                                                                             FILED
                                                                          JUNE 20, 2017
                                                                   In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division Ill


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

STATE OF WASHINGTON,                           )
                                               )          No. 34362-6-111
                      Respondent,              )
                                               )
       v.                                      )
                                               )          UNPUBLISHED OPINION
WILLIAM MURRY PORTER,                          )
                                               )
                      Appellant.               )

       SIDDOWAY, J. -     In a fourth collateral attack on his sentence on conviction for

second degree rape, William Porter filed a CrR 7 .8 motion to vacate his amended

judgment and sentence so that he could withdraw his 2003 guilty plea. He claims he was

led to believe he was pleading to a crime with a determinate sentence, and either his plea

was involuntary, because it was based on misinformation, or the State breached the plea

agreement when it moved to amend his sentence to be indeterminate as required by law.

The trial court denied Mr. Porter's motion on the basis that the relief sought was barred

by collateral estoppel or res judicata.

       In this most recent collateral attack, Mr. Porter for the first time provides evidence,

not just argument, that he was excluded from the process whereby his judgment and

sentence was amended to be indeterminate. He argues that because of the lack of notice,

the one-year time limit on collateral relief that has been fatal to his prior personal

restraint petitions never ran.
No. 34362-6-III
State v. Porter


       This court's order dismissing his first and second petitions in 2010 ruled that Mr.

Porter did receive notice of the one-year time limit. Since Mr. Porter did not seek

discretionary review of that determination, it binds him. He is foreclosed from presenting

a better-supported argument, now, that he never received notice of the time limit.

       Mr. Porter's CrR 7.8 motion should have been transferred to this court by the

superior court for consideration as a personal restraint petition, in which case it would

have been dismissed as untimely. The trial court's dismissal was harmless error and is

affirmed.

                     FACTS AND PROCEDURAL BACKGROUND

       On October 2, 2002, William Porter pleaded guilty to second degree rape. At the

hearing at which his guilty plea was accepted, Mr. Porter signed a statement on plea of

guilty acknowledging that under RCW 9.94A.712 his sentence was subject to review by

the Indeterminate Sentence Review Board (Board). The statement he signed disclosed

that the Board could increase his minimum term of confinement if it determined Mr.

Porter more likely than not would commit a sex offense if released from custody.

       The colloquy between the court and counsel during the guilty plea hearing reveals

that indeterminate sentencing under RCW 9.94A.712 was new to counsel and the court,

and that this was one of the first (if not the first) sentences the trial court had discussed

with an offender under the change of law creating indeterminate sentencing for sex

offenses committed on or after September 1, 2001. The court and counsel discussed and

                                               2
No. 34362-6-111
State v. Porter


disclosed to Mr. Porter that he was subject to community custody for life. He was

informed of the standard range sentence for his crime. There was no discussion during

the guilty plea hearing of how the Board might increase his period of incarceration.

      Mr. Porter was sentenced in January 2003. During the sentencing hearing, the

prosecutor described it as a "determinative sentencing," with community custody of

"eighteen to thirty-six months to life." Report of Proceedings (Jan. 31, 2003) at 3. But

Mr. Porter's lawyer described quite clearly how indeterminate sentencing would work.

When given a chance to speak, Mr. Porter expressed no confusion or concern.

      In completing the judgment and sentence, the court sentenced Mr. Porter to a 90-

month period of confinement. It completed the section of the judgment and sentence

form dealing with determinate sentences rather than the section dealing with

indeterminate sentences.

      Two months later, the Department of Corrections (DOC) wrote to the court and

counsel to notify them that changes needed to be made to the judgment and sentence to

reflect the indeterminate sentencing required by RCW 9.94A.712. It concluded with the

following request:

             The Department understands that re-sentencing Mr. Porter would
      involve bringing him back to court and that could take approximately two
      weeks. In the interest of judicial economy, the Department respectfully
      asks this Court to amend the judgement [sic] and sentence in this case. If
      we have not heard from the Court within 30 days of the date of this letter,
      we will refer this matter to the Attorney General's Office for follow-up.



                                            3
No. 34362-6-111
State v. Porter


Clerk's Papers (CP) at 48.

