                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            April 7, 2020

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 52639-5-II

                                Respondent,

         v.

 ANTHONY DWAIN DAVIS,                                          UNPUBLISHED OPINION

                                Appellant.

       MELNICK, J. — Anthony Dwain Davis appeals the trial court’s denial of his CrR 7.8 motion

to withdraw his guilty plea to his rape in the first degree conviction, arguing that the court did not

comply with CrR 7.8(c)(2)’s procedure for deciding such motions. The State concedes that the

trial court did not comply with CrR 7.8(c)(2). In his pro se statement of additional grounds for

review (SAG), Davis alleges the same issues raised in his CrR 7.8 motion. We accept the State’s

concession, vacate the trial court’s order, and remand to the trial court to enter an order complying

with CrR 7.8(c)(2).

                                              FACTS

       On July 12, 1995, Davis pled guilty to rape in the first degree. His criminal history included

a 1978 conviction of burglary in the second degree; 1986 convictions of two counts of robbery in

the second degree, kidnapping in the first degree, and assault in the first degree; and a 1989

conviction of rape in the first degree. Davis disputed his criminal history in his guilty plea

statement, but acknowledged that the State would recommend a sentence of life without the

possibility of release under the Persistent Offender Accountability Act (POAA), chapter 9.94A
52639-5-II


RCW. The trial court accepted Davis’s guilty plea to rape in the first degree, found that Davis was

a persistent offender under former RCW 9.94A.030(25) (1994), and imposed a life sentence

without the possibility of release under former RCW 9.94A.120(4) (1994).

         On September 11, 1997, in State v. Davis, 133 Wn.2d 187, 192, 943 P.2d 283 (1997), the

court granted appellate counsel’s Anders1 motion to withdraw and dismissed Davis’s appeal based

on the absence of any nonfrivolous challenge to his 1995 rape in the first degree conviction.

         Davis has filed numerous personal restraint petitions (PRPs) with this court and the

Supreme Court since that time regarding his current conviction and the underlying convictions that

support his POAA sentence. See In re Pers. Restraint of Davis, Court of Appeals Nos. 52514-3-

II, 52157-1-II, 51957-7-II, 50621-1-II, 50501-1-II, 49575-9-II, 49083-8-II, 48956-2-II, 48926-1-

II, 48844-2-II, 48793-4-II, 48482-0-II; Supreme Court Nos. 96728-8, 96595-1, 96131-0, 94795-3,

84699-5, and 80267-0. He also filed a motion for resentencing on April 12, 2016, which the trial

court denied and we affirmed. State v. Davis, No. 50122-8-II, slip op. at 3 (Wash. Ct. App.

September 18, 2018) (unpublished), http://www.courts.wa.gov/opinions.

         On October 17, 2018, Davis filed a pro se CrR 7.8 motion to withdraw his guilty plea,

challenging the sentencing court’s retroactive application of the persistent offender statute and the

facial validity of his plea statement. On October 24, the trial court denied Davis’s motion, ordering

“[t]he State shall not be required to respond to the motion” and “[t]he court will not conduct an

evidentiary hearing on this motion.” Clerk’s Papers at 40. The court made no finding regarding

timeliness. Davis appeals.




1
    Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).


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                                            ANALYSIS

I.     CRR 7.8 MOTION TO WITHDRAW GUILTY PLEA

       Davis argues that the trial court’s order denying his CrR 7.8 motion to withdraw his guilty

plea should be vacated and the case remanded because the trial court failed to comply with CrR

7.8(c)(2)’s requirements. The State concedes that the trial court erred. We accept the State’s

concession.

       A motion to withdraw a guilty plea after judgment is a collateral attack governed by CrR

7.8. State v. Buckman, 190 Wn.2d 51, 60, 409 P.3d 193 (2018). CrR 7.8(c)(2) establishes the

procedure for addressing CrR 7.8 motions:

       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.

Accordingly, the trial court may rule on the merits of a CrR 7.8 motion only when the motion is

timely filed and either (a) the defendant makes a substantial showing that he is entitled to relief,

or (b) the motion cannot be resolved without a factual hearing. State v. Smith, 144 Wn. App. 860,

863, 184 P.3d 666 (2008). If these prerequisites are absent, the trial court must transfer the motion

to the Court of Appeals for consideration as a PRP. Smith, 144 Wn. App. at 863.

       Here, the trial court made no finding regarding the timeliness of Davis’s CrR 7.8 motion

and denied the motion without explanation. Under CrR 7.8(c)(2), the trial court did not have the

authority to decide the motion and, instead, was required to follow the procedures under that rule.

Accordingly, the trial court erred. We accept the State’s concession on this issue.




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       Both parties request that we not convert this appeal to a PRP. In Smith, we held that

“converting the wrongly-decided CrR 7.8 motion to a personal restraint petition could infringe on

[the defendant’s] right to choose whether he wanted to pursue a personal restraint petition because

he would then be subject to the successive petition rule in RCW 10.73.140 as a result of our

conversion of the motion.” 144 Wn. App. at 864. Here, because both parties object to this court

converting Davis’s appeal to a PRP, we decline to do so and instead vacate the trial court’s order

and remand to the trial court to enter an order complying with CrR 7.8(c)(2).

II.    SAG

       In his SAG, Davis raises the same issues raised in his CrR 7.8 motion; namely that the

sentencing court wrongly applied the persistent offender statute retroactively and that his plea

statement is facially invalid. However, because we vacate the trial court’s order and remand, we

do not reach the merits of the issues raised in Davis’s SAG. See State v. Robinson, 193 Wn. App.

215, 216, 374 P.3d 175 (2016) (court declined to address issues raised in SAG when court vacated

and remanded trial court’s CrR 7.8 order with instructions to trial court to transfer CrR 7.8 motion

to court of appeal for consideration as a PRP).

       We vacate the trial court’s order, and remand to the trial court to enter an order complying

with CrR 7.8(c)(2).




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52639-5-II


        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.




                                                            Melnick, J.

We concur:




        Worswick, J.




        Lee, C.J.




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