           FILE
           IN CLERKS OFFICE
    IIJIAENE COURT, STATE OF WASHINGTON
             a 2014
         DATE JAN      .2
    ?21a~.C:¥
         JUSTICE~
             CHIEF



                  IN THE SUPREME COURT OF THE STATE OF WASHINGTON




     In re Personal Restraint Petition of               )     No. 86001-7
                                                        )
     DANIEL J. STOCKWELL,                               )     EnBanc
                                                        )
                                 Petitioner.            )     Filed - - - -3 201~- -
                                                                      JAN 2
                                                                            --
                                                        )



              MADSEN, C.J.-Petitioner Daniel Stockwell seeks to withdraw his guilty plea to

     a 1986 charge of statutory rape in the first degree. Stockwell's plea statement and

     judgment and sentence misstated the statutory maximum sentence. We hold that in a

     personal restraint petition (PRP), a petitioner must show actual and substantial prejudice

     in a challenge to a guilty plea based on such a misstatement. Because Stockwell fails to

     make this showing, we affirm the Court of Appeals.

                                      FACTS AND PROCEDURAL HISTORY

               In 1985, Daniel Stockwell was convicted of indecent liberties and given a special

      sex offender sentencing alternative (SSOSA). During his required outpatient treatment,

      he admitted to having sexual contact with a minor. Subsequently, he was charged with

      one count of statutory rape in the first degree, which he pleaded guilty to on July 29,

      1986. His plea form stated the prosecutor would recommend an exceptional sentence




\
No. 86001-7


within SSOSA guidelines. However, the plea statement and judgment and sentence both

misstated the maximum sentence as 20 years, with a $50,000 fine, when in fact the

statutory maximum was life.

       Stockwell received a SSOSA exceptional sentence downward, including 24

months of outpatient treatment and 12 months of community supervision. He completed

the terms of his sentence and was discharged on October 25, 1989.

       Meanwhile, the legislature enacted a one year time limit on collateral attacks of

criminal convictions, which became effective on July 23, 1989. RCW 10.73.120. This

time limit applies to all petitions filed more than one year after the effective date of the

statute. RCW 10.73.130. The Department of Corrections (DOC) was directed to attempt

to advise every person who, on the effective date, was "serving a term of incarceration,

probation, parole, or community supervision pursuant to a conviction of a felony," of the

change. RCW 10.73.120. The director of the division of community corrections issued a

memorandum dated December 5, 1989, directing community corrections and work

release supervisors to post a DOC notice addressing the time limit change. Stockwell's

community custody ended about six weeks before the memorandum was issued, and he

claims he was not notified of the time limit.

       In 2004, Stockwell was convicted of first degree child molestation and attempted

first degree child molestation. The trial court imposed a persistent offender sentence of

life without the possibility of early release, relying on the earlier convictions. Stockwell

subsequently filed a PRP challenging the 1986 judgment and sentence. He first



                                                2
No. 86001-7


contended he was not time barred because his sentence was facially invalid and he did

not receive notice from DOC. He also argued his guilty plea was involuntary because the

plea statement incorrectly stated the maximum. The acting chief judge dismissed his

petition as time barred.

       Stockwell filed a motion for discretionary review in this court, which was stayed

pending In re Personal Restraint of McKiearnan, 165 Wn.2d 777, 203 P.3d 375 (2009).

After McKiearnan, the matter was referred to a department of the court, which granted

review and remanded to the Court of Appeals for reconsideration in light of McKiearnan.

       On remand, the Court of Appeals determined that Stockwell's petition was not

time barred because DOC failed to provide notice of the time limit. In re Pers. Restraint

of Stockwell, 161 Wn. App. 329, 334, 254 P.3d 899 (2011). Considering the merits, the

court held that although Stockwell demonstrated a constitutional error based on

misinformation of the statutory maximum, he failed to show resulting prejudice.

Stockwell then filed a motion for discretionary review in this court. This motion was

stayed pending In re Personal Restraint of Coats, 173 Wn.2d 123, 267 P.3d 324 (2011).

Following Coats, the court granted review.

                                       ANALYSIS

       Before addressing Stockwell's substantive arguments, we must determine whether

Stockwell's petition is time barred. "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



                                             3
No. 86001-7


rendered by a court of competent jurisdiction." RCW 10.73.090. Facial invalidity can

exist if a trial court lacked the statutory authority to impose a sentence. In re Pers.

Restraint of Scott, 173 Wn.2d 911, 916, 271 P.3d 218 (2012); see also Coats, 173 Wn.2d

at 144 ("[w]e have found only errors that result from a judge exceeding the judge's

authority to render a judgment and sentence facially invalid.").

       Stockwell's petition was filed over two decades after his judgment became final.

He also received an exceptional sentence downward, a legal sentence both under the

erroneous maximum and the correct legal maximum. Thus, his sentence was facially

valid and time barred.

       Stockwell, however, argues RCW 10.73.090 should not bar his PRP because DOC

did not attempt to give him notice of the time bar amendment. When the legislature

amended chapter 10.73 RCW to include the time bar, it required DOC to "attempt to

advise" everyone who, on July 23, 1989, was under community supervision pursuant to a

felony conviction. RCW 10.73.120. While actual notice was not required, an attempt

was necessary. See In re Pers. Restraint of Vega, 118 Wn.2d 449, 823 P.2d 1111 (1992)

(time limit did not apply where no attempt was made to notify petitioner serving federal

prison sentence).

