State v. Lowden [First-Degree Murder]


 Court of Appeals of Washington

Division III

No. 29546-0-III.

December 8, 2011


Shadan Kapri, Senior Deputy Prosecuting Attorney, Stevens County Prosecuting Attorney’s Office Representing the State of Washington.

David Koch, Attorney at Law, Nielsen, Broman, & Koch PLLC, Seattle, WA, for Appellant.

Appeal from Stevens Superior Court; Honorable Allen Nielsen


SIDDOWAY, J. — On June 17, 1994, Mr. Lowden was convicted of murder in the first-degree and sentenced to 320 months in prison.  He appealed his conviction, which we affirmed.

In 2005, Mr. Lowden filed a PRP with this court arguing his conviction was based on inadmissible hearsay in violation of the confrontation clause (U.S. CONST. Amend VI and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).  The petition was dismissed.

On August 23, 2010, Mr. Lowden filed a CrR 7.8 motion in Stevens County Superior Court seeking a correction of his judgment and sentence, arguing that the combination of prison time and community custody imposed exceeded the authorized maximum sentence for his crime and the judgment was invalid on its face.  The prosecutor responded that Mr. Lowden’s motion was untimely.  On November 10, 2010, the superior court issued an order denying the motion on the merits and deeming it untimely.  Mr. Lowden appeals.


Mr. Lowden’s appointed counsel argues that the trial court lacked jurisdiction to dismiss the CrR 7.8 motion on the merits and asks that we reverse the trial court, convert the motion to a PRP [Personal Restraint Petition], and consider the PRP on the merits.  He notes that because Mr. Lowden has filed a prior PRP our conversion of the motion does not present a risk of adverse collateral consequences that would warrant our giving notice and an opportunity for Mr. Lowden to object to conversion in the superior court.  Cf. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666 (2008) (automatic c of a CrR 7.8 motion could have barred a later PRP under rules applicable to successive collateral attacks).   The State asks us to affirm the superior court’s merits based dismissal, arguing that because CrR 7.8 pertains to the procedure for vacation of judgment, Mr. Lowden’s distinguishable request for correction of his sentence should not be converted to a PRP.

Under CrR 7.8(c)(2), a trial court must transfer a motion to vacate judgment to this court unless it determines that the motion is timely filed under RCW 10.73.090 and “either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.”  In other words, only if the motion is timely and appears to have merit or requires fact finding should the superior court retain and hear the motion;  in all other cases, for purposes of efficient judicial administration, the motion is transferred to this court.  The superior court found that Mr. Lowden’s motion was untimely, which it is.  For that reason, it should have been transferred to us.  Smith, 144 Wn. App. at 863 (superior court did not have authority to dismiss CrR 7.8 motion that was untimely filed under RCW 10.73.090).

The State cites no authority for its suggested distinction between vacation and correction.   Mr. Lowden’s motion for correction of sentence was explicitly one for relief from judgment based on CrR 7.8(b)(4) and, in the superior court, was responded to on that basis by the State.  Clerk’s Papers (CP) at 36, 74.  Other authorities cited by the State in asking us to affirm the superior court address substantive bases for relief from a judgment but do not address the procedural requirements of the current version of CrR 7.8.  We will therefore grant the request to convert the motion.

Treating the appeal as a PRP, we conclude that it is time-barred [as the State originally argued in its brief].  Mr. Lowden argues that the judgment and sentence is invalid on its face because it sentences him to 320 months, the high-end of the standard sentence range for first-degree murder, plus 24 months community custody.  He argues that the sentence exceeds the maximum term set by the legislature.  But the maximum sentence for a Class A Felony was in 1994, and remains today, life imprisonment.  RCW 9A.20.021(1)(a).  When a defendant is convicted of a Class A Felony for which a life sentence is the maximum penalty, there is effectively no statutory maximum limit.  State v. Harvey, 109 Wn. App. 157, 166 34 P.3d 850 (2001), overruled on other grounds by State v. Thomas, 150 Wn.2d 666, 672-73, 80 P.3d 169 (2003).  The judgment and sentence is valid on its face.  Mr. Lowden was advised of the time limit specified in RCW 10.73.090 and 10.73.100.  CP at 16-17.  His motion, filed over 16 years after the June 17, 1994 date on which his judgment because final, is untimely under RCW 10.73.090.

We must also dismiss the petition an unsupported successive petition under RCW 10.73.140.  The statute provides that upon receipt of a successively filed PRP. this court “will not consider the petition unless the person….shows good cause why [he] did not raise the new grounds in the previous petition.”  RCW 10.73.140.  “If upon review, [this court] finds…that the petitioner has failed to show good cause why the ground was not raised earlier, [this court] shall dismiss the petition on its own motion.”  Id.  Mr. Lowden’s motion does not establish any cause for his failure to raise the new grounds in his previous petition.

Having converted Mr. Lowden’s motion to a PRP [Personal Restraint Petition], we dismiss it as successive and untimely.   [Footnote 1 - Mr. Lowden filed a statement of additional grounds.  Each is predicated on the assumption that his motion presented substantive arguments that warrant consideration on the merits.  We have reviewed Mr. Lowden's arguments, conclude they are without merit, and will not further address them.]

Siddoway, J

We CONCUR:   Korsmo, A.C.J;  Sweeney, J.

*Prosecutor’s Note:  This case was appealed to the Washington State Supreme Court.  Review was denied by the Court on May 7, 2012.

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