State Of Washington v. Paramjit Singh Basra ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 78282-7-I
Respondent, ) DIVISION ONE
v. ) PUBLISHED OPINION
)
PARAMJIT SINGH BASRA, )
)
Appellant.
___________________________________ ) FILED: August 26, 2019
HAZELRIGG-HERNANDEZ, J. — Paramjit Basra was convicted of murder in
2012. Four years later, after resolution of his direct appeal, he filed a motion to
dismiss all charges under Criminal Rule (CrR) 8.3(b). He contends that the
superior court erred in finding this motion untimely because the criminal rule does
not contain an explicit time limit. Because the text and context of the rule indicate
that it was not intended to authorize post-judgment motions to dismiss, we affirm.
FACTS
In 2012, Paramjit Basra was convicted of murder in the first degree and
sentenced to 240 months in prison. This court affirmed his conviction on appeal,
but remanded to correct the period of community custody. The mandate
confirming termination of review issued on April 21, 2014. In 2016, Basra filed a
pro se motion for relief from judgment and sentence under CrR 7.8 and a separate
motion to dismiss all charges under CrR 8.3(b) in superior court. The court
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construed both filings as motions for relief from judgment under CrR 7.8(c). It
found both motions to be time-barred by RCW 10.73.090 and transferred them to
this court for consideration as personal restraint petitions. Although we recognized
that the superior court had treated the CrR 8.3(b) motion as an additional CrR 7.8
motion, because Basra opposed the transfer and accurately pointed out that CrR
8.3(b) did not contain an explicit time limit or provision for transfer to the court of
appeals, the motion was remanded back to superior court for consideration as
labeled.
On remand, the superior court appointed counsel for Basra and, after
briefing and oral argument, denied the motion to dismiss under CrR 8.3(b) as
untimely. The court found that it had no jurisdiction to decide Basra’s claims
because CrR 8.3(b) only authorized a court to dismiss a criminal prosecution, and
the prosecution had concluded prior to the filing of the motion. Basra appealed.
The parties briefed the issue of appealability as requested by a commissioner of
this court. Basra argued that this order was appealable as a matter of right under
RAP 2.2(a)(13). The State disagreed but requested that this court grant
discretionary review under RAP 2.3(b) to clarify the proper way to handle such a
motion.
DISCUSSION
I. Appealability
Basra contends that the denial of a post-judgment motion to dismiss under
CrR 8.3(b) is appealable as a matter of right because it meets the requirements of
RAP 2.2(a)(13). The State responds that the trial court’s decision was not a final
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order affecting Basra’s substantial rights because the court did not rule on the
merits of the motion.
Unless otherwise prohibited by a statute or court rule, a party may appeal
from any final order made after judgment that affects a substantial right. RAP
2.2(a)(13). A party seeking review must therefore show both (1) effect on a
substantial right and (2) finality. State v. Howland, 180 Wn. App. 196, 202 n.3, 321
P.3d 303 (2014).
The timing of the instant motion affects its appealability. Orders denying
pre-judgment motions to dismiss under CrR 8.3(b) are not immediately appealable
because they are not final. See State v. Wright, 51 Wn.2d 606, 609, 320 P.2d 646(1958). Certainly, where a court has denied a CrR 8.3(b) motion made pre-trial or
even during trial, the matter may be considered as a part of the defendant’s direct
appeal after entry ofjudgment. Or if a pre- or mid-trial CrR 8.3(b) motion is granted,
therefore ending the prosecution, the State may appeal that final ruling.
Here, however, Basra presents a completely different set of facts and
procedural timeline. Basra does not point to any authority explicitly stating that the
denial of a post-conviction CrR 8.3(b) motion as untimely is appealable as of right
under RAP 2.2. In support of his position, he cites one recent unpublished decision
of this court in which we reviewed on the merits a trial court’s denial of a post
judgment motion to dismiss under CrR 8.3(b). State v. Longshore, No. 77764-5-I,
slip op. at 4 (Wash. Ct. App. Mar. 5, 2018) (unpublished),
http://www.courts.wa.gov/opinions/pdf/777645.pdf. However, the opinion noted
that we assumed for the purposes of the appeal that review of the trial court’s
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decision was proper under RAP 2.2(a)(13) because the State failed to challenge
the appealability of the decision. j4. at 4 ni. Because of the lack of argument from
the State, Longshore does not definitively resolve the question of appealability.
