IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON
No. 84664-7-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JOEL WHITE,
Appellant.
HAZELRIGG, A.C.J. — Joel White appeals from the denial of a CrR 7.8 motion
to modify or correct his 2013 judgment and sentence. While White is correct that
the court erred in failing to transfer his motion to this court as a personal restraint
petition (PRP), the remedy is to now convert his appeal to a PRP rather than
remanding the motion to the trial court as he requests. Having considered his
challenge under the Rules of Appellate Procedure for PRPs, we dismiss his
petition as both untimely and successive.
FACTS
In 2013, White entered a guilty plea to one count of burglary in the second
degree and one count of assault in the third degree. As part of his plea agreement,
White agreed that grounds existed to support an exceptional sentence above the
standard range. He was sentenced to 180 months in custody based on his criminal
history, which includes a 1982 conviction for assault in the second degree that was
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vacated in 1984 after a successful appeal. 1 However, in 1985, after the case was
remanded to the trial court, White entered a guilty plea to the same underlying
charge as originally filed in the 1982 case, but without a sentencing enhancement.
In 2022, White filed a CrR 7.8 motion to modify or correct the 2013 judgment and
sentence (J&S), arguing that the superior court improperly calculated his offender
score by including the conviction from the 1982 case. The superior court denied
White’s motion without analysis or calling for a response from the State.
White timely appealed.
ANALYSIS
White assigns error to the denial of his CrR 7.8 motion, arguing the court
should have called for a response to his motion from the State and performed the
analysis set out in the rule. He also raises a number of other challenges in a
statement of additional grounds for review. CrR 7.8(c)(2) requires the court to
“transfer a motion filed by a defendant to the Court of Appeals for consideration as
a personal restraint petition unless the court determines that the motion is not
barred by RCW 10.73.090.” See also State v. Molnar, 198 Wn.2d 500, 509, 497
P.3d 858 (2021) (“[I]f the superior court determines that the collateral attack is
untimely, then the court must transfer it to the Court of Appeals without reaching
the merits.” (emphasis added)). RCW 10.73.090(1) provides that “[n]o petition or
motion for collateral attack on a judgment may be filed more than one year after
the judgment becomes final if the judgment and sentence is valid on its face and
was rendered by a court of competent jurisdiction.” It further defines “collateral
1 State v. White, noted at 39 Wn. App. 1013 (1984).
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attack” as “any form of postconviction relief other than direct appeal.”
RCW 10.73.090(2).
White’s motion was a collateral attack on his 2013 J&S and was filed over
nine years after the judgment became final. 2 Thus, RCW 10.73.090 bars White’s
CrR 7.8 motion and removes the trial court’s discretion to hear it. Given this
procedural posture, the State properly concedes that the court’s denial of the
motion without transferring it to this court as a PRP was erroneous. The State
contends, however, that the remedy White expressly seeks in this appeal, remand
to the superior court for proper consideration under CrR 7.8, is a waste of judicial
resources as the court would be required to immediately transfer the motion
directly back to this court. We agree. Accordingly, we exercise our discretion to
consider White’s motion as a PRP. 3
I. Timeliness
Generally, a defendant may not raise a collateral attack on a J&S more than
one year after the judgment becomes final, including through a personal restraint
petition. RCW 10.73.090(1). A judgment is final either on the date that it is filed
with the trial court clerk or the date that the appellate court disposes of a timely
direct appeal from conviction, whichever is later. RCW 10.73.090(3). The
2 White did not appeal from this conviction; therefore, it became final upon entry on July
12, 2013. His CrR 7.8 motion was filed on August 5, 2022.
3 White did not submit a brief in reply, but instead made a strategic decision not to counter
the State’s argument regarding conversion of the CrR 7.8 motion for this panel’s consideration as
a PRP. Accordingly, he offered no analysis of the applicability of State v. Smith, which considered
the collateral consequences of conversion to a PRP where the restrained person had not previously
filed one. 144 Wn. App. 860, 184 P.3d 666 (2000).
