§ 24.5 Issues Cognizable and Relief Available

• Jurisdiction: Washington

§24.5 ISSUES COGNIZABLE AND RELIEF AVAILABLE

This section discusses what claims may be raised in a personal restraint petition and what relief can be gained by a successful petitioner.

(1) Issues cognizable in a personal restraint petition

A broad range of issues could potentially be raised under RAP 16.4(c). See §24.3(2), above. Below is an illustrative, rather than exhaustive, survey of potential claims that may be raised via personal restraint petition.

(a) Guilty pleas

A personal restraint petition is available to determine the constitutional validity of a guilty plea to a criminal offense. E.g., In re Thompson, 141 Wn.2d 712, 10 P.3d 380 (2000); In re Hews, 108 Wn.2d 579, 588-97, 741 P.2d 983 (1987). "A constitutionally invalid guilty plea gives rise to actual prejudice." In re Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987). See the discussion of "actual prejudice" in §24.4(1), above. A broken plea bargain raises constitutional issues that may be addressed in a personal restraint petition. In re James, 96 Wn.2d 847, 849, 640 P.2d 18 (1982); see also In re Lord, 152 Wn.2d 182, 94 P.3d 952 (2004) (petition granted because prosecutor breached plea agreement). A personal restraint petition may not be used to challenge the violation of a court rule relating to guilty pleas. Such challenges can only be raised on direct appeal. In re Keene, 95 Wn.2d 203, 205, 622 P.2d 360 (1980).

A guilty plea can be the subject of a timely direct appeal from the judgment. James, 96 Wn.2d at 849. Therefore, if the time to appeal has not run, or if the right to appeal can be reinstated, counsel should prosecute a direct appeal and may avoid the demanding prejudice standards applied in personal restraint proceedings. See §24.5(1)(d), above, regarding reinstatement of the right to appeal.

(b) Trial errors

Trial errors resulting from constitutional or statutory violations may be raised in a personal restraint petition. RAP 16.4(c)(2). However, relief will not be granted, except as to some inherently prejudicial constitutional errors, unless the petitioner is able to show either "actual prejudice" (as to constitutional errors) or "complete miscarriage of justice" (as to nonconstitutional errors). See §24.4, above, for discussion of these standards. Thus, for example, evidentiary error could not be the subject of a personal restraint petition unless that error worked a denial of a constitutional right or rendered the proceedings fundamentally unfair. The failure to raise a claim on appeal does not bar raising it via personal restraint petition. See In re Cook, 114 Wn.2d 802, 809-12, 792 P.2d 506 (1990). See discussion in §24.4. There may, however, be procedural limitations, which are discussed in §24.6.

(c) Sentencing issues

Personal restraint petitions are always available to correct illegal or unauthorized sentences. In re Moore, 116 Wn.2d 30, 33, 803 P.2d 300 (1991). Petitioners can obtain resentencing when the trial court misunderstood the applicable law-and so imposed a sentence under misapprehension about the alternative sentences available—or when later clarifications in the law render the sentence incorrect. In re Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007); In re Greening, 141 Wn.2d 687, 9 P.3d 206 (2000); In re Vandervlugt, 120 Wn.2d 427, 435-36, 842 P.2d 950 (1992); In re Carle, 93 Wn.2d 31, 604 P.2d 1293 (1980). When prior convictions should not have been considered in an "offender score," resentencing is available via a personal restraint petition. In re Williams, 111 Wn.2d 353, 356-62, 759 P.2d 436 (1988). Questions of credit for jail time or "good time" against a prison sentence are also cognizable. In re Mota, 114 Wn.2d 465, 788 P.2d 538 (1990), superseded on other grounds by RCW 9.94A.150; see In re Williams, 121 Wn.2d 655, 662, 853 P.2d 444 (1993); In re Phelan, 97 Wn.2d 590, 647 P.2d 1026 (1982).

In challenging illegal or unauthorized sentences, the petitioner must meet the personal restraint petition's threshold requirement of demonstrating "actual and substantial prejudice." In re Grisby, 121 Wn.2d 419, 425, 853 P.2d 901 (1993).

(d) Reinstatement of right to appeal

The right to appeal a criminal conviction is a state constitutional right, and when the state cannot prove that the right has not been knowingly waived, an appeal is subject to reinstatement via postconviction petition. State v. Kells, 134 Wn.2d 309, 314, 949 P.2d 818 (1998); State v. Sweet, 90 Wn.2d 282, 581 P.2d 579 (1978). A motion to extend time to appeal rather than proceeding with a personal restraint petition should be strongly considered in any case in which an appeal has not been taken, because a broader spectrum of issues may be litigated on direct appeal and issues on appeal will usually be considered under more favorable standards of review. See §§24.2(2)(b), 24.4(1). See City...