THE SUPREME COURT OF THE STATE OF WASHINGTON



 In the Matter of the Personal Restraint of         NO. 94591-8

 WILLIAM CRAIG SCHORR,

                                                     EN BANC
                      Petitioner.



                                                     Filed     AUG 0 2 ?fl1S



       GORDON McCLOUD, J.—William Craig Schorr pleaded guilty to first

degree murder, first degree robbery, second degree arson, and first degree theft in

2006. Eleven years later, he filed a personal restraint petition (PRP) challenging the

convictions of both first degree murder and first degree robbery on double jeopardy

grounds. The Court of Appeals dismissed the PRP as untimely and treated the double

jeopardy claim as waived.

       We affirm the Court of Appeals but on different grounds. We adhere to our

prior decisions holding that challenges to sentences that exceed the court's

authority—like the double jeopardy challenge to the sentence in this case—cannot

be waived. We also reaffirm that double jeopardy claims are exempt from the one-
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

year time bar on collateral challenges. We therefore address the merits of Schorr's
claim.


         Schorr's simultaneous convictions of first degree murder and first degree

robbery do not violate double jeopardy clause protections. Schorr was charged with

first degree murder by two alternative means: premeditated murder and felony

murder predicated on first degree robbery. Our case law clearly holds that when

criminal defendants plead guilty to charges in an information, they cannot pick and

choose the portions ofthe charges to which they will plead guilty. Thus,even though

first degree felony murder predicated on first degree robbery would merge with the

first degree robbery on which it is predicated, that was not the only means of first

degree murder to which Schorr pleaded guilty. He also pleaded guilty to the

alternative means of premeditated murder. A first degree robbery conviction

certainly does not merge with a first degree premeditated murder conviction.

         We therefore dismiss the PRP.

                                         Facts


         According to the State's declaration for determination of probable cause,

Schorr and Jeremy Hosford planned and executed a robbery of a Snap-on Tools

Company truck. On February 24, 2004, Schorr and Hosford armed themselves with

guns and flagged down the truck. They handcuffed the victim, Robert Shapel, and

stole his personal property. One or both of them also pulled a plastic bag over
In re Pars. Restraint ofSchorr (William Craig), No. 94591-8

Shapel's head and duct-taped it at his neck. Shapel suffocated and died. Schorr and

Hosford then dumped the body.

      The Snap-on Tools Company truck was left in a parking lot for several hours.

Schorr and Hosford later returned to the truck, stole the tools, and set the empty truck

on fire.


       On March 2, 2004, the State charged Schorr with aggravated murder and

several other crimes. On November 16,2005,however, Schorr agreed to plead guilty

to lesser charges. Suppl. Br. of Resp't, App. B. He did this specifically to

"eliminate[] the possibility that defendant will be subject to the death penalty or a

sentence of life without the possibility of parole." Id., App. D at 2, para. 2 (plea

agreement).

       On August 4, 2006,the State filed an amended information to implement this

plea agreement. Id., App. C. The aggravated murder charge was gone. Instead, the

amended information charged first degree murder in count I by two alternative

means: premeditated murder in violation of ROW 9A.32.030(l)(a) and felony

murder in violation of ROW 9A.32.030(l)(c). Id. at 1-2. Bach alternative means

included a firearm enhancement. The State also charged first degree robbery,second

degree arson, and first degree theft(counts III, IV, and V).Id. at 2-3.

       On November 16, 2005, Schorr pleaded guilty to that amended information.

Schorr's plea agreement included a "Waiver of appeal and collateral attack rights
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

regardless of changes in the law" in which Schorr agreed not to bring "any kind of

future legal challenge to his convictions and sentences." Id., App. D at 5-6

(underlining omitted).

                               Procedural PIistqry


      In January 2017, Schorr filed a pro se PRP.He raised a single claim: he argued

that his first degree robbery and first degree theft convictions violate doublejeopardy

clause protections because both convictions should have merged with his first degree

felony murder conviction. Schorr also argued that because his PRP was based on a

double jeopardy claim, his petition was exempt from the one-year time limit on

collateral review. RCW 10.73.090 (one-year time limit), .100(3)(exception to one-

year time limit for double jeopardy claims).

