Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 60319-5-II Respondent, UNPUBLISHED OPINION v. DENNIS DERISE CORBRAY, Appellant. PRICE, A.C.J. — Dennis D. Corbray appeals the superior court’s order denying his motion for post-conviction deoxyribonucleic acid (DNA) testing. Corbray argues that the superior court abused its discretion by denying his motion. Corbray also raises additional claims in his statement of additional grounds (SAG). We affirm. FACTS In 2002, Corbray was convicted of second degree assault—domestic violence (DV) and first degree rape—DV for an attack on his then-girlfriend, R.D.1 Corbray was sentenced to life in prison without the possibility of parole as a persistent offender. Corbray’s convictions were affirmed on direct appeal. State v. Corbray, noted at 117 Wn. App. 1031, 2003 WL 21387193, at *4. 1 The facts underlying Corbray’s convictions are set out in detail in State v. Corbray, noted at 117 Wn. App. 1031, 2003 WL 21387193, at *1. The underlying facts are not necessary to resolving this appeal and, therefore, are not repeated here. No. 60319-5-II In 2008, Corbray filed a motion for post-conviction DNA testing on “any and all biological samples taken in this case at the Washington state patrol crime laboratory.” Clerk’s Papers (CP) at 30. Despite this broad request, the motion focused specifically on a biological sample that contained semen but no identifiable male DNA profile and pubic hair combings that were not tested. The superior court denied Corbray’s motion for post-conviction DNA testing on January 30, 2009. Years later, in February 2023, Corbray filed a motion for a new trial and other related motions based on records he received through several public records requests. The public records included a computer aided dispatch (CAD) log, which Corbray contended showed that there were police reports from first responders that were never disclosed in discovery. Although Corbray filed numerous additional public records requests and pursued additional investigation, no reports from these first responders were ever located. The superior court transferred Corbray’s motions to this court for consideration as a personal restraint petition. This court dismissed Corbray’s petition as time barred. Specifically, in relation to Corbray’s reliance on reports from first responders that he claimed were not disclosed, this court explained, Corbray’s Brady[ 2 ] claim specifically concerns four alleged incident reports purportedly authored by Pierce County law enforcement officers who initially responded to the incident underlying Corbray’s convictions for first degree rape and second degree assault. Corbray claims to have first learned of the existence of these reports as a result of two public records requests. Despite Corbray’s numerous records requests and court filings seeking these reports, including an investigation into the records by a private investigator Corbray hired, our record does not demonstrate that these alleged reports ever existed. 2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 2 No. 60319-5-II Order Dismissing Petition at 2-3, In re Pers. Restraint of Corbray, No, 58352-6-II (Wash. Ct. App. Feb. 6, 2024); CP at 396-97. On March 7, 2023—after filing his motion for a new trial and related motions, but before those motions were transferred to this court—Corbray filed a second motion for post-conviction DNA testing. In his motion, Corbray stated, “The defendant contends that the results of testing evidence would more likely than not demonstrate the Defendant’s actual innocence,” without any further explanation. Corbray then contended “that advanced technology analyses regarding DNA testing could more likely than not establish his actual innocence,” but he included only a few sentences that generally described DNA technology: There are two main types of DNA tests: STR and RFLP. STR analysis: Short Tandem Repeat, and RFLP: Restriction Fragment Length Polymorphism, are the two main testing means. The Scientific Working Group on DNA Analysis Methods (SWGDAM) sets the standards for DNA laboratory analysis. One area covered by SWGDAM concerns statistical analysis of the lab’s results. CP at 118. In a supporting affidavit, Corbray identified the pieces of evidence that he believed should be subject to DNA testing: 3. That Chris Sewell, a forensic scientist for the Washington State Patrol, tested the swabs f[ro]m the rape kit and concluded that there was no D.N.A. linking Corbray to [R.D]. (RP 124). 4. That Chris Sewell testified that no testing was done on pubic hairs, or fingernail scraping [sic] included in the rape kit. (RP 126). 