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           IN THE SUPREME COURT OF THE STATE OF WASHINGTON

     STATE OF WASHINGTON,                     )
                                              )      No. 90367-1
             Respondent,                      )
                                              )
             v.                               )
                                              )      En Bane
     ROBERT WHEELER,                          )
                                              )
             Petitioner.                      )      Filed      APR 3 0 2015
     _______________________ )
             GONZALEZ, J.-After his 18th birthday, Robert Wheeler was charged

     with and pleaded guilty to first degree child rape and first degree child

     molestation for offenses he committed when he was 13 or 14 years old that

     came to light when he was 17 and a half. His convictions have been final since

     2006.

             Wheeler contends we have the authority to, and should, revisit his

     previously rejected claim that his plea was involuntary because he was

     misinformed of the maximum sentences for his crimes. He also challenges his

     convictions as the product of unconstitutional preaccusatorial delay and seeks

     to avoid the time bar for collateral attack by claiming he has newly discovered

     evidence that the State delayed filing charges until Wheeler aged out of
State v. Wheeler, No. 90367-1


juvenile court. We reject Wheeler's arguments and affirm the Court of

Appeals.

                                     FACTS

       Between December 2000 and December 200 1, when Wheeler was 13 or ·

14 years old, he sexually abused his 6 or 7 year old twin stepsisters. The abuse

came to light in late 2004 when Wheeler was 17 and a half years old. On May

4, 2005, a little more than a month after Wheeler's 18th birthday, the State filed

an information charging Wheeler as an adult with first degree child rape and

first degree child molestation. The information was originally dated in typeface

March 26, 2005-three days before Wheeler's 18th birthday-but that date was

changed in handwriting to May 4, 2005.

       The parties negotiated a plea agreement. Wheeler pleaded guilty to the

offenses as charged and was sentenced under the Special Sex Offender

Sentencing Alternative (SSOSA), RCW 9.94A.670, on Apri117, 2006. Our

legislature created the SSOSA program to give certain first time sex offenders

the opportunity, and incentive, to receive sex offender treatment. See State v.

Pannell, 173 Wn.2d 222, 227, 267 P.3d 349 (2011). Offenders who

successfully complete the program can have all or some of their sentences

suspended. Id. First degree child rape and first degree child molestation are

class A felonies subject to a maximum sentence of life in prison and a $50,000

fine. RCW 9A.44.073(2), .083(2); RCW 9A.20.021(1)(a). Wheeler's plea


                                        2
State v. Wheeler, No. 90367-1


statement correctly recited the maximum life sentence for each count once but

also erroneously listed the maximum sentence as 20 years on each count. The

judgment and sentence also incorrectly stated the maximum sentences. The

court imposed standard range sentences of 131.7 5 months of confinement on

count I and 89 months of confinement on count II (to run concurrently) but

suspended the sentences in accordance with the SSOSA. Wheeler did not

appeal. His judgment and sentence became final when it was filed by the

superior court clerk on April17, 2006. RCW 10.73.090(3)(a).

       Wheeler failed to comply with several of his community custody

conditions, and the State petitioned to revoke his SSOSA. On September 11,

2009, the court fmmd Wheeler violated his community custody conditions "just

about every way you can, short of formally re-offending"; revoked the SSOSA;

and ordered Wheeler to serve the remainder of his standard range sentence.

State's Resp. toPers. Restraint Pet., App. Eat 4 (Verbatim Transcript of

Proceedings (Sept. 11, 2009) (VTP) at 4). Wheeler did not appeal the

revocation.

       At the 2009 SSOSA revocation hearing, the parties acknowledged that

Wheeler's crimes had come to light when he was still a minor but charges were

not filed until he was an adult:




                                       3
State v. Wheeler, No. 90367-1


              THE COURT: Yeah. I remember this case, Mr. Wheeler, because
       I remember the State had waited until you were an adult to charge you. I
       didn't think that was necessarily the fairest way to treat a 13-year old.
       Although maybe this didn't come to light. I think it still came to light
       when you were a minor.

              THE DEFENDANT: Yes.

              THE COURT: They still waited.

               [THE PROSECUTOR]: It was 17, Your Honor.

Id. at 3 (VTP at 3).

       In 2010, Wheeler filed a personal restraint petition, arguing he was

entitled to withdraw his 2006 guilty plea because his judgment and sentence

was facially invalid as a result of the misstated maximum sentences. After

staying the matter pending our decision in In re Personal Restraint of Coats,

173 Wn.2d 123,267 P.3d 324 (2011), the Court of Appeals concluded in 2012

that Wheeler was not entitled to withdraw his guilty plea and that his remedy

was limited to correction of his judgment and sentence. The Court of Appeals

"grant[ ed] the petition only for the purpose of remanding to the trial court for

correction of the maximum sentences set forth in Wheeler's judgment and

sentence." Order Terminating Review, In re Pers. Restraint of Wheeler, No.