       The Court of Appeals dismissed the petition. Mot, for Discr. Review, App.

(order). It ruled that Schorr waived his right to seek collateral review and that his

PRP was also untimely. Id.

       Schorr filed a motion for discretionary review in this court. He now argues

that his first degree robbery conviction should have merged with his first degree

murder conviction.
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

                                      Analysis


      I.     Schorr's PRP is exempt from the one-year time limit

      The State first argues that Schorr's PRP is untimely and should therefore be

dismissed.


       We disagree. Schorr did file his PRP well after RCW 10.73.090's one-year

time limit. But his collateral challenge is based solely on a double jeopardy clause

violation. Under RCW 10.73.100(3), double jeopardy claims are exempt from RCW

10.73.090's one-year time limit. This is a threshold inquiry; we do not have to decide

whether the entire claim is completely meritorious in order to decide whether it fits

within an exception to the time bar. See In re Pers. Restraint of Yung-Cheng Tsai,

183 Wn.2d 91, 99-108, 351 P.3d 138 (2015)(examining whether two petitioners'

PRP claims fit within the RCW 10.73.100 exception to 10.73.090's one-year time

bar first, for both the petitioner whose claim did survive and also the petitioner whose

claim did not survive).

       Schorr's PRP is based solely on a double jeopardy claim, and hence, it clearly

fits within the RCW 10.73.100(3) exception to the one-year time bar.

       II.   Schorr did not waive the right to bring his double jeopardy claims

       The State also argues that Schorr waived his right to bring this double

jeopardy claim. Based on the record in this case, we disagree.
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

              A. A defendant can validly waive many rights in a plea agreement

       A criminal defendant can validly waive many rights in a plea agreement. For

example, a defendant can relinquish the right to trial, the right to confront one's

accusers, and the privilege against self-incrimination. Boykin v. Alabama, 395 U.S.

238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)(pleading guilty implicates the

Fifth Amendment privilege against self-incrimination, the Sixth Amendment right

to confront one's accusers, and the Sixth Amendment right to trial by jury); U.S.

Const, amends. V, VI.

              B. Some rights, however, cannot he waived in a plea agreement

       But not all rights can be validly waived in a plea agreement. For example,

courts have repeatedly held that claims concerning constitutional violations that arise

after the entry of the plea cannot be waived by a plea agreement.^ Similarly, a

defendant cannot waive the right to effective assistance of counsel in a plea

agreement.^ As the Seventh Circuit has explained:


      'E.g., United States v. Attar, 38 F.Bd 727, 732 (4th Cir. 1994)(stating that not all
appeal rights could be waived because "defendant's agreement to waive appellate review
of his sentence is implicitly conditioned on the assumption that the proceedings following
entry of the plea will be conducted in accordance with constitutional limitations" (citing
United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992))); United States v. Bushert, 997
F.2d 1343, 1350(11th Cir. 1993)("A defendant's waiver ofthe right to appeal his sentence
does not mean, however, that appellate review is completely unavailable."); see also Class
V. United States, U.S. , 138 S. Ct. 798, 200 L. Ed. 2d 37(2018)(guilty plea does not
waive right to appeal claim that statute under which defendant was convicted violated the
federal constitution).

       ^ See Washington v. Lampert, 422 F.3d 864, 870-71 (9th Cir. 2005)(approvingly
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

       Justice dictates that a claim of ineffective assistance of counsel in
       connection with the negotiation of a cooperation agreement cannot be
       barred by the agreement itself—the very product of the alleged
       ineffectiveness. To hold otherwise would deprive a defendant of an
       opportunity to assert his Sixth Amendment right to counsel where he
       had accepted the waiver in reliance on delinquent representation.

Jones V. United States, 167 F.3d 1142, 1145 (7th Cir. 1999).

