                                                                                   FILED
                                                                            COURT OF APPEALS
                                                                                 DIVISION H

                                                                          2015 MAY 27 AM 9: 33

                                                                          STATE OF WASHINGTON
                                                                           BY
                                                                                  OE UTY
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II


    STATE OF WASHINGTON,                                                 No. 45569 -2 -II


                                     Respondent,


          v.




    ERIN D. RIEMAN,                                                 UNPUBLISHED OPINION


                                     Appellant.




         LEE, J. — Erin D. Rieman appeals the trial court' s denial of his CrR 7. 8 motion to withdraw


his guilty plea, arguing that he is entitled to relief because newly discovered evidence shows that

his plea was involuntary and because he received ineffective assistance of counsel from the

attorney who filed his motion to withdraw. We convert his appeal to a personal restraint petition

and deny Rieman' s claims as untimely and without merit.

                                                   FACTS


         On October 20, 2009, the State charged Rieman, as a principal or an accomplice, with one


count of second degree murder with aggravating factors, a deadly weapon sentence enhancement,

and    first degree theft.      Rieman   was   accused   of   murdering John Adkins.      After extended


negotiations, Rieman agreed to enter an Alford plea 1 to an amended charge of first degree




1
    North Carolina   v.   Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).
No. 45569 -2 -II



manslaughter with the aggravating factor that he used his position of trust, confidence, or fiduciary

responsibility to facilitate the offense.

             During the plea hearing, the State explained that the " tremendous amount of circumstantial

evidence" in the case was tied together by a statement from codefendant Walter Bremmer, who

was on a fishing vessel with Adkins and Rieman when Adkins died. 2 Verbatim Report of

Proceedings (May 11, 2010) at 5. Defense counsel acknowledged that Bremmer' s statement about

Adkins' death       was central      to Rieman' s      decision to   plead   guilty. Counsel added that an extensive


investigation had       revealed         blood   and   DNA ( deoxyribonucleic acid) evidence attributable to


Rieman and Adkins but not to Bremmer, and that other evidence from the murder scene

corroborated Bremmer' s statement.


             After an extended colloquy in which Rieman assured the trial court that no one had

threatened him and that he was acting of his own free will, Rieman pleaded guilty to the amended

charge and agreed        to   an exceptional sentence of           132   months.   On May 21, 2010, the trial court

sentenced him accordingly. Rieman did not appeal.

             On September 30, 2013, Rieman moved to withdraw his guilty plea and to vacate his

sentence under       CrR 7. 8.      Rieman argued that his plea was involuntary because it was coerced by

threats from Bremmer, his former codefendant. Rieman asserted for the first time that Bremmer


strangled Adkins and then threatened Rieman and his family if Rieman did not " support his story."

Clerk'   s    Papers ( CP)    at   51.   Rieman argued that he could not reveal these facts or threats until


Bremmer' s arrest on an unrelated murder charge in Hawaii.




2 Bremmer apparently received immunity from prosecution in return for his statement.

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No. 45569 -2 -II



        The State moved to strike Rieman' s motion on the ground that it was untimely. Following

a hearing, the trial court agreed and ruled as follows:

        IT IS HEREBY ORDERED that the motion of the defendant to withdraw his guilty
        plea is denied. More than one year has elapsed since the defendant was sentenced.
        The defendant has not made a threshold showing that he meets the requirements for
        withdrawal of plea as listed in CrR 7. 8( b) and RCW 10. 73. 100.


CPat56.


        Rieman moved for reconsideration and argued that the one -year, time limit did not apply

because Bremmer' s arrest in October 2012 constituted newly discovered evidence. The trial court

denied reconsideration.


        Rieman then filed this appeal, arguing that the trial court erred in denying his motion to

withdraw without holding an evidentiary hearing, that the motion was timely because of newly

discovered evidence, and that he received ineffective assistance of counsel from the attorney who

filed the motion. Rieman asserts that we should reverse and remand for a hearing on the merits or

treat this matter as a personal restraint petition.


                                               ANALYSIS


A.      CRR 7. 8 MOTIONS


        Under CrR 7. 8( c)( 2), the superior court must transfer a motion to vacate judgment to this


court unless it determines that the motion is timely filed under RCW 10. 73. 090 and " either (i) the

defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the

motion will require a   factual   hearing." In other words, only if the motion is timely and appears to

have merit or requires fact finding should the superior court retain and hear the motion; in all other

cases, the motion is transferred to this court. State v. Smith, 144 Wn. App. 860, 863, 184 P. 3d 666




                                                      3
No. 45569 -2 -II



 2008).       Under CrR 7. 8(         c)(   2),   the superior court does not have authority to dismiss a CrR 7. 8

motion if it is untimely under RCW 10. 73. 090. Smith, 144 Wn. App. at 863.

