In re Eastmond

• Decision Date: 02 February 2012
• Docket Number: No. 81939–4.,81939–4.
• Citation: 173 Wash.2d 632,272 P.3d 188
• Parties: In the Matter of the Personal Restraint Petition of James EASTMOND, Petitioner.
• Court: Washington Supreme Court

173 Wash.2d 632

272 P.3d 188

In the Matter of the Personal Restraint Petition of James EASTMOND, Petitioner.

No. 81939–4.

Supreme Court of Washington, En Banc.

Argued Oct. 11, 2011.Decided Feb. 2, 2012.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Petitioner.

Thomas Marshal Curtis, Seth Aaron Fine, Attorney at Law, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.

OWENS, J.

[173 Wash.2d 634] ¶ 1 James Eastmond was convicted of first degree robbery and first degree burglary. At sentencing, the trial court imposed a firearm sentence enhancement for each count based on the jury's determination that Eastmond was armed with a deadly weapon. While Eastmond's case remained on direct appeal, we decided State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005) ( Recuenco I), rev'd on other grounds, Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ( Recuenco II), in which we recognized that such sentences violated the Sixth Amendment to the United States Constitution. Id. at 162–63, 110 P.3d 188. By personal restraint petition, Eastmond now challenges the imposition of the firearm sentence enhancements. The central question presented in this case is whether, in these circumstances, prejudice should be conclusively presumed on collateral review, as we recently held that it is on direct review, see State v. Williams–Walker, 167 Wash.2d 889, 901, 225 P.3d 913 (2010), or whether Eastmond must demonstrate actual prejudice. We hold that the rule announced in Williams–Walker is a new rule that does not apply retroactively. Accordingly, Eastmond must demonstrate actual prejudice. Because he has not done so, we dismiss his petition.

FACTS

¶ 2 In 2000, the State filed an amended information charging Eastmond with first degree robbery and first degree burglary. With respect to each count, the State alleged in the amended information “that at the time of the commission of the crime, the defendant or an accomplice was armed with a firearm, as provided and defined in RCW 9.94A.310, RCW 9.41.010, and RCW 9.94A.125.” Pers. Restraint Pet. & Apps., App. 1. In addition to the general verdict forms, the court submitted special verdict forms for each count, asking whether Eastmond was “armed with a deadly weapon at the time of the commission of the crime.” Id. at App. 4. The jury found Eastmond guilty of both counts and answered “Yes” on both special verdict forms. Id.

[173 Wash.2d 635] ¶ 3 Eastmond was ultimately sentenced to 36 months of imprisonment for the robbery conviction and 21 months for the burglary conviction, to run concurrently. The court also imposed two firearm sentence enhancements of 60 months each, to run consecutively, yielding a total maximum term of confinement of 156 months. The Court of Appeals affirmed Eastmond's sentence. State v. Eastmond, noted at 125 Wash.App. 1028, 2005 WL 221889, at *3. Eastmond petitioned this court for review. While his petition was pending, we decided Recuenco I, and Eastmond, in May 2005, was given permission to file a supplemental brief addressing the effect of Recuenco I on his case. We denied Eastmond's petition for review on October 2, 2007, State v. Eastmond, 161 Wash.2d 1015, 171 P.3d 1056 (2007), and the Court of Appeals issued its mandate on November 16, 2007.

ISSUE

¶ 4 Is Eastmond entitled to relief from his firearm sentence enhancement on collateral review?

ANALYSIS

A. Deadly Weapon Sentence Enhancements and the Sixth Amendment

¶ 5 Before addressing the unique facts presented by Eastmond's petition, it is first useful to address the context in which this case arises. In Washington there are two types of deadly weapon sentence enhancements: firearm sentence enhancements and deadly-weapon-other-than-a-firearm sentence enhancements.¹ RCW 9.94A.533(3), (4); see also In re Pers. Restraint of Cruze, 169 Wash.2d 422, 430, 237 P.3d 274 (2010). Prior to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Washington courts held that it was not error for the jury to determine only that the defendant was armed with a deadly weapon and, at sentencing, for the trial court to determine which of the two deadly weapon sentence enhancements applied. See, e.g., State v. Rai, 97 Wash.App. 307, 310–12, 983 P.2d 712 (1999); State v. Meggyesy, 90 Wash.App. 693, 707–09, 958 P.2d 319 (1998); cf. State v. Thorne, 129 Wash.2d 736, 782, 921 P.2d 514 (1996) (stating that “[t]here is no constitutional requirement that a deadly weapon finding be made by the jury; if it is a sentencing factor, the sentencing court may make that finding”). Blakely put an end to this practice. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely clarified that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S.Ct. 2531.

