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 DIVISION ONE No. 69561-4-1 UNPUBLISHED OPINION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 restraintpetition. 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 contractorLarry Vanderhooftold Lynch to leave, Lynch swore and angrily replied thatVanderhoofwas a punkwho should nottell him what to do. Lynch said if anyone touched him he would bring down more 

### trouble than theycould deal with. Vanderhoofcalled 911 and Lynch left. C/)oNo. 69561-4-1/2 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 peoplein the house to confront him. Vanderhoof, who was standing in the 

### garage, sawLynch aim the rifle directly athim. Afraid for his life, Vanderhoofran for cover. Apolice 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 to30 days home detention. He did not appeal. 

### In June 2011, Lynch filed a CrR 7.8motion to vacate thejudgment and sentence. The State responded that the motion was untimely and asked the 

### superior courtto transfer itto this courtfor treatment as a personal restraint petition. Thesuperior court heard oral argument, denied the motion tovacate, 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). -2-No. 69561-4-1/3 We begin by addressing conflicting language inthe 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 eithertransfer a CrR 7.8 to this court for treatment as a personal restraint 

### petition or, ifthe motion istimely and meets otherrequirements, 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 orderin thiscase could be read as both denying the motion to vacate on itsmerits 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. Theonly reasonable 

### reading oftheorder is thatthecourt concluded themotion wasuntimely, "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 errorto thecourt's denial ofhis motion to vacatehisjudgmentand sentence. We agree that thecourt 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 anygrounds and was 

### required totransfer ittothis courtfor treatment as a personal restraint petition. Smith, 144Wn. App. at 864. Accordingly, we vacate the portion ofthe order denying Lynch's motion.

-3-No. 69561-4-1/4 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 broughtwithin 

### one year after the judgment and sentence becomes final. CrR7.8(b); RCW 10.73.090(1), (2). Lynch'smotion was notfiled within this time period. However, the one-year time limit does not apply ifthe "statute that the defendant was convicted ofviolating 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). Thetime limit is also inapplicable ifthejudgment isfacially invalid or was entered without competentjurisdiction. 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 7.8motion falls within exceptions to thetime-bar because he did not make a "true threat" and therefore the felony harassment 

### statute is unconstitutional as applied to hisconduct. We disagree. Toavoid a FirstAmendment 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 statementwould be interpreted
... as a serious

-4-No. 69561-4-1/5 expression of intention to inflict bodily harm upon or to take the life' ofanother 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 wouldforesee 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 notguilty. RCW 10.73.100(4). Because Lynch pled guilty, the insufficientevidence exception to the time bar is inapplicable. 

### Lynch also argues that the one-year bar does notapply because the sentence he received exceeded the court'sjurisdiction. RCW 10.73.100(5). But 

### this argument rests on thefalse premise that there wasinsufficientevidence ofa "true threat." 

### Finally, Lynch asserts that thejudgment 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.

-5-No. 69561-4-1/6
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:



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