In re Crow

• Decision Date: 28 April 2015
• Docket Number: No. 42926–8–II.,42926–8–II.
• Citation: 187 Wash.App. 414,349 P.3d 902
• Parties: In the Matter of the Personal Restraint of Tommy Lee CROW, Jr., Petitioner.
• Court: Washington Court of Appeals

187 Wash.App. 414

349 P.3d 902

In the Matter of the Personal Restraint of Tommy Lee CROW, Jr., Petitioner.

No. 42926–8–II.

Court of Appeals of Washington, Division 2.

April 28, 2015.

Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Carol L. La Verne, James C. Powers, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

PART PUBLISHED OPINION

WORSWICK, P.J.

¶ 1 In this personal restraint petition (PRP), Tommy Crow petitions us to vacate his two second degree murder convictions and, alternatively, to modify his aggravated sentence. Crow raises numerous arguments, claiming: (1) sentencing errors, (2) prosecutorial misconduct, (3) ineffective assistance of counsel, and (4) erroneous jury instructions. In the published portion of this opinion, we hold that the evidence was insufficient to support the good Samaritan aggravator and that the trial court erred by explicitly considering good time credits when sentencing Crow. In the unpublished portion of this opinion, we reject the remainder of Crow's arguments. Accordingly, we grant Crow's petition in part by vacating his sentence on both counts and remanding for resentencing. We deny the remainder of Crow's petition.

FACTS

¶ 2 On March 28, 2008, at a homeless campsite in Olympia, Washington, Tommy Crow, Bryan Eke, and Christopher Durga, murdered David Miller and Norman Peterson. On March 18, Miller had reported to law enforcement that he witnessed Eke and Durga assault Scott Cover on March 7. On March 27, Durga learned law enforcement had information inculpating him in Cover's assault.

¶ 3 On March 28, the night of Miller's murder, Crow, Eke, and Durga went to Miller's campsite. Crow struck Miller in the face, and Durga put Miller in a choke hold until he was incapacitated. Durga then dragged Miller's body into the campsite fire and stood on his back.

¶ 4 When Peterson arrived at Miller's camp and saw Miller's body in the fire, Crow struck Peterson in the head with a tree branch and put him in a choke hold until he was incapacitated. Crow then threw Peterson's body into the campsite fire with Miller's. A medical examiner later determined that Miller and Peterson died by strangulation.

¶ 5 The State charged Crow with two counts of second degree murder, each with a separate sentencing aggravator:

a good Samaritan sentencing aggravator¹ for murdering Miller in retaliation for reporting Cover's assault to law enforcement, and a deliberate cruelty sentencing aggravator² for Peterson's murder. Each murder count included the alternative means of intentional murder and felony murder (with second degree assault as the predicate felony). The State charged Crow as both an accomplice and principal. The State also charged Crow with second degree arson.

¶ 6 A jury found Crow guilty as charged. On the special verdict forms, the jury answered “yes” to both sentencing aggravators.

¶ 7 At sentencing, the State recommended an exceptional sentence of 300 months imprisonment for each second degree murder charge, to be served consecutively, for a combined total of 600 months imprisonment. The trial court asked the State, “[W]hat credit for good time in the future will [Crow] be eligible to receive that would subtract from the sentence that you've recommended here?” Verbatim Report of Proceedings (VRP) (Sentencing) at 1451. The State responded, “On [the two murder charges] [Crow] would receive a maximum of ten percent only for good time.” VRP (Sentencing) at 1451.

¶ 8 Crow's counsel made no sentencing argument on Crow's behalf, instead stating, “Your honor, I don't really have much to say. I think we lost any chance of influencing this court's decision with respect to sentencing when this case went to trial.” VRP (Sentencing) at 1476. Trial counsel stated a total of three times that he had lost any chance of influencing the trial court's sentencing decision after the case went to trial.

¶ 9 For Miller's murder, the trial court imposed a 360–month exceptional sentence based on the good Samaritan aggravating factor. For Peterson's murder, the trial court imposed a 300–month exceptional sentence, based on the deliberate cruelty aggravating factor. Because these were serious violent offenses, the trial court ordered these two sentences to be served consecutively,³ resulting in a total sentence of 660 months imprisonment.⁴

¶ 10 Regarding Crow's sentence, the trial court said:

I've gone above the amount requested by the prosecutor or suggested by the prosecutor as appropriate in this case, and I've differentiated between the amount of time imposed for [the two murder counts].

....

The reason that I've differentiated between the two sentences is ... [Millers' act of reporting the assault to law enforcement] was an act of extraordinary bravery, in my estimation, and the exceptional sentence that I've imposed here reflects that determination.

VRP (Sentencing) at 1482–84. The trial court also reiterated that it considered good time credits in determining Crow's sentence:

With the imposition of this sentence, Mr. Crow, you will serve, even with a good time credit, a full 50 years of incarceration.

