In re Crabtree

• Decision Date: 14 September 2000
• Docket Number: No. 67536-8., No. 67176-1
• Citation: 141 Wash.2d 577,9 P.3d 814
• Parties: In re the Personal Restraint Petition of: Mark Alan CRABTREE, Petitioner.
• Court: Washington Supreme Court

9 P.3d 814

141 Wash.2d 577

In re the Personal Restraint Petition of: Mark Alan CRABTREE, Petitioner.

Nos. 67176-1, 67536-8.

Supreme Court of Washington, En Banc.

Argued March 20, 2000.

Decided September 14, 2000.

Mark A. Crabtree, Monroe, Pro se.

Pattie Mhoon, Tacoma, for Petitioner.

Norm Maleng, King County Prosecutor, Deborah A. Dwyer, Deputy King County Prosecutor, James M. Whisman, Deputy King County Prosecutor, Seattle, for Respondent.

GUY, C.J.

This court granted discretionary review of orders dismissing two personal restraint petitions filed by the petitioner, Mark Crabtree. The cases have been consolidated and were initially deferred pending this court's decision in State v. Aho.¹ The Court of Appeals properly dismissed the two personal restraint petitions (PRPs); however, between the time the PRPs were dismissed and the time Crabtree petitioned for discretionary review there was an intervening change in the law which may be relevant to this case. We hold that the intervening change in the law does not constitute good cause to grant the petition and therefore deny Crabtree's PRP.

Crabtree was charged with five sexual assaults against children. On April 18, 1989, he entered guilty pleas to charges of first degree child rape (count II), first degree child molestation (count IV), and first degree statutory rape (count V). As part of the plea agreement, the State dismissed the charges of first degree statutory rape (count I) and indecent liberties (count III). The court sentenced Crabtree to concurrent terms of 89 months (count II), 41 months (count IV), and 61 months (count V). A one-year term of community placement was imposed as part of his sentence for counts II and IV pursuant to former RCW 9.94A.120(8)(a) (1988).²

Crabtree began serving his term of community placement after earning 27 months of good time. He then violated the terms of his community placement and was returned to prison. Following his return to prison, Crabtree filed two PRPs.

On January 7, 1998, Crabtree filed his first PRP with the Court of Appeals claiming the community placement portion of his sentence violated the ex post facto clause because the community placement statute applies only to crimes committed on or after July 1, 1998. That PRP was dismissed as time-barred under RCW 10.73.090(1).³ On July 7, 1998, while the first petition was still pending, Crabtree filed a pro se motion to withdraw his guilty plea. Crabtree challenged his convictions on the basis of an ex post facto violation, the court exceeded its jurisdiction by accepting the pleas, ineffective assistance of counsel, and newly discovered evidence. That motion was transferred to the Court of Appeals and handled as a PRP. This second PRP was procedurally barred. The Court of Appeals stated that Crabtree failed to show good cause for reraising his sentencing claim and for not making his other arguments in the first petition. The second petition was deemed a prohibited successive petition pursuant to RCW 10.73.140.⁴ Crabtree made motions for discretionary review by this court of the two Court of Appeals orders dismissing the PRPs. We granted discretionary review.

ISSUES

(1) Is it proper for this court to review these consolidated motions?

(2) If so, has Crabtree shown "good cause" for this court to grant his petition?

DISCUSSION

In the interest of judicial economy we will review these consolidated motions. Crabtree filed two PRPs. The first was time-barred because it was filed more than one year after his conviction became final, and the second did not show good cause why new issues were raised that had not been raised in the first PRP. His convictions are facially valid. Therefore, both petitions are barred by RCW 10.73.090 unless based solely on one or more of the grounds listed in RCW 10.73.100. Additionally, when the Court of Appeals "receives a personal restraint petition it may not consider under the terms of RCW 10.73.140, [the proper procedure] is either to dismiss it, or to transfer it to this Court if it determines RAP 16.4(d) might apply." In re Personal Restraint of Johnson, 131 Wash.2d 558, 566, 933 P.2d 1019 (1997). In this case, the Court of Appeals exercised the proper procedure in dismissing both petitions. We are faced with the issue of determining whether procedurally we may consider the PRPs under a RAP 16.4(d) "good cause" analysis after the petitions have been dismissed. This court may grant relief even if the Court of Appeals could not do so. See id.

