                                                                            FILED
                                                                         SEPT 29, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division Ill



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In re the Personal Restraint of                )
                                               )         No. 33734-1-111
TROY R. HOLWAY,                                )
                                               )
                                               )
                      Petitioner.              )         UNPUBLISHED OPINION
                                               )

       KORSMO, J. -    Troy Holway filed this personal restraint petition (PRP),

challenging his counsel's advice concerning a plea offer. Although that advice was

erroneous, it was not prejudicial. We deny the initial petition, but grant the amended

petition and remand for resentencing due to an intervening case decision.

                                           FACTS

       A jury convicted Mr. Holway on three counts of delivery of a controlled

substance, heroin, and found that each offense occurred within a school zone. The court

imposed concurrent base sentences of 60 months on each count, but ordered the three 24-

month enhancements to run consecutively to each other and to the base sentence,

resulting in a total sentence of 11 years in prison.

       Prior to trial, the prosecutor had offered to allow a plea to a single count, with a

range of20-60 months, if the parties jointly asked for a 30-month sentence. Mr. Holway

declined the offer. The prosecutor then threatened to add the sentencing enhancement to
No. 33734-1-III
In re Holway


each count unless Mr. Holway pleaded guilty to all three counts for a joint 60-month

recommendation. He again declined the offer. After the jury returned its verdicts and the

trial court imposed the noted 11-year sentence, Mr. Holway appealed to this court. We

affirmed the convictions and sentence by an unpublished opinion. State v. Holway, No.

32046-4-III (Wash. Ct. App. Jan. 29, 2015) (unpublished), http://www.courts.wa.gov/

opinions/pdf/3 20464. unp. pdf.

       Mr. Holway, proceeding prose, subsequently filed this petition. It was supported

by his trial counsel's affidavit stating he had erroneously advised his client that the three

enhancements would each be 12 months and would be served consecutively. Mr.

Holway sought to have a new trial or receive the 60-month sentence previously proposed

by the prosecutor before trial. After the prosecutor filed a response arguing that the

petition was without merit, but that Mr. Holway was entitled to relief under an

intervening case if he timely amended his petition, this court appointed counsel for Mr.

Holway. The petition was amended to ask for resentencing as an alternative to the relief

originally sought.

       A panel considered the petition without argument.

                                        ANALYSIS

       The intervening decision establishes Mr. Holway's entitlement to relief, but also

shows the error of his initial petition. After briefly considering the standards governing

this petition, we will tum to the amended petition and then the original petition.


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In re Holway


       The standards governing review of a PRP are well settled. The burdens imposed

on a petitioner in a PRP are heavy. Because of the significant societal costs of collateral

litigation often brought years after a conviction and the need for finality, relief will only

be granted in a PRP if there is constitutional error that caused substantial actual prejudice

or if a nonconstitutional error resulted in a fundamental defect constituting a complete

miscarriage of justice. In re Pers. Restraint of Woods, 154 Wn.2d 400,409, 114 P.3d

607 (2005). It is the petitioner's burden to establish this "threshold requirement." Id. To

do so, a PRP must present competent evidence in support of its claims. In re Pers.

Restraint ofRice, 118 Wn.2d 876, 885-886, 828 P.2d 1086, cert. denied, 506 U.S. 958

( 1992). If the facts alleged would potentially entitle the petitioner to relief, a reference

hearing may be ordered to resolve the factual allegations. Id. at 886-887. A petitioner

may not renew an issue that was addressed and rejected on direct appeal unless the

interests of justice require reconsideration of that issue. In re Pers. Restraint of Yates,

177 Wn.2d 1, 17, 296 P.3d 872 (2013).

       RCW 69.50.435(1)(c) and (d) provide an additional penalty for those, like Mr.

Holway, who sell drugs within 1,000 feet of a school or school bus stop. One aspect of that

penalty is found in RCW 9.94A.533(6), which requires in part that 24 months "shall be

added to the standard sentence range" for violating RCW 69.50.435 and that the

enhancement "shall run consecutively to all other sentencing provisions." Although both

of the quoted sections of§ 533(6) are at issue in this case, only the consecutive nature of


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In re Holway


the penalty was at issue in the controlling case of State v. Conover, 183 Wn.2d 706, 355

P.3d 1093 (2015).

       There the defendant, as in this case, had been convicted of three counts of

delivering heroin within 1,000 feet of a school bus stop, leading to the imposition of 72

months of enhancements to the base sentence of 48 months. Id. at 707. Considering the

language of§ 533(6) and its earlier decision in In re Charles, 135 Wn.2d 239, 955 P.2d

798 ( 1998), the Conover court determined that the enhancements could run concurrently

to each other if the base sentences did. 183 Wn.2d at 707-708, 712-719. The case was

remanded for resentencing. Id. at 719.

       The parties agree that Conover requires at least the same result in this case. We,

too, agree that a resentencing is required by Conover. The remaining question, argued by

Mr. Holway from his original prose petitions, is whether he is entitled to a new plea

agreement. That argument fails on the facts of this case.

      In the plea bargaining context, an attorney renders ineffective assistance when a

defendant rejects a plea offer on the basis of erroneous advice from his counsel and is

thereby prejudiced. Lafler v. Cooper, 566 U.S._, 132 S. Ct. 1376, 182 L. Ed. 2d 398,

407 (2012). The defendant must show that he would have accepted the offer and that it

would not have been withdrawn by the prosecutor. Id. One potential remedy within the




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In re Holway


trial court's discretion is to require the prosecutor to reoffer the plea agreement. Id. at

412. That remedy is at issue here. 1

        We reject that request because the petition has not established that the 60-month

offer would have been accepted if counsel had given correct advice. Defense counsel

erroneously advised Mr. Holway that he faced a 96-month sentence ( 60-month base plus

three consecutive 12-month enhancements) rather than the 84-month sentence (60-month

base plus concurrent 24-month enhancements) dictated by Conover. Mr. Holway

rejected the 60-month offer when he thought he was facing a 96-month sentence. It

strains credulity to believe that he would have accepted the 60-month offer ifhe had been

correctly advised that he only faced an 84-month sentence after trial rather than the

longer sentence erroneously identified by his counsel. On this basis we conclude Mr.

Holway has not met his heavy burden of establishing that he would have accepted the

offer if his counsel had given correct advice in the first instance. 2 The argument of the

initial petition is rejected.




       1
          Although the original petition requested a new trial, that remedy was not supported
by any relevant argument and flies in the face of the fact that Mr. Holway already received
a trial after rejecting the offer. We do not otherwise consider the argument.
       2
        We also note that Mr. Holway did not file an affidavit indicating that he in fact
would have accepted the offer if he had known of the true consequences. The PRP
makes the argument that he would have accepted the offer, but no evidence was
presented to support the claim. However, the prosecutor does not contest this point and
we do not rely on the absence of such evidence in this decision.


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      We grant the amended petition and remand for resentencing in accordance with

Conover.

      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.




WE CONCUR:



      Lawrence-Berrey, A.
                                j

      Pennell, J.




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