                                                                        FILED
                                                                    JANUARY 19, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

In the Matter of the Personal Restraint of    )
                                              )         No. 34165-8-111
JOSE LEONEL MENDEZ MONCADA,                   )
                                              )
                      Petitioner.             )
                                              )         PUBLISHED OPINION
                                              )

       KORSMO, J. -    This action came before a panel of this court on the respondent's

motion to modify a commissioner's ruling refusing to strike hearsay from a declaration

filed in support of a personal restraint petition (PRP). In order to provide guidance to

other petitioners, we exercise our discretion under RAP 17 .6(b) to explain our ruling by

published opinion. The motion to modify is granted.

                                          FACTS

      Represented by counsel, Jose Leonel Mendez Moncada brought this current PRP

challenging his convictions for first degree child rape and attempted first degree child

molestation following a jury trial in Yakima County. This court affirmed the convictions

on appeal, but remanded the case for correction of sentencing errors. See State v.

Moncada, noted at 181 Wn. App. 1036 (2014).
No. 34165-8-III
In re PRP ofMoncada


       The current petition alleges newly discovered evidence and ineffective assistance

of counsel. In support of the second allegation, the petition included a declaration filed

by private investigator Allison Taylor. Ms. Taylor related a conversation she and Mr .

. Moncada had with Levi Enriquez. Mr. Enriquez reportedly told them that Mr.

Moncada's trial counsel had retained him as an investigator, but had not asked him to

conduct any investigation. Mr. Moncada filed a declaration that contained the same

information as Ms. Taylor-Mr. Enriquez claimed to have been retained, but was given

nothing to investigate. There is no declaration from either Mr. Enriquez or from trial

counsel, nor is there any indication that either one was asked to file a declaration.

       The petition alleged that counsel conducted no investigation, pointing to the fact

that trial counsel's file reflected no reports other than discovery received from the State

and that the investigator told Mr. Moncada and Ms. Taylor that he had not been asked to

conduct any investigation. The State moved to strike the portions of Moncada's and

Taylor's declarations referencing Enriquez's statements, arguing that they constituted

hearsay, and to strike the corresponding arguments in the brief in support of the PRP. In

response, petitioner argued in part that the declarations could be considered in light of the

decision in In re Personal Restraint Petition ofRuiz-Sanabria, 184 Wn.2d 632, 362 P .3d

758 (2015).




                                              2
No. 34165-8-III
In re PRP of Moncada


       Our commissioner agreed with petitioner's Ruiz-Sanabria argument and denied the

motion to strike. The State then moved to modify the ruling and petitioner responded to

the motion. A panel of judges considered the motion and the response. RAP 17.2(a)(2).

                                        ANALYSIS

       At issue is RAP 16.7(a) and language contained in Ruiz-Sanabria. An

understanding of the case law construction of the rule is necessary to appreciate the issue

presented by the appeal.

       RAP 16.7(a) identifies the contents of a PRP. With emphasis added, RAP

16.7(a)(2) provides:

       Grounds for Relief A statement of (i) the facts upon which the claim of
       unlawful restraint of petitioner is based and the evidence available to
       support the factual allegations, and (ii) why the petitioner's restraint is
       unlawful for one or more of the reasons specified in rule 16.4(c ). Legal
       argument and authorities may be included in the petition, or submitted in a
       separate brief as provided in rule 16.1 O(a).

See 180 Wn.2d 1116-17 (2014 ). 1 At particular issue here is the underscored language.

       This rule is critical to the outcome of most PRPs, making it the subject of prior

decisions. Relief will only be granted in a PRP if there is constitutional error that caused

substantial actual prejudice or if a nonconstitutional error resulted in a fundamental defect

constituting a complete miscarriage of justice. In re Pers. Restraint of Woods, 154 Wn.2d


       1
         The 2014 amendments to the rule struck a former subsection (ii) and renumbered
former subsection (iii), but did not alter the language at issue in subsection (i) that was at
issue in the cases discussed herein.

                                              3
No. 34165-8-III
In re PRP of Moncada


400, 409, 114 P.3d 607 (2005). It is the petitioner's burden to establish this "threshold

requirement." Id. To do so, a PRP must present competent evidence in support of its

claims. In re Pers. Restraint ofRice, 118 Wn.2d 876, 885-86, 828 P .2d 1086, cert.

denied, 506 U.S. 958 (1992). If the facts alleged would potentially entitle the petitioner to

relief, a reference hearing may be ordered to resolve the factual allegations. Id. at 886-87.

In other words, a reference hearing is used to determine the truth of the petition's

allegation; it is not a discovery device to determine if there is available evidence.