Basra relies on Statev. Gossage in his argument forfinality, contending that
this was a final appealable order because it left ‘nothing else to be done to arrive
at the ultimate disposition of the petition.” 138 Wn. App. 298, 302, 156 P.3d 951(2007) (quoting In re Det. of Petersen, 138 Wn.2d 70, 98, 980 P.2d 1204 (1999)
(Sanders, J., dissenting)), rev’d in part on other grounds, 165 Wn.2d 1, 195 P.3d
525 (2008). In Gossage, this court found that denial of a post-judgment petition
for certificate of discharge from restitution, early termination of sex offender
registration requirements, and restoration of civil rights was a final judgment
appealable as of right. Id. The court distinguished that case from those in which
the trial court retained continuing jurisdiction over the offender or conducted
scheduled review of the issues. Id. Although the denial of the petition did not
prevent the defendant from petitioning again in the future, the court felt that this
“mere potentiality” of a renewed motion differed from the certainty of future
proceedings in cases where review was scheduled. kI. at 302 n.7. On review, the
Supreme Court declined to address the issue of appealability because the State
failed to raise the issue in its answer or cross-petition. Gossage, 165 Wn.2d at 6.
The State argues that this order is not appealable under RAP 2.2(a)(13)
because the superior court did not reach the merits of Basra’s motion, and Basra
could theoretically file the same claims in a CrR 7.8 motion or personal restraint
petition. This argument appears to challenge the finality element by analogizing
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this situation to a pre-judgment dismissal without prejudice. In a criminal
prosecution, a dismissal without prejudice within the statute of limitations is not
final “[b]ecause the legal and substantive issues are generally not resolved.” State
v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003). A dismissal without prejudice
“leaves the matter in the same condition in which it was before the commencement
of the prosecution.” k~. (quoting State v. Corrado, 78 Wn. App. 612, 615, 898 P.2d
860 (1995)).
In this case, the fact that the superior court did not reach the merits of
Basra’s motion makes the situation more akin to a dismissal without prejudice than
denial of a petition to discharge a restitution obligation, terminate a registration
requirement, and restore civil rights. A renewed motion or prosecution is a “mere
potentiality” in both instances but the dismissal of Basra’s motion as untimely did
not resolve the legal and substantive issues contained within the motion. Because
the order does not satisfy the finality prong of RAP 2.2(a)(1 3), we hold that Basra’s
post-judgment CrR 8.3(b) motion is not appealable as a matter of right.
Basra and the State both request that this court accept discretionary review
if appeal as a matter of right is unavailable. When an act of the superior court is
not appealable as a matter of right under RAP 2.2, a party may seek discretionary
review of the act under RAP 2.3. “A notice of appeal of a decision which is not
appealable will be given the same effect as a notice for discretionary review.” RAP
5.1(c). Because the parties agree that we should grant review and the dearth of
authority provides ground for a difference of opinion, we find that review is
appropriate.
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II. Timeliness
Basra contends that the trial court erred in finding his CrR 8.3(b) motion to
dismiss to be untimely because the rule does not contain any explicit time limit.
CrR 8.3 governs dismissal of a criminal case. Section (b) of the rule provides that
‘[t]he court, in the furtherance of justice, after notice and hearing, may dismiss any
criminal prosecution due to arbitrary action or governmental misconduct when
there has been prejudice to the rights of the accused which materially affect the
accused’s right to a fair trial.” CrR 8.3(b)
The appellate court reviews the interpretation of court rules de novo. State
v. McEnroe, 174 Wn.2d 795, 800, 279 P.3d 861 (2012). We analyze court rules
using the principles of statutory construction. ki. When interpreting the rules, the
court aims to “ascertain and carry out the intent of the drafting body.” City of
Bellevue v. Hellenthal, 144 Wn.2d 425, 431, 28 P.3d 744 (2001). If the language
of a court rule is plain on its face, the court will give effect to that plain meaning
and assume it represents the writers’ intent. ki. To determine the plain meaning
of a statute or rule, the court should consider its text, the context of the statute or
rule, related provisions, amendments to the provision, and the scheme as a whole.
Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 432, 395 P.3d
1031 (2017).
CrR 8.3(b) does not define “criminal prosecution” or otherwise specify the
stage of a case to which it applies. Black’s Law Dictionary defines “prosecution”
as “[a] criminal proceeding in which an accused person is tried.” Prosecution,
Black’s Law Dictionary (10th ed. 2014). Webster’s Dictionary defines “prosecution”
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as “the institution and continuance of a criminal suit involving the process of
exhibiting formal charges against an offender before a legal tribunal and pursuing
them to final judgment on behalf of the state or government.” Prosecution,
Webster’s Third New International Dictionary (3d ed. 1993).
