In the Matter of the Personal Restraint of: FORREST AMOS, Petitioner.
Amos seeks relief from personal restraint imposed following a
guilty plea. As part of his guilty plea, Amos agreed to waive
his right to collaterally attack his judgment and sentence.
published portion of this opinion we address whether this
personal restraint petition (PRP) was timely filed and
whether it is precluded by Amos' collateral attack
waiver. We hold that Amos' PRP was timely. We also hold
that a collateral attack waiver is valid, as long as the
waiver was made knowingly, voluntarily, and intelligently,
and that ineffective assistance of counsel may call those
features of the waiver into question. We hold that Amos has
made a prima facie showing of prejudice on his claim that
ineffective assistance of counsel calls into question whether
his collateral attack waiver was knowing and voluntary.
However, on this record we cannot fully determine whether
Amos' waiver in fact was knowing, voluntary, and
intelligent. Thus, we remand for an evidentiary hearing to
determine the disputed facts necessary to decide the validity
of his waiver, as well as to make a determination on the
merits of this PRP that is consistent with this opinion.
unpublished portion of this opinion, we address Amos'
claim that his sentence of imprisonment in the custody of the
Department of Corrections (DOC) for his gross misdemeanors
was not authorized by statute and thus was void. We hold that
sentence to be void and remand to the trial court to
determine the proper remedy. The trial court need not address
the sentencing issue if it dismisses Amos' charges in its
determination of this PRP on the merits.
was charged with the following felonies: leading organized
crime, tampering with a witness, computer trespass,
possession of marijuana with intent to manufacture or
deliver, introducing contraband, one count of attempted
theft, three counts of possession of a controlled substance
with intent to manufacture or deliver, four counts of
delivery of a controlled substance, and one count of identity
theft. In addition, he was charged with two gross
misdemeanors: attempted possession of marijuana with intent
to manufacture or deliver and attempted forgery.
Amos was being held in the Lewis County Jail on these
charges, Officer Adam Haggerty obtained a warrant to search
Amos' jail cell for evidence that Amos was tampering with
witnesses related to these pending charges. In his
declaration in support of the search warrant, Haggerty
averred that Amos had been using legal mail, which may be
protected by attorney-client privilege, to disguise his
criminal conduct. Haggerty's declaration stated that he
would inspect all mail addressed as legal mail to
"confirm the authenticity of whether o[r] not Defense
Attorney . . . was the actual sender/recipient."
Clerk's Papers (CP) at 176.
18, 2014, Haggerty executed a search of Amos' cell and
what happened during the search is disputed. In his
declaration of March 22, 2016, Haggerty states that he put
all of the recovered items, including the legal mail, into a
trash bag and placed it in an evidence facility. Amos states
in his declaration attached to his reply brief that Haggerty,
along with Detective Chad Withrow and "a number of jail
staff, " executed the search of his cell. Reply Br. of
Pet'r at App'x 1, ¶5. Amos describes the claimed
violation of his attorney-client relationship in the
6.) While in my cell . . . Haggerty and . . . Withrow read
through all my privileged communications. I observed this
while standing in the dayroom of D2 unit. I observed . . .
Withrow sitting at my cell table reading through my legal
paperwork and when he s[aw] something he would point it out
to . . . Haggerty who would place it [in] a clear plastic
bag. About thirty minutes later I was allowed back into my
7.) All my legal mail was taken. This included a letter from
[prior defense counsel] regarding conversations we had about
[a] State witness . . . contacting me using fake names and
how we would communicate. This fact known by the State could
have been used to impeach my testimony if I were to take the
stand in my defense.
8.) All my legal materials, case narratives, and defense
strategies, and witness questions were taken. I was asked by
my attorney . . . to write questions and fact sheets as I
went through my case discovery in order to aid him in my
defense and witness interviews. These writings contained
vital strategies outlining facts that ruined the
State's case. It took me months to prepare these writings
and before I could give them to my counsel they were read and
9.) My case discovery was taken so I could not assist my
attorney in preparing my defense.
Br. of Pet'r at App'x 1, ¶ 6-9.
subsequent status hearings in July 2014, Amos' defense
counsel confirmed that the search had taken place. Counsel
told the trial court that he was having trouble retrieving
the legal documents and that Amos' ability to prepare a
defense was being hampered because of it. The deputy
prosecutor, William Halstead, suggested that the court
conduct an in camera review of the legal documents retrieved
from the search of Amos' cell, but the court declined to
do so because defense counsel had not prepared a
July 24 hearing, defense counsel expressed concern about the
search of Amos' cell, stating that Amos had informed him
that jail staff had looked through all of Amos' legal
paperwork. At this hearing, a different deputy prosecutor
stated that before the search of Amos' cell, he advised
not to look at any of the materials and to give them to a
judge so that the judge could review it to see what was
privileged before he looked at it, and I made that request to
him specifically out of concern that it otherwise might be
considered eavesdropping on attorney-client privileged
of Proceedings (RP) (July 24, 2014) at 7. The prosecutor
stated that after the search, Haggerty told him that jail
staff had "very cursorily, very briefly just flipped
through things to find stuff." RP (July 24, 2014) at 7.
