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Piris v. Kitching

Court of Appeals of Washington, Division 2

March 9, 2015

Christopher Piris, Appellant
v.
Alfred Kitching et al., Respondents

Oral Argument January 21, 2015

Appeal from King County Superior Court. Docket No: 13-2-14928-1. Judge signing: Honorable Richard D Eadie. Judgment or order under review. Date filed: 10/04/2013.

John Rothschild and Suzanne Lee Elliott, for appellant.

Christopher H. Howard, Averil B. Rothrock, and Allison K. Krashan (of Schwabe Williamson & Wyatt PC ); Rosemary J. Moore and Jeffrey P. Downer (of Lee Smart PS ); and Daniel T. Satterberg, Prosecuting Attorney for King County, and David J. Hackett, Deputy, for respondents.

Authored by Linda Lau. Concurring: Michael S. Spearman, Mary Kay Becker.

OPINION

Page 14

Linda Lau, J

[186 Wn.App. 267] [¶1] Christopher Piris appeals the trial court's dismissal on summary judgment of his legal malpractice suit against his former attorneys and King County arising from his underlying criminal case. Piris contends the trial court erred when it determined that he failed to allege and prove his innocence of first degree rape of a child, a necessary requirement to maintain his legal malpractice lawsuit. We conclude that Piris's negligence allegations fall outside the narrow exception to the innocence requirement we recognized in Powell v. Associated Counsel for Accused, 125 Wn.App. 773, 106 P.3d 271 (2005) ( Powell I), and Powell v. Associated Counsel for Accused, 131 Wn.App. 810, 129 P.3d 831 (2006) ( Powell II). We affirm summary judgment dismissing as a matter of law Piris's legal malpractice claim.

FACTS

[¶2] The material facts are not disputed. In 1997, the State charged Christopher Piris with three counts of first degree rape of a child based on crimes he committed when he was 13 years old. By the time he was charged with the offenses in superior court, Piris was 19 years old. Piris was represented at trial by attorney Alfred Kitching from the Society of Counsel Representing Accused Persons (SCRAP).[1]

[¶3] On September 25, 1998, Piris pleaded guilty to two counts of first degree rape of a child. His statement of [186 Wn.App. 268] defendant on plea of guilty indicated a standard sentencing range for the crimes as 159 to 211 months of confinement.

[¶4] At sentencing in May 1999, the trial court denied Piris's request for a 48-month exceptional sentence below the standard range. The court imposed a low-end sentence explaining:

THE COURT: ... Mr. Piris, I have considered these requests for exceptional sentence, and it's the conclusion of this court that there are not facts in this file that would support an exceptional sentence.
There are certainly--this file represents a tragedy undoubtedly in your life and a tragedy in the lives of many of your family. Be that as it may, I just do not feel there are facts in this file that will support an exceptional sentence down. What I am going to do, however, is I am going to sentence you at the bottom of the standard range which is--Mr. Rogers, I hope I'm correct on this--is 159 months.

[¶5] Piris appealed the length of his sentence. Attorney Eric Nielsen, from the law firm Nielsen, Broman & Koch, was appointed to represent Piris on his appeal. Nielsen successfully argued on appeal that the standard range sentence of 159 to 211 months was erroneous because the trial court used the version of RCW 9.94A.360 in effect at the date of the sentencing hearing instead of the version in effect at the date the offenses were committed. This statute was amended in 1997, about two years before Piris was sentenced. Under the correct version of the statute, Piris's offender score calculation yielded an offender score of 6 rather than 7 and a standard range of 146 to 194 months rather than 159 to 211 months of confinement. Former RCW 9.94A.310 (1992).

[¶6] In a February 14, 2000 per curiam opinion, we vacated Piris's sentence and remanded for resentencing based on the sentencing error. On the same day, the court clerk's office mailed a cover letter and a copy of the opinion to Nielsen and a prosecutor in the King County Prosecuting Attorney's Office. The cover letter was addressed to Eric [186 Wn.App. 269] Nielsen at Nielsen's then business address and to Gary Ernsdorff at the King County Prosecuting Attorney's Office. The same cover letter shows both the sentencing judge

Page 15

and Piris were copied on the letter and opinion.[2] Piris was never resentenced.

[¶7] In 2010, Piris was released from prison after serving his original sentence. In May 2012, he was summoned to King County Superior Court for a probation violation. While reviewing Piris's file, a superior court judge discovered that Piris had never been resentenced.[3] The judge imposed a low-end sentence of 146 months, with credit for all time previously served. The record is silent as to the resentencing court's rationale for the sentence imposed.

[¶8] Piris sued Kitching, Kitching's employer (SCRAP), Nielsen, and the Nielsen Broman & Koch law firm, alleging malpractice.[4] In a second amended complaint, Piris named King County as a defendant.

[¶9] In September 2013, Nielsen moved to dismiss Piris's lawsuit on summary judgment, alleging that Piris " cannot prove, and does not assert, his actual innocence of the crimes of which he was convicted. Therefore, his claims of legal malpractice are barred under Washington law." King County and Kitching joined in the motion.

[¶10] The trial court granted the summary judgment in favor of all the defendants. In its written order, the court reasoned, " 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)." The court also denied ...


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