[No. 59243-2-I. Division One. May 27, 2008.]
[1] Limitation of Actions — Tolling Statute — Equitable Grounds — Interests of Justice. Equitable tolling permits a court to allow an action to proceed in the interests of justice even though the statutory limitation period applicable to the action has nominally elapsed. Appropriate circumstances for equitable tolling generally include bad faith, deception, or false assurances by the party opposing tolling, and the exercise of diligence by the party seeking tolling. Equitable tolling is granted sparingly and does not extend to garden variety claims of excusable neglect. [2] Limitation of Actions — Tolling Statute — Equitable Grounds — "Appropriate Circumstances" — What Constitutes. Equitable tolling of a statutory time limitation is not appropriate unless it will effectuate (1) the policies underlying the statute under which relief is sought or rights are claimed and (2) the purposes underlying the statutory time limitation. [3] Criminal Law — Judgment — Vacation — Timeliness — Statutory Provisions — Equitable Tolling — Applicability. A statutory time limitation on the filing of a motion for relief from judgment will not be equitably tolled in the absence of bad faith, deception, or false assurances by the government and where the policies underlying the statute under which relief is sought or rights are claimed and the purposes underlying the statutory time limitation do not favor the movant. [4] Criminal Law — Plea of Guilty — Withdrawal — Motion — Timeliness — Equitable Tolling — Applicability. A statutory time limitation on a motion to withdraw a plea of guilty will not be equitably tolled in the absence of bad faith, deception, or false assurances by the government and where the policies underlying the statute under which relief is sought or rights are claimed and the purposes underlying the statutory time limitation do not favor the movant. [5] Criminal Law — Plea of Guilty — Collateral Attack — Timeliness — Statutory Limits — Equitable Tolling — Alien Defendant — Required Showing. The one-year time limitation of RCW 10.73.090(1) for filing a petition or motion for collateral relief from a criminal judgment and sentence will not be equitably tolled in favor of a noncitizen defendant who several years after pleading guilty to a charge moves to withdraw the plea based on a declaration that he or she does not recollect being advised at the time of pleading guilty, as required by RCW 10.40.200(2), of the potential adverse immigration consequences of a conviction, including deportation, if there is no showing of bad faith, deception, or false assurances by the prosecuting authority. The absence of a written acknowledgment of the advisement required by RCW 10.40.200(2) in the court record, whether due to the court's records retention policy, fire, or natural disaster, does not necessarily establish bad faith, deception, or false assurance by anyone that would entitle the defendant to equitable tolling. [6] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — Burden of Proof. For purposes of RCW 10.73.090(1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year time limitation if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction, the burden of showing that a judgment and sentence is not "valid on its face" is on the petitioner seeking collateral relief. [7] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — What Constitutes. For purposes of RCW 10.73.090(1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year time limitation if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction, "invalid on its face" means that the judgment and sentence evidences the invalidity without further elaboration. Facial invalidity may be due to either a constitutional or nonconstitutional defect. [8] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — Judgment Entered on Plea — Materials Considered — Plea Documents. For purposes of RCW 10.73.090(1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year time limitation if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction, documents signed as part of a plea agreement may be used to determine whether the judgment and sentence entered on the plea is "valid on its face," but the question is not the facial validity of the plea documents but is, rather, the facial validity of the judgment and sentence. [9] Statutes — Construction — Legislative Intent — Statutory Language — Plain Meaning — In General. A court's first duty when construing a statute is to determine the legislature's intent, which is primarily determined by a plain reading of the statute. If a statute's meaning is plain on its face, a court will give effect to that plain meaning. [10] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Ignorance of Deportation Consequences. The fact that a noncitizen criminal defendant claims not to have been informed at the time of pleading guilty to a charge that deportation was a likely