The Washington Supreme Court originally adopted CrR 8.3 in 1973,
superseding a statute that had previously outlined the criteria for dismissal of a
criminal case. State v. Rohrich, 149 Wn.2d 647, 653 n.3, 71 P.3d 638 (2003). The
predecessor statute provided that “[t]he court may, either upon its own motion or
upon application of the prosecuting attorney, and in furtherance of justice, order
any criminal prosecution to be dismissed.” State v. Prin.qle, 83 Wn.2d 188, 190,
517 P.2d 192 (1973) (citing former RCW 10.46.090 (1973), repealed by Laws of
1984, ch. 76, § 29). In Pringle, the sentencing judge, who had not presided over
the case when the guilty plea was entered, deleted language from the portion of
the judgment and sentence containing the court’s findings. ki. at 189. The judge
stated that he was acting within the court’s power under former RCW 10.46.090.
The Supreme Court considered the meaning of “criminal prosecution” under
the statute and found that the trial court was without jurisdiction under RCW
10.46.090 because “the prosecution had been terminated” upon entry of the
defendant’s voluntary plea of guilty. jç~ at 191. A voluntary plea has the same
effect as a guilty verdict. ki. The court reasoned that the statute “relate{dj to the
dismissal of a ‘criminal prosecution’ and in no way authorize[dj a sentencing judge
to modify a criminal information after the conclusion of the prosecution and after a
valid plea of guilty ha[d] been entered.” j~ at 190.
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We agree with the superior court that the definition of “criminal prosecution”
applied in Pringle also applies to the term as it is used in CrR 8.3(b). A criminal
prosecution is no longer ongoing post-judgment and therefore is not subject to
dismissal under CrR 8.3(b).
Additionally, the Criminal Rules contain a separate section under which a
defendant can obtain relief from a judgment or order. A defendant may request
relief under CrR 7.8 on a number of bases, including “misconduct of an adverse
party” or “[a]ny other reason justifying relief from the operation of the judgment.”
CrR 7.8(b). This rule specifies time constraints for motions on these grounds and
indicates that it is subject to the statutes governing the time for collateral attack.
CrR 7.8(b). Any action for post-conviction relief other than a direct appeal is
referred to as a collateral attack, including, among others, a personal restraint
petition, habeas corpus petition, and motion to vacate judgment. RCW
10.73.090(2). Any petition or motion for collateral attack on a judgment and
sentence must be filed within one year after the judgment becomes final, unless
the judgment and sentence is invalid. RCW 10.73.090(1). A judgment becomes
final when it is filed with the clerk of the trial court, when an appellate court issues
a mandate disposing of a timely direct appeal, or when the United States Supreme
Court denies a timely petition for certiorari—whichever date is last. RCW
10.73.090(3). Untimely motions for relief from judgment must be transferred to the
court of appeals for consideration as personal restraint petitions. CrR 7.8(c)(2).
At oral argument, Basra conceded that the post-judgment motion to dismiss
under CrR 8.3(b) could be characterized as a collateral attack because it was not
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a direct appeal, but argued that the time limit in RCW 10.73.090 did not apply.
Relief by way of a collateral attack is extraordinary. In re Coats, 173 Wn.2d 123,
132, 267 P.3d 324 (2011). The bases and time for collateral attack are limited
because “[c]ollateral relief undermines the principles of finality of litigation,
degrades the prominence of trial, and sometimes costs society the right to punish
admitted offenders.” In re Hagler, 97 Wn.2d 818, 824, 650 P.2d 1103 (1982).
Basra’s contention that a post-judgment motion under CrR 8.3(b) is exempt from
the general time limits for a collateral attack is inconsistent with these principles.
The absence of a cross-reference to RCW 10.73.090 and related statutes in CrR
8.3 is further evidence that it is not intended to be a vehicle for post-judgment
collateral attack.
The surrounding provisions of CrR 8.3 support the conclusion that dismissal
under CrR 8.3(b) is not intended to be available post-judgment. Section (a) of the
rule allows the court to dismiss an “indictment, information or complaint” on the
prosecutor’s motion. CrR 8.3(a). Section (c) explicitly sets out a procedure for pre
trial dismissal ‘due to insufficient evidence establishing a prima facie case of the
crime charged.” CrR 8.3(c). The rule does not reference dismissal or vacation of
a conviction or judgment.
Despite the form of Basra’s motion as a challenge under CrR 8.3(b), the
trial court did not err in initially treating the collateral attack as a CrR 7.8 motion
and transferring it to this court. On remand, when directed to analyze the motion
as labeled, the superior court properly found that Basra’s criminal prosecution
ended well before he filed this motion for dismissal under CrR 8.3(b). Because the
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criminal prosecution was not ongoing and Basra had not succeeded in reopening
the prosecution by, for example, prevailing on a CrR 7.8 motion, the superior court
did not err in dismissing the motion as untimely.
Affirmed.
WE CONCUR: ~ \ \
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