In re Schorr

422 P.3d 451

In the MATTER OF the Personal Restraint of William Craig SCHORR, Petitioner.

NO. 94591-8

Supreme Court of Washington.

Oral Argument Date: June 12, 2018

Filed AUGUST 02, 2018

William Craig Schorr, Pro Se.

Robin Khou Sand, Pierce County Prosecutor's Office, 930 Tacoma Avenue S, Room 946, Tacoma, WA 98402-2171, for Respondent.

Rita Joan Griffith, Attorney at Law, 4616 25th Avenue NE, PMB 453, Seattle, WA 98105-4523, Thomas E. Weaver, Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).

GORDON McCLOUD, J.

¶ 1 William Craig Schorr pleaded guilty to first degree murder, first degree robbery, second degree arson, and first degree theft in 2006. Eleven years later, he filed a personal restraint petition (PRP) challenging the convictions of both first degree murder and first degree robbery on double jeopardy grounds. The Court of Appeals dismissed the PRP as untimely and treated the double jeopardy claim as waived.

¶ 2 We affirm the Court of Appeals but on different grounds. We adhere to our prior decisions holding that challenges to sentences that exceed the court’s authority—like the double jeopardy challenge to the sentence in this case—cannot be waived. We also reaffirm that double jeopardy claims are exempt from the one-year time bar on collateral challenges. We therefore address the merits of Schorr’s claim.

¶ 3 Schorr’s simultaneous convictions of first degree murder and first degree robbery do not violate double jeopardy clause protections. Schorr was charged with first degree murder by two alternative means: premeditated murder and felony murder predicated on first degree robbery. Our case law clearly holds that when criminal defendants plead guilty to charges in an information, they cannot pick and choose the portions of the charges to which they will plead guilty. Thus, even though first degree felony murder predicated on first degree robbery would merge with the first degree robbery on which it is predicated, that was not the only means of first degree murder to which Schorr pleaded guilty. He also pleaded guilty to the alternative means of premeditated murder. A first degree robbery conviction certainly does not merge with a first degree premeditated murder conviction.

¶ 4 We therefore dismiss the PRP.

FACTS

¶ 5 According to the State’s declaration for determination of probable cause, Schorr and Jeremy Hosford planned and executed a robbery of a Snap-on Tools Company truck. On February 24, 2004, Schorr and Hosford armed themselves with guns and flagged down the truck. They handcuffed the victim, Robert Shapel, and stole his personal property. One or both of them also pulled a plastic bag over Shapel’s head and duct-taped it at his neck. Shapel suffocated and died. Schorr and Hosford then dumped the body.

¶ 6 The Snap-on Tools Company truck was left in a parking lot for several hours. Schorr and Hosford later returned to the truck, stole the tools, and set the empty truck on fire.

¶ 7 On March 2, 2004, the State charged Schorr with aggravated murder and several other crimes. On November 16, 2005, however, Schorr agreed to plead guilty to lesser charges. Suppl. Br. of Resp’t, App. B. He did this specifically to "eliminate[ ] the possibility that defendant will be subject to the death penalty or a sentence of life without the possibility of parole." Id. , App. D at 2, para. 2 (plea agreement).

¶ 8 On August 4, 2006, the State filed an amended information to implement this plea agreement. Id. , App. C. The aggravated murder charge was gone. Instead, the amended information charged first degree murder in count I by two alternative means: premeditated murder in violation of RCW 9A.32.030(1)(a) and felony murder in violation of RCW 9A.32.030(1)(c). Id. at 1-2. Each alternative means included a firearm enhancement. The State also charged first degree robbery, second degree arson, and first degree theft (counts III, IV, and V). Id. at 2-3.

¶ 9 On November 16, 2005, Schorr pleaded guilty to that amended information. Schorr’s plea agreement included a "Waiver of appeal and collateral attack rights regardless of changes in the law" in which Schorr agreed not to bring "any kind of future legal challenge to his convictions and sentences." Id. , App. D at 5-6 (underlining omitted).

PROCEDURAL HISTORY

¶ 10 In January 2017, Schorr filed a pro se PRP. He raised a single claim: he argued that his first degree robbery and first degree theft convictions violate double jeopardy clause protections because both convictions should have merged with his first degree felony murder conviction. Schorr also argued that because his PRP was based on a double jeopardy claim, his petition was exempt from the one-year time limit on collateral review. RCW 10.73.090 (one-year time limit), .100(3) (exception to one-year time limit for double jeopardy claims).

