[Nos. 35438-1-II; 36660-6-II. Division Two. December 24, 2007.]
In the Matter of the Personal Restraint of MICHAEL ROBERT BYBEE.
In the Matter of the Personal Restraint of ETHAN DURDEN.
[1] Personal Restraint — Petition — Timeliness — Statutory Limits — Mandatory Limit. Under RCW 10.73.090, a petition or motion for collateral relief from a criminal judgment and sentence must be dismissed as untimely if it is filed more than one year after the judgment became final and no statutory exemption or exception to the one-year time limit applies.
[2] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Merger of Convictions — Inadequate Authority — Effect. State v. Korum, 120 Wn. App. 686 (2004), aff'd in part, rev'd in part,
[3] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Insufficient Evidence — Guilty Plea — Applicability. The insufficient evidence exception of RCW 10.73.100(4) to the one-year time limit of RCW 10.73.090 on a collateral challenge to a criminal judgment and sentence applies only if the conviction resulted from a trial and does not apply if the conviction resulted from a plea of guilty.
[4] Criminal Law — Plea of Guilty — Waiver of Rights — Challenge to Sufficiency of Evidence — Reversal of Codefendant's Conviction on Sufficiency Grounds — Effect. A guilty plea waives or renders irrelevant all constitutional violations that occurred before entry of the plea, except those related to the circumstances of the plea or the government's legal power to prosecute regardless of factual guilt. By pleading guilty, a defendant admits factual and legal guilt for the crime charged. The guilty plea thus provides a sufficient and independent factual basis for conviction and punishment. A claim that potential trial evidence, never presented because the defendant pleaded guilty, would have been constitutionally insufficient is, therefore, irrelevant and precluded by the guilty plea, even where a conviction of an identically chargedcodefendant who proceeded to trial is reversed on appeal for insufficient evidence. A strategic miscalculation of the benefits of pleading guilty does not justify setting aside an otherwise valid guilty plea.
Nature of Action: Two codefendants convicted on pleas of guilty to first degree kidnapping, first degree robbery, first degree burglary, and first degree unlawful possession of a firearm each sought relief from personal restraint on a claim that his kidnapping conviction should be dismissed because it merged with his robbery conviction. A third codefendant had proceeded to trial and been convicted of the same offenses, but the Court of Appeals reversed the kidnapping conviction on a finding that the State presented insufficient evidence of a restraint independent of and distinct from the robbery charge. The petitioners claimed that they were statutorily excepted from the statutory one-year time limit for filing a personal restraint petition.
Court of Appeals: Holding that the petitioners do not meet any of the statutory exceptions to the one-year time limit for filing a personal restraint petition and that the petitioners nevertheless waived their right to challenge the sufficiency of the evidence supporting their kidnapping convictions by entering pleas of guilty, the court denies the petitions.
Michael Bybee-, pro se.
Ethan Durden-, pro se.
Sheryl Gordon McCloud- (of Law Offices of Sheryl Gordon McCloud) and David Zuckerman-, for petitioners.
Gerald A. Horne-, Prosecuting Attorney, and Michelle Luna-Green-, Deputy, for respondent.
¶1 HUNT, J. — In these consolidated personal restraint petitions (PRPs), Michael Robert Bybee and Ethan Durden seek relief from personal restraint imposed after each pleaded guilty to first degree kidnapping (with a firearm sentencing enhancement), first degree robbery, two counts of first degree burglary, and first degree unlawful possession of a firearm. Both seek dismissal of their kidnapping convictions as incidental to their robbery convictions under State v. Korum, 120 Wn. App. 686, 702-07, 86 P.3d 166 (2004), aff'd in part and rev'd in part, FACTS ¶2 Michael Bybee and Ethan Durden pleaded guilty to first degree kidnapping with a firearm sentencing enhancement, first degree robbery, two counts of first degree burglary, and first degree unlawful possession of a firearm in Pierce County Superior Court cause nos. 97-1-03611-1 and 97-1-03610-2. Bybee's judgment and sentence ANALYSIS I. ONE-YEAR TIME LIMIT FOR FILING A PRP ¶3 A PRP is a form of collateral attack on a criminal judgment and sentence. RCW 10.73.090(2). Court rules and statutes bar a restrained person from filing PRPs or other collateral attacks more than one year after his judgment becomes final. RCW 10.73.090(1); RAP 16.4(d). II. FACIAL INVALIDITY EXEMPTION ¶5 If a petitioner proves his judgment and sentence is facially invalid or that the issuing court lacked jurisdiction, the petitioner may collaterally attack the judgment at any time. RCW 10.73.090(1). But neither Bybee nor Durden briefed such a claim. Moreover, even if, as Bybee and Durden argue, Korum could render their judgments facially invalid, we cannot presume that the same insufficient evidence would have been presented against them at a hypothetical trial if they had similarly elected not to plead guilty. III. STATUTORY EXCEPTIONS TO ONE-YEAR TIME LIMIT ¶6 A petitioner may file an