FILED
FEBRUARY 1, 2021
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
STATE OF WASHINGTON, )
) No. 36570-1-III
Respondent, )
)
v. )
)
CHARLES WALTER WEBER, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — Ten years after his judgment and sentence for a prison assault
became final, and after dismissal of one personal restraint petition as frivolous, Charles
Weber filed a series of motions in the trial court in an effort to obtain a new trial. We
affirm the trial court’s dismissal of the motions.
FACTS AND PROCEDURAL BACKGROUND
Prior criminal proceedings
In February 1999, Charles Weber entered a plea of guilty of assault in the second
degree in King County Superior Court and was sentenced to a term of total confinement
of 29 months.
In July 2003, he was found guilty in a jury trial of attempted murder in the second
degree and assault in the first degree, among other charges, again in King County. It was
agreed by the parties that convictions on both the attempted murder and assault charges
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State v. Weber
violated double jeopardy, so the trial court vacated the conviction for the assault charge.
It was the State’s position that since the assault charge carried the longer standard
sentence range, it was the conviction that should stand. The State sought review of that
issue by the Washington Supreme Court.
A little over a year after he was sentenced for his 2003 crimes, while serving his
time at the Washington State Penitentiary, Mr. Weber was charged with committing a
second degree assault of another inmate. Mr. Weber and the other inmate, Mark Holt,
became involved in a dispute during a prison softball game. The following day, after the
inmates finished eating lunch, Mr. Weber and Mr. Holt fought in Mr. Weber’s cell. As
later summarized by this court:
There was a dispute as to whether Mr. Holt went to Mr. Weber’s cell
voluntarily to fight him, or whether Mr. Holt was taken there by force. Mr.
Holt insisted that the inmates cornered him in the cell and began beating
him.
....
. . . At trial, Mr. Weber admitted to fighting with Mr. Holt. He also
admitted that he struck the first blows. However, Mr. Weber stated that
Mr. Holt had agreed to come to Mr. Weber’s cell to fight and that the two
had engaged in mutual combat.
State v. Weber, 137 Wn. App. 852, 855-56, 155 P.3d 947 (2007) (Weber III). Mr. Weber
was found guilty following a jury trial. Because the prison assault was his third most
serious offense, Mr. Weber was sentenced in April 2005 as a persistent offender, to life in
prison without the possibility of parole. After his motion for a new trial was denied, he
appealed.
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Two months after the Walla Walla Superior Court imposed the life without parole
sentence for his 2004 prison assault, Division One of this court decided the appeal of Mr.
Weber’s sentence for his 2003 crimes. It agreed with the State in a published decision
that when double jeopardy requires vacating one of two convictions, the conviction with
the shorter standard sentence is the “lesser offense” that should be vacated. State v.
Weber, 127 Wn. App. 879, 888, 112 P.3d 1287 (2005) (Weber I). The Supreme Court
accepted review, and affirmed. State v. Weber, 159 Wn.2d 252, 269, 149 P.3d 646
(2006) (Weber II). In March 2007, the King County Superior Court entered an amended
judgment and sentence that reinstated Mr. Weber’s conviction for first degree assault at
the same time it vacated the conviction for attempted second degree murder.
A month later, this court decided Mr. Weber’s appeal of his conviction for the
prison assault. Mr. Weber had complained in part that he received ineffective assistance
of counsel when his trial lawyer failed to interview two witnesses. One witness, Jermine
Mercado, was a friend and cellmate of victim Holt. In an affidavit offered as support
when Mr. Weber moved for a new trial, Mr. Mercado stated that Mr. Holt had been
untruthful in his account of the assault and had been a willing participant in the fight.
In a published opinion, this court agreed that Mr. Weber might have received
deficient representation when his trial lawyer failed to interview the witnesses without a
satisfactory explanation. Weber III, 137 Wn. App. at 858. Turning to the actual
prejudice required to demonstrate ineffective assistance of counsel, however, this court
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observed that consent—while historically a defense to assault—was now disfavored as a
defense, at least in some contexts. This court held as a matter of first impression that
consent is not a defense to a charge of second degree assault between two incarcerated
persons. Id. at 860. Since Mr. Weber could not demonstrate the prejudice prong of his
ineffective assistance of counsel claim and presented no other error, his conviction was
affirmed. Mr. Weber sought review by the Supreme Court, which was denied. This
court issued its mandate in April 2008.
