           F 1-I:E ',
           IN CLERKS OFFICE



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   8I.IJIReMS C'.OURT, STATE OF WASHINOTON

~. DAn;NOV 1
     ~,C._~·CHIEF JUST!




       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  In the Matter of the Personal Restraint of
                                                                NO. 90712-9
  JAVIER RUIZ-SANABRIA,

                                 Petitioner.                     ENBANC



                                                      Filed:      NOV 1 2 2015
                                                               -----------------
                   PER CURIAM-Hundreds of Washington prison inmates annually file
  personal restraint petitions and other forms of collateral challenge to their judgment
  and sentences. The large majority of these petitioners are unrepresented by counsel,
  and for many of them, a timely postconviction motion or personal restraint petition is
  their last opportunity to seek relief from a final judgment and sentence. See RCW
   7.36.130(1) (no court or judge shall inquire into the legality of any judgment or
  process whereby the party is in custody unless a petition is filed within the time
   allowed by RCW 10.73.090 and 10.73.100). The restrictive statutes have as a
   corollary court rules that are intended to ensure relevant court records are reviewed
   before a determination is made on a timely personal restraint petition that may
   foreclose the availability of further relief. In this instance, Javier Ruiz-Sanabria timely
No. 90712-9                                                                       PAGE2




filed a motion in superior court to withdraw his guilty plea to several sex offenses.
The court transferred his motion to Division One of the Court of Appeals, but without
indicating the basis for the transfer and without transferring all records filed in
relation to Ruiz-Sanabria's CrR 7.8 motion. Considering the motion as a personal
restraint petition based solely on the partial record that was transmitted, and without
requesting a response from the State, the acting chief judge of Division One dismissed
the petition as frivolous.
           We take this occasion to clarify the criteria a superior court must consider
before transferring a postconviction motion to the Court of Appeals, the relationship
between the rules governing personal restraint petitions and evidentiary prerequisites
that a petitioner must meet, and when the petitioner's allegations may require the
court to consult existing court records that the petitioner has not produced. We have
said that the petitioner must demonstrate that he has competent, admissible evidence
to establish the facts that entitle him to relief, and that bare assertions and conclusory
allegations are insufficient. See In re Pers. Restraint ofRice, 118 Wn.2d 876, 886, 828
P.2d 1086 (1992). But if the petitioner makes specific and material factual allegations
within the petitioner's knowledge about court proceedings that can be answered by the
State, the Court of Appeals should require a response that includes the relevant court
documents. In this instance, remand to the Court of Appeals is warranted for reasons
explained below.
              Ruiz-Sanabria is a citizen of Mexico. In 2008, the State charged him in
King County Superior Court with three counts of second degree child rape, one count
of first degree child rape, and two counts of first degree child molestation. Ruiz-
Sanabria fled to Mexico but was apprehended and brought back to Washington in
No. 90712-9                                                                         PAGE3




2012. He eventually pleaded guilty to one count of first degree child rape, one count
of second degree child rape, and two counts of first degree child molestation. Because
he did not appeal, his judgment and sentence became final when it was filed by the
clerk of the trial court in September 2012. See RCW 10.73.090(3)(a).
              On December 27, 2012, Ruiz-Sanabria timely filed a motion in superior
court to withdraw his guilty pleas, along with a supporting affidavit, claiming that
defense counsel was ineffective in relation to the pleas. See CrR 7.8. On March 26,
2013, Ruiz-Sanabria filed a memorandum of authorities in support of his motion to
withdraw. Ruiz-Sanabria asked the court to direct the State to file a response. The
superior court did not direct the State to file a response until November 15, 2013. 1 It
appears that in lieu of a response, the State filed in the superior court a deputy
prosecutor's affidavit, a transcript of Ruiz-Sanabria's plea hearing, and a request to
transfer the matter to the Court of Appeals for consideration as a personal restraint
petition. See CrR 7 .8(c)(2). It appears the superior court mailed the State's
submissions to Ruiz-Sanabria on December 9, 2013. On December 16, 2013, and over
Ruiz-Sanabria's written objection, the court transferred his motion to Division One of
the Court of Appeals, ruling in its entirety that "[ d]efendant has filed a post-conviction
motion. Pursuant to CrR 7.8(c)(2), the matter is transferred to the Court of Appeals for
consideration as a personal restraint petition." The superior court transferred some
records pertaining to Ruiz-Sanabria's CrR 7.8 motion to the Court of Appeals, but a
number of records were not transferred, including the original CrR 7. 8 motion and
supporting affidavit, the deputy prosecutor's affidavit, and the plea hearing transcript.


