                                                                     FILED
                                                                 DECEMBER 7, 2017
                                                              In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division Ill




                  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

    STATE OF WASHINGTON,                         )         No. 34533-5-111
                                                 )
                          Appellant,             )
                                                 )
             V.                                  )         UNPUBLISHED OPINION
                                                 )
    TARA J. AMMONS,                              )
                                                 )
                          Respondent.            )

             PENNELL, J. -In 2009, Tara Ammons was convicted of theft and possession of

    controlled substances with intent to deliver. Ms. Ammons's case was handled through a

    stipulated facts trial. This abbreviated procedure was used as a consequence of Ms.

    Ammons' s failed attempt to divert her charges through a drug court program. Seven

    years later, Ms. Ammons successfully moved to vacate the drug court agreement,

    convictions, and judgment and sentence. She argued her convictions were invalid

    because she had not been aware of potential immigration consequences at the time she

    entered into drug court and agreed to the possible adverse outcome of a stipulated facts

    trial.

             Ms. Ammons' s case is uniquely sympathetic. Having been adopted as a baby by

    parents who were citizens of the United States, Ms. Ammons reasonably believed she was



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State v. Ammons


a U.S. citizen and did not find out otherwise until after she had entered drug court. When

presented with Ms. Ammons's motion to vacate, the trial court found Ms. Ammons's

equities compelling and granted relief. The court reasoned Ms. Ammons's convictions,

by way of a stipulated facts trial, were predicated on a mutual mistake regarding

immigration status. The court also excused Ms. Ammons's failure to file a motion to

vacate within the standard one-year time frame based on equitable tolling.

       Although the equities favoring Ms. Ammons are compelling, we find no legal

basis to sustain the trial court's disposition. Whatever merits Ms. Ammons's substantive

claims may have regarding mutual mistake, her motion to vacate was not timely. The

record contains no factual basis for equitable tolling. The trial court's order to vacate is

therefore reversed.

                                     BACKGROUND
       In May 2007, Tara Ammons was charged with two counts of theft and two counts

of possession of a controlled substance with intent to deliver. Hoping to deal with her

drug addiction, Ms. Ammons opted to enter drug court. The drug court agreement

specified Ms. Ammons was waiving a number of constitutional and statutory rights, 1 and



       1
        These are the right to: (1) a jury trial, (2) hear and question witnesses, (3) call
witnesses on your own behalf, (4) cross-examine the state's witnesses, (5) present
evidence, (6) testify or not testify, (7) a CrR 3.5 or CrR 3.6 hearing, and (8) a speedy trial.

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State v. Ammons


that if she violated any part of the drug court agreement her case would be adjudicated

solely on the basis of the police reports and other materials submitted by the prosecutor.

Ms. Ammons would have no right to call witnesses or present further evidence. Ms.

Ammons entered drug court on January 11, 2008.

       While the exact date is unclear, by at least March 28, 2008, Ms. Ammons learned

she was not a U.S. citizen. Ms. Ammons had been adopted from Mexico in 1972 when

she was five months old. At the time of her adoption, Ms. Ammons's parents were

mistakenly informed by legal counsel that Ms. Ammons became a U.S. citizen upon

adoption. The Ammons family had no reason to doubt this information. Ms. Ammons

grew up in California, attended public schools, received a social security number, voted in

elections, married twice, and had three children. Ms. Ammons, now in her mid-40s, only

learned she was not a citizen after her biological sister, who had also been adopted, was

denied a U.S. passport.

      Although Ms. Ammons' s immigration status made her technically ineligible for

drug court, the presiding judge allowed her to stay in the program. This decision was

favorable to Ms. Ammons because she maintained the possibility of avoiding a criminal

conviction. But, unfortunately, things did not work out. In December 2008, Ms.

Ammons was charged with misdemeanor assault. As a result of this new charge, Ms.



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State v. Ammons


Ammons was terminated from drug court in January 2009. Three months later, she was

found guilty of the original four charges after a stipulated facts trial.

       Ms. Ammons was placed in removal proceedings in 2011. For reasons that are

unclear, the proceedings were terminated and Ms. Ammons was released from

immigration custody. Despite this favorable outcome, it appears Ms. Ammons spent most

of her time since 2011 in custody for various criminal offenses.

       In 2015, Ms. Ammons was back in immigration custody. At this point, she

received a psychological examination. The purpose of the examination was to explore

Ms. Ammons's competence to represent herself in immigration court. The examiner

found Ms. Ammons to be competent, but an immigration judge disagreed. In a brief,

written order, the immigration judge declared Ms. Ammons incompetent for purposes of

self-representation and appointed legal counsel. Removal proceedings were then

reopened in July 2015. In September, Ms. Ammons received legal assistance to explore

post-conviction relief.

       On March 14, 2016, Ms. Ammons filed a CrR 7.8(b) motion in Okanogan County

Superior Court to vacate the drug court agreement and her 2009 judgment and sentence.

