                                                                                                 FILED
                                                                                            C R T OF APPEALS
                                                                                               DIVISION . I

                                                                                          20R JUL - 8       A   I0: 1 I
         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                          S PAZ E OF WAS1 1H       CO

                                                    DIVISION II                           BY
                                                                                                     DE:4UTY
STATE OF WASHINGTON,                                                                 No. 45295 -2 -II


                                        Respondent,


          v.




MITCHELL ANTHONY RUDNICK,                                                     UNPUBLISHED OPINION


                                        Appellant.


          HUNT, J.—        Mitchell Anthony Rudnick appeals the superior court' s denial of his CrR 7. 8
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motion     to   withdraw      his   plea of   guilty to third degree        child molestation.        He argues that the


superior court should have transferred his motion to this court to be considered as a personal

restraint petition ( PRP).          We agree, reverse the order denying the motion to withdraw the plea,

and direct the superior court to transfer Rudnick' s motion to us to be considered as a PRP.

                                                          FACTS


          On September 6, 2012, Rudnick entered a plea of guilty to a charge of third degree child

molestation.         As part of the plea bargain, both parties recommended 6 months of actual


confinement and 12 months of community custody. On October 17, the superior court sentenced

Rudnick to a longer term than the parties had recommended in the plea bargain, stating:

                 Well, Mr. Rudnick' s current statement kind of mirrors what he said in the
          PSI that caused me a whole lot of concern that this isn' t his fault and his concept
          of     boundaries      are   pretty   non -
                                                    existent.       I' ll   impose    9   months,      12   months

          community custody, enter the no- contact order.

Verbatim Report of Proceedings ( Oct. 17, 2012) at 10.




  Although Rudnick filed his              motion    to   withdraw    his guilty      plea under      CrR 4. 2( f), that rule
provides       that "[   i] f the motion for withdrawal is made after judgment, it shall be governed by CrR
7. 8."
          Less than a year later, on June 26, 2013, Rudnick filed a CrR 7. 8 motion to withdraw his

plea of   guilty, asserting that the              superior court .had         " stated on the record that this was not my


fault." Clerk' s Papers ( CP)             at   29 -30.    Denying     this   motion,      the   superior court stated, "     Defendant

                                                                                                                         2
has   not made substantial          showing he is          entitled   to   relief."   CP   at   32. Rudnick   appeals.




                                                                ANALYSIS


          Rudnick       argues     that ( 1)     CrR 7. 8( c) required the superior court to transfer his CrR 7. 8


motion to this court to be considered as a PRP; and ( 2) therefore, the trial court abused its

                                               3
discretion in      denying    his       motion.     State v. Smith, 144 Wn. App. 860, 863, 184 P. 3d 666 ( 2008).

We agree.


          Since its 2007 amendment, CrR 7. 8( c). has provided:

             c)            Procedure on Vacation of Judgment.
             1)                Application shall be made by motion stating the grounds
                           Motion.
          upon which relief is asked, and supported by affidavits setting forth a concise
          statement of the facts or errors upon which the motion is based.
             2)            Transfer to Court             of    Appeals.     The court shall transfer a motion filed
          by a defendant to the Court of Appeals for consideration as a personal restraint
          petition unless the court determines that the motion is not barred by RCW
          10. 73. 090 and either ( i) the defendant has made a substantial showing that he or
          she     is   entitled    to    relief or (     ii) resolution of the motion will require a factual
          hearing.


2
    A commissioner of this court initially considered Rudnick' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel of judges.

3 The State counters that the superior court did not abuse its discretion because ( 1) Rudnick' s
motion did not meet the CrR 7. 8( c)( 1) requirement that he " stat[ e] the grounds upon which relief
is asked and supported by affidavits setting forth a concise statement of the facts or errors upon
which     the     motion     is based ";         and (    2)    Rudnick' s characterization of the sentencing court' s
comment about           fault is   not a " ground ...            upon which relief is asked." Br. of Resp' t at 2 -3. For

21 years, CrR 7. 8( c) allowed the superior court to ( 1) deny a CrR 7. 8 motion without a hearing if
the alleged       facts did       not    establish grounds          for    relief; ( 2)    transfer the motion to the court of
appeals for consideration as a personal restraint petition if the transfer would serve the ends of
justice; or ( 3) set a hearing so the adverse party could show why the court should not grant the
requested relief. CrR 7. 8( c)( 2) ( adopted September 1,  1986); see also Smith, 144 Wn. App. at
862. But this rule has changed since September 1, 2007.
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                   3)          Order to Show Cause. If the court does not transfer the motion to the
             Court of Appeals, it shall enter an order fixing a time and place for hearing and
             directing the adverse party to appear and show cause why the relief asked for
             should not be granted.


             Because Rudnick filed his CrR 7. 8 motion to withdraw his plea of guilty within one year

of   entry    of    his judgment       and sentence,      it is    not   barred   by   RCW 10. 73. 090.    Therefore, under the


plain       language      of   CrR 7. 8(   c),   the superior court was required to transfer his motion to us to be


considered as a PRP unless ( 1) Rudnick made a substantial showing that he was entitled to relief

or (   2)    resolution of       his   motion required         a   factual   hearing.     Smith, 144 Wn.     App   at   863.   The


superior court did not find that Rudnick made a substantial showing of entitlement to relief or

that   his    motion required a            factual    hearing.     Thus, the superior court was required to transfer the


motion        to    us,   and    therefore,      it   abused   its discretion in         denying   the   motion.   See State v.


Larranaga, 126 Wn. App. 505, 509, 108 P. 3d 833 ( 2005).

             We reverse the superior court' s order denying Rudnick' s motion to withdraw his plea of

guilty, and we direct the superior court to transfer his motion to us for consideration as a PRP.

             A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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