In re Jackson

• Decision Date: 23 August 2012
• Docket Number: 83923–9.,Nos. 82363–4,s. 82363–4
• Citation: 283 P.3d 1089,175 Wash.2d 155
• Parties: In the Matter of the Personal Restraint Petition of Ronnie JACKSON, Jr., Petitioner. In the Matter of the Personal Restraint Petition of Salvador Rivera, Petitioner.
• Court: Washington Supreme Court

175 Wash.2d 155

283 P.3d 1089

In the Matter of the Personal Restraint Petition of Ronnie JACKSON, Jr., Petitioner.

In the Matter of the Personal Restraint Petition of Salvador Rivera, Petitioner.

Nos. 82363–4, 83923–9.

Supreme Court of Washington,

En Banc.

Argued Jan. 24, 2012.

Decided Aug. 23, 2012.

Jeffrey Erwin Ellis, Portland, Oregon Capital Resource Center, Portland, OR, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioners.

Hilary A. Thomas, Whatcom County Prosecutor's Office, Bellingham, WA, Kathleen Proctor, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

GONZÁLEZ, J.

[175 Wash.2d 157]¶ 1 Petitioners Ronnie Jackson Jr. and Salvador Rivera filed personal restraint petitions to challenge the firearm enhancements they received as part of their sentences, which became final in 2002. In response, we must decide if the rules we announced in State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005)( Recuenco I) and State v. Recuenco, 163 Wash.2d 428, 180 P.3d 1276 (2008)( Recuenco III) apply retroactively. The rules in question are (1) that a firearm enhancement cannot be based on a jury's general “deadly weapon” finding, see Recuenco I, 154 Wash.2d at 162, 110 P.3d 188;Recuenco III, 163 Wash.2d at 440, 180 P.3d 1276, and (2) that an information must particularly identify any firearm enhancements sought by the State in order to authorize such enhancements at sentencing, see Recuenco III, 163 Wash.2d at 434–36, 180 P.3d 1276. In other words, we must decide if it is too late to challenge enhancements imposed before the Recuenco I and Recuenco III decisions. We find that Recuenco I and Recuenco III are not retroactive as to either issue and hold that Rivera and Jackson are not entitled to any relief on collateral review.

I. PROCEDURAL HISTORY

¶ 2 Rivera and Jackson present similar circumstances. Rivera was convicted of murder in the first degree for shooting a man to death. Jackson was convicted of multiple crimes, including attempted murder and assault for repeatedly shooting at certain victims.

¶ 3 In both cases, the State charged that the crimes were committed with a firearm, and indicated the State's intent to seek an enhancement. In Rivera's case, the information, which was filed on March 31, 1998, alleged that Rivera “was armed with a deadly weapon” and then specified that the weapon was “a handgun, for purposes of the deadly weapon enhancement of RCW 9.94A.125 and 9.94A.310(3)(a).” Rivera Br., App. at 2. At the time, RCW 9.94A.310(3)(a) dealt entirely with firearm enhancements. SeeLaws ofF 1997, ch. 365, § 3. In Jackson's case, the information, which was filed on June 30, 1997, consistently alleged that Jackson was “armed with a deadly weapon” and specified that the weapon was “a handgun ... invoking the provisions of RCW 9.94A.310 and adding additional time to the presumptive sentence as provided in RCW 9.94A.370.” Jackson PRP, App. B at 2, 3, 4, 5. At the time, RCW 9.94A.370 referenced “additional time for deadly weapon findings” to be imposed by trial courts at sentencing. Laws of 1996, ch. 248, § 1(1); cf. In re Pers. Restraint of Cruze, 169 Wash.2d 422, 429–30, 237 P.3d 274 (2010) (noting that “deadly weapon” enhancement denotes a broader category of both firearm and non-firearm enhancements).

¶ 4 Rivera and Jackson were convicted, and in each case, the jury found by special verdict that the defendant had been armed with a “deadly weapon.” See Rivera Br., App. at 3; Jackson PRP, App. C. As a result, in each case, the trial court imposed a sentence that included a deadly weapon enhancement of 60 months—an amount applicable only to a firearm enhancement. Rivera Br., App. at 5–11 (noting “special verdict/finding for use of deadly weapon,” citing RCW 9.94A.310(3)(a) on firearm enhancements, and imposing enhancement of 60 months “for deadly weapon”); Jackson PRP, App. D (noting “special verdict/finding for use of a firearm” and imposing resulting enhancement of 60 months).¹

¶ 5 Both convictions became final as of 2002. On June 5, 2008, Rivera filed a motion to vacate his firearm sentence enhancement. That motion was transferred to the Court of Appeals for consideration as a personal restraint petition, and the Court of Appeals denied the petition. In re Pers. Restraint of Rivera, 152 Wash.App. 794, 218 P.3d 638 (2009). We granted discretionary review. On November 3, 2008, Jackson filed a personal restraint petition directly with this Court. The two cases were consolidated on November 3, 2011. We have jurisdiction under Const. art. IV, § 4 and RAP 13.3, 16.3(c).

