IN RE: the Personal Restraint Of ARMONDO RAY SEPULVEDA (2011)

conviction relief.   Because Sepulveda fails to demonstrate that he is entitled to relief even if the time bar does not apply, we deny his petition.

BACKGROUND

In September 1989, Sepulveda pleaded guilty to one count of first degree rape and one count of first degree robbery in King County Superior Court ^{1 2}

In September 2008, Sepulveda ^{3 4}

In response, the State admits that it cannot provide a transcript of the sentencing hearing because the case was not appealed, and no transcript was ordered before the court reporter retired.   The Department of Corrections has provided documents prepared for In Personal Restraint of Runyan,⁵ to establish that on the day Sepulveda arrived at the Washington Corrections Center, DOC provided every incoming inmate with a document explaining the time bar as required by RCW 10.73.120.

DISCUSSION

Even assuming, without deciding, that the time bar does not apply here, to prevail in his personal restraint petition, Sepulveda bears the heavy burden of showing either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a “complete miscarriage of justice.” ⁶  Misinformation regarding the applicable statutory maximum for a charged crime may constitute a manifest injustice, rendering a plea involuntary and justifying withdrawal of the plea.⁷

In McKiearnan, the petitioner was informed, in exactly the same manner as was Sepulveda, that his statutory maximum was “twenty (20) years to life imprisonment,” when the “actual statutory maximum was simply life imprisonment.” ⁸  The Supreme Court held that McKiernan “was aware of the standard range sentence he would receive and that he could be sentenced up to a maximum term of life imprisonment.” ⁹  The court continued, “The maximum was life in prison whether he was informed that the maximum sentence was 1 year to life, 10 years to life, or 20 years to life.” ¹⁰  Because “McKiearnan was aware of the maximum amount of time he would serve in confinement” regardless of the misstatement, he “was not substantively misinformed as to the maximum sentence.” ¹¹

Sepulveda argues that the above quoted language in McKiearnan is dicta, while the main holding is confined to the Supreme Court's rejection of the claim that the misstatement rendered the judgment and sentence invalid on its face.   He claims that McKiearnan does not answer the question of whether the misstatement of the maximum sentence as “20 years to life” constitutes misinformation about a direct consequence of a guilty plea rendering the plea invalid.   We disagree.   Regardless of the misstatement, Sepulveda was accurately informed that the maximum amount of time he could serve in confinement as a result of his guilty plea was life.   Thus, Sepulveda fails to establish a manifest injustice justifying withdrawal of his plea and his petition must be denied.

Denied.

WE CONCUR:

FOOTNOTES

FN1. Personal Restraint Petition (PRP), App. B at 1..  FN1. Personal Restraint Petition (PRP), App. B at 1.

FN2. PRP, App. A at 2..  FN2. PRP, App. A at 2.

FN3. Sepulveda admits that he filed his petition after the State relied on the 1989 conviction in proceedings against him under the Persistent Offender Accountability Act..  FN3. Sepulveda admits that he filed his petition after the State relied on the 1989 conviction in proceedings against him under the Persistent Offender Accountability Act.

FN4. 165 Wn.2d 777, 203 P.3d 375 (2009)..  FN4. 165 Wn.2d 777, 203 P.3d 375 (2009).

FN5. 121 Wn.2d 432, 853 P.2d 424 (1993)..  FN5. 121 Wn.2d 432, 853 P.2d 424 (1993).

FN6. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990);  In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983)..  FN6. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990);  In re Pers. Restraint of Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983).

FN7. CrR 4.2(f);  State v. Weyrich, 163 Wn.2d 554, 557, 182 P.3d 965 (2008) (defendant who was misinformed that the statutory maximum sentence for his crimes was 5 years, rather than the applicable 10 year maximum, should have been allowed to withdraw pleas)..  FN7. CrR 4.2(f);  State v. Weyrich, 163 Wn.2d 554, 557, 182 P.3d 965 (2008) (defendant who was misinformed that the statutory maximum sentence for his crimes was 5 years, rather than the applicable 10 year maximum, should have been allowed to withdraw pleas).

FN8. 165 Wn.2d at 779..  FN8. 165 Wn.2d at 779.

FN9. Id. at 782..  FN9. Id. at 782.

FN10. Id. at 782-83..  FN10. Id. at 782-83.

FN11. Id. at 783..  FN11. Id. at 783.

Ellington, J.-Armondo Ray Sepulveda pleaded guilty to first degree rape in 1989.   Both the plea agreement and the judgment and sentence stated that the maximum sentence for the crime was a prison term of 20 years to life, when in fact the actual statutory maximum was simply life imprisonment.   In his personal restraint petition, Sepulveda argues that his plea was involuntary and may be withdrawn because he was misinformed of a direct consequence of his plea.   He claims that his petition is not time barred because he was not informed at sentencing of the one year time limit for post