       1 In the meantime, Ruiz-Sanabria filed a petition for writ of mandamus in this court,
seeking to compel the superior court to direct the State to file a response to his
postconviction motion. In re Pers. Restraint of Ruiz-Sanabria, No. 89430-2 (Wash.
Oct. 21, 2013 ). This court dismissed the petition as moot after the superior court ordered
the State to file a response.
No. 90712-9                                                                         PAGE4




           In the Court of Appeals, Ruiz-Sanabria renewed his objection to the
transfer and asked the Court of Appeals to ( 1) send a copy of his petition to the King
County prosecutor and (2) direct the prosecutor to respond to the petition. Without
seeking a response, the acting chief judge dismissed the petition, rejecting Ruiz-
Sanabria's objection to the transfer and ruling that his "self-serving statements" were
insufficient to support his claims. The acting chief judge also faulted Ruiz-Sanabria
for not providing court records, including a copy of his plea hearing transcript.
           Ruiz-Sanabria filed a motion in this court for discretionary review. At the
court's direction, the State filed an answer supported by relevant records. We now
grant review. 2
           As indicated, Ruiz-Sanabria initiated his collateral challenge by way of a
CrR 7.8 motion filed in superior court. The pleading requirements for such a motion
are simple, requiring only a statement of grounds on which the defendant seeks relief,
"supported by affidavits setting forth a concise statement of the facts or errors upon
which the motion is based." CrR 7.8(c)(l). In this instance, Ruiz-Sanabria appareqtly
supported his motion with certain records and correspondence with defense counsel
and one or more separately filed affidavits. We are somewhat unsure exactly what he
filed because, as noted, the superior court apparently did not transfer all of the
pertinent materials to the Court of Appeals. In any event, the deputy prosecutor's
affidavit addresses specific paragraphs in Ruiz-Sanabria's affidavit in support of his
CrR 7.8 motion.




       2 We also grant Ruiz-Sanabria' s motion to supplement-which we treat as a motion
to amend-his motion for discretionary review to allege that failure to name a respondent
violated his right to due process. See WASH. CONST. art. I, § 3.
No. 90712-9                                                                         PAGES




           If the superior court retains a postconviction motion and denies it on the

merits, the defendant has a right to direct appeal. RAP 2.2(a)(10). But the superior

court must transfer a postconviction motion to the Court of Appeals for consideration

as a personal restraint petition "unless the court determines" that the motion is not

time barred and either the defendant has made a substantial showing of merit or a
factual hearing is required to decide the motion. CrR 7 .8( c)(2). Here, the superior

court merely stated that it was transferring Ruiz-Sanabria's motion in accordance with

this rule. It would be more beneficial to the Court of Appeals if the superior court

expressly stated the basis for the transfer. And if the superior court fails to show that it

meaningfully engaged in the CrR 7 .8( c)(2) transfer analysis, the Court of Appeals

should consider remanding the motion to the superior court for that purpose. 3 See

RAP 16.8.1(c) (Court of Appeals may remand erroneously transferred CrR 7.8 motion

to superior court). 4 In any event, in this instance the Court of Appeals considered the

motion as a personal restraint petition and dismissed it under RAP 16.11 (b), and

Ruiz-Sanabria has exercised his right to seek discretionary review in this court. See