       On April 28, 2003, the State presented a department of the superior court different

from the sentencing court with an order, telephonically approved by Mr. Porter's trial

lawyer, entitled "Order Amend [sic] Judgment and Sentence," which ordered the changes

requested by DOC. CP at 32-33. The court signed the order, which was filed on April

30, 2003. There is no indication in our record that Mr. Porter was present when the order

was signed or that he was even notified of the motion and order.

       ,Years later-in 2009 and 2010-Mr. Porter filed two personal restraint petitions

with this court. In his first, No. 28490-5-111, he contended he was entitled to specific

performance of the original judgment and sentence because the amendment was contrary

to the State's promise to recommend a determinate sentence. He argued he would not

have pleaded guilty if he had been told he could receive an indeterminate sentence.

According to Mr. Porter's petition, he was unaware his sentence was not determinate

until 2008, when he asked about submitting a release address for what he believed was

his impending release-only to find out that his release was not impending. In his second

petition, No. 29117-1-111, he made a related argument that his plea was not voluntary due

to ineffective assistance of counsel.

       In its order dismissing the first and second petitions, this court observed that Mr.

Porter filed them more than a year after the judgment and sentence was filed and they

were untimely under RCW 10.73.090(1) unless the judgment and sentence was invalid on

                                              4
 No. 34362-6-111
 State v. Porter


 its face, the court lacked competent jurisdiction, or the petitions were based solely on one

 or more of the exceptions set forth in RCW 10.73.100(1)-(6). Mr. Porter argued that the

 notice exception (more precisely, a "failure to give notice" exception) to the RCW

 10.73.090 time limit applied, citing State v. Schwab, 141 Wn. App. 85, 91, 167 P.3d 1225

 (2007) ("When a statute requires that a court or DOC notify a defendant of a time bar and

 the notice is not given, this omission creates an exemption to the time bar.") The State

 responded that notice was provided by Mr. Porter's judgment and sentence.

        This court agreed with the State, deciding in its November 15, 2010 order:

        Mr. Porter argues that the order amending the judgment and sentence does
        not contain the same notice. But the order does not amend the notice
        portion of the judgment and sentence. Accordingly, Mr. Porter received
        notice of the one-year rule.

 Order Dismissing Pers. Restraint Petitions, In re Pers. Restraint of Porter, Nos. 28490-5-

 III & 29117-1-111, at 2 (Wash. Ct. App. Nov. 15, 2010). Although Mr. Porter indicated

 an intention to seek discretionary review of this court's dismissal order, he never filed a

. motion for such review. Our Supreme Court dismissed the cause number it had

 established for Mr. Porter's motion as abandoned. See Letter Ruling Dismissing Mot. as

 Abandoned, In re Pers. Restraint of Porter, No. 85409-2 (Wash. Mar. 1, 2011).

        The present appeal arises from a motion filed by Mr. Porter in the superior court

 on March 24, 2016, asking it to allow him to withdraw his guilty plea or to specifically

 enforce the original plea agreement. He acknowledges that the remedy of specific


                                               5
No. 34362-6-III
State v. Porter


performance is "questionable" in light of our Supreme Court's decision in State v.

Barber, 170 Wn.2d 854, 248 P.3d 494 (2011). Br. of Appellant at 11-12. He again

argued in the trial court and argues on appeal that the notice exception to the one-year

time limit applies. This time, for the first time, he supports his argument with a

declaration.

       The trial court denied Mr. Porter's motion, stating in its order, "The new motion

seeks to re-litigate the same issues already addressed by the Court of Appeals in 2010 and

2014. Accordingly, [Mr. Porter's] motion before [the trial] court is dismissed under the

doctrines of collateral estoppel and res judicata." CP at 57-58.

       Mr. Porter appeals.

                                         ANALYSIS

       Mr. Porter makes three assignments of error, which we address in tum.

