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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER PIRIS, Appellant,

v. ALFRED KITCHING and JANE DOE KITCHING, husband and wife and their marital community; SOCIETY OF COUNSEL REPRESENTING ACCUSED PERSONS (SCRAP); ERIC NIELSEN and JANE DOE NIELSEN, husband and wife and their marital community; NIELSEN, BROMAN & KOCH P.L.L.C; and KING COUNTY, Respondents. NO. 71054-1-1 DIVISION ONE

PUBLISHED OPINION FILED: March 9, 2015



### Lau,J. —Christopher Piris appeals the trialcourt's dismissal on summary 

### judgmentof hislegal malpractice suit against hisformer attorneys and King County arising from hisunderlying criminal case. Piris contends thetrial courterredwhen it determined that he failed to allege and prove his innocence offirst degree rape of a 

### child, a necessary requirementtomaintain hislegal malpractice lawsuit. Weconclude thatPiris's negligence allegations fall outside the narrowexception to the innocence71054-1-1/2 requirement we recognized in Powell v. Associated Counsel for Accused, 125 Wn. App. 773, 106 P.3d 271 (2005) (Powell I), and Powell v. Associated Counsel for Accused, 131 Wn. App. 810, 129 P.3d 831 (2006) (Powell II). We affirm summaryjudgment dismissing as a matter of law Piris's legal malpractice claim. FACTS The material facts are not disputed. In 1997, the State charged Christopher Piris with three counts of first degree rape of a child based on crimes he committed when he
was 13 years old. Bythe time he was charged with the offenses in Superior Court, Piris
was 19 years old. Piris was represented at trial by attorney Alfred Kitching from the 

### Society ofCounsel Representing Accused Persons (SCRAP).1 On September 25, 1998, Piris pleaded guilty to two counts of first degree rape of a child. His statement ofdefendant on plea of guilty indicated a standard sentencing range for the crimes as 159 to 211 months ofconfinement. Atsentencing in May 1999, the trial court denied Piris's requestfor a 48-month exceptional sentence below the standard range. The court imposed a low-end sentence explaining: THE COURT:
... Mr. Piris, Ihave considered these requests for 

### exceptional sentence, and it's the conclusion of this court thatthere are not facts in this file that would support an exceptional sentence. 

### There are certainly—this filerepresents a tragedy undoubtedly in your life and a tragedy in the lives of many of yourfamily. Be that as it may, Ijust do not feel there are facts inthis file that willsupport an exceptional sentence down. 

### What Iam going to do, however, is Iam going to sentence you at the bottom of the standard range which is—Mr. Rogers, Ihope I'mcorrect on this—is 159 months. 

### 1Attorney Michael Frost associated withKitching as co-counsel. Frost is not a party inthis action. -2-71054-1-1/3 

### Piris appealed the length of his sentence. Attorney Eric Nielsen, from Nielsen, 

### Broman and Koch lawfirm was appointed to represent Piris on his appeal. Nielsen successfully argued on appeal thatthe standard range sentence of 159 to 211 months

was erroneous because the trial court used the version of RCW 9.94A.360 in effect at the date ofthe sentencing hearing instead ofthe version ineffect at the date the 

### offenses were committed. This statutewas amended in 1997, about twoyears before Piris was sentenced. Under the correct version ofthe statute, Piris's offender score 

### calculation yielded an offender score of 6 ratherthan 7 and a standard range of 146 to 194 months rather than 159 to 211 months of confinement. Former RCW 9.94A.310 (1993).In a February 14, 2000 per curiam opinion, we vacated Piris's sentence and remanded for resentencing based on the sentencing error. On the same day, the court clerk's office mailed a cover letter and a copy ofthe opinion to Nielsen and a prosecutor inthe King County Prosecuting Attorney's Office. The cover letterwas addressed to 

### Eric Nielsen at Nielsen's then business address and to Gary Ernsdorffat the King County Prosecuting Attorney's Office. The same cover letter shows both the sentencing 

### judge and Piris were copied in on the letter and opinion.2 Piris was never resentenced. In2010, Piris was released from prison after serving his original sentence. In May 2012, he was summoned to King County Superior Courtfor a probation violation. While reviewing Piris's file, a superior courtjudge discovered that Piris had never been

2Piris's brief argues, "According to Piris, he never heard from Nielsen regarding the reversal." Appellant's Br. at 3. There is no citation to record facts.71054-1-1/4 

### resentenced.3 Thejudge imposed a low-end sentence of 146 months, with credit for all time previously served. The record is silent as to the resentencing court's rationale for the sentence imposed. 

