State v. Willyard

1

STATE OF WASHINGTON, Respondent, v. NICOLE MARIE WILLYARD, Appellant.

No. 56569-2-II

Court of Appeals of Washington, Division 2

August 1, 2023

UNPUBLISHED OPINION

Lee J.

Nicole M. Willyard^[1] appeals the trial court's order denying her motion to withdraw her guilty plea to bail jumping. Willyard argues that she should be allowed to withdraw her guilty plea to bail jumping because it is indivisible from her guilty plea to unlawful possession of a controlled substance in another case and that her bail jumping plea was involuntary because it was induced by misinformation about the sentencing consequences. Willyard also argues in the alternative that her bail jumping conviction must be vacated because the trial court lacked jurisdiction to order her to appear in court for the pending unlawful possession of a controlled substance charge because the State v. Blake^[2] decision declaring the statute that criminalized possession of a controlled substance unconstitutional is retroactive.

Willyard's argument that her bail jumping conviction must be vacated because the trial court lacked jurisdiction to order Willyard appear in court for the pending unlawful possession of a controlled substance charge from which the bail jumping charge arose is beyond the scope of this appeal; therefore we do not address the argument. We hold that Willyard's motion to withdraw her guilty plea is time barred, and the trial court should have transferred the motion to this court to consider as a personal restraint petition (PRP). Therefore, we vacate the trial court's order denying Willyard's motion to withdraw her guilty plea on the merits and remand to the trial court to address the motion under the procedures set forth in CrR 7.8.

FACTS

In April 2003, the State charged Willyard with one count of unlawful possession of a controlled substance. The State amended the charges on September 26, 2003, to add one count of bail jumping for Willyard's failure to appear in court on the unlawful possession of a controlled substance charge on September 23, 2003.

On October 21, 2003, Willyard pleaded guilty to bail jumping and the unlawful possession of a controlled substance charge was dismissed. Also on October 21, 2003, Willyard pleaded guilty in a separate case^[3] to charges of unlawful possession of a controlled substance and obstructing a public servant (obstruction) for conduct that occurred on September 24 2003.^[4] The statement of defendant on plea of guilty for the bail jumping charge was a separate document and had a different case number than the statement of defendant on plea of guilty for the unlawful possession of a controlled substance and obstruction case. The statement of defendant on plea of guilty in the bail jumping case stated that the prosecutor would dismiss the unlawful possession of a controlled substance charge in the same case and recommend to the court that Willyard serve 14 months of total confinement concurrent to the sentences in the other separately filed case for unlawful possession of a controlled substance and obstruction.

The trial court accepted Willyard's plea to bail jumping. The trial court entered the conviction for bail jumping and dismissed the underlying unlawful possession of a controlled substance charge. The bail jumping judgment and sentence listed the unlawful possession of a controlled substance conviction from the other case as an "[o]ther current conviction listed under different cause numbers used in calculating the offender score." Clerk's Papers (CP) at 5. The trial court also included a different 2002 unlawful possession of a controlled substance conviction in Willyard's criminal history used for calculating her offender score.

The trial court sentenced Willyard in the bail jumping case based on an offender score of four, making her total standard sentencing range 12-16 months. The court sentenced Willyard on the bail jumping conviction to 14 months of total confinement and ran that sentence concurrently with the sentence for the unlawful possession of a controlled substance and obstruction convictions in the other case. Because Willyard did not file an appeal, Willyard's judgment in the bail jumping case became final on October 21, 2003, the day it was filed with the superior court clerk.^[5] In February 2021, our Supreme Court issued its opinion in Blake, holding that Washington's former unlawful possession of a controlled substance statute was unconstitutional and void. 197 Wn.2d at 195.

In July 2021, Willyard filed a pro se motion for relief from judgment pursuant to CrR 7.8. Willyard's motion listed the bail jumping case number, as well as the unlawful possession of a controlled substance/obstruction case number in the caption. Willyard argued, in relevant part, that her bail jumping conviction should be vacated because it was predicated on an unlawful possession of a controlled substance charge and that the unlawful possession of a controlled substance charge was for a nonexistent crime under Blake. Willyard argued that because unlawful possession of a controlled substance was the predicate offense for bail jumping, the original trial court lacked jurisdiction to hear the case.