otherwise untimely PRP by demonstrating that his restraint is unlawful based solely on one or more of the following six grounds that RCW 10.73.100 lists as exceptions to the one-year time limit: The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds: (1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion; (2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct; (3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution; (4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction; (5) The sentence imposed was in excess of the court's jurisdiction; or (6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard. RCW 10.73.100 (emphasis added). Whether Bybee's and Durden's petitions meet a statutory exception to the timebar thus depends entirely on the nature of their substantive grounds for relief. We examine each in turn. A. Merger and Double Jeopardy—Korum ¶8 Based on their substantive merger/double jeopardy argument, Bybee and Durden claim to meet four statutory time-bar exceptions for filing PRPs. First, they argue that their kidnapping convictions place them in double jeopardy and, therefore, the kidnapping statute is unconstitutional as applied to them. RCW 10.73.100(2). Second, again based on their merger argument, they argue that double jeopardy bars their kidnapping convictions. RCW 10.73.100(3). Third, they argue that their kidnapping and robbery convictions merge and, therefore, the sentencing court lacked jurisdiction to sentence them for both crimes. RCW 10.73.100(5). ¶9 Finally, they argue that by merging codefendant Korum's kidnapping and robbery jury convictions, Korum was a significant, material, and retroactive change in the law, namely a change in the interpretation of the kidnapping and robbery statutes to require merger, despite contrary Washington State Supreme Court precedent. Bybee and Durden also appear to argue that Korum's "change in the law," whatever its legal basis, should apply to them retroactively simply because they were originally Korum's codefendants before they pleaded guilty and he, eventually, went to trial. Thus, we examine Korum's rationale to determine whether it applies to Bybee's and Durden's claimed time-bar exceptions. ¶10 Bybee and Durden characterize our Korum holding as merging Korum's jury-trial kidnapping convictions with his jury-trial robbery convictions, apparently because we held that under the facts proved at Korum's trial, the kidnappings were merely incidental to the robberies and, therefore, the evidence was insufficient to support kidnapping convictions separate from the robbery convictions. Bybee and Durden argue that their guilty-plea kidnapping convictions were identical to Korum's jury-trial convictions and, therefore, their kidnapping convictions similarly should merge with their robbery convictions. But Bybee and Durden misapprehend our holding in Korum. Thus, all of their claimed grounds for statutory exceptions to the one-year time limit fail. ¶11 In Korum, we dismissed several of the jury's kidnapping convictions because they were "incidental to the robberies" for which the jury also convicted Korum. Korum, 120 Wn. App. at 689. The Washington State Supreme Court affirmed our dismissal of these kidnapping counts without substantive discussion because the State did not seek review of that part of our decision. Id. at 620, 623-25. ¶12 In Korum, we explicitly relied on State v. Green, 94 Wn.2d 216, 225-28, 616 P.2d 628 (1980), a case that applied what was then a new sufficient-evidence standard to hold that evidence of restraint (necessary to prove kidnapping) was insufficient under the facts of that case to prove kidnapping because that same restraint was incidental to an attempted rape. ¶13 We dismissed Korum's kidnapping convictions because the jury received insufficient evidence of independent kidnappings distinct from the robberies, not because those convictions merged or violated double jeopardy. Bybee's and Durden's claim for Korum-based relief, therefore, does not meet the time-bar exceptions for convictions under an unconstitutional statute as applied, for double jeopardy violations, for sentences in excess of jurisdiction, or for a significant change in merger law. B. Guilty Plea Waives Challenge to Sufficiency of Evidence ¶16 Bybee and Durden pleaded guilty, but they now seek the benefit of legal rulings obtained by a codefendant who proceeded to trial. They assert that no published case governs such a situation. In Broce, however, the United States Supreme Court rejected a similar claim, stating, "[A] strategic miscalculation" does "not justify setting aside an otherwise valid guilty plea." Broce, 488 U.S. at 571. This Broce principle provides additional support for our holding here. When Bybee and Durden pleaded guilty to both kidnapping and robbery, they admitted a sufficient factual basis for both charges. Whether the State's proof of restraint, had they gone to trial, would have been insufficient as merely incidental to the robbery under Korum, is therefore unknown and irrelevant. ¶17 Bybee's and Durden's guilty pleas bar them from claiming insufficient evidence based on Korum's incidental restraint analysis. ¶18 We hold, therefore, that Bybee's and Durden's PRPs are untimely. Accordingly, we deny their requests for relief from restraint. VAN DEREN, A.C.J., and BRIDGEWATER, J., concur.