### Piris sued Kitching, Kitching's employer (SCRAP), Nielsen, and the Nielsen 

### Broman &Koch lawfirm, alleging malpractice.4 In a second amended complaint, Piris named King County as a defendant. 

### In September 2013, Nielsen moved to dismiss Piris's lawsuit on summary judgment, alleging that Piris "cannot prove, and does not assert, his actual innocence of 

### the crimes of which he was convicted. Therefore, his claims of legal malpractice is barred underWashington law." King County and Kitchingjoined inthe motion. The trial court granted the summaryjudgment infavor of allthe defendants. In its written order, the court reasoned, "The basis for the dismissal is the 'actual innocence' requirement as set out inAnq v. Martin, 154 Wn.2d 477[, 114 P.3d 63] (2005)." The court also denied Piris's subsequent reconsideration motion. Piris 

### appealed.5 ANALYSIS Piris maintains the trial court erred by applying the "actual innocence" requirement "in a case alleging malpractice at sentencing
. .. ." Appellant's Br. at 1. He



### 3The original sentencingjudge had since retired. 4We referto Nielsen and his law firm as "Nielsen." We referto Kitching and SCRAP as "Kitching." 5On August 21, 2014, Nielsen filed a motion to strike portions ofPiris's reply brief.71054-1-1/5


### argues, "A plaintiffin a legal malpractice action alleging sentencing errors only is not required to demonstrate 'actual innocence.'" Appellant's Reply Br. at 1. Piris does
not contend he is innocent ofthe crimes for which he was convicted. He relies mainly on the narrow exception to the innocence requirementwe adopted in Powell I and Powell II. This court reviews de novo a trial court's decision to dismiss a complaint on 

### summaryjudgment. Powell, 125 Wn. App. at 775. The parties agree thatthis issue should be decided as a matter of law. Legal issues are reviewed de novo. State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981). 

### In criminal malpractice6 cases, proof ofinnocence is an indispensable element of a plaintiff's cause ofaction. In Falkner v. Foshauq, 108 Wn. App. 113, 29 P.3d 771 (2001), addressing an issue of first impression, we held that a plaintiffalleging legal malpractice occurring during representation in a criminal matter must establish postconviction relief and demonstrate his innocence by a preponderance ofthe evidence, in addition to the elements of a civil legal malpractice claim. The core dispute in this case involves the innocence element. Because Piris entered a knowing and voluntary guilty plea, he cannot allege his innocence in this civil malpractice action. Falkner, 108 Wn. App. at 120. The actual innocence requirement is one of two 

### proximate cause requirements a malpractice plaintiffmust establish. Anq v. Martin, 154

6"Criminalmalpractice" refers to legal malpractice that occurs when an attorney defends a criminal defendant. Falkner, 108 Wn. App. at 118 n.6 (citing Otto M. Kraus & Ronald E. Mallen, The Misguiding Hand of Counsel—Reflections on "Criminal Malpractice," 21 UCLA L. Rev. 1191, 1191 n.2(1974)). -5-71054-1-1/6 

### Wn.2d 477, 482, 114 P.3d 637 (2005). The other—postconviction relief—is not at issue here. 

### The innocence requirement is based on compelling public policyconsiderations. Requiring a defendant to prove by a preponderance ofthe evidence that he is 

### innocent ofthe charges against himwill prohibit criminals from benefiting from their own bad acts, maintain respectfor our criminaljustice system's procedural protections, remove the harmful chilling effect on the defense bar, prevent suits 

### from criminals who "may be guilty, [but].. . could have gotten a betterdeal," and prevent a flood ofnuisance litigation. These considerations all support our conclusion that postconviction relief is a prerequisite to maintaining the suit and 

### proof ofinnocence is an additional element a criminal defendant/malpractice plaintiffmust prove to prevail at trial in his legal malpractice action. Falkner, 108 Wn. App. at 123-24 (footnotes omitted) (alteration in original). InOwens v. Harrison, 120Wn. App. 909, 86 P.3d 1266 (2004), Owens appealed a trial court orderdismissing his malpractice lawsuit on summaryjudgment. He argued trial court error premised on requiring him to allege and prove he was innocent ofthe crime for which he was convicted as part of his criminal malpractice claim and the dismissal of his breach of contract claim. Owens argued that we should "carve out an exception to the innocence requirement where defense counsel fails to convey a plea offer and, as a result, the defendant receives an increased sentence." Owens, 120 Wn. App. at 914. We declined to carve out an exception citing our holding in Falkner. "Falkner requires a criminal malpractice plaintiff to establish actual innocence for public policy reasons, and we see no reason to depart from that holding here. Because Owens fails to allege or establish his innocence, the trial court properly granted summaryjudgment." Owens, 120 Wn. App. at 915 (footnote omitted). InAnq, the Angs were indicted on 18 criminal counts related to social security 

