                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             June 11, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 51260-2-II

                                Respondent,                    UNPUBLISHED OPINION

         v.

 RANDY CAPPS,

                                Appellant.

       GLASGOW, J. — In 1995, Randy Capps pleaded guilty to aggravated first degree murder

and was sentenced to life without the possibility of release. In 2017, he brought a CrR 7.8 post-

judgment motion to be resentenced, arguing that the sentencing court should have considered

that he was only 20 years old when he committed the crime. The trial court denied the motion.

       On appeal, Capps asserts that the trial court abused its discretion by failing to follow the

procedural requirements of CrR 7.8 and either hold a show cause hearing or transfer his motion

to this court for consideration as a personal restraint petition. In a statement of additional

grounds for review, Capps also argues the underlying merits of his CrR 7.8 motion.

       We agree that the trial court failed to follow CrR 7.8 when it denied Capps’s motion.

While the State invites us to convert the current appeal to a personal restraint petition and

dispose of the issue on the merits, we decline. We remand to the trial court to adhere to the

procedures set forth under CrR 7.8.
No. 51260-2-II


                                               FACTS

       In 1995, Capps pleaded guilty to aggravated first degree murder and was sentenced to life

without the possibility of early release. Capps was 20 years old when he committed the crime.

       In 2017, Capps filed a CrR 7.8(b)(5) motion for relief from judgment. Capps argued that

he was entitled to a resentencing hearing so the trial court could consider whether his youth at

the time he committed his crime justified an exceptional downward sentence.

       The trial court entered an order denying Capps’s CrR 7.8 motion, resolving the merits

without holding a hearing. The order denying the CrR 7.8 motion found that the motion was

timely but it failed to present sufficient grounds for relief. Capps appeals from the order denying

his CrR 7.8 motion.

                                             ANALYSIS

       Capps contends that the trial court erred by denying his CrR 7.8 motion because the rule

required that it either transfer his motion to this court for consideration as a personal restraint

petition or hold a show cause hearing. The State concedes error but requests that we convert

Capps’s motion to a personal restraint petition and dismiss it as time barred under RCW

10.73.090. We accept the State’s concession but decline its requested remedy. Instead, we

remand to the trial court to adhere to the procedures established in CrR 7.8.

       CrR 7.8 sets forth the criteria for seeking relief from judgment and the procedures that a

trial court must follow when addressing such motions. CrR 7.8(c)(2) provides that a trial 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
No. 51260-2-II


(Emphasis added); see also In re Pers. Restraint of Ruiz-Sanabria, 184 Wn.2d 632, 638, 362

P.3d 758 (2015). CrR 7.8(c)(3) provides that “[i]f 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.”

(Emphasis added.)

       A trial court may retain a CrR 7.8 motion only where it makes the enumerated threshold

determinations. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008). A trial court that

fails to follow these mandatory procedures abuses its discretion. See Smith, 144 Wn. App. at 864

(trial court acted without authority when it failed to follow CrR 7.8 procedures); see also State v.

George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (Courts “interpret[] court rules as though

they were drafted by the legislature.”); In re Marriage of Watson, 132 Wn. App. 222, 230, 130

P.3d 915 (2006) (trial court abuses its discretion when it fails to follow statutory procedures).

       In denying Capps’s motion, the trial court appears to have relied on State v. Robinson,

153 Wn.2d 689, 696, 107 P.3d 90 (2005), in which our Supreme Court stated that a superior

court may deny a CrR 7.8 motion on the merits without a hearing if the motion does not establish

grounds for relief. However, Robinson predates an amendment to CrR 7.8 that adopted the

current procedural requirements and eliminated the language permitting trial courts to deny

motions that fail to establish grounds for relief. See Smith, 144 Wn. App. at 862-63 (comparing

former CrR 7.8(c) (1986) with the current version of CrR 7.8(c)).

       In addition, since the trial court addressed Capps’s motion, our Supreme Court has




                                                  3
No. 51260-2-II


reversed the case that was the basis for the trial court’s conclusion that the motion was not time

barred under RCW 10.73.090. RCW 10.73.090 requires that motions for a collateral attack on a

judgment and sentence must be filed within one year of the date that the judgment and sentence

becomes final, subject to certain exceptions under RCW 10.73.100. RCW 10.73.100(6) provides

an exception to the time bar when there has been a “significant change in the law” that is

“material to the . . . sentence” and “sufficient reasons exist to require retroactive application of

the changed legal standard.”

       Capps’s judgment and sentence became final in 1995 when the trial court entered it.

RCW 10.73.090(3)(a). Capps filed his CrR 7.8 motion in 2017, well over one year later. But

Capps argued that State v. O’Dell, 183 Wn.2d 680, 689-96, 358 P.3d 359 (2015), which held that

an adult defendant’s youth may be considered as a possible mitigating factor justifying an

exceptional downward sentence, represented a significant change of law excepting his petition

from the time bar under RCW 10.73.100(6).

       The trial court agreed, relying on Division One’s opinion in In re Pers. Restraint of

Light-Roth, 200 Wn. App. 149, 401 P.3d 459 (2017), rev’d, 191 Wn.2d 328 (2018), which said

that O’Dell constituted a significant change in the law. However, after the trial court entered its

order denying Capps’s motion, our Supreme Court reversed Light-Roth, holding instead that

O’Dell did not represent a significant change of law. In re Light-Roth, 191 Wn.2d at 335-38.

       Because O’Dell does not represent a significant change of law, RCW 10.73.100(6) does




                                                  4
No. 51260-2-II


not apply to except Capps’s CrR 7.8 motion from the one-year time limit to file a collateral

attack on his sentence. And because Capps did not argue that any other exception to the time bar

applied, the trial court was required under CrR 7.8(c)(2) to transfer the untimely motion to this

Court for consideration as a personal restraint petition.

        Although we agree with the State that Capps’s CrR 7.8 motion was untimely and should

have been transferred to this Court as a personal restraint petition, we deny the State’s request to

convert the motion to a personal restraint petition and to dismiss it in this appeal. In Smith, the

State similarly requested that we convert the appellant’s untimely CrR 7.8 motion to a personal

restraint petition and dismiss. 144 Wn. App. at 863-64. We explained that converting the

motion could infringe on the appellant’s right to decline to pursue the merits of his personal

restraint petition so as to avoid becoming subject to the successive petition rule of RCW

10.73.140. By declining the State’s request to convert Capps’s untimely CrR 7.8 motion in this

appeal, we preserve Capps’s opportunity to decide whether to pursue a personal restraint petition

with this court.

        Accordingly, we remand Capps’s motion to the trial court with direction to adhere to the

CrR 7.8 procedures. Because we have determined that Capps’s CrR 7.8 motion was untimely

and that the trial court erred by failing to transfer it to this court for consideration as a personal

restraint petition, we do not address the underlying merits of the motion as argued in the State’s

response and in Capps’s statement of additional grounds.

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




                                                   5
No. 51260-2-II


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

2.06.040, it is so ordered.



                                                   Glasgow, J.
 We concur:



 Worswick, P.J.




 Cruser, J.




                                               6