Ms. Ammons relied on Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d

284 (2010), RCW 10.73.100(6), In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d



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91,351 P.3d 138 (2015), CrR 4.2, CrR 7.8(b)(l), RCW 10.40.200, and equitable tolling

to support her motion.

       The trial court granted Ms. Ammons's motion. The court found Padilla and

RCW 10.40.200 inapplicable because there was no guilty plea. However, the court

determined Ms. Ammons was entitled to relief under CrR 7.8(b)(l). The court reasoned

there had been a mutual mistake of factwhen Ms. Ammons entered into drug court and

waived her rights. Given this circumstance, "fairness and equity" warranted the

application of CrR 7.8(b)(5). Clerk's Papers (CP) at 12. The trial court also found Ms.

Ammons's delay in filing for post-conviction relief was excused by equitable tolling,

given Ms. Ammons's struggles with competency and lack of legal counsel. As a result of

the trial court's ruling, the drug court agreement, convictions, and judgment and sentence

were vacated, but the original charges were not dismissed. The State appeals.

                                        ANALYSIS

       The dispositive issue in this case is timing. Under RCW 10.73.090, any request

for post-conviction relief (other than a direct appeal) must be filed within one year after a

judgment becomes final. Ms. Ammons's judgment became final in 2009. But no motion

was filed until 2016. The only way Ms. Ammons could avoid having her motion

dismissed as untimely was if she could establish equitable tolling or an exception to the



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State v. Ammons


one-year time bar under RCW 10.73.100. In re Pers. Restraint ofBonds, 165 Wn.2d 135,

196 P.3d 672 (2008). As discussed below, neither applies.

Equitable tolling

       Equitable tolling "' permits a court to allow an action to proceed when justice

requires it, even though a statutory time period has nominally elapsed.'" State v.

Robinson, 104 Wn. App. 657, 667, 17 P.3d 653 (2001) (quoting State v. Duvall, 86 Wn.

App. 871, 874, 940 P.2d 671 (1997)). We review legal issues regarding equitable tolling

de novo. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). As the party seeking

relief, Ms. Ammons bears the burden of establishing the applicability of equitable tolling.

Bonds, 165 Wn.2d at 144.

       Because the law already permits a variety of methods for challenging wrongful

convictions, equitable tolling has a very narrow application in the criminal context. In re

Pers. Restraint of Haghighi, 178 Wn.2d 435,448,309 P.3d 459 (2013). One of the

elements required for a successful claim of equitable tolling is diligence. Id. at 447;

Bonds, 165 Wn.2d at 141. To show diligence, a litigant must demonstrate they sought

relief promptly upon learning the basis for doing so. At most, the one-year statutory

deadline for seeking post-conviction relief will be tolled up to the point in time when a

litigant first discovered the issue forming the basis for relief. State v. Little/air, 112 Wn.


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State v. Ammons


App. 749, 762-63, 51 P.3d 116 (2002).

       Division Two's decision in Little/air provides an example of how a post-

conviction litigant claiming inadequate immigration advice might establish diligence and

equitable tolling. Mr. Littlefair is Canadian. When he pleaded guilty to manufacturing

marijuana, he was not advised of possible immigration consequences as required by

RCW 10.40.200. Mr. Littlefair did not learn about the immigration consequences until he

was served with a notice of removal approximately two years after his plea. Less than

one year after receiving this notice, Mr. Littlefair filed for post-conviction relief. In a

divided ruling, Division Two held Mr. Littlefair met the diligence requirement of

equitable tolling. Little/air, 112 Wn. App. at 769.

       Ms. Ammons's case compares unfavorably to Little/air. Unlike what happened in

Little/air, neither the court nor defense counsel failed to provide Ms. Ammons with

statutorily required immigration advice. Because Ms. Ammons never pleaded guilty, no

notice was required under RCW 10.40.200. 2 In addition, the record does not establish

Ms. Ammons filed for relief within one year after learning about the immigration




       2
         In addition, it cannot fairly be said that defense counsel was ineffective in failing
to discuss immigration consequences with Ms. Ammons at the time she signed the drug
court agreement. At that point in time, there was no reason to believe Ms. Ammons was
not a U.S. citizen.

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consequences of her case. Ms. Ammons discovered she was not a U.S. citizen while still

participating in the drug court proceedings. Once her status became known, Ms.

Ammons's attorney was aware of potential immigration consequences. Nothing in the

record indicates Ms. Ammons's attorney failed to share this information with her.

Accordingly, to the extent Ms. Ammons was eligible to challenge her drug court

agreement on the basis of mutual mistake, she held all the necessary information prior to

her stipulated facts trial and convictions.

