Piris v. Kitching , 185 Wash. 2d 856 ( 2016 )

Johnson, J.

¶1 — This case asks us to decide whether the “actual innocence” element of a criminal malpractice¹ claim against a trial attorney, an appellate attorney, and King County through its agency, the Department of Public Defense, applies to the facts of this case to bar the action. The complaint here alleges negligence based on the failure to schedule a resentencing hearing after the Court of Appeals remanded, and asserts that the defendant served more prison time than he otherwise would have had he been promptly resentenced. In this case, we hold that actual innocence is a necessary requirement to pursue the criminal malpractice claim and that no exception applies. We affirm the Court of Appeals, upholding the trial court’s grant of summary judgment of dismissal in favor of all respondents.

Facts and Procedural History

¶2 Rape of a child in the first degree is a class A felony, carrying a maximum term of confinement of life imprisonment. Christopher Piris was charged with three counts of first degree rape of a child, which occurred between September 27, 1990, and September 27, 1993. Piris pleaded guilty to two of those counts. The rape charges arose out of two separate incidents that occurred when Piris (who was between 11 and 13 years old at the time) had sexual intercourse with his stepbrother (who was then between 9 and 11 years old). Although the rapes occurred between 1990 and 1993 when Piris was a minor, he was charged in 1997 when he was 19 years old and in 1998 pleaded guilty to two counts of first degree rape of a child.

¶3 On May 14, 1999, Judge Charles Mertel of the King County Superior Court sentenced Piris to 159 months of imprisonment—the bottom of the standard sentencing range of 159 to 211 months—which was calculated using an offender score of seven. At the sentencing hearing, Judge Mertel stated that although he did not find the facts justified an exceptional sentence downward, he was “going to sentence [Piris] at the bottom of the standard range [,] which is .. . 159 months.” Clerk’s Papers (CP) at 69. Alfred Kitching, an attorney with Society of Counsel Representing Accused Persons (SCRAP) (collectively Kitching), represented Piris at the trial court.

¶4 On appeal, Eric Nielsen, of the law firm Nielsen, Broman & Koch PLLC, represented Piris and argued that the trial court incorrectly calculated Piris’s offender score. Division One of the Court of Appeals agreed in an unpublished opinion, finding that Piris should have been sentenced with an offender score of six, rather than seven. This score would have resulted in a standard range sentence of 146 to 194 months, rather than 159 to 211 months. The court vacated Piris’s sentence and remanded for resentenc-ing. That order was filed on February 14, 2000, and the mandate issued on April 7, 2000.

¶5 The Court of Appeals sent a copy of the opinion to both Nielsen and Piris. Nielsen asserted that upon receipt of the opinion, “based on his invariable habit, custom and practice, he [would have] sent a copy of the opinion to Mr. Piris with a cover letter explaining the decision.” CP at 98. Nielsen also claimed that upon receipt of the mandate, he wrote to Piris, enclosing the mandate and informing Piris that he was closing Piris’s file. In addition, Nielsen “wrote to King County Office of Public Defense to inform that office of the decision,... that a resentencing hearing should be scheduled,” and that Piris would need representation. CP at 99. Nielsen “may also have sent a copy of the decision to SCRAP and to Mr. Kitching or informed them of the decision.” CP at 99. Piris denies that he heard from Nielsen regarding the reversal of his sentence.

¶6 Piris was not resentenced for another 12 years. On May 7, 2012, Piris appeared before Judge Timothy Bradshaw (Judge Mertel had since retired) on an alleged violation of his supervised release terms. Realizing that Piris had never been resentenced, Judge Bradshaw imposed a sentence of 146 months for the two counts of rape of a child in the first degree. While this sentence was at the bottom of the corrected standard sentencing range, the record does not indicate the judge’s reasoning for choosing this term of confinement. By the time Piris was resen-tenced, he alleged he had served all 159 months of his original term of imprisonment.

¶7 In March 2013, Piris filed this legal malpractice action against Kitching and Nielsen. He later amended his complaint to include King County. Piris alleged that due to his attorneys’ negligence, he was incarcerated for 13 months longer than his sentence allowed. The defendants all moved for summary judgment, which the superior court granted, stating, “The basis for the dismissal is the ‘actual innocence’ requirement as set out in Ang v. Martin, 154 Wn.2d 477[, 114 P.3d 637] (2005).” CP at 249. The court denied Piris’s motion for reconsideration, and Piris timely appealed.

¶8 In a published opinion, Division One of the Court of Appeals affirmed, holding that Piris had to prove he was actually innocent of the underlying criminal charges. The court held that he could not make such a showing “because he pleaded guilty to two charges and he does not claim to be innocent.” Piris v. Kitching, 186 Wn. App. 265, 280, 345 P.3d 13 (2015). Piris petitioned this court, and we granted review. Piris v. Kitching, 183 Wn.2d 1017, 355 P.3d 1153 (2015).

