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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  42415-1-II
                             Respondent,
                                                           UNPUBLISED OPINION
       v.

JOHNATHAN PAUL QUINATA,
                             Appellant.

       Armstrong, J.  --  Johnathan Quinata appeals from the trial court's order transferring his 

motion to modify his judgment and sentence to this court to be considered as a personal restraint 

petition.  We conclude that the transfer order is not appealable as a matter of right.1

       The underlying facts are not relevant to our decision.  The State charged Quinata with 

second degree assault, while armed with a firearm (count 1); harassment, while armed with a 

firearm (count 2); second degree unlawful possession of a firearm (count 3); and unlawful 

imprisonment, while armed with a firearm.  As part of a plea agreement, the State amended its 

information in counts 1 and 2 to change the allegations from being armed with a firearm to being 

armed with a deadly weapon and in count 4 to delete the allegation of being armed with a firearm.  

Those amendments reduced Quinata's standard sentence range from 85 to 89 months of 

1 A commissioner of this court initially considered Quinata's appeal as a motion on the merits 
under RAP 18.14 and then transferred it to a panel of judges. 

No. 42415-1-II

confinement to 31 to 35 months of confinement.  Quinata signed a statement on plea of guilty 

indicating that he wished to enter a Newton2 plea of guilty to accept the State's offer.  On July 11, 

2011, the trial court accepted Quinata's plea, found him guilty as charged in the amended 

information and sentenced him to 33 months of confinement.  

       On July 28, 2011, Quinata filed a motion to modify his judgment and sentence under CrR 

7.8, arguing that his offender score was miscalculated and that his trial counsel coerced him into 

entering his plea.  The trial court entered the following order:

       [T]he Court:
              . . . .
              Having determined that the motion is not barred by RCW 10.73.090 
       (motion was filed within one year of date judgment and sentence became final or 
       judgment and sentence is invalid on its face), but having determined that the 
       Defendant has not made a substantial showing that s/he is entitled to relief or that 
       an evidentiary hearing will be necessary to resolve the motion on the merits, hereby 
       transfers this matter to the Court of Appeals for its consideration as a personal 
       restraint petition.

Clerk's Papers at 71.

       Upon receiving the order transferring Quinata's motion, we concluded that the transfer 

was proper and opened the motion as a personal restraint petition under cause number 42867-9-

II.  That petition is stayed pending this appeal.

       Quinata appeals from the order transferring his CrR 7.8 motion.  CrR 7.8(c)(2) provides 

that the trial court

       shall transfer a motion filed   by a defendant to the Court of Appeals for 
       consideration as a personal restraint petition unless the court determines that the 
       motion is not barred by RCW 10.73.090 and either (i) the defendant has made a 
       substantial showing that he or she is entitled to relief or (ii) resolution of the
       motion will require a factual hearing.

2 State v. Newton, 87 Wn.2d 363, 552 P.2d 682 (1976); see also North Carolina v. Alford, 400 
U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

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No. 42415-1-II

       Quinata argues that the trial court erred in transferring his CrR 7.8 motion because 

resolution of that motion required a factual hearing on his claims of a miscalculated offender score 

and of coercion.  The State responds that the order transferring Quinata's CrR 7.8 motion is not 

appealable as a matter of right because it does not fall within RAP 2.2(a).

       We agree with the State.  Because we will address his CrR 7.8 motion as a personal 

restraint petition, the order transferring the CrR 7.8 motion is not a final order and does not fall 

within any of the other orders made appealable as a matter of right under RAP 2.2(a).  Therefore, 

the order transferring Quinata's CrR 7.8 motion is not appealable as a matter of right.

       An order transferring a CrR 7.8 motion could be subject to discretionary review under 

RAP 2.3(b).  Under that rule, we may review a trial court order if the moving party demonstrates 

that:

              (1)     The superior court has committed an obvious error which would 
       render further proceedings useless;
              (2)     The superior court has committed probable error and the decision 
       of the superior court substantially alters the status quo or substantially limits the 
       freedom of a party to act;
              (3)     The superior court has so far departed from the accepted and usual 
       course of judicial proceedings, or so far sanctioned such a departure by an inferior 
       court or administrative agency, as to call for review by the appellate court; or
              (4)     The superior court has certified, or all the parties to the litigation 
       have stipulated, that the order involves a controlling question of law as to which 
       there is substantial ground for a difference of opinion and that immediate review of 
       the order may materially advance the ultimate termination of the litigation.

RAP 2.3(b).

       Quinata does not show that discretionary review of the order transferring his CrR 7.8 

motion would be warranted.  He stipulated to the offender score in his statement on plea of guilty 

and so waived his opportunity to argue that counts 1 and 2 were parts of the same criminal 

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No. 42415-1-II

conduct under RCW 9.94A.589(1)(a).  And he denied having been coerced in both his statement 

of plea of guilty and during his plea colloquy.  

       We dismiss Quinata's appeal from the order transferring his CrR 7.8 motion to this court.  

We deny discretionary review of that order as well.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, J.
We concur:

Penoyar, C.J.

Johanson, J.

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