In Johnson, the petitioner filed his first PRP protesting his offender score. Id. at 562, 933 P.2d 1019. The Court of Appeals denied the PRP based on State v. Chavez, 52 Wash.App. 796, 764 P.2d 659 (1988) (holding overlapping sentences not considered as one offense for purposes of calculating offender score). Chavez was subsequently overruled by In re Personal Restraint of Sietz, 124 Wash.2d 645, 648, 880 P.2d 34 (1994) (concluding for offenses committed before July 1, 1986, revoked probation or parole merges with another offense concurrently, establishing "`adult conviction served concurrently'" for purposes of former RCW 9.94A.360(6)(c) (1994) in calculating offender score). Johnson then filed his second PRP citing Sietz. This court held that RCW 10.73.140 did not bar this court's consideration of Johnson's PRP. In re Personal Restraint of Johnson, 131 Wash.2d at 566, 933 P.2d 1019. And the determination to be made was whether the petitioner had shown good cause under RAP 16.4(d) for reconsideration of the petition. Id.

Discretionary review of both PRPs in this case was sought and granted. RAP 16.14(c) states that "[i]f the petition is dismissed by the Chief Judge or decided by the Court of Appeals on the merits, the decision is subject to review by the Supreme Court only by a motion for discretionary review on the terms and in the manner provided in rule 13.5(a), (b), and (c)." In between the time the petitions were dismissed and the time review by this court was granted, the Aho case was decided. The Aho case is a subsequent change in the law that may qualify as "good cause" for granting the petition. petitions because they were time-barred due to the fact that none of the RCW 10.73.100 exceptions to the one-year limit on collateral attacks applied. However, if this court simply denies review, Crabtree may bring a successive petition arguing a subsequent change in the law. In the interest of judicial economy, we will determine whether there is good cause to grant Crabtree's petition.

Crabtree claims (1) a petitioner is unlawfully restrained when both state and federal constitutional due process rights are violated due to imposition of a sentence without statutory authority; (2) a PRP which raises obvious and inherently prejudicial constitutional errors is not time-barred; (3) a plea of guilty must be vacated when a defendant's due process rights were violated by charging, convicting, and sentencing the defendant under nonretroactive statutes that were not in effect during a portion of the charging period; (4) assistance of counsel was ineffective; and (5) newly discovered evidence in the form of recantation of a victim's testimony is grounds for relief by PRP and for withdrawal of guilty plea. Crabtree's claims should be denied because he pleaded guilty to the crimes occurring during the statutory time, and there is evidence that shows Crabtree committed the offenses during the statutory period. Moreover, counsel was effective in light of all the evidence before this court. And finally, the newly discovered evidence argument is without merit. This court may grant Crabtree's petition if "good cause" is shown. See In re Personal Restraint of Johnson, 131 Wash.2d 558, 933 P.2d 1019

. An intervening change in the law has been recognized as good cause for granting a successive PRP. Id. In this case, the Aho decision may be seen as an intervening change in the law constituting good cause to grant Crabtree's petition. Claims based on a significant, intervening, retroactive change in the law are exempt from the statute. RCW 10.73.100(6). Such changes also constitute "good cause" for either reviewing a previously rejected claim or failing to raise a claim in a prior petition. See In re Personal Restraint of Holmes, 121 Wash.2d 327, 331, 849 P.2d 1221 (1993). Thus, if Aho is seen as "new" law, Crabtree can challenge his convictions and sentence without regard to procedural bars.

The petitioner in Aho claimed that his convictions for child molestation violated "ex post facto prohibitions because the statute under which he was charged and under which the jury was instructed did not take effect until approximately a year and a half after the beginning of the charging period." State v. Aho, 137 Wash.2d 736, 739, 975 P.2d 512 (1999). This court concluded that the Aho case involved a due process question, not an ex post facto issue.⁵ In granting Aho's claim, this court reasoned that because the jury was not instructed to identify the time of specific occurrences constituting the offense, Aho may have been illegally convicted based upon acts occurring before the effective date of the child molestation statute. Id. at 743, 975 P.2d 512. A direct violation of the clear legislative mandate that the statute not be applied to acts committed before July 1988 occurred as a result of both the state and defense counsel permitting the matter to go forward despite the fact that the charging period, which was included in the jury instruction, included a substantial period of time before the effective date of the statute. Id. at 743, 975 P.2d 512. Aho was charged and convicted for an offense that may have occurred before the effective date of the statute. Id. at 744, 975 P.2d 512.

The Aho case differs from Crabtree's situation. Crabtree entered a guilty plea and in doing so admitted he committed the offenses between June 1, 1988 and August 31, 1988.⁶ Moreover, there is evidence outside the guilty...