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# F1-I:E',

IN CLERKS OFFICE 8I.IJIReMS C'.OURT, STATEOFWASHINOTON

## ~. DAn;NOV 1

# ;:1**~,C._~·** CHIEFJUST!



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

Inthe Matter ofthe Personal Restraint of NO. 90712-9 JAVIERRUIZ-SANABRIA, Petitioner. ENBANC

Filed: 

### NOV 12 2015

----------------- PER CURIAM-Hundreds of Washington prison inmates annually file personal restraint petitions and other forms ofcollateral challenge to theirjudgment and sentences. The large majority ofthese petitioners are unrepresented by counsel, and for many ofthem, a timely postconviction motion or personal restraint petition is their last opportunity to seek relief from a final judgment and sentence. See RCW 7.36.130(1) (no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody unless a petition is filed within the time allowed by RCW 10.73.090 and 10.73.100). The restrictive statutes have as a corollary court rules that are intended to ensure relevant court records are reviewed before a determination is made on a timely personal restraint petition that may foreclose the availability offurther relief. In this instance, Javier Ruiz-SanabriatimelyNo. 90712-9 PAGE2

filed a motion in superior court to withdraw his guilty plea to several sex offenses. The court transferred his motion to Division One ofthe Court ofAppeals, but without indicating the basis for the transfer and without transferring all records filed in relation to Ruiz-Sanabria's CrR 7.8 motion. Considering the motion as a personal restraint petition based solely on the partial record that was transmitted, and without requesting aresponse from the State, the acting chief judge ofDivision One dismissed the petition as frivolous. We take this occasion to clarify the criteria a superior court must consider before transferring a postconviction motion to the Court ofAppeals, the relationship between the rules governing personal restraint petitions and evidentiary prerequisites that a petitioner must meet, and when the petitioner's allegations may require the court to consult existing court records that the petitioner has not produced. We have said that the petitioner must demonstrate that he has competent, admissible evidence to establish the facts that entitle him to relief, and that bare assertions and conclusory allegations are insufficient. SeeIn re Pers. Restraintof Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). But ifthe petitioner makes specific and material factual allegations withinthe petitioner'sknowledge about courtproceedings that canbe answeredby the State, the Court ofAppeals should require a response that includes the relevant court documents. In this instance, remand to the Court ofAppeals is warranted for reasons explainedbelow. Ruiz-Sanabria is a citizen of Mexico. In 2008, the State charged him in King County Superior Court with three counts ofsecond degree child rape, one count of first degree child rape, and two counts of first degree child molestation. RuizSanabria fled to Mexico but was apprehended and brought back to Washington inNo. 90712-9 PAGE3

2012. He eventually pleaded guilty to one count offirst degree child rape, one count ofsecond degree child rape, and two counts offirst degree child molestation. Because he did not appeal, hisjudgment and sentence became final when it was filed by the clerk ofthe trial court in September2012. See RCW 10.73.090(3)(a). On December 27, 2012, Ruiz-Sanabria timely filed a motion in superior court to withdraw his guilty pleas, along with a supporting affidavit, claiming that defense counsel was ineffective in relation to the pleas. See CrR 7.8. On March 26, 2013, Ruiz-Sanabria filed a memorandum of authorities in support ofhis motion to withdraw. Ruiz-Sanabria asked the court to direct the State to file a response. The superior court did not direct the State to file a response until November 15, 2013. 1 It appears that in lieu of a response, the State filed in the superior court a deputy prosecutor's affidavit, a transcript ofRuiz-Sanabria's plea hearing, and a request to transfer the matter to the Court ofAppeals for consideration as a personal restraint petition. See CrR 7.8(c)(2). It appears the superior court mailed the State's submissions to Ruiz-Sanabria on December 9, 2013. OnDecember 16, 2013, and over Ruiz-Sanabria's written objection, the court transferred his motion to Division One of the Court ofAppeals, ruling in its entiretythat "[d]efendanthas filed apost-conviction motion. Pursuantto CrR7.8(c)(2), the matter is transferredto the Court ofAppeals for consideration as a personal restraint petition." The superior court transferred some records pertaining to Ruiz-Sanabria's CrR 7.8 motion to the Court ofAppeals, but a number ofrecords were not transferred, including the original CrR 7.8 motion and supporting affidavit, the deputyprosecutor's affidavit, and the pleahearingtranscript.