       Here, notices were not posted until after Stockwell was discharged. The State

argues the act of posting notices alone is sufficient to meet the statutory requirements

under In re Personal Restraint of Runyan, 121 Wn.2d 432,453, 853 P.2d 424 (1993). In

Runyan, this court held the time bar applied to a petitioner on parole who regularly



                                               4
No. 86001-7


reported to his parole officer, where notices were placed in community correction offices.

!d. at 438, 451. There, the petitioner was unable to show that DOC did not attempt

notice. !d. at 453. Unlike the petitioner in Runyan, Stockwell did not have a similar

opportunity to potentially see the notices. Accordingly, the time bar does not apply to

Stockwell's petition. 1

       Turning to the merits of the petition, Stockwell contends that misinformation

regarding the legal maximum sentence renders his plea involuntary, violating the due

process clause of the United States and Washington Constitutions. In light of this error,

he argues he need not show actual and substantial prejudice because an involuntary plea

creates a presumption of prejudice in a direct appeal and that same standard also applies

in a PRP.

       Where we have addressed the standards in a direct appeal, we have stated that

"[ d]ue process requires an affirmative showing that a defendant entered a guilty plea

intelligently and voluntarily." State v. Ross, 129 Wn.2d 279, 284, 916 P.2d 405 (1996)

(citing State v. Barton, 93 Wn.2d 301, 304, 609 P.2d 1353 (1980)). A guilty plea may be

considered involuntary when it is based on misinformation regarding a direct

consequence of the plea, which includes the statutory maximum. State v. Mendoza, 157

Wn.2d 582, 591, 141 P.3d 49 (2006) ("a guilty plea may be deemed involuntary when

1
  The State contends that the Court of Appeals exceeded the scope of our remand order by
reassessing its prior decision on the issue of notice. While we remanded for reconsideration in
light of McKiearnan, which involved facial invalidity, nothing in the order precluded review of
the timeliness issue. Additionally, RAP 2.5(c)(2) allows an appellate court to "review the
propriety of an earlier decision of the appellate court ... and, where justice would best be served,
decide the case on the basis ofthe appellate court's opinion of the law at the time ofthe later
review." See Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).
                                                 5
No. 86001-7


based on misinformation regarding a direct consequence on the plea"); State v. Weyrich,

163 Wn.2d 554, 557, 182 P.3d 965 (2008) ("A defendant must be informed of the

statutory maximum for a charged crime, as this is a direct consequence of his guilty

plea.). An involuntary plea constitutes a manifest injustice. State v. Walsh, 143 Wn.2d 1,

6, 17 P.3d 591 (2001). Under CrR 4.2(f), a court must allow a defendant to withdraw a

guilty plea where withdrawal is necessary to correct a manifest injustice. However, if the

motion for withdrawal is made after the judgment, it is governed by CrR 7.8(b ), which

states that a court "may relieve a party from a final judgment" for several reasons

including mistake, newly discovered evidence, fraud, a void judgment, or any other
          -      -   -


reason justifying relief.

       We have acknowledged that a petitioner may seek to withdraw a plea on direct

appeal where the defendant has been misinfonned of the maximum sentence. See, e.g.,

Mendoza, 157 Wn.2d at 592; Weyrich, 163 Wn.2d at 556; Walsh, 143 Wn.2d at 10. For

example, in Mendoza, a miscalculated offender score resulted in a lower range than

indicated in the plea agreement. !d. at 584-85. During sentencing proceedings, the State

explained the error and requested a lower sentence within the correct range. !d.

Mendoza moved to withdraw his plea on grounds unrelated to the erroneous score. !d. at

585. The sentencing court rejected Mendoza's motion. !d. On review, this court stated

that " [a]bsent a showing that the defendant was correctly informed of all of the direct

consequences of his guilty plea, the defendant may move to withdraw the plea." !d. at

591. However, Mendoza waived his right to challenge the plea as involuntary because he



                                             6
No. 86001-7


did not object to sentencing or move to withdraw his plea when he learned of the mistake

in the offender score before sentencing, and he received a lower sentence than statutorily

authorized by his correct score. Id.

       Similarly, in Weyrich, a plea statement and judgment and sentence mistakenly

described one of the charges as having a maximum sentence of five years, when in fact

the maximum was 10 years. 163 Wn.2d at 556. Despite the error, Weyrich was

sentenced within the correct range. Id. Prior to sentencing, Weyrich moved to withdraw

his pleas, which he argued were not knowingly, voluntarily, and intelligently made. Id.

The trial court denied the motion and the Court of Appeals affirmed. State v. Weyrich,

noted at 137 Wn. App. 1011 (2007). We reversed the Court of Appeals and noted that

"[t]he State's argument that the error did not actually affect Weyrich's decision to plead

guilty requires the sort of subjective hindsight inquiry into Weyrich's decision of which

Mendoza and Isadore disapprove." 2 Weyrich, 163 Wn.2d at 557.

       Here, Stockwell's judgment and sentence did not reflect the correct statutory

maximum of life imprisonment. On direct appeal this error would be presumed

prejudicial and, unless waived, would support Stockwell's motion to withdraw his plea.

The issue here is whether Stockwell is entitled to the same presumption of prejudice on

collateral review or whether he bears the burden to show the error caused actual and

substantial prejudice.