consequence of pleading guilty, as required by RCW 10.40.200, does not constitute a sufficient basis on which to extend the one-year time limitation of RCW 10.73.090(1) for filing a collateral attack on a criminal judgment and sentence. [11] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — Invalidity of Plea Agreement — Effect. For purposes of RCW 10.73.090(1), under which a collateral attack on a criminal judgment and sentence is subject to a one-year time limitation if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction, the mere invalidity of a plea agreement underlying the judgment is insufficient, by itself, to render the judgment facially invalid if the deficiency does not disclose a facial invalidity in the judgment itself. [12] Personal Restraint — Petition — Timeliness — Statutory Limits — Exceptions — Facial Invalidity — Proof — Original or Copy of Judgment — Necessity. A person cannot avoid the one-year time limitation of RCW 10.73.090(1) for obtaining collateral relief from a criminal judgment and sentence on the grounds that the judgment and sentence is invalid on its face unless the person produces the original judgment or a copy thereof to show the facial invalidity of the judgment and sentence. Nature of Action: A defendant convicted of third degree theft on a plea of guilty entered in 1997 moved for relief from judgment and to withdraw the plea on a claim that he was not informed that deportation was a likely consequence of pleading guilty, as required by statute. Records from the defendant's case were destroyed three years after final disposition in accordance with the district court's case file retention schedule. The only records available and presented by the defendant were copies of the district court dockets from his case. District Court: The King County District Court, No. BC0111126BEP, Frederick L. Yeatts, J., on January 5, 2006, denied the motion as untimely. Superior Court: The Superior Court for King County, No. 06-1-04527-7, Douglass A. North, J., reversed the denial order on November 3, 2006. Court of Appeals: Holding that the defendant is not entitled to equitable tolling of the time limitation on his motion and that the motion is time barred, the court reverses the decision of the superior court and reinstates the district court's denial order. Lori Riordan-, City Attorney, and Jeffrey D. Torrey- and Jill M. Thiele-, Assistants, for petitioner. William Frick-, for respondent. ¶1 COX, J. — A statute of limitations may be equitably tolled where there is evidence of " 'bad faith, deception, or false assurances by the defendant, and the exercise of diligence by the plaintiff.' " ¶2 In November 2005, Ruslan Benyaminov moved to withdraw his 1997 guilty plea to third degree theft in the King County District Court. ¶3 The city of Bellevue (City) charged Benyaminov with third degree theft in 1997. On September 22, 1997, Benyaminov, represented by counsel and aided by an interpreter, pleaded guilty to that charge in King County District Court, Bellevue Division. He received a 12-month deferred sentence. ¶4 Benyaminov received lawful permanent resident status in the United States in 1998. ¶5 In 1999, the district court modified his deferred sentence to a suspended sentence with conditions. ¶6 In April 2005, Benyaminov was convicted of first degree extortion in King County Superior Court. Shortly thereafter, the Immigration and Naturalization Service (INS) began removal proceedings to deport Benyaminov on the basis that he had been convicted of a theft offense for which a term of at least one year was imposed. ¶7 In June 2005, the court denied Benyaminov's motion to modify his district court sentence for third degree theft from 365 days to 364 days. In August 2005, Benyaminov requested from the district court a copy of the case records from the 1997 prosecution for third degree theft. ¶8 King County district courts retain case files for three years after final disposition. ¶9 In November 2005, Benyaminov moved to vacate his 1997 guilty plea. ¶10 We granted the City's motion for discretionary review. EQUITABLE TOLLING ¶11 The City argues that the superior court committed legal error by applying equitable tolling in this case, allowing Benyaminov to collaterally attack his 1997 conviction for third degree theft. We agree. ¶13 The case authority applying this doctrine is instructive. For example, in State v. Duvall, ¶14 Similarly, in In re Personal Restraint of Hoisington, [t]he hardship to be imposed upon the District is the prejudice arising from the fact that 3 years have elapsed since the events at issue occurred. Witnesses may no longer be available, memories have faded, and relevant evidence may no longer be obtainable. Therefore, equitable grounds do not exist which justify a tolling of the statutes of limitations for Douchette's discrimination claims. No petition or motion for collateral attack on a judgment and sentence in a criminal case 