In a timely personal restraint petition (PRP) filed in November 2008, Mr. Weber
raised a new claim of ineffective assistance of counsel. See Order Dismissing Pers.
Restraint Petition, In re Pers. Restraint of Weber, No. 27530-2-III (Wash. Ct. App. July
2, 2009). With supporting witness affidavits, including an affidavit from Mr. Holt
recanting his trial testimony and asserting that he, rather than Mr. Weber threw the first
punch, Mr. Weber argued that trial counsel failed to warn him of problems presented by
pursuing a trial strategy of consent. The chief judge of this court dismissed the PRP in
July 2009, holding that it was not unreasonable for Mr. Weber’s trial lawyer to defend on
a theory of consent and self-defense. The chief judge observed that “[a]lthough Mr.
Weber admitted he threw the first punch, he claimed that the other inmate charged into
his cell with the intent to fight,” and “landing the first blow might be viewed as a
reasonable way to avoid injury.” Id. at 3. Our chief judge also observed that consent had
traditionally been considered a defense to assault, and Mr. Weber’s trial lawyer
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“reasonably relied on traditional consent cases and did not anticipate the ruling in Weber
[III].” Id. at 4. The dismissal order observed that none of Mr. Weber’s supporting
affidavits were helpful to him, because most simply supported the theory of consent
rejected on appeal and Mr. Holt’s new claim that he threw the first punch “contradicts
Mr. Weber’s own testimony and therefore is insufficient to show prejudice.” Id. at 4 n.1.
Mr. Weber sought discretionary review of dismissal of his PRP by the Supreme
Court, whose commissioner denied review in October 2009. Ruling Denying Review, In
re Pers. Restraint of Weber, No. 83398-2 (Wash. Oct. 16, 2009). The commissioner’s
ruling agreed that the affidavits filed by Mr. Weber in support of his PRP were unhelpful
because they merely “support the untenable theory that the victim entered the fray
voluntarily and thus consented to the assault. And the victim recantation is highly
dubious because it contradicts Mr. Weber’s claim that he, and not the victim, threw the
first punch.” Id. at 2.
Current proceedings
In July 2018, Mr. Weber filed a pro se “CrR 7.8 Motion for Evidentiary Hearing”
in the Walla Walla County Superior Court, arguing that when his 2003 conviction for
attempted murder was vacated, it “voided” his persistent offender status and rendered his
judgment and sentence facially invalid. Clerk’s Papers (CP) at 71-73.
On August 6, Mr. Weber was transported to superior court for what had been set
as a hearing on his CrR 7.8 motion. At the outset of the hearing, the State explained that
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State v. Weber
it had drafted but not filed a response to the motion because it was awaiting a certified
copy of the original and amended King County judgment and sentences for the 2003
convictions, which it was sure the court would want to see. It offered a response brief for
filing during the hearing, in which it argued that because Mr. Weber’s 2003 conviction
for first degree assault was reinstated when his attempted second degree murder
conviction was vacated, he had two most serious offense convictions when sentenced in
Walla Walla. The State suggested that the hearing be continued so that Mr. Weber would
have a chance to reply. The court, the Honorable Scott Wolfram, agreed. Mr. Weber
took the opportunity at the hearing to serve and file the following additional pro se
motions:
August 6, 2018 Motion for Continuance and Transfer to Walla Walla County
August 6, 2018 Motion for Appointment of Counsel
August 6, 2018 Motion for Transcripts from Co-defendant’s Trial be Produced
by the State
He later filed the following additional motions:
August 16, 2018 Motion for Appointment of Counsel (Amended)
August 16, 2018 Motion for Continuance of Hearing
August 16, 2018 Amended Motion to Produce Transcripts of Co-defendant’s
Trial under CrR 7.8(b)(2)
August 22, 2018 Motion to Submit Evidence of Actual Innocence 7.8 (b)(2)
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Some of these motions revived Mr. Weber’s complaints that when tried for the
prison assault, available evidence that Mr. Holt was a willing combatant was not
presented. Mr. Weber also argued that the State’s case against him was substantially
premised on its contention that his cellmates, Joseph Gallegos and Edgar Perez, forced
Mr. Holt into the cell where Mr. Holt was assaulted, yet Mr. Perez was tried separately
for his involvement and was acquitted, and the charges against Mr. Gallegos were later
dropped. He argued that newly discovered evidence demonstrated his actual innocence,
entitling him to a new trial.