2
 Stockwell argues that Weyrich was a "collateral attack" as defined under RCW 10.73 .090(2).
This is incorrect. Weyrich was a direct appeal and RCW 10.73.090(2) does not apply.
                                              7
No. 86001-7


      A petitioner's burden on collateral review has evolved over the course of several

decades. In In re Personal Restraint of Hagler, 97 Wn.2d 818, 650 P .2d 1103 (1982), we

discussed the origin ofPRPs in the State's habeas corpus remedy under article IV, section

4 of the Washington State Constitution. Id. at 823. We stated that a PRP, like a petition

for a writ of habeas corpus, is not a substitute for an appeal. Id. In discussing the

standard to be applied we stated, "While the presumption of prejudice is appropriate to

direct review of a conviction, it is not appropriate to collateral review by way of personal

restraint petition." Id. We acknowledged collateral review is distinct from a direct appeal

because collateral relief "undermines the principles of finality of litigation, degrades the

prominence of the trial, and sometimes costs society the right to punish admitted

offenders." Id. at 824 (citing Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d

783 (1982)). We also stated that under federal habeus standards, the burden is on the

petitioner to show "'not merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions."' I d. at 825 (quoting United States v.

Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)). We held that the

same burden should be met in PRPs challenging trial error. I d. Then, in In re Personal

Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990), we addressed the

petitioner's burden when raising constitutional trial error stating that "in the context of a

constitutional error, a petitioner must satisfy his threshold burden of demonstrating actual




                                               8
No. 86001-7


and substantial prejudice." !d. (citing In re Pers. Restraint of Haverty, 101 Wn.2d 498,

504,681 P.2d 835 (1984)).

      The court continued its course correction in In re Personal Restraint of St. Pierre,

118 Wn.2d 321, 823 P .2d 492 ( 1992). Prior to St. Pierre, in several cases, the court

presumed prejudice on collateral review when the error would never be harmless on

direct appeal. See State v. Kitchen, 110 Wn.2d 403, 413, 756 P.2d 105 (1988); In re

Pers. Restraint of Boone, 103 Wn.2d 224, 233, 691 P.2d 964 (1984); In re Pers. Restraint

of Gunter, 102 Wn.2d 769, 774, 689 P.2d 1074 (1984); In re Pers. Restraint of

Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983). In Richardson, the error at issue

was a conflict of interest arising from Richardson's attorney's representation of a witness

who was called at the trial. !d. at 678. There, this court acknowledged that ordinarily

one raising an error in a PRP must also demonstrate prejudice. Id. at 679. However,

under the facts, we concluded that the error, if proved, would provide automatic proof of

the prejudice. !d. In Boone, we interpreted Richardson as suggesting that certain

constitutional errors that are never harmless on direct will be presumed prejudicial in a

PRP. Boone, 103 Wn.2d at 233 ("This court has recently held that prejudice to a personal

restraint petitioner will be presumed for certain types of constitutional error. In Re

Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983).").

       Retreating from the broad holding in Boone, we stated in St. Pierre that "[i]n dicta,

we have previously suggested constitutional errors which can never be considered

harmless on direct appeal will also be presumed prejudicial for the purposes of personal



                                              9
No. 86001-7


restraint petitions. We now reject this proposition." St. Pierre, 118 Wn.2d at 328 (citing

Boone, 103 Wn.2d at 233). This court declined to adopt a rule that "would categorically

equate per se prejudice on collateral review with per se prejudice on direct review." ld. at

329. Citing to Richardson, we opined that "some errors which result in per se prejudice

on direct review will also be per se prejudicial on collateral attack" but that the interests

of finality demand a higher standard in a collateral attack. Jd. 3 As to the error claimed by

St. Pierre, a defective charging document, we required the petitioner to prove actual and

substantial prejudice on collateral review. ld.

       Unlike the error in Richardson, deprivation of counsel, the error here is a

misstatement of sentencing consequences. Following St. Pierre, this court has addressed

the burden to show actual and substantial prejudice arising from an incorrect statement of

sentencing consequences. In In re Pers. Restraint of Fawcett, 147 Wn.2d 298, 53 P.3d

972 (2002), the petitioner argued that his guilty plea was involuntary because the plea

form erroneously implied he could receive a one year community placement term when

the law in fact required two. ld. at 299-300. Fawcett violated the conditions of his

community placement two months into his term, which resulted in revocation of his

SSOSA. I d. at 300. This court held that despite misinformation about the term of

community placement, the petitioner failed to show actual and substantial prejudice

3
  Justice Gordon McCloud's concurrence contends we have used St. Pierre to adopt a "one-size-
fits-all" approach whereby all errors must be supported by actual and substantial prejudice.
Concurrence at 4. This is incorrect. To the contrary, we recognize that not all errors that are per
se prejudicial on direct review will also be per se prejudicial on collateral review.
         We adopt St. Pierre insofar as it rejected a categorical approach. St. Pierre does speak of
errors that "can never be considered harmless on direct appeal"-a category that would include
the misstatement of Stockwell's statutory maximum. 118 Wn.2d at 328.
                                                 10
No. 86001-7


because he would suffer no future prejudice from the two year term that had been

revoked during the first year. Id. at 302.

