In re Personal Restraint of Vandelft, 77733-1.

• Decision Date: 30 November 2006
• Docket Number: No. 77733-1.,77733-1.
• Citation: 158 Wn.2d 731,147 P.3d 573
• Court: Washington Supreme Court
• Parties: In the Matter of the PERSONAL RESTRAINT Petition OF William Raymond VANDELFT, Petitioner.

147 P.3d 573

In the Matter of the PERSONAL RESTRAINT Petition OF William Raymond VANDELFT, Petitioner.

No. 77733-1.

Supreme Court of Washington.

Argued May 9, 2006.

Decided November 30, 2006.

Sheryl Gordon McCloud, Attorney at Law, Seattle, WA, for Petitioner.

Steven J. Tucker, Attorney at Law, Andrew J. Metts III, Spokane County Pros Offc, Spokane, WA, for Respondent.

BRIDGE, J.

¶ 1 William VanDelft was convicted of six crimes arising from five incidents in which he initiated contact with different boys and propositioned them for sex, using varying degrees of threats or violence. In this personal restraint petition, his second, VanDelft argues that the trial court's sentencing violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by requiring VanDelft's sentence for kidnapping in the second degree with sexual motivation (count 1) to be served consecutively to his sentences for all other counts pursuant to RCW 9.94A.589(1)(a). We hold that since VanDelft's judgment and sentence became final after Blakely was decided and the principles announced in Blakely apply to consecutive sentences imposed under RCW 9.94A.589(1)(a), the trial court erred when it imposed count 1 consecutively because the trial judge, not the jury, found that a concurrent sentence would be clearly too lenient.

I Statement of Facts and Procedural History

¶ 2 VanDelft was convicted by a jury on April 3, 2002 in Spokane County Superior Court of one count of kidnapping in the second degree with sexual motivation (count 1), two counts of attempted kidnapping in the first degree with sexual motivation (counts 3 and 6), two counts of communication with a minor for immoral purposes (counts 2 and 4), and one count of intimidation with a dangerous weapon (count 5). The kidnapping and attempted kidnapping convictions were felonies, while the others were gross misdemeanors. RCW 9.41.270; RCW 9.68A.090; RCW 9A.40.020, .030; RCW 9A.28.020. The jury returned special findings of sexual motivation on the kidnapping and attempted kidnapping charges. The jury also returned special verdicts finding VanDelft used a deadly weapon other than a firearm when committing the second degree kidnapping and one of the attempted first degree kidnappings.

¶ 3 The convictions were based on five separate incidents that occurred between June 13 and September 12, 2001. State v. VanDelft, noted at 118 Wash.App. 1071, 2003 WL 22351800 at *1, 2003 Wash.App. LEXIS 2364, at *2, review denied, 151 Wash.2d 1026, 94 P.3d 960, cert. denied, 543 U.S. 960, 125 S.Ct. 417, 160 L.Ed.2d 325 (2004).¹ The incidents involved five boys, 11 to 14 years old, and took place at various locations around Spokane. In the only incident at issue here, VanDelft struck up a conversation with an 11-year-old and offered him a ride. VanDelft then grabbed the boy and pulled out a knife, but the boy was able to run away. VanDelft chased the boy and managed to pin him down, but the boy escaped again. For this incident, VanDelft was convicted of kidnapping in the second degree with sexual motivation (count 1).

¶ 4 VanDelft was sentenced on July 12, 2002. The sentence for each individual crime was within its standard sentencing range. RCW 9.94A.589(1)(b) expressly required the court to run the sentences for the two attempted first degree kidnapping counts consecutively because they are statutorily defined as serious violent offenses. The court also ordered the sentences for the second degree kidnapping (96 months for count 1) and the three gross misdemeanors to run consecutively to each other and to all other charges. The result was that each sentence would be served consecutively for a total of 315 months.

¶ 5 To support its conclusion that count 1 would be served consecutively to the other felony sentences even though it was not a serious violent offense, the trial judge entered findings of fact and conclusions of law. The judge found that the jury returned special verdicts finding sexual motivation on each of counts 2, 3, and 6 and deadly weapon enhancements on counts 1 and 6. He found that the defendant had an offender score of 15 on each of the three felony convictions. He found the sentences in the two attempted first degree kidnapping convictions would necessarily run consecutive to each other by operation of RCW 9.94A.589(1)(b). Finally, he found

[t]hat given the defendant's offender score and that the crimes involved several distinct criminal acts against five different victims, a concurrent sentence on Count I to the two serious violent offenses in Counts III and VI, would fail to hold the defendant accountable for all of the crimes for which he was convicted, since he would serve no additional time for Count I.

