In re Domingo

• Decision Date: 15 September 2005
• Docket Number: No. 75920-1.,No. 75976-6.,No. 75951-1.,75920-1.,75951-1.,75976-6.
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Jerry P. DOMINGO, Petitioner. In the Matter of the Personal Restraint of Kiet Hoang Le, Petitioner. In the Matter of the Personal Restraint of Bob R. Kaseweter, Petitioner.

119 P.3d 816

155 Wn.2d 356

In the Matter of the Personal Restraint of Jerry P. DOMINGO, Petitioner In the Matter of the Personal Restraint of Kiet Hoang Le, Petitioner In the Matter of the Personal Restraint of Bob R. Kaseweter, Petitioner.

No. 75920-1.

No. 75951-1.

No. 75976-6.

Supreme Court of Washington, En Banc.

Argued March 10, 2005.

Decided September 15, 2005.

Suzanne Lee Elliott, Attorney at Law, Jacqueline Mc Murtrie, Suzanne Love, Taiyyeba Safri, Hilary House, UW Law School Clinical Law Program, Seattle, WA, for Jerry Domingo.

David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, for Kiet Hoang Le.

Jacqueline Mc Murtie, UW Law School Clinical Law Program, William H Gates Hall, Seattle, for Bob R. Kaseweter.

Thomas C. Duffy, Attorney at Law, Michael C. Kinnie, Attorney at Law, Philip A. Meyers, Attorney at Law, Robert W. Shannon, Attorney at Law, Vancouver, WA, for State of Washington.

J.M. JOHNSON, J.

¶ 1 We have previously held that our state's complicity statute, RCW 9A.08.020, requires that a defendant charged as an accomplice must have general knowledge of the charged crime in order to be convicted of that crime. See State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000); State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000). Petitioners Jerry Domingo, Kiet Le, and Bob Kaseweter each claim that they were convicted as an accomplice to various crimes in violation of that standard. Because they had exhausted their direct appeals, they filed personal restraint petitions.

¶ 2 The threshold question here is whether these petitions are timely. The Court of Appeals dismissed the petitions as time barred under RCW 10.73.090. Petitioners argue that their petitions are not subject to the one-year time bar of RCW 10.73.090 because their claims are based on a "significant change in the law," an exception to the one-year limitation under RCW 10.73.100(6). Specifically, petitioners claim that Roberts and Cronin significantly changed the law of complicity, or accomplice liability, as previously set forth in State v. Davis, 101 Wash.2d 654, 682 P.2d 883 (1984), and its progeny. We disagree with petitioners and affirm the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

A. The Convictions

1. Jerry Domingo

¶ 3 Early on the morning of May 31, 1994, Jerry Domingo led his gang in an armed robbery of a Vancouver convenience store. When the gang arrived at the store, Burton Morton was using a pay phone in front of the store and saw the perpetrators' faces as they had not yet donned their masks. During the course of the robbery, one of Domingo's associates shot Morton multiple times but failed to kill him. Other witnesses present who did not see the perpetrators' faces were assaulted but not shot.

¶ 4 A jury convicted Domingo of attempted murder in the first degree, robbery in the first degree, and assault in the first degree. Domingo appealed his convictions and the Court of Appeals affirmed in an unpublished opinion. The Court of Appeals issued its mandate on December 13, 1996.

2. Kiet Le

¶ 5 Early on the morning of October 5, 1995, Kiet Le and three associates broke into the home of Jing Xiu Zhu and Phuong Le.¹ The intruders found Jing and Phuong sleeping. They held the couple at gunpoint, restrained their hands and feet with duct tape, and threatened to kill the couple if they did not reveal the location of their valuables. The intruders took many items of property, then placed tape over the eyes and mouths of the victims and left. Shortly thereafter, Phuong freed herself and called the police. Le and his associates were arrested in a car later that day. Police found various items associated with the crimes in the car. They also found money and jewelry in Le's pockets.

¶ 6 A jury convicted Le of two counts of kidnapping in the first degree, two counts of robbery in the first degree, burglary in the first degree, possession of stolen property in the first degree, and possession of stolen property in the third degree. Le appealed his convictions and the Court of Appeals affirmed in an unpublished opinion. Le then petitioned this court for review. We earlier granted review on an issue unrelated to the instant action and remanded for resentencing. The superior court entered an amended judgment and sentence on October 29, 1998.

