                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            March 20, 2018

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 49694-1-II

                        Respondent,

         v.

 COREY JEROME IRISH,                                            UNPUBLISHED OPINION

                        Appellant.


       SUTTON, J. — Corey Jerome Irish appeals the trial court’s denial of his CrR 7.8 motion.

Through appellate counsel, Irish argues that the trial court erred by denying Irish’s untimely CrR

7.8 motion rather than transferring the CrR 7.8 motion to this court for consideration as a personal

restraint petition (PRP) as required by CrR 7.8(c)(2). We hold that once the trial court determined

that the CrR 7.8 motion was time barred or that Irish failed to establish a substantial probability

that he was entitled to relief, the trial court was required to transfer Irish’s CrR 7.8 motion to this

court under CrR 7.8(c)(2) and the trial court lacked the authority to deny the motion. Accordingly,

we vacate the order denying the CrR 7.8 motion and remand this matter back to the trial court to

transfer the CrR 7.8 motion to this court under CrR 7.8(c)(2).
No. 49694-1-II


                                              FACTS

                                   I. PRIOR APPEALS AND PRPS

       In 2008, a jury convicted Irish of first degree robbery, three counts of second degree assault,

and other charges that are not relevant to this appeal. At his initial sentencing, the trial court

merged one of the three second degree assault convictions with the first degree robbery to avoid a

double jeopardy issue. The trial court refused to merge the remaining assault convictions into the

robbery and sentenced Irish on the first degree robbery and the remaining two assault convictions

separately. Irish appealed.

       In an unpublished opinion filed November 9, 2009, we rejected Irish’s argument that the

first degree robbery and the two un-merged second degree assault convictions violated the

prohibition against double jeopardy under the merger doctrine or the independent purpose test.

State v. Irish, noted at 152 Wn. App. 1065 (2009). We did so because the robbery did not occur

in the presence of the two assault victims. But we remanded on other grounds. Our Supreme

Court denied review. State v. Irish, 168 Wn.2d 1021 (Mar. 30, 2010) (ruling denying review).

       Irish filed his first PRP in May 2010. He again presented a double jeopardy argument. We

noted that this issue had already been rejected on the merits in this first appeal and further noted

that, to the extent his new argument differed from his original argument, it had no merit. In re

Pers. Restraint of Irish, No. 40665-9-II (Nov. 24, 2010) (order dismissing petition). Our Supreme

Court denied review. In re Pers. Restraint of Irish, No. 85420-3 (July 12, 2011) (ruling denying

motion for review).




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No. 49694-1-II


       Meanwhile, on remand, the trial court entered an amended judgment and sentence. The

trial court again imposed separate sentences for the first degree robbery and the two remaining

second degree assaults. Irish appealed. Our Supreme Court affirmed the trial court. State v. Irish,

173 Wn.2d 787, 272 P.3d 207 (2012). Irish did not raise a double jeopardy issue in this second

appeal. This appeal mandated in March 2012, and Irish’s judgment and sentence became final at

that time. RCW 10.73.090(3)(b).

       In October 2012, Irish filed a second PRP. He once again argued that the imposition of

separate sentences on the robbery and the two second degree assaults violated double jeopardy.

We dismissed this petition because the issue had already been rejected on the merits and Irish’s

argument that there had been a significant change in the law that justified reconsideration of the

double jeopardy issue had no merit. In re Pers. Restraint of Irish, No. 44072-5-II (June 3, 2013)

(order dismissing petition). Our Supreme Court denied review. In re Pers. Restraint of Irish, No.

89019-6 (June 4, 2014) (ruling denying motion for review).

       In March 2015, Irish filed a third PRP. In this PRP, he argued what he framed as a

sufficiency of the evidence challenge to the two second degree assault convictions. We concluded

that Irish had failed to present any justification for not raising this issue in his prior PRPs and that

his “sufficiency” argument was, in fact, “merely a reiteration of the double jeopardy claims raised

in his prior two petitions.” In re Pers. Restraint of Irish, No. 47352-6-II (Aug. 19, 2015) (order

dismissing petition). Our Supreme Court denied review.         In its ruling denying review, it agreed

that Irish’s “sufficiency” claim “merely restyle[d] a previously raised argument that his

convictions violate double jeopardy principles,” and that that issue had already been rejected and




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No. 49694-1-II


had no merit. In re Pers. Restraint of Irish, No. 92227-6 (Mar. 18, 2016) (ruling denying motion

for review).