Analysis

¶9 The Court of Appeals affirmed summary judgment for the defendants. We review an order granting summary judgment de novo, “ ‘taking all facts and inferences in the light most favorable to the nonmoving party.’” Jackowski v. Borchelt, 174 Wn.2d 720, 729, 278 P.3d 1100 (2012) (quoting Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007) (plurality opinion)). Summary judgment is appropriate where the moving party shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). To establish a claim for legal malpractice, generally, a plaintiff must prove

(1) [t]he existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney’s breach of the duty and the damage incurred.

Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992).

¶10 A plaintiff also bears the burden of proving two additional elements concerning proximate cause when alleging criminal malpractice. First, as a prerequisite, the plaintiff must have obtained postconviction relief. Second, the plaintiff must prove actual innocence of the underlying criminal charge by a preponderance of the evidence. At issue here is the actual innocence requirement.

¶11 We addressed this requirement in the context of a criminal malpractice case in Ang. In that case, the Angs were a married couple indicted on 18 criminal counts related to Social Security fraud. They hired two defense attorneys for trial. Before trial, the attorneys negotiated a plea bargain, which the Angs rejected, and the case proceeded to a jury trial. Five days into trial, the Angs’ attorneys recommended a second plea deal. The Angs viewed this plea agreement as the least desirable. Mr. Ang “was allegedly told that Mrs. Ang could face sexual assault in prison,” which convinced the couple to take the agreement offered during trial and plead guilty to 2 of the 18 counts. Ang, 154 Wn.2d at 480. The Angs sought an outside opinion from another attorney, who concluded that the government failed to meet its burden of proof and that the plea agreement the Angs accepted provided them no material benefit. Through another attorney, the Angs then successfully moved to withdraw their pleas (which the judge had not formally accepted), and the matter moved to a bench trial. At the new trial, the government offered yet another plea agreement, which was rejected, and the Angs were acquitted on all 18 counts. The Angs sued their former attorneys, claiming malpractice, and the case went to trial before a jury. The jury found that the Angs failed to prove by a preponderance of the evidence that they were innocent of all criminal charges against them. The Angs appealed.

¶12 We held that for a plaintiff to bring a malpractice action against a criminal defense attorney, he or she must establish actual innocence of the underlying charge by a preponderance of the evidence. We reasoned that for legal causation to satisfy proximate cause, the actual innocence requirement was rooted in public policy: “To determine whether the cause in fact . . . should also be deemed the legal cause of [plaintiff’s] harm, a court may consider, among other things, the public policy implications of holding the defendant liable.” Ang, 154 Wn.2d at 482 (citing Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985)). We identified five factors of public policy rationale that mandated the actual innocence requirement in criminal malpractice cases: (1) prohibiting criminals from benefiting from their own bad act, (2) maintaining respect for the criminal justice system, (3) removing the harmful, chilling effect on the defense bar, (4) preventing suits from criminals who may be guilty but could have gotten a better deal, and (5) preventing a flood of nuisance litigation. Ang, 154 Wn.2d at 485. We found that actual innocence is critical to a criminal malpractice claim and that “[u]nless criminal malpractice plaintiffs can prove by a preponderance of the evidence their actual innocence of the charges, their own bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact of their harm.” Ang, 154 Wn.2d at 485. These policy concerns still serve as the underpinning of the actual innocence requirement.

¶13 Piris does not ask us to overrule Ang, but asks us instead to recognize and apply an exception to the actual innocence requirement that was crafted in Powell v. Associated Counsel for the Accused, 125 Wn. App. 773, 106 P.3d 271 (2005) (Powell I), and Powell v. Associated Counsel for the Accused, 131 Wn. App. 810, 129 P.3d 831 (2006) (Powell II) (collectively Powell). While we do recognize the extremely narrow circumstances supporting the Powell exception, we find it inapplicable here. In Powell, Clint Powell pleaded guilty to a gross misdemeanor (solicitation to deliver a material in lieu of a controlled substance), which carried a maximum sentence of 12 months. Evidently, no one recognized this, and the trial court sentenced Powell for a class C felony and to 38.25 months of confinement. Once Powell discovered the error, he filed a personal restraint petition, which was granted, and he was resentenced. Powell served over 20 months in prison by the time he was released.

¶14 Powell sued his criminal defense attorney for legal malpractice and claimed damages for the time he served beyond an allowable 12-month gross misdemeanor conviction sentence. The court’s decision centered on the fact that “Powell . . . served substantially more time than the trial court was authorized to impose for a gross misdemeanor.” Powell I, 125 Wn. App. at 777 (emphasis added). The court found that “Powell’s situation is closer to that of an innocent person wrongfully convicted than of a guilty person attempting to take advantage of his own wrongdoing.” Powell I, 125 Wn. App. at 778. Powell’s unauthorized felony sentence and his defense attorney’s failure exhibited a “nexus between the malpractice and palpable harm ... sufficient to warrant a civil action.” Powell I, 125 Wn. App. at 778. The Court of Appeals concluded that the policy considerations Ang and other cases discussed did not apply to Powell’s case. As a result, the court adopted “a very limited exception to the rule requiring proof of actual innocence in a legal malpractice case stemming from a criminal matter” where the trial court imposes a sentence it had no authority to order. Powell II, 131 Wn. App. at 815.

