Filed Washington State Court of Appeals Division Two

June 11, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Personal Restraint No. 51029-4-II Petition of

VINCENT L. FOWLER, PUBLISHED OPINION

Petitioner.

WORSWICK, J. — Vincent Fowler filed his personal restraint petition (PRP) about five

months after the one year period to file his PRP expired. He asserts that the time bar should be

equitably tolled because his former counsel failed to communicate with him and subsequently

resigned from the Washington State Bar Association (WSBA) in lieu of discipline. We dismiss

Fowler’s PRP as untimely.

FACTS

Fowler was accused of sexually assaulting two children, and was convicted of two counts

of first degree child molestation and one count of first degree rape of a child. The trial court

imposed discretionary legal financial obligations (LFOs). Fowler appealed.

On August 18, 2015, Division Three of this court affirmed Fowler’s convictions on direct

appeal. State v. Fowler, No. 33227-6-III, slip op. at 1 (Wash. Ct. App. Aug. 18, 2015)

(unpublished), http://www.courts.wa.gov/opinions/pdf/332276.unp.pdf. On September 16,

Fowler’s direct appeal counsel filed a petition for review with our Supreme Court. In

September, Fowler’s brother Darryl Fowler retained a different attorney, John Crowley, to

represent Fowler in additional postconviction matters. No. 51029-4-II

On March 31, 2016, our Supreme Court granted review “only on the issue of imposition

of discretionary legal financial obligations” and remanded to the superior court to “reconsider the

imposition” of discretionary LFOs consistent with State v. Blazina,

,

(2015). State v. Fowler,

,

(2016). On October 19, the

superior court entered an order amending Fowler’s judgment and sentence, which amended the

imposition of LFOs, and stated that “all other conditions of the Judgment and Sentence remain in

effect.” Br. of Resp’t at App. E.

On May 22, 2017, the WSBA filed a complaint against Crowley for numerous violations

of the Rules for Enforcement of Lawyer Conduct. On July18, Crowley resigned in lieu of

discipline. On October 9, Fowler retained current counsel.

On October 18, current counsel filed a document he described as a “placeholder” petition

in this court. This document did not raise any issues, but instead described Crowley’s

nonfeasance on this case and stated, “Given the above, the grounds for relief are yet unclear.

More time is required to obtain prior counsel’s file, diagnose issues, conduct investigation, if

necessary, and then prepare and file the petition.” Pet. for Review at 4.

On November 21, we issued the followed ruling:

Petitioner has filed a “placeholder petition” and requests that this court grant him an extension of time in which to file his complete petition. We consider this as a motion to file a supplemental petition and grant the motion. Petitioner should file his supplemental petition, in which he must address why this court should consider waiving the one-year time bar (RCW 10.73.090) or establish that the issues he raises in his supplemental petition are not subject to the time-bar, within 60 days of the date of this ruling.

Ruling by Commissioner re “Placeholder Petition,” State v. Fowler, No. 51029-4-II, at 1 (Wash.

Ct. App. Nov. 21, 2017).

2 No. 51029-4-II

On January 23, 2018, this court granted additional time to file a supplemental petition,

subject to the conditions of this court’s November 21 ruling. Ruling Granting Extension of

Time, State v. Fowler, No. 51029-4-II, at 1 (Wash. Ct. App. Jan. 23, 2018). On March 26, 2018,

current counsel filed a supplemental petition arguing ineffective assistance of counsel.1

ANALYSIS

I. PRP PRINCIPLES

A PRP is not a substitute for a direct appeal and the availability of collateral relief is

limited. In re Pers. Restraint of Grasso,

,

(2004). To be entitled to

relief, the petitioner must show either a constitutional error that resulted in actual and substantial

prejudice, or a nonconstitutional error that constituted a fundamental defect that inherently

results in a complete miscarriage of justice. In re Pers. Restraint of Woods,

,

(2005).

PRPs must be timely filed to warrant our consideration. “No petition or motion for

collateral attack on a judgment and sentence in a criminal case may be filed more than one year

after the judgment becomes final if the judgment and sentence is valid on its face and was

rendered by a court of competent jurisdiction.” RCW 10.73.090(1).

