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In re Personal Restraint of Yung-Cheng Tsai

Supreme Court of Washington, En Banc

May 7, 2015

In the Matter of the Personal Restraint of Yung-Cheng Tsai, Petitioner In the Matter of the Personal Restraint of Muhammadou Jagana, Petitioner

Argued October 21, 2014

Reconsideration denied July 8, 2015.

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[Copyrighted Material Omitted]

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Eric J. Nielsen and Eric Broman (of Nielsen Broman & Koch PLLC ), for petitioners.

Mark E. Lindquist, Prosecuting Attorney for Pierce County, and Kathleen Proctor, Deputy ; and Daniel T. Satterberg, Prosecuting Attorney for King County, and Ann M. Summers, Deputy, for respondents.

Sarah A. Dunne, Nancy Lynn Talner, and Shawn J. Larsen-Bright on behalf of American Civil Liberties Union of Washington, amicus curiae.

Ann E. Benson and Travis Stearns on behalf of Washington Defender Association, amicus curiae.

John A. Strait and Christopher N. Lasch, Law Professors, amici curiae.

Pamela B. Loginsky on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.

Matthew H. Adams and Chris Stanislowski on behalf of Northwest Immigration Rights Project, amicus curiae.

AUTHOR: Justice Mary I. Yu. WE CONCUR: Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud. AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Mary E. Fairhurst.

OPINION

Mary I. Yu, J.

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[183 Wn.2d 96] ¶ 1 As applied to Washington, the holding in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) is an affirmation of an old rule of state constitutional law--the duty to provide effective assistance of counsel includes the duty to reasonably research and apply relevant statutes. However, language in certain Washington appellate cases made it appear that this well-established rule did not apply to RCW 10.40.200. In superseding those cases, Padilla significantly changed state law.

¶ 2 Muhammadou Jagana raises a claim that would have been rejected before Padilla based on those superseded appellate cases. We therefore reverse the Court of Appeals' order dismissing Jagana's personal restraint petition (PRP) and remand to the trial court for an evidentiary hearing. However, Yung-Cheng Tsai's claim was available before Padilla, and Tsai did in fact raise his claim with the assistance of an attorney in 2008. That motion was denied based on an issue of law not affected by Padilla, and Tsai did not appeal. We therefore affirm the Court of Appeals' order dismissing Tsai's PRP.

FACTUAL AND PROCEDURAL HISTORY

A. Yung-Cheng Tsai

¶ 3 On July 27, 2006, Tsai pleaded guilty to one count of unlawful possession of a controlled substance with intent to deliver (marijuana). On August 29, 2006, the trial court sentenced him to 11 months in jail and 12 months of community custody. Tsai did not appeal. On or about October [183 Wn.2d 97] 30, 2007, Tsai received a notice to appear from the United States Immigration and Naturalization Services that informed him that he was subject to removal (also known as deportation) based on his conviction.

¶ 4 On July 21, 2008, Tsai filed a motion to withdraw his guilty plea under CrR 7.8, alleging that his attorney wrongfully advised him he would not be deportable if he accepted the State's plea offer and that this erroneous advice was prejudicial. The trial court denied Tsai's motion as time barred. The motion was filed over one year after Tsai pleaded guilty, and the trial court held that equitable tolling did not apply. The trial court did not transfer Tsai's motion to the Court of Appeals for consideration as a PRP. Tsai did not appeal or otherwise pursue his 2008 motion.

¶ 5 On May 18, 2011, Tsai again moved to withdraw his guilty plea under CrR 7.8 based on his attorney's alleged erroneous advice. Tsai argued his motion was exempt from the one-year time bar in RCW 10.73.090(1) under RCW 10.73.100(6) because Padilla and State v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015 (2011) (applying Padilla effected a significant, material change in the law that applies retroactively.

¶ 6 The trial court initially denied Tsai's 2011 motion, holding it was time barred. On Tsai's motion, the trial court vacated its holding and transferred the motion to the Court of Appeals to be considered as a PRP. The Court of Appeals denied Tsai's PRP as time barred, holding that Padilla and Sandoval

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do not apply retroactively. We granted Tsai's motion for discretionary review and consolidated his case with Jagana's. In re Pers. Restraint of Yung-Cheng Tsai, 180 Wn.2d 1014, 327 P.3d 55 (2014).

B. Muhammadou Jagana

¶ 7 On June 7, 2006, Jagana pleaded guilty to one count of possession of a controlled substance (cocaine). He was sentenced to three months of electronic home monitoring. Jagana did not appeal.

[183 Wn.2d 98] ¶ 8 On November 4, 2010, Jagana moved to withdraw his guilty plea under CrR 7.8. Relying on Padilla, Jagana asserted that his attorney failed to investigate Jagana's immigration status, did not advise him that his guilty plea could have immigration consequences, and did not advise him to speak with an immigration attorney. The trial court transferred Jagana's motion to the Court of Appeals to be considered as a PRP.

¶ 9 The Court of Appeals initially filed a published opinion holding Jagana's PRP was timely under RCW 10.73.100(6) and remanding the case to the trial court for a reference hearing. In re Pers. Restraint of Jagana, 170 Wn.App. 32, 282 P.3d 1153 (2012). The Court of Appeals reasoned that Padilla was a significant, material change in the law and that Padilla should apply retroactively because it was not a new rule; it merely applied the standard analysis for ineffective assistance of counsel to a new set of facts.

¶ 10 The State sought discretionary review, and we remanded to the Court of Appeals for reconsideration in light of Chaidez v. United States, 568 U.S. ___, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013), which held Padilla did announce a new rule that does not apply retroactively to matters on collateral review. In re Pers. Restraint of Jagana, 177 Wn.2d 1027, 309 P.3d 1186 (2013). On reconsideration, the Court of Appeals withdrew its opinion and dismissed Jagana's PRP as time barred. We granted Jagana's motion for ...


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