Proposed Rules ArchivesRAP 16.8 - Personal Restraint Petition - Filing and Service
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9 COVER SHEET REQUEST
TO AMEND RAP 16.8 Date: September 4, 2022 Proponent: Kelly Vomacka,
WSBA #20090 Law
Office of Kelly Vomacka 14900 Interurban Ave.
S., Suite 271 Tukwila, WA 98168 Spokesperson: Kelly Vomacka kelly@vomackalaw.com Purpose: The purpose of the amendment is to
relieve defendants from paying a filing fee if their motion for relief from judgement
under CrR 7.8 is transferred from Superior Court to
the Court of Appeals. Currently, defendants must pay a filing fee of $250 even
though they did not file a case in either court and even if they objected to
the transfer. Public Hearing: Not requested Expedited
Consideration: Not requested. SUPPLEMENTAL MATERIAL I. Introduction A criminal defendant may move the
Superior Court for relief from judgment under CrR 7.8, such as to withdraw a guilty plea or to be resentenced. In
some circumstances, the Superior Court may transfer the motion to the Court of Appeals for
consideration as a Personal Restraint Petition. If it does, the defendant then has to pay a filing fee in the Court of
Appeals, even though he never filed any case in any court. The filing fee is currently $250. This
amendment would remove the unfair requirement that a party pay a filing fee for a case he did not file. II. Support After conviction, defendants’
lives go on. Whether they serve a prison sentence or not, they grow older, start families, get jobs, heal from addiction
and trauma, and move away from their earlier errors. At the same time, the law itself continues to
evolve, sometimes correcting past injustices
and making new relief available for previous defendants. In
recent years, for example, courts and legislators have changed sentencing laws for juveniles and young adults. In re Pers. Restraint of Monschke, 197 16 Wn.2d 305, 482 P.3d 276 (2021); State v. Houston-Sconiers, 188 Wn.2d 1,
391 P.3d 409 (2017); State v. Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018); In re Pers. Restraint of Forcha-Williams, 18 Wn. App.2d 167, 490 P.3d 255 (2021). They have abolished drug possession convictions and the offender points that come with them. State
v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). They have limited which crimes are “most serious offenses,” commonly called
“strikes.” Laws 2019, ch. 187, sec. 1. They have recognized that defense attorneys must advise their
clients of the immigration consequences of guilty pleas. Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L.Ed.2d 284 (2010). They have changed the requirements for restitution and other legal financial
obligations. Laws 2018, ch. 269; Laws 2022, ch. 260. And the list goes on.
As a result, defendants have many reasons to challenge their convictions and sentences. Defendants can generally use one
of two procedures to seek a new trial or a new sentence. They can file a Personal Restraint Petition (PRP) in the Court
of Appeals, or they can file a motion for relief from judgment under CrR 7.8 in
Superior Court. In deciding which to file, defendants and their attorneys consider many factors. For example, CrR 7.8 motions are usually decided within a few weeks, and PRPs can take years. CrR 7.8
motions are heard by the same judge who heard the original case, and PRPs go to a panel of appellate judges who have no prior
connection to the case. If the motion requires that testimony be taken, the testimony can be taken only
in Superior Court. CrR 7.8 motions require less briefing and easier argument than PRPs. Because they are
easier, CrR 7.8 motions generally carry lower legal fees. For these reasons and more, deciding which
type of procedure to use is often a strategic consideration. If the defendant files a CrR 7.8 motion, he files it into the original criminal
case. If he files a PRP, he must pay a filing fee of $250 to the Court of
Appeals, because he is initiating a new case.
RAP 16.8(a); RCW 2.32.070. (Note that RCW 2.32.070 refers to
this as a “docket fee,” but the court itself refers to it as a “filing fee.” See attached letter from
the Court of Appeals.) However, one rule lets the courts
treat CrR 7.8 motions differently than all other criminal motions. Under certain conditions, the Superior Court can
transfer the CrR 7.8 motion to the Court of Appeals for consideration as a PRP. CrR
7.8(c)(2). If the case is transferred, the Court of Appeals then has a new case to consider and seeks its usual $250 filing
fee. It cannot seek this fee from the State, because RCW 2.32.070 says, “No fees shall be required to
be advanced by the state or any municipal corporation, or any public officer prosecuting or defending
[in the appellate courts] on behalf of such state or municipal corporation.” Therefore, the court
seeks the filing fee from the defendant. The court seeks the filing fee
even though the defendant did not file the case in the Court of Appeals and in fact may have objected to transfer. The
defendant also did not file the original criminal case in Superior Court. And yet in order to access the
relief that may be available to him—for example, a lawyer who tells him up front that he will lose his green
card if he pleads guilty, or a sentence that considers the particular qualities of youth, or that is
not based on a void law—he must pay $250. If
the defendant is indigent or incarcerated, the fee can be
waived. RAP 16.8(a); RCW 4.24.430. But if he
is not indigent—if he is living his life, raising his family,
working his job, all many years after conviction—then he must
pay. Other kinds of cases can be
transferred from Superior Court to the Court of Appeals, with no filing fee. If a party in an administrative or land-use
proceeding appeals to Superior Court, the Superior Court can transfer the case to the Court of Appeals as a
direct appeal. In both of those situations,
the filing fee is waived. RCW 34.05.518 (administrative); RCW
36.18.018(2) (land use). The proponent of the amendment is
an attorney whose practice includes post-conviction relief, often for immigrants. Her clients are almost never
incarcerated or indigent and are seeking relief from conviction many years—sometimes decades—after conviction.
Two of her clients have been required to pay the fee. For the second client, counsel moved the
Court of Appeals to waive the fee, which it declined to do. Counsel then moved to modify that ruling,
which the court also declined to do. Counsel believes the only way to relieve defendants from paying
the fee is to amend RAP 16.8. A defendant should not have to
pay a filing fee for a case he never filed. He should not have to pay a fee for a transfer he neither sought nor agreed to,
and that he might have resisted. Although many defendants are indigent and eligible for a waiver, the fee
lands on people who have been rehabilitated, who are stable and have left their past behind them, who
are not indigent but are seeking relief they never should have been denied in the first place. To
require them to also pay a filing fee for a case they did not file is unfair. III. Conclusion RAP 16.8(a) should be amended to relieve defendants from paying a filing fee for a case they never filed.
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Very truly yours,
Derek M. Byrne Court Clerk
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