       Waivers ofthe right to be sentenced free from constitutionally impermissible

factors such as race are also ineffective. United States v. Baramdyka, 95 F.3d 840,

843 (9th Cir. 1996)("[W]e have recognized that the waiver of a right to appeal may

be subject to certain exceptions such as . . . racial disparity in sentencing among

codefendants ...."(citing United States v. Johnson,67 F.3d 200,202 n.4(9th Cir.



citing other jurisdictions' statements that waivers caimot bar ineffective assistance of
counsel claims that are associated with the negotiation of plea agreements); United States
V. White, 307 F.3d 336, 341 (5th Cir. 2002)("[A] waiver of appeal may not be enforced
against a [federal habeas] petitioner who claims that ineffective assistance of counsel
rendered that waiver unknowing or involuntary." (citing United States v. Henderson, 72
F.3d 463, 465 (5th Cir. 1995))); United States v. Cockerham, 237 F.3d 1179, 1187 (10th
Cir. 2001)("[W]e hold that a plea agreement waiver of postconviction rights does not
waive the right to bring a [federal habeas] petition based on ineffective assistance of
counsel claims challenging the validity of the plea or the waiver." (citing United States v.
Broce, 488 U.S. 563, 569, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989))); DeRoo v. United
States, 223 F.3d 919, 924 (8th Cir. 2000)("A defendant's plea agreement waiver of the
right to seek [federal habeas] relief does not waive defendant's right to argue, pursuant to
that section, that the decision to enter into the plea was not knowing and voluntary because
it was the result of ineffective assistance of counsel." (citing Jones, 167 F.3d at 1145));
 United States v. Espinoza Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993); Sanders v. State,
412 S.C. 611, 615, 773 S.E.2d 580 (2015) ("[W]e agree with the wealth of federal
jurisprudence which allows for ineffective assistance of counsel claims to proceed despite
a previous waiver ofcollateral review where the challenge directly attacks the effectiveness
of the advice to agree to that waiver.").
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

1995))); United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)("[A] defendant

could not be said to have waived his right to appellate review ofa sentence ... based

on a constitutionally impermissible factor such as race.").

              C. A defendant cannot validly waive the right to challenge a sentence
                 that exceeds the court's authority

       Of particular importance here, this court has repeatedly held that a criminal

defendant cannot validly waive the right to challenge a sentence in a plea agreement

that exceeds the court's statutory authority.^ In re Pers. Restraint of Goodwin, 146

Wn.2d 861, 873-74, 50 P.3d 618 (2002) ("In keeping with long-established

precedent, we adhere to the principles that a sentence in excess ofstatutory authority

is subject to collateral attack ... and that a defendant cannot agree to punishment in

excess of that which the Legislature has established."); In re Pers. Restraint of

Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991)("'[A] plea bargaining agreement

cannot exceed the statutory authority given to the courts.'" (alteration in original)


       ^ We stress, however,that a defendant can validly waive many statutory protections.
For example, a defendant can waive the statute of limitations to take advantage of a
favorable plea offer rather than risk trial on a higher degree of the crime. See In re Pers.
Restraint ofSwagerty, 186 Wn.2d 801, 810, 383 P.3d 454(2016). Generally, rights, even
constitutional rights, can be waived so long as the waiver is knowing, voluntary, and
intelligent, and as long as any other relevant standard has been met. See State v. Smith,
134 Wn.2d 849, 852, 953 P.2d 810 (1998)(right to appeal)(citing State v. Perkins, 108
Wn.2d 212, 218, 737 P.2d 250 (1987)); State v. Hahn, 106 Wn.2d 885, 893, 726 P.2d 25
(1986)(right to counsel); City ofBellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957
(1984)(right to ajury)(citing State v. Forza, 70 Wn.2d 69,422 P.2d 475 (1966)). Nothing
in this opinion should be taken to disturb this existing jurisprudence.
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

(quoting In re Pers. Restraint of Gardner, 94 Wn.2d 504, 507, 617 P.2d 1001

(1980))). In Goodwin, for example, Goodwin filed a PRP requesting resentencing

based on an offender score miscalculation. Even though Goodwin agreed to an

incorrect offender score in his statement on plea of guilty, this court "adhere[d] to

the principles that a sentence in excess of statutory authority is subject to collateral

attack . . . and that a defendant cannot agree to punishment in excess of that which

the Legislature has established." Goodwin, 146 Wn.2d at 873-74. Goodwin remains

controlling on this point.'^

       The double jeopardy claim in this case is raised as a challenge to a sentence

that exceeds the court's authority. This is an appropriate characterization of the

claim.^ Thus, under the line of cases cited above, Schorr's purported waiver of his

right to collaterally attack his conviction and sentence does not bar this particular

challenge.