1In the meantime, Ruiz-Sanabria filed apetition for writ ofmandamus in this court, seeking to compel the superior court to direct the State to file a response to his postconviction motion. In re Pers. Restraint ofRuiz-Sanabria, No. 89430-2 (Wash. Oct. 21, 2013). This court dismissed the petition as moot after the superior court ordered the Stateto file aresponse.No. 90712-9 PAGE4

In the Court of Appeals, Ruiz-Sanabria renewed his objection to the transfer and asked the Court ofAppeals to (1) send a copy ofhis petitionto the King County prosecutor and (2) direct the prosecutor to respond to the petition. Without seeking a response, the acting chiefjudge dismissed the petition, rejecting RuizSanabria's objection to the transfer and ruling that his "self-serving statements" were insufficient to support his claims. The acting chiefjudge also faulted Ruiz-Sanabria for notproviding courtrecords, including acopy ofhis pleahearing transcript. Ruiz-Sanabria filed a motion in this court for discretionary review. At the court's direction, the State filed an answer supported by relevant records. We now grantreview. 2 As indicated, Ruiz-Sanabria initiated his collateral challenge by way ofa CrR 7.8 motion filed in superior court. The pleading requirements for such a motion

are simple, requiring only a statement ofgrounds on which the defendant seeks relief, "supported by affidavits setting forth a concise statement ofthe facts or errors upon which the motion is based." CrR 7.8(c)(l). In this instance, Ruiz-Sanabria appareqtly supported his motion with certain records and correspondence with defense counsel and one or more separately filed affidavits. We are somewhat unsure exactly what he filed because, as noted, the superior court apparently did not transfer all of the pertinent materials to the Court of Appeals. In any event, the deputy prosecutor's affidavit addresses specific paragraphs in Ruiz-Sanabria's affidavit in support ofhis CrR 7.8 motion.

2We also grantRuiz-Sanabria'smotion to supplement-whichwe treat as amotion to amend-his motion for discretionary review to allege that failure to name a respondent violatedhis rightto due process. See WASH. CONST. art. I, §3.No. 90712-9 PAGES

Ifthe superior court retains a postconviction motion and denies it on the merits, the defendant has a right to direct appeal. RAP 2.2(a)(10). But the superior court must transfer a postconviction motion to the Court ofAppeals for consideration

as a personal restraint petition "unless the court determines" that the motion is not time barred and either the defendant has made a substantial showing of merit or a factual hearing is required to decide the motion. CrR 7.8(c)(2). Here, the superior courtmerely stated that it was transferringRuiz-Sanabria's motion in accordance with this rule. It would be more beneficial to the Court ofAppeals ifthe superior court expressly statedthe basis for the transfer. And ifthe superior court fails to showthat it meaningfully engaged in the CrR 7.8(c)(2) transfer analysis, the Court of Appeals should consider remanding the motion to the superior court for that purpose.3 See RAP 16.8.1(c) (Court ofAppeals mayremand erroneouslytransferred CrR7.8 motion to superior court).4 In any event, in this instance the Court ofAppeals considered the motion as a personal restraint petition and dismissed it under RAP 16.11(b), and Ruiz-Sanabria has exercised his right to seek discretionary review in this court. See RAP 16.14(c); RAP 13.5A(a)(1).5

