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                                                                           Supreme CourtA-Cierk

                    ...~_,......,COURT OF THE STATE OF WASHINGTON


CHRISTOPHER PIRIS,                    )
                                      )                   No. 91567-9
                    Petitioner,       )
                                      )
      v.                              )                   EnBanc
                                      )
ALFRED KITCHING and JANE DOE          )
KITCHING, husband and wife and their  )
marital community; SOCIETY OF         )
COUNSEL REPRESENTING ACCUSED )
PERSONS (SCRAP); ERIC NIELSEN and )
JANE DOE NIELSEN, husband and wife )
and their marital community; NIELSEN, )
BROMAN & KOCH P.L.L.C.; and           )
KING COUNTY,                          )
                                      )
                    Respondents.      )
_________________________)                                Filed       JUL 0 7 2016


       JOHNSON, J.-This case asks us to decide whether the "actual innocence"

element of a criminal malpractice' claim against a trial attorney, an appellate

attorney, and King County through its agency, the Department of Public Defense,

applies to the facts of this case to bar the action. The complaint here alleges


       1
         "Criminal malpractice" is a phrase that has been widely used "to denote 'legal
malpractice in the course of defending a [person] accused of crime."' Ang v. Martin, 154 Wn.2d
477,482 n.1, 114 P.3d 637 (2005) (quoting Otto M. K.aus & Ronald E. Mallen, The Misguiding
Hand of Counsel-Reflections on "Criminal Malpractice," 21 UCLA L. REv. 1191, 1191 n.2
(1974)).
Piris v. Kitching, et ux., et al., No. 91567-9


negligence based on the failure to schedule a resentencing hearing after the Court

of Appeals remanded, and asserts that the defendant served more prison time than

he otherwise would have had he been promptly resentenced. In this case, we hold

that actual innocence is a necessary requirement to pursue the criminal malpractice

claim and that no exception applies. We affirm the Court of Appeals, upholding the

trial court's grant of summary judgment of dismissal in favor of all respondents.

                              FACTS AND PROCEDURAL HISTORY

        Rape of a child in the first degree is a class A felony carrying a maximum

term of confinement of life imprisonment. Christopher Piris was charged with

three counts of first degree rape of a child, which occurred between September 27,

1990, and September 27, 1993. Piris pleaded guilty to two of those counts. The

rape charges arose out oftwo separate incidents that occurred when Piris (who was

between 11 and 13 years old at the time) had sexual intercourse with his

stepbrother (who was then between 9 and 11 years old). Although the rapes

occurred between 1990 and 1993 when Piris was a minor, he was charged in 1997

when he was 19 years old and in 1998 pleaded guilty to two counts of first degree

rape of a child.

        On May 14, 1999, Judge Charles Mertel ofthe King County Superior Court

sentenced Piris to 159 months of imprisonment-the bottom of the standard

sentencing range of 159 to 211 months-which was calculated using an offender

                                                 2
Piris v. Kitching, et ux., eta/., No. 91567-9


score of seven. At the sentencing hearing, Judge Mertel stated that although he did

not find the facts justified an exceptional sentence downward, he was "going to

sentence [Piris] at the bottom of the standard range[,] which is ... 159 months."

Clerk's Papers (CP) at 69. Alfred Kitching, an attorney with Society of Counsel

Representing Accused Persons (SCRAP) (collectively Kitching), represented Piris

at the trial court.

        On appeal, Eric Nielsen, of the law firm Nielsen, Broman & Koch PLLC,

represented Piris and argued that the trial court incorrectly calculated Piris's

offender score. Division One of the Court of Appeals agreed in an unpublished

opinion, finding that Piris should have been sentenced with an offender score of 6,

rather than 7. This score would have resulted in a standard range sentence of 146 to

194 months, rather than 159 to 211 months. The court vacated Piris's sentence and

remanded for resentencing. That order was filed on February 14, 2000, and the

mandate issued on April 7, 2000.

        The Court of Appeals sent a copy of the opinion to both Nielsen and Piris.

