                                                                       FILED
                                                                   JANUARY 23, 2020
                                                               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. 36511-5-III
                                              )
ANTHONY ROBERT COVERT,                        )        UNPUBLISHED OPINION
                                              )
                     Petitioner.              )

       PENNELL, J. — Anthony Covert seeks relief from personal restraint imposed for his

2009 Spokane County convictions after a jury trial of attempted first degree murder, first

degree assault, possession of a stolen firearm, second degree unlawful possession of a

firearm, and two counts of second degree assault. In this successive petition filed more

than one year after the judgment and sentence became final in 2011, Mr. Covert claims he

has newly discovered evidence that his trial counsel gave him ineffective assistance by

failing to inform him of a favorable plea offer from the State. We dismiss the petition on

procedural grounds as time-barred under RCW 10.73.090(1).

                             FACTS AND PROCEDURE

       Anthony Covert was originally charged in November 2008 with two counts of

first degree assault, possession of a stolen firearm, and second degree unlawful possession

of a stolen firearm. Assistant public defender Alan Rossi was assigned to represent Mr.

Covert. In January 2009, the State amended the charges to add attempted first degree

murder and two counts of second degree assault. On April 13, 2009, the deputy prosecutor
No. 36511-5-III
In re Pers. Restraint of Covert


for Mr. Covert’s case, Dale Nagy, e-mailed Mr. Rossi a plea offer to amend the charges to

single counts of first degree assault, second degree assault, possession of a stolen firearm,

and second degree unlawful possession of a stolen firearm, with a recommended standard

range sentence of 200 months. The offer was to remain open until April 17, but it went

unanswered. On April 29, Mr. Nagy sent Mr. Rossi a follow-up e-mail asking for a

response. Mr. Rossi responded that he had not communicated the offer to Mr. Covert.

On May 27, Mr. Nagy again followed up with Mr. Rossi, who stated he believed he had

communicated the offer but would again talk to Mr. Covert to make sure. In his personal

declaration filed with this petition, Mr. Covert states that he turned down the first offer

that Mr. Rossi gave him on the advice of fellow jail inmates who said to not take it

because plea offers get better with time.

       On August 11, 2009, Mr. Rossi sent Mr. Nagy an e-mail requesting a “bottom

line” plea offer. On August 12, Mr. Nagy responded with an offer to amend the charges to

four counts of second degree assault (one count to include a firearm enhancement),

possession of a stolen firearm, second degree unlawful possession of a stolen firearm, and

one currently unfiled count of residential burglary, with a recommended total sentence of

120 months. The offer was to expire on August 21. Mr. Rossi responded that he would

discuss the offer with Mr. Covert.


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In re Pers. Restraint of Covert


       The State’s August 12, 2009, plea offer went unanswered and the case proceeded

to a jury trial on October 14, 2009. Mr. Covert was acquitted on one first degree assault

charge but convicted on all other counts. He received a total 432-month sentence. Mr.

Covert filed a direct appeal and this court affirmed the judgment and sentence. See State

v. Covert, noted at 160 Wn. App. 1019, review denied, 171 Wn.2d 1033, 257 P.3d 664

(2011). The case became final on the date of the appeal mandate—July 27, 2011. Mr.

Covert subsequently filed an unsuccessful first personal restraint petition. See Order

Dismissing Personal Restraint Petition, In re Pers. Restraint of Covert, No. 31011-6-III

(Wash. Ct. App. Feb. 14, 2013).

       On July 26, 2018, Mr. Covert, through counsel, initiated this petition in the

superior court as a CrR 7.8 motion for relief from judgment. Mr. Covert claimed he had

newly discovered evidence that Mr. Rossi gave him ineffective assistance of counsel by

failing to inform him of the State’s August 12, 2009, plea offer. 1




       1
         Mr. Covert also claimed in the alternative that he was entitled to a new
sentencing hearing for the court to consider his youth as a mitigating factor under the
intervening case, State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). He abandoned
that claim after the Washington Supreme Court held in In re Personal Restraint of Light-
Roth, 191 Wn.2d 328, 422 P.3d 444 (2018), that O’Dell was not a significant change in
the law.