       4 Accord United States v. Torres, 828 F.3d 1113, 1124-25 (9th Cir. 2016)("[T]he
Constitution imposes a floor below which a defendant's plea, conviction, and sentencing
may not fall. ... A waiver of appellate rights will also not apply if a defendant's sentence
is 'illegal,' which includes a sentence that 'violates the Constitution.'" (quoting United
States V. Bibler, 495 F.3d 621,624(9th Cir. 2007))); United States v. Michelsen, 141 F.3d
867, 872(8th Cir. 1998)("Notwithstanding his waiver, Michelsen nevertheless implicitly
preserved his right to appeal on grounds that his sentence was illegal or imposed in
violation of the plea agreement."(citing United States v. Rutan, 956 F.2d 827, 829-30(8th
Cir. 1992), overruled in part on other grounds by United States v. Andis, 333 F.3d 886(8th
Cir. 2003))).

       ^ United States v. Mack, 494 F.2d 1204, 1207 (9th Cir. 1974)(citing Hill v. United
States, 368 U.S. 424, 430, 82 S. Ct. 468,7 L. Ed. 2d 417(1962)).
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

             D. Broce limited review ofdoublejeopardy claims after a guilty plea,
                but its limitation is inapplicable here

      The State argues that Broce limited review of double jeopardy claims after a

guilty plea. Suppl. Br. of Resp't at 10-11 (citing United States v. Broce, 488 U.S.

563, 573-75, 109 S. Ct. 757, 102 L. Ed. 2d 927(1989)).

      The State is correct. In Broce, the Court held that when a criminal defendant

pleads guilty to two separate conspiracy charges and later files a collateral attack on

the convictions and sentences on double jeopardy grounds, the challenge will be

rejected if it relies on proof of factual similarities between the two charges that are

not apparent from the record. 488 U.S. at 570("[A] defendant who pleads guilty to

two counts with facial allegations of distinct offenses concede[s] that he has

committed two separate crimes.").

      ButjBrace did not extend that rule to the situation where the factual similarities


giving rise to the double jeopardy claim are clear from the record. Here, Schorr's

double jeopardy challenge is based on the record, and no outside evidence was

introduced. Thus, even if Broce applied to state court procedures on state post-

conviction remedies, it would not bar review in this case.^



      ^ In fact, we recently confirmed that "claims which go to 'the very power of the
State to bring the defendant into court to answer the charge brought against him' are not
waived." State v. Knight, 162 Wn.2d 806, 811, 174 P.3d 1167(2008)(quoting Blackledge
V. Perry, 417 U.S. 21, 30, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974)); see also In re Pers.
Restraint ofFrancis, 170 Wn.2d 517, 522, 242 P.3d 866(2010)(holding that a guilty plea
does not waive double jeopardy clause challenge);In re Pers. Restraint ofThompson, 141

                                           10
In re Pars. Restraint ofSchorr (William Craig), No. 94591-8

      III.   Schorr pleaded guilty to first degree murder by two alternative means,
             premeditation and felony murder; convictions of both first degree
             murder by premeditation and first degree robbery do not violate double
             jeopardy clause protections

       Schorr pleaded guilty to first degree murder, first degree robbery, second

degree arson, and first degree theft. The first degree murder charge was based on

two alternative means: premeditated murder, in violation of RCW 9A.32.030(l)(a),

and felony murder predicated on the felony of first degree robbery, in violation of

RCW 9A.32.030(1)(c). Schorr argues that his conviction of first degree robbery

(count III) should have merged with his conviction of first degree felony murder

(count I,"IN THE ALTERNATIVE"(Suppl. Br. of Resp't, App. C at 1)).