II. ANALYSIS

¶ 6 Rivera and Jackson rely on rules that were announced after their convictions became final. Because these new rules are not retroactive, the sentences of Rivera and Jackson, which were legal at the time, remain legally authorized and facially valid. Their petitions for review are thus rendered time-barred.

A. Legal Background

¶ 7 The law governing sentence enhancements has developed substantially since 2002, when the convictions of Rivera and Jackson became final. In 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), holding that “[w]hen a judge inflicts punishment that the jury's verdict alone does not allow[,] ... the judge exceeds his proper authority.” 542 U.S. at 304, 124 S.Ct. 2531 (citation omitted). In other words, Blakely held that all factual findings necessary to the imposition of a sentence enhancement (other than the fact of a prior conviction) must be submitted to the jury and proved beyond a reasonable doubt. Id. at 301–05, 124 S.Ct. 2531. Prior to Blakely, Washington courts allowed sentence enhancements to be based on factual findings by the trial court, as opposed to the jury, and without the need for proof beyond a reasonable doubt. See, e.g., State v. Gore, 143 Wash.2d 288, 315, 21 P.3d 262 (2001) (“We hold that the factual basis for an exceptional sentence upward need not be charged, submittedto the jury, and proved beyond a reasonable doubt.”); State v. Blakely, 111 Wash.App. 851, 870–71, 47 P.3d 149 (2002) (citing Gore ),rev'd,542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (same).

¶ 8 In 2005, in light of Blakely, we clarified that even when the jury “return[s] a special verdict that [the defendant was] armed with a deadly weapon,” without “an explicit firearm finding by the jury, the court's imposition of a firearm sentence enhancement violate[s][the] jury trial right as defined by ... Blakely.” Recuenco I, 154 Wash.2d at 160, 162, 110 P.3d 188 (emphasis added), rev'd on other grounds,548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006)( Recuenco II). The United States Supreme Court, on review, then held that this type of violation of “the jury trial right” is subject to harmless error analysis under federal law. See Recuenco II, 548 U.S. at 218–22, 126 S.Ct. 2546.

¶ 9 In 2008, on remand, we clarified that the error in Recuenco occurred when the trial court imposed a firearm enhancement that simply was not legally authorized by the otherwise appropriate charges and jury findings, and we held that this sort of structural error is not subject to the harmless error doctrine. See Recuenco III, 163 Wash.2d at 436, 441, 180 P.3d 1276;cf. Recuenco II, 548 U.S. at 220 n. 3, 126 S.Ct. 2546 (“Because the Supreme Court of Washington [in Recuenco I] treated the error as one of [judicial fact finding], we treat it similarly.”). The Recuenco III decision was based on both state and federal constitutional provisions. See Recuenco III, 163 Wash.2d at 436 & n. 7, 440, 180 P.3d 1276. Although the jury in Recuenco had “returned a special verdict finding that Recuenco was armed with a deadly weapon,” id. at 432, 180 P.3d 1276, we held that “[w]ithout a jury determination that he was armed with a ‘firearm,’ the trial court lacked authority” to impose a firearm enhancement, id. at 440, 180 P.3d 1276. Further, we noted that the “information did not contain an allegation that a firearm enhancement applied,” id. at 432, 180 P.3d 1276, and we held that because the “prosecutor chose to charge the lesser enhancement of ‘deadly weapon,’ ” an error occurred when the defendant “was sentenced for an enhancement that was not charged,” id. at 435, 436, 180 P.3d 1276;see also id. at 434, 180 P.3d 1276 (noting that the State must “ allege in the information the crime which it seeks to establish ... includ[ing] sentencing enhancements” (footnote omitted)).

B. Retroactivity

¶ 10 The new rules announced in Blakely,Recuenco I, and Recuenco III are not retroactive. In 2005, we held that Blakely does not apply “retroactively on collateral review to convictions that were final when Blakely was announced.” State v. Evans, 154 Wash.2d 438, 442, 114 P.3d 627 (2005). We acknowledged that Blakely announced a “new rule” because the result in that case was not dictated by prior precedent, but we held that Blakely did not satisfy the additional requirement for retroactivity on collateral review. Id. at 444–48, 114 P.3d 627;see alsoRAP 16.4(c)(4). Namely, we found that the new procedural rule announced in Blakely neither “ ‘places certain kinds of primary, private individual conduct beyond the power of the state to proscribe,’ ” nor “ ‘requires the observance of procedures implicit in the concept of ordered liberty,’ ” and thus, is not a rule to be applied retroactively. Id. at 444, 114 P.3d 627 (quoting In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 326, 823 P.2d 492 (1992)); see also id. at 447–48, 114 P.3d 627. Accordingly, the rule announced in Blakely does not apply to convictions that were final prior to that decision.

¶ 11 The same is true of the rules that were announced in Recuenco I and Recuenco III: they do not apply retroactively. Our opinions in Recuenco I and Recuenco III announced new rules. The rule in Recuenco I—that imposition of a firearm enhancement as a result of a jury's deadly weapon finding is...