In re Wolf

196 Wash.App. 496

384 P.3d 591

In re the Personal Restraint Petition of: Joseph Leif Wolf, Petitioner.

No. 47455–7–II

Court of Appeals of Washington, Division 2.

October 25, 2016

Kimberly Noel Gordon, Jason Brett Saunders, Law Offices of Gordon & Saunders PLLC, 1111 3rd Ave., Ste. 2220, Seattle, WA, 98101–3213, for Petitioner.

James S. Schacht, Deputy Prosecuting Attorney, 930 Tacoma Ave. S., Rm. 946, Tacoma, WA, 98402–2102, for Respondent.

Maxa, J.¶1 In this personal restraint petition (PRP), Joseph Wolf seeks relief from confinement relating to his guilty plea and the imposition of a Special Sex Offender Sentencing Alternative (SSOSA) sentence in 2008 on two counts of first degree child rape for incidents that occurred when he was 16 years old. Wolf filed this PRP after the trial court revoked his SSOSA sentence and returned him to confinement in 2012 and after he unsuccessfully appealed that decision.

¶2 Wolf was charged and sentenced in adult criminal court because under RCW 13.04.030(1)(e)(v),¹ the “automatic decline” statute, adult criminal court has exclusive jurisdiction and juvenile court must automatically decline jurisdiction when a juvenile who is at least 16 years old is charged with certain crimes. One of the automatic decline offenses is first degree child rape. RCW 13.04.030(1)(e)(v)(C). Wolf argues that the automatic decline statute and his adult court sentence violate the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution.

¶3 We hold that (1) even if the automatic decline statute violates the Eighth Amendment, Wolf has not established that he suffered actual and substantial prejudice as a result of that violation because he presented no evidence that his case likely would have been heard in juvenile court but for the automatic decline statute; and (2) even if the Eighth Amendment required the sentencing court to consider his youth when sentencing him, the trial court did not err because Wolf's youth was immaterial when the trial court adopted the SSOSA sentence to which Wolf agreed. Therefore, we deny Wolf's PRP regarding his Eighth Amendment challenge to his confinement.

¶4 Wolf also challenges the imposition of legal financial obligations (LFOs) as part of his 2008 sentence and the imposition of appellate costs following his unsuccessful appeal of the trial court's revocation of his SSOSA. We hold that (1) Wolf's PRP on LFOs is time barred under RCW 10.73.090 because it was filed more than one year after the LFOs were imposed in 2008 and the trial court's revocation of the SSOSA in 2012 had nothing to do with LFOs, and (2) the imposition of appellate costs without assessing Wolf's ability to pay was not unlawful because courts are not statutorily required to inquire into the appellant's ability to pay before imposing appellate costs under RCW 10.73.160.

¶5 Accordingly, we deny Wolf's PRP regarding his Eighth Amendment challenges to his sentence and his challenges to LFOs and appellate costs.

FACTS

¶6 On June 23, 2008 the State charged Wolf with five counts of first degree child rape. At the time Wolf was 16 years old and living in foster care. His alleged victims were two younger children in the same foster home. The State filed the charges in adult criminal court as required by RCW 13.04.030(1)(e)(v)(C).

¶7 On October 9, Wolf pled guilty to two counts of first degree child rape. The standard sentencing range for Wolf was 120–160 months for each count. The parties submitted an agreed recommendation that Wolf receive a SSOSA sentence that would include a sentence of 131.9 months with 12 months in confinement and 119.9 months suspended on the condition that he successfully complete a three-year outpatient sex offender treatment program and comply with other SSOSA conditions. Wolf urged the trial court to adopt the agreed SSOSA sentence. The trial court accepted the agreed recommendation and imposed the recommended SSOSA sentence.

¶8 The trial court imposed $800 in statutorily mandated LFOs—a $500 crime victim penalty assessment, a $100 DNA fee, and a $200 criminal filing fee—and a $400 discretionary LFO for court-appointed attorney fees and defense costs. The trial court did not make any individualized inquiry into Wolf's current or future ability to pay LFOs.

¶9 Wolf was released from confinement on June 20, 2009. In the next three years, Wolf violated his SSOSA conditions several times.

At hearings on July 24, November 13, March 12, 2010 and July 20, 2011 the trial court found that Wolf violated the conditions of his SSOSA sentence. At the July 20, 2011 hearing, the trial court stated that it was giving Wolf one last chance to comply with the conditions before revoking his SSOSA sentence.

¶10 On February 24, 2012, Wolf returned to the trial court for again violating his SSOSA conditions. The trial court revoked Wolf's SSOSA sentence and ordered him to serve his suspended sentence. Wolf filed a motion for reconsideration, arguing that the trial court should have considered his youth before revoking his SSOSA sentence. The trial court disagreed and denied Wolf's motion.

