FILED
OCT 1,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32963-1-111
Respondent, )
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v. )
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1 HENRY CAMPOS-GONZALEZ, ) UNPUBLISHED OPINION
1 )
i Appellant. )
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1 Brown, J. Henry Campos-Gonzalez appeals the trial court's order denying his
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motion to vacate a guilty plea, but his briefing fails to address that motion. Instead, he
collaterally attacks the underlying and unappealed judgment and sentence. Because the
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I new assignments of error are time-barred and not reviewable on appeal from an order
1 denying a motion to vacate a guilty plea, we affirm his convictions for the underlying
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crimes of possessing cocaine and driving under the influence (DUI).
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FACTS AND PROCEDURAL HISTORY
1 Mr. Campos-Gonzalez pleaded guilty to the underlying crimes. In his plea
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statement, he admitted guilt of the DUI charge but not of the possession charge: "I drove
1 a motor vehicle when I was under the influence of alcohol. My plea to the cocaine is an
Alford plea. I didn't know I had it but I choose to plead guilty anyway." Clerk's Papers
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No. 32963-1-II1
State v. Campos-Gonzalez
(CP) at 13. ML Campos-Gonzales did not timely appeal; therefore, the judgment and
sentence was final on the date it was filed, July 22, 2013. RCW 1O.73.090(3)(a).
On July 22, 2014, Mr. Campos-Gonzalez moved in the Douglas County Superior
Court to vacate his gUilty plea, citing CrR 7.8(b)(5).1 He contended his counsel was
ineffective because he had overstayed his temporary visitor's visa at the time of the plea
and thus, he was no longer legally residing in the United States. He argued his trial
counsel should have known he could not become a legally permanent resident of the
United States if he had been convicted of a controlled substance crime. Based on this
theory, Mr. Campos-Gonzalez asserted his trial counsel gave ineffective assistance in the
plea bargaining process.
On November 20,2014, the superior court denied the motion to vacate the guilty
plea and filed findings of fact and conclusions of law. The court found Mr. Campos-
Gonzalez and his counsel knew Mr. Campos-Gonzalez would be deported ifhe pleaded
guilty to his felony drug charge. Further, the court found defense counsel attempted to
plea bargain the drug felony to a misdemeanor level offense, but the prosecutor rejected
the proposal. Based on these findings, the superior court concluded Mr. Campos-
I "On motion and upon such terms as are just, the court may relieve a party from a
final judgment, order, or proceeding for the following reasons: ... (5) Any other reason
justifying relief from the operation of the judgment." CrR 7.8(b). A CrR 7.8(b)(5)
motion must be made "within a reasonable time." CrR 7.8(b).
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No. 32963-I-III
State v. Campos-Gonzalez
Gonzalez's plea was knowing, voluntary, and intelligent and made with full knowledge
of the deportation consequences. The court concluded his trial counsel provided effective
assistance. This appeal followed.
ANALYSIS
Mr. Campos-Gonzalez appealed from the order denying his motion to vacate the
guilty plea. RAP 2.2(10); RAP 5.2(a). But his appeal does not address the issues raised
and decided in the order denying the motion. He admits "[h]e now challenges the
voluntariness of his plea on different grounds." Appellant's Br. at 4. He now asserts he
should be allowed to withdraw his Alforcf2 plea because the plea to possession of cocaine
lacks a factual basis.
An order denying a CrR 7.8 motion for relief from judgment is appealable as of
right. State v. Gaut, 111 Wn. App. 875, 881,46 P.3d 832 (2002); RAP 2.2(10), (13).
Appellate review is limited to the issues raised by that motion and to the trial court's
exercise of discretion in deciding those issues. Id. See also Bjurstrom v. Campbell, 27
Wn. App. 449, 450-51, 618 P.2d 533 (1980) (solely the propriety of the denial of the
motion, not the impropriety of the underlying judgment, is before the reviewing court)
(review of an order denying a CR 60(b) motion to vacate a judgment). "'[An] unappealed
2 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970).
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No. 32963-I-III
State v. Campos-Gonzalez
. final judgment cannot be restored to an appellate track by means of moving to vacate and
appealing the denial of the motion." Gaul, III Wn. App. at 881.
Mr. Campos-Gonzalez admits he is not challenging the trial court's exercise of
discretion in deciding the motion to vacate the guilty plea, and he abandons the issues he
raised in that motion. He incorrectly attempts to restart the time limit for an appeal of the
underlying judgment and sentence by appealing the denial of his motion to vacate. We
cannot reach new assignments of error that were not raised and decided in the superior
court's denial of Mr. Campos-Gonzalez's motion to vacate the guilty plea. Gaut, III
Wn. App. at 881.
Affirmed. I
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.
Brown, 1. I (j
WE CONCUR:
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Siddoway, C.J.
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