Nielsen asserted that upon receipt of the opinion, "based on his invariable habit,

custom and practice, he [would have] sent a copy of the opinion to Mr. Piris with a

cover letter explaining the decision." CP at 98. Nielsen also claimed that upon

receipt of the mandate, he wrote to Piris, enclosing the mandate and informing

Piris that he was closing Piris's file. In addition, Nielsen "wrote to King County

                                                3
Piris v. Kitching, et we., et al., No. 91567-9


Office of Public Defense to inform that office of the decision, ... that a

resentencing hearing should be scheduled," and that Piris would need

representation. CP at 99. Nielsen "may also have sent a copy of the decision to

SCRAP and to Mr. Kitching or informed them of the decision." CP at 99. Piris

denies that he heard from Nielsen regarding the reversal of his sentence.

        Piris was not resentenced for another 12 years. On May 7, 2012, Piris

appeared before Judge Timothy Bradshaw (Judge Mertel had since retired) on an

alleged violation of his supervised release terms. Realizing that Piris had never

been resentenced, Judge Bradshaw imposed a sentence of 146 months for the two

counts of rape of a child in the first degree. While this sentence was at the bottom

of the corrected standard sentencing range, the record does not indicate the judge's

reasoning for choosing this term of confinement. By the time Piris was

resentenced, he alleged he had served all159 months of his original term of

imprisonment.

        In March 2013, Piris filed this legal malpractice action against Kitching and

Nielsen. He later amended his complaint to include King County. Piris alleged that

due to his attorneys' negligence, he was incarcerated for 13 months longer than his

sentence allowed. The defendants all moved for summary judgment, which the

superior court granted, stating, "The basis for the dismissal is the 'actual

innocence' requirement as set out in Ang v. Martin, 154 Wn.2d 477[, 114 P.3d

                                                 4
Piris v. Kitching, et ux., et al., No. 91567-9


637] (2005)." CP at 249. The court denied Piris's motion for reconsideration, and

Piris timely appealed.

        In a published opinion, Division One of the Court of Appeals affirmed,

holding that Piris had to prove he was actually innocent of the underlying criminal

charges. The court held that he could not make such a showing "because he

pleaded guilty to two charges and he does not claim to be innocent." Piris v.

Kitching, 186 Wn. App. 265, 280, 345 P.3d 13 (2015). Piris petitioned this court,

and we granted review. Piris v. Kitching, 183 Wn.2d 1017, 355 P.3d 1153 (2015).

                                             ANALYSIS

        The Court of Appeals affirmed summary judgment for the defendants. We

review an order granting summary judgment de novo, "'taking all facts and

inferences in the light most favorable to the nonmoving party."' Jackowski v.

Borchelt, 174 Wn.2d 720, 729, 278 P.3d 1100 (20 12) (quoting Biggers v. City of

Bainbridge Island, 162 Wn.2d 683,693, 169 P.3d 14 (2007)). Summary judgment

is appropriate where the moving party shows that "there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law." CR 56(c). To establish a claim for legal malpractice, generally, a plaintiff

must prove

        (l) [t]he existence of an attorney-client relationship which gives rise
        to a duty of care on the part of the attorney to the client; (2) an act or
        omission by the attorney in breach of the duty of care; (3) damage to

                                                 5
Piris v. Kitching, et ux., et al., No. 91567-9


        the client; and (4) proximate causation between the attorney's breach
        of the duty and the damage incurred.

Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992).

        A plaintiff also bears the burden of proving two additional elements

concerning proximate cause when alleging criminal malpractice. First, as a

prerequisite, the plaintiff must have obtained postconviction relief. Second, the

plaintiff must prove actual innocence of the underlying criminal charge by a

preponderance of the evidence. At issue here is the actual innocence requirement.

        We addressed this requirement in the context of a criminal malpractice case

in Ang. In that case, the Angs were a married couple indicted on 18 criminal counts

related to Social Security fraud. They hired two defense attorneys for trial. Before

trial, the attorneys negotiated a plea bargain, which the Angs rejected, and the case

proceeded to a jury trial. Five days into trial, the Angs' attorneys recommended a

second plea deal. The Angs viewed this plea agreement as the least desirable. Mr.