RAP 16.14(c); RAP 13.5A(a)(1). 5


       3  A preprinted transfer order with check boxes corresponding to CrR 7 .8(c)(2)
criteria may serve this purpose.
        4
          This rule, which was not in effect when the acting chief judge considered Ruiz-
Sanabria's CrR 7.8 motion, provides a summary mechanism for the Court of Appeals to
remand transfer orders to the superior court for correction. Remand in appropriate
circumstances had been a practice of the Court of Appeals even before adoption of
RAP 16.8.l(c).
        5
          Ruiz-Sanabria's concern that transfer of his CrR 7.8 motion deprives him of an
opportunity to avoid the proscription against successive petitions under RCW 10.73.140 is
misplaced. Although a CrR 7.8 motion is a form of collateral challenge for purposes of the
statute barring successive petitions in the Court of Appeals, this court has jurisdiction to
consider a successive petition raising a new issue even if the Court of Appeals may not.
RCW 10.73.090(2); CrR 7.8(b); In re Pers. Restraint of Becker, 143 Wn.2d 491, 496-97,
20 P.3d 409 (2001); In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 351-52, 5 P.3d
1240 (2000).
No. 90712-9                                                                       PAGE6




          Once a CrR 7.8 motion is transferred to the Court of Appeals, the motion
becomes subject to more rigorous pleading standards applicable to personal restraint
petitions, as set forth in RAP 16.7. In particular, the petitioner must identify "the
evidence available to support the factual allegations" and why the petitioner is entitled
to collateral relief for one or more reasons listed in RAP 16.4(c). RAP 16.7(a)(2)(i). If
the evidence supporting the petitioner's factual allegations exists in court records, the
petitioner should identify the records and where they can be found. RAP 16.7(a)(3). A
motion conforming to the more relaxed pleading standards set forth in CrR 7.8(c)(1)
will not necessarily meet the standards set forth in RAP 16.7. In apparent recognition
of this fact, and reflecting the fact that most personal restraint petitioners are
proceeding pro se, the rules authorize the clerk of the appellate court to file
technically deficient petitions and direct the petitioner to correct the deficiencies
within 60 days. RAP 16.8(c).
           In this instance, it appears that Ruiz-Sanabria's CrR 7.8 motion was not
completely transferred to the Court of Appeals. In particular, it seems the initial
motion and the supporting affidavit were not transferred. These documents were part
and parcel of the motion to be transferred. See CrR 7.8(c)(1) (application shall be
made by motion stating the grounds on which relief is asked and supported by
affidavits setting forth a concise statement of the facts or errors on which the motion
is based); CrR 8.2 (providing that CR 7(b) governs motions under the criminal rules,
with CR 7(b) in turn providing that a motion supported by affidavits or other papers
shall specify the papers to be used by the moving party). The record suggests the
"Defendant's Memorandum of Authorities in Support of Motion to Withdraw Guilty
Plea" was transferred, and that memorandum makes specific references to the
No. 90712-9                                                                             PAGE7




affidavit filed in support of the motion to withdraw plea. In light of this apparently
missing record and Ruiz-Sanabria's objection to transfer below, either the Court of
Appeals should have treated the objection to transfer as a conditional motion to amend
the petition (if transfer was accepted), and allowed time to do so, or it should have
remanded to the trial court with directions to transfer the entire motion file. 6
           Ruiz-Sanabria contends that the Court of Appeals should have requested a
response from the State before it dismissed his petition. Under the rules in effect when
the acting chief judge considered Ruiz-Sanabria' s petition, a response was not
required if the court could determine without a response that the petition should be
dismissed under RCW 10.73.090 or RCW 10.73.140. Former RAP 16.9 (2006). In
turn, RCW 10.73.140 directs the Court of Appeals to determine whether a petition is
based on frivolous grounds, and "[i]f frivolous, the court of appeals shall dismiss the
petition . . . without first requiring the state to respond to the petition." 7 But in
appropriate situations, the chief judge's decision as to whether the issues presented in
a timely petition are frivolous is best made after considering a response and any reply.
See RAP 16.11 (b) (the chief judge determines at the initial consideration of the

petition the steps necessary to properly decide on the merits the issues raised by the
petition; if, after consideration of the response and any reply, the chief judge
determines that the issues presented are frivolous, the chief judge will dismiss the