5. That several clothing garments belonging to [R.D.] are untested. CP at 115. Corbray attempted to note this motion for a hearing on March 31, 2023; however, the motion was not set for a hearing. In May 2024, Corbray filed an action for a writ of mandamus in 3 No. 60319-5-II our Supreme Court, seeking a writ requiring the superior court to hear the March 2023 motion for post-conviction DNA testing. In response, the State explained that “a previous motion for post- conviction relief filed on February 27, 2023, resulted in a stay of trial court motions,” and that Corbray failed to re-note his motion for post-conviction DNA testing. Br. of Appellant, Appx. 49. A Supreme Court commissioner dismissed the action for a writ because the court was under no obligation to take action on the motion until the motion was properly re-noted. On August 1, 2024, Corbray re-noted the motion for post-conviction DNA testing and set the hearing for August 9. On August 7, Corbray filed a “Note for Motion Order for Transport” requesting an order requiring him to be transported from the Department of Corrections to be physically present for the hearing on the motion for post-conviction DNA testing. The superior court rescheduled the hearing for September 20. Corbray also filed various additional motions: a motion requesting counsel, a motion objecting to Zoom hearing, a motion for clarification on whether his judgment and sentence was facially invalid, a motion requesting judicial notice, and a motion to stay the DNA hearing until counsel was appointed. Based on our record, it does not appear that any of these motions were noted for a hearing. The State filed a response to “Corbray’s motion for postconviction DNA testing, filed on August 7, 2024.” CP at 263. The State argued that the motion for post-conviction DNA testing was barred by collateral estoppel because the issue had already been decided years earlier in 2009 by the denial of Corbray’s first motion for DNA testing. Notably, the State’s response appeared to focus on the wrong pleading. Rather than specifically address the DNA testing motion filed in March 2023, the State referenced Corbray’s August 7 motion for transport and argued that as a 4 No. 60319-5-II motion for transport, it did not meet any of the procedural and substantive requirements for a motion for postconviction DNA testing under RCW 10.73.170. At the September 20, 2024, hearing, the superior court did not appear to make the same mistake as the State; it appeared to be addressing the correct 2023 pleading, stating that the hearing was for the motion for post-conviction DNA testing that Corbray had noted. The superior court also identified two additional motions that were related to the 2023 post-conviction DNA testing motion: the motion to stay and the motion for appointment of counsel. When Corbray asked to read his motion into the record, the superior court stated, There is no need to read your motion into the record. Your motion is in the record. It is filed in LINX and has been reviewed by the Court. 1 Verbatim Rep. Proc. (Sept. 20, 2024) (VRP) at 6. When Corbray clarified that he was actually making an additional, separate motion to challenge the superior court’s subject matter jurisdiction, the superior court responded that no additional motions had been noted for the hearing: THE COURT: The subject-matter jurisdiction? [CORBRAY]: Yes. At any time during the proceedings, I have the authority—the case authority also, Your Honor, that anytime during the proceeding I can challenge the subject-matter jurisdiction. THE COURT: Have you filed this brief? [CORBRAY]: That’s what we’re doing right now with the motion. THE COURT: I’m going to give you five minutes to read what you want and summarize your motion. This is not something that— .... In fact, you haven’t provided this to the State, so they’re not prepared to respond to that today. So, in fact, if you have a motion for challenging the subject-matter jurisdiction, that will need to be filed and noted. 5 No. 60319-5-II I’m here today to hear your motion with regard to post-conviction DNA testing and/or your motion to stay. Those are the matters that were noted today. I’m not going to entertain any other motions this afternoon. You clearly know how to note motions, so I’m not going to just sua sponte entertain a new motion today, Mr. Corbray. That’s my ruling. You can choose to move forward with motions that are noted or we can strike today’s hearing and you can renote what you feel is appropriate. 1 VRP at 6-7. Corbray objected to the superior court refusing to hear his motion, and the superior court reiterated that it would hear his motion when it was properly filed and noted. Corbray then stated that he wanted counsel appointed to assist him and that he had not received the State’s response to his motion for post-conviction DNA testing. At that point, the State was unable to confirm whether or not Corbray would have received its response. Thus, the superior court continued the hearing on the motion for post-conviction DNA testing until November 15 so that Corbray could review the State’s response, but it denied Corbray’s motion to appoint counsel. The superior court reminded Corbray that any additional motions would need to be properly briefed, filed, and noted, with an opportunity for