                                                                                             FIL. D
                                                                                                E
                                                                                        COURT OF APPEALS
                                                                                           F1P11 1 N!11
                                                                                               /
                                                                                   2013 APR 30 AN 8: 35

                                                                                    S

                                                                                    I




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

                                                                        No. 42824 5 II
                                                                                  - -
STATE OF WASHINGTON,
                               Respondent,

       V.                                                            PUBLISHED OPINION


RICARDO MARTINEZ LEON,
                 -
                               Appellant.



       VAN DEREN, J. —Ricardo       Martinez Leon appeals the trial court's denial of his CrR 7.
                                             -                                                 8

motion for relief from judgment or to withdraw his guilty plea. He asserts that the trial court

erred by finding that his CrR 7. motion was time barred because the United States Supreme
                               8

Court's decision in Padilla v. Kentucky, 559 U. . 356, 130 S. Ct. 1473, 176 L.Ed. 2d 284 ( 010)
                                              S                                          2

represented a significant change in the law under RCW 10. 3.
                                                      100(
                                                         6 permitting him to
                                                         7 ),

collaterally attack his conviction beyond the one year time limit set forth under RCW 10. 3.
                                                  -                                   090.
                                                                                        7

Alternatively, Martinez Leon asserts that the trial court erred by finding that his motion was not
                        -

timely under the equitable tolling doctrine. We stayed this appeal pending a decision by the

United States   Supreme   Court in Chaidez   v.   United States, _    U. . ,
                                                                       S       1 S. Ct. 1103, 185 L.

Ed. 2d 149 (2013).
                 Because the Chaidez Court recently held that Padilla does not apply

retroactively to cases that were final before the Padilla decision was issued, we lift the stay and

hold that Martinez Leon cannot satisfy the requirements of RCW 10. 3.
                   -                                           s)'
                                                               100(
                                                                  6 time bar
                                                                  7
No. 42824 5 II
          - -



exception. And because Martinez Leon cannot demonstrate that justice requires application of
                                -

the equitable tolling doctrine to toll the one year time limit set forth in RCW 10. 3.we
                                               -                                090,
                                                                                  7

affirm the trial court's determination that his CrR 7. motion to withdraw his guilty plea was
                                                     8

untimely.

                                                      FACTS


         On May 11, 2006, Martinez Leon pleaded guilty to unlawful imprisonment—
                                   -                                           domestic

violence and fourth degree assault—
                                  domestic violence. The State originally charged Martinez-

Leon with first                    domestic violence, felony
                  degree kidnapping—                                   harassment —domestic violence,


fourth   degree assault —domestic violence, and interfering with reporting domestic violence—

domestic violence. Martinez- s signed statement on plea of guilty form provided the
                           Leon'

following provision, If I am not a citizen of the United States, a plea of guilty to an offense
                     "

punishable as a crime under state law is grounds for deportation, exclusion from admission to the

United States, or denial of naturalization pursuant to the laws of the United States."Clerk's

Papers (CP)at 6.

         At Martinez - s May 11,2006 plea hearing, defense counsel that Martinez
                     Leon'   -

Leon wanted to    plead guilty to   fourth   degree   assault and wanted to enter   an   Alford plea to the

unlawful imprisonment charge. The trial court explained the consequences of pleading guilty.

Martinez Leon,through an interpreter, stated that he did not fully understand the consequences
         -

of his guilty plea but that he still wanted to plead guilty. The trial court told Martinez Leon that
                                                                                           -

he needed to fully understand the consequences of pleading guilty and continued to explain to

him what rights he was giving up by entering a guilty plea. The trial court allowed defense


1
    North Carolina v.Alford,400 U. . 25, 91 S. Ct. 160, 27 L.Ed. 2d 162 (1970).
                                 S

                                                        4
No. 42824 5 II
          - -



counsel to take a short recess to speak with Martinez Leon to ensure that he understood the
                                                      -

consequences of his plea.

