In re Plain
| Docket Number | 85661-8-I |
| Decision Date | 16 January 2024 |
| Parties | IN THE MATTER OF THE PERSONAL RESTRAINT OF: BOBBY JOE EZRA PLAIN, Petitioner. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Bobby Joe Ezra Plain was convicted of one count of robbery in the first degree with a firearm enhancement and one count of assault in the second degree with a deadly weapon pursuant to a plea agreement with the State in 2010. Plain now seeks relief through a personal restraint petition, arguing that his convictions violate the double jeopardy clauses of the federal and state constitutions. Having first determined that Plain's petition is timely based on an exception to the one-year statutory time bar, we agree that his convictions violate the constitutional prohibitions against double jeopardy, conclude that they merge, and grant the petition.
On February 8, 2010, Plain was charged with 10 separate criminal counts alongside 31 other individuals for events that took place between December 1, 2008 and January 15, 2010. On November 19, 2010, Plain negotiated with the State to resolve the case by entry of a plea pursuant to North Carolina v. Alford[1] to reduced charges of robbery in the first degree with a firearm enhancement (robbery 1), a class A felony, and assault in the second degree (assault 2), a class B felony. Both crimes are most serious or "strike" offenses.[2] According to his plea agreement, and consistent with Alford pleas generally, Plain accepted that the court could review the probable cause (PC) affidavit to establish a factual basis for his plea. The PC affidavit prepared and filed by the State recites that, at approximately 2:00 a.m. on December 6 2010, the victim and his cousin were exiting a restaurant when they saw Plain reach into the victim's car and remove a firearm from the interior console. The affidavit then notes that Plain "then began beating [the victim] with the gun while demanding all his money." A second individual used a different firearm to strike the victim causing physical injury to his nose, eyes, and the inside of his lips. Without specifying which perpetrator took which items, the victim stated that over $2,300 in cash, a gold chain, and his firearm were stolen from him during the incident. He and his cousin were able to identify Plain later through a photo montage and indicated that he was the person who had taken the firearm out of the vehicle.
Based on his offender score and the seriousness level of the crimes of conviction, the court sentenced Plain to the high end of the standard range on each count for a total sentence of 204 months in prison. The sentence included a mandatory consecutive 60-month term for the firearm enhancement. Plain did not initiate a direct appeal of his conviction or sentence.
On October 11, 2017, Plain filed a CrR 7.8 motion seeking resentencing on the basis of youthfulness which the trial court deemed untimely, converted into a personal restraint petition (PRP) and transferred to Division Two of this court. The PRP was then stayed pending resolution of two cases in the state Supreme Court. While the original PRP was stayed, Plain filed a PRP in Division Two that raised claims of both a double jeopardy violation and an insufficient factual basis for the conviction.[3] Division Two transferred the second PRP to the state Supreme Court as successive. The Supreme Court ruled that the double jeopardy challenge was potentially exempt from the one-year time bar, but the claim pertaining to an insufficient factual basis was not, and it dismissed the PRP as a mixed petition. On December 27, 2021, Plain added the double jeopardy claim to the current petition via a supplemental brief. On February 28, 2022, the State moved to stay the petition pending the decisions in two other cases that involved separate PRPs with related issues, which was granted.[4] On November 29, 2022, Plain moved to lift the stay and withdraw the claim regarding youthfulness and sentencing. Division Two granted both motions and transferred the case to this Division for resolution of the remaining double jeopardy claim.
PRPs allow petitioners to challenge the lawfulness of confinement, but relief through this avenue is extraordinary. In re Pers. Restraint of Meirhofer, 182 Wn.2d 632, 648, 343 P.3d 731 (2015). "'[T]he petitioner must meet a high standard before this court will disturb an otherwise settled judgment.'" In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013) (quoting In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011))). Plain's PRP alleges his convictions violate the constitutional right to be free of double jeopardy. If a petitioner seeks relief in a PRP based on a constitutional error, they must show that such an error occurred and that it resulted in actual and substantial prejudice. In re Pers. Restraint of Williams, 198 Wn.2d 342, 353, 496 P.3d 289 (2021). The petitioner must demonstrate actual and substantial prejudice by a preponderance of the evidence. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004).