Ang "was allegedly told that Mrs. Ang could face sexual assault in prison," which

convinced the couple to take the agreement offered during trial and plead guilty to

2 of the 18 counts. Ang, 154 Wn.2d at 480. The Angs sought an outside opinion

from another attorney, who concluded that the government failed to meet its

burden of proof and that the plea agreement the Angs accepted provided them no

material benefit. Through another attorney, the Angs then successfully moved to


                                                 6
Piris v. Kitching, et we., et al., No. 91567-9


withdraw their pleas (which the judge had not formally accepted) and the matter

moved to a bench trial. At the new trial, the government offered yet another plea

agreement, which was rejected, and the Angs were acquitted on alll8 counts. The

Angs sued their former attorneys, claiming malpractice, and the case went to trial

before a jury. The jury found that the Angs failed to prove by a preponderance of

the evidence that they were innocent of all criminal charges against them. The

Angs appealed.

        We held that for a plaintiff to bring a malpractice action against a criminal

defense attorney, he or she must establish actual innocence of the underlying

charge by a preponderance ofthe evidence. We reasoned that for legal causation to

satisfy proximate cause, the actual innocence requirement was rooted in public

policy: "To determine whether the cause in fact ... should also be deemed the

legal cause of [plaintiffs] harm, a court may consider, among other things, the

public policy implications of holding the defendant liable." Ang, 154 Wn.2d at 482

(citingHartleyv. State, 103 Wn.2d 768,779,698 P.2d 77 (1985)). We identified

five factors of public policy rationale that mandated the actual innocence

requirement in criminal malpractice cases: (1) prohibiting criminals from

benefitting from their own bad act, (2) maintaining respect for the criminal justice

system, (3) removing the harmful, chilling effect on the defense bar, (4) preventing

suits from criminals who may be guilty but could have gotten a better deal, and (5)

                                                 7
Piris v. Kitching, et ux., et al., No. 91567-9


preventing a flood of nuisance litigation. Ang, 154 Wn.2d at 485. We found that

actual innocence is critical to a criminal malpractice claim and that "[u]nless

criminal malpractice plaintiffs can prove by a preponderance of the evidence their

actual innocence of the charges, their own bad acts, not the alleged negligence of

defense counsel, should be regarded as the cause in fact of their harm." Ang, 154

Wn.2d at 485. These policy concerns still serve as the underpinning ofthe actual

innocence requirement.

        Piris does not ask us to overrule Ang, but asks us instead to recognize and

apply an exception to the actual innocence requirement that was crafted in Powell

v. Associated Counsel for the Accused, 125 Wn. App. 773, 106 P.3d 271 (2005)

(Powell 1), and Powell v. Associated Counsel for the Accused, 131 Wn. App. 810,

129 P .3d 831 (2006) (Powell II) (collectively Powell). While we do recognize the

extremely narrow circumstances supporting the Powell exception, we find it

inapplicable here. In Powell, Clint Powell pleaded guilty to a gross misdemeanor

(solicitation to deliver a material in lieu of a controlled substance), which carried a

maximum sentence of 12 months. Evidently, no one recognized this, and the trial

court sentenced Powell for a class C felony and to 38.25 months of confinement.

Once Powell discovered the error, he filed a personal restraint petition, which was

granted, and he was resentenced. Powell served over 20 months in prison by the

time he was released.

                                                 8
Piris v. Kitching, et ux., et al., No. 91567-9


       Powell sued his criminal defense attorney for legal malpractice and claimed

damages for the time he served beyond an allowable 12-month gross misdemeanor

conviction sentence. The court's decision centered on the fact that "Powell ...

served substantially more time than the trial court was authorized to impose for a

gross misdemeanor." Powell I, 125 Wn. App. at 777 (emphasis added). The court

found that "Powell's situation is closer to that of an innocent person wrongfully

convicted than of a guilty person attempting to take advantage of his own

wrongdoing." Powell I, 125 Wn. App. at 778. Powell's unauthorized felony

sentence and his defense attorney's failure exhibited a "nexus between the

malpractice and palpable harm ... sufficient to warrant a civil action." Powell I,

125 Wn. App. at 778. The Court of Appeals concluded that the policy

considerations Ang and other cases discussed did not apply to Powell's case. As a

result, the court adopted "a very limited exception to the rule requiring proof of

actual innocence in a legal malpractice case stemming from a criminal matter"

where the trial court imposes a sentence they had no authority to order. Powell II,

