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State v. Basra

Court of Appeals of Washington, Division 1

August 26, 2019

THE STATE OF WASHINGTON, Respondent,
v.
PARAMJIT SINGH BASRA, Appellant.

          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 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 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 of judgment. 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 decision was proper under RAP 2.2(a)(13) because the State failed to challenge the appealability of the decision. ]g\ at 4 n.1. Because of the lack of argument from the State, Longshore does not definitively resolve the question of appealability.

         Basra relies on State v. Gossage in his argument for finality, 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 Pet, 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, hi 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. Id. 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 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.'" ]d. (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 ...


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