¶ 11 The Court of Appeals dismissed the petition. Mot. for Discr. Review, App. (order). It ruled that Schorr waived his right to seek collateral review and that his PRP was also untimely. Id.

¶ 12 Schorr filed a motion for discretionary review in this court. He now argues that his first degree robbery conviction should have merged with his first degree murder conviction.

ANALYSIS

I. Schorr’s PRP is exempt from the one-year time limit

¶ 13 The State first argues that Schorr’s PRP is untimely and should therefore be dismissed.

¶ 14 We disagree. Schorr did file his PRP well after RCW 10.73.090 ’s one-year time limit. But his collateral challenge is based solely on a double jeopardy clause violation. Under RCW 10.73.100(3), double jeopardy claims are exempt from RCW 10.73.090 ’s one-year time limit. This is a threshold inquiry; we do not have to decide whether the entire claim is completely meritorious in order to decide whether it fits within an exception to the time bar. See In re Pers. Restraint of Yung-Cheng Tsai, 183 Wash.2d 91, 99-108, 351 P.3d 138 (2015) (examining whether two petitioners’ PRP claims fit within the RCW 10.73.100 exception to 10.73.090’s one-year time bar first, for both the petitioner whose claim did survive and also the petitioner whose claim did not survive).

¶ 15 Schorr’s PRP is based solely on a double jeopardy claim, and hence, it clearly fits within the RCW 10.73.100(3) exception to the one-year time bar.

II. Schorr did not waive the right to bring his double jeopardy claims

¶ 16 The State also argues that Schorr waived his right to bring this double jeopardy claim. Based on the record in this case, we disagree.

A. A defendant can validly waive many rights in a plea agreement

¶ 17 A criminal defendant can validly waive many rights in a plea agreement. For example, a defendant can relinquish the right to trial, the right to confront one’s accusers, and the privilege against self-incrimination. Boykin v . Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (pleading guilty implicates the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to confront one’s accusers, and the Sixth Amendment right to trial by jury); U.S. CONST . amends. V, VI.

B. Some rights, however, cannot be waived in a plea agreement

¶ 18 But not all rights can be validly waived in a plea agreement. For example, courts have repeatedly held that claims concerning constitutional violations that arise after the entry of the plea cannot be waived by a plea agreement.¹ Similarly, a defendant cannot waive the right to effective assistance of counsel in a plea agreement.² As the Seventh Circuit has explained:

Justice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself—the very product of the alleged ineffectiveness. To hold otherwise would deprive a defendant of an opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.

Jones v . United States , 167 F.3d 1142, 1145 (7th Cir. 1999).

¶ 19 Waivers of the right to be sentenced free from constitutionally impermissible factors such as race are also ineffective. United States v . Baramdyka , 95 F.3d 840, 843 (9th Cir. 1996) ("[W]e have recognized that the waiver of a right to appeal may be subject to certain exceptions such as ... racial disparity in sentencing among codefendants ...." (citing United States v . Johnson, 67 F.3d 200, 202 n.4 (9th Cir. 1995) ) ); United States v. Marin , 961 F.2d 493, 496 (4th Cir. 1992) ("[A] defendant could not be said to have waived his right to appellate review of a sentence ... based on a constitutionally impermissible factor such as race.").

C. A defendant cannot validly waive the right to challenge a sentence that exceeds the court’s authority

¶ 20 Of particular importance here, this court has repeatedly held that a criminal defendant cannot validly waive the right to challenge a sentence in a plea agreement that exceeds the court’s statutory authority.³ In re Pers. Restraint of Goodwin , 146 Wash.2d 861, 873-74, 50 P.3d 618 (2002) ("In keeping with long-established precedent, we adhere to the principles that a sentence in excess of statutory authority is subject to collateral attack ... and that a defendant cannot agree to punishment in excess of that which the Legislature has established."); In re Pers. Restraint of Moore , 116 Wash.2d 30, 38, 803 P.2d 300 (1991) (" ‘[A] plea bargaining agreement cannot exceed the statutory authority given to the courts.’ " (alteration in original) (quoting In re Pers. Restraint of Gardner , 94 Wash.2d 504, 507, 617 P.2d 1001 (1980) ) ). In Goodwin, for example, Goodwin filed a PRP requesting resentencing based on an offender score miscalculation. Even though Goodwin agreed to an incorrect offender score in his statement on plea of guilty, this court "adhere[d] to the principles that a sentence in excess of statutory authority is subject to collateral attack ... and that a defendant...