131 Wn. App. at 815.

        Here, Piris urges that his case is indistinguishable from Powell. He argues

that the Powell exception dispenses the actual innocence requirement when a

criminal malpractice plaintiff alleges malpractice only in sentencing. Piris

emphasizes that the public policy considerations underpinning our decision in Ang

                                                 9
Piris v. Kitching, et ux., et al., No. 91567-9


do not apply to malpractice in sentencing, and that there are no other sound policy

reasons for requiring a malpractice plaintiffto show actual innocence when

alleging sentencing errors.

        Nielsen and Kitching counter that Ang controls and requires dismissal. They

describe Piris' s case as an example of a criminal defendant bringing a malpractice

claim against his former attorneys because he "could have gotten a better deal."

Resp't Nielsen's Suppl. Br. at 7, 12; Suppl. Br. ofResp'ts SCRAP & Kitching at

14. This claim is the very type of case the actual innocence requirement seeks to

avoid. Nielsen argues that the exception in Powell is limited to malpractice

resulting in an illegal sentence and that extending Powell's narrow exception to

other sentencing errors would undermine the public policies supporting the actual

innocence requirement. Kitching, on the other hand, urges this court to go so far as

to overrule Powell. He argues that it contradicts Ang, creates uncertainty, and could

quickly become an exception that swallows the rule, thereby undermining the

policies supported by the actual innocence requirement.

        In the alternative, both Nielsen and Kitching argue that even if we embrace

the reasoning in Powell, we should affirm the lower courts because Piris's case is

distinguishable. Nielsen and Kitching point to the fact that Piris's original159-

month sentence was within the standard sentencing range of the corrected offender

score as well as the statutory maximum oflife imprisonment. See CP at 127 (2012

                                                 10
Piris v. Kitching, et ux., et al., No. 91567-9


judgment and sentence), at 56 (1999 judgment and sentence).

        As the Court of Appeals accurately noted, "The sentencing error in this case

is qualitatively dissimilar to the error in Powell." Piris, 186 Wn. App. at 276. Both

ofPiris's sentences were within the court's authority. Piris's underlying conviction

for first degree rape of a child was unaffected, and the later sentence reduction-

even if the actual time served was more-was within the court's authority. This

brings us exactly under the reasoning and policy considerations of Ang. Whatever

sentence was imposed or served is based on Piris' s conviction, and any sentencing

modification remains within the court's authority and discretion to impose. While

Judge Mertel did indicate an intent to sentence Piris at the bottom of the range at

the original sentencing, it is too speculative to conclude he would have imposed

anything less if provided the correct score. Our conclusion would be no different

had, at resentencing, new defense counsel been successful in advocating for an

exceptional downward sentence or if Judge Mertel had indicated that at the original

sentence, a downward sentence might have been imposed. A claim for criminal

malpractice carmot rise and fall based on what might have happened.

        Here, if we allowed the civil case to proceed, we would need to arguably

overrule Ang and allow Piris to benefit based essentially on his own criminal

conduct. While a certain portion of the blame may understandably be aimed at his

defense counsel for failing to follow through on scheduling resentencing, both of

                                                 11
Piris v. Kitching, et ux., et al., No. 91567-9


Piris's sentences were the natural result of the crime to which he pleaded guilty.

The maximum term for first degree rape of a child is life in prison. Piris pleaded

guilty to two counts of this crime. Despite being given two different standard

ranges for his crime (with the latter resulting in a slightly shorter sentence), his

criminal acts naturally produced both sentences.

        We find that the public policy concerns recognized in Ang require a plaintiff

to prove actual innocence of an alleged crime when pursuing a criminal

malpractice claim. Because any term of confinement Piris served was within the

broad authority of the trial court, the argument for a Powell exception is

inapplicable here. We need not overrule Powell but note it involved a unique and

narrow set of circumstances where defense counsel and the court were evidently

unaware of the class or level of crime to which Powell was pleading guilty. We

expect defense counsel to know the level of crime for which a client is being

sentenced. That circumstance in Powell is not present in Piris's case before us. We




                                                 12
Piris v. Kitching, et ux., et al., No. 91567-9


affirm the Court of Appeals.




