IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

STEPHEN THOMAS LYNCH,

a/k/a STEVEN THOMAS LYNCH,

Appellant.

DIVISION ONE

No. 69561-4-1

UNPUBLISHED OPINION

FILED: JUL " 8 2013

CO

CD

Per Curiam—Stephen Lynch appeals an "OrderTransferring Defendant's

Motion to Vacate Judgment to The Court ofAppeals" for treatment as a personal

restraint petition. Noting that the body ofthe court's order also states that

"Defense motion to vacate is denied," Lynch challenges the denial of his motion

but not its transfer. We vacate the court's denial of Lynch's motion, convert his

appeal to a personal restraint petition, and dismiss the petition as untimely.

In September 2005, Lynch entered the home of his neighbor, Connie

Laire, without permission. In the presence of contractors working on the

premises, he angrily demanded that she return his garage door opener and

yelled obscenities at her. When contractor Larry Vanderhoof told Lynch to leave,

Lynch swore and angrily replied that Vanderhoof was a punkwho should not tell

him what to do. Lynch said if anyone touched him he would bring down more

trouble than they could deal with. Vanderhoof called 911 and Lynch left.

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About half an hour later, Lynch blocked Laire's driveway with his truck,

pulled out a rifle, and began waving and pointing it at Laire's house. One of the

contractors warned everyone in the house that Lynch was armed. Laire looked

out a window and saw Lynch point his gun at the house. Lynch yelled and dared

the people in the house to confront him. Vanderhoof, who was standing in the

garage, saw Lynch aim the rifle directly at him. Afraid for his life, Vanderhoof ran

for cover. A police officer who arrived shortly thereaftersaw Lynch place a rifle in

his truck.

The officer arrested Lynch and found the rifle in histruck. It was loaded

and ready tofire. Lynch denied entering Laire's home without permission and

claimed the contractors surrounded and threatened him.

In 2006, the State charged Lynch with felony harassment. He

subsequently pled guilty bvAlford1 plea and was sentenced to 30 days home

detention. He did not appeal.

In June 2011, Lynch filed a CrR 7.8 motion to vacate the judgment and

sentence. The State responded that the motion was untimely and asked the

superior court to transfer it to this court for treatment as a personal restraint

petition. The superior court heard oral argument, denied the motion to vacate,

and ordered the case transferred to this court for treatment as a personal

restraint petition. Lynch appealed directly to the StateSupreme Court, which

denied direct review and transferred the matter to this court.

1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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We begin by addressing conflicting language in the superior court's order.

Although the order is titled "Order Transferring Defendant's Motion to Vacate

Judgment to The Court of Appeals," the body of the order contains a handwritten

interlineation stating: "Defense motion to vacate is denied." CrR 7.8 authorizes a

court to either transfer a CrR 7.8 to this court for treatment as a personal restraint

petition or, if the motion istimely and meets other requirements, decide it on its

merits. It does not authorize a court to do both. See State v. Smith, 144 Wn.

App. 860, 863, 184 P.3d 666 (2008). To the extent the court's order in this case

could be read as both denying the motion to vacate on its merits and transferring

it to this court for a decision on the merits, that reading renders the order

internally inconsistent and directly contrary to CrR 7.8. The only reasonable

reading ofthe order is thatthe court concluded the motion was untimely, "denied"

it for that reason, and transferred itto this courtfor a decision on the merits. See

State v. Hobble. 126 Wn.2d 283, 295, 892 P.2d 85 (1995) (adopting only

reasonable interpretation of order).

Turning to Lynch's appeal, he assigns error to the court's denial of his

motion to vacate his judgment and sentence. We agree that the court erred, but

for different reasons. Under CrR 7.8, once the court determined that his motion

was untimely, it lacked the authority to deny the motion on any grounds and was

required to transfer it to this court for treatment as a personal restraint petition.

Smith, 144Wn. App. at 864. Accordingly, we vacate the portion ofthe order

denying Lynch's motion.

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Lynch does not challenge the portion of the court's order transferring his

motion to this court for resolution as a personal restraint petition. Treating the

substantive arguments in his appeal as a personal restraint petition, we conclude

that the petition is untimely and must be dismissed.

A CrR 7.8 motion challenging a criminal conviction must be brought within

one year after the judgment and sentence becomes final. CrR7.8(b); RCW

10.73.090(1), (2). Lynch's motion was not filed within this time period. However,

the one-year time limit does not apply if the "statute that the defendant was

convicted of violating was unconstitutional on its face or as applied to the

defendant's conduct" or the "defendant pled not guilty and the evidence

introduced at trial was insufficient to support the conviction." RCW 10.73.100(2),

(4). The time limit is also inapplicable if the judgment isfacially invalid or was

entered without competent jurisdiction. RCW 10.73.090(1); In re Pers. Restraint

of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004).

Lynch contends his CrR 7.8 motion falls within exceptions to the time-bar

because he did not make a "true threat" and therefore the felony harassment

statute is unconstitutional as applied to his conduct. We disagree. To avoid a

First Amendment violation, a conviction for felony harassment must be based on

a "true threat." State v. Kilburn, 151 Wn.2d 36, 43, 46, 84 P.3d 1215 (2004);

State v. Schaler, 169 Wn.2d 274, 282, 236 P.3d 858 (2010). A "true threat" is "'a

statement made in a context or under such circumstances wherein a reasonable

person would foresee that the statement would be interpreted ... as a serious

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expression of intention to inflict bodily harm upon or to take the life' of another

person." Kilburn, 151 Wn.2d at 43 (alteration in original) (internal quotation

marks omitted) (quoting State v. Williams. 144 Wn.2d 197, 207-08, 26 P.3d 890

(2001)). Here, a reasonable person would foresee that Lynch's conduct,

including his angry statements, his blocking of the driveway, and his brandishing

and aiming of his gun, would be interpreted as a serious threat to kill or inflict

bodily harm.

Lynch next contends his motion was timely because there was insufficient

evidence of a "true threat." As discussed above, there was sufficient evidence of

a true threat. In any event, the insufficient evidence exception applies only to

offenders who plead not guilty. RCW 10.73.100(4). Because Lynch pled guilty,

the insufficient evidence exception to the time bar is inapplicable.

Lynch also argues that the one-year bar does not apply because the

sentence he received exceeded the court's jurisdiction. RCW 10.73.100(5). But

this argument rests on the false premise that there wasinsufficient evidence of a

"true threat."

Finally, Lynch asserts that the judgment is invalid on itsface and/orvoid

because he was neither charged with, nor convicted of, making a "true threat."

But the "true threat" requirement is not an element offelony harassment, State v.

Allen, 176 Wn.2d 611, 626-27, 294 P.3d 679 (2013), and thus its absence from

the information or other plea documents does not establish facial invalidity.

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In conclusion, we vacate the denial of Lynch's motion to vacate, convert

the appeal to a personal restraint petition, and dismiss the petition as untimely.

The petition is dismissed.

For the court:

•^ <?.. J

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