In re Markel
| Decision Date | 05 May 2005 |
| Docket Number | No. 75459-4, No. 75537-0. |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Personal Restraint Petition of Eric MARKEL, Petitioner. In the Matter of the Personal Restraint Petition of Leadee Markel, Petitioner. |
Rodney Reinbold, Okanogan, for Petitioner.
Karl F. Sloan, Jennifer R. Richardson, Okanogan County Pros. Atty. Office, Okanogan, for Respondent.
Sheryl Gordon McCloud, James Elliot Lobsenz, Carney Badley Spellman, Rita Joan Griffith, Jeffrey L Fisher, Seattle, for Amicus Curiae Wash. Ass'n of Criminal Defense Lawyers.
Pamela Beth Loginsky, Wash. Assoc. of Pros. Atty., Olympia, for Amicus Curiae Wash. Ass'n of Pros. Attorneys.
¶ 1 Petitioners Eric and Leadee Markel (Markels) seek reversal of their convictions under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), resentencing under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), appointment of counsel at public expense. In March 1991, the Markels were each convicted by a jury on four counts of first degree rape of a child of their then five-year-old daughter, Ricki Markel. Ricki was ruled incompetent to testify at trial, and her account of the Markels' conduct was related to the jury under the child hearsay exception by multiple witnesses. The Markels were sentenced to the minimum term within the applicable sentencing range of 210-280 months on each count, to be served concurrently, and both are currently serving that sentence. Because Crawford does not apply retroactively to cases on collateral review, and because the Markels' sentencing does not raise a Blakely issue, their personal restraint petitions must be dismissed.
¶ 2 The Markels were charged either directly or as accomplices with first degree rape of a child in the following manner:
Excerpt of Record (ER) at 129-32, Third Am. Information; ER at 133-34, Additional Bill of Particulars.
¶ 3 In a pretrial hearing, Ricki was declared incompetent to testify at trial because of her age. The court went on to rule that the child hearsay exception was applicable as to testimony of five witnesses: (1) Leola Houtz, Ricki's grandmother, (2) Keith Houtz, Ricki's grandfather, (3) Arlen Johnson, the nurse practitioner who first examined Ricki, (4) Suzanne Craig, a Department of Social and Health Services social worker, and (5) Officer Joe Somday of the Omak Police Department, who recorded an interview with Ricki. Each of these witnesses related to the jury various statements made by Ricki concerning the sexual abuse allegations. In March 1991, the jury found both Leadee and Eric Markel guilty of counts I, II, IV, and V, based largely on the hearsay testimony, with some corroborating medical evidence. The Markels' four first degree rape of a child convictions resulted in an offender score of 9 with a seriousness level of 11. Consequently, the applicable sentencing range was 210-280 months, out of which the Markels each received 210 months.
¶ 4 After their trials, the Markels undertook a direct appeal to Division Three of the Court of Appeals, which affirmed the convictions. State v. E.D.M. and State v. L.M.M., noted at 70 Wash.App. 1064 (1993). This court entered an order denying the Markels' petition for review on February 2, 1994. 123 Wash.2d 1009, 869 P.2d 1084 (1994). In 1995, the Markels filed personal restraint petitions in Division Three of the Court of Appeals challenging the use of child hearsay under the then-applicable confrontation clause requirements articulated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Those petitions were dismissed by the Court of Appeals, and this court again denied review. Finally, the Markels filed petitions for writs of habeas corpus in United States District Court for the Eastern District of Washington, again challenging, inter alia, the admission of the child hearsay statements under Ohio v. Roberts. The Markels' habeas corpus petitions were dismissed by the district court, and the United States Court of Appeals for the Ninth Circuit affirmed on August 1, 2000. Markel v. Walter, noted at 232 F.3d 895, 2000 WL 1058946 (9th Cir.2000) (unpublished).
¶ 5 1. Does Crawford apply retroactively to cases on collateral review that have been deemed "final" for purposes of direct review? ¶ 6 2. Are Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely implicated where the trial court sentenced the Markels to the low end of the applicable range, but the jury verdict did not specify the exact dates of the conduct constituting the basis for each count?
¶ 7 3. Do Apprendi and Blakely apply retroactively to cases on collateral review that have been deemed "final" for purposes of direct review?
¶ 8 4. Are the Markels entitled to the appointment of counsel at public expense?
¶ 9 On collateral review, a petitioner raising a new issue must show that he or she was actually and substantially prejudiced by constitutional error, or that a nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Lord, 123 Wash.2d 296, 303, 868 P.2d 835 (1994). The bar on successive petitions under RCW 10.73.140 does not apply to the state Supreme Court. In re Pers. Restraint of Johnson, 131 Wash.2d 558, 566, 933 P.2d 1019 (1997). However, where the second petition is similar to the first, "good cause" must be shown. Id. at 564-66, 933 P.2d 1019.
¶ 10 Historically, we have attempted to maintain congruence in our retroactivity analysis with the standards articulated by the United States Supreme Court.1 See In re Pers. Restraint of Sauve, 103 Wash.2d 322, 328, 692 P.2d 818 (1985)
(); In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 324-26, 823 P.2d 492 (1992) (); In re Pers. Restraint of Benn, 134 Wash.2d 868, 940, 952 P.2d 116 (1998) (). Cf. State v. Hanson, 151 Wash.2d 783, 789, 91 P.3d 888 (2004) ().
¶ 11 The current incarnation of our retroactivity analysis was first summarized in St. Pierre as follows:
118 Wash.2d at 326,823 P.2d 492 (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). In this case, part one of the analysis is inapplicable because the Markels long ago exhausted direct review and their cases are now final. Part two, subsection (a), is also inapplicable because Crawford did not announce a new rule of substantive law but, rather, articulated a change in the procedures required under the Sixth Amendment's confrontation clause. Thus, the question presented is whether Crawford is a "new rule" of procedure "implicit in the concept of ordered liberty" under the so-called Teague analysis.
¶ 12 The United States Supreme Court has recently described the Teague analysis as "giv[ing] retroactive effect to only a small set of `"watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.'" Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060)). Further, "the rule must be one `without which the likelihood of an accurate conviction is seriously diminished.'" Id. (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). Finally, the Court has noted that "[t]his class of rules is extremely narrow, and `it is unlikely that any. . . "ha[s] yet to emerge."'"2 Id. (alteration in original) (quoting Tyler v. Cain, 533 U.S. 656, 667 n. 7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (quoting Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990))). It is with these principles in mind that we evaluate the possible retroactive application of Crawford.
¶ 13 Amicus curiae Washington Association of Criminal Defense Lawyers (WACDL) first raises the possibility that the ...
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