### fraud. The Angs initially rejected a plea offer from the State. After conferring with their -6-71054-1-1/7 

### attorney, however, they accepted whatthey considered a less favorable deal before the 

### government concluded its case. The Angs hired new counsel to review the plea. The
new attorney determined the government had not met its burden of proof at trial and 

### that there was no benefit to the plea agreement. The Angs then successfully moved to withdraw their pleas and were acquitted on allcounts. Ang, 154 Wn.2d at 479-80. 

### The Angs sued their former attorneys formalpractice. Responding to two special verdict forms, the jury found thatthe Angs failed to prove by a preponderance of the evidence they were innocent of allthe criminal charges. The Angs appealed. We 

### affirmed. Citing Falkner, our Supreme Court held that a plaintiffbringing a malpractice action against a criminal defense attorney must establish his or her actual innocence of the underlying charge by a preponderance ofthe evidence. Related to the legal causation aspect of proximate causation, our supreme court explained: Legal causation
. . . presents a question of law: "Itinvolves a determination of whether liabilityshould attach as a matter of law given the existence ofcause in fact." To determine whether the cause in fact.
. . should also be deemed the legal cause of [plaintiff's] harm, a court may consider, among otherthings, the public policy implications of holding the defendant liable. Anq, 154 Wn.2d at 482 (citation omitted) (quoting Hartlev v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985)). Otherwise, the courtwrote, the plaintiff's own bad acts should be considered the cause ofthe injury: "Unless criminal malpractice plaintiffs can prove by
a preponderance ofthe evidence their actual innocence ofthe charges, their own bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact oftheir harm." Ang, 154 Wn.2d at485. The court also cited with approval Falkner's public policy rationale supporting an actual innocence requirement: (1) prohibiting criminals from benefitting from their own -7-71054-1-1/8 

### bad act, (2) maintaining respectfor the criminaljustice system, (3) removing the harmful chilling effect on the defense bar, (4) preventing suits from criminals who may be guilty but could have gotten a "'betterdeal,'" and (5) preventing a flood ofnuisance litigation. Anq, 154Wn.2d at 485 (quoting Falknerv. Foshaug, 108 Wn. App. at 123). Intwo related cases, Powell Iand Powell II, we considered whether plaintiff in a 

### criminal malpractice action alleging a sentencing error against his defense attorney must prove by a preponderance ofthe evidence he was actually innocent ofthe crime. Powell Iwas decided while Ang was pending before the Supreme Court. Powell pleaded guilty to solicitation to deliver a material in lieu of a controlled substance, a gross misdemeanorwith a maximum sentence of 12 months. Powell I, 125 Wn. App. at 774. But at sentencing, the trial court sentenced Powell for a class C felony to 38.25 months of confinement. After he discovered the error, he filed a personal restraint petition. Our Supreme Court granted the petition on the ground that the trial court acted outside its authority and remanded for resentencing. By the time he was released, Powell had served 20 months in prison. He sued his criminal defense attorney for legal malpractice and claimed damages for the time he served in prison beyond 12 months. Defendants responded with a CR 12(b)(6) motion to dismiss his lawsuit, arguing Falkner's actual innocence rule applied. The trial court agreed, granted the motion, and dismissed his lawsuit. Powell appealed. We reversed and remanded for reinstatement ofPowell's criminal malpractice claim. We agreed with Powell that application ofthe actual innocence rule in his case was unfair. We compared Powell's situation to that of

an innocent person wrongfully convicted:

-8-71054-1-1/9 

### Although we have no particular quarrel with the innocence requirement generally, we agree with Powell that its application inthis case is unfair. And we 

### observe that postconviction relief, in this instance, has not entirely provided Powellwith what competent representation arguably should have afforded in the firstinstance. Powell has served substantially more time than the trial court was authorized to impose for a gross misdemeanor. We conclude that the blind 

### application ofthe innocence requirementto the facts of this case would go beyond the public policy to be served by the innocence requirement. 