the State to respond, before they would be heard. Following the September 20 hearing, Corbray filed many more motions: three motions requesting judicial notice, a motion to dismiss (the underlying criminal case), a motion to arrest judgment, three motions requesting a Brady order, and a motion to stay. It does not appear that any of these motions were noted for a hearing. Corbray also filed a reply to the State’s response to his motion for post-conviction DNA testing. Corbray’s reply relied extensively on the “new” evidence related to the allegedly withheld 6 No. 60319-5-II police reports from the first responders.3 Corbray also maintained his innocence and asserted, “any foreign biological samples recovered from DNA testing would establish, and reveal the identity of the perpetrator(s).” CP at 308. Corbray also claimed that “[w]ith the astronomical scientific advancements of DNA testing from mitochondrial, to even the most miniscule recovering of DNA by way of trace evidence testing, science now holds the distinct reality of definitively and accurately revealing the true identity, or identities, of the real rapist, or rapists.” CP at 308. The superior court held another hearing on November 15, 2024. The superior court recognized that Corbray had filed multiple additional motions but clarified that none of those motions had been noted and that the hearing was related solely to the motion for post-conviction DNA testing. Corbray began his argument by asking the superior court to recuse itself because the judge had worked in the prosecuting attorney’s office at the time he was prosecuted. The superior court denied the motion because it had no involvement in the case. Corbray next moved to stay the hearing until he received the police reports that were allegedly withheld by the State: A brief argument is that in regards to the Brady I submitted on September 27th was related with the missing police reports that were withheld or suppressed by the State that I’ve yet to receive. So without those reports I feel that until the State presents those reports, Your Honor, I’m asking for a stay of this hearing as well until I get those reports, Your Honor. Period. 3 Corbray continued to rely on the same evidence referenced in the prior motions, and there was no additional evidence showing that the reports existed, let alone additional evidence of the content of those reports. 7 No. 60319-5-II 2 VRP (Nov. 15, 2024) at 25. The superior court indicated that issues related to receiving the police reports were addressed at a May 2024 hearing in front of a different judge.4 In response, the State explained that, from its perspective, the only motion properly before the superior court was the motion for post-conviction DNA testing. And the State reiterated its argument that the motion for DNA testing was barred by collateral estoppel based on the 2009 decision. The State declined to comment on Corbray’s other motions. The superior court allowed Corbray to make a brief response to the State’s argument. Corbray argued that the motion could not be barred by collateral estoppel because the 2009 motion did not consider the evidence related to the first responders. The superior court orally denied Corbray’s DNA motion, citing two reasons. First, the superior court agreed with the State and ruled that the motion was barred by collateral estoppel. Second, and alternatively, the superior court ruled that Corbray had failed to meet the statutory requirements to grant post-conviction DNA testing. Following the hearing the superior court entered a written order denying Corbray’s motions. The superior court’s findings stated, in part, 5. On August 7, 2024, Corbray filed a “Note for Motion Order for Transport” moving for a motion requesting postconviction DNA testing. The Court previously heard this same issue and entered an order denying Corbray’s motion on January 30, 2009. 6. Corbray also made oral motions that the Court lacked jurisdiction, recusal, and a copy of his client file. The request to review a copy of his client file was previously denied on May 30, 2024. 4 It appears that the superior court treated this as motion for a copy of his client file or discovery from the criminal case. 8 No. 60319-5-II CP at 333. After concluding that the superior court had subject matter jurisdiction, the written order repeated the superior court’s oral conclusions that the motion for post-conviction DNA testing was barred by collateral estoppel, and alternatively, that Corbray had failed to meet the statutory requirements. The superior court denied the “motions for postconviction DNA testing, lack of jurisdiction, recusal, and a copy of his client file . . . .” CP at 333. Corbray appeals. ANALYSIS Corbray argues that the superior court abused its discretion by denying his motion for post- conviction DNA testing. Corbray also raises additional claims in his SAG. We affirm. I. MOTION FOR POST-CONVICTION DNA TESTING Corbray contends that the