Generally, a PRP is time barred if filed more than one year after the judgment becomes final. RCW 10.73.090. However, the time bar does not apply if the judgment and sentence is invalid on its face or was otherwise issued by a court that lacked jurisdiction. Id. The Washington legislature has also provided six additional exceptions to the time bar, including when a petitioner is challenging their conviction on double jeopardy grounds. RCW 10.73.100(3). The State properly concedes that this PRP falls within an exception to the time bar. Therefore, as a threshold matter, this PRP is not time barred despite being filed more than one year after Plain's judgment was final because he asserts a double jeopardy violation.
Additionally, Plain's petition is not improperly successive. Under RAP 16.4(d), "[n]o more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown." Claims dismissed as part of a mixed petition are not barred in subsequent petitions because they have not yet been heard on their merits. In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 704, 72 P.3d 703 (2003). Plain previously challenged his convictions on the basis of double jeopardy in a collateral attack, but the state Supreme Court dismissed the claim as part of a mixed petition without reaching the merits. Plain supplemented this petition with that unresolved issue only after the dismissal by the Supreme Court.
"Double jeopardy is a constitutional limitation on the power of the court to place a person in jeopardy multiple times for the same offense." In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 813, 383 P.3d 454 (2016). Although the State may impose separate punishments for different offenses, our federal and state constitutions prevent multiple convictions and punishments for the same offense. State v. Wade, ___Wn. App. 2d___, 534 P.3d 1221, 1234 (2023); U.S. Const. amend. V; Wash. Const. art. I, § 9. When an individual is charged with two crimes, a double jeopardy violation is avoided when the lesser included offense merges into the more serious offense. State v. Muhammad, 194 Wn.2d 577, 618, 451 P.3d 1060 (2019) ( merger doctrine (quoting Black's Law Dictionary 1184 (11th ed. 2019))).
We review double jeopardy claims de novo, considering legislative intent. State v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005). "Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
We follow four analytical steps to determine legislative intent regarding whether cumulative punishment is authorized: (1) consideration of any express or implicit legislative intent, (2) application of the Blockburger,[5] or "same evidence" test, (3) application of the "merger doctrine," and (4) consideration of any independent purpose or effect that would allow punishment as a separate offense.
State v. Arndt, 194 Wn.2d 784, 816, 453 P.3d 696 (2019) (quoting Freeman, 153
Wn.2d at 771-73)). "If legislative intent to allow separate punishments can be found in any of the four steps of the analysis, then there is no double jeopardy violation." State v. Heng, 22 Wn.App. 2d 717, 732, 512 P.3d 942 (2022).
So long as it abides by constitutional limitations, the legislature "has the power to define criminal conduct and assign punishment to it." State v. Kier, 164 Wn.2d 798, 803, 194 P.3d 212 (2008). Double jeopardy is not offended if the legislature approved cumulative punishments for the crimes. Freeman, 153 Wn.2d at 771. "Evidence of legislative intent may be clear on the face of the statute, found in the legislative history, the structure of the statutes, the fact the two statutes are directed at eliminating different evils, or any other source of legislative intent." Id. at 773.
The statutes under which Plain was convicted, RCW 9A.56.200(1)(a)(ii)[6] and RCW 9A.36.021(1)(c),[7] do not explicitly authorize separate punishments. This is in contrast to statutes such as RCW 9A.52.050, commonly referred to as the burglary anti-merger statute, which expressly provides that a crime committed in the commission of a burglary "may be punished therefor as well as for the burglary." The State argues that the legislature implies an intent to treat the crimes separately by assigning them to different chapters of the Revised Code of Washington; robbery is found in...
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