RCW 10.73.090(3) provides, in part, that “a judgment becomes final on the last of

the following dates: (a) The date it is filed with the clerk of the trial court[ or] (b) The

1 Fowler argues that trial counsel was ineffective for failing to (1) interview crucial witnesses, (2) prepare Fowler for his testimony, and (3) offer evidence that the victims had been abused by another person. The State’s response to Fowler’s supplemental petition includes trial counsel’s declaration that contradicts Fowler’s ineffective assistance of counsel claims.

3 No. 51029-4-II

date that an appellate court issues its mandate disposing of a timely direct appeal from the

conviction.”

“‘[A] judgment becomes final when all litigation on the merits ends.’” In re Pers.

Restraint of Sorenson,

, 696,

(2017) (quoting In re Pers.

Restraint of Skylstad,

,

(2007)). If the judgment in a criminal

case is remanded, and the trial court exercises independent judgment on remand, the judgment

becomes final after the trial court’s decision on remand. Sorenson, 200 Wn. App. at 699-700.

A petitioner may amend an initial petition or file a supplemental brief, and raise new

grounds for relief, so long as the supplemental brief is timely filed and the new issue is

adequately raised. In re Pers. Restraint of Meredith,

, 307,

(2018);

In re Pers. Restraint of Haghighi,

,

(2013).

II. PETITION IS UNTIMELY

The State argues that Fowler’s petition is untimely. Fowler does not dispute that his

supplemental petition was filed more than one year after his judgment became final, but he

argues that he is entitled to equitable tolling. We agree with the State, and dismiss Fowler’s

petition as untimely.

On October 19, 2016, the trial court reconsidered Fowler’s LFOs, and entered an “order

amending [judgment and sentence],” which amended the imposition of LFOs. Br. of Resp’t at

App. E. Because Fowler did not appeal the LFO decision, his judgment became final on October

19, 2016. See Sorenson, 200 Wn. App. at 696.

Fowler filed his initial petition on October 18, 2017. But his initial petition raised no

substantive claims. Instead, it stated, “[T]he grounds for relief are yet unclear. More time is

4 No. 51029-4-II

required to obtain prior counsel’s file, diagnose issues, conduct investigation, if necessary, and

then prepare and file the petition.” Pet. for Review at 4. Fowler’s one year period to file a

petition ended on October 20, 2017. But Fowler did not file a supplemental petition containing

any substantive claims until March 26, 2018. Thus, his supplemental petition is untimely unless

he can establish that the issues he raised in his supplemental petition are not subject to the one

year time bar. See Meredith, 191 Wn.2d at 307.

A. Equitable Tolling

Fowler argues that the time bar should be equitably tolled based on (1) former counsel’s

incompetence and false assurances, and (2) current counsel’s difficulty in obtaining Fowler’s

complete file. We disagree that the time bar is tolled.

Equitable tolling “permits a court to allow an action to proceed when justice requires it,

even though a statutory time period has elapsed.” In Re Pers. Restraint of Bonds,

,

(2008). Because the law already permits a variety of methods for

challenging wrongful convictions, equitable tolling has a very narrow application in the PRP

context, and only where justice requires. Haghighi,

. “Consistent with the

narrowness of the doctrine’s applicability, principles of finality, and the multiple avenues

available for postconviction relief, we apply the civil standard and require the predicates of bad

faith, deception, or false assurances.” Haghighi,

. Courts narrowly apply

the doctrine of equitable tolling and should not use it with “‘garden variety’” claims of neglect.

Haghighi,

.

A petitioner who seeks to benefit from the equitable tolling doctrine must demonstrate

that she or he diligently pursued her or his rights and that the petition was untimely due to bad

5 No. 51029-4-II

faith, deception, or false assurances caused by the opposing party—here, the State. See Bonds,

; Millay v. Cam,

,

(1998); In Re Pers.

Restraint of Hoisington,

,

(2000). To show diligence, a

litigant must demonstrate they sought relief promptly upon learning the basis for doing so. See

State v. Littlefair,

,

(2002). Washington courts have

applied equitable tolling to the statutory time limit of PRPs in very few circumstances. See

Haghighi,

; see also Littlefair,

; Hoisington,

.

Fowler relies on federal cases discussing equitable tolling to statutory time limits of

habeas petitions. Federal courts apply equitable tolling to statutory time limits of habeas

petitions in “extraordinary circumstances.” Holland v. Florida,

,

,

(2010). A petitioner seeking equitable tolling of the federal

habeas one year limitation bears the burden of establishing “‘(1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

timely filing.’” Holland,

(internal quotation marks omitted) (quoting Pace v

DiGuglielmo,

,

,

(2005)).