On August 30, the State filed a response to these new arguments. It argued that
Mr. Weber had relied on affidavits challenging the evidence presented in his trial in his
2005 motion for a new trial of the prison assault charge, his appeal, and his 2008 PRP;
that none of his evidence was newly discovered; and that this court had found the
affidavits on which Mr. Weber relied unhelpful to his legal arguments.
On September 4, Mr. Weber was again transported to superior court for a hearing.
When he explained that he had filed a reply brief that he had sent out the night before,
Judge Wolfram said he would take Mr. Weber’s motions under advisement and rule after
reviewing Mr. Weber’s reply.
On September 19, Judge Wolfram sent a letter to Mr. Weber and the deputy
prosecuting attorney assigned to the matter, stating he had reviewed “the pending
motions filed by Mr. Weber,” the parties’ briefing, and the cases cited and was going to
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No. 36570-1-III
State v. Weber
deny “all motions filed by Mr. Weber,” “basing its decision on the State’s briefing.”
CP at 359. He directed the State to present an order.
Before entry of an order, Mr. Weber moved on September 27 for reconsideration.
Between September 27 and October 3, he filed the following additional motions:
September 27, 2018 Motion to Terminate Legal Financial Obligations
October 3, 2018 Motion to Stay Previous Motion for Reconsideration
Pending Receipt of Official Order
October 3, 2018 Motion to Produce Transcripts of Mark A. Holt from
Trial of Perez
October 3, 2018 Motion for a New Trial Under CrR 7.8, Additional
Grounds for Relief
On October 15, 2018, Mr. Weber was transported to superior court for
presentment by the State of the order it had been directed to prepare. Judge Wolfram
signed the proposed order denying motions for new trial and for evidentiary hearing and
for other relief.
On October 19, Mr. Weber filed a pro se petition for writ of habeas corpus ad
subjiciendum with the Walla Walla County Superior Court. See Initiation Petition, In re
Pers. Restraint of Weber, No. 36426-7-III (Wash. Ct. App. Nov. 9, 2018). Unlike prior
motions he had filed under the case number for the prison assault prosecution, he did not
include a case file number on this petition. It was reviewed by the Honorable John
Lohrmann, who entered an order transferring it to the Court of Appeals for consideration
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State v. Weber
as a PRP. The matter was opened in this court as a PRP and was assigned case no.
36426-7-III.
Returning to the prison assault case, on October 24, Mr. Weber filed a motion to
order response from the State and schedule motion hearing, asking that a response be
ordered to his legal financial obligation (LFO) and new trial motions filed with the court
on October 3. The motion also complained that he had received no State response to his
motion for the production of transcripts of the testimony of Mr. Holt in the Perez trial.
The State filed a response to Mr. Weber’s motion to terminate his LFOs on
November 6. Also on November 6, Mr. Weber filed a motion to vacate judgment, in
which he complained that the State had failed to give him advance notice of the August 6,
September 4, and October 15 hearings on his motions. He also filed motions for an order
of indigency, an order authorizing appeal at public expense, and appointment of counsel.
The State did not respond to many of the motions Mr. Weber filed after the
motions dismissed on October 15. On December 24, when Mr. Weber’s case was
evidently on the court calendar (Mr. Weber was not present) the prosecutor explained to
Judge Wolfram that the later motions “were the same nature, same issues” and “further
responses . . . would have been acts of futility on the State’s behalf.” Report of
Proceedings (RP) (Dec. 24, 2018) at 13. At the trial court’s direction that the State file a
“brief paragraph response to what you just indicated,” the State filed a response to what it
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characterized as Mr. Weber’s “subsequent motions” on December 31. RP (Dec. 24,
2018) at 13; CP at 425-26.