       When the plea hearing recommenced, the trial court again explained to Martinez Leon
                                                                                      -

the.consequences of pleading guilty. The trial court reviewed the right to a jury trial,the right to

have the State prove its charges against him,the right to present evidence, the elements of the

crimes charged, the maximum sentence and the sentencing range, and the loss of the right to

possess firearms. The trial court did not,however, discuss any potential immigration

consequences resulting from Martinez -Leon's decision to plead guilty. The trial court determined

that an interpreter read the guilty plea form in its entirety to Martinez Leon,he understood the
                                                                          -

form, he did not have any questions, and that he had signed the form. The trial court accepted

Martinez- s guilty plea, finding that he entered the plea, knowingly, intelligently and
        Leon'                                              "

voluntarily, with a full understanding of its meaning and effect with a factual basis."CP at 44.

       The trial court held a sentencing hearing on May 25, 2006. The trial court accepted the

State's and defense counsel's agreed recommendation to sentence Martinez Leon to two months
                                                                         -

of incarceration for his unlawful imprisonment conviction and to a suspended sentence of 365

days on his fourth degree assault conviction.

        On June 27, 2011, Martinez Leon filed a CrR 7. motion for relief from judgment or to
                                   -                 8

withdraw his guilty pleas. In support of his motion, Martinez Leon filed a sworn declaration
                                                              =

from his trial attorney, in which his trial attorney stated that she had " general discussion about
                                                                         a

immigration consequences" with Martinez Leon and that she told him " hat deportation was a
                                        -                          t

possible consequence of a guilty plea particularly because the plea offer required a plea to a

felony."CP at 69. Martinez- s trial attorney also stated the following in her sworn
                          Leon'

declaration:
No. 42824 5 II
          - -



           I know we did not have any discussion about the fact that if Martinez Leon]
                                                                        [        -
       received a sentence of 365 days on the assault charge that it would be considered
       an "aggravated felony"for immigration purposes and that he would definitely be
       deported.

           I did not ask the judge at the time of sentencing for a sentence of less than 365
       days, since I was not aware at the time that if the sentence were only for 364 days,
       the assault charge would not be considered an " aggravated felony" for
       immigration purposes.

CP at 69 70.
         -


       The Cowlitz County prosecuting attorney also provided the trial court with a sworn

declaration, which stated in part:

              At the time of the plea, [Martinez Leon] was previously convicted of
                                                   -
       Assault in the fourth degree (domestic violence) out of Cowlitz County in cause
       C85093 from 8/ /1995 and Forgery in the first degree in Clackamas County,
                           6
       Oregon, cause number OR 0003075) from 3/2/ Additionally, [ artinez-
                                                   1998.1                      M
       Leon] had a voluntary departure deportation proceeding on 12/ 5/wherein
                                                                     1996  0
       he agreed to return to Mexico.
              I am informed by Jeffery Chan, Martinez- s]
                                               [         Leon'     deportation officer that
       Immigration and Customs Enforcement ( ICE)]was unaware of [Martinez -
       Leon's]prior criminal history when they filed for the current deportation
       proceedings. However, Mr. Chan indicates [Martinez- s]  Leon'   prior 1996 assault
       might be a basis for adding a new charge and the Forgery is a basis for adding a
       new charge and i[] most certainly considered a Crime.of Moral Turpitude,
                            s
       constituting a grounds for deportation. Mr.Chan also indicates that - the time
                                                                           at
       Martinez Leon] was allowed permanent residence he informed the agency he had
                 -
       no criminal history. When this was found to be untrue, Martinez Leon] filed a
                                                                 [        -
       waiver indicating his forgery conviction was a crime involving moral turpitude.

CPat89.