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. . . . For the purposes of this section, "collateral attack" means any form of postconviction relief other than a direct appeal . . . includ[ing] . . . a motion to withdraw guilty plea . . . . ¶17 It is undisputed that Benyaminov's November 2005 motion to vacate is a collateral attack, as defined by this statute, on the September 1997 judgment following his plea to third degree theft. Likewise, no one disputes that this motion comes more than eight years after the judgment and sentence in that case. ¶18 The King County District Court, Bellevue Division, made a discretionary determination by denying his motion as untimely. On RALJ appeal, the superior court reversed, ruling as follows: Equitable tolling applies in this case under State v. Littlefair. Once the appellant states that he was not informed of immigration/removal consequences then it is the City of Bellevue's burden to produce the written acknowledgement of immigration consequences required by RCW 10.40.200. No document has been produced. The guilty plea is withdrawn and the case is remanded to district court for trial. ¶19 The question before us is whether this record contains any evidence to support a claim for equitable tolling of this statute, as the superior court decided. We conclude there is no such evidence. ¶20 Benyaminov's declaration supporting his motion states, "To the best of my recollection, I was never apprised as to the potential immigration consequences of my plea, nor did I sign any statements to that effect." ¶21 Nothing in this declaration evidences any "bad faith, deception, or false assurances" by the City or anyone else, as the cases require. Moreover, the copy of the district court docket that Benyaminov also submitted in support of his motion to vacate does not evidence any of these elements of equitable tolling. In short, this record is devoid of any evidence that would support equitable tolling of RCW 10.93.070 beyond its one-year limit. ¶22 As the supreme court stated in Douchette, the factors that courts should consider in balancing the equities between the parties under the facts of a particular case do not favor Benyaminov. Here, the policy of the statute on which he relies is to provide a remedy to those who are not advised of the collateral consequence of deportation when pleading to criminal offenses. But this policy is outweighed by that underlying RCW 10.73.090—finality of judgments. As in Douchette, a long period of time, more than eight years, has passed since the events in question. Benyaminov pleaded guilty to third degree theft in September 1997. He moved to set aside that plea in November 2005, more than eight years after his plea. The record indicates that the district court judge involved in his case is deceased. And there is nothing in this record to indicate that either Benyaminov's defense counsel at that time or the deputy prosecuting attorney who handled the case have any light to shed on the material issues here. Applying these principles to this case, we conclude that this record falls short of establishing a case for equitable tolling of RCW 10.73.090. ¶23 At oral argument, Benyaminov claimed that the record before us fails to show he was warned of potential adverse immigration consequences at the time of his 1997 plea to third degree theft. Specifically, he points to RCW 10.40.200(2), which provides: Prior to acceptance of a plea of guilty to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall determine that the defendant has been advised of the following potential consequences of conviction for a defendant who is not a citizen of the United States: Deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. A defendant signing a guilty plea statement containing the advisement required by this subsection shall be presumed to have received the required advisement. If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty. Absent a written acknowledgement by the defendant of the advisement required by this subsection, the defendant shall be presumed not to have received the required advisement. He argues that the absence of a written acknowledgement that he was advised in accordance with the requirements of this statute supports equitable tolling of the one-year bar of RCW 10.73.090. This argument is unpersuasive. ¶24 First, Benyaminov ignores the obvious—that the destruction of the court files pursuant to the records retention policy of the district court does not prove that no acknowledgement ever existed, nor does it prove the contents of any destroyed plea documents. We simply do not know whether his case records ever contained the required written acknowledgement. Yet, he would have us believe that the legislature intended that the destruction of records—whether due to a records retention policy, fire, or natural disaster—requires setting aside his guilty plea under the circumstances of this case. ¶25 Second, and