¶11 Wolf filed a direct appeal of his SSOSA revocation, asserting a procedural due process violation, ineffective assistance of counsel, and the trial court's abuse of discretion in revoking his SSOSA. This court affirmed the revocation in an unpublished opinion.² At the State's request, the trial court added $3,579.64 in LFOs to Wolf's judgment and sentence for appellate costs.

¶12 Wolf now petitions for relief from his confinement and from his LFOs.

ANALYSIS

A. PRP RULES

¶13 A PRP is not a substitute for a direct appeal and the availability of collateral relief is limited. In re Pers. Restraint of Brockie , 178 Wash.2d 532, 539, 309 P.3d 498 (2013). “Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner must meet a high standard before this court will disturb an otherwise settled judgment.” In re Pers. Restraint of Coats , 173 Wash.2d 123, 132, 267 P.3d 324 (2011).

¶14 To be entitled to relief on a PRP, a petitioner must establish by a preponderance of the evidence that there was a constitutional error that resulted in actual and substantial prejudice or that there was a nonconstitutional error involving a fundamental defect that inherently results in a complete miscarriage of justice. Id. This requirement is “necessary to preserve the societal interest in finality, economy, and integrity of the trial process. It also recognizes that the petitioner has had an opportunity to obtain judicial review by appeal.” In re Pers. Restraint of Woods, 154 Wash.2d 400, 409, 114 P.3d 607 (2005).

¶15 In order to obtain relief, a PRP petitioner must specifically identify the evidence supporting his petition. RAP 16.7(a)(2) ; see also In re Pers. Restraint of Williams , 111 Wash.2d 353, 364–65, 759 P.2d 436 (1988). “The petitioner must state the facts on which he bases his claim of unlawful restraint and describe the evidence available to support the allegations; conclusory allegations alone are insufficient.” In re Pers. Restraint of Stockwell , 160 Wash.App. 172, 176, 248 P.3d 576 (2011).

¶16 When a PRP raises pure questions of law, our review is de novo. Coats , 173 Wash.2d at 133, 267 P.3d 324.

B. LEGAL PRINCIPLES—JUVENILE OFFENDERS

1. Automatic Decline Statute

¶17 RCW 13.04.030(1)(e) states, “Except as provided in this section, the juvenile courts in this state shall have exclusive original jurisdiction over all proceedings ... [r]elating to juveniles alleged or found to have committed offenses.” RCW 13.04.030(1)(e) then provides a number of exceptions to this general rule.

¶18 RCW 13.04.030(1)(e)(v) provides an exception to juvenile court jurisdiction for certain identified offenses if “[t]he juvenile is sixteen or seventeen years old on the date the alleged offense is committed.” For these offenses, the adult criminal court has exclusive original jurisdiction; i.e., declination of juvenile court jurisdiction is mandatory. RCW 13.04.030(1)(e)(v)(E)(I). Under RCW 13.04.030(1)(e)(v)(C), one of the exceptions is for the offense of first degree child rape. In other words, the legislature has mandated that a juvenile charged with first degree rape who is at least 16 years old when the offense is committed, like Wolf, must be charged, tried and sentenced in adult criminal court regardless of the circumstances.³

2. Juvenile Sentencing and the Eighth Amendment

¶19 The Eighth Amendment, made applicable to states through the Fourteenth Amendment, prohibits cruel and unusual punishment. Roper v. Simmons , 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). “[T]he Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions.” Id. The basic concept of the Eighth Amendment is that punishment for a crime “ ‘should be graduated and proportioned’ to both the offender and the offense.” Miller v. Alabama , ––– U.S. ––––, 132 S.Ct. 2455, 2463, 183 L.Ed.2d 407 (2012) (quoting Roper , 543 U.S. at 560, 125 S.Ct. 1183 ).

¶20 In recent years, the United States Supreme Court has decided three cases that address imposing certain sentences on juveniles: Miller , 132 S.Ct. at 2469–71, 2475 (mandatory life in prison without possibility of parole for homicide offense); Graham v. Florida , 560 U.S. 48, 68–76, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (life in prison without possibility of parole for nonhomicide offense); and Roper , 543 U.S. at 569–70, 578, 125 S.Ct. 1183 (death penalty). These cases establish that juveniles are different than adults and require special consideration under the Eighth Amendment for certain sentences.

¶21 Most recently, the Court held in Miller that mandatory sentences of life in prison without parole for juveniles who commit homicide violates the Eighth Amendment. 132 S.Ct. at 2469, 2475. The Court did not categorically bar life in prison without parole as a penalty for juvenile offenders. Id. at 2469. Instead it...