3. Bob Kaseweter

¶ 7 Early on the morning of April 23, 1992, Andrew Kington and his girl friend Roberta Ogle were awakened by a knock on the door of Kington's apartment and alerted that someone was pushing Ogle's car out of the apartment parking lot. Kington and Ogle walked out to the car which had been moved into the street. There they saw a man later identified as James Shirk. After reaching her car, Ogle also saw Donovan Shirk, James Shirk's brother, walking towards them from the other side of the street. Ogle had earlier worked with Donovan Shirk and Bob Kaseweter, her recently estranged ex-boyfriend. Ogle later testified that Kaseweter had taken her car keys after their breakup.

¶ 8 Donovan pulled out a gun and told Kington and Ogle to get in the car. Ogle got into the driver's seat and found the key in the ignition. After Kington got in, Ogle started the car and began to drive away. Donovan shot at the car several times, hitting Kington once in the hand. Soon thereafter, the police arrived and the Shirk brothers fled.

¶ 9 A jury convicted Donovan Shirk of two counts of first degree assault, two counts of first degree kidnapping, and taking a motor vehicle without permission. While awaiting sentencing, Donovan attempted to escape. After his arrest on the escape charge, he admitted for the first time that his brother and Kaseweter were involved in the incident of April 23. James Shirk subsequently made a plea deal with the prosecutor. In exchange for offering testimony against Kaseweter and pleading guilty to second degree kidnapping and second degree assault, James Shirk received a sentence of nine months in the county jail.²

¶ 10 A jury convicted Kaseweter of conspiracy to commit kidnapping in the first degree and as accomplice to two counts of kidnapping in the first degree, two counts of assault in the first degree, and taking a motor vehicle without the owner's permission. Kaseweter appealed his convictions and the Court of Appeals affirmed in an unpublished opinion. The Court of Appeals issued its mandate on May 22, 1996.

B. The Instant Actions

¶ 11 Petitioners filed their personal restraint petitions with Division Two of the Court of Appeals on March 7, 2003 (Le), October 17, 2003 (Domingo), and February 9, 2004 (Kaseweter) respectively. Each petitioner claims that one or more of his convictions is invalid under Roberts and Cronin, and that his petition is not subject to the one-year time bar of RCW 10.73.090 because it is based on a "significant change in the law" under RCW 10.73.100(6). Kaseweter also claims that he possesses "newly discovered evidence" that exonerates him and exempts his petition from RCW 10.73.090 under RCW 10.73.100(1).

¶ 12 On July 26, 2004, the chief judge issued an order dismissing Domingo's petition as untimely under RCW 10.73.090. Shortly thereafter, Division Two issued a published opinion dismissing Le's petition. In re Pers. Restraint of Le, 122 Wash.App. 816, 95 P.3d 1254 (2004). Citing our statements in Roberts and Cronin that we were adhering to long-established precedent, the Court of Appeals held that those decisions did not significantly change the law of complicity for the purposes of RCW 10.73.100(6) and, as a result, Le's petition was untimely under RCW 10.73.090. Le, 122 Wash.App. at 820, 95 P.3d 1254.³ Applying Le, the acting chief judge issued an order dismissing Kaseweter's petition two weeks later.

¶ 13 Petitioners all sought discretionary review in this court. We granted review and consolidated their petitions in an order dated December 1, 2004.

II. ANALYSIS

¶ 14 Generally, a defendant may not collaterally attack a judgment and sentence in a criminal case more than one year after his judgment and sentence becomes final. RCW 10.73.090(1). A personal restraint petition is a collateral attack on a judgment. RCW 10.73.090(2). A judgment and sentence becomes final on the day that it is filed with the clerk of the trial court, RCW 10.73.090(3)(a), or the day an appellate court issues its mandate disposing of a timely direct appeal from the conviction, RCW 10.73.090(3)(b).

¶ 15 Petitioners filed their PRPs outside the one-year limit provided in RCW 10.73.090(1). There are exceptions to the limit, however. RCW 10.73.100 provides in pertinent part:

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.

¶ 16 Thus, before we will address the merits of their claims, petitioners must first demonstrate that our decisions in Roberts and Cronin constitute a significant change in the law of accomplice liability. This they fail to accomplish.⁴

¶ 17 The legislature enacted our state's complicity statute, RCW 9A.08.020, in 1975. See LAWS OF 1975, 1st Ex.Sess., ch. 260, § 9A.08.020, as amended by LAWS OF 1975-76, 2d Ex.Sess., ch. 38, § 1. It provides in pertinent part:

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.

(2) A person is legally accountable for the conduct of another person when:

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