In re Percer

• Decision Date: 21 August 2003
• Docket Number: No. 72676-1.,72676-1.
• Citation: 150 Wash.2d 41,75 P.3d 488
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint of Stephen J. PERCER, Petitioner.

75 P.3d 488

150 Wash.2d 41

In the Matter of the Personal Restraint of Stephen J. PERCER, Petitioner.

No. 72676-1.

Supreme Court of Washington, En Banc.

Argued February 11, 2003.

Decided August 21, 2003.

Margaret Anne Penny Sowards, Kittitas Co Prosecutor's Office, for Petitioner/Appellant.

David Bruce Koch, James Robert Dixon, Seattle, for Appellee/Respondent.

FAIRHURST, J.

In 1996, Stephen Percer was convicted of multiple felonies, including vehicular homicide and second degree felony murder stemming from one death. The Court of Appeals affirmed his convictions on direct appeal. In 2001, Percer filed a personal restraint petition (hereafter PRP), claiming, as he had in his direct appeal, that conviction for both crimes violated double jeopardy. The Court of Appeals ruled that the convictions violated double jeopardy and vacated the conviction for second degree felony murder. We find that the Court of Appeals could consider the PRP; however, we do not find a double jeopardy violation. We reverse the Court of Appeals.

FACTS

On November 14, 1995, at approximately 1:15 p.m., Stephen Percer and Chamaya Leavens stole a Dodge Caravan from the University District in Seattle and headed for Spokane. Percer used a screwdriver to "punch out" the ignition to get the van started. In order to give the appearance that the van was not stolen, Percer reinserted the ignition and placed a set of keys in it.

While traveling east on Interstate 90, the van was observed traveling in and out of traffic at speeds up to 90 miles per hour. In Kittitas County, approximately 80 miles from where he stole the van, Percer struck the left rear of a vehicle driven by Darrel Mervos. The collision caused Mervos's vehicle to become airborne and strike several trees alongside the road. Mervos was killed as a result of the collision. After the accident, several passing motorists stopped to assist at the scene. The stolen van driven by Percer and Leavens was on its side so they attempted to flee the scene in another vehicle. They ultimately succeeded in stealing a Ford Bronco belonging to a coworker of Mervos who had stopped to render assistance.

In a single charging document, the State charged Percer with multiple felonies, including second degree felony murder, vehicular homicide, taking a motor vehicle without the owner's permission, theft in the first degree, and hit-and-run injury accident. On February 13, 1996, as part of a plea agreement, Percer waived his right to a jury trial, pleaded guilty to all but the second degree felony murder charge, and agreed to submit the issue of whether he committed the crime of second degree felony murder to the court. Percer stipulated to certain facts, testimony, and the admission of exhibits.

Prior to the bench trial that the parties had agreed to in the plea agreement, Percer moved to dismiss the charge of second degree felony murder on the ground that he could not be convicted of that charge when the underlying felony was the completed act of taking a motor vehicle without permission. The trial court found that Percer had not completed the underlying felony, but was still "in the course of or in furtherance of that felony when he collided with Mervos's vehicle. The court denied Percer's motion to dismiss, found him guilty of second degree felony murder, and imposed a standard range sentence of 288 months, to be served concurrently with his other convictions.

Percer filed a direct appeal alleging insufficient evidence to convict him of second degree felony murder and a double jeopardy violation because he was convicted and punished for both vehicular homicide and second degree felony murder. The Court of Appeals rejected Percer's arguments, State v. Percer, noted at 87 Wash.App. 1102, 1997 WL 642320 (1997), and this court denied discretionary review. State v. Percer, 134 Wash.2d 1017, 958 P.2d 317 (1998).

In 2001, Percer filed a PRP in the Court of Appeals, again alleging a double jeopardy violation. In re Pers. Restraint of Percer, 111 Wash.App. 843, 47 P.3d 576 (2002). He argued that State v. Schwab, 98 Wash.App. 179, 988 P.2d 1045 (1999), was a significant change in the law, and sufficient reasons existed to retroactively apply the changed legal standard to dismiss his second degree felony murder conviction, the longer sentence of his two convictions. The Court of Appeals concluded that "Schwab did not announce a new principle of law," but nonetheless granted the petition, concluding that its earlier decision on direct appeal was a clear error involving a constitutional right. Percer, 111 Wash.App. at 847, 47 P.3d 576.