       In In re Personal Restraint of Isadore, 151 Wn.2d 294, 88 P.3d 390 (2004), we

again acknowledged the burden to show actual and substantial prejudice in a PRP but

declined to impose the burden where it would not further the goals of finality. In Isadore,

the petitioner pleaded guilty after being told that he would not face community placement

as a consequence of his plea. Id. at 297. Over a year later, the prosecutor's office was

notified that community placement was statutorily required and so the petitioner's

sentence was amended to add community placement. Id. The petitioner filed a PRP

seeking enforcement of the original plea agreement. Id. On review, this court

acknowledged the burden on the petitioner to show prejudice. However, because Isadore

did not have a prior opportunity for judicial review, the court applied the standard in In re

Personal Restraint ofCashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994), and only

required Isadore to show unlawful restraint. RAP 16.4(b ), (c); Isadore, 151 Wn.2d at 299

(citing Cashaw, 123 Wn.2d at 148-49 (determining threshold PRP requirements did not

apply where there was no prior opportunity or avenue for obtaining judicial review)). We

also noted that even if Isadore were required to meet the PRP prejudice standard, he had

done so.

       Against this backdrop, Stockwell makes several arguments in support of his claim

that he is not required to show that he suffered actual and substantial prejudice as a result

of the misstatement of the maximum sentence. First, he says that Isadore and In re Pers.



                                             11
No. 86001-7


Restraint ofBradley, 165 Wn.2d 934, 205 P .3d 123 (2009), acknowledge that certain

errors on direct appeal are presumed prejudicial in a PRP. We disagree. As mentioned

earlier, the court in Isadore did discuss the actual and substantial standard but held that

the Cas haw standard applied instead. 4 In Bradley the court cited to Isadore. The issue of

whether errors that are presumed prejudicial on direct appeal are presumed prejudicial in

a PRP was not before the court in either of these cases. As the Court of Appeals stated in

ETCO, Inc. v. Department of Labor & Industries, 66 Wn. App. 302, 307, 831 P.2d 1133

(1992):

       Where the literal words of a court opinion appear to control an issue, but
       where the court did not in fact address or consider the issue, the ruling is
       not dispositive and may be reexamined without violating stare decisis in the
       same court or without violating an intermediate appellate court's duty to
       accept the rulings of the Supreme Court. "An opinion is not authority for
       what is not mentioned therein and what does not appear to have been
       suggested to the court by which the opinion was rendered." Continental
       Mut. Sav. Bankv. Elliot, 166 Wash. 283,300,6 P.2d 638, 81 A.L.R. 1005
       (1932).

(Footnote omitted.)

          Stockwell also argues that older cases, Kitchen, Boone, Richardson, and Gunter,

support his claim that he is not required to meet the actual and substantial prejudice

standard. As discussed above, this court specifically rejected the broad language in these

cases that would hold that "constitutional errors which can never be considered harmless

on direct appeal will also be presumed prejudicial for the purposes of personal restraint

4
  Arguably Isadore's discussion of the actual and substantial standard is dicta. However, even if
it is essential to our holding, the discussion was in response to the State's argument that Isadore
was required to show that misinformation about the direct consequences of his plea was material
to his decision to plead guilty. The court was not answering the question posed here: is an error
which is presumed prejudicial on direct review also presumed prejudicial on collateral review.
                                                12
No. 86001-7


petitions." St. Pierre, 118 Wn.2d at 328 (citing Boone, 103 Wn.2d at 233). While

acknowledging that some per se errors on direct review could also be per se prejudicial

on collateral attack, we have had no occasion to decide whether a personal restraint

petitioner who claims he was misinformed about the consequences of his plea must show

that he was actually and substantially prejudiced by that error. 5

       Stockwell also argues that court rules support the conclusion that prejudice

resulting from misinformation of a sentencing consequence argued on direct appeal is

sufficient to meet actual and substantial prejudice in a PRP. He contends that the

manifest injustice requirement in CrR 4.2 6 and manifest error requirement in RAP 2.5(a?

mirror the prejudice required in a PRP. In support, he cites to Walsh for the court's

discussion that "manifest" means a showing of prejudice is made. Walsh, 143 Wn.2d at

8.

       First, Stockwell's argument fails to recognize that CrR 4.2 is a trial court rule.

Moreover, a motion to withdraw a plea after a judgment is entered is governed by CrR

7.8, not simply CrR 4.2(f). 8 CrR 7.8 states that a court may grant relief from a final

judgment for mistakes, newly discovered evidence, fraud, where a judgment is void, or

any other reason justifying relief. It applies to motions made within a reasonable time,


5
  The concurrence's characterization that stmctural errors defy a harmless error analysis is
misplaced. Concurrence at 7.
6 "The 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." CrR 4.2.
7
  "A party may raise the following claimed errors for the first time in the appellate court: ... (3)
manifest error affecting a constitutional right." RAP 2.5(a).
8 "If the motion for withdrawal is made after judgment, it shall be governed by CrR 7.8." CrR

4.2(±).
                                                 13
No. 86001-7


and in the case of mistakes and newly discovered evidence, not more than one year after

the judgment was entered. CrR 7.8(b). As we said in State v. Lamb, 175 Wn.2d 121,

128, 285 P.3d 27 (2012), "[a] finding of 'manifest injustice' does not automatically

establish that relief is available under CrR 7 .8(b)(5)." See also State v. Robinson, 172

Wn.2d 783, 263 P.3d 1233 (2011) (stating that if the petitioner had moved to withdraw

his plea after the judgment was entered, he would have had to satisfy CrR 7. 8(b) in

addition to CrR 4.2(±)). CrR 7.8 represents a potentially higher standard than CrR 4.2(±)

for withdrawing a plea. Just as a petitioner may need to meet a higher burden when

withdrawing a plea postjudgment versus prejudgment, so should a petitioner in the

context of a PRP. As to RAP 2.5, this rule pertains to the court's discretion to hear issues

on appeal or review that were not objected to at trial. The rule does not govern a

petitioner's burden in a PRP.