WE CONCUR:




-~J!~-~·­

_£/d/4-£9



                                                 13
Piris v. Kitching, et ux., et al.




                                    No. 91567-9




       STEPHENS, J. (dissenting)-Christopher Piris successfully obtained post-

conviction relief from a miscalculated sentence.     But due to alleged attorney

negligence, he was not timely resentenced and he spent more time imprisoned than

his corrected sentence authorized. The majority holds that Piris cannot pursue

malpractice claims against his defense attorneys unless he proves he is actually

innocent of the underlying charges. I disagree. When a client wins postconviction

relief for resentencing and attorney negligence results in the client's excessive

imprisonment because the client did not timely receive the benefit of resentencing,

it is no excuse to say that the client was subject to some imprisonment. Extending

the "actual innocence rule" to the unique circumstances of this case serves only to

perpetuate an injustice. I respectfully dissent.

             The Policies Underlying the Actual Innocence Rule Are Not
                             Implicated in This Case

       The majority holds that "the public policy concerns recognized in Ang [v.

Martin, 154 Wn.2d 477, 114 P.3d 637 (2005)] require a plaintiff to prove actual
Piris v. Kitching, et ux., et al., 91567-9 (Stephens, J., dissenting)




mnocence of an alleged cnme when pursumg a criminal malpractice claim."

Majority at 12. I would recognize an exception to this rule for the circumstances

presented in this case. The policies the court articulated in Ang are not furthered by

requiring proof of actual innocence when a criminal defendant who receives

postconviction relief from an excessive sentence is unable to benefit from that relief

due to attorney negligence.

       This court in Ang reasoned that proving actual innocence "is essential to

proving proximate causation, both cause in fact and legal causation." 154 Wn.2d at

484. The court explained:

       Unless criminal malpractice plaintiffs can prove by a preponderance of the
       evidence their actual innocence of the charges, their own bad acts, not the
       alleged negligence of defense counsel, should be regarded as the cause in fact
       of their hann. Likewise, if criminal malpractice plaintiffs cannot prove their
       actual innocence nnder the civil standard, they will be unable to establish, in
       light of significant public policy considerations, that the alleged negligence
       of their defense counsel was the legal cause of their harm. Summarizing the
       policy concerns, the Falkner court observed that, "[r]equiring a defendant to
       prove by a preponderance of the evidence that he is innocent of the charges
       against him will prohibit criminals from benefiting from their own bad acts,
       maintain respect for our criminal justice system's procedural protections,
       remove the harmful chilling effect on the defense bar, prevent suits from
       criminals who may be guilty, [but] could have gotten a better deal, and
       prevent a flood of nuisance litigation."

Id. at 485 (alterations in original) (internal quotation marks omitted) (quoting

Falkner v. Foshaug, 108 Wn. App. 113, 123-24, 29 P.3d 771 (2001)).

       Piris's case does not implicate these policy concerns. First, Piris will not

benefit from his own bad acts if he is allowed to proceed with his criminal

malpractice action without proving actual innocence. See id. By pleading guilty,


                                               -2-
Piris v. Kitching, et ux., eta!., 91567-9 (Stephens, J., dissenting)




Piris accepted responsibility for his crimes. He served his time. He is not seeking

damages for the 146 months he spent imprisoned under his lawful sentence. See

Clerk's Papers at 24. When a person has served his full authorized sentence, "[h]is

unlawful restraint beyond that period was not a consequence of his own actions."

Powell v. Associated Counsel for the Accused, 131 Wn. App. 810,814, 129 P.3d 831

(2006). In addition to the Court of Appeals in Powell, courts in other states have

appropriately recognized that there is no windfall to a criminal defendant whose

malpractice claim does not challenge his guilt, but instead seeks redress for an

unlawful sentence. See Jones v. Link, 493 F. Supp. 2d 765, 770 (E.D. Va. 2007)

(holding the actual innocence requirement should not apply when the criminal

malpractice plaintiff alleges his attorney's negligence resulted in a sentencing error,

and noting that the exception would not allow the plaintiff to profit from his crimes