On January 4, 2019, the acting chief judge of this court entered an order in case
no. 36426-7-III, the CrR 7.8 motion that had been transferred on the order of Judge
Lohrmann. The order dismissed Mr. Weber’s PRP as frivolous. It explained that since
Mr. Weber filed his petition more than a year after his judgment and sentence became
final, it was untimely unless it fell within an exception to the timeliness requirement.
Order Dismissing Pers. Restraint Petition, In re Pers. Restraint of Weber, No. 36426-7-III
(Wash. Ct. App. Jan. 4, 2019). It recognized that Mr. Weber claimed his sentence was
facially invalid and the sentence imposed was in excess of the court’s jurisdiction under
RCW 10.73.100(5). It held, however, that since Mr. Weber’s 2003 first degree assault
conviction was reinstated at the same time his 2003 attempted murder conviction was
vacated, he “still qualifies as a persistent offender under RCW 9.94A.030(38)” and “[t]he
sentence imposed is not unlawful.” Order, Weber, No. 36426-7-III, at 3-4.
On January 7, 2019, a hearing was conducted by Judge Wolfram at which the
State and Mr. Weber were present. The prosecutor reminded the trial court that it had
previously denied Mr. Weber’s pro se motions and, while Mr. Weber had since filed
additional motions, the prosecutor argued, “We would be asking the Court to deny the
subsequent motions because they are . . . essentially the same nature and scope of his
previous motions.” RP (Jan. 7, 2019) at 15. Judge Wolfram commented that a decision
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had also just come down from the Court of Appeals dismissing Mr. Weber’s PRP as
frivolous. Judge Wolfram entered an order dismissing Mr. Weber’s “motions for relief
made in September, October and November of 2018, based on those motions being
repetitive in nature and scope of his previous motions which this Court denied formally
on October 15.” CP at 427. Mr. Weber timely appealed. An order of indigency was
entered by the trial court and this court appointed counsel.
Mr. Weber timely sought discretionary review of this court’s order dismissing his
second PRP.
ANALYSIS
A motion for relief from judgment under the superior court criminal rule, like a
personal restraint petition, is subject to RCW 10.73.090 (one year time limit), .100
(exceptions to the time limit), and .140 (subsequent petitions). CrR 7.8(b). If such a
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 of Benavidez,
160 Wn. App. 165, 170, 246 P.3d 842 (2011) (addressing timeliness of a petition).
Mr. Weber’s counsel on appeal makes two assignments of error: that the trial
court’s “perfunctory dismissal” of Mr. Weber’s CrR 7.8(b) motion deprived him of the
opportunity to effectively argue that his life without parole sentence should be reversed,
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and that his constitutional right to due process was violated when the State failed to
provide notice that at the time of sentencing, it would seek a sentence of life without
parole. Br. of Appellant at 1. We address the alleged errors in the order presented.
I. MR. WEBER’S PERSISTENT OFFENDER SENTENCE IS NOT INVALID
Whether Mr. Weber’s life without parole sentence as a persistent offender became
unlawful when his 2003 conviction for attempted murder was vacated was squarely
presented in his PRP that this court dismissed as frivolous in our case no. 36426-7-III. At
the time Mr. Weber filed his opening brief in this appeal, the Supreme Court had not yet
acted on his motion for discretionary review of the PRP’s dismissal, but the Supreme
Court commissioner entered a ruling denying review in July 2019. Largely paralleling
our acting chief judge’s analysis, the commissioner stated:
[R]egardless of the vacation of Mr. Weber’s attempted second degree
murder conviction, he still has two prior convictions for strike offenses—
one for first degree assault and one for second degree assault—making him
a persistent offender in relation to his current conviction. Former RCW
9.94A.030(32)(a) (2002). While technically Mr. Weber’s current life
sentence is invalid to the extent it rests in part on a vacated prior
conviction, any facial error does not prejudice Mr. Weber because under his
correct criminal history he remains a persistent offender for which a
sentence of life without release is required. He therefore is not entitled to
sentencing relief. See In re Pers. Restraint of Finstad, 177 Wn.2d 501,
506, 301 P.3d 450 (2013) (even where facial error is shown, petitioner is
entitled to relief only if petitioner was actually and substantially prejudiced
by constitutional error or a nonconstitutional error resulted in a complete
miscarriage of justice).