       The trial court held a hearing on Martinez- s CrR 7. motion and entered a written
                                                 Leon'    8

order denying the motion. The trial court's written order concluded that Martinez- s motion
                                                                                 Leon'

was time -
         barred under CrR 7. and RCW 10. 3. The trial court further concluded that the
                           8         090.
                                       7


requirement that an immigrant defendant be informed about the potential immigration

consequences of a   guilty plea was   not   a   significant change   in law and that   equitable tolling did
No. 42824 5 II
          - -



not apply. The trial court's written order also indicated that it may or may not have imposed a

364 day suspended sentence on the fourth degree assault conviction had defense counsel

requested it at Martinez- s sentencing hearing. Martinez Leon appeals the trial court's
                        Leon'                            -

order denying his CrR 7. motion for relief from judgment or to withdraw his guilty plea.
                       8

                                            ANALYSIS


I.     STANDARD OF REVIEW


       We review a trial court's ruling on a CrR 7. motion for abuse of discretion. State v.
                                                  8

Martinez, 161 Wn. App. 436, 440, 253 P. d 445, review denied, 172 Wn. d 1011 (2011).But
                                      3                             2

when a trial court bases its otherwise discretionary decision solely on application of a court rule

or statute, the issue is one of law that we review de novo. State v. Dearbone, 125 Wn. d 173,
                                                                                     2

179, 883 P. d 303 (1994).
          2

       CrR 4. (
           f) that a trial court " hall allow a defendant to withdraw the defendant's
            2 provides           s

plea of guilty whenever it appears that the withdrawal is necessary to correct a manifest

injustice."Where, as here, a criminal defendant moves to withdraw his guilty plea after

judgment has   been entered, CrR 7.
                                  8   governs. CrR 4. (
                                                    2       CrR 7.
                                                                 8       5 provi es that the trial

court may relieve a party from a final judgment for "[ ny other reason justifying relief from the
                                                    a]

operation of the judgment."CrR 7. motions are subject to the provisions of RCW 10. 3.
                                8                                              090
                                                                                 7

and RCW 10. 3. CrR 7. (
        100.
          7        b)
                    8

       RCW 10. 3.states in part:
           090
             7

       1) petition or motion for collateral attack on a judgment and sentence in a
         No
       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 rendered by a court of
       competent jurisdiction.
        2)For the purposes of this section, "       collateral attack" means any form. of
       postconviction relief other than a direct appeal. "Collateral attack" includes, but
       is not limited to, a personal restraint petition, a habeas corpus petition, a motion to

                                                  5
No.42824 5 II
         - -



       vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a
       motion to arrest judgment.

       Martinez Leon concedes that he filed his CrR 7. motion beyond the one year time
                -                                    8                       -

period set forth in RCW 10. 3.but asserts that his motion was timely under RCW
                        090
                          7

100(
10. 3.RCW 10. 3.100 provides in relevant part:
   6
   7 ). 7

       The time limit specified in RCW 10. 3.does not apply to a petition or motion
                                       090
                                         7
       that is based solely on one or more of the following grounds:

                  6)There has been a significant change in the law, whether substantive or
       procedural, which is material to the conviction, sentence, or other order entered in
       a criminal or civil proceeding instituted by the state or local government, and
       either the legislature has expressly provided that the change in the law is to be
       applied retroactively, or a court, in interpreting a change in the law that lacks
       express legislative intent regarding retroactive application, determines that
       sufficient reasons exist to require retroactive application of the changed legal
       standard.


       Thus, to meet the exception set forth in RCW 10. 3.
                                                    100(
                                                       6 Martinez -
                                                       7 ), Leon must show a

1) "
 a significant change in the law," (material to [his] conviction [or]sentence," ( that
                                 2) "                                         3)

applies retroactively. Because it is dispositive of the issue presented, we address only the

retroactivity element of RCW 10. 3.
                             100(
                                6
                                7 ).

II.    RETROACTIVITY


       To meet RCW 10. 3.
                   s)'
                   100(
                      6 requirements, Martinez Leon must demonstrate that
                      7                        -

sufficient reasons exist to require retroactive application"of Padilla. He cannot meet this

burden. In Chaidez, the United State Supreme Court held that its decision in Padilla announced

  new
a "`    rule "'   that did not apply retroactively to cases that were final before the Padilla decision

was issued: 133 S. Ct. at 1107. "[ person whose conviction is already final may not benefit
                                A]

from the [Padilla] decision in a habeas or similar proceeding."Chaidez, 133 S. Ct. at 1107.