The State properly notes, and we agree, that Smith is not applicable here as White has
already filed a number of PRPs before this case, several of which were dismissed as successive.
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petitioner bears the burden of demonstrating that their request for relief is timely or
that an exception to the time bar under RCW 10.73.100 applies. See In re Pers.
Restraint of Quinn, 154 Wn. App. 816, 832, 226 P.3d 208 (2010).
White does not deny that his collateral attack on the J&S was filed after the
one-year time limit and he does not assert that any statutory exception to the time
bar applies. See RCW 10.73.100 (establishing exceptions to the one-year time
bar). His petition is therefore “clearly barred” as untimely and we dismiss it “without
requesting a response.” RAP 16.8.1(b).
II. Successive Petitions
White’s petition is also successive. If an individual has previously filed a
PRP, this court “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. White filed PRP No. 79773-5-I in March 2019, attacking the 2013
conviction at issue here, though it raised a different challenge than the one now
presented. That petition was dismissed as untimely on August 29, 2019. 4 More
critically, White has filed four previous collateral attacks regarding his conviction in
the 1982 case specifically, or its purportedly improper inclusion in the calculation
of his offender score for later convictions (the very same issue before us now):
• No. 81916-0-I, filed September 28, 2020 and dismissed as untimely
on December 15, 2020; 5
4 Washington State Supreme Court denied motion for discretionary review on January 15,
2020.
5 Washington State Supreme Court denied motion for discretionary review on February 2,
2021.
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• No. 83547-5-I, filed January 4, 2022 and dismissed as untimely,
successive, and clearly frivolous on March 11, 2022;
• No. 84663-9-I, filed November 1, 2022 and dismissed as untimely
and frivolous on May 31, 2023; 6 and
• No. 84967-1-I, filed February 13, 2023 and dismissed as untimely
and successive on May 24, 2023. 7
Two of those prior PRPs, Nos. 81916-0-I and 83547-5-I, attacked the 1982 case
by first seeking an order vacating that conviction and, later, presenting a motion to
withdraw the guilty plea he ultimately entered in that case. The remaining two
PRPs, Nos. 84967-1-I and 84663-9-I, present identical claims to the question
raised here; White sought correction of the J&S issued in convictions from
incidents arising in 1989 and 2012, asserting that the conviction from the 1982
case was improperly included in the calculation of his offender score in each of
those subsequent cases. In fact, in the order dismissing his PRP in No. 84967-1-
I, this court expressly noted:
White is correct that the 1982 assault conviction was reversed on
appeal. See State v. White, No. 11689-4-I, noted at 39 Wn. App.
1013 (1984). However, the record reflects that on remand from that
appeal, White pleaded guilty to assault in the second degree [without
a firearm enhancement], and a judgment was entered on that plea in
1985. Accordingly, by including the [1982] assault conviction in his
offender score when sentencing White herein in 2013, the
sentencing court did not exercise a power that it did not have so as
to render White’s judgment and sentence facially invalid.
Order of Dismissal, In re Pers. Restraint of White, No. 84967-1-I, at 2-3 (Wash. Ct.
App. May 24, 2023) (footnote omitted) (emphasis added). Whether the conviction
6 Washington State Supreme Court denied motion for discretionary review on July 20,
2023.
7 Washington State Supreme Court denied motion for discretionary review on June 26,
2023.
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resulted from a jury trial that was later reversed on appeal, or by way of a
subsequent guilty plea, the 1982 assault remains a part of White’s criminal history
that is properly included in the calculation of his offender score. White has already
been heard on the issue and RCW 10.73.140 does not permit us to entertain it
again.
White’s PRP is untimely and successive and, accordingly, it is dismissed. 8
WE CONCUR:
8 In his pro se statement of additional grounds for review, White raises challenges regarding
ineffective assistance of counsel, the purported violation of his plea agreement by the State, and
the alleged coercion of his guilty plea. As these issues are outside of the record on appeal and,
more critically, were raised and addressed in his previously filed PRP, No. 79773-5-I, we decline
to consider them again here.
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