### The policy to be served isthat regardless of the attorney's negligence, a guiltydefendant's conviction and sentence are the direct result of his own perfidy, and no one should be permitted to take advantage of his own wrong. But "an innocent person wrongfully convicted due to inadequate representation has suffered a compensable injury because inthat situation the nexus between the malpractice and palpable harm is sufficientto warrant a civilaction, however inadequate, to redress the loss." Powell's situation is closerto that ofan innocent person wrongfully convicted than of a guilty person attempting to take advantage of his own wrongdoing. Powell has no quarrel with having been incarcerated forthe period 

### of time justified by the gross misdemeanorthat he pleaded guilty to having committed. In sum, we decline to extend the innocence requirement to these facts, for to do so would not serve the public policy
.... Powell I, 125 Wn. App. at 777-78 (citations omitted) (quoting Wiley v. County ofSan Diego, 19 Cal. 4th 532, 539, 966 P.2d 983, 79 Cal. Rptr. 2d 672 (1998)). Powell appealed. The Supreme Court remanded the case for reconsideration in 

### light ofAng.7 In Powell II, we adhered to our rationale in Powell I, noting that in Ang,

our Supreme Court cited Falkner approvingly and concluded that a criminal malpractice plaintiff must prove actual innocence. Ang, 154 Wn.2d. at 486. But neither Falkner norAng requires dismissal of Powell's complaint. Inthose cases, the plaintiffs' allegations ofmalpractice stemmed from the defendants' representation during the guilt or innocence phase ofthe plaintiffs' criminal trials. In contrast, Powell does not contest his guilt, and the allegations of malpractice stem entirely from his attorneys' failure to objectto the court sentencing him to a
7Anq was pending before our Supreme Court when we decided Powel I. After 

### deciding Anq, our Supreme Court granted Powell's petition for review and remanded for reconsideration. -9-71054-1-1/10
much longer sentence than allowed by law. Thejustifications for requiring proof of actual innocence do not apply to Powell's case. Powell, 131 Wn. App. at 813 (footnote omitted). "Powell willnot benefit from his own bad act. He paid for his crime by serving the maximum prison sentence that could be lawfullyimposed. His unlawful restraint beyond that period was not a consequence of his own bad actions." Powell, 131 Wn. App. at 814.8 

### Piris analogizes his situation to Powell. He contends that as in Powell, the sentencing errorwas notthe direct consequence of his own bad act. Instead, the error 

### committed by his attorney resulted in the court's imposition of an unlawful sentence of 159 months, resulting in an additional 13 months served. He asserts, "Just as in Powell, the sentence exceeded the maximum that could lawfullybe imposed." 

### Appellant's ReplyBr. at 4. Piris correctlyquotes the rule that "asentencing court acts 

### without authority...when it imposes a sentence based on a miscalculated offender score." In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618 (2002). But 

### that rule is not helpfulhere in resolving the question ofwhether Powell's narrow exception applies in this case.



### 8Following our remand in PowellII, the defendants moved for summary 

### judgment. Theyfirst arguedthat, under case law and a sentence doubling statutein effect at the time, Powell's offense was actually a class C felony. Second, they asserted that Powell could not establish that any negligence caused himdamage. 

### Finally, they argued that themalpractice action failed because itwas notsupported by any experttestimony establishing a breach ofthe standard of care. Powell v. Associated Counsel forAccused, 146 Wn. App. 242, 247, 191 P.3d 896 (2008). The 

### superiorcourtgrantedthemotion todismiss Powell's claims. Powell, 146Wn. App. at 247. We affirmed. Powell. 146 Wn. App. at 250. -10-71054-1-1/11
We conclude that Powell is distinguishable from the present case. In Powell, we 

### acknowledged the rarity ofPowell's sentencing error as a factor justifying the narrow 

### exception to the actual innocence requirement. There, the court mistakenly imposed a felony sentence ratherthan a gross misdemeanor sentence. We noted that the maximum term ofconfinementfor a gross misdemeanor is limited by statute to one 

### year.9 ButPowell was sentenced for a class Cfelony to 38.25 months ofconfinement. We viewed the error in Powell as particularly egregious because he served in


### excess of the statutory maximum sentence thatcould legally be imposed given the misdemeanoroffense for which he pleaded guilty. The sentencing errorin this case is 

### qualitatively dissimilarto the errorin Powell. Piris's correct offender score was 6 rather 

### than 7 andyielded a standard range of 146 to 194months instead of a standard range of 159 to 211 months. Generally, a sentencing court has lawful discretionary authority 