           Under RCW 10. 73. 090( 1),                   a collateral attack on a judgment and sentence generally is

timely if filed within one year after the judgment becomes final.3 Rieman' s judgment became final
in 2010,      and   he did    not   file his CrR 7. 8        motion until       2013. See RCW 10. 73. 090( 3)(       a) (   judgment


is final   when     filed   with clerk of         trial court).      Rieman' s CrR 7. 8 motion was not timely under RCW

10. 73. 090, and the trial court should have transferred it to this court for consideration as a personal

restraint petition.          CrR 7. 8( c)(        2).   But, because Rieman invites us to consider his appeal as a


personal restraint petition, we decline to remand for an order complying with CrR 7. 8( c)( 2) and

instead convert this appeal to a personal restraint petition.


B.         NEWLY DISCOVERED EVIDENCE UNDER RCW 10. 73. 100( 1)


           The one -year time limit does not apply to a personal restraint petition if its issues implicate

the exceptions to the time bar in RCW 10. 73. 100. In re Pers. Restraint ofGentry, 179 Wn.2d 614,

624 -25, 316 P. 3d 1020 ( 2014).                   Rieman' s assertion that newly discovered evidence demonstrates

that his   plea was     involuntary          triggers the exception in RCW 10. 73. 100( 1).              This exception entitles


a petitioner    to   relief   if he   establishes        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. '     In re


Pers. Restraint of Brown, 143 Wn.2d 431, 453, 21 P. 3d 687 ( 2001) (                               quoting State v. Williams, 96

Wn.2d 215, 222 -23, 634 P. 2d 868 ( 1981)).




3 The exceptions to the time bar for facially invalid judgments and judgments entered outside the
court' s jurisdiction do not apply here. RCW 10. 73. 090( 1).


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No. 45569 -2 -II



         Rieman argues that Bremmer' s 2012 conviction is newly discovered evidence that entitles

him to   withdraw    his   plea.   See State   v.   Osborne, 102 Wn.2d 87, 97, 684 P. 2d 683 ( 1984) ( coercion


may   render plea   involuntary).      Rieman asserts that he could not reveal the coercion and threats that


led him to   plead   guilty    until   he learned      of   Bremmer'   s conviction.    But this argument does not


satisfy the test for newly discovered evidence because it rests on information that Rieman allegedly

knew at the time ofhis plea; i.e., that he was being threatened by Bremmer. See Brown, 143 Wn.2d

at 453 ( to qualify as newly discovered, evidence must have been discovered since trial and must

not   have been discoverable before trial).                 Thus, the fact that Bremmer' s conviction prompted


Rieman to reveal preexisting coercion does not support Rieman' s claim that newly discovered

evidence shows his plea was involuntary.

C.       INEFFECTIVE ASSISTANCE OF COUNSEL


         Rieman also argues that he received ineffective assistance from the attorney who filed his

motion to withdraw his plea. This issue is timely.

         To show that he received ineffective assistance of counsel, Rieman must demonstrate that


his   counsel' s performance        was   deficient     and    that the   deficiency   was prejudicial.   In re Pers.


Restraint of Crace, 174 Wn.2d 835, 847, 280 P. 3d 1102 ( 2012).                  Rieman complains that in moving

to withdraw his plea, his attorney presented no independent evidence concerning Bremmer' s recent

conviction   in Hawaii.        Rieman also notes that the motion to withdraw contained only a four -

paragraph memorandum, which stated in relevant part:


                Defendant was convicted of manslaughter in the first degree with an
         aggravating factor for the death of his friend and business partner John C. Adkins.
         Defendant asserts that his plea of guilty was an involuntary result of duress and
         coercive threats by Walter Bremmer against the defendant, his girlfriend at the time,




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No. 45569 -2 -II




          his daughter and grandchildren who live in Hawaii. Those threats only ended when
          Bremmer was arrested and convicted of murder in Hawaii.


CPat49.


          Attached to this memorandum was a letter from Rieman stating that Bremmer killed

Adkins and threatened Rieman' s life and the lives of his family if Rieman did not support

Bremmer' s story. Other than the letter, defense counsel presented no substantive facts to support

Rieman' s argument that Bremmer coerced him into entering the plea agreement. Rieman argues

that he   was prejudiced        by   counsel' s   failure to   produce evidence of       Bremmer'       s conviction, " which



tended to support the argument that Mr. Bremmer is violent, that he caused the death of Mr.

Adkins,       and   that he threatened Mr. Rieman in            order   to   cover   up the   crime."    Br. of Appellant at


14.


          In opposing Rieman' s motion to withdraw, the State did not dispute the facts regarding

Bremmer'       s recent arrest and conviction.            The State did dispute the relevance of those facts to

Rieman' s request for relief. We agree with the State that the fact that Bremmer was subsequently

convicted of an unrelated murder does not show that he killed Adkins or that he threatened Rieman


to    cover   up the   crime.    Moreover, even if defense counsel had obtained additional information


supporting the claim that Brenimer coerced Rieman into pleading guilty, that information would

not satisfy the test for newly discovered evidence because Rieman was aware of Bremmer' s

purported threats when he pleaded guilty. The fact of Bremmer' s conviction does not change the

information that Rieman              possessed at    the time     of   his   plea.   Consequently, we see no deficient

performance in counsel' s failure to obtain more information about Bremmer' s conviction or about


his alleged threats and coercion.




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No. 45569 -2 -II



        We deny the petition' s claims as untimely and without merit.

        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.




 We concur:




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