FILED
DECEMBER 7, 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. 34533-5-111
)
Appellant, )
)
V. ) UNPUBLISHED OPINION
)
TARA J. AMMONS, )
)
Respondent. )
PENNELL, J. -In 2009, Tara Ammons was convicted of theft and possession of
controlled substances with intent to deliver. Ms. Ammons's case was handled through a
stipulated facts trial. This abbreviated procedure was used as a consequence of Ms.
Ammons' s failed attempt to divert her charges through a drug court program. Seven
years later, Ms. Ammons successfully moved to vacate the drug court agreement,
convictions, and judgment and sentence. She argued her convictions were invalid
because she had not been aware of potential immigration consequences at the time she
entered into drug court and agreed to the possible adverse outcome of a stipulated facts
trial.
Ms. Ammons' s case is uniquely sympathetic. Having been adopted as a baby by
parents who were citizens of the United States, Ms. Ammons reasonably believed she was
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a U.S. citizen and did not find out otherwise until after she had entered drug court. When
presented with Ms. Ammons's motion to vacate, the trial court found Ms. Ammons's
equities compelling and granted relief. The court reasoned Ms. Ammons's convictions,
by way of a stipulated facts trial, were predicated on a mutual mistake regarding
immigration status. The court also excused Ms. Ammons's failure to file a motion to
vacate within the standard one-year time frame based on equitable tolling.
Although the equities favoring Ms. Ammons are compelling, we find no legal
basis to sustain the trial court's disposition. Whatever merits Ms. Ammons's substantive
claims may have regarding mutual mistake, her motion to vacate was not timely. The
record contains no factual basis for equitable tolling. The trial court's order to vacate is
therefore reversed.
BACKGROUND
In May 2007, Tara Ammons was charged with two counts of theft and two counts
of possession of a controlled substance with intent to deliver. Hoping to deal with her
drug addiction, Ms. Ammons opted to enter drug court. The drug court agreement
specified Ms. Ammons was waiving a number of constitutional and statutory rights, 1 and
1
These are the right to: (1) a jury trial, (2) hear and question witnesses, (3) call
witnesses on your own behalf, (4) cross-examine the state's witnesses, (5) present
evidence, (6) testify or not testify, (7) a CrR 3.5 or CrR 3.6 hearing, and (8) a speedy trial.
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that if she violated any part of the drug court agreement her case would be adjudicated
solely on the basis of the police reports and other materials submitted by the prosecutor.
Ms. Ammons would have no right to call witnesses or present further evidence. Ms.
Ammons entered drug court on January 11, 2008.
While the exact date is unclear, by at least March 28, 2008, Ms. Ammons learned
she was not a U.S. citizen. Ms. Ammons had been adopted from Mexico in 1972 when
she was five months old. At the time of her adoption, Ms. Ammons's parents were
mistakenly informed by legal counsel that Ms. Ammons became a U.S. citizen upon
adoption. The Ammons family had no reason to doubt this information. Ms. Ammons
grew up in California, attended public schools, received a social security number, voted in
elections, married twice, and had three children. Ms. Ammons, now in her mid-40s, only
learned she was not a citizen after her biological sister, who had also been adopted, was
denied a U.S. passport.
Although Ms. Ammons' s immigration status made her technically ineligible for
drug court, the presiding judge allowed her to stay in the program. This decision was
favorable to Ms. Ammons because she maintained the possibility of avoiding a criminal
conviction. But, unfortunately, things did not work out. In December 2008, Ms.
Ammons was charged with misdemeanor assault. As a result of this new charge, Ms.
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Ammons was terminated from drug court in January 2009. Three months later, she was
found guilty of the original four charges after a stipulated facts trial.
Ms. Ammons was placed in removal proceedings in 2011. For reasons that are
unclear, the proceedings were terminated and Ms. Ammons was released from
immigration custody. Despite this favorable outcome, it appears Ms. Ammons spent most
of her time since 2011 in custody for various criminal offenses.
In 2015, Ms. Ammons was back in immigration custody. At this point, she
received a psychological examination. The purpose of the examination was to explore
Ms. Ammons's competence to represent herself in immigration court. The examiner
found Ms. Ammons to be competent, but an immigration judge disagreed. In a brief,
written order, the immigration judge declared Ms. Ammons incompetent for purposes of
self-representation and appointed legal counsel. Removal proceedings were then
reopened in July 2015. In September, Ms. Ammons received legal assistance to explore
post-conviction relief.
On March 14, 2016, Ms. Ammons filed a CrR 7.8(b) motion in Okanogan County
Superior Court to vacate the drug court agreement and her 2009 judgment and sentence.