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Ruling Denying Review, In re Pers. Restraint of Weber, No. 96749-1, at 2-3 (Wash. July
24, 2019) (footnotes omitted). A motion to modify the commissioner’s ruling was
denied. Order, In re Pers. Restraint of Weber, No. 96749-1 (Wash. Oct. 3, 2019).
Mr. Weber’s counsel continues to press the argument that when Mr. Weber’s
attempted murder conviction was vacated, it eliminated the basis for his life without
parole sentence despite our acting chief judge’s order and the Supreme Court
commissioner’s ruling denying review. Neither he nor the prosecutor has briefed the
significance (or not) of those rulings on the identical issue raised in this appeal. We
assume without deciding that this panel is not bound by our acting chief judge’s decision
or the reasoning of the Supreme Court commissioner in denying review. We agree with
and adopt the reasoning of both decisions, however. Mr. Weber may have demonstrated
an error in the 2005 judgment and sentence. But in this collateral attack, he is required to
do more than that; he is required to demonstrate that his sentence is unlawful. He has not
demonstrated that it is.
II. WE WILL NOT REVIEW THE NEW DUE PROCESS CHALLENGE RAISED FOR THE FIRST
TIME ON APPEAL
The second error assigned by appointed counsel is a new issue not raised in the
trial court nor, for that matter, in any of Mr. Weber’s motions in the trial court: Mr.
Weber argues his sentence must be vacated because he was not given notice, when
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State v. Weber
prosecuted for his prison assault, that at the time of sentencing the State would seek a
sentence of life without parole. We decline to consider the issue. See RAP 2.5(a).1
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Weber raises eight. Five
of the eight suffer from a common infirmity and are considered together.
SAG 1: Failure to appoint counsel. Mr. Weber contends the trial court abused its
discretion by not appointing counsel to represent him in connection with his CrR 7.8
motions. A defendant does not have a right to counsel when his CrR 7.8 motion fails to
establish grounds for relief and is dismissed without a hearing on the merits. State v.
Robinson, 153 Wn.2d 689, 696-97, 107 P.3d 90 (2005). The right to counsel arises only
after the court determines the motion has merit. Id. Because there was no hearing on the
merits, Mr. Weber did not have a right to counsel.
SAG 2: Denial of hearing. Mr. Weber contends the trial court abused its
discretion when it failed to provide notice and the opportunity to be heard on his CrR 7.8
motions. “If [a CrR 7.8 motion] does not establish grounds for relief, the judge may
dismiss the petition or deny the motion without a hearing on the merits.” Id. at 696.
1
The State invites us to reach the issue, arguing that the Washington Supreme
Court rejected the same argument in State v. Crawford, 159 Wn.2d 86, 96, 147 P.3d 1288
(2006) (holding that the Persistent Offender Accountability Act, RCW 9.94A.570, does
not require notice nor is notice constitutionally required).
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SAG 4: Denial of discovery. Mr. Weber complains that he was denied discovery
that he sought in aid of his collateral attack. He cites CrR 4.7, which appears in Title 4 of
the Superior Court Criminal Rules, entitled “Procedures Prior to Trial.” Mr. Weber
identifies no legal authority entitling him to discovery in aid of a collateral attack in 2018.
SAG 3 and 5 through 8: Matters ineligible for relief under CrR 7.8(b). “[T]ime
and manner” limitations are imposed on collateral review, including review requested by
a motion under CrR 7.8(b). State v. Brand, 120 Wn.2d 365, 369, 842 P.2d 470 (1992).
