                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                           June 5, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49807-3-II

                                Respondent,

        v.

 LARRY DWAYNE BLACKWELL,                                      UNPUBLISHED OPINION

                                Appellant.

       JOHANSON, P.J. — Larry Dwayne Blackwell appeals the superior court’s order on his CrR

7.8 motion to vacate his 2005 guilty plea. Because the superior court failed to either consider all

of the issues raised in the CrR 7.8 motion or to transfer the remaining issues in the CrR 7.8 motion

to this court under CrR 7.8(c)(2), we remand this matter back to the superior court for further

action consistent with this opinion.

                                              FACTS

                                         I. BACKGROUND

       After being convicted of attempting to elude a pursuing police vehicle, Blackwell was

serving time on a work crew. When Blackwell failed to comply with the work crew schedule, the

State charged him with first degree escape.

       Blackwell pleaded guilty to first degree escape. The superior court entered the judgment

and sentence on May 11, 2005. The judgment and sentence incorrectly stated that Blackwell had

been convicted of first degree escape under RCW 9A.76.100(1) (compounding), rather than RCW

9A.76.110(1) (first degree escape). Blackwell did not appeal from this conviction.
No. 49807-3-II


                                        II. CRR 7.8 MOTION

       In September 2016, more than 11 years after his conviction, Blackwell filed a CrR 7.8

motion to vacate his guilty plea. In this motion, he argued that (1) the one-year time-bar under

RCW 10.73.090 did not apply to his motion because the erroneous reference to RCW 9A.76.100(1)

rendered the judgment and sentence facially invalid, (2) the judgment and sentence was also

facially invalid because first degree escape was not a crime at the time of the offense, (3) he pleaded

guilty to a crime that was not charged in the information, and (4) the guilty plea lacked a sufficient

legal and factual basis.

       The superior court ordered the State to respond to Blackwell’s CrR 7.8 motion. In its

response, the State acknowledged the scrivener’s error. But it argued that the elements of the crime

stated in the plea documents were correct.

       On October 7, the superior court entered an order correcting the scrivener’s error. The

October 7 order did not, however, address whether Blackwell’s other arguments were time-barred

or the merits of those arguments.

       On November 7, Blackwell filed a notice of appeal. Then, on November 29, Blackwell

filed a pro se motion for reconsideration of the October 7 order. In the motion for reconsideration,

Blackwell argued, inter alia, that the superior court had failed to address all of the issues he raised

in the CrR 7.8 motion. He asked the superior court to reconsider its decision, to address all of the

issues in his motion, to provide him a copy of the State’s response, and to appoint counsel or allow

him to reply to the response “Before Direct Appeal.” Clerk’s Papers (CP) at 68.

       The superior court entered an order purporting to transfer the motion for reconsideration to

this court for consideration as a personal restraint petition (PRP) under CrR 7.8(c)(2).             A


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No. 49807-3-II


commissioner of this court rejected the CrR 7.8 transfer because the superior court was attempting

to transfer Blackwell’s motion for reconsideration, not a CrR 7.8 motion. In the ruling, the

commissioner stated the superior court needed to either (1) vacate any existing order addressing

the CrR 7.8 motion and transfer the CrR 7.8 motion to this court or (2) rule on the motion for

reconsideration so the appeal of the October 7, 2016 order could proceed.

       In response to our commissioner’s ruling, the superior court entered an order denying the

motion for reconsideration. The order stated,

               The court having considered the motion for reconsideration and objection
       filed by defendant 11-29-2016, and the Division 2 Commissioner[’s ruling]
       rejecting a transfer of the defendant’s motion as a PRP and directing this court to
       enter an order, and this Court having statutory authority to correct a scrivener error
       in a Judgment and Sentence, having done so.
               It is Ordered that the motion for reconsideration is denied.

CP at 75. This order did not address the portion of the CrR 7.8 motion challenging the guilty plea.

Blackwell filed a second notice of appeal challenging the October 7, 2016 ruling.1

                                           ANALYSIS

       Blackwell argues that the superior court erred because (1) the judgment and sentence, when

considered in conjunction with the plea documents, is facially invalid so the CrR 7.8 motion was

not time-barred, and (2) his guilty plea was invalid because he pleaded guilty to not returning to

the work crew, which he characterizes as an alternative, uncharged means of escaping from

custody.2 This matter must be remanded to the superior court.



1
 The notice of appeal refers to an October 6, 2017 order. But that reference is clearly to the
October 7, 2016 order on the CrR 7.8 motion to vacate.
2
  We note that Blackwell does not argue that the superior court erred when it corrected the
scrivener’s error in his judgment and sentence.

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No. 49807-3-II


         The superior court erred when it addressed only the scrivener’s error in the judgment and

sentence and failed to either address all of the issues in the CrR 7.8 motion in its October 7, 2016

order or transfer the remaining issues to this court under CrR 7.8(c)(2). 3 Thus, we remand this

matter back to the superior court for further action consistent with this opinion. On remand, the

superior court must consider the remaining issues in the CrR 7.8 motion and either address those

issues or transfer the motion to this court pursuant to CrR 7.8(c)(2) and State v. Smith, 144 Wn.

App. 860, 864, 184 P.3d 666 (2008).

         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.




                                                   JOHANSON, P.J.
    We concur:



    BJORGEN, J.




    SUTTON, J.




3
 Because the superior court never ruled on the substantive issues raised in the CrR 7.8 motion, we
do not address them on the merits at this time.
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