3 A preprinted transfer order with check boxes corresponding to CrR 7.8(c)(2) criteriamay servethis purpose. 4 This rule, which was not in effect when the acting chiefjudge considered RuizSanabria's CrR 7.8 motion, provides a summary mechanism for the Court ofAppeals to remand transfer orders to the superior court for correction. Remand in appropriate circumstances had been a practice of the Court of Appeals even before adoption of RAP 16.8.l(c). 5 Ruiz-Sanabria's concern that transfer ofhis CrR 7.8 motion deprives him ofan opportunity to avoid the proscription against successive petitions under RCW 10.73.140 is misplaced. Although a CrR 7.8 motion is a form ofcollateral challenge for purposes ofthe statute barring successive petitions in the Court ofAppeals, this court has jurisdiction to consider a successive petition raising a new issue even ifthe Court ofAppeals may not. RCW 10.73.090(2); CrR 7.8(b); In re Pers. Restraint of Becker, 143 Wn.2d 491, 496-97, 20 P.3d 409 (2001); In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 351-52, 5 P.3d 1240 (2000).No. 90712-9 PAGE6



### Once a CrR 7.8 motion is transferred to the Court ofAppeals, the motion becomes subject to more rigorous pleading standards applicable to personal restraint petitions, as set forth in RAP 16.7. In particular, the petitioner must identify "the evidence available to supportthe factual allegations" and whythe petitioneris entitled to collateral relieffor one or more reasons listed in RAP 16.4(c). RAP 16.7(a)(2)(i). If the evidence supporting the petitioner's factual allegations exists in court records, the petitioner should identify the records and where they can be found. RAP 16.7(a)(3). A motion conforming to the more relaxed pleading standards set forth in CrR 7.8(c)(1) will not necessarily meet the standards set forth in RAP 16.7. In apparent recognition of this fact, and reflecting the fact that most personal restraint petitioners are proceeding pro se, the rules authorize the clerk of the appellate court to file technically deficient petitions and direct the petitioner to correct the deficiencies within 60 days. RAP 16.8(c). In this instance, it appears that Ruiz-Sanabria's CrR 7.8 motion was not completely transferred to the Court of Appeals. In particular, it seems the initial motion and the supporting affidavit were not transferred. These documents were part and parcel ofthe motion to be transferred. See 

### CrR 7.8(c)(1) (application shall be made by motion stating the grounds on which relief is asked and supported by affidavits setting forth a concise statement ofthe facts or errors on which the motion is based); CrR 8.2 (providing that CR 7(b) governs motions under the criminal rules, with CR 7(b) in turn providing that a motion supported by affidavits or other papers shall specify the papers to be used by the moving party). The record suggests the "Defendant's Memorandum ofAuthorities in Support ofMotion to Withdraw Guilty Plea" was transferred, and that memorandum makes specific references to theNo. 90712-9 PAGE7

affidavit filed in support ofthe motion to withdraw plea. In light ofthis apparently missing record and Ruiz-Sanabria's objection to transfer below, either the Court of Appeals should have treatedthe objectionto transfer as a conditional motionto amend the petition (iftransfer was accepted), and allowed time to do so, or it should have remandedto the trial court withdirections to transferthe entire motionfile. 6 Ruiz-Sanabria contends that the Court ofAppeals should have requested a response from the State before it dismissedhis petition. Underthe rules in effectwhen the acting chief judge considered Ruiz-Sanabria's petition, a response was not required ifthe court could determine without a response that the petition should be dismissed under RCW 10.73.090 or RCW 10.73.140. Former RAP 16.9 (2006). In turn, RCW 10.73.140 directs the Court ofAppeals to determine whether a petition is based on frivolous grounds, and "[i]ffrivolous, the court ofappeals shall dismiss the petition

... without first requiring the state to respond to the petition."7 But in appropriate situations, the chiefjudge's decision as to whether the issues presented in

a timely petition are frivolous is best made after considering aresponse and anyreply. See RAP 16.11(b) (the chiefjudge determines at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition; if, after consideration of the response and any reply, the chief judge determines that the issues presented are frivolous, the chiefjudge will dismiss the

