May 24, 2021

 

 

 

Justice Charles Johnson

Justice Mary Yu

Co-Chairs, Supreme Court Rules Committee

Washington Supreme Court

415 12th Ave SW
Olympia, WA 98501-2314

 

 

Re:  Suggested amendments to CrR 3.1, Right To And Assignment of Lawyer and

        CrR 7.8, Relief From Judgment Or Order

 

Dear Justice Johnson and Justice Yu:

 

The Washington State Office of Public Defense (OPD), Washington Defender Association (WDA), and Washington Association of Criminal Defense Lawyers (WACDL) are submitting suggested amendments to CrR 3.1 and CrR 7.8, and requesting expedited adoption in the interest of justice.

 

The following is submitted pursuant to GR 9(e):

 

Name of Proponents:  Washington State Office of Public Defense (OPD), Washington Defender Association (WDA), Washington Association of Criminal Defense Lawyers (WACDL)

 

Spokesperson:  Larry Jefferson, Director, Washington State Office of Public Defense

 

Purpose:  CrR 3.1 and CrR 7.8 should be amended on an expedited basis to remove unjust barriers to the appointment of counsel in cases eligible for resentencing under the Supreme Court’s recent decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). The legislature has provided funding to Office of Public Defense (OPD) to ensure counsel in these cases. Additional funding can be requested, if needed.

 

Some courts have taken broad approaches to providing counsel for all currently sentenced individuals impacted by Blake. Meanwhile, other courts are requiring impacted individuals to research, draft, and properly file pro se motions in which they must successfully articulate a basis for relief prior to qualifying for counsel. The suggested amendments to CrR 3.1 and CrR 7.8 would acknowledge the profound injustice already suffered by persons convicted under unconstitutional and invalid statutes and would ensure their equal treatment in courts statewide.

 

Persons convicted of violating RCW 69.50.4013 and its previous iterations over the past 40-plus years are entitled to timely relief because the Supreme Court found the drug possession statute to be void, invalid, and unconstitutional. This is a distinct situation from individuals seeking collateral attacks based on other legal strategies. OPD, Washington Defender Association, and Washington Association of Criminal Defense Lawyers urge the adoption of a pathway to timely legal representation that ensures equity and efficiency where individuals are entitled to relief based on significant changes in the law. This approach also provides a basis for representation for other similarly situated persons, such as those entitled to relief under In re Personal Restraint of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021), In re Personal Restraint of Domingo-Cornelio, 196 Wn.2d 255, 474 P.3d 524 (2020), and In re Personal Restraint of of Ali,196 Wn.2d 220, 474 P.3d 507 (2020).

 

Hearing: Not requested

 

Expedited Consideration:  Expedited consideration is in the interest of justice and efficient court operation. Thousands of people are currently serving unlawful prison sentences, and without timely access to qualified counsel many will linger in custody unnecessarily. The complexity of navigating ongoing COIVD restrictions at DOC institutions and the courts requires that they have an attorney to assist them at the outset of the resentencing process.

 

The suggested amendments to CrR 3.1 and CrR 7.8 are identified below at Attachment 1.  We are available to discuss at your convenience.

 

Best regards,

 

 

 

Larry Jefferson, Director

Washington State Office of Public Defense

 

Christie Hedman, Executive Director

Washington Defender Association

 

Amy Hirtotaka, Executive Director

Washington Association of Criminal Defense Lawyers