                                                                                                2014 NOV 18   i °.N   1•   03
                                                                                                STATE OF
                                                                                                BY \ \




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

    STATE OF WASHINGTON,                                                       No. 43814 -3 -II


                                          Appellant,


           v.




    BESS EDAWAYNE OVERMON,                                               UNPUBLISHED OPINION


                                          Respondent.


         JOHANSON, C. J. —                 The State appeals from a superior court order granting Bess

Overmon' s CrR 7. 8 motion to withdraw her guilty plea for second degree theft. The State argues

that Overmon' s motion must be dismissed as time barred because her motion was filed beyond the


one -year time limit, and the rule announced by the United States Supreme Court in Padilla v.

Kentucky, 559            U. S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 ( 2010),     does not apply retroactively.

We agree and hold that Overmon' s CrR 7. 8 motion is time barred under CrR 7. 8 and RCW

                1
10. 73. 090.            Accordingly, we reverse the order allowing Overmon' s guilty plea withdrawal and

remand to the trial court to reinstate Overmon' s conviction.




1
    The State'      s   remaining   claims are   immaterial because the time bar   claim   is dispositive.
No. 43814 -3 - II


                                                         FACTS


             In 2005, the State charged Overmon with first degree theft in Pierce County. At that time,

Overmon           was a   lawful United States   permanent resident.            In 2006, Overmon pleaded guilty to

second degree theft. During the plea hearing, Overmon answered affirmatively when the superior

court asked whether she understood " that if you are not a citizen of the United States that entry of

this   plea would      be   grounds   for deportation   or   denial   of rights   to   enter   the United States ?" Clerk' s


Papers ( CP) at 28 -29.


             Regarding potential adverse immigration consequences stemming from the plea, the

superior court heard further from Overmon' s attorney, who told the superior court that it was his

understanding that

              Overmon] has consulted with an immigration attorney and that shouldn' t lead to
             problems with this charge for this amount of money, it' s my understanding. I don' t
             know what to say about that so I would have to go with the person who has expertise
             in that area regarding deportation.

CP     at   31.   The superior court accepted Overmon' s plea.


             In 2008, Overmon traveled to England to                   visit    family    members.       Upon her return,


authorities stopped Overmon at Sea -Tac Airport and she was told that she would not be permitted


to remain in the United States as a result of her Pierce County theft conviction. Shortly thereafter,

the United         States initiated   exclusion proceedings against            Overmon.        According to Overmon, she

had    not consulted an       immigration attorney before her 2006                plea.   In 2011, pursuant to CrR 7. 8,


Overmon moved to withdraw the plea on grounds that she received ineffective assistance of


counsel because her attorney failed to fully inform her of the immigration consequences associated

with a second theft conviction.




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No. 43814- 3- 11



            Notwithstanding the State' s contention that CrR 7. 8( c)( 2) required the superior court to

transfer Overmon' s motion to this court for consideration as a personal restraint petition ( PRP),


the    superior court     held   a    fact -finding   hearing.    The State argued that Overmon' s CrR 7. 8 motion


was time barred, but the superior court concluded that the United States Supreme Court' s decision


in Padilla controlled, permitting Overmon to collaterally attack her conviction beyond the one-

year    time limit      set   forth    under   RCW 10. 73. 090.         The superior court ruled that Overmon was


entitled to withdraw her plea. The State appeals.


                                                           ANALYSIS


                                                             TIME BAR


            The State contends that reversal is required because Overmon' s claim is time barred by

CrR 7. 8      and    RCW 10. 73. 090        and    because Padilla does         not   apply retroactively.      We hold that


Overmon' s motion is time barred because the United States Supreme Court' s decision in Chaidez


v.    United States,           U. S. ,         133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149 ( 2013), unequivocally


states that Padilla is not intended to have retroactive effect.


                                      A. STANDARD OF REVIEW AND RULES OF LAW


            We      review a   trial   court' s   ruling   on a   CrR 7. 8   motion    for   abuse   of   discretion.    State v.