After counsel was appointed for Willyard, counsel filed a motion to withdraw Willyard's guilty plea to the bail jumping charge. Willyard argued that her guilty plea to the bail jumping charge was indivisible from the unlawful possession of a controlled substance and obstruction guilty pleas in the other case. Willyard alleged that the pleas were made and accepted on the same day in the same proceeding. Based on this alleged indivisibility with the unlawful possession of a controlled substance and obstruction pleas in the other case, Willyard argued that she was entitled to withdraw her guilty plea to the bail jumping charge. Willyard also argued that her motion was not time barred and that the trial court should not transfer the motion to the court of appeals for consideration as a PRP. Willyard also filed a separate motion to vacate her unlawful possession of a controlled substance conviction and withdraw her guilty plea to obstruction in the other case.

The State opposed Willyard's motion to withdraw her guilty plea to the bail jumping charge. The State argued that Willyard had not shown her plea was involuntary, Willyard's motion was moot because she had already served her sentence, and Willyard had not shown any prejudice resulting from her guilty plea. However, the State conceded that "State v. Blake renders the judgment and sentence facially invalid; therefore, the time bar does not apply." CP at 84.

The trial court heard all of Willyard's motions to withdraw her pleas during the same show cause hearing. The court concluded that the unlawful possession of a controlled substance conviction in the other case should be vacated and dismissed. However, the court denied Willyard's motions to withdraw her pleas to obstruction and bail jumping. The court ruled that there was not a sufficient basis for Willyard to withdraw her pleas to obstruction and bail jumping. The trial court did not address the time bar issue.

At the end of the hearing, Willyard argued that she did not "see how you can bail jump on a nonexistent claim" and that the State did not have "a right to arrest, therefore, they didn't have a right to impose a bail." Verbatim Rep. of Proc. (VRP) at 23. The trial court responded, "That argument about bail jumping, that wasn't put to the Court today." VRP at 24.

Willyard appeals.

ANALYSIS

A. Lack of Jurisdiction: Argument outside the Scope of this Appeal

Willyard argues that her bail jumping conviction must be vacated because the trial court lacked jurisdiction over the underlying unlawful possession of a controlled substance charge in 2003. Willyard notes in her appellate briefing that this claim was brought in her pro se motion for relief from judgment. We do not address the issue because it is outside the scope of this appeal.

An appellate court's review is necessarily limited by the scope of a given appeal, which is determined by the notice of appeal, the assignments of error, and the substantive arguments of the parties. Clark County v. W. Wash. Growth Mgmt. Hr'gs Bd., 177 Wn.2d 136, 144-45, 298 P.3d 704 (2013). The notice of appeal must designate the decision or part of decision that the party wants this court to review. RAP 5.3(a); Clark County, 177 Wn.2d at 144-45. "After a decision or part of a decision has been identified in the notice of appeal, the assignments of error and substantive argumentation further determine precisely which claims and issues the parties have brought before the court for appellate review." Clark County, 177 Wn.2d at 145.

Here Willyard filed two separate motions at the superior court approximately three months apart: one motion for relief from judgment and one motion to withdraw her guilty plea. Willyard only made jurisdictional arguments regarding the underlying unlawful possession of a controlled substance charge in her motion for relief from judgment, in which she sought to vacate the bail jumping conviction. Willyard's notice of appeal to this court only designates the trial court's denial of her motion to withdraw her plea.

When Willyard attempted to make arguments from her motion for relief from judgment at the hearing below, the trial court stated that the argument was not before the court that day. There is no indication in our record that the trial court ruled on Willyard's motion for relief from judgment, and any decision on that motion is not properly before us in this appeal. Therefore, we do not address Willyard's argument that her bail jumping conviction must be vacated based on a lack of jurisdiction.

B. Motion to Withdraw...