       Finally, Stockwell argues that we are precluded from applying the actual and

substantial prejudice standard because it would require a materiality inquiry that was

rejected under Isadore, 151 Wn.2d at 302. See also Bradley, 165 Wn.2d at 940. In

Isadore, we declined to adopt a materiality test that would consider how material an error

was to a defendant's decision to plead guilty. 151 Wn.2d at 302. 9 However, a materiality

inquiry, involving a hindsight review of defendant's motivations, is distinct from

consideration of actual and substantial prejudice, which looks to the practical effects of a

sentence. Considerations of actual and substantial prejudice do not require insight into

9
  It should be noted that even this court's views on materiality have changed over time. See State
v. Oseguera Acevedo, 137 Wn.2d 179, 203, 970 P.2d 299 (1999) (plurality opinion) (considering
whether the facts represented a "material factor" to the defendant's plea of guilty).
                                                14
No. 86001-7


the defendant's state of mind and motivations, but simply look at the practical effects that

resulted from error.

       We do recognize that there may be some confusion arising from Bradley because

there the court relied on direct appeal cases and on Isadore without discussing the

prejudice standard imposed on a personal restraint petitioner. We take this opportunity to

clarify that a PRP petitioner seeking to withdraw a plea based on a misstatement of the

statutory maximum is required to satisfy the actual and substantial prejudice standard on

collateral attack.

       We next consider whether Stockwell was actually and substantially prejudiced by

the misstatement of the maximum sentence.

       Stockwell does not argue that he was actually and substantially prejudiced, nor do

the facts suggest that he was. First, the sentence he received was statutorily authorized.

Although the judgment and sentence misstated the maximum, he received an exceptional

downward sentence, below both the stated maximum and the actual maximum.

Moreover, his sentence was completed over two decades ago. See State v. Hardesty, 129

Wn.2d 303, 313-14, 915 P.2d 1080 (1996) (discussing double jeopardy as applied to

sentencing and acknowledging that an erroneous sentence that has been fully served

precludes imposition of a heightened sentence where the defendant acquires a legitimate

expectation of finality). Under the facts here, Stockwell has failed to meet his burden to

show that the error complained of resulted in actual and substantial prejudice.




                                             15
No. 86001-7


                                    CONCLUSION

      We hold that Stockwell was required to demonstrate actual and substantial

prejudice resulting from the erroneous misstatement of the statutory maximum and that

he has failed to meet this burden. We affirm the Court of Appeals.




                                            16
No. 86001-7




              ·Yrk~)c   CJ
                        I
                            I



WE CONCUR:




              17
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence




                                         No. 86001-7


       GORDON McCLOUD, J. ( concurring)-This is a case about whether a

personal restraint petitioner must show "actual and substantial prejudice" to prevail

on a collateral challenge to a guilty plea where the petitioner was misadvised that

the statutory maximum was 20 years when the actual maximum was life and where

the sentence imposed was far lower than either 20 years or life. Under our prior case

law, these are constitutional errors that would have been presumed prejudicial on

appeal. The majority holds that for this particular constitutional error, the greater

interest in finality that attaches postappeal militates in favor of an actual prejudice

inquiry on personal restraint petition (PRP). I agree.

       But I disagree with the two pillars of the majority's analysis. First, the

majority completely redefines what "prejudice" means in this context. The majority

holds that in the plea-bargain context, prejudice means only a sentence that is longer

than the statutory maximum or longer than the maximum of which the petitioner was

advised. But the due process clause actually guarantees a procedure that allows the

defendant to make a knowing, intelligent, and voluntary plea decision. "Prejudice,"
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


therefore, occurs when an error undermines that procedure and the voluntariness of

the plea-regardless of the sentence imposed. Second, the majority uses this case

to undertake a radical reanalysis ofthe sort of prejudice that every personal restraint

petitioner has been required to show in every other type of PRP. That radical

reanalysis is not necessary to decide this case. In fact, the rule established in In re

Personal Restraint of Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983),

overruled on other grounds by State v. Dhaliwal, 150 Wn.2d 559, 568, 79 P.3d 432

(2003), State v. Kitchen, 110 Wn.2d 403, 413, 756 P.2d 105 (1988), and In re

Personal Restraint of Gunter, 102 Wn.2d 769, 774, 689 P.2d 1074 (1984), and

restated in In re the Personal Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P .2d

492 (1992)-that errors which are presumptively prejudicial on direct appeal will

generally be presumed prejudicial in a PRP-is still good law. So although I concur

in the outcome, I disagree with the majority's two main points.

                                         ANALYSIS

       The majority's principal error is totally redefining what "prejudice" means in

this context. The majority asserts that erroneous misadvice in the plea-bargain

context does not cause prejudice unless the defendant gets a sentence higher than the

maximum, majority at 15, or higher than what the plea agreement said, id. at 14.

The majority even asserts that this prejudice inquiry "do[ es] not require insight into



                                                2
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


the defendant's state of mind and motivations, but simply look[s] at the practical

effects that resulted from error." Majority at 14-15 (emphasis added).

       This flatly contradicts state and federal due process clause jurisprudence.