               Assignment ofError 1: The trial court erred in entering an order
                  amending appellant's judgment and sentence nunc pro tune

       Citing State v. Smissaert, 103 Wn.2d 636,639,694 P.2d 654 (1985), Mr. Porter

argues that the trial court improperly amended his judgment nune pro tune. Smissaert

invalidated a nunc pro tune amendment to a judgment, holding that a nune pro tune order

"is proper only to rectify the record as to acts which did occur, not as to acts which

should have occurred." Id. at 641 (emphasis added).




                                              6
No. 34362-6-III
State v. Porter


       The order amending Mr. Porter's judgment and sentence was not a nunc pro tune

order. It was dated April 28, 2003, and did not purport to reflect anything that had, in

fact, happened at the January sentencing. It addressed only what should have happened.

       Mr. Porter appears to find Smissaert relevant for its discussion of how, when a

defendant waives his right to appeal based on a judicial error in sentencing, correction of

the sentence should reopen the opportunity to appeal the original judgment. Id. at 643.

That reasoning cannot apply here, even by analogy, because any argument that the one-

year time limit on collateral attack was reopened by amendment of Mr. Porter's judgment

and sentence is foreclosed by this court's 2010 order dismissing his first two personal

restraint petitions. Were we writing on a clean slate with the evidence and argument now

presented, a majority of the panel might reach a different conclusion. But the November

15, 2010 order is res judicata on the issue of whether the one-year time limit for collateral

attack ran in January 2004.

         Assignment ofError 2: The State's motion to amend the judgment and
                  sentence violated promises in the plea agreement

       Mr. Porter complained below and complains on appeal that because his prior

collateral attacks have been dismissed as time barred or successive, he has never had a

hearing on the merits of whether he should be allowed to withdraw his guilty plea.

      A motion for relief from judgment under the superior court criminal rule, like a

personal restraint petition, is subject to RCW 10.73.090 and .100. CrR 7.8(b). If such a


                                             7
No. 34362-6-111
State v. Porter


motion or petition is filed more than a year after the judgment and sentence became final,

it is barred as untimely unless the judgment and sentence is invalid on its face, the trial

court lacked competent jurisdiction, or the petition is based solely on one or more of the

exceptions set forth in RCW 10.73.100(1)-(6). See In re Pers. Restraint ofBenavidez,

160 Wn. App. 165, 170,246 P.3d 842 (2011) (addressing timeliness of a petition). Mr.

Porter filed his motion more than one year after the judgment and sentence became final.

       While it is true that Mr. Porter has never had a hearing on the merits of his plea

withdrawal claim, he is not entitled to such a hearing unless his challenge falls within an

exception to the one-year rule. His brief on appeal does not identify any exception that

applies.

                Assignment ofError 3: The trial court erred in dismissing
           appellant's motion for relieffrom judgment on principles of collateral
                                 estoppel and res judicata

       Finally, Mr. Porter argues that the grounds on which the trial court dismissed his

motion were improper because his reasons for seeking to withdraw his plea have never

been addressed on their merits and he has always proceeded pro se. He argues that our

Supreme Court can review his motion on its merits under RAP 16.4(d) and we should

transfer his appeal to that court. Br. of Appellant at 11.

       For a reason unrelated to Mr. Porter's argument, the trial court did abuse its

discretion: it should have assessed timeliness, found the motion untimely, and transferred

it to this court for consideration as a personal restraint petition. CrR 7.8(c)(2).

                                               8
    No. 34362-6-111
    State v. Porter


    Nonetheless, we can affirm the trial court's rejection of a defendant's CrR 7.8 motion on

    any grounds supported by the record. State v. Costich, 152 Wn.2d 463,477, 98 P.3d 795

    (2004).

           Because Mr. Porter's motion is untimely, we are required to dismiss it, even ifwe

    treat it as a personal restraint petition that is also successive. A petition that is both

    untimely and successive must be dismissed as untimely rather than transferred to the

    Supreme Court. In re Pers. Restraint of Bell, 187 Wn.2d 558, 564, 387 P.3d 719 (2017).

           We affirm the trial court's dismissal on the basis of harmless error: had it

    transferred the motion to this court for consideration as a personal restraint petition, we

    would have found it untimely.

           Affirmed.

           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.


                                                           d]Ut>w~~,
                                                        Siddoway, J.

    WE CONCUR:




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