40489-3-II, at 3 (Wash. Ct. App. July 3, 2012) (Order). Wheeler did not seek

our review of that decision, nor did he ask the Court of Appeals to reconsider

its decision under RAP 2.5( c)(2).




                                         4
State v. Wheeler, No. 90367-1


       In October 2012, the trial court entered an order correcting the erroneous

maximum sentences set forth in the judgment and sentence. Wheeler sought

direct review, arguing, again, that his guilty plea was involuntary because he

was misinformed of the statutory maximum sentences for his crimes and that

counsel on remand was ineffective in failing to ask the trial court to consider

the involuntary plea claim.

       Meanwhile, Wheeler's appellate counsel submitted a Public Records

Act, ch. 42.56 RCW, request (PRA request) for records relating to the charges

against Wheeler. Among other things, the State produced an unfiled draft

information with a juvenile court heading dated approximately three weeks

before Wheeler's 18th birthday. Based in part on these records, Wheeler filed a

personal restraint petition, arguing the State violated due process by delaying

filing charges resulting in the prejudicial loss of juvenile court jurisdiction.

       The Court of Appeals consolidated the appeal and the personal restraint

petition. The Court of Appeals held that the validity of Wheeler's guilty plea

was not an appealable issue because the trial court did not independently

review and rule on it; rejected Wheeler's claim of ineffective assistance,

reasoning that counsel was not obligated to advance an argument that was

unlikely to succeed; and dismissed Wheeler's personal restraint petition as

untimely. State v. Wheeler, noted at 181 Wn. App. 1018 (2014). We granted




                                          5
State v. Wheeler, No. 90367-1


Wheeler's petition for review. State v. Wheeler, 181 Wn.2d 1021, 337 P.3d

327 (2014). 1

                                     ANALYSIS

       I.       Challenge to the Validity of Wheeler's Guilty Plea

       First, Wheeler seeks to withdraw his guilty plea on the grounds that he

was misinformed of the maximum sentences for his crimes. Wheeler

previously brought this claim in an untimely personal restraint petition, and the

Court of Appeals found he was entitled only to a remand for the technical

correction of his judgment and sentence. Wheeler did not seek our review of

that decision, nor did he ask the Court of Appeals to reconsider its decision

under RAP 2.5(c)(2). Instead, he sought direct review of the technical

correction of his judgment and sentence on remand, raising the same argument.

The Court of Appeals properly found there was no issue to review. Wheeler

now asks us to contravene well-settled precedent and hold that the limited

remand for correction of his judgment and sentence gave him another

opportunity to challenge the validity of his guilty plea through a direct appeal.

We decline to do so.

       We reject Wheeler's contention that the Court of Appeals had discretion

to consider his challenge under RAP 2.5( c)(1) on remand for a technical


1Wheeler did not seek review of the Court of Appeals' holding regarding ineffective
assistance of counsel.



                                           6
State v. Wheeler, No. 90367-1


correction. 2 RAP 2.5(c) pertains to the common law "law ofthe case" doctrine,

which, among other things, treated some legal rulings in a case as binding on

the parties if not appealed. See State v. France, 180 Wn.2d 809, 816, 329 P.3d

864 (2014) (citing Tonkovich v. Dep'tofLabor &Indus., 31 Wn.2d 220,225,

195 P.2d 638 (1948)). RAP 2.5(c)(1) puts some restrictions on the law of the

case doctrine, but it "does not revive automatically every issue or decision

which was not raised in an earlier appeal. Only if the trial court, on remand,

exercised its independent judgment, reviewed and ruled again on such issue

does it become an appealable question." State v. Barberio, 121 Wn.2d 48, 50,

846 P.2d 519 (1993); State v. Kilgore, 167 Wn.2d 28, 39-41, 216 P.3d 393

(2009). RAP 2.5(c)(1) does not apply here because the trial court merely

executed the technical correction mandated by the appellate court order and did

not independently review the validity of the guilty plea.

         The trial court's discretion was clearly constrained by the Court of

Appeals' specific language "granting the petition only for the purpose of

remanding to the trial court for correction of the maximum sentences set forth

in Wheeler's judgment and sentence." Order at 3; see Godefroy v. Reilly, 140



2
    RAP 2.5(c)(l) provides:

          If a trial court decision is otherwise properly before the appellate court, the
         appellate court may at the instance of a party review and determine the propriety
         of a decision of the trial court even though a similar decision was not disputed in
         an earlier review of the same case.