When we are dealing with the voluntariness of a plea, an error causes harm if it

undermines the voluntariness of the decision to plead guilty-the process which is

supposed to ensure a knowing, intelligent, and voluntary decision, not a particular

sentence. This is true under our seminal decisions on this topic. In re Pers. Restraint

of Hews, 108 Wn.2d 579, 594, 597, 741 P.2d 983 (1987) (Hews II) (court must

examine '"totality of circumstances"' to determine whether petitioner understood

nature of charge, elements, and whether Hews "had discussed with his attorney

alternative courses of action"); In re Pers. Restraint of Mendoza Montoya, 109

Wn.2d 270,277, 744 P.2d 340 (1987). 1 This is true under the United States Supreme

Court's seminal decisions on this topic. Boykin v. Alabama, 395 U.S. 238, 242, 89

S. Ct. 1709, 23 L. Ed. 2d 274 (1969). This is true under United States Supreme

Court decisions on the related topic of what constitutes ineffective assistance of



        1
        Although our recent decisions on this topic apply the prejudice inquiry applicable
on direct appeal (as opposed to PRP), they clearly state that the due process clause protects
the voluntariness of the decision-the cost-benefit analysis-involved in the guilty plea
process, regardless of the ultimate sentence imposed. See State v. Weyrich, 163 Wn.2d
554, 556-57, 182 P.3d 965 (2008); State v. Mendoza, 157 Wn.2d 582, 587, 590-91, 141
P.3d 49 (2006); In re Pers. Restraint of Isadore, 151 Wn.2d 294, 297-98, 88 P.3d 390
(2004).
                                                3
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Gordon McCloud, J., Concurrence


counsel in the plea-advice context. Lafler v. Cooper,_ U.S._, 132 S. Ct. 1376,

1390-91, 182 L. Ed. 2d 398 (2012) (distinguishing inquiry applicable to ineffective

assistance claim arising in the plea context from requirement that plea itself be

"knowing and voluntary"; treating prejudice in the former context as having adverse

effect on cost-benefit analysis involved in deciding whether to plead guilty); Padilla

v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) (defense

counsel must advise defendant pleading guilty of the consequence of deportation to

provide effective assistance).

       The majority's approach departs from this constitutionally required focus on

the voluntariness of the plea procedure. This flouts state and federal constitutional

law. It is also illogical: since the defendant's only claim is that his plea was

involuntary, that should be the center of the court's inquiry.

       The majority supports its analysis with dicta from St. Pierre about a

heightened prejudice standard ostensibly applicable in most-though St. Pierre did

not say al1 2-PRPs. The majority suggests that St. Pierre established a one-size-fits-

all "actual and substantial prejudice" prerequisite to relief for all PRPs. 3


        2
        In fact, St. Pierre explicitly stated that "some errors which result in per se prejudice
on direct review will also be per se prejudicial on collateral attack .... " St. Pierre, 118
Wn.2d at 329.

        3
       I note the majority's attempt to distance itself from this position. Majority at 10
n.3. The majority is correct to do that. As discussed below, however, the majority's
                                                4
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


       The majority does accurately report some of St. Pierre's discussion. In the 20

years since St. Pierre was decided, however, its dicta has been substantially eroded.

In fact, contrary to St. Pierre's dicta, there is no single rule that personal restraint

petitioners must show actual and substantial prejudice to obtain relief in all cases.

Rather, under our controlling precedent, I identify four categories ofPRPs triggering

distinct analyses of prejudice.

       First, we have PRPs alleging constitutional errors of the "trial" 4 type (as

opposed to the "structural" type). In those cases, the petitioner must generally prove

actual and substantial prejudice by a preponderance of the evidence to prevail. E.g.,

In re Pers. Restraint of Haverty, 101 Wn.2d 498, 504, 681 P.2d 835 (1984); St.

Pierre, 118 Wn.2d at 329.

       Next, we have PRPs raising claims of nonconstitutional error. In those cases,

the petitioner must prove a fundamental defect resulting in a complete miscarriage

of justice, also by a preponderance of the evidence, to prevail. In re Pers. Restraint

of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005) (citing In re Pers. Restraint of




analysis could be used to conflate harmless error review of constitutional issues with
harmless error review of nonconstitutional issues.
        4
            See generally Arizona v. Fulminante, 499 U.S. 279, 309-311, 111 S. Ct. 1246, 113
L. Ed. 2d 302 (1991) (Rehnquist, C.J., concurring) (holding admission of coerced
confession to be "a classic 'trial error' ... similar in both degree and kind to the erroneous
admission of other types of evidence" and thus reviewable for harmlessness).
                                                5
In re Pers. Restraint ofStockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


Isadore, 151 Wn.2d 298, 88 P.3d 390 (2004)), overruled in part on other grounds

by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). This

category includes, for example, many errors in sentencing calculation. E.g., In re

Pers. Restraint of Goodwin, 146 Wn.2d 861, 864-65, 50 P.3d 618 (2002). These

first two categories make sense because the value of finality weighs more heavily in

favor of repose at the collateral challenge, as opposed to the appeal, stage of criminal

proceedings.

