State v. Contreras-Rebollar ( 2013 )

FILE
IN CLERKS OFFICE
IUPREME COUi'!T, STATE OF WABIII«m'llll
DATE ! .JUN 13 20f3
'71:tzG~
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v. NO. 8 7 6 50-9
ADRIAN CONTRERAS-REBOLLAR,
Petitioner. ENBANC
PER CURIAM-In 2007 Adrian Contreras-Rebollar was found guilty of
first degree assault and second degree unlawful possession of a firearm. On appeal the
Court of Appeals affirmed the convictions but remanded for resentencing, State v.
Contreras-Rebollar, noted at 149 Wn. App. 1001 (2009), issuing its mandate in April
2010. On remand the trial court resentenced Contreras-Rebollar and issued a
resentencing order in July 2010. Contreras-Rebollar appealed again, and in March
20 11, while the appeal was still pending, he filed a pro se personal restraint petition in
the Court of Appeals challenging his convictions, which the court consolidated with
the appeal. In August 2011 Contreras-Rebollar moved to file a supplement to his
personal restraint petition. The Court of Appeals granted the motion, and Contreras-
Rebollar filed a supplement on November 22, 2011. The Court of Appeals issued an
opinion in June 2012 again remanding for resentencing but denying Contreras-
Rebollar' s personal restraint petitions, finding the original petition meritless and the
No. 87650-9 PAGE2
supplemental petition untimely. State v. Contreras-Rebollar, noted at 169 Wn. App.
1001 (2012). Contreras-Rebollar now seeks this court's review of the Court of
Appeals' denial of his personal restraint petitions. For the reasons discussed below,
the petition for review is granted in part.
A supplemental personal restraint petition may be filed if it is otherwise timely
under the one-year time limit on collateral attack. In re Pers. Restraint of Bonds, 165
Wn.2d 135, 140, 196 P.3d 672 (2008). The one-year period commences when the
judgment and sentence becomes final on direct appeal. RCW 10.73.090(3)(b). In
finding Contreras-Rebollar's supplemental petition untimely, the Court of Appeals
considered the date of finality the date it issued its mandate in Contreras-Rebollar' s
first appeal, April 14, 2010. But the court in that appeal remanded for resentencing.
Thus, for purposes of triggering the time limit, the judgment and sentence was not yet
final with the issuance of the appellate mandate. In re Pers. Restraint of Skylstad, 160
Wn.2d 944, 954, 162 P.3d 413 (2007). And since in the second appeal the Court of
Appeals again remanded for resentencing, finality of the judgment and sentence was
further delayed. Contreras-Rebollar's supplemental petition, filed during the pendency
of the second appeal, was therefore timely and should have been addressed on the
merits. But Contreras-Rebollar does not show that the Court of Appeals' denial of his
original personal restraint petition merits review.
Accordingly, the petition for review is granted in part and the matter is
remanded to the Court of Appeals to address Contreras-Rebollar's supplemental
personal restraint petition on the merits.