"because plaintiff is still required to serve the legally warranted sentence"); Hilario

v. Reardon, 158 N.H. 56, 960 A.2d 337, 344 (2008) (recognizing an exception to the

actual innocence requirement when the criminal malpractice plaintifflost the benefit

of a plea agreement due to his attorney's unauthorized action, and noting the plaintiff

would not benefit from his criminal conduct because he did not contest his guilt, and

thus was not skirting responsibility for his conduct and its consequences); cf Barker

v. Capotosto, 875 N.W.2d 157, 166 (Iowa 2016) (rejecting the actual innocence

requirement and noting that "while the notion that an individual should not 'profit

from participating in an illegal act' is a good general principle, it is too general to




                                              -3-
Piris v. Kitching, et ux., eta!., 91567-9 (Stephens, J., dissenting)




describe how our legal system actually operates" (citation omitted) (quoting

Humphries v. Detch, 227 W.Va. 627, 712 S.E.2d 795, 800 (2011))).

       Second, refusing to apply the actual innocence requirement m these

circumstances will not undermine respect for the criminal justice system. See Ang,

154 Wn.2d at 485. Piris obtained relief from his unlawful sentence using the

criminal justice system's appeals process. See In re Pers. Restraint ofJohnson, 131
Wn.2d 558, 568-69, 933 P.2d 1019 (1997) (holding a court acts without statutory

authority when it imposes a sentence based on a miscalculated offender score and

the defendant is entitled to resentencing, even if the original score is within the

corrected standard range when there is evidence the trial court meant to impose a

low-end sentence). But an appeal offers no remedy for the harm Piris alleges-the

13 months he served in excess of his corrected sentence because counsel failed to

timely secure resentencing.         Nor does affording him relief compete with or

undermine respect for the criminal justice system. See Powell, 131 Wn. App. at 814
(recognizing criminal justice system provided no "remedy for the harm Powell

suffered by serving eight months longer than the crime required" and malpractice

action did "not discount or compete with the procedural protections afforded by our

criminal justice system"); see also Hilario, 960 A.2d at 344 ('"Postconviction

remedies exist to protect the constitutional rights of criminal defendants, not to

protect negligent defense attorneys."' (quoting Rantz v. Kaufman, 109 P.3d 132, 138

(Colo. 2005))); cf Mashaney v. Bd. ofIndigents' Def Servs., 302 Kan. 625, 355 P.3d

667, 683 (2015) ("'neither the societal interest in punishing only those criminal


                                              -4-
Piris v. Kitching, et ux., et al., 91567-9 (Stephens, J., dissenting)




defendants receiving fair trials nor the availability of [a postconviction relief

proceeding] furthering that interest offers full relief for breach of the personal duty

a lawyer owes a client-the actual interest directly at issue in a professional

negligence case"' (quoting Mashaney v. Ed. ofIndigents' Def Servs., 49 Kan. App.

2d 596, 313 P.3d 64, 86 (2013) (Atcheson, J., dissenting) (ultimately rejecting the

actual innocence requirement for criminal malpractice plaintiffs))). 1

       Allowing Piris to proceed with his malpractice case without respect to whether

he is innocent of the underlying charges in fact enhances respect for the justice

system by underscoring that courts recognize the very real injury that occurs when

a person is deprived of his liberty for longer than his sentence allows. Cf, e.g.,

MacFarlane v. Walter, 179 F.3d 1131, 1141 (9th Cir. 1999) (recognizing that "even

a single extra day of incarceration is of substantial significance for constitutional

purposes"), vacated as moot sub nom. Lehman v. MacFarlane, 529 U.S. 1106, 120

S. Ct. 1959, 146 L. Ed. 2d 790 (2000); Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir.

1991) (recognizing that an imprisoned defendant "loses a significant interest in his

liberty for the period of his sentence" and that confinement can be extended beyond

the original sentence "only with procedures satis:fyi.ng due process"). A central goal

ofWashington's sentencing regime is to ensure that sentences are proportionate and

just. See RCW 9.94A.010(1)-(2). When an individual serves more time than his


        1
        The Kansas Supreme Court extendedMashaney's holding to criminal malpractice
cases predicated on an illegal sentence, finding, "Mashaney's reasoning is equally
applicable" under those circumstances. Garcia v. Ball,_ Kan.___, 363 P.3d 399, 408
(2015).