       In addition, this court has clearly recognized a category of PRP where the

petitioner need not prove harm in addition to that which is inherent in proof of the

error itself. This category includes claims of ineffective assistance of counsel and

prosecutorial withholding of material exculpatory evidence. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 843, 280 P.3d 1102 (2012) (explaining that claims of

ineffective assistance of counsel and prosecutorial withholding of exculpatory

evidence "share [an] important characteristic ... [in that] a petitioner who proves a

violation    [necessarily]    shows prejudice,"        without any   further,   secondary

requirement of additional prejudice on collateral review). 5 This category makes



       5 Accord Kylesv. Whitley, 514 U.S. 419,435-36, 115 S. Ct. 1555, 131 L. Ed. 2d 490
(1995) (on federal habeas review of alleged Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963) violation, once petitioner shows prosecutorial withholding
of exculpatory evidence and materiality "there is no need for further harmless-error
review").
                                               6
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


sense because in these cases, proof of a harmful effect on the trial outcome inheres

in claim itself.

       Then there are PRPs raising claims of so-called "structural" error. Structural

errors do not really trigger a presumption of harm at all.           Instead, they so

fundamentally undermine the adversarial process that they "defy analysis by

'harmless-error' standards." Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct.

1246, 113 L. Ed. 2d 302 (1991) (Rehnquist, C.J., concurring); see also United States

v. Gonzalez-Lopez, 548 U.S. 140, 149 n. 4, 126 S. Ct. 2557, 165 L. Ed. 2d 409

(2006). "Structural" errors resulting in automatic reversal on direct appeal include

courtroom closure, State v. Wise, 176 Wn.2d 1, 15, 288 P.3d 1113 (2012); complete

lack of counsel, Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S. Ct. 792, 9 L.

Ed. 2d 799 (1963); judicial bias, Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437,

71 L. Ed. 749 (1927); race discrimination in grand jury selection, Vasquez v. Hillery,

474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); and defective reasonable

doubt instructions, Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed.

2d 182 (1993). Our court has treated some errors of this sort as requiring automatic

reversal when raised in a collateral attack, though without using the label "structural"

error. E.g., Richardson, 100 Wn.2d at 673-7 4. This category makes sense because,

as discussed above, structural defects "defy analysis by 'harmless-error' standards."

Fulminante, 499 U.S. at 309 (Rehnquist, C.J., concurring).
                                                7
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


       To be sure, this court has not yet decided whether all structural errors, or to

use different language, all errors that result in automatic reversal on direct appeal

without proof of prejudice, must also result in automatic reversal in a PRP. But it

has certainly held that some do. See Kitchen, 110 Wn.2d at 413 ("[t]hose types of

constitutional errors which can never be considered harmless on direct appeal will

also be presumed prejudicial for purposes of personal restraint petitions"). This

court has, in effect, treated double jeopardy clause violations as falling into this

category. In re Pers. Restraint of Orange, 152 Wn.2d 795, 820-22, 100 P.3d 291

(2004); In re Pers. Restraint ofFrancis, 170 Wn.2d 517, 524,242 P.3d 866 (2010);

State v. Mutch, 171 Wn.2d 646, 663-64, 254 P.3d 803 (2011). It has ruled that the

failure to require the State to prove its case beyond a reasonable doubt falls into this

category. Gunter, 102 Wn.2d at 77 4. It has placed conflict of interest resulting in

deprivation of counsel into this category. Richardson, 100 Wn.2d at 679 (counsel's

actual conflict of interest falls into this category; query whether proof that the

conflict was actual rather than potential in fact places this in the category with Crace-

type errors).

        Into which category does the plea-advice error alleged in this case fall? On

direct appeal, we have presumed prejudice from an error in counsel's advice so

apparently important that it could be presumed to have affected the knowing,

intelligent, and voluntary nature of the plea. State v. Weyrich, 163 Wn.2d 554, 557,
                                                8
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


182 P.3d 965 (2008); State v. Mendoza, 157 Wn.2d 582, 590, 141 P.3d 49 (2006);

Isadore, 151 Wn.2d at 302. 6 On PRP, however, we traditionally put such errors into

the first category described above, for constitutional errors of the "trial type," and

required some proof of an effect on the petitioner's decision about whether to plead

guilty. In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983) (Hews

I) ("An invalid plea of guilty constitutes actual prejudice."); Hews II, 108 Wn.2d at

588-89 ("actual prejudice" established where petitioner shows that, when he pleaded

guilty, "he did not possess the requisite understanding of the law in relation to the

facts" (citing Hews I, 99 Wn.2d at 87) ). When the petitioner claimed such prejudice,

and the State disputed the existence of prejudice, the petitioner would get a reference

hearing to resolve that factual issue. Hews I, 99 Wn.2d at 88 (citing RAP 16.11(a),

16.12).     Cf Isadore, 151 Wn.2d at 300 (where prosecutor neglected to inform

petitioner of a direct consequence of his plea-a mandatory one-year community

placement-petitioner was not required to show that the misinformation was




        6The majority cites State v. Oseguera Acevedo, 137 Wn.2d 179, 203, 970 P.2d 299
(1999) (plurality opinion), as showing that "even this court's views on materiality have
changed over time." Majority at 14 n.9. This is misleading. As this court unanimously
recognized in Isadore, Acevedo was a plurality opinion stemming from "unique" facts and
was never "intended to alter the longstanding rule ... that a defendant must be informed
of[all] direct consequences ofhis guilty plea." Isadore, 151 Wn.2d at 302. It is inaccurate
to imply that a majority of this court ever employed a materiality inquiry-as opposed to a
"direct consequence" inquiry-is cases where the defendant alleges his plea was not
knowing, intelligent, and voluntary.
                                                9
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


material to his decision to plead guilty; given peculiar procedural posture, however,

we applied the direct appeal prejudice standard).