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In re Pers. Restraint of Covert


       Mr. Covert explained in a declaration accompanying his motion that, sometime

after August 2015, a fellow prison inmate told him that he had made a public records

request to the prosecutor and learned about plea offers in his case that had not been

communicated to him. Mr. Covert heeded this information and requested the Spokane

County Public Defender’s Office to provide him with all communications in his case

between Mr. Rossi and the prosecution. He received no response. He then requested the

same information from the Spokane County Prosecutor’s Office. In September 2016,

Mr. Covert received records of e-mails between Mr. Nagy and Mr. Rossi showing that

Mr. Nagy had offered a bottom line 120-month plea deal that Mr. Covert says Mr. Rossi

never communicated to him. Mr. Covert states he knew that going to trial was

unpredictable and that he felt it was safer to take a plea offer, but a second offer never

came. He states he certainly would have taken the 120-month deal had he known about it.

Mr. Rossi has not supplied a declaration on the matter.

       The superior court found as a threshold matter that Mr. Covert’s motion was

procedurally time-barred under RCW 10.73.090(1), and ordered it transferred to this court

for consideration as a personal restraint petition. CrR 7.8(c)(2). The superior court

reasoned, in part, that there is no precedent in Washington law for newly discovered

evidence—one of the time bar exemptions under RCW 10.73.100(1)—to serve as a


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In re Pers. Restraint of Covert


gateway for an otherwise time-barred ineffective assistance of counsel claim. The court

determined it lacked authority to declare a new exception to RCW 10.73.090(1), and

suggested that to do so is the province of the legislature. This court opened the file as a

personal restraint petition.

                               TIMELINESS STANDARDS

       Since Mr. Covert filed this petition more than one year after his judgment and

sentence became final in 2011, it is barred as untimely under RCW 10.73.090(1) unless

the judgment is invalid on its face or was entered without competent jurisdiction, or the

petition is based solely on one or more of the six exceptions in RCW 10.73.100. See In re

Pers. Restraint of Adams, 178 Wn.2d 417, 425-27, 309 P.3d 451 (2013) (Claims that do

not fall within the confines of an RCW 10.73.100 exception—or do not fall within the

facial invalidity or lack of jurisdiction exceptions in RCW 10.73.090(1)—are not exempt

from the time bar and will not be considered.). This court will dismiss a successive

petition that does not overcome the one-year time bar. In re Pers. Restraint of Bell,

187 Wn.2d 558, 564, 387 P.3d 719 (2017).

       Newly discovered evidence is grounds for relief in a personal restraint petition if

those facts “in the interest of justice require vacation of the conviction, sentence, or other

order entered in a criminal proceeding.” RAP 16.4(c)(3). But the unlawful restraint


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In re Pers. Restraint of Covert


criteria in RAP 16.4(c) are expressly subject to the restrictions in RCW 10.73.090 and

RCW 10.73.100. RAP 16.4(d). RCW 10.73.100(1) sets forth the time bar exception for

“[n]ewly discovered evidence, if the defendant acted with reasonable diligence in

discovering the evidence and filing the petition or motion[.]” The standard employed

under the rule is the same as that applied to motions for new trial that allege newly

discovered evidence. In re Pers. Restraint of Lord, 123 Wn.2d 296, 319-20, 868 P.2d 835

(1994). Under that test, the defendant must show:

       that the evidence (1) will probably change the result of the trial; (2) was
       discovered since the trial; (3) could not have been discovered before trial by
       the exercise of due diligence; (4) is material; and (5) is not merely
       cumulative or impeaching.

Id. at 320 (quoting State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)).

                                        ANALYSIS

       Mr. Covert contends that RCW 10.97.100(1) excepts his petition from the one-year

time bar in RCW 10.73.090, and the petition should be determined on the merits because

the purported newly discovered evidence establishes that Mr. Rossi was ineffective for

failing to apprise Mr. Covert of the State’s final plea offer. Mr. Covert urges this court to

expansively interpret RCW 10.73.100(1) to include newly discovered evidence of

ineffective assistance of counsel—a concept the Washington Supreme Court identified




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but did not rule on in In re Personal Restraint of Yates, 183 Wn.2d 572, 576, 353 P.3d

1283 (2015).

       The State, on the other hand, contends Mr. Covert’s petition should be dismissed

as untimely because there is no authority for the newly discovered evidence exception to

serve as a gateway to revive an otherwise time-barred ineffective assistance of counsel

claim. We agree, and for the reasons that follow we dismiss Mr. Covert’s petition as time-

barred.