superior court erred by concluding that his motion was barred by collateral estoppel. Corbray further contends that he met the statutory requirements for post- conviction DNA testing. Regardless of whether Corbray’s motion was barred by collateral estoppel, Corbray did not meet the statutory requirements for post-conviction DNA testing. Accordingly, the superior court did not abuse its discretion. We review the superior court’s decision on a motion for post-conviction DNA testing for an abuse of discretion. State v. Riofta, 166 Wn.2d 358, 370, 209 P.3d 467 (2009). A trial court abuses its discretion when “an order is manifestly unreasonable or based on untenable grounds.” State v. Thompson, 173 Wn.2d 865, 870, 271 P.3d 204 (2012). A person convicted of a felony who is currently serving a term of imprisonment may move for post-conviction DNA testing. RCW 10.73.170(1). The statutory scheme includes both procedural requirements establishing what must be included in the motion and a substantive 9 No. 60319-5-II requirement, under which the movant must establish the “ ‘likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis.’ ” Riofta, 166 Wn.2d at 367 (quoting RCW 10.73.170(3); State v. Crumpton, 181 Wn.2d 252, 258, 332 P.3d 448 (2014). RCW 10.73.170 provides, (2) The motion shall: (a) State that: (i) The court ruled that DNA testing did not meet acceptable scientific standards; or (ii) DNA testing technology was not sufficiently developed to test the DNA evidence in the case; or (iii) The DNA testing now requested would be significantly more accurate than prior DNA testing or would provide significant new information; (b) Explain why DNA evidence is material to the identity of the perpetrator of, or accomplice to, the crime, or to sentence enhancement; and (c) Comply with all other procedural requirements established by court rule. (3) The court shall grant a motion requesting DNA testing under this section if such motion is in the form required by subsection (2) of this section, and the convicted person has shown the likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis. (Emphasis added). To access post-conviction DNA testing under RCW 10.73.170, a movant must meet both the procedural and substantive requirements. Riofta, 166 Wn.2d at 364. The procedural requirements in RCW 10.73.170(2) are lenient and met when the motion states the basis for the request, explains the relevance of the DNA evidence sought, and complies with the applicable court rules. Id. The substantive requirement in RCW 10.73.170(3), however, has been characterized as onerous but reasonable. Id. at 367. Here, given the lenient procedural requirements of RCW 10.73.170(2), Corbray sufficiently stated the basis for his motion. In both his March 2023 motion and his reply brief, 10 No. 60319-5-II Corbray stated that there were significant advances in DNA technology and that testing of DNA material in the case would identify the actual perpetrator of the assault and rape. Although vague and conclusory, the motion does state a basis for the request (advances in DNA technology) and explains the relevance (to identify the perpetrator). See Id. However, Corbray failed to meet the “onerous” substantive requirement of demonstrating that there is substantial likelihood that the DNA evidence would demonstrate innocence on a more probable than not basis. In his March 2023 motion Corbray included nothing but a single conclusory statement that is insufficient to meet this substantive requirement. And in his reply brief, Corbray focused on the police reports that he alleges were withheld, appearing to argue that this allegedly withheld evidence supported his request for DNA testing. Even at the hearing, Corbray’s arguments focused on these allegedly withheld reports, so much so that he asked for the motion for post-conviction DNA testing to be stayed until he got the reports. Corbray put a great deal of significance on the information from the CAD log, but as explained above, multiple public records requests have failed to demonstrate that these reports ever existed. Therefore, there is no substantive evidence that appears to relate to any DNA or DNA testing. Further, even if these reports existed and had been withheld, it is unclear how that would relate to or support a motion for post-conviction DNA testing and satisfy Corbray’s burden of demonstrating the substantive requirement of demonstrating innocence on a more probable than not basis. The moving party bears the burden of meeting the “onerous” substantive requirement to show the likelihood that DNA evidence would demonstrate innocence on a more probable than not basis. Riofta, 166 Wn.2d at 367; RCW 10.73.170(3). Based on the specific arguments that Corbray made—focused narrowly on the allegedly withheld police reports—the superior court did 11 No. 60319-5-II not abuse its discretion by concluding the substantive requirement of the statute was not met. Thus, the superior court did not abuse its