In re the Personal Restraint of Adams

Gordon McCloud, J.

¶18 (concurring in part/dissenting in part) — RCW 10.73.090 establishes a one year time limit for filing a personal restraint petition (PRP). The question *428presented here is, when does that year start running? The answer depends on statutory construction, since it is a statute that created the “one year” time limit and that explained when it starts: “after the judgment becomes final if the judgment and sentence is valid on its face.” RCW 10.73.090(1). The language of RCW 10.73.090, when read in context with related RCW 10.73.100, compels the conclusion that the “one year” does not begin until a “valid” “judgment and sentence” is entered — and in this case, that did not occur until 2009.

Analysis

¶19 As the majority states, the original “judgment and sentence” entered in 2000 was not “valid on its face.” The defect was corrected via resentencing in 2009, and a new “judgment and sentence” was then entered. That judgment and sentence was valid on its face. In fact, it is the only “valid on its face” “judgment and sentence” that has ever been entered in this case. Under the plain language of RCW 10.73.090(1), the “one year” for filing a PRP started when that valid “judgment and sentence” was entered in 2009. Devon Adams filed the current PRP — his third postconviction challenge — before that one year elapsed. Under that plain language, the PRP was timely. The petitioner clearly has the better of this statutory interpretation argument.

¶20 The State is correct that this conclusion undermines some of the values on which RCW 10.73.090-.100 are based — the values of finality and repose. State’s Resp. to PRP at 10-12 (discussing interpretation of this and related statutes in State v. Barberio, 121 Wn.2d 48, 846 P.2d 519 (1993) and State v. Kilgore, 167 Wn.2d 28, 216 P.3d 393 (2009)). But this conclusion also protects other values on which those statutes are based, that is, the values of error correction and integrity of proceedings that the legislature carefully balanced against finality. This legislative balanc*429ing is clear from the fact that those statutes actually expand protections against invalid detention beyond the constitutional minimum5 by exempting from the one-year time bar many claims that the state constitution would not necessarily have previously protected. Thus, the State’s argument not only conflicts with the statute’s language (as discussed above), it also fails to acknowledge that RCW 10.73.090-.100 balance competing policy interests and do not blindly favor finality over error correction in all cases.

¶21 Further, the State’s, and the majority’s, interpretation of RCW 10.73.090 would render that statute’s inclusion of the “valid on its face” trigger for counting the one-year time limit inoperative or superfluous in many cases. That interpretation contradicts the rule that “no part of a statute should be deemed inoperative or superfluous unless it is the result of obvious mistake or error.” Klein v. Pyrodyne Corp., 117 Wn.2d 1, 13, 810 P.2d 917, 817 P.2d 1359 (1991). Neither the State nor the majority calls RCW 10.73.090’s language an obvious mistake or error.

¶22 The majority deals with the conflict between the statutory language and legislative balancing on the one hand and its own policy preference on the other hand by relying on In re Personal Restraint of Coats, 173 Wn.2d 123, 267 P.3d 324 (2011). Coats stated that RCW 10.73.090’s facial invalidity language cannot be “used to make an end run” around the limited exceptions to the one-year time bar listed in RCW 10.73.100(l)-(6). Id. at 141; see also id. at 170 (Stephens, J., concurring) (arguing that the facial invalidity provision of RCW 10.73.090 should not be construed “as a ‘super exception’ that removes the time bar not only for the specific claim that fits the exception, but for all other claims as well”). But that statement from Coats was dicta. As the majority here acknowledges, the Coats majority held only that “a misstatement of the statutory maximum sentence on the judgment and sentence did not constitute a facial *430invalidity.” Majority at 423 (emphasis added) (citing Coats, 173 Wn.2d at 141 (Chambers, J., majority), 145 (Madsen, C.J., concurring), 164 (Stephens, J., concurring)). Since the Coats judgment and sentence was not invalid, the comments in the three Coats opinions about what the result could have been if it had been invalid are dicta.

¶23 The “end run” statement from Coats is also incorrect. The reasoning leading to that “end run” dicta may be summed up as follows: RCW 10.73.100 creates six “grounds” that constitute exceptions to the one-year time bar, and each otherwise untimely claim must fit within one of those “grounds” to be timely; RCW 10.73.090 has completely different language that exempts the entire “petition,” RCW 10.73.090(1), rather than specifically listed “grounds” from the one-year time bar in certain circumstances; despite this difference in language and structure, this court will interpret those two statutes identically to further our own policy preferences. Majority at 424.