       6
          Ruiz-Sanabria complains that the Court of Appeals did not serve his transferred
petition on the State. The rules state that the clerk of the appellate court will serve a copy of
the personal restraint petition "on the officer or agency under a duty to respond to the
petition." RAP 16.8(d). But we need not decide whether the Court of Appeals failed to
comply with this rule, or whether the State was then under a "duty" to respond because
Ruiz-Sanabria mailed a copy of his CrR 7.8 motion to the prosecutor, and the prosecutor
was plainly aware of that motion.
        7 Current rules now direct the appellate court to dismiss a petition without
requesting a response if it is "clearly frivolous" or clearly untimely or improperly
successive. RAP 16.8.l(b).
No. 90712-9                                                                       PAGES




petition). 8 Here, Ruiz-Sanabria's argument that the Court Appeals should have called
for a response may be reasonable if one was to examine his initial motion and the
supporting affidavits. If Ruiz-Sanabria stated with some specificity that the factual
basis for his claim that his plea was involuntary was in part the plea colloquy, and
even if such statements can be described as entirely self-serving, if the allegations are
material they are factually specific enough under RAP 16.7(a)(2) to merit a
substantive response, with copies of relevant records. RAP 16.9(a). Factual assertions
of what occurred in court proceedings made by petitioners in support of relief are
inherently "self-serving," but if the petitioner was present in court and had knowledge
of what occurred, the better course is for the Court of Appeals to require the State to
respond if the factual assertions are material and it disputes those facts. The rules
applicable to personal restraint petitions do not explicitly require that the petitioner
submit evidence but rather the petition must identify the existence of evidence and
where it may be found. See RAP 16.7(a)(2). That the rules are not more rigorous in
this regard reflects acknowledgment that prison inmates face particular difficulties in
obtaining evidence and court records, especially if they are incarcerated outside of
Washington. Furthermore, where an offender, like Ruiz-Sanabria, does not appeal his
judgment and sentence, there is no direct appeal record from which to draw relevant
documents and transcripts. In this instance, we note that the State filed in the superior
court an affidavit refuting specific allegations Ruiz-Sanabria made in an affidavit
supporting his CrR 7.8 motion, along with a transcript it prepared of the plea hearing.
As indicated, those materials were apparently not transferred to the Court of Appeals,
which is not Ruiz-Sanabria's fault. And this court was not aware of these documents

       8   For purposes of these rules, "Chief Judge" includes "Acting Chief Judge."
RAP 16.1l(a).
No. 90712-9                                                                            PAGE9



until the State, at this court's direction, filed an answer to Ruiz-Sanabria's motion for

discretionary review.

           In light of the foregoing considerations, we are unsure whether the superior

court engaged in a meaningful CrR 7.8(c)(2) analysis before transferring the

postconviction motion to the Court of Appeals or, if transfer was appropriate, whether
the Court of Appeals had a sufficiently complete record to accurately determine

whether Ruiz-Sanabria's personal restraint petition merited a response or whether it

should have been dismissed as frivolous under RAP 16.11 (b). We thus remand this

case to the Court of Appeals with directions to either (1) remand the motion to the

superior court for reconsideration of CrR 7 .8( c)(2) criteria or (2) obtain from the

superior court all pleadings, records, and correspondence filed in connection with

Ruiz-Sanabria's CrR 7.8 motion and then reconsider his collateral attack accordingly. 9




       9
          For the first time in his reply to the State's answer to his motion for discretionary
review, Ruiz-Sanabria challenges the accuracy of the Spanish translation of the crimes
listed in his plea form and he demands an evidentiary hearing on the accuracy of the
Spanish interpreter at this plea hearing. Because Ruiz-Sanabria improperly raises this issue
for the first time in a motion for discretionary review, we grant the State's motion to strike
this issue and it will not be considered by this court. See In re Pers. Restraint of Lord, 152
Wn.2d 182, 188 n.5, 94 P.3d 952 (2004).