                                               -5-
Piris v. Kitching, et ux., et al., 91567-9 (Stephens, J., dissenting)




lawfully imposed sentence authorizes, the result offends these principles, and a

remedy should be available. Cf Johnson v. Babcock, 206 Or. App. 217, 136 P.3d

77, 80 (2006) (holding that a criminal malpractice plaintiff who received and served

a legally impermissible sentence and obtained postjudgment relief properly alleged

harm and could proceed in his legal malpractice action; noting that "[i]ndeed, it

seems disrespectful oflegislative choices to deny that plaintiff was harmed when he

received a sentence that exceeded the legal maximum").

       Third, dispensing of the actual innocence requirement in these circumstances

will not have a harmful chilling effect on the defense bar or result in a flood of

nuisance litigation. See Ang, 154 Wn.2d at 485 (third and fifth policy justifications).

As noted, the circumstances of this case are unique and unlikely to occur frequently.

Although both ofPiris's former attorneys complain of a chilling effect and potential

flood of litigation, neither explains how these fears might play out. See Resp't

Nielsen's Suppl. Br. at 12-13; Suppl. Br. ofResp'ts SCRAP & Kitching at 13, 19-

20. Given the nature of Piris's alle.gations, such fears are wholly speculative. See

Powell, 131 Wn. App. at 814 (recognizing the error in Powell's case was unique and

egregious, the court found that "[c]arving a narrow exception to the rule requiring

proof of actual innocence will not dissuade attorneys from pursuing careers in

criminal defense"), 815 ("recognizing a limited exception to the rule requiring proof

of actual innocence should not cause a flood of nuisance litigation" because the

alleged facts were "highly unusual," the alleged attorney error "egregious," and the

result~the    criminal malpractice plaintiff spending a substantially longer term


                                               -6-
Piris v. Kitching, et ux., et al., 91567-9 (Stephens, J., dissenting)




incarcerated than was legally permissible---unlikely "to occur with any frequency");

see also Hilario, 960 A.2d at 344 (finding that a narrow exception to actual

innocence will not hinder the defense bar).

        Nor am I convinced that the criminal defense bar benefits from the de facto

immunity from malpractice liability that applying the actual innocence rule provides

in this circumstance. See Barker, 875 N.W.2d at 167 (noting that while the public

has a strong interest in encouraging a robust defense bar, "it also has an interest in

encouraging competent representation"). Attorneys who serve indigent persons in

other   contexts~for    example, legal aid     attorneys~are     not exempt from potential

malpractice claims, though we recognize the need to encourage pro bono

representation. See id.       And it is sufficient protection against nuisance litigation

that a criminal malpractice plaintiff such as Piris must obtain postconviction relief

and must support his claim with competent testimony as to the standard of care,

breach, causation, and damages. See id. ("[W]e are not persuaded that an actual

innocence requirement is needed to prevent a proliferation of nuisance suits. A

criminal malpractice plaintiff still must obtain relief from the conviction. And unless

the plaintiffs claim is based on standards of care and professionalism understood

and expected by laypersons, the plaintiff will have to retain an expert to go forward."

(internal citations omitted)).

        Considering the burdens Piris undertakes as a legal malpractice plaintiff, there

is no justification to extend the actual innocence rule to the unique circumstances of

this case. Contrary to the majority's insistence that we would need to overrule Ang


                                               -7-
Piris v. Kitching, et ux., et al., 91567-9 (Stephens, J., dissenting)




in order to allow Piris' s case to proceed, we need recognize only that Ang is premised

on policy concerns that are not implicated in these unique circumstances.