discretion in denying Corbray’s motion for post-conviction DNA testing.5 II. SAG In a SAG, Corbray raises four additional claims. First, Corbray claims the superior court abused its discretion when it refused to allow him to challenge subject matter jurisdiction. Second, Corbray claims that the superior court erred by refusing to hear his Brady claims. Third, Corbray claims that the State committed a Brady violation based on the allegedly withheld first responder reports. Fourth, Corbray claims the sentencing court failed to give him credit for time served. Corbray’s first two claims fail and his second two claims are outside the scope of this appeal. As for Corbray’s first two claims, Corbray appears to assert that because a challenge to subject matter may not be waived and can be raised at any time in a proceeding and because his Brady claim implicated his right to due process, the superior court was obligated to hear the motions regardless of whether Corbray complied with the appropriate procedural requirements to bring the motions before the court. We disagree. It is clear from the record that Corbray failed to properly note his motions for hearing; neither subject matter jurisdiction nor the Brady motions 5 Corbray argues that the superior court erred by failing to consider his March 2023 motion and instead considering his August note for motion to transport as his motion for post-conviction DNA testing. Although the record is unclear and suggests that at least the State may have confused the two motions, the superior court repeatedly stated that it had reviewed the file and was familiar with all of Corbray’s motions. Further, the superior court allowed and considered Corbray’s reply brief and his oral argument. But Corbray’s March 2023 motion contained a single, conclusory statement about his innocence, which as explained above, does not meet the substantive requirement for granting a motion for post-conviction DNA testing. Thus, if the superior court failed to consider Corbray’s March 2023 motion, any error would be harmless. 12 No. 60319-5-II were properly before the court at either the September 20 or the November 15 hearing. Thus, the superior court did not abuse its discretion by refusing to hear motions that were not properly noted. Further, the superior court explained that it would hear Corbray’s additional motions when they were properly noted.6 Accordingly, these two claims fail. Corbray’s other two claims are outside the scope of appeal. To the extent that Corbray is arguing that the State committed a Brady violation, the superior court did not make any decision regarding Brady because, as explained above, Corbray did not properly note the motion for a hearing. There is nothing related to any Brady issue in the order designated for review. Thus, this issue is outside the scope of appeal. See RAP 2.4. Similarly, Corbray raises an argument related to his sentence imposed in 2002. This appeal is limited to the superior court’s order on Corbray’s motion for post-conviction DNA testing. Alleged errors related to Corbray’s 2002 judgment and sentence are outside the scope of appeal. See RAP 2.4. 6 Moreover, the superior court concluded that it did have subject matter jurisdiction. “ ‘Subject matter jurisdiction’ refers to a court’s ability to entertain a type of case, not to its authority to enter an order in a particular case.” In re Marriage of Buecking, 179 Wn.2d 438, 448, 316 P.3d 999 (2013). If the court has subject matter jurisdiction to address the type of case, “ ‘then all other defects or errors go to something other than subject matter jurisdiction.’ ” ZDI Gaming, Inc. v. Wash. State Gambling Comm’n, 173 Wn.2d 608, 618, 268 P.3d 929 (2012) (internal quotation marks omitted) (quoting Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994)). It appears Corbray was attempting to challenge the superior court’s subject matter jurisdiction over his criminal convictions, rather than his motion for post-conviction DNA testing. The Washington Constitution grants superior courts subject matter jurisdiction over felony cases. WASH. CONST. art. 4, § 6. Therefore, it appears that Corbray’s motion went to something other than subject matter jurisdiction. To the extent that Corbray’s SAG claim was intended to challenge subject matter jurisdiction rather than the superior court’s refusal to consider his motion on procedural grounds, Corbray has failed to identify anything that would deprive the superior court of subject matter jurisdiction. 13 No. 60319-5-II CONCLUSION Because Corbray failed to carry his burden to meet the substantive requirement of RCW 10.73.170(3), the superior court did not abuse its discretion by denying his motion for post- conviction DNA testing. Further, the additional claims raised in Corbray’s SAG either lack merit or are outside the scope of this appeal. We affirm. 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. PRICE, A.C.J. We concur: VELJACIC, C.J. GLASGOW, J. 14