However, the prosecutor stated that he thought that there
still needed to be a hearing on the issue. The trial court
expressed concern with the search and recommended that
defense counsel set a hearing regarding these issues.
to Amos, the week before the July 24 hearing defense counsel
informed him that he was preparing a CrR 8.3(b) motion to
dismiss Amos' charges based on the jail staff's
violation of his confidential attorney-client relationship.
Amos further contends that on July 24, defense counsel
incorrectly informed him that he had to prove prejudice and
that counsel refused to file the motion for that reason.
next hearing, on July 31, Amos agreed to a plea deal. In
exchange for dropping the charges for leading organized crime
and one count of identity theft, Amos pled guilty to the
remaining charges. Amos' guilty plea states that he
"waives rights to file appeals and pers[onal]
rest[raint] petitions in this matter." CP at 60.
Amos' initials appear near that statement. As part of the
plea agreement, the State and Amos agreed that he should
receive 120 months for his felony convictions. In addition,
they agreed that Amos should receive 364 days for each of his
two gross misdemeanor counts to run consecutively to the
felony counts. They also agreed that Amos should spend his
entire incarceration time for both the felonies and gross
misdemeanors in DOC custody.
trial court conducted a colloquy to determine whether Amos
was knowingly, intelligently, and voluntarily pleading
guilty. Among other inquiries, the court asked Amos whether
he understood that he was giving up the rights set forth in
his guilty plea form, to which Amos responded yes. The court
specifically asked Amos whether he understood that he was
"waiving [his] right to file appeals and [his] right to
file personal restraint petitions in this matter, " to
which Amos responded in the affirmative. RP (July 31, 2014)
at 18. The court accepted Amos' pleas of guilty, finding
that he knowingly, intelligently, and voluntarily entered
into the pleas with "full knowledge of the consequences
and awareness of rights." RP (July 31, 2014) at 19.
with the guilty plea and the colloquy, Amos signed a separate
document outlining his waiver of appeal and collateral attack
rights. It states:
I, FORREST EUGENE AMOS, the above named Defendant, after
having been fully advised by my attorney . . . and as part of
a plea agreement that removes Count I (a most serious
offense) and Count IX from the charges against me, do
knowingly, intelligently, and voluntarily enter the following
I agree that the plea agreement that has been negotiated for
me in this case is in my best interest and requires that I
waive certain rights that I might otherwise possess.
Specifically, I waive any right I might have to make a motion
to withdraw my plea of guilty or to initiate any
appeal as to my plea of guilty. I also waive any
right I might have to attack the judgment and sentence that
will be entered against me in this case, either by collateral
attack or appeal.
I recognize that by entering this waiver, my plea of guilty
and the judgment and sentence will be final. I will no longer
possess any rights to appeal, to initiate personal
restraint petitions, or any other forms of relief
regarding my plea of guilty or the judgment and sentence in
CP at 83-84.
was sentenced on August 20, 2014, consistently with the plea
agreement. At the sentencing hearing, the court and counsel
also discussed where Amos would serve his time on the gross
[State]: I would ask the Court to apply [Amos' good time]
credit to one of the gross misdemeanors so that he gets
credit on that as opposed to the time he's going to have
to do in DOC so he can do that time in DOC and not have to
come back to the jail. Because that's going to be an
issue. I've already been contacted by the jail. They want
to know if he can do the whole sentence in DOC. Of course we
don't have any problem with that, but if he's got
time left over, DOC's probably going to send him back.
[Court]: The name of the game is when Mr. Amos is done with
DOC. Mr. Amos wants to be done, period.
[State]: I'm assuming that's correct, and the jail
also wants to be finished with him. But, you know, all we can
do is hope that DOC will house him for the entire time, but
it will help if he gets that 262 days toward one of the gross
RP (Aug. 20, 2014) at 4-5.
also stated at this proceeding:
[Defense]: Thank you, Your Honor. I actually think
there's a provision where these gross misdemeanors can be
served in the Department of Corrections. . . . .
My understanding is that when gross misdemeanors are
sentenced alongside felonies, they can actually do the gross
misdemeanor time at DOC. I think there's a case right on
[State]: I agree with that, but I don't think DOC has to
at the time.
Id. at 6-7. Amos' judgment and sentence
reflected that he would serve the gross misdemeanor time at
over a week later, a DOC staff member sent an e-mail to the
deputy prosecutor stating that under State v. Besio,
80 Wn.App. 426, 907 P.2d 1220 (1995), gross misdemeanor time
must be served at the county jail. As such, DOC recommended
removal of the confinement time related to the gross
misdemeanors. The deputy prosecutor and defense counsel
subsequently stipulated, apparently without Amos'
consent, to amend Amos' judgment and sentence to reflect
that the gross ...