       Ms. Ammons protests that she should be excused from failing to seek relief earlier

due to incompetence. However, the trial court specifically found Ms. Ammons competent

during her drug court participation. No error has been assigned to this finding. While

Ms. Ammons was subsequently found incompetent for purposes of self-representation by

an immigration judge in 2015, 3 nothing in the record indicates when Ms. Ammons lost

competence, or why she was incapable of challenging the validity of her drug court

agreement during the original trial process. 4




       3
         Although not briefed by the parties, this appears to be a heightened standard of
competence. See CP at 148.
       4
         Any suggestion that Ms. Ammons was suffering from long-term incompetence is
belied by her 2015 psychological evaluation that notes during a 2011 mental health
assessment Ms. Ammons was "reported to have a Global Assessment of Functioning (GAF)
score of 70, which suggests [she] was functioning fairly well overall." CP at 149.

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           In short, the facts produced by Ms. Ammons fail to demonstrate the diligence

required for equitable tolling. Ms. Ammons's own declaration reveals the gaps in her

proof. Ms. Ammons's declaration sets forth her personal history and the circumstances

leading up to her motion for post-conviction relief. The declaration is lucid and does not

suggest any lack of understanding or memory problems. In the declaration, Ms. Ammons

does not indicate she delayed filing for post-conviction relief because of incompetence.

Instead, she states the delay was because she lacked funds to hire private counsel. This

all too common obstacle is not a sufficient basis for the exceptional remedy of equitable

tolling.

RCW 10. 73.100

           Without equitable tolling, the only possible basis for affirming the trial court

would be if Ms. Ammons's case fell under one ofRCW 10.73.IOO's exceptions to the

one-year post-conviction time limit. Ms. Ammons bears the burden on this issue. See In

re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003).

       In her briefing to this court, Ms. Ammons does not argue for application of any of

the exceptions listed in RCW 10.73.100. However, during oral argument, counsel

proposed that RCW 10.73.100(6) excuses Ms. Ammons's delay in seeking relief because

of the significant change in the law wrought by Padilla v. Kentucky and made retroactive


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State v. Ammons


to final convictions under In re Personal Restraint of Yung-Cheng Tsai. Like the trial

court, we find Padilla and Tsai inapplicable.

       Our analysis is guided primarily by Tsai. That case addressed an attorney's duty to

advise clients of adverse''immigration consequences in the context of guilty pleas. Tsai

acknowledged that defense attorneys in Washington have long known of their plea related

immigration obligations under RCW 10.40.200. However, prior to the U.S. Supreme

Court's decision in Padilla, Washington courts had not recognized that an attorney's

failure to abide by RCW 10.40.200 could constitute a constitutional deficiency, justifying

relief from conviction. Tsai, 183 Wn.2d at 103. Given the disconnect between a lawyer's

well known duties and relief available to criminal defendants, Tsai held that the avenue

for relief announced by the U.S. Supreme Court in Padilla would be applied retroactively

to post-conviction cases pursuant to RCW 10.73.100(6).

       Tsai only extended RCW 10.73.090's one-year filing deadline because

Washington had already required attorneys to provide immigration advice in the guilty

plea context. Given the State of Washington's unique statutory provision, Tsai

distinguished the U.S. Supreme Court's decision in Chaidez v. United States, 568 U.S.

342, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), which held Padilla created a new rule of

federal constitutional procedure and was not retroactive to already final cases.


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State v. Ammons


       Because this case does not involve a guilty plea, it is governed by the U.S.

Supreme Court's retroactivity analysis in Chaidez, not Tsai. At best, Ms. Ammons might

be heard to argue that Padilla, together with Tsai, recognized a new rule for

constitutionally effective assistance of counsel that requires pursuit of immigration

friendly options for noncitizen clients. But if that were true, any such rule would not

apply retroactively to pre-Padilla/Tsai cases such as Ms. Ammons's. There is no statute

similar to RCW 10.40.200 directing defense attorneys to advocate for immigration

friendly outcomes in criminal cases. Accordingly, to the extent Tsai and Padilla can be

read as recognizing new constitutional duties for defense counsel, Chaidez prohibits

retroactive enforcement under RCW 10.73.100(6). See In re Pers. Restraint of Gentry,

179 Wn.2d 614, 626, 316 P.3d 1020 (2014) (retroactivity under RCW 10.73.100(6)

generally governed by federal standard).

                                     CONCLUSION

       The equities in Ms. Ammons's case are strong. Regardless of Ms. Ammons's

criminal record, it would appear unjust for Ms. Ammons to be deported simply because

an attorney failed to properly process her adoption papers. If Padilla can provide relief to

criminal defendants who are denied adequate immigration advice, it would seem babies

who have been involuntarily brought into this country for adoption should also be entitled



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to some sort of recourse for ineffective immigration assistance. But whatever remedy can

or should exist does not lie here. The trial court's order to vacate is reversed. Ms.

Ammons' s motion to not award appellate costs is granted.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                         C2
                                          Pennell, J.
                                                          _Q___Q·~
WE CONCUR:




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