Findings of Fact and Conclusions of Law at 2. The court then ruled that a concurrent sentence on count 1 would result in a sentence that was "clearly too lenient" and determined that the sentence for count 1 would run consecutive to all other counts in this case. Id. at 3.

¶ 6 VanDelft appealed his convictions but not his sentence. VanDelft, at *1, 2003 Wash.App. LEXIS 2364, at *1. The Court of Appeals affirmed VanDelft's convictions in an unpublished opinion on October 16, 2003, and this court denied his petition for review on June 2, 2004. Id.; State v. VanDelft, 151 Wash.2d 1026, 94 P.3d 960 (2004). The Court of Appeals issued its mandate terminating review on June 16, 2004. In the meantime, in February 2004, VanDelft filed his first personal restraint petition in the Court of Appeals. That petition was dismissed on July 1, 2004. In his direct appeal, VanDelft had also filed a petition for writ of certiorari in the United States Supreme Court on June 25, 2004, which was ultimately denied on November 1, 2004. VanDelft v. Washington, 543 U.S. 960, 125 S.Ct. 417, 160 L.Ed.2d 325 (2004).

¶ 7 VanDelft, acting pro se, filed his second personal restraint petition at the Court of Appeals in February 2005, arguing his sentence violated Blakely. The Chief Judge of the Court of Appeals dismissed this personal restraint petition, relying on State v. Evans, 154 Wash.2d 438, 448-49, 114 P.3d 627, cert. denied, ___ U.S. ___, 126 S.Ct. 560, 163 L.Ed.2d 472 (2005), in which we held that Blakely does not apply retroactively to convictions already final when Blakely was decided. VanDelft then filed a motion for discretionary review in this court seeking review of the order dismissing his petition, which was granted.

II Analysis

¶ 8 VanDelft argues that his convictions were still pending on review and not yet final when Blakely was decided. He asserts that the principles set forth in Blakely must be applied to his sentence, and he contends that the imposition of an exceptional consecutive sentence under RCW 9.94A.589(1)(a) violates Blakely. The State asserts that after this court's decision in State v. Cubias, 155 Wash.2d 549, 120 P.3d 929 (2005), Blakely does not apply to consecutive sentences that are otherwise within the standard range. The State also argues that VanDelft's petition should be barred because it is successive.

¶ 9 Finality: We have held that Blakely introduced a new rule of criminal procedure. Evans, 154 Wash.2d at 448, 114 P.3d 627. We apply a new rule for the conduct of criminal prosecutions retroactively "to all cases, state or federal, pending on direct review or not yet final." In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 326, 823 P.2d 492 (1992) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). The Court of Appeals dismissed this personal restraint petition because the mandate on VanDelft's direct appeal was issued on June 16, 2004, but Blakely was not decided until June 24, 2004. Yet under Washington law, a judgment becomes final on the last of the following dates: when the judgment is filed with the clerk of the trial court, when the appellate court issues its mandate terminating direct review, or when "the United States Supreme Court denies a timely petition for certiorari to review a decision affirming the conviction on direct appeal." RCW 10.73.090(3); see also Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708 n. 6. The United States Supreme Court denied VanDelft's petition for writ of certiorari on November 1, 2004, more than four months after Blakely was decided, so VanDelft's direct appeal was still pending and not yet final when Blakely was decided. The Court of Appeals erred when it dismissed VanDelft's petition.

¶ 10 Successive Petition: In its answer to VanDelft's motion for discretionary review, the State contends that the Court of Appeals correctly dismissed this petition, VanDelft's second, because it is successive. Under either RCW 10.73.140 (which applies only to the Court of Appeals) or RAP 16.4(d) (which applies to this court), a successive petition for similar relief must be dismissed absent good cause shown. In re Pers. Restraint of Stoudmire, 145 Wash.2d 258, 262-63, 36 P.3d 1005 (2001). Yet this is true only where the relevant issue was previously heard and determined on the merits. Id. at 263, 36 P.3d 1005. In addition, a new issue cannot be raised in a successive petition to the Court of Appeals without a showing of good cause for the failure to raise the issue earlier. RCW 10.73.140.²

¶ 11 When VanDelft filed his first personal restraint petition in February 2004, Blakely had not yet been decided. An intervening change in the law material to the petitioner's case can amount to good cause for a successive petition, and as noted above, Blakely announced a new rule. Evans, 154 Wash.2d at 448, 114 P.3d 627; In re Pers. Restraint of Crabtree, 141 Wash.2d 577, 583, 9 P.3d 814 (2000). Thus, Van Delft's personal restraint petition cannot be dismissed as successive because it raised a new issue not previously heard and determined on the merits, and there was good cause for not raising the issue previously. We therefore proceed to consider the merits of VanDelft's petition.

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