In granting the PRP, the court determined (as did the Schwab court) that the disjunctive wording in the definition of homicide found in RCW 9A.32.010 barred multiple homicide convictions for a single death. Id. The court looked at vehicular homicide's origin, specifically, its creation in 1937 at the behest of prosecutors who found it difficult to convict motorists under the general manslaughter statute. Id. at 848, 47 P.3d 576. The court also discussed State v. Collins, 55 Wash.2d 469, 348 P.2d 214 (1960), stating that case "implicitly held that a defendant may not be convicted both for negligent (vehicular) homicide and homicide under general criminal statutes." Percer,111 Wash.App. at 848,47 P.3d 576. Noting that its previous decision relied upon authority that did not apply to Percer's argument, the court followed the Schwab reasoning and held that the definition of homicide found in RCW 9A.32.010 prohibited convictions for both second degree felony murder and vehicular homicide when there was only one death. Id. at 848-49, 47 P.3d 576. The court determined that the two convictions violated double jeopardy, reversed its earlier decision, and vacated the second degree felony murder conviction.

The State contends: (1) the Court of Appeals' review of the PRP was improper, (2) convictions for both vehicular homicide and felony murder do not violate double jeopardy, and (3) if the two convictions violate double jeopardy, the Court of Appeals reversed the wrong conviction. Percer argues that we should affirm the Court of Appeals. The State was granted discretionary review.

ISSUES

1. Could the Court of Appeals properly review in a PRP the identical double jeopardy issue rejected on direct appeal?

2. Do convictions for both vehicular homicide and second degree felony murder, arising from one death, violate the double jeopardy clauses of the United States and Washington Constitutions?

3. If there is a double jeopardy violation, which conviction should be vacated?

ANALYSIS

I.

Generally, a defendant may only file a PRP on a judgment and sentence within one year of the judgment becoming final. RCW 10.73.090(1). Percer did not file a PRP within one year; however, the time limit does not apply to a petition that is based on a significant change in the law. RCW 10.73.100(6). In 2001, Percer filed a PRP, claiming that State v. Schwab created a substantial change in the law by holding that, based upon the disjunctive definition of homicide found in RCW 9A.32.010, convictions for both second degree felony murder and first degree manslaughter for a single homicide violate double jeopardy. Schwab, 98 Wash.App. at 188-89, 988 P.2d 1045. In this case, however, the Court of Appeals specifically noted that "Schwab did not announce a new principle of law." Percer, 111 Wash.App. at 847, 47 P.3d 576. If the Court of Appeals is correct, then the court could not properly hear Percer's PRP under the substantial change in the law exception, RCW 10.73.100(6).

The State asserts that because Schwab did not announce a new principle of law, the policy in favor of the interests of finality of judgments should have prevented the Court of Appeals from reviewing the PRP. It is true that an appellate court will usually not reconsider issues that have been raised and resolved in a direct appeal. In re Pers. Restraint of Gentry, 137 Wash.2d 378, 388, 972 P.2d 1250 (1999). The State further cites In re Pers. Restraint of Hews, 99 Wash.2d 80, 86, 660 P.2d 263 (1983), for the proposition that collateral relief should be limited. While Hews does state that there is a strong interest in the finality of litigation, it also notes that appellate review is not prevented if such finality is outweighed by claims of constitutional error actually prejudicing the petitioner. Id. at 85, 660 P.2d 263.

For the Court of Appeals to consider Percer's PRP, he must show that the earlier decision was clearly erroneous, such that he was prejudiced by the decision and that the ends of justice would be served by reconsidering the matter. Gentry, 137 Wash.2d at 388, 972 P.2d 1250. This showing must be made by a preponderance of the evidence. In re Pers. Restraint of Crabtree, 141 Wash.2d 577, 587, 9 P.3d 814 (2000); In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 328, 823 P.2d 492 (1992). The Court of Appeals noted in its current opinion that its earlier decision was clearly erroneous. Percer, 111 Wash.App. at 847, 47 P.3d 576. Because the error involved the constitutional right protecting defendants against double jeopardy, the error worked a manifest injustice on him. See id. However, the validity of the court's review depends upon whether convictions for both vehicular homicide and second degree felony murder were indeed erroneous, that is, whether the convictions violated double jeopardy. We address that in the second issue.

II.

The fifth amendment to the United States Constitution states: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." Similarly, article I, section 9 of the Washington Constitution declares: "No person shall be ... twice put in jeopardy for the same offense." Both of these double jeopardy clauses prohibit: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3)...