Ms. Ammons relied on Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d
284 (2010), RCW 10.73.100(6), In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d
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91,351 P.3d 138 (2015), CrR 4.2, CrR 7.8(b)(l), RCW 10.40.200, and equitable tolling
to support her motion.
The trial court granted Ms. Ammons's motion. The court found Padilla and
RCW 10.40.200 inapplicable because there was no guilty plea. However, the court
determined Ms. Ammons was entitled to relief under CrR 7.8(b)(l). The court reasoned
there had been a mutual mistake of factwhen Ms. Ammons entered into drug court and
waived her rights. Given this circumstance, "fairness and equity" warranted the
application of CrR 7.8(b)(5). Clerk's Papers (CP) at 12. The trial court also found Ms.
Ammons's delay in filing for post-conviction relief was excused by equitable tolling,
given Ms. Ammons's struggles with competency and lack of legal counsel. As a result of
the trial court's ruling, the drug court agreement, convictions, and judgment and sentence
were vacated, but the original charges were not dismissed. The State appeals.
ANALYSIS
The dispositive issue in this case is timing. Under RCW 10.73.090, any request
for post-conviction relief (other than a direct appeal) must be filed within one year after a
judgment becomes final. Ms. Ammons's judgment became final in 2009. But no motion
was filed until 2016. The only way Ms. Ammons could avoid having her motion
dismissed as untimely was if she could establish equitable tolling or an exception to the
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one-year time bar under RCW 10.73.100. In re Pers. Restraint ofBonds, 165 Wn.2d 135,
196 P.3d 672 (2008). As discussed below, neither applies.
Equitable tolling
Equitable tolling "' permits a court to allow an action to proceed when justice
requires it, even though a statutory time period has nominally elapsed.'" State v.
Robinson, 104 Wn. App. 657, 667, 17 P.3d 653 (2001) (quoting State v. Duvall, 86 Wn.
App. 871, 874, 940 P.2d 671 (1997)). We review legal issues regarding equitable tolling
de novo. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002). As the party seeking
relief, Ms. Ammons bears the burden of establishing the applicability of equitable tolling.
Bonds, 165 Wn.2d at 144.
Because the law already permits a variety of methods for challenging wrongful
convictions, equitable tolling has a very narrow application in the criminal context. In re
Pers. Restraint of Haghighi, 178 Wn.2d 435,448,309 P.3d 459 (2013). One of the
elements required for a successful claim of equitable tolling is diligence. Id. at 447;
Bonds, 165 Wn.2d at 141. To show diligence, a litigant must demonstrate they sought
relief promptly upon learning the basis for doing so. At most, the one-year statutory
deadline for seeking post-conviction relief will be tolled up to the point in time when a
litigant first discovered the issue forming the basis for relief. State v. Little/air, 112 Wn.
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App. 749, 762-63, 51 P.3d 116 (2002).
Division Two's decision in Little/air provides an example of how a post-
conviction litigant claiming inadequate immigration advice might establish diligence and
equitable tolling. Mr. Littlefair is Canadian. When he pleaded guilty to manufacturing
marijuana, he was not advised of possible immigration consequences as required by
RCW 10.40.200. Mr. Littlefair did not learn about the immigration consequences until he
was served with a notice of removal approximately two years after his plea. Less than
one year after receiving this notice, Mr. Littlefair filed for post-conviction relief. In a
divided ruling, Division Two held Mr. Littlefair met the diligence requirement of
equitable tolling. Little/air, 112 Wn. App. at 769.
Ms. Ammons's case compares unfavorably to Little/air. Unlike what happened in
Little/air, neither the court nor defense counsel failed to provide Ms. Ammons with
statutorily required immigration advice. Because Ms. Ammons never pleaded guilty, no
notice was required under RCW 10.40.200. 2 In addition, the record does not establish
Ms. Ammons filed for relief within one year after learning about the immigration
2
In addition, it cannot fairly be said that defense counsel was ineffective in failing
to discuss immigration consequences with Ms. Ammons at the time she signed the drug
court agreement. At that point in time, there was no reason to believe Ms. Ammons was
not a U.S. citizen.
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consequences of her case. Ms. Ammons discovered she was not a U.S. citizen while still
participating in the drug court proceedings. Once her status became known, Ms.
Ammons's attorney was aware of potential immigration consequences. Nothing in the
record indicates Ms. Ammons's attorney failed to share this information with her.
Accordingly, to the extent Ms. Ammons was eligible to challenge her drug court
agreement on the basis of mutual mistake, she held all the necessary information prior to
her stipulated facts trial and convictions.