       We first observe well-settled substantive principles that a defendant’s right to

effective counsel extends to plea negotiations. Lafler v. Cooper, 566 U.S. 156, 162-63,

132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012); Missouri v. Frye, 566 U.S. 134, 141-42,

132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). “Effective assistance of counsel includes

assisting the defendant in making an informed decision as to whether to plead guilty or

to proceed to trial.” State v. A.N.J., 168 Wn.2d 91, 111, 225 P.3d 956 (2010). Defense

counsel’s duties include communicating actual offers, discussing tentative plea

negotiations, and discussing the strengths and weaknesses of the defendant’s case so that

the defendant knows what to expect and can make an informed decision on whether to

plead guilty. State v. James, 48 Wn. App. 353, 362, 739 P.2d 1161 (1987).




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In re Pers. Restraint of Covert


       A claim that trial counsel was ineffective for failing to inform the defendant of a

plea offer is appropriately raised in a timely-filed personal restraint petition. But when

such a claim is filed more than one year from when the judgment became final, it will not

be considered because ineffective assistance of counsel does not fall within any time bar

exception listed in chapter 10.73 RCW. In re Pers. Restraint of Adams, 178 Wn.2d at

426-27; see also In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240

(2000).

       Nevertheless, the more precise question presented here—one not raised in Adams

or otherwise resolved in any case brought to our attention—is whether the newly

discovered evidence exception in RCW 10.73.100(1) can serve as a gateway to an

otherwise time-barred claim of ineffective assistance for counsel’s alleged failure to

inform the defendant of a plea offer.

       Initial insight is provided in In re Personal Restraint of Runyan, 121 Wn.2d 432,

853 P.2d 424 (1993), where the Washington Supreme Court upheld the constitutionality

of RCW 10.73.090’s one-year time limit with its six substantial exceptions specified in

RCW 10.73.100. The court explained:

               In addition to preserving the constitutional core of habeas corpus,
       this statute also allows exceptions when later developments bring into
       question the validity of the petitioner’s continuing detention. Exceptions are
       made for circumstances which impact directly on the guilt or innocence of

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In re Pers. Restraint of Covert


       the petitioner, such as the discovery of new evidence, RCW 10.73.100(1), or
       convictions obtained with insufficient evidence, RCW 10.73.100(4). . . .
       These exceptions are broader than is necessary to preserve the narrow
       constitutional scope of habeas relief. The Legislature, of course, is free to
       expand the scope of collateral relief beyond that which is constitutionally
       required, and here it has done so to include situations which affect the
       continued validity and fairness of the petitioner’s incarceration.

Runyan, 121 Wn.2d at 444–45 (emphasis added).

       The language in Runyan emphasized above suggests the newly discovered

evidence exception in RCW 10.73.100(1) is limited to evidence that directly implicates

guilt or innocence, and not to collateral matters such as ineffectiveness claims arising

from plea negotiations. This is consistent with the literal focus of the Williams factors on

new evidence that would likely change the “trial” outcome. Williams, 96 Wn.2d at 223.

       The concurring opinion by Justice Stephens in In re Personal Restraint of Coats,

173 Wn.2d 123, 267 P.3d 324 (2011), is further instructive:

              The one-year time bar in RCW 10.73.090 presupposes that some,
       if not many, meritorious claims will be barred from consideration when
       petitioners fail to raise the claims in a timely manner. Thus, in the vast
       majority of cases, the interests of finality and efficiency that justify the
       one-year time bar will prevail over a petitioner’s interest in having his
       meritorious claim heard. The exceptions listed in RCW 10.73.090 and
       RCW 10.73.100 represent the only situations in which the legislature has
       deemed that finality and efficiency must yield to the interests that weigh
       in favor of considering an untimely claim on its merits.




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Coats, 173 Wn.2d at 169–70 (Stephens, J., concurring). Justice Stephens further observed

that “[u]nder RCW 10.73.100, there is no notion of a claim serving as a gateway for

consideration of other claims that do not fit within one of the enumerated exceptions.”

Id. at 169.

       More recently, in Adams, the Washington Supreme Court cited favorably to the

Coats concurrence’s explanation of the finality principles and scope of RCW 10.73.100,

including that there is no notion for a claim serving as a gateway to consider an otherwise

time-barred claim. In re Pers. Restraint of Adams, 178 Wn.2d at 425-26. This view

coincides with the express language in RCW 10.73.100 that “[t]he time limit specified in

RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more

of the following [six enumerated] grounds[.]”

