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In re Personal Restraint of Forrest Amos

Court of Appeals of Washington, Division 2

December 12, 2017

In the Matter of the Personal Restraint of: FORREST AMOS, Petitioner.

          Bjorgen, C.J.

         Forrest 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.

         In the 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.

         In the unpublished portion of this opinion, we address Amos' claim that his sentence of imprisonment in the custody of the Department of Corrections (DOC) for his gross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.


         Amos 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.

         While 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.

         On June 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 following way:

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 cell.
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 outlin[]ing 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 seized.
9.) My case discovery was taken so I could not assist my attorney in preparing my defense.

         Reply Br. of Pet'r at App'x 1, ¶ 6-9.

         At 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 motion.[1]

         At the 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 Haggerty

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 materials.

         Report 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.

         According 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.

         At the 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.

         The 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.

         Along 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 waiver.
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 this matter.

CP at 83-84.

         Amos 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 misdemeanors:

[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.
[Defense]: Yes.
[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 misdemeanors.

RP (Aug. 20, 2014) at 4-5.

         Counsel 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 point.
[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 DOC.

         Just 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 ...

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