### toimpose any sentencefalling within thecorrectstandardrange.10 Thecourtrejected Piris's requestfor anexceptional sentence of48 months. It imposed a "bottom end" sentence of159 months. It declined to impose the State's high-end recommendation of 211 months. While it is correctthat miscalculation ofthe offender score renders the 

### sentence unlawful, a sentence of 159 months falls within the 146 to 194 months 9RCW9A.20.021(2): 

### Gross misdemeanor. Every personconvicted of a gross misdemeanorinTitle 9A RCW shall be punished by imprisonment in the countyjailfor a maximumterm 

### fixed bythe courtof up to threehundred sixty-fourdays orby afine in anamount fixed bythecourtof notmorethanfive thousanddollars, or byboth such imprisonment and fine. 

### 10 Generally, a defendant isprecludedfrom appealing a sentence within the 

### standard range. RCW9.94A.585(1); Statev. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993). -11-71054-1-1/12


### standard range for Piris's offense. Unlike in Powell, Piris's original sentence of 159 months did not exceed "the maximum that could lawfully be imposed" as was the case 

### in Powell. Appellant's Reply Br. at 4. It is not disputed thatthe original sentencing court here could have lawfullyimposed up to the high end ofthe standard range. 

### Piris's assertions rely on the unfounded assumption thatthe original sentencing courtwould have imposed the bottom end of 146 months ifinformed ofthe correct 

### standard range.11 That assertion rests on mere speculation. Given the record here, it is impossible to know whether the original sentencing courtwould have imposed 146 months or 159 months based on a correct offender score calculation. In essence, whetherthe appropriateness of 159 months drove the court's original sentencing decision orthe desire to impose the lowest possible sentence remains an unanswered question. 

### Recognizing the uniqueness ofthe sentencing error in Powell, we observed, The highly unusual alleged facts ofthis case, whereby an alleged egregious error 

### by defense counsel allowed a defendantto be sentenced to a term substantially longerthan the maximum term allowed by statute, and the defendant actually served time in prison beyond the correct maximum term, are not likely to occur with any freguency. Powell, 131 Wn. App. at 815 (emphasis added). We also noted with concern that Powell's claim presents an allegation of particularly egregious attorney 

### negligence—failure to advise the court that itwas sentencing Powell for a felony, when he committed a misdemeanor. We do not imagine thatthis is a common 

### oversight bydefense attorneys. Carving a narrow exception to the rule requiring
11 Piris's contentions that his case is controlled by Powell rests on the 

### assumption that the originalsentencing court undoubtedly wouldhave imposed the "bottom end sentence" of 146 months. -12-71054-1-1/13 

### proof ofactual innocence will not dissuade attorneys from pursuing careers in criminal defense. Powell, 131 Wn. App. at 814 (footnote omitted). 

### We concluded by holding, "[U]nderthe facts of this case, we adopt a very limited exception to the rule requiring proofofactual innocence in a legal malpractice case 

### stemming from a criminal matter." Powell, 131 Wn. App. at 815 (emphasis added). Powell leaves no doubt that the innocence exception granted inthat case was grounded 

### in a rare sentencing error—a defendantwho mistakenly is sentenced to a felony when 

### he committed a gross misdemeanor.12
12 We note with concern the potential for opening a floodgate of criminal 

### malpractice lawsuitsinvolving claims of sentencing errors given the ever-increasing complexities ofthe Sentencing Reform Act (SRA). 

### "The difference of a single point may add or subtractthree years to an offender's sentence. Therefore, the accurate interpretation and application ofthe SRA is ofgreat 

### importanceto both the State and the offender. Because each offense must be analyzed underthe law in effect at the time the offense was committed, each time the SRA is 

### amended, itadds an additional level of complexityto the task of courts, as well as the 

### prosecution, the defense, and the DepartmentofCorrections. State v. Jones. 118Wn. App. 199, 76 P.3d 258 (2003), isillustrative. In Jones, thetrial court was required to analyze and attempt toharmonizethree separate amendments to the SRA. As Judge DeanMorgan observed in Jones, "[i]t isextremely difficulttoidentifywhat statute 

### applies to agiven crime, much less tocoordinatethat statutewith others thatmay be related." Id. at 211-12. Since the SRA was adopted in 1981, ithas been amended by 

### 181 session laws.FN4 The complexity and difficulty applying the SRA isexacerbated by 

### each successive change to the SRA. Interpreting and harmonizing amendments to the SRA has increasingly occupied thetime ofboth trial and appellatecourts. In all likelihood this trend will continue. In the 58th legislature alone, 97 bills were introduced, 

### which proposed a total of 262changes to the SRA. Notwithstanding constant modifications to the law, courts strive to make the law clear, understandable, and predictable. 