VRP (Sentencing) at 1483.

¶ 11 In its written order, the trial court ruled:

The [two aggravating factors] listed in the preceding paragraph, taken together or considered individually, constitute sufficient cause to impose the total of 660 months for the exceptional consecutive sentences for [Crow's two murder convictions]. This court would impose the same total exceptional penalty for those consecutive sentences if only one of the grounds listed in the preceding paragraph is valid.

Clerk's Papers (CP) at 100.

¶ 12 We affirmed Crow's convictions on direct appeal in an unpublished opinion. On direct appeal, appellate counsel did not challenge the consideration of good time credits, the good Samaritan aggravator, or any sentencing issue. Crow then filed this PRP.

ANALYSIS

¶ 13 A PRP is not a substitute for a direct appeal. In re Pers. Restraint of Hagler, 97 Wash.2d 818, 824, 650 P.2d 1103 (1982). We are reluctant to overturn a settled judicial decision where the petitioner has already had an opportunity for appeal. In re Pers. Restraint of Cross, 180 Wash.2d 664, 676, 327 P.3d 660 (2014). Accordingly, there are limits on the use of a PRP to collaterally attack a criminal offender's restraint. Hagler, 97 Wash.2d at 824, 650 P.2d 1103.

¶ 14 A personal restraint petition must state with particularity the factual allegations which, if proven, would entitle the petitioner to relief. In re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086 (1992). Further, the factual allegations must have evidentiary support. 118 Wash.2d at 886, 828 P.2d 1086. If the record does not support the factual allegations, then the petitioner must show through affidavits or other forms of corroboration that competent and admissible evidence will establish the factual allegations. 118 Wash.2d at 886, 828 P.2d 1086.

¶ 15 Once the petitioner states in his petition the facts underlying the claim of unlawful restraint and the evidence supporting these allegations, we then examine the State's response. 118 Wash.2d at 886, 828 P.2d 1086. “The State's response must answer the allegations of the petition and identify all material disputed questions of fact.” 118 Wash.2d at 886, 828 P.2d 1086. If answering the petitioner's allegation requires reference to another proceeding's record, the State must include a copy of that record's relevant parts. RAP 1.2(b) ; 16.9(a) ; see In re Pers. Restraint of Reise, 146 Wash.App. 772, 780, 192 P.3d 949 (2008).

¶ 16 To be entitled to collateral relief through a PRP the petitioner must prove error “by a preponderance of the evidence.” In re Pers. Restraint of Monschke, 160 Wash.App. 479, 490, 251 P.3d 884 (2010). If the petitioner is able to show error, he is also required to prove prejudice, the degree of which depends on the type of error shown. To be entitled to relief for a constitutional error, the petitioner must also prove by a preponderance of the evidence that the error caused actual and substantial prejudice. Cross, 180 Wash.2d at 676, 327 P.3d 660. Actual and substantial prejudice, which “must be determined in light of the totality of circumstances,” exists if the error “so infected petitioner's entire trial that the resulting conviction violates due process.” In re Pers. Restraint of Music, 104 Wash.2d 189, 191, 704 P.2d 144 (1985). To be entitled to relief for a nonconstitutional error, the petitioner must prove by a preponderance of the evidence that the error caused a fundamental defect resulting in a complete miscarriage of justice. Cross, 180 Wash.2d at 676, 327 P.3d 660 ; Monschke, 160 Wash.App. at 490–91, 251 P.3d 884.

I. Insufficient Evidence Supports Miller's Good Samaritan Status

¶ 17 Crow first argues that the evidence is insufficient to support the good Samaritan aggravator on Miller's murder. Crow argues Miller's act of reporting the assault of Cover to law enforcement a week after the assault occurred, and two weeks before Miller was murdered, did not make Miller a “good Samaritan” because Miller was not harmed while providing immediate aid to someone in peril. Supp. Br. of Pet'r at 9. The State argues that even if we determine the evidence was insufficient, Crow failed to show actual and substantial prejudice because the trial court explicitly stated the total sentence for both murders would be the same with only one of the two sentencing aggravators. We agree with Crow.

¶ 18 A defendant's assertion of insufficient evidence asserts a constitutional error. State v. Arquette, 178 Wash.App. 273, 281, 314 P.3d 426 (2013). Thus, Crow must demonstrate actual and substantial prejudice to prevail. Cross, 180 Wash.2d at 676, 327 P.3d 660.

¶ 19 Substantial evidence must support a sentencing aggravator that allows the trial court to impose an exceptional sentence. See State v. Gordon, 172 Wash.2d 671, 680–81, 260 P.3d 884 (2011) ; In re Pers. Restraint of Howerton, 109...