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To: Jane Lawyer
From: Laura Poyneer
Date: November 18, 2002

You have asked me to research a question relating to the case of our client, John Doe. Doe had entered a guilty plea at trial. Subsequently, he appealed his conviction. Now hw wishes to file a Personal Restraint Petition arguing that there was no factual basis for his guilty plea. He had not raised this issue in his appeal.

As I understand it, the question here is whether an issue can be raised in a PRP that was not raised previously.

There is not a clear yes-or-no answer to this question. In order for a petitioner to raise an issue in a PRP that he had not raised previously, he must show that there was a constitutional error in the decision that actually prejudiced him.

A PRP is a type of collateral attack and as a general rule, collateral attacks on a conviction are only allowed in certain limited circumstances. These are set out in RAP 16.4, which lists constitutional error as one of the grounds on which a PRP may be brought. The courts have interpreted this as follows:

"A conviction may not be collaterally attacked upon non-constitutional ground which could have been raised on appeal but was not," Matter of Keene, 95 Wash.2d 203 (1980)

"[The fact that it was not raised on appeal] do[es] not prevent appellate review if the interest in finality of judgment is outweighed by claims of constitutional error actually prejudicing the petitioner," Hews v. Evans, 99 Wash.2d 80 (1983)

"If petitioner's claim merely asserts a violation of the rules of criminal procedure, failure to bring an appeal forecloses relief in a PRP... if, however, the charged violation raises a constitutional error, petitioner may challenge the plea in a collateral proceeding," In re Barr, 102 Wash.2d 291 (1984)

"Must show plea is constitutionally infirm, not simply that a court rule was violated," In re Benn, 134 Wn.2d 868 (1998)

The most recent case I found on point affirms this rule: "A conviction may not be collaterally attacked upon a non-constitutional ground that could have been raised in an appeal but was not," State v. Gaut, 111 Wn.App. 875 (2002). This was filed May 23, 2002.

It must be noted that the Court of Appeals ruled in State v. Chipman, 1997 Wash. App. LEXIS 1996, that "the establishment of a factual basis is not an independent constitutional requirement."

It is worth a try, if the facts in Doe's case can show some constitutional error in the entering of his guilty plea that prejudiced him, but we should be aware that Chipman is likely to be cited by the respondent and that we need to find a way around this. Without knowing more details about the circumstances in which Doe entered his guilty plea, I can't say more than this.

I await your instructions on how to proceed from here.


Laura Poyneer

Legal 199 - Legal Research and Writing
Formal Assignment Two
Laura M. Poyneer
November 18, 2002