In re Colbert

Decision Date29 September 2016
Docket NumberNo. 92421–0,92421–0
Citation186 Wash.2d 614,380 P.3d 504
CourtWashington Supreme Court
Parties In the Matter of the Personal Restraint of Bobby Darrell Colbert, Petitioner.

Jennifer M. Winkler, Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122–2842, for Petitioner.

Erik Pedersen, Attorney at Law, Rosemary Hawkins Kaholokula, Skagit County Prosecuting Attorney, Skagit Co. Prosc. Atty. Ofc., 605 S. 3rd St., Mount Vernon, WA, 98273–3867, for Respondent.

JOHNSON, J.

In this personal restraint petition (PRP), the petitioner challenges his 2005 conviction for second degree rape, arguing our decision in State v. W.R., 181 Wash.2d 757, 336 P.3d 1134 (2014)

—which held that instructing the jury that the defendant bears the burden to establish the victim's consent was error—should apply retroactively. He presents two main arguments: that his PRP overcomes the one-year time limit under chapter 10.73 RCW because the decision in W.

R. eithe r involved statutory interpretation exempt from the time bar or is a significant change in the law material to his conviction that requires retroactive application. We hold that W.

R. does not apply retroactively and deny the petition as time barred.

¶2 This is Bobby Colbert's third PRP. Colbert was tried on January 31, 2005, for rape in the third degree and rape in the second degree involving two different victims on two different dates. A jury convicted Colbert on both counts. Colbert received an indeterminate sentence of 136 months to life on March 31, 2005, for the second degree rape conviction.1

¶3 At Colbert's trial, the court instructed the jury that Colbert had the burden of proving consent as to the second degree rape charge. While Colbert's counsel acknowledged that the proposed instruction was consistent with then-existing case law as set forth in State v. Camara, 113 Wash.2d 631, 781 P.2d 483 (1989)

, overruled by

W.R., 181 Wash.2d 757, 336 P.3d 1134, and proposed an instruction similar to the one given there,2 counsel expressed concern that the instruction would cause confusion about the burdens as to consent. The court overruled the objection3 and instructed the jury:

Consent is a defense to a charge of rape in the second degree. This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.

Pers. Restraint Pet. Ex. 1 (Instr. 15). In W.R.,

we held giving this instruction is error.

¶4 Colbert filed this third PRP in this court on December 26, 2013. The petition was originally based on State v. Lynch, 178 Wash.2d 487, 309 P.3d 482 (2013)

, which involved the Sixth Amendment to the United States Constitution's right to control one's defense. We transferred the PRP to the Court of Appeals. The Court of Appeals then certified Colbert's PRP to this court after W.R. was decided.

¶5 Colbert alleges that he is unlawfully restrained because there has been a significant change in the law that is material to his conviction. RAP 16.4(c)(4)

.4 He argues that the trial court violated his due process rights by requiring him to prove consent by a preponderance of the evidence, contrary to the holding of W.R.

¶6 The question here is whether the petition is timely. Because Colbert's case became final on June 8, 2007, when the appellate mandate issued, he is outside the one-year period for collaterally attacking a conviction unless an exception applies. RCW 10.73.090

.

¶7 Colbert first argues that his petition is not subject to the one-year time bar of RCW 10.73.090

because his claims are based on a “significant change in the law,” an exception to the one-year limitation under RCW 10.73.100(6), which provides:

The time limit specified in RCW 10.73.090

does not apply to a petition or motion that is based solely on one or more of the following grounds:

....

(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

Colbert claims that W.R.

significantly changed the law regarding the burden of proof of consent in a second degree rape case.

¶8 RCW 10.73.100(6)

sets forth three conditions that must be met before a petitioner can overcome the one-year time bar: (1) a substantial change in the law (2) that is material and (3) that applies retroactively. Colbert is correct that W.R. constitutes a significant change in the law, material to his conviction. A “significant change in the law” occurs when ‘an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue.’ In re Pers. Restraint of Domingo, 155 Wash.2d 356, 366, 119 P.3d 816 (2005) (quoting In re Pers. Restraint of Greening, 141 Wash.2d 687, 697, 9 P.3d 206 (2000) ). The State does not disagree that W.R. constitutes a substantial change in the law that is material to Colbert's conviction. See Suppl. Br. of Resp't at 15 (acknowledging that W.R. constitutes a “significant change of the law” within the meaning of RCW 10.73.100(6) ). However, determining whether a decision is a change in the law is an inquiry distinct from determining whether it is applied retroactively.