¶ 6 In Recuenco I, we recognized that “[w]ithout an explicit firearm finding by the jury, the court's imposition of a firearm sentence enhancement” violates a criminal defendant's Sixth Amendment jury trial right, as announced in Apprendi and Blakely. 154 Wash.2d at 162, 110 P.3d 188. We further held that Blakely “violations can never be deemed harmless.” Id. at 164, 110 P.3d 188. The United States Supreme Court granted certiorari and reversed our judgment, holding that “[f]ailure to submit a sentencing factor to the jury ... is not structural error” and, therefore, is subject to harmless error analysis. Recuenco II, 548 U.S. at 222, 126 S.Ct. 2546.

[173 Wash.2d 637] ¶ 7 On remand following Recuenco II, we addressed whether imposition of a firearm enhancement following only a deadly weapon finding was subject to harmless error analysis under state law. State v. Recuenco, 163 Wash.2d 428, 431, 180 P.3d 1276 (2008) ( Recuenco III). We acknowledged that the error addressed in Recuenco I “was an error of judicial fact finding.” Id. at 441, 180 P.3d 1276. However, we reframed the error in Recuenco III as one of judicial usurpation of the State's authority to select the appropriate charges and failure to give the defendant notice of the enhancement imposed. Id. at 433–34, 441–42, 180 P.3d 1276. The State had not provided notice to Recuenco that it intended to seek the greater firearm sentence enhancement, indicating that only the lesser deadly-weapon-other-than-a-firearm sentence enhancement was sought. Id. at 436–37, 180 P.3d 1276. The jury returned a corresponding verdict.² Id. at 436, 180 P.3d 1276. The sentence enhancement sought by the State and found by the jury was simply the deadly-weapon-other-than-a-firearm enhancement. In light of this, “[t]he trial court simply exceeded its authority in imposing a sentence not authorized by the charges.” Id. at 442, 180 P.3d 1276. By a vote of five-to-four, we held that this error could never be harmless. Id. In doing so, we distinguished Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), relied on by the Supreme Court in Recuenco II, 548 U.S. at 218–22, 126 S.Ct. 2546, on the basis that “[i]n Neder, the defendant received notice because he was properly charged.” Recuenco III, 163 Wash.2d at 441, 180 P.3d 1276.

¶ 8 We recently built on Recuenco III in Williams–Walker. Williams–Walker involved three consolidated cases. In two of the consolidated cases, use of a firearm was an element of the underlying conviction and, by virtue of a guilty verdict, had been found by the jury beyond a reasonable doubt. Williams–Walker, 167 Wash.2d at 894, 225 P.3d 913. In the third case, the State included the firearm sentence enhancement in the charging document. Id. at 893, 225 P.3d 913. In all three consolidated cases, however, the jury was only asked whether the defendant was armed with an unspecified “deadly weapon.” Id. at 893–94, 225 P.3d 913. Acknowledging that this “present[ed] a different and much closer question,” we held that a firearm sentence enhancement is only permissible where the jury makes the firearm finding by special verdict. Id. at 898, 225 P.3d 913. We also held that imposition of the firearm sentence enhancement can never be harmless error, even where use of a firearm is alleged in the charging document or necessarily found as part of the underlying conviction. Id. at 898–902, 225 P.3d 913. Though the holding in Williams–Walker involved several rules, in this opinion we use the term “ Williams–Walker rule” to refer to the holding that an imposed sentence enhancement included in the charging document but not found by the jury can never be harmless error.

B. Is Eastmond Entitled to Relief on Collateral Review?

¶ 9 Eastmond's case is before this court on collateral review by means of a personal restraint petition. “We have limited the availability of collateral relief because it undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders.” In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 329, 823 P.2d 492 (1992). One limitation on the availability of collateral relief is the limited applicability of new rules of criminal procedure. A personal restraint petitioner is only entitled to the benefit of a new rule for the conduct of criminal prosecutions if (1) the rule was announced before the petitioner's direct appeal became final or (2) the rule is announced after the petitioner's conviction became final and “(a) ... places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (b) ... requires the observance of procedures implicit in the concept of ordered liberty.” Id...