### "FN4. Jones, 118Wn.App. at 211 n.32 (listing 175 session laws that amended 

### the SRA; however, absentfrom thislistwas Uws of2003, ch. 53). The 58thlegislature also amended the SRA with five session laws in 2004. Laws of 2004, ch. 38; Laws of 

### 2004, ch.94; Laws of 2004, ch. 121; Laws of2004, ch. 166; Uwsof 2004, ch. 176. In 

### all, the58th legislature considered 97 billsthatwould haveamended theSRA. Ofthose 97 billsconsidered, 14 were enacted, www.leg.wa.gov/pub/billinfo/2003- -13-71054-1-1/14


### Falkner requires a criminal malpractice plaintiffto establish actual innocence for 

### public policy reasons. Falkner, 108Wn.App. at 123-24. "Thepublic policy behind this requirement is that '[r]egardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct consequence of his own perfidy,' and, thus, cannot be the basis forcivil damages." Falkner, 108 Wn. App. at 120 (alteration in original) (footnotes omitted) (quoting Wiley, 966 P.2d at 986)). Here, Piris's own 

### criminalconduct led to his conviction and subsequent sentence. His criminal history led 

### to an offender score calculation that yielded a 146 to 194 month standard range sentence. A sentence of 159 months falls within this standard range. 

### Piris also relies on a 2008 publication ofthe Legal Malpractice treatise by Ronald Mallen and Jeffrey Smith to argue thatthe "'issue of guilt or innocence is relevant, ifthe client's complaint is the fact of conviction, ratherthan the severity ofthe sentence or other conseguences. But 'actual innocence' is 'not relevant ifthe attorney's error
concerns the extent or severity ofthe sentence.'" Appellant's Br. at4-5 (citation omitted) (quoting 3 Ronald E. Mallen &Jeffrey M.Smith, Legal Malpractice § 26.13 

### (2007 ed.)).13'14

04/chapter_to_bill_table.htm (last checked May 11, 2004); www.leg.wa.gov/wsladm/billinfor1/rcw_sl_selections.cfm?year=03 (last checked May 11, 2004); www.leg.wa.gov/wsladm/billinfo1/rcw_sl_selections.cfm (last checked May 11, 2004); www.leg.wa.gov/wsladm/billinfo/rcw_to-biil_table.cfm (last checked May 11, 2004)." In re Pers. Restraint of Christopher LaChappelle, 153 Wn.2d 1, 7, 100 P.3d 805 (2004).13 The 2008 version has been revised and no longer states that rule as absolute. Itpresently reads, "Guilt usually is not relevant ifthe attorney's error concerns the extent or severity ofthe sentence." 3 Ronald E. Mallen &Jeffrey M. Smith, Legal Malpractice § 27.13, at 1057 (2008 ed.) (emphasis added). -14-71054-1-1/15 

### None of the case authorities citedin Legal Malpracticefor this statement applyto the present case. Unlike the facts here, those cases involve (1)sentences exceeding the statutory maximum, (2)jurisdictions thatdo not require proof ofactual innocence, or 

### (3) cases where actual innocence was not raised as a defense. Piriscites no controlling authority where a court carved out an exception to the actual innocence requirementfor

a sentencing error similar to the present facts. Given our dispositive resolution ofthis issue, we need not address Piris's claim 

### regarding collateral estoppel, King County's statute of limitations argument, or the motion to strike.15 CONCLUSION For the reasons discussed above, we decline to extend Powell's narrow innocence exception to Piris's case. Piris cannot satisfy the innocence requirement because he pleaded guilty to two charges and he does not claim to be innocent. Accordingly, his criminal malpractice claim fails to survive summaryjudgment.
We affirm.

WE CONCUR: 

# T^TtTT" Wwu.-- ^Cf D^kei) [•

14 Nielsen cites the 2013 version of Mallen and Smith, also stating that guilt is "usually" not relevant. Br. of Resp't Nielsen at 18. 15 Nielsen filed a motion to strike in this court on August 21, 2014. Init, he 

### alleges that certain statements made by Piris are unsupported or misstatements of the respondents' position. -15-