       Subsequently, in Yates, the Washington Supreme Court declined to squarely

address a claim by the petitioner that newly discovered evidence should serve as a

gateway to seek relief on an otherwise time-barred ineffective assistance claim:

               Yates suggests that we could find that his case falls under the
       “[n]ewly discovered evidence” exception to the one-year time bar,
       RCW 10.73.100(1), if we broadly interpreted this exception to include
       newly discovered evidence relating to the ineffectiveness of trial counsel.
       But even if we were to adopt such a broad interpretation, there is no newly
       discovered evidence involved in Yates’s claim. The only thing “new” here
       is that Yates’s new attorney has a new idea for a claim. That is not newly
       discovered evidence.

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Yates, 183 Wn.2d at 576. The Yates court also declined to create a new exception for

claims involving ineffective assistance of postconviction counsel in capital cases. The

court reasoned that the time bar and its exceptions are creatures of statute and adding

additional exceptions is a matter for the legislature, not the court. Id. at 576-77. After

Yates, we find no Washington case adopting the proposal asserted now by Mr. Covert.

       In view of the above discussion, we reject Mr. Covert’s interpretation that the

time-bar exception in RCW 10.73.100(1) for newly discovered evidence provides a

gateway to consider his otherwise time-barred ineffective assistance of counsel claim. As

did the trial court, we perceive that any expansion of the RCW 10.73.100 exceptions is

the province of the legislature. Accordingly, we do not reach the merits of Mr. Covert’s

claim and must dismiss his successive petition as time-barred under RCW 10.73.090(1)

and In re Personal Restraint of Bell, 187 Wn.2d at 564. 2


       2
          We recognize the potential unfairness to a defendant if trial counsel fails to
convey a State’s plea offer that the defendant would have accepted. A plea offer is
something that only defense counsel would have access to, and failure to convey it
deprives the defendant of available choices. And given that discussions between the
client and defense counsel are privileged, “the prosecution has little or no notice if
something may be amiss and perhaps no capacity to intervene in any event.” Missouri v.
Frye, 566 U.S. at 143. In sum, a defendant’s ability to learn of an uncommunicated plea
offer is inherently difficult. Nevertheless, consistent with the above-discussed finality
principles, timeliness restrictions, and scope of the RCW 10.73.100 exceptions—which
do not include ineffective assistance of counsel—we decline to expansively interpret
RCW 10.73.100(1), as Mr. Covert requests.

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       In so doing, we decline to consider additional documents from Mr. Rossi’s public

defender’s office personnel file from 2015 and 1998-99 that Mr. Covert appends to his

reply brief as purported evidence that Mr. Rossi was performing too incompetently to

have conveyed the State’s final plea offer to him in 1999. As a substantive matter, the

personnel documents relate solely to Mr. Covert’s time-barred ineffective assistance of

counsel theory and we thus do not consider them. This obviates the State’s motion to

strike attachments A and B to the Petitioner’s Reply Brief and references thereto in in the

brief. And because the time bar renders irrelevant any factual issues surrounding Mr.

Rossi’s alleged deficient performance, we thus also reject Mr. Covert’s alternative request

for a superior court reference hearing.

       Finally, we reject Mr. Covert’s contention raised for the first time in his reply

brief that the time bar should be equitably tolled so that his claim can be considered. A

petitioner who seeks to benefit from the equitable tolling doctrine must demonstrate that

the petition was untimely due to bad faith, deception, or false assurances. In re Pers.

Restraint of Bonds, 165 Wn.2d 135, 141-42, 196 P.3d 672 (2008). In any context, the

doctrine is a narrow one “to be used only sparingly and not applicable more generally to

‘garden variety’ claims of neglect.” In re Pers. Restraint of Haghighi, 178 Wn.2d 435,

447-48, 309 P.3d 459 (2013). Mr. Covert does not show that his petition was untimely


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In re Pers. Restraint of Covert


due to bad faith, deception, or false assurances. Assuming arguendo that Mr. Rossi in

fact neglected to convey the State’s offer, Mr. Covert still does not show that the

circumstances justify equitable tolling.

       Mr. Covert’s petition is dismissed as time-barred under RCW 10.73.090(1).

       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.


                                           _________________________________
                                           Pennell, J.

WE CONCUR:



______________________________
Lawrence-Berrey, C.J.



______________________________
Siddoway, J.




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