Federal courts have found the conduct of petitioner’s counsel in some circumstances to

constitute extraordinary circumstances for purposes of equitable tolling. Maples v. Thomas,

,

,

(2012); Holland,

; Spitsyn v.

Moore,

(9th Cir. 2003). But the federal cases are distinguishable because the

federal standards for equitable tolling of habeas petitions are more lenient. As stated above,

6 No. 51029-4-II

Washington courts require the party asserting equitable tolling to demonstrate, among other

things, that the conditions causing the untimely filing were caused by the opposing party.

Here, Fowler retained Crowley on September 2, 2015. Fowler’s judgment became final

on October 19, 2016, when the superior court entered its order amending the judgment and

sentence amending the imposition of discretionary LFOs. The one year period to file a personal

restraint petition began on that date.

On May 22, 2017, the WSBA filed a complaint against Fowler’s former counsel,

Crowley. On July 18, 2017, Crowley resigned. On October 6, Darryl Fowler learned that

Crowley had resigned in lieu of discipline. On October 9, Fowler retained current counsel. On

October 18, current counsel filed what he referred to as a “placeholder” petition.2 On October

20, Fowler’s period to file a personal restraint petition ended. On March 26, 2018, current

counsel filed a supplemental petition.

In a declaration, Fowler says that between September 2015 and October 6, 2017, he

spoke with Crowley “on only a couple of occasions,” and Crowley told Fowler “that he was

working on [Fowler’s] case and had all sorts of plans of what he was going to do.” Suppl. Br. of

2 Because a “placeholder petition” is not authorized under court rules or statutes, this court’s November 21, 2017 ruling rejected the characterization of “placeholder petition,” and instead considered Fowler’s initial petition as a “motion to file a supplemental petition.” A petitioner may file an amended petition or supplemental brief and raise new grounds for relief as long as the amended or supplemental filing is timely filed and the issues are adequately raised. Meredith, 191 Wn.2d at 307; Haghighi,

. A petitioner cannot, however, avoid the time bar by filing a “placeholder petition” that fails to adequately raise claims, and then after the deadline, file a supplemental brief that meets the requirements for an acceptable petition. See Haghighi,

; see also Meredith, 191 Wn.2d at 307.

7 No. 51029-4-II

Petitioner at Ex. D. “In about June of 2017, all of [Fowler’s] calls started going to voice mail. In

about August of 2017, [Crowley’s] line was disconnected.” Suppl. Br. of Petitioner at Ex. D.

As Fowler acknowledges, our Supreme Court does not employ the federal standard of

“extraordinary circumstances.” Rather, Washington courts require bad faith, deception, or false

assurances caused by the opposing party or the court. See Bonds,

; Millay,

. Although Fowler has alleged the attorney he hired engaged in egregious behavior,

he has failed to establish bad faith, deception, or false assurances by the State. Thus, under

Bonds, we hold that Fowler has not demonstrated that he is entitled to equitable tolling.

B. Rule of Appellate Procedure (RAP) 18.8

Fowler contends the time for filing should be extended under RAP 18.8(a) and (b). We

disagree.

RAP 18.8, which applies to PRPs through RAP 16.17, addresses “[w]aiver of rules and

extension and reduction of time.” RAP 18.8 provides that appellate courts may waive or alter

any provision of the Rules of Appellate Procedure. RAP 18.8(a). Appellate courts may also

extend the time to file a notice of appeal, a notice for discretionary review, a motion for

discretionary review of a decision of the Court of Appeals, a petition for review, or a motion for

reconsideration. RAP 18.8(b).

The one year time limit of RCW 10.73.090 is a statutory limitation period. Courts do not

have the authority to waive statutory limitation periods, as opposed to time limits set down in

court rules. In Re Pers. Restraint of Benn,

,

(1998); State v.

Robinson,

,

(2001). The statutory time limit is a mandatory

rule that acts as a bar to appellate court consideration of collateral attacks, unless the petitioner

8 No. 51029-4-II

shows that a statutory exception applies. Robinson,

. Because we do not

have authority to waive statutory limitation periods under RAP 18.8, Fowler’s argument fails.

Fowler has failed to establish that the issues he raises in his supplemental petition are not

subject to the one year time bar under RCW 10.73.090, .100. Consequently, we dismiss his

petition as untimely.

Worswick, J. We concur:

Lee, A.C.J.

Cruser, J.

9