                                        II. CRR 7.8 MOTION

       In July 2016, more than four years after his judgment and sentence had become final

following the mandate of his second appeal, Irish filed a CrR 7.8 motion in the trial court. Irish

argued that under In re the Pers. Restraint of Carle, 93 Wn.2d 31, 604 P.2d 1293 (1980), “the

[t]rial [c]ourt exceeded its statutory authority provided [in] the Robbery Statue when it entered the

Second Degree Assault convictions” because the robbery and assaults were based on the same

action and there is no clear legislative intent that the legislature intended to allow the assaults to

increase the penalty for the robbery. Clerk’s Papers (CP) at 24-25. Irish further argued that the

motion was not time barred because the trial court had exceeded its statutory authority when it

entered the judgment and sentence. Two months later, Irish filed a motion for default judgment

on the CrR 7.8 motion.

       Rather than transfer the CrR 7.8 motion to us under CrR 7.8(c)(2), the trial court denied

the CrR 7.8 motion and denied the motion for default judgment. In its order, the trial court

characterized Irish’s argument as a reiteration of his previously raised and rejected double jeopardy

claim and as an attempt to show that this double jeopardy claim rendered the judgment and

sentence facially invalid. The trial court did not specifically mention the one year time bar, RCW

10.73.090, or the successive petition rule, RCW 10.73.140. Irish appeals the denial of his CrR 7.8

motion.




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No. 49694-1-II


                                             ANALYSIS

        Under CrR 7.8(c)(2), the trial court “shall transfer a motion filed by a defendant to the

Court of Appeals for consideration as a personal restraint petition unless the [trial] court

determines that the motion is not barred by RCW 10.73.090 and either (i) the defendant has made

a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require

a factual hearing.” (Emphasis added). See also State v. Smith, 144 Wn. App. 860, 863, 184 P.3d

666 (2008).

        Irish’s appellate counsel and the State agree that the trial court did not have the authority

to deny this CrR 7.8 as untimely. Accordingly, they both ask us to remand this matter back to the

trial court so the trial court can transfer the CrR 7.8 motion to this court. In contrast, in his pro se

Statement of Additional Grounds (SAG), Irish contends that the trial court did not deny the CrR

7.8 motion because it was untimely and that the trial court was therefore required to hold a hearing

under CrR 7.8(3) before denying the motion. We agree with appellate counsel and the State.

        Although the trial court did not specifically mention that Irish’s CrR 7.8 motion was

untimely, it stated that Irish was asserting that his argument established that the judgment and

sentence was facially invalid. Whether a judgment and sentence is facially invalid relates to

whether a CrR 7.8 motion is timely. See RCW 10.73.090(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.”) (emphasis added). Thus, we agree with appellate counsel and

the State that the trial court’s decision rested, at least in part, on the untimeliness of the CrR 7.8

motion. Once the trial court determined that the CrR 7.8 motion was not timely, it had no choice



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but to transfer the motion to this court under CrR 7.8(c)(2). Accordingly, we hold that the trial

court acted without authority when it denied the CrR 7.8 motion. Smith, 144 Wn. App. at 863.

       Furthermore, even if the trial court did not deny the CrR 7.8 motion as untimely, the trial

court still did not have the authority to deny the motion. The remainder of the trial court’s order

suggests that the trial court also found that Irish did not make a substantial showing that he was

entitled to relief because the issue he was attempting to raise had already been raised and rejected

on the merits. CrR 7.8(b) provides that motions brought under CrR 7.8 are subject to RCW

10.73.140, which bars successive collateral attacks unless the person moving for collateral relief

can show that he has not filed a petition on similar grounds and show good cause for why he failed

to raise the new ground in the prior collateral attack. RCW 10.73.140; see also State v. Brand,

120 Wn.2d 365, 370, 842 P.2d 470 (1992) (holding that RCW 10.73.140 applies to CrR 7.8

motions by analogy). Because of this procedural bar, the trial court may have also denied the CrR

7.8 motion because Irish failed to make a substantial showing that he was entitled to relief. Again,

once it made that decision, the trial court lacked jurisdiction to deny the CrR 7.8. CrR 7.8(c)(2).




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No. 49694-1-II


         Because the trial court was only authorized to transfer Irish’s CrR 7.8 motion to this court

under CrR 7.8(c)(2), we vacate the trial court’s order denying Irish’s CrR 7.8 motion and remand

this matter to the trial court to transfer the motion to this court for consideration as a PRP.1 CrR

7.8(c)(2); Smith, 144 Wn. App. at 863.

         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.



                                                       SUTTON, J.
    We concur:



    BJORGEN, C.J.




    JOHANSON




1
  Because we reverse on this ground and hold that the trial court improperly retained jurisdiction
of the CrR 7.8 motion, we do not address Irish’s arguments in his SAG that he was entitled to a
hearing under CrR 7.8(c)(3) or that the trial court mischaracterized his legal argument. Once the
trial court determined that the motion was time barred, no hearing was required. See CrR 7.8(c)(2)
(“[t]he court shall transfer a motion filed by a defendant to the Court of Appeals” if it determines
that the motion is time barred) (emphasis added). If this matter comes before us as a proper PRP,
we will address whether Irish’s legal argument is merely a restatement of his prior double jeopardy
argument.


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