       The one exception is In re Personal Restraint ofBradley, 165 Wn.2d 934, 205

P.3d 123 (2009). In Bradley, we held that the petitioner was entitled to withdraw

his plea where the prosecution failed to advise him that his juvenile convictions

"should have 'washed out' of his offender score," id. at 938, because the court "will

not speculate" about that misadvice's actual effect but will instead presume that the

misadvice caused the plea. I d. at 940 (citing Isadore, 151 Wn.2d at 302). The

Bradley decision simply cited Isadore for this rule without noting that Isadore was

not subject to regular PRP requirements, given the peculiar procedural posture of

that case. 7 Bradley is therefore out of step with Hews I, Hews II, Montoya, and their

progeny. Instead, even though we presume prejudice on appeal from misadvice like

the misadvice in this case, we require a petitioner to show prejudice to prevail in a

PRP.

       But the majority's erroneous redefinition of "prejudice" is completely out of

step with all of our prior case law and all of the United States Supreme Court's prior


        7
        Because the period for direct appeal had passed when the community placement
at issue was added to Isadore's original sentence, the court declined to apply "the
heightened threshold requirements applicable to personal restraint petitions." Isadore, 151
Wn.2d at 299. The court expressly noted, however, that Isadore's claim would have
succeeded even if he had been required to meet "the standard personal restraint petition
requirements." Id. at 300.
                                               10
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


case law.    It essentially treats claims of constitutional error in the plea-bargain

process as nonconstitutional errors subject to a far more demanding prejudice

inquiry. The majority does this by demanding proof of not just actual and substantial

prejudice to the right at issue-the right to a knowing, intelligent, and voluntary plea

process-but something more. That something more seems to be proof of a far

longer sentence.

       In sum, the majority has watered down the "prejudice" standard for this

category of constitutional error. Its analysis is not compelled by precedent. In fact,

it conflicts with our seminal PRP plea-advice cases and with state and federal

authority holding that the due process clause protects the plea process, not just the

plea outcome. The majority instead cites St. Pierre. But it cites St. Pierre's dicta-

much of it now discredited-rather than St. Pierre's holding. 8



       8
          This is particularly unfortunate given the internal contradictions in St. Pierre. In
that case, this court considered whether an error in the charging document established per
se prejudice on collateral review. St. Pierre, 118 Wn.2d at 328-29. The court concluded
that it did not, and that the petitioner was not entitled to relief. !d. at 329-30. While its
holding was limited to that relatively narrow issue, the St. Pierre opinion included several
broad assertions about a petitioner's burden on collateral review generally. Those
assertions conflate several distinct categories of PRP, with the result that the St. Pierre
opinion is at times self-contradictory. For example, St. Pierre affirms the "actual and
substantial prejudice" standard for relief on collateral review but notes that that burden
"may be waived where the error gives rise to a conclusive presumption of prejudice." !d.
at 328 (citing Richardson, 100 Wn.2d at 679). It also acknowledges that "some errors
which result in per se prejudice on direct review will also be per se prejudicial on collateral
attack," but nevertheless concludes that "the interests of finality ... demand that a higher
standard be satisfied in a collateral proceeding." !d. at 329.
                                                11
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


                                       CONCLUSION

       Under our prior cases, a personal restraint petitioner can prevail only if he or

she shows (1) a constitutional error that caused actual and substantial prejudice for

constitutional errors of the "trial" type; (2) a nonconstitutional error that inherently

caused a complete miscarriage of justice; (3) a limited number of constitutional

errors where prejudice inheres in proof of the error itself-Crace explicitly placed

Stricklancf and Bradyl 0 errors into this category; or (4) structural errors (e.g., biased

judge, courtroom closure, complete deprivation of counsel, improper beyond a

reasonable doubt instruction) resulting in automatic reversible error.               Here,

Stockwell raises a constitutional error of the first type. He pleaded guilty after being

erroneously advised that he faced a maximum sentence of 20 years, when the

maximum sentence was actually imprisonment for life. In re Pers. Restraint of

Stockwell, 161 Wn. App. 329, 331-32, 254 P.3d 899 (2011). Stockwell did not

receive a sentence as high as either 20 years or life; he received a 24 month special

sex offender sentencing alternative (SSOSA) sentence. He must therefore prove

actual and substantial prejudice to his right to a knowing, intelligent, and voluntary

plea-bargain process to prevail on his PRP. He need not prove a longer sentence



       9
           Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

        10
             Brady v. Maryland, 373 U.S. 83.
                                               12
In re Pers. Restraint of Stockwell (Daniel J), No. 86001-7
Gordon McCloud, J., Concurrence


than the maximum or a longer sentence than he expected; in short, he need not prove

the sort of complete miscarriage of justice that the majority's redefinition of

"prejudice" would require.

         He has not met his burden. He has made no allegation of prejudice at all. I

would therefore deny Mr. Stockwell's PRP because he fails to meet the actual and

substantial prejudice standard.        I would not silently overrule the definition of

prejudice that we adopted as far back as Hews I and Montoya, as the majority seems

to do.     I would not silently overrule our prior precedent retaining automatic

reversible error on PRPs for certain especially intractable errors, e.g., Richardson,

Orange, Francis, Gunter, Mutch, as the majority does. And I would not place this

constitutional error into the nonconstitutional error category, as the majority does.




                                                13
In re the Personal Restraint of Stockwell (Daniel), No. 86001-7
Gordon McCloud, J., Concurrence




                                             14'
