In re Fernandez

• Decision Date: 08 February 2022
• Docket Number: 55390-2-II
• Citation: 503 P.3d 577
• Parties: In the MATTER OF the Personal Restraint of: Angel Anthony FERNANDEZ, Petitioner.
• Court: Washington Court of Appeals

503 P.3d 577

In the MATTER OF the Personal Restraint of: Angel Anthony FERNANDEZ, Petitioner.

No. 55390-2-II

Court of Appeals of Washington, Division 2.

Filed February 8, 2022

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw. Morrison St. Ste. 1025 Portland, OR, 97205-3813, for Petitioner.

David Phelan, Cowlitz County Prosecutor's Office, Cowlitz County Prosecuting Attorney - Appellate Division, 312 Sw. 1st Ave. Rm. 105 Kelso, WA, 98626-1799, for Respondent.

PUBLISHED OPINION

Price, J. ¶1 Angel Anthony Fernandez brings this untimely personal restraint petition. He argues that the one-year time bar is inapplicable because State v. Allen¹ was a significant change in the law material to his conviction that should be applied retroactively and that he is entitled to relief. We determine that Allen is not material to Fernandez's conviction and dismiss his petition as time-barred.

FACTS

¶2 Fernandez was charged with first degree premeditated murder with aggravating factors. The trial court instructed the jury regarding the crime of first degree premeditated murder, listing each element in the "to convict" instruction. Respondent's Br. App. B. The trial court gave the jury a separate instruction on the aggravating factor of first degree kidnapping for the jury to consider only if it found Fernandez guilty of first degree premeditated murder.

¶3 The jury found Fernandez guilty of first degree premeditated murder and also found the aggravating factor of first degree kidnapping. Fernandez was sentenced to life without parole. State v. Osalde , noted at 116 Wash. App. 1039, 2003 WL 1875588 (attached as Appendix A to Respondent's Brief in this case). Fernandez appealed his conviction. Id. We affirmed Fernandez's judgment and sentence, and a mandate was issued on October 8, 2003. Id.

¶4 Fernandez filed this personal restraint petition on August 21, 2020.

ANALYSIS

I. LEGAL PRINCIPLES

¶5 Generally, petitioners only have one year from the date their judgment becomes final to bring a personal restraint petition. RCW 10.73.090. Petitions filed after one year are time-barred unless an exception applies. RCW 10.73.100.

¶6 One such exception to the time bar occurs when a petitioner can identify (1) a significant change in the law, (2) that is material to their conviction or sentence, and (3) that applies retroactively. RCW 10.73.100(6) ; State v. Miller , 185 Wash.2d 111, 114, 371 P.3d 528 (2016).

¶7 Whether a change is material to a petitioner's conviction is a fact-specific inquiry that requires analysis on a case-by-case basis. In re Pers. Restraint of Zamora , 14 Wash. App. 2d 858, 863, 474 P.3d 1072 (2020).

II. APPLICATION

¶8 The mandate in Fernandez's direct appeal was issued more than 18 years ago, but he argues that we should accept his personal restraint petition because our Supreme Court's decision in Allen was a significant change in the law that was material to his conviction and should be applied retroactively. We disagree.

¶9 In Allen , the defendant was found guilty of premeditated first degree murder but acquitted by the jury of aggravating factors. 192 Wash.2d at 531, 431 P.3d 117. His conviction was subsequently overturned, but on remand, the State attempted to recharge him not only with the murder charge but also with the same aggravating factors of which he had been previously acquitted. Id. On appeal, our Supreme Court determined it was error to recharge him with the aggravating factors. Id. at 543-44, 431 P.3d 117. The aggravating factors, according to the court, were elements of a crime for double jeopardy purposes. Id. at 544, 431 P.3d 117. ¶10 Fernandez couples this holding from Allen with State v. Smith² to argue that his "to convict" instruction was defective. In Smith , the court determined that "a ‘to convict’ instruction must contain all the elements of the crime because it serves as a ‘yardstick’ by which the jury measures the evidence to determine guilt or innocence." 131 Wash.2d 258, 263, 930 P.2d 917. "[A]n instruction purporting to list all of the elements of a crime must in fact do so." Id. The court in Smith further held that "to convict" instructions are constitutionally defective where they purport to be complete statements of the law yet leave out elements of a crime, reasoning that "[i]t cannot be said that a defendant has had a fair trial if the jury must guess at the meaning of an essential element of a crime or if the jury might assume that an essential element need not be proved." Id.

¶11 Relying on both Allen and Smith , Fernandez argues that since aggravators are "essential elements" of the crime with which he was charged, his "to convict" jury instruction was required to contain those elements. Because his jury instructions utilized a special verdict form and a separate "to convict" instruction for his aggravators, Fernandez argues his instructions violated Allen and his conviction should be reversed. We disagree.

¶12 Adopting Fernandez's view of Allen would directly conflict with precedent from our Supreme Court. A bifurcated procedure of using special verdict forms (and associated "to convict" instructions) for aggravators has long been approved by our Supreme Court. State v. Mills 154 Wash.2d 1, 10, 109 P.3d 415 (2005). In Mills , the court stated:

We hold that where the legislature has established a statutory framework which defines a base crime which is elevated to a greater crime if a certain fact is present, a trial court may, consistent with the guarantees of due process and trial by jury, bifurcate the elevating fact into a special verdict form. So long as the jury is instructed it must unanimously agree beyond a reasonable doubt before it may affirmatively answer the special verdict, the constitution is not offended.

Id. Mills approves the bifurcation of the verdict forms into one for the "base crime" and one for the "greater crime" and has coexisted for many years with Smith ’s requirement that all elements of the crime be contained in the "to convict" instruction. Smith , then, does not stand for the proposition that all elements of the greatest possible crime charged must be included in the same instruction. Rather, reading Mills and Smith together, the more limited principle emerges that so long as the "to convict" instructions do not omit elements of the crimes they purport to address, bifurcated instructions are permissible.

¶13 Against this backdrop, Fernandez points to no authority to support his contention that Allen ’s holding, with its discussion of double jeopardy, is intended to overrule Mills . Nothing in Allen indicates that it disturbs bifurcating jury instructions for aggravators, and we decline to determine that the court's action overruled Mills sub silentio.³ In fact, even the underlying trial at issue in Allen utilized special jury verdicts for the aggravating factors, yet the decision makes no mention, much less criticism, of that procedure.

¶14 Ultimately, Fernandez's position fails because he conflates the concepts of elements of the crime from two different contexts. Allen ’s discussion of aggravator elements was limited to the question of double jeopardy.⁴ Smith, on the other hand,...