more importantly, it is difficult to see why the absence of the written acknowledgement demonstrates any of the required elements for equitable tolling: "bad faith, deception, or false assurances by [anyone]." He does not argue that either the existence of the records retention policy or its implementation in this case fulfills any of the necessary elements that he must prove to establish equitable tolling. ¶26 Benyaminov and the superior court, on RALJ appeal, relied on Littlefair ¶27 There, Division Two of this court equitably tolled RCW 10.73.090. The court concluded that Littlefair's evidence proved that he lacked knowledge of possible immigration consequences at the time of his plea due to a "bizarre series of events" and the mistakes of others. ¶28 Littlefair was a resident alien who moved to withdraw his guilty plea to a drug charge more than two years after the court entered his plea and sentence. ¶29 The court accepting his plea also failed to note that the section had been improperly stricken. ¶30 In addition, the INS inexplicably waited more than two years before notifying him that he was subject to deportation for that conviction. ¶31 Here, there is no similar record. Benyaminov fails to identify any mistakes by the City or his attorney that affected his plea. Likewise, he fails to offer a copy of his plea form that he contends omitted the information regarding the possible collateral consequence of deportation. Instead, he relies solely on the absence of that form from the remaining district court records and a declaration that he does not recall being advised of the collateral consequence of deportation. He fails to offer any declaration from his then counsel that provides any information to support bad faith, deception, or false assurances by the City. ¶32 We note in passing that the City has also failed to fill the void to oppose the assertions of Benyaminov. For example, it fails to provide any declaration from the deputy prosecuting attorney who handled the 1997 plea to show what plea form was generally used then. Likewise, there is nothing from that deputy prosecuting attorney's file showing the plea form used in this specific case. ¶33 Nevertheless, the absence of a showing by Benyaminov of any of the elements of equitable tolling is fatal to his claim. Equitable tolling does not extend the one-year bar of RCW 10.73.090 to Benyaminov's collateral attack on the 1997 judgment on his plea to third degree theft. STATUTE OF LIMITATIONS ¶34 Benyaminov urges us to affirm the superior court's order on RALJ appeal on alternative grounds that both lower courts rejected. Specifically, he argues that his November 2005 motion was timely because his 1997 judgment cannot be "valid on its face," as RCW 10.73.090(1) requires. We disagree. ¶36 Analysis of Benyaminov's timeliness claim requires consideration of three statutes: RCW 10.73.090, RCW 10.73.100, and RCW 10.40.200(2). RCW 10.73.090 provides in pertinent part: No petition or motion for collateral attack on a judgment and sentence in a criminal case 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. RCW 10.73.100 provides: 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. ¶37 The third statute to consider is RCW 10.40.200(2), the statute on which Benyaminov bases his argument that his motion was timely. That statute provides: Prior to acceptance of a plea of guilty to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall determine that the defendant has been advised of the following potential consequences of conviction for a defendant who is not a citizen of the United States: Deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. A defendant signing a guilty plea statement containing the advisement required by this subsection shall be presumed to have received the required advisement. If, after September 1, 1983, the defendant has not been advised as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty may have the consequences for the defendant of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States, the court, on defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty and enter a plea of not guilty. Absent a written acknowledgement by the defendant of the advisement required by this subsection, the defendant shall be presumed not to have received the required advisement. ¶38 Neither of the two lower courts were persuaded that Benyaminov's motion was timely. Neither are we. ¶41 The only remaining argument to the one-year bar of RCW 10.73.090 is Benyaminov's claim that the 1997 judgment for third degree theft is not "valid on its face," as stated in RCW 10.73.090(1). Hemenway, 147 Wn.2d at 532. ¶44 We hold that Benyaminov's 2005 collateral attack on his 1997 judgment for third degree theft is time-barred by RCW 10.73.090. ¶45 We reverse the decision of the superior court on RALJ appeal and reinstate the decision of the district court denying the motion as untimely. DWYER, A.C.J., and LAU, J., concur.