       Finally, it is important to recognize that Piris is not arguing he "could have

gotten a better deal." See Ang, 154 Wn.2d at 485. He was entitled to be lawfully

sentenced using his corrected offender score. See In re Pers. Restraint of Goodwin,

146 Wn.2d 861, 50 P.3d 618 (2002). At the end of the day, he served 13 months

more than allowed under the sentence lawfully, albeit belatedly, imposed. There is

no question about what "would have happened" in the absence of the alleged

negligence. See majority at 11. His corrected sentence is definitively his only lawful

sentence, and we need not speculate about the sentence he would have received had

he been timely resentenced. Just as Piris would have no argument had the court on

resentencing imposed the same 159-month sentence originally imposed, he should

be allowed to rely on the fact that the resentencing court instead imposed 146

months. 2

    Proof ofActual Innocence Is Not Necessary to Proof of Causation for Piris 's
                          Criminal Malpractice Claim

       The majority states, "[I]fwe allowed the civil case to proceed, we would need

to arguably overrule Ang and allow Piris to benefit based essentially on his own

criminal conduct. ... [B]oth ofPiris's sentences were the natural result of the crime

       2
         For this reason, I disagree with the majority that the Court of Appeals' decision in
Powell is distinguishable. See majority at 11-12. While a 159-month sentence remained
within the range of possible sentences Piris faced upon resentencing, we know the sentence
he in fact received. His actual146-month sentence confirms that he suffered the harm of
serving more time than his lawful sentence allowed, just as in Powell.

                                               -8-
Piris v. Kitching, et ux., et al., 91567-9 (Stephens, J., dissenting)




to which he pleaded guilty." Majority at 11-12. I disagree for two reasons. First,

as noted, we do not need to overrule Ang to allow Piris to proceed with his criminal

malpractice claim.       We were concerned in Ang with plaintiffs alleging harm

stemming from their attorneys' conduct during the guilt/innocence stage of the trial.

In this case, Piris is alleging harm not at the guilt/innocence phase, or even at the

sentencing phase, but at the phase of proceedings when he was entitled to receive

the benefit of having secured postconviction relief. We therefore need to carve out

only a small exception to Ang' s actual innocence rule to allow Piris to proceed with

his claim.
       Second, by asserting that Piris's sentences were the "natural result" of his

conduct, the majority seems to hold that the underlying criminal conduct was the

sole cause in fact ofPiris serving 13 months more time than his corrected sentence

allowed. This makes little sense under ordinary notions of tort causation. The harm

Piris alleges is the time he spent in prison beyond his lawful sentence; this harm is

not the direct result of his criminal acts, but of the alleged malpractice. See Powell,

131 Wn. App. at 813 (holding because Powell served the maximum sentence, "[t]he

harm caused by his unlawful restraint was not the direct consequence of his own bad

act"); see also Jones, 493 F. Supp. 2d at 770 ("where ... an attorney's failure to

object to a sentencing enhancement resulted in a higher sentence being imposed on

plaintiff, the improper sentence was not the direct result of plaintiffs criminal

behavior, but rather, it was the proximate result of his attorney's negligence"); cf

Mashaney, 355 P.3d at 683-84 (noting that requiring actual innocence to break the


                                               -9-
Piris v. Kitching, et ux., eta!., 91567-9 (Stephens, J., dissenting)




chain of causation '"rests on a rigid application ofbut for causation inconsistent with

general tort law principles"' that allow for superseding causes (quoting Mashaney,

313 P.3d at 86 (Atcheson, J., dissenting)).

       Undoubtedly, Piris's criminal conduct was the "natural cause" of his 146-

month sentence. But the additional 13 months he served on top of his lawful

sentence was proximately caused by his attorneys' alleged negligence in not

ensuring that he was timely resentenced. Piris should not have to prove his actual

innocence as a precondition to seeking damages for these 13 months. From a

practical standpoint, he is in the same position as the plaintiff in Powell; regardless

of whether his excess sentence exceeded a statutory maximum or the confinement

term the court imposed, it was unlawful. He should be entitled to proceed with his

claim and attempt to prove that his harm resulted from his attorneys' negligence.

       I would hold that a criminal malpractice plaintiff whose sentence is vacated

and remanded but who does not timely receive the benefit of resentencing due to

alleged attorney negligence need not prove he is actually innocent of the underlying

criminal conduct to proceed with his criminal malpractice claim. Because the

majority extends the actual innocence rule beyond its justifications in policy or

causation principles, I respectfully dissent.




                                              -10-
Piris v. Kitching, et ux., eta!., 91567-9 (Stephens, J. Dissenting)




                                             -11-