        The burden of evidentiary production under this rule was discussed at length in

Rice:

                As for the evidentiary prerequisite, we view it as enabling courts to
        avoid the time and expense of a reference hearing when the petition, though
        facially adequate, has no apparent basis in provable fact. In other words,
        the purpose of a reference hearing is to resolve genuine factual disputes, not
        to determine whether the petition actually has evidence to support his
        allegations. Thus, a mere statement of evidence that the petitioner believes
        will prove his factual allegations is not sufficient. If the petitioner's
        allegations are based on matters outside the existing record, the petition
        must demonstrate that he has competent, admissible evidence to establish
        the facts that entitle him to relief. If the petitioner's evidence is based on
        knowledge in the possession of others, he many not simply state what he
        thinks those others would say, but must present their affidavits or other
        corroborative evidence. The affidavits, in tum, must contain matters to
        which the affiants may competently testify. In short, the petitioner must
        present evidence showing that his factual allegations are based on more
        than speculation, conjecture, or inadmissible hearsay.

Id. at 886 (underscored emphasis added).




                                              4
No. 34165-8-III
In re PRP of Moncada


       The court has consistently applied these evidentiary standards since Rice. E.g., In

re Pers. Restraint of Pirtle, 136 Wn.2d 467,479,965 P.2d 593 (1998) (striking hearsay

from evidence under consideration); In re Pers. Restraint ofLord, 123 Wn.2d 296, 303,

868 P.2d 835 (1994) (reiterating Rice standards).

       Mr. Moncada argues that Ruiz-Sanabria changed these standards. He relies on the

following passage from the opinion:

       The rules applicable to personal restraint petitions do not explicitly require
       that the petitioner submit evidence but rather the petition must identify the
       existence of evidence and where it may be found. See RAP 16.7(a)(2).
       That the rules are not more rigorous in this regard reflects
       acknowledgement that prison inmates face particular difficulties in
       obtaining evidence and court records, especially if they are incarcerated
       outside of Washington.

184 Wn.2d at 641-42.

       At issue in Ruiz-Sanabria were the procedural questions of ( 1) whether the

superior court had provided a sufficient record when it transferred the case to the Court of

Appeals for consideration as a PRP with only a partial record and (2) whether the existing

record provided the Court of Appeals with an adequate basis for dismissing the petition. 2

Id. at 635-36. The court framed the overarching issue before it:

       We take this occasion to clarify the criteria a superior court must consider
       before transferring a postconviction motion to the Court of Appeals, the
       relationship between the rules governing personal restraint petitions and


       2
           Ruiz-Sanabria is a per curiam decision issued without argument. 184 Wn.2d at
635.

                                             5
No. 34165-8-III
In re PRP of Moncada


       evidentiary prerequisites that a petitioner must meet, and when the
       petitioner's allegations may require the court to consult existing court
       records that the petitioner has not produced.

Id. at 636. The court then reiterated the Rice standards and stated its decision:

       But if the petitioner makes specific and material factual allegations within
       the petitioner's knowledge about court proceedings that can be answered by
       the State, the Court of Appeals should require a response that includes the
       relevant court documents. In this instance, remand to the Court of Appeals
       is warranted for reasons explained below.

Id.

       In context, the entire decision concerns when a trial court record must be consulted

by both the trial court and the Court of Appeals, and when those courts must produce the

record in order to evaluate the petition. The quotation on which Mr. Moncada relies is

found in the Ruiz-Sanabria opinion's discussion of whether the Court of Appeals should

have called for a response from the State. The sentence immediately before the quotation

reads: "Factual assertions of what occurred in court proceedings made by petitioners in

support of relief are inherently 'self-serving,' but if the petitioner was present in court

and had knowledge of what occurred, the better course is for the Court of Appeals to

require the State to respond if the factual assertions are material and it disputes those

facts." Id. at 641. This discussion does not involve the type of evidence necessary to

justify a reference hearing; it is concerned with consulting the trial court record when a

petitioner raises a material factual assertion.




                                                  6
No. 34165-8-111
In re PRP of Moncada


       Ruiz-Sanabria did not overrule or modify Rice, a case it expressly relied on to

discuss the meaning of RAP 16.7(a)(2), nor did Ruiz-Sanabria involve the question of

admitting hearsay. Instead, it simply stands for the proposition that when petitioner can

identify existing court records that are significant to consideration of the PRP, the

reviewing court must consider them in some manner, including, if appropriate, having the

State address the allegation in its response. Ruiz-Sanabria did not change the evidentiary

standards for obtaining a reference hearing. 3 Hearsay remains inadmissible under Rice

and is not a basis for granting a reference hearing or other relief.

       Accordingly, we grant respondent's motion to modify the commissioner's ruling

and direct that the hearsay statements be stricken from the materials in our record.




WE CONCUR:




       Lawrence-Berrey, A.CJ                              Pennell, J.
                                      j


       3
        Nothing in this opinion should be read as expressing any view on the merits of
the request for a reference hearing. That question will be answered in the normal course.

                                              7