¶9 Colbert first contends that retroactive application is warranted because the W.R.

opinion does not create a “new rule” because it is based on interpretation of a 1975 statute. Suppl. Br. of Pet'r at 8–9. While Colbert is correct that “where a statute has been construed by the highest court of the state, the court's construction is deemed to be what the statute has meant since its enactment.

In other words, there is no question of retroactivity.” State v. Moen, 129 Wash.2d 535, 538, 919 P.2d 69 (1996)

; see also

In re Pers. Restraint of Vandervlugt, 120 Wash.2d 427, 842 P.2d 950 (1992) ; In re Pers. Restraint of Moore, 116 Wash.2d 30, 803 P.2d 300 (1991) (holding when this court interprets a statute, that statute is deemed to have had that newly interpreted meaning since that statute was enacted). We disagree that W.R. involved statutory interpretation.5

¶10 W.R.

expressly overruled Camara and State v. Gregory, 158 Wash.2d 759, 147 P.3d 1201 (2006),6 on due process grounds and was not based on statutory-interpretation. WASH. CONST. art. I, § 12. We know that because the W.R. opinion itself holds that is a violation of due process to task the defendant with proving a defense that negates an element of the crime charged. The decision did not turn on any statutory language. The misallocation of the burden addressed in W.R. has only a tangential relationship to the second degree rape statute insofar as consent can negate an element of the offense. The statutory language of rape in the second degree does not mention consent or contain any provisions relating to affirmative defense.7 Unlike rape in the third degree, consent is not an element of rape in the second degree. As was explained in Lynch:

Rape in the second degree encompasses sexual intercourse by forcible compulsion “under circumstances not constituting rape in the first degree,” sexual intercourse with a victim who is physically helpless or mentally incapacitated, and sexual intercourse characterized by the victim's vulnerability and dependence on the perpetrator for certain care or services. Rape in the third degree encompasses sexual intercourse “under circumstances not constituting rape in the first or second degrees,” where the victim clearly expressed a lack of consent or the perpetrator made a “threat of substantial unlawful harm” to the victim's “property rights.”

Lynch, 178 Wash.2d at 515, 309 P.3d 482

(Gordon McCloud, J., concurring) (footnotes omitted) (quoting RCW 9A.44.050(1)(a), .060(1)(b)). Since second degree rape requires proof of forcible compulsion and not lack of consent, the reasoning in W.R. did not turn on statutory interpretation, even though, in some cases, consent negates the element of forcible compulsion. The holding of W.R. makes this point expressly.

¶11 Nonetheless, Colbert cites two cases in support of his argument that W.R.

is based on statutory interpretation, In re Personal Restraint of Grasso, 151 Wash.2d 1, 84 P.3d 859 (2004) (plurality opinion), and In re Personal Restraint of Yung–Cheng Tsai, 183 Wash.2d 91, 351 P.3d 138 (2015). Grasso dealt with the admission of a child victim's hearsay statements in a child molestation case. In a three-justice lead opinion, Grasso held that the meaning of “testify” as used in RCW 9A.44.120(2)(a)

and redefined in State v. Rohrich, 132 Wash.2d 472, 939 P.2d 697 (1997), must be applied retroactively because it was based on statutory interpretation and thus not a “new rule” warranting Teagueretroactivity analysis. Teague v. Lane, 489 U.S. 288, 299, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)

(plurality opinion). However, Grasso is inapposite to W.R.

¶12 In Grasso,

we decided retroactive application was appropriate for two reasons: first, because the rule announced in Rohrich was based on statutory construction of the word “testifies,” the court's construction was deemed to be what the statute has meant since its enactment. In other words, there was no question of retroactivity. Unlike Grasso, as pointed out above, W.R. is based on constitutional due process principles rather than statutory interpretation. Second, and more importantly, Grasso was procedurally situated differently and not...

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