Martinez, 161 Wn.             App.     436, 440, 253 P. 3d 445,        review   denied, 172 Wn.2d 1011 ( 2011).               CrR


4.2( f) provides that a trial court " shall allow a defendant to withdraw the defendant' s plea of guilty

whenever       it   appears    that the   withdrawal       is necessary to   correct a manifest       injustice."      Where, as


here, a criminal defendant moves to withdraw her guilty plea after judgment has been entered, CrR

7. 8   governs.       CrR 7. 8   motions are subject         to the    provisions of    RCW 10. 73. 090        and .   100.   CrR


7. 8( b).    And CrR 7. 8( c)( 2) provides that a court shall transfer a motion filed by the defendant to


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No. 43814 -3 - II



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 ( 1) the defendant has made a substantial showing that he or

she is entitled to relief or (2) resolution of the motion requires a factual hearing.

        RCW 10. 73. 090 states in part,


         1) 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.
                    2) For the   purposes of   this   section, "   collateral attack" means any form of
        postconviction relief other     than   a   direct   appeal. "   Collateral attack" includes, but is
        not limited to, a personal restraint petition, a habeas corpus petition, a motion to
        vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a
        motion to arrest judgment.


Notwithstanding RCW 10. 73. 090, motions for collateral attack on a judgment and sentence in a

criminal case may be made beyond the one -year time limit if one of the exceptions enumerated in

RCW 10. 73. 100 applies. RCW 10. 73. 100 provides in relevant part,


        The time limit specified in RCW 10. 73. 090 does not apply to a petition or motion
        that is based solely on one or more of the following grounds:

                    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.


                                       B. PADILLA NOT RETROACTIVE


        The State contends that the trial court erred by holding a hearing to address Overmon' s

motion rather than transferring her motion to this court to be considered as a PRP. While the State

is correct that Overmon' s motion should have been transferred to this court, the trial court


nonetheless held the hearing. Based apparently on unsettled questions of law at the time, including

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No. 43814- 3- 11



the retroactive effect of Padilla, the trial court did reach the merits. Consistent with the trial court' s


ruling, Overmon now asserts that she should be entitled to avail herself of the rule announced by

the United States Supreme Court in Padilla and that under Padilla, her motion is not time barred.

We disagree with Overmon.


         In Padilla, the United States Supreme Court                concluded   that " Padilla' s counsel had an



obligation to advise him that the offense to which he was pleading guilty would result in his

removal   from this country," and that the failure to advise him of the immigration consequences


constituted deficient performance. 559 U.S. at 360. Then, the Supreme Court held in Chaidez that

defendants whose convictions became final prior to Padilla in 2010 could not benefit from its


holding. 133 S. Ct. at 1113. Thus, Padilla is not applied retroactively.

         We have previously followed Chaidez in State v. Martinez -Leon, 174 Wn. App. 753, 300

P. 3d 481,   review    denied, 179 Wn. 2d 1004 ( 2013),       a case factually similar to Overmon' s. There,

over five years after entry of his guilty plea, Martinez -Leon attempted to withdraw his plea,

asserting that he had not been fully advised as to potential immigration consequences resulting

from his decision. Martinez -Leon, 174 Wn. App.               at   757. We upheld the superior court' s denial


of Martinez- Leon' s CrR 7. 8 motion holding that Chaidez foreclosed the possibility that Martinez -

Leon could avail himself of the rule announced in Padilla and, therefore, the exception contained


in RCW 10. 73. 100( 6) did not apply and his collateral attack was time barred. Martinez -Leon, 174

Wn. App. at 760 -61.

         Here, Overmon filed her CrR 7. 8 motion more than five years after her judgment became


final,   which   was    before Padilla   was   decided.       Overmon attempts to distinguish Chaidez by

asserting that Chaidez held that Padilla was intended only to apply to federal habeas petitions. But


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No. 43814 -3 -II



the Chaidez court stated unequivocally that " a person whose conviction is already final may not

benefit from the [Padilla] decision in a habeas or similar proceeding. 133 S. Ct. at 1107 ( emphasis

added).




          Accordingly, because Padilla is not applied retroactively, the superior court abused its

discretion in allowing Overmon to withdraw her guilty plea when it was time barred and, therefore,

we reverse the order allowing Overmon' s guilty plea withdrawal and remand to the trial court to

reinstate her conviction.


          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.




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