Martinez- s conviction was final on May 25, 2006, well before the Padilla decision was
        Leon'


                                                    1
No.42824 5 II
         - -



issued on March 31, 2010. RCW 10. 3.
                              a).
                              090(
                                 3)(
                                 7  Accordingly, Martinez Leon cannot avail
                                                          -

himself of the Padilla decision and he fails to meet the requirements of RCW 10. 3.
                                                                             s)'
                                                                             100(
                                                                                6
                                                                                7

exception to the one year time bar to collaterally attack his conviction.
                     -

III.   EQUITABLE TOLLING

       Next, Martinez Leon asserts that even if Padilla does not apply retroactively to allow a
                      -

collateral challenge to his conviction under RCW 10. 3. trial court erred by failing to
                                                 100(
                                                    6 the
                                                    7 ),

toll the one year time bar of RCW 10. 3.under the equitable tolling doctrine. We disagree.
             -                    090
                                    7

       The equitable tolling doctrine "`
                                      permits a court to allow an action to proceed when justice

requires it,even though a statutory time period has nominally elapsed."' re Carlstad, 150
                                                                       In

Wn. d 583, 593, 80 P. d 587 (2003)quoting State v. Duvall, 86 Wn. App. 871, 874, 940 P. d
  2                 3              (                                                  2

          However, application of equitable
671 (1997)).       "                              tolling ... must only be done in the narrowest

of circumstances and where justice requires."In re Pers. Restraint of Carter, 172 Wn. d 917,
                                                                                    2

929, 263 P. d 1241 (2011).RCW 10. 3.can be subject to equitable tolling in a proper case.
          3                   090
                                7

State v. Littlefair, 112 Wn. App. 749, 759, 51 P. d 116 (2002).
                                                3

       Iii Littlefair,the defendant_a resident alien,entered a guilty plea -112 Wn..
                       -                                                     _    App. at 752. "
                                                                                        -

Littlefair's defense counsel did not inquire about Littlefair's immigration status and did not

advise Littlefair about the potential immigration consequences of a guilty plea. Littlefair, 112

Wn. App. at 755. Littlefair's defense counsel also struck language on the guilty plea form

stating that deportation was a possible consequence of entering a guilty plea. Littlefair, 112 Wn.

App. at 752 54. Two years later, the INS notified Littlefair that it would seek to deport him
            -

because of his conviction. Littlefair, 112 Wn. App. at 755. Littlefair moved to withdraw his

guilty plea on the basis that he would not have pled guilty had he known he would be subject to

deportation. Littlefair, 112 Wn. App. at 755. This court concluded that it was appropriate to
                                                 h
No. 42824 5 II
          - -



apply equitable tolling to the unique circumstances of Littlefair's case, noting that Littlefair did

not know about the deportation consequences of his guilty plea due to mistakes by his attorney,

the trial court, and the INS. Littlefair, 112 Wn. App. at 762 63
                                                              -

       In contrast to the unique circumstances justifying equitable tolling in Littlefair,here

Martinez- s defense attorney was aware that Martinez Leon was not a United States citizen
        Leon'                                        -

and discussed the potential deportation consequences of entering a guilty plea with Martinez -

Leon. And,unlike in Littlefair,Martinez Leon signed a statement on plea of guilty that
                                        -

provided, If I am not a citizen of the United States, a plea of guilty to an offense punishable as a
          "

crime under state law is grounds for deportation, exclusion from admission to the United States,

or denial of naturalization pursuant to the laws of the United States."CP at 6.

        We hold that these circumstances do not warrant application of the equitable tolling

doctrine to the time limit in RCW 10. 3. Although Martinez- s defense counsel did not
                                  090.
                                    7                     Leon'

specifically advise him that a 365 day sentence on his assault conviction would result in definite
                                   -

deportation under United States immigration laws, such an obligation was not required before

Padilla, Which doesnot apply retroactively to -
                                              Martinez -Leon's conviction. --
                                                                           Accordingly, we

affirm the trial court's denial of Martinez-
                                           CrR. motion to withdraw his guilty plea.
                                           Leon'
                                               s 7.
                                                  8




                                                    VAN DEREN, J. /
We concur:




                                                   N.