                                              7
State v. Wheeler, No. 90367-1


Wash. 650, 657, 250 P. 59 (1926). Despite this clear language, Wheeler argues

that the trial court had discretion to consider a motion to withdraw his guilty

plea. He relies on RAP 12.2, which provides in part that "[a]fter the mandate

has issued, the trial court may[] ... hear and decide postjudgment motions

otherwise authorized by statute or court rule so long as those motions do not

challenge issues already decided by the appellate court." RAP 12.2 (emphasis

added). RAP 12.2 recognizes both appellate court power to order appropriate

relief "as the merits of the case and the interest of justice may require" and trial

court power to entertain appropriate postjudgment motions once the appellate

opinion has mandated. By its plain language, RAP 12.2 situates trial court

discretion within the boundaries of statutes and other court rules that apply to

postjudgment motions, and CrR 7 .8(b) and RAP 16.4(d) provide that

postjudgment motions to withdraw a guilty plea are subject to RCW 10.73.090

and RCW 10.73.100. Thus RAP 12.2 subjects Wheeler's challenge to the

statutory time bar. It does not provide an avenue to circumvent it. Finally, the

trial court's RAP 12.2 power to entertain postjudgment motions extends only to

motions that "do not challenge issues already decided by the appellate court."

The Court of Appeals already considered Wheeler's challenge to the validity of

his guilty plea and decided he was entitled only to a correction of his judgment

and sentence. RAP 12.2 does not provide Wheeler a vehicle to renew his

challenge to his guilty plea.


                                          8
State v. Wheeler, No. 90367-1


       We stress, again, that a mere misstatement of the maximum sentence

does not by itself render a judgment and sentence facially invalid, and a

petitioner's remedy for such an error through an untimely personal restraint

petition is limited to a technical correction of the judgment and sentence. In re

Pers. Restraint of Coats, 173 Wn.2d at 135, 143-44. Wheeler's argument that

the remand for the entry of that correction restores a petitioner's right to raise

the very same issue in a direct appeal has no basis in law. An untimely

personal restraint petition is.simply not a vehicle for an untimely motion to

withdraw a guilty plea. In re Pers. Restraint of Coats, 173 Wn.2d at 143-44;

see also In re Pers. Restraint of Snively, 180 Wn.2d 28, 31-32, 320 P.3d 1107

(2014). Wheeler makes no argument that our controlling precedent is incorrect

or harmful.

       II.    Newly Discovered Evidence Claim

       In his personal restraint petition, which was filed more than one year

after his conviction was final, Wheeler argues the State violated due process by

intentionally or negligently delaying filing charges until juvenile court

jurisdiction lapsed. The legislature has imposed a one year time bar for

collateral attacks on conviction but has exempted, among other things, petitions

based solely on newly discovered evidence "if the defendant acted with

reasonable diligence in discovering the evidence and filing the petition." RCW

10.73.100(1). Wheeler argues that documents produced by the prosecutor's


                                          9
State v. Wheeler, No. 90367-1


office in response to his 2013 PRA request-including a draft information in

juvenile court, a statement of probable cause, and a redacted log of case

activity-are newly discovered evidence ofpreaccusatorial delay and so his

preaccusatorial delay claim is exempt from the one year time bar. We find

Wheeler's petition is time barred, and we affirm the Court of Appeals.

       Wheeler has not met his obligation under RCW 10.73.100(1) to show

that he acted with reasonable diligence in filing the petition because he has not

shown he could not have raised the preaccusatorial delay claim at the time he

was charged. A defendant raises a claim of preaccusatorial delay by showing

he or she was prejudiced by the State's delay. State v. Dixon, 114 Wn.2d 857,

860,792 P.2d 137 (1990) (citing State v. Lidge, 111 Wn.2d 845, 848, 765 P.2d

1292 (1989)). If this had been timely raised, Wheeler may have been entitled

to relief: we have found a defendant met the minimal prerequisite of prejudice

based on the fact that his offense was discovered five months before his 18th

birthday but charges were not filed until after his birthday. State v. Calderon,

102 Wn.2d 348, 352-53, 684 P.2d 1293 (1984). If the defendant shows ach1al

prejudice, then the court must determine the reasons for the delay and must

balance the State's reasons against the prejudice to the accused to determine

"whether fundamental conceptions of justice would be violated by allowing

prosecution." State v. Oppelt, 172 Wn.2d 285, 295, 257 P.3d 653 (2011); see

Dixon, 114 Wn.2d at 860. Wheeler was well aware ofhis own age when he


                                        10
State v. Wheeler, No. 90367-1


was charged, and he provides no reason he could not have raised the claim at

that time based on the apparent prejudice and the evidence he had (in the form

of the hand-edited charging document that seemed to have originally been

dated three days earlier than his 18th birthday) tending to show that the

prosecutor was ready to file charges before he turned 18. 3

       The trial judge at Wheeler's 2008 SSOSA revocation hearing drew

additional attention to the issue, telling Wheeler he recalled that the conduct

"came to light when you were a minor" but the State "waited until you were an

adult to charge you." State's Resp. toPers. Restraint Pet., App. Eat 3 (VTP at

3). The fact that Wheeler did not file his claim until approximately five years

later in 2013 also weighs against finding reasonable diligence. Where, as here,

a juvenile knows at the time of arraignment the facts supporting a prosecutorial

delay claim and has evidence in the form of a revised and re-dated charging

instn1ment which tends to support that claim, reasonable diligence must require

that the juvenile raise this issue sooner than seven years after his judgment

became final or else we undermine principles of finality. See In re Pers.