¶24 This does have the virtue of symmetry. It might even be good policy — it does harmonize the scope of PRPs following postconviction resentencing with the limited scope of appeals following postconviction resentencing. See, e.g., Barberio, 121 Wn.2d at 51. But it is not proper statutory interpretation. Statutory interpretation begins with the plain language and meaning of the statute, viewed in the context of the larger statutory scheme. Where the plain meaning of a statute is unambiguous, legislative intent is apparent, and we will not construe the statute otherwise. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). However, plain meaning may be gleaned “from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002). We resort to aids to statutory construction, such as policy or legislative history, only if the statute remains ambiguous after that plain meaning inquiry. Id. at 12.

*431¶25 Here, the larger statutory scheme — RCW 10.73.090-.100 — expands protections for criminal defendants beyond the constitutional minimum.6 RCW 10.73.100 specifically lists “grounds” to which “[t]he time limit specified in RCW 10.73.090 does not apply.” (Emphasis added.) A “ground” is a claim for relief, not a whole petition. See In re Pers. Restraint of Jeffries, 114 Wn.2d 485, 488-89, 789 P.2d 731 (1990) (discussing the meaning of “grounds for relief”). In other words, RCW 10.73.100 requires a claim-by-claim analysis. RCW 10.73.090, in contrast, exempts the entire “petition or motion for collateral attack” from the one-year time limit if the triggering condition exists, that is, if the original judgment is not “valid.” RCW 10.73.090’s plain language, in the context of the statutory scheme as a whole, does not require a claim-by-claim analysis at all. That difference — that supposed “end run” or “super exception”— was created by the legislature, not by this court.

¶26 The majority notes that if I am correct, then a petitioner could file stale collateral claims challenging his conviction many years later if he or she first filed a meritorious challenge that resulted in a resentencing. Majority at 425 (“[T]o hold otherwise would effectively overrule Coats because a petitioner could simply wait to raise a fair trial claim until after the trial court corrects an error that renders the judgment and sentence invalid.”). That result is admittedly awkward. It stands in tension with the rule limiting postresentencing appeals to claims challenging the new sentence, rather than the old conviction. See Barberio, 121 Wn.2d at 51. It also stands in tension with our rule that the PRP should not replace the appeal. In re Pers. Restraint of Grasso, 151 Wn.2d 1, 10, 84 P.3d 859 (2004). But this court cannot deal with that tension by rewriting the statutory language.

¶27 How should this tension be addressed? Often, the problems identified by the majority will be cured by rules *432limiting successive PRPs. In many cases, RAP 16.4(d), barring “more than one petition for similar relief on behalf of the same petitioner,”7 will serve that function. In this case, the State argues that the current PRP is barred by RAP 16.4(d)’s rule against raising the same claim more than once, because Mr. Adams’s first 2001 pro se PRP raised three ineffective assistance claims. But the Court of Appeals dismissed Adams’s 2001 petition without addressing the merits as “not sufficient to command judicial consideration and discussion.” State’s Resp. to PRP, App. Z at 4. Because the merits of Adams’s ineffective assistance claims were not previously reviewed, RAP 16.4(d) does not bar a new petition raising the same claims.8

¶28 In other cases, the abuse of the writ doctrine will vindicate the policy concerns identified by the State. Under that doctrine, a subsequent postconviction petition cannot raise claims that were “available but not relied upon” in an earlier challenge.9 The State, however, explicitly declined to rely on the abuse of the writ doctrine, likely because it did not apply to Mr. Adams, whose prior PRP was filed pro se.10 Suppl. Br. of Resp’t at 11.

*433¶29 That leaves a timely PRP raising two ineffective assistance claims for us to consider. One of those ineffective assistance claims does not meet the Rice standard for obtaining an evidentiary hearing.11 Both the trial prosecutor and Mr. Adams’s trial counsel submitted affidavits based on firsthand knowledge stating that no offer to plead guilty to second degree murder was ever made in this case. The only evidence Mr. Adams provides consists of a Seattle Times article, his affidavit, and his mother’s affidavit, all of which contain claims of what others may have said but no assertion that such an offer was actually made. Such allegations based on inadmissible hearsay do not survive the Rice standard. Rice, 118 Wn.2d at 886.12 Thus, Mr. Adams fails to show that an evidentiary hearing on this claim is justified.