      If Schorr had been convicted solely of first degree felony murder based on

first degree robbery, along with the first degree robbery on which it was based, then

he would have a good point. State v. Fuller, 185 Wn.2d 30, 37-38, 367 P.3d 1057

(2016) ("For double jeopardy purposes, a lesser included offense is the 'same

offense' as the greater offense." (citing Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.

Ct. 2221, 53 L. Ed. 2d 187 (1977))); see also In re Pers. Restraint ofFrancis, 170

Wn.2d 517, 527, 242 P.3d 866(2010)(addressing the merger of attempted robbery

and felony murder of the same victim (citing State v. Williams, 131 Wn. App. 488,




Wn.2d 712,719-20,10 P.Sd 380(2000)(holding that a guilty plea does not waive challenge
to the power of the court "to enter the conviction or impose the sentence" where basis for
challenge is clear "on the face ofthe record"(citing Broce, 488 U.S. at 569)).

                                           11
In refers. Restraint ofSchorr (William Craig), No. 94591-8

499, 128 P.3d 98 (2006), adhered to on remand, 147 Wn. App. 479, 195 P.3d 578

(2008))).

      But that is not what Schorr was convicted of. In this case, Schorr was charged

with two alternative means of committing first degree murder. He pleaded guilty as

charged. We have previously held that a defendant has no right to plead guilty to

only one alternative means of committing a crime that is charged using alternative

means. He must plead guilty to all or nothing. In re Pers. Restraint ofRichey, 162

Wn.2d 865, 872, 175 P.3d 585(2008)("By pleading guilty... Richey was pleading

to the charge as a whole including both alternatives listed in the information."); State

V. Bowerman, 115 Wn.2d 794, 801, 802 P.2d 116 (1990)("The statutory right to

plead guilty ... is a right to plead guilty to the [information] as charged.").

      The fact that the conviction of one alternative means is invalid does not doom


the conviction based on the other means. Richey, 162 Wn.2d at 871 (citing In re

Pers. Restraint ofFuamaila, 131 Wn. App. 908, 131 P.3d 318 (2006)). In Richey,

for example, the petitioner was charged with attempted first degree murder based on

two alternative means: attempted intentional murder and attempted felony murder.

Id. at 871-72. We held that "attempted felony murder" does not exist as a crime in

Washington and a guilty plea to that means of committing first degree murder was

therefore invalid. But we nonetheless concluded that Richey's guilty plea was still




                                          12
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

valid—because it was also based on the valid, alternative, attempted-intentional-

murder means.


      Like Richey, Schorr was charged with first degree rnurder based on two

alternative means: premeditated murder and felony murder. Like Richey, Schorr

pleaded guilty as charged. There is certainly some confusion in the guilty plea

documents about which elements of the crime Schorr actually acknowledged

committing. But he does not raise a challenge to the knowing, intelligent, and

voluntary character of his plea or to the factual basis for the plea. He is therefore

bound by the rule that a criminal defendant has no right to plead guilty to only one

alternative means of committing a crime charged in the alternative. He pleads guilty

to all or nothing.

      Thus, even though a first degree felony murder conviction based on the felony

offirst degree robbery plus a robbery conviction for the robbery on which the felony

murder was based would violate double jeopardy, Schorr was not convicted ofjust

felony murder. He was convicted of first degree murder, including its premeditation

means. The elements of first degree robbery are not subsumed within the elements

of premeditated first degree murder. Thus, Schorr's first degree murder and first

degree robbery eonvictions do not violate double jeopardy clause protections.




                                          13
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8

                                    Conclusion


      RCW 10.73.100(3)states that the one-year time limit on filing a PRP does not

apply to a PRP based on a double jeopardy clause violation. And a guilty plea

generally cannot waive the right to raise such a double jeopardy challenge to an

illegal sentence in an appeal or a PRP.

      But a criminal defendant has no right to pick and choose the means of a

charged crime to which he or she pleads guilty—^he or she must plead guilty to all

or nothing. Because Schorr's first degree murder conviction rests on two alternative

means, premeditated murder and felony murder, his convictions of both first degree

murder and first degree robbery do not violate double jeopardy clause protections.

       We therefore dismiss the PRP.




                                          14
In re Pers. Restraint ofSchorr (William Craig), No. 94591-8




 WE CONCUR:




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