Ms. Ammons protests that she should be excused from failing to seek relief earlier
due to incompetence. However, the trial court specifically found Ms. Ammons competent
during her drug court participation. No error has been assigned to this finding. While
Ms. Ammons was subsequently found incompetent for purposes of self-representation by
an immigration judge in 2015, 3 nothing in the record indicates when Ms. Ammons lost
competence, or why she was incapable of challenging the validity of her drug court
agreement during the original trial process. 4
3
Although not briefed by the parties, this appears to be a heightened standard of
competence. See CP at 148.
4
Any suggestion that Ms. Ammons was suffering from long-term incompetence is
belied by her 2015 psychological evaluation that notes during a 2011 mental health
assessment Ms. Ammons was "reported to have a Global Assessment of Functioning (GAF)
score of 70, which suggests [she] was functioning fairly well overall." CP at 149.
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In short, the facts produced by Ms. Ammons fail to demonstrate the diligence
required for equitable tolling. Ms. Ammons's own declaration reveals the gaps in her
proof. Ms. Ammons's declaration sets forth her personal history and the circumstances
leading up to her motion for post-conviction relief. The declaration is lucid and does not
suggest any lack of understanding or memory problems. In the declaration, Ms. Ammons
does not indicate she delayed filing for post-conviction relief because of incompetence.
Instead, she states the delay was because she lacked funds to hire private counsel. This
all too common obstacle is not a sufficient basis for the exceptional remedy of equitable
tolling.
RCW 10. 73.100
Without equitable tolling, the only possible basis for affirming the trial court
would be if Ms. Ammons's case fell under one ofRCW 10.73.IOO's exceptions to the
one-year post-conviction time limit. Ms. Ammons bears the burden on this issue. See In
re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003).
In her briefing to this court, Ms. Ammons does not argue for application of any of
the exceptions listed in RCW 10.73.100. However, during oral argument, counsel
proposed that RCW 10.73.100(6) excuses Ms. Ammons's delay in seeking relief because
of the significant change in the law wrought by Padilla v. Kentucky and made retroactive
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to final convictions under In re Personal Restraint of Yung-Cheng Tsai. Like the trial
court, we find Padilla and Tsai inapplicable.
Our analysis is guided primarily by Tsai. That case addressed an attorney's duty to
advise clients of adverse''immigration consequences in the context of guilty pleas. Tsai
acknowledged that defense attorneys in Washington have long known of their plea related
immigration obligations under RCW 10.40.200. However, prior to the U.S. Supreme
Court's decision in Padilla, Washington courts had not recognized that an attorney's
failure to abide by RCW 10.40.200 could constitute a constitutional deficiency, justifying
relief from conviction. Tsai, 183 Wn.2d at 103. Given the disconnect between a lawyer's
well known duties and relief available to criminal defendants, Tsai held that the avenue
for relief announced by the U.S. Supreme Court in Padilla would be applied retroactively
to post-conviction cases pursuant to RCW 10.73.100(6).
Tsai only extended RCW 10.73.090's one-year filing deadline because
Washington had already required attorneys to provide immigration advice in the guilty
plea context. Given the State of Washington's unique statutory provision, Tsai
distinguished the U.S. Supreme Court's decision in Chaidez v. United States, 568 U.S.
342, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), which held Padilla created a new rule of
federal constitutional procedure and was not retroactive to already final cases.
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Because this case does not involve a guilty plea, it is governed by the U.S.
Supreme Court's retroactivity analysis in Chaidez, not Tsai. At best, Ms. Ammons might
be heard to argue that Padilla, together with Tsai, recognized a new rule for
constitutionally effective assistance of counsel that requires pursuit of immigration
friendly options for noncitizen clients. But if that were true, any such rule would not
apply retroactively to pre-Padilla/Tsai cases such as Ms. Ammons's. There is no statute
similar to RCW 10.40.200 directing defense attorneys to advocate for immigration
friendly outcomes in criminal cases. Accordingly, to the extent Tsai and Padilla can be
read as recognizing new constitutional duties for defense counsel, Chaidez prohibits
retroactive enforcement under RCW 10.73.100(6). See In re Pers. Restraint of Gentry,
179 Wn.2d 614, 626, 316 P.3d 1020 (2014) (retroactivity under RCW 10.73.100(6)
generally governed by federal standard).
CONCLUSION
The equities in Ms. Ammons's case are strong. Regardless of Ms. Ammons's
criminal record, it would appear unjust for Ms. Ammons to be deported simply because
an attorney failed to properly process her adoption papers. If Padilla can provide relief to
criminal defendants who are denied adequate immigration advice, it would seem babies
who have been involuntarily brought into this country for adoption should also be entitled
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to some sort of recourse for ineffective immigration assistance. But whatever remedy can
or should exist does not lie here. The trial court's order to vacate is reversed. Ms.
Ammons' s motion to not award appellate costs is granted.
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.
C2
Pennell, J.
_Q___Q·~
WE CONCUR:
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