6 Ruiz-Sanabria complains that the Court ofAppeals did not serve his transferred petition on the State. The rules state thatthe clerk ofthe appellate courtwill serve acopy of the personal restraint petition "on the officer or agency under a duty to respond to the petition." RAP 16.8(d). But we need not decide whether the Court ofAppeals failed to comply with this rule, or whether the State was then under a "duty" to respond because Ruiz-Sanabria mailed a copy ofhis CrR 7.8 motion to the prosecutor, and the prosecutor was plainly aware ofthatmotion. 7 Current rules now direct the appellate court to dismiss a petition without requesting a response if it is "clearly frivolous" or clearly untimely or improperly successive. RAP 16.8.l(b).No. 90712-9 PAGES petition).8 Here, Ruiz-Sanabria's argument that the Court Appeals should have called for a response may be reasonable if one was to examine his initial motion and the supporting affidavits. If Ruiz-Sanabria stated with some specificity that the factual basis for his claim that his plea was involuntary was in part the plea colloquy, and

even ifsuch statements can be described as entirely self-serving, ifthe allegations are material they are factually specific enough under RAP 16.7(a)(2) to merit a substantive response, with copies ofrelevant records. RAP 16.9(a). Factual assertions of what occurred in court proceedings made by petitioners in support ofrelief are inherently "self-serving," but ifthe petitioner was present in court and had knowledge ofwhat occurred, the better course is for the Court ofAppeals to require the State to respond if the factual assertions are material and it disputes those facts. The rules applicable to personal restraint petitions do not explicitly require that the petitioner submit evidence but rather the petition must identify the existence of evidence and where it may be found. See RAP 16.7(a)(2). That the rules are not more rigorous in this regard reflects acknowledgment that prison inmates face particular difficulties in obtaining evidence and court records, especially if they are incarcerated outside of Washington. Furthermore, where an offender, like Ruiz-Sanabria, does not appeal his judgment and sentence, there is no direct appeal record from which to draw relevant documents and transcripts. Inthis instance, we note that the State filed in the superior court an affidavit refuting specific allegations Ruiz-Sanabria made in an affidavit supporting his CrR 7.8 motion, along with a transcript it prepared ofthe pleahearing. As indicated, those materials were apparently not transferred to the Court ofAppeals, which is not Ruiz-Sanabria's fault. And this court was not aware ofthese documents

8 For purposes of these rules, "Chief Judge" includes "Acting Chief Judge." RAP 16.1l(a).No. 90712-9 PAGE9

until the State, at this court's direction, filed an answer to Ruiz-Sanabria's motion for discretionaryreview. In light ofthe foregoing considerations, we are unsure whetherthe superior court engaged in a meaningful CrR 7.8(c)(2) analysis before transferring the postconvictionmotionto the Court ofAppeals or, iftransfer was appropriate, whether the Court of Appeals had a sufficiently complete record to accurately determine whether Ruiz-Sanabria's personal restraint petition merited a response or whether it should have been dismissed as frivolous under RAP 16.11(b). We thus remand this

case to the Court ofAppeals with directions to either (1) remand the motion to the superior court for reconsideration of CrR 7.8(c)(2) criteria or (2) obtain from the superior court all pleadings, records, and correspondence filed in connection with Ruiz-Sanabria's CrR7.8 motion and thenreconsiderhis collateral attack accordingly.9

9 For the first time in his reply to the State's answer to his motion for discretionary review, Ruiz-Sanabria challenges the accuracy of the Spanish translation of the crimes listed in his plea form and he demands an evidentiary hearing on the accuracy of the Spanish interpreter at this plea hearing. Because Ruiz-Sanabria improperly raises this issue for the first time in amotion for discretionary review, we grant the State's motion to strike this issue and it will not be considered by this court. See In re Pers. Restraint of Lord, 152 Wn.2d 182, 188 n.5, 94 P.3d 952 (2004).