As earlier observed, 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. If such a
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). Benavidez, 160 Wn. App. at 170.
A motion for relief from judgment under the rule is also subject to RCW
10.73.140. CrR 7.8(b). That statute provides that “[i]f a person has previously filed a
petition for personal restraint, the court of appeals will not consider the petition unless the
person certifies that he or she has not filed a previous petition on similar grounds, and
shows good cause why the petitioner did not raise the new grounds in the previous
petition.” RCW 10.73.140. Although the statute literally applies only to the filing of a
subsequent PRP, the Supreme Court held in Brand that RCW 10.73.140 “appl[ies] by
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analogy” to CrR 7.8(b) motions, and “[t]o hold otherwise would thwart the legislative
purpose by allowing repetitious collateral attacks in the trial courts in contravention of
the policy limiting collateral review.” 120 Wn.2d at 370.
A collateral attack by motion in the trial court is also subject to the general
prohibition against successive attacks that are embodied in the doctrines of claim and
issue preclusion. In re Pers. Restraint of Becker, 143 Wn.2d 491, 497, 20 P.3d 409
(2001).
Mr. Weber’s motions in the trial court were brought many years after his judgment
and sentence for the prison assault became final, and after his 2008 PRP. The remaining
grounds identified in his SAG fail under the time and manner limitations on collateral
review.
Mr. Weber’s challenge to the trial court’s refusal to revisit the denial of his 2005
motion for a new trial (SAG 3), a denial that was affirmed on appeal, is barred by law of
the case doctrine.
He contends that his trial lawyer provided ineffective assistance of counsel by
failing to request a jury instruction on his defense of consent. He argues in SAG 5 that if
the jury had been instructed on the defense of consent, he would have been acquitted,
avoiding this court’s announcement of the new rule in Weber III that the defense is
unavailable to incarcerated persons. This contention fails on multiple grounds. Mr.
Weber makes only a bald, conclusory argument that the defense, which failed even
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State v. Weber
though argued to the jury, would have succeeded if addressed by an instruction. He
provides no “good cause” why this claim of ineffective assistance of counsel was not
raised in his 2008 PRP. He does not identify effective relief that we can grant, since the
unavailability of the defense is now settled and would control in the event of a new trial.
Mr. Weber challenges the denial of his motion for a new trial based on the
evidence that led to the acquittal and dismissal of charges against his cellmates,
characterizing it as “evidence newly-discovered.” (SAG 6 and 8). “[I]n the context of
‘newly discovered evidence,’ a collateral attack is based on ‘similar grounds’ unless the
current evidence is significantly different in either quantum or quality from the evidence
presented in a previous collateral attack.” Brand, 120 Wn.2d at 370. The State
demonstrates that the evidence on which Mr. Weber relies does not meet this standard.
And as the chief judge and Supreme Court commissioner observed in addressing Mr.
Weber’s 2008 PRP, it also would not change the result, since the jury found that Mr.
Weber assaulted Mr. Holt, it rejected his claim of self-defense, and consent is not an
available defense.2
Mr. Weber contends the trial court abused its discretion when it denied his motion
to vacate his LFOs (SAG 7) because there was inadequate inquiry into his current or
2
Mr. Weber represents in the motions below that in his 2005 trial, he “took the
blame for his own fight from the beginning, excluding Mr. Perez and Mr. Gallegos as
being involved.” CP at 180.
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future ability to pay. But Blazina3 error is not exempt from the one-year time bar for
collateral attacks. In re Pers. Restraint of Flippo, 187 Wn.2d 106, 111, 385 P.3d 128
(2016); RCW 10.73.100(6).
Dismissal of Mr. Weber’s 2018 motions is 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.
_____________________________
Siddoway, A.C.J.
WE CONCUR:
_____________________________
Fearing, J.
_____________________________
Korsmo, J.P.T.4
3
State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).
4
Judge Kevin M. Korsmo was a member of the Court of Appeals at the time
argument was held on this matter. He is now serving as a judge pro tempore of the court
pursuant to RCW 2.06.150.
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State of Washington v. Charles Walter Weber
Combined Opinion