¶15 Here, Piris urges that his case is indistinguishable from Powell. He argues that the Powell exception dispenses the actual innocence requirement when a criminal malpractice plaintiff alleges malpractice only in sentencing. Piris emphasizes that the public policy considerations underpinning our decision in Ang do not apply to malpractice in sentencing, and that there are no other sound policy reasons for requiring a malpractice plaintiff to show actual innocence when alleging sentencing errors.

¶16 Nielsen and Kitching counter that Ang controls and requires dismissal. They describe Piris’s case as an example of a criminal defendant bringing a malpractice claim against his former attorneys because he “could have gotten a better deal.” Resp’t Nielsen’s Suppl. Br. at 7, 12; Suppl. Br. of Resp’ts SCRAP & Kitching at 14. This claim is the very type of case the actual innocence requirement seeks to avoid. Nielsen argues that the exception in Powell is limited to malpractice resulting in an illegal sentence and that extending Powell’s narrow exception to other sentencing errors would undermine the public policies supporting the actual innocence requirement. Kitching, on the other hand, urges this court to go so far as to overrule Powell. He argues that it contradicts Ang, creates uncertainty, and could quickly become an exception that swallows the rule, thereby undermining the policies supported by the actual innocence requirement.

¶17 In the alternative, both Nielsen and Kitching argue that even if we embrace the reasoning in Powell, we should affirm the lower courts because Piris’s case is distinguishable. Nielsen and Kitching point to the fact that Piris’s original 159-month sentence was within the standard sentencing range of the corrected offender score as well as the statutory maximum of life imprisonment. See CP at 127 (2012 judgment and sentence), 56 (1999 judgment and sentence).

¶18 As the Court of Appeals accurately noted, “The sentencing error in this case is qualitatively dissimilar to the error in Powell.” Piris, 186 Wn. App. at 276. Both of Piris’s sentences were within the court’s authority. Piris’s underlying conviction for first degree rape of a child was unaffected, and the later sentence reduction—even if the actual time served was more—was within the court’s authority. This brings us exactly under the reasoning and policy considerations of Ang. Whatever sentence was imposed or served is based on Piris’s conviction, and any sentencing modification remains within the court’s authority and discretion to impose. While Judge Mertel did indicate an intent to sentence Piris at the bottom of the range at the original sentencing, it is too speculative to conclude he would have imposed anything less if provided the correct score. Our conclusion would be no different had, at resen-tencing, new defense counsel been successful in advocating for an exceptional downward sentence or if Judge Mertel had indicated that at the original sentence, a downward sentence might have been imposed. A claim for criminal malpractice cannot rise and fall based on what might have happened.

¶19 Here, if we allowed the civil case to proceed, we would need to arguably overrule Ang and allow Piris to benefit based essentially on his own criminal conduct. While a certain portion of the blame may understandably be aimed at his defense counsel for failing to follow through on scheduling resentencing, both of Piris’s sentences were the natural result of the crime to which he pleaded guilty. The maximum term for first degree rape of a child is life in prison. Piris pleaded guilty to two counts of this crime. Despite being given two different standard ranges for his crime (with the latter resulting in a slightly shorter sentence), his criminal acts naturally produced both sentences.

¶20 We find that the public policy concerns recognized in Ang require a plaintiff to prove actual innocence of an alleged crime when pursuing a criminal malpractice claim. Because any term of confinement Piris served was within the broad authority of the trial court, the argument for a Powell exception is inapplicable here. We need not overrule Powell but note it involved a unique and narrow set of circumstances where defense counsel and the court were evidently unaware of the class or level of crime to which Powell was pleading guilty. We expect defense counsel to know the level of crime for which a client is being sentenced. That circumstance in Powell is not present in Piris’s case before us. We affirm the Court of Appeals.

Madsen, C.J., and Owens, Wiggins, and Yu, JJ., concur.

1 “Criminal malpractice’’ is a phrase that has been widely used “to denote ‘legal malpractice in the course of defending a [person] accused of crime.’" Ang v. Martin, 154 Wn.2d 477, 482 n.1, 114 P.3d 637 (2005) (quoting Otto M. Kaus & Ronald E. Mallen, The Misguiding Hand of Counsel—Reflections on “Criminal Malpractice,” 21 UCLA L. Rev. 1191, 1191 n.2 (1974)).