¶30 The other ineffective assistance of counsel claim, however, does meet the Rice standard. It is the claim that trial counsel was deficient for failing to obtain an easily available psychologist’s report that would have revealed not just the horrific childhood of torture and abuse that Mr. Adams suffered13 but also the fact that it left Mr. Adams with severe psychological problems that “significantly impaired his ability, at the time of the homicide, to appreciate *434the wrongfulness of his behavior.” PRP, App. F at 8.14 This information was easily available; trial counsel in fact obtained it right after trial and in preparation for sentencing. Mr. Adams’s claim that his counsel was ineffective in obtaining the report too late is worthy of an evidentiary hearing.

Conclusion

¶31 The majority correctly notes the problem with allowing a prisoner to challenge his original conviction following a successful PRP resulting in resentencing but not following a successful appeal resulting in resentencing. But that results from the language, structure, and legislative choices reflected in RCW 10.73.090 and .100.1 therefore concur in the majority’s decision to dismiss the ineffective assistance claim based on counsel’s alleged failure to transmit the plea offer, but dissent from its decision to dismiss the ineffective assistance claim based on counsel’s failure to discover Mr. Adams’s alleged incapacity until trial was over.

See In re Pers. Restraint of Runyan, 121 Wn.2d 432, 444-45, 853 P.2d 424 (1993).

Runyan, 121 Wn.2d at 444-45.

RAP 16.4(d) bars only successive PRPs raising the same claim — not successive PRPs raising a different claim. E.g., In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 262-63, 36 P.3d 1005 (2001) (RAP 16.4(d) bars consideration of a second PRP, absent good cause, only where it seeks “ ‘similar relief’ ” to prior PRP (emphasis added)); In re Pers. Restraint of Haverty, 101 Wn.2d 498, 502-03, 681 P.2d 835 (1984) (following definition of “ ‘similar relief’ ” in Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963), successive petition could be dismissed under RAP 16.4(d) only where prior PRP had been denied on grounds previously heard and determined on merits).

In addition, that 2001 PRP raised three claims of ineffective assistance; the current PRP raises two claims of ineffective assistance, and only one of them (alleging failure to transmit the offer to plead guilty to second degree murder) is repetitious. The other ineffective assistance claim in the current PRP — alleging failure to research and present a diminished capacity defense at trial — is new.

In re Pers. Restraint of Greening, 141 Wn.2d 687, 700 & n.11, 9 P.3d 206 (2000) (abuse of writ occurs if successive PRP raises claim that was “ ‘available but not relied upon in a prior petition’ ” (internal quotation marks omitted) (quoting Jeffries, 114 Wn.2d at 492)).

In re Pers. Restraint of Turay, 153 Wn.2d 44, 48, 101 P.3d 854 (2004) (abuse of the writ is an affirmative defense that the State must plead (citing McCleskey *433v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991))); In re Pers. Restraint of Martinez, 171 Wn.2d 354, 363, 256 P.3d 277 (2011) (abuse of writ defense unavailable where petitioner proceeded pro se in previous postconviction challenge).

See In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992) (to obtain a reference hearing, “petitioner must demonstrate that he has competent, admissible evidence to establish the facts [alleged]” based on “affidavits” containing admissible evidence).

Petitioner does not challenge the Rice standard. Cf. Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wn.2d 974, 979, 216 P.3d 374 (2009) (constitutional right of access to the courts “ ‘includes the right of discovery authorized by the civil rules’ ” (quoting John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991))).

According to the report, from a young age Mr. Adams was “exposed to the most vicious kind of abuse.” PRP, App. F at 7. One of Mr. Adams’s earliest memories is his father holding “a knife to his mother’s throat.”Id. at 3. Throughout Mr. Adams’s early childhood, his father “terrorized the family.” Id.

The report further concluded that the “juvenile system failed [Mr. Adams]” and that Mr. Adams is now “in desperate need of psychotherapy.” PRP, App. F at 8.