Restraint of Grantham, 168 Wn.2d 204, 210-12, 227 P.3d 285 (2010). 4



3The State's willingness to offer a SSOSA may have weighed on that decision.
4
 Wheeler argues that his diligence "should be measured in light of both Banks [v. Dretke,
540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004)] and [In re Pers. Restraint oj]
Stenson[, 174 Wn.2d 474, 276 P.3d 286 (2012)]," cases that concerned Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1993), challenges. Suppl. Br.
of Robert Wheeler at 8. Wheeler, however, did not raise a Brady claim in his personal



                                           11
State v. Wheeler, No. 90367-1


       Moreover, to be entitled to a new proceeding based upon newly

discovered evidence, a personal restraint petitioner must show evidence that

"'(1) will probably change the result of the trial; (2) was discovered since the

trial; (3) could not have been discovered before trial by the exercise of due

diligence; (4) is material; and (5) is not merely cumulative or impeaching."' In

re Pers. Restraint ofLord, 123 Wn.2d 296, 320, 868 P.2d 835 (1994) (quoting

State v. Williams, 96 Wn.2d 215,223, 634 P.2d 868 (1981)). The absence of

any one of the five factors is grounds for denying a new proceeding. In re

Pers. Restraint ofBrown, 143 Wn.2d 431,453,21 P.3d 687 (2001) (citing

Williams, 96 Wn.2d at 222-23).

       The Court of Appeals properly held Wheeler has not met his burden to

show the evidence could not have been discovered by the exercise of due

diligence before he pleaded guilty, and we also find the documents at issue are

cumulative. See In re Pers. Restraint ofBrown, 143 Wn.2d at 454 (citing

Williams, 96 Wn.2d at 223-24). Contrary to Wheeler's assertions, the

documents do not establish that the State intentionally delayed or was negligent



restraint petition. Wheeler makes the conclusory allegation in his motion for
discretionary review and supplemental brief that the State had a constitutional obligation
to disclose the documents, but he did not raise this issue below. Because it was not
properly presented and we lack adequate briefing, we decline to opine on the State's
disclosure obligations relative to these documents or extend Brady to draft charging
documents. Had Wheeler brought a Brady claim, our analysis might proceed differently.
See, e.g., In re Pers. Restraint of Stenson, 174 Wn.2d at 485.




                                            12
State v. Wheeler, No. 90367-1


in investigating the case. Instead, they show that the State was investigating

the case before Wheeler's 18th birthday, which he already knew, and that the

State drafted an information and statement of probable cause before his 18th

birthday, which was evident from the face of the charging document actually

filed. 5

           Wheeler has not shown his personal restraint petition is exempt from the

time bar under RCW 10.73.100(1).

                                     CONCLUSION

           Neither RAP 2.5(c)(1) nor RAP 12.2 provide an avenue for Wheeler to

circumvent the time bar and argue his guilty plea was invalid. Wheeler has not

shown his consolidated personal restraint petition alleging preaccusatorial delay

is exempt from the time bar under RCW 10.73.100(1). We affirm the Court of

Appeals.




5
  Both parties raised untimely arguments regarding the propriety of applying the five-part
newly discovered evidence test. First, Wheeler's counsel at oral argument posited that
Wheeler is not required to meet the test because he is asserting a preaccusatorial delay
claim. But Wheeler did not assign error to the Court of Appeals' application of the test.
Second, the State argued for the first time in its supplemental brief (1) that Wheeler's
petition does not fit into RCW 10.73.1 00(1) because the exception contemplates only
substantive evidence that could be entered at a trial and (2) that Wheeler waived his
newly discovered evidence claim by pleading guilty. Because these issues were not
properly raised and sufficiently briefed, we decline to consider and decide them in this
case. See State v. Williams, 158 Wn.2d 904, 908 n.1, 148 P.3d 993 (2006) (citing State v.
Collins, 121 Wn.2d 168, 847 P.2d 919 (1993); Douglas v. Freeman, 117 Wn.2d 242, 814
P.2d 1160 (1991)); RAP 13.7(b).



                                            13
State v. Wheeler, No. 90367-1




WE CONCUR:




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