                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        February 11, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                               No. 52187-3-II

                            Respondent,

        v.

 GARY MICHAEL LARSON,                                              UNPUBLISHED
                                                                     OPINION
                             Appellant.


       GLASGOW, J. — Gary Michael Larson pleaded guilty in 2011 to two counts of first degree

rape of a minor. His judgment and sentence included multiple community custody conditions.

       In 2017, Larson filed a motion in the Clallam County Superior Court, seeking to modify

his judgment and sentence to permit contact with his minor son. The trial court denied Larson’s

motion at a hearing in February 2018 and declined to rule on the merits, holding that the motion

was time-barred under RCW 10.73.090. Larson now appeals the trial court’s denial of his motion.

       We hold that the trial court erred under CrR 7.8(c)(2) by denying Larson’s motion instead

of transferring it to this court as a personal restraint petition (PRP). Accordingly, we reverse and

remand for the trial court to adhere to the procedure set forth under CrR 7.8.

                                          FACTS

       In 2011, Larson pleaded guilty in Clallam County Superior Court to two counts of rape of

a minor. Larson’s sentence included a number of community custody conditions. These conditions

included, among others, a prohibition against direct or indirect contact with minor children unless

authorized by the Department of Corrections and a prohibition against “enter[ing] into,
No. 52187-3-II


frequent[ing] or loiter[ing] at places where children tend to congregate” without authorization from

his community custody officer (CCO). Clerk’s Papers (CP) at 67. Larson was also ordered not to

possess devices capable of accessing the internet unless approved by his CCO, and he was

prohibited from accessing the internet without authorization from his CCO.

         Larson has a nine-year-old son. In 2012, when the child was two years old, a corrections

officer in the prison learned that Larson had been writing letters to his son. The corrections officer

notified Larson that his judgment and sentence prohibited him from contacting minors and told

Larson that he was “not to have any contact with [his son] unless [the sentencing condition] is

changed in the courts.” CP at 34.

         Larson filed a motion to modify his judgment and sentence to allow him to contact his son.

Although Larson did not characterize his motion as one made under CrR 7.8, it was clear that he

was requesting modification of his judgment and sentence. The State’s response reflected that it

understood Larson’s motion to be subject to CrR 7.8.

         The trial court found that Larson’s motion was time-barred under RCW 10.73.090 because

his motion was filed more than one year after his judgment and sentence became final. The court

noted that Larson could appeal the denial of the motion. The court also signed an order holding

that “[t]he [d]efendant’s Motion to Modify his Judgment and Sentence is denied due to it being

time-barred.” CP at 8. The trial court did not transfer the motion to this court for consideration as

a PRP.

         In this appeal, Larson argues that four of his sentencing conditions are exempt from the

one year time bar under RCW 10.73.090(1) because they are unconstitutional and thereby facially




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invalid. He requests that this court strike these conditions and remand to the trial court to enter

new constitutional sentencing conditions.

                                            ANALYSIS

       Under CrR 7.8(c)(2), 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.

Washington case law has further elaborated that CrR 7.8(c)(2) prohibits a trial court from entering

an order denying or dismissing a motion on time-bar grounds. See State v. Smith, 144 Wn. App.

860, 863, 184 P.3d 666 (2008). Under CrR 7.8 and Smith, if a trial court determines that a CrR

7.8 motion is untimely, its only option is to transfer the case to the Court of Appeals as a PRP.

       In Smith, the trial court entered an order denying the defendant’s motion to vacate his

judgment, holding that “‘pursuant to CrR 7.8 and RCW 10.73.090, [the defendant’s] motion is

untimely.’” Id. at 862. The Smith court declined to “simply convert the notice of appeal to a

personal restraint petition as a way of preserving judicial resources,” because doing so “could

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

petition.” Id. at 863-64.

       In this case, after concluding that Larson’s motion was time-barred under RCW 10.73.090,

the trial court verbally ruled that it was dismissing the case and proceeded to sign a written order

denying Larson’s motion because it was time-barred. The record reflects the following exchange

among the court, Larson, and the State:




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No. 52187-3-II


                The Defendant: Okay, uh, also, Your Honor, regarding the time bar?

                The Court: Yes?

                ....

               The Defendant: And so that means that it -- now, I don’t know the procedure
       on this, so I’ve got to kind of ask because -- forgive my ignorance, um, now the
       debates on the decision, does this get pushed to the appeal court because of the time
       bar?

                The Court: You can -- you can certainly try and file a notice of appeal with
       them--

                [The Prosecutor]: I -- I think it would be a personal restraint petition would
       be --

              The Court: However you characterize, whether it’s an appeal, which again
       only has 30 days, a personal restraint petition, the collateral attack is one year.

                So, yeah, to the extent that the Court’s making a ruling now, that’s an
       appealable - for lack of a better word - decision, and you have the ability to attempt
       to get it before the appellate courts.

                The Defendant: Okay.

              The Court: All right. And I’m signing a minute order that provides, the
       Defendant’s motion to modify his judgment and sentence is denied due to it being
       time barred.

Verbatim Report of Proceedings (Feb. 28, 2018) at 31-34. The court’s written order reflects the

same reasoning, stating, “The [d]efendant’s Motion to Modify his Judgment and Sentence is

denied due to it being time-barred.” CP at 8.

       The proper procedure under CrR 7.8(c)(2) would have been for the trial court to enter an

order transferring the case to this court as a PRP and to alert Larson to the collateral consequences

of doing so. See Smith, 144 Wn. App. at 863-64. Neither the court’s written order nor the exchange

on the record reflects an intent to transfer the case as a PRP. Accordingly, following Smith, and


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No. 52187-3-II


without reaching the merits of Larson’s arguments, we reverse the trial court’s denial of Larson’s

motion, and remand for the trial court to adhere to the procedure established in CrR 7.8.1

Consistent with Smith, remanding rather than converting his appeal to a PRP will allow Larson to

decide how to proceed in light of the collateral consequences, such as RCW 10.73.140’s successive

petition bar, that arise from filing a PRP.

          We reverse and remand to the superior court to adhere to the procedure in CrR 7.8.

          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.



                                                      Glasgow, J.
    We concur:



    Worswick, P.J.




    Cruser, J.




1
  This case is distinguishable from State v. Bartz, No. 35931-0-III, slip op. at 3-4 (Wash. Ct.
App. June 6, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/359310_unp.pdf, in
which Division Three declined to follow Smith and instead converted the CrR 7.8 appeal to a
PRP. In Bartz, the State requested that Division Three convert the appeal to a PRP and the
appellant did not object. Id. at 4. By contrast, in this case, neither Larson nor the State has
requested that this court convert Larson’s appeal to a PRP. Larson has not received notice or
an opportunity to address whether he would like his appeal to be converted to a PRP.


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