In re Rhone

• Decision Date: 23 August 2022
• Docket Number: 54167-0-II consolidated with No. 54487-3-II
• Citation: 516 P.3d 401
• Parties: In the MATTER OF the Personal Restraint of Theodore R. RHONE, Petitioner.
• Court: Washington Court of Appeals

516 P.3d 401

In the MATTER OF the Personal Restraint of Theodore R. RHONE, Petitioner.

No. 54167-0-II consolidated with No. 54487-3-II

Court of Appeals of Washington, Division 2.

Filed August 23, 2022

Lise Ellner, Attorney at Law, P.O. Box 2711, Vashon, WA, 98070-2711, for Petitioner.

Theodore Michael Cropley, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, Respondent.

PUBLISHED OPINION

Glasgow, C.J.

¶1 Theodore R. Rhone seeks relief from personal restraint imposed following a 2005 conviction for first degree robbery. At trial, Rhone objected to the State's use of a peremptory strike to remove the only remaining Black venire member from his jury pool. The trial court recognized this as a challenge under Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), found that Rhone failed to establish a prima facie case of purposeful discrimination, and denied the challenge.

¶2 On appeal, Rhone asked the courts to recognize a bright-line rule that whenever the State uses a peremptory challenge to strike the only or last remaining venire member of a cognizable racial group, that action alone is sufficient to establish prima facie discrimination. In a fractured opinion, the Washington Supreme Court denied Rhone's request. But four dissenting justices would have adopted the bright-line rule, and a fifth justice indicated they would support the proposed bright-line rule going forward. Eventually, in

516 P.3d 404

City of Seattle v. Erickson , 188 Wash.2d 721, 398 P.3d 1124 (2017), the Supreme Court adopted the bright-line rule proposed by Rhone. He filed a personal restraint petition (PRP), arguing this was a significant change in the law, material to his conviction, which should apply retroactively.

¶3 The next year, the Supreme Court decided State v. Jefferson , 192 Wash.2d 225, 230, 429 P.3d 467 (2018) (plurality opinion), changing our state's Batson inquiry to "ask whether an objective observer could view race or ethnicity as a factor in the use of the peremptory strike," instead of whether the State purposefully discriminated on the basis of race. Rhone incorporated Jefferson into his PRP. We dismissed the PRP under the mixed petition rule, and the Supreme Court denied discretionary review.

¶4 Now, Rhone brings a new PRP and again argues that Erickson and Jefferson were significant changes in the law, material to his conviction, which should apply retroactively. We agree with Rhone that Erickson and Jefferson were significant changes in the law and that they are material to his conviction. We also conclude that because Erickson and Jefferson established new constitutional rules that are at least partly substantive, they should apply retroactively. Therefore, Rhone's PRP falls within RCW 10.73.100(6), and the one-year time bar does not apply.

¶5 Because this is a successive petition, however, we cannot review it. Because we conclude this is a timely request for relief that has not previously been considered and determined on the merits, we transfer Rhone's PRP to the Supreme Court for consideration under RAP 16.4(d).

PROCEDURAL HISTORY

I. TRIAL AND DIRECT APPEAL

¶6 In 2005, Rhone, who is Black, was tried for first degree robbery, among other offenses, after he went through a "drive-thru window[,] ... displayed a gun[,] and demanded money for a debt." State v. Rhone , noted at 137 Wash. App. 1046, 2007 WL 831725, at *1 ( Rhone I ). Before the trial began, Rhone, "acting pro se," objected to the jury selection process on the ground that the State had used a peremptory strike to remove the only remaining Black juror from the venire. Id. at *3.¹ Rhone personally addressed the court, saying, " ‘It's not a jury of my peers. I'm -- I mean, I am an African-American [B]lack male, 48 years old. I would like someone of culture, of color, that has -- perhaps may have had to deal with [improprieties] and so forth, to understand what's going on and what could be happening in this trial.’ " State v. Rhone , 168 Wash.2d 645, 649, 229 P.3d 752 (2010) ( Rhone II ), abrogated by Erickson , 188 Wash.2d 721, 398 P.3d 1124.²

¶7 The trial court found that Rhone failed to make a prima facie showing of purposeful racial discrimination, as required by Batson , and it denied Rhone's challenge. Rhone I, 2007 WL 831725, at *3.³ The jury found Rhone guilty of possession of a controlled substance with intent to deliver, unlawful possession of a firearm, first degree robbery, and bail jumping.

516 P.3d 405

¶8 On direct appeal, Rhone proposed a bright-line rule: where the State peremptorily dismisses the only or last remaining venire member of a cognizable racial group, the trial court should always find a prima facie case of discrimination and move past the first step of the Batson analysis. Id. at *6. This court explained, "We are generally hesitant to find discriminatory motivation in numbers analysis alone." Id. at *7. We recognized, "[I]t is possible that a prosecutor's dismissal of the only eligible member of a constitutionally cognizable group can imply a discriminatory motive," but ultimately we concluded that, on the record presented, Rhone failed to show the trial court abused its discretion in denying his Batson challenge. Id. We affirmed all of Rhone's convictions. Id. at *14.

¶9 The Supreme Court accepted review. In its lead opinion, signed by four justices, the court concluded that "a bright-line rule superseding a trial court's discretion in determining whether a defendant has established a prima facie case of discrimination is inconsistent with Batson ." Rhone II, 168 Wash.2d at 653, 229 P.3d 752. A dissenting opinion, also signed by four justices, would have adopted the "bright line rule that a defendant establishes a prima facie case of discrimination when, as here, the record shows that the State exercised a peremptory challenge against the sole remaining venire member of the defendant's constitutionally cognizable racial group." Id. at 659, 229 P.3d 752 (Alexander, J., dissenting). The ninth justice wrote a two-sentence concurrence stating, "I agree with the lead opinion in this case. However, going forward, I agree with the rule advocated by the dissent." Id. at 658, 229 P.3d 752 (Madsen, C.J., concurring). The court therefore affirmed. Id. (lead opinion and Madsen, C.J., concurring).

II. PRIOR PRPS

¶10 Rhone's convictions became final in 2010. Since 2010, Rhone has filed several PRPs. One PRP challenged the trial court's denial of Rhone's motion to suppress evidence seized during a warrantless search of his car. The Supreme Court granted Rhone's PRP and remanded for our reconsideration of the suppression order in light of new precedent from both the federal and state supreme courts.⁴ State v. Rhone , No. 46960-0-II, slip op. at 5, 2016 WL 3702707 (Wash. Ct. App. July 6, 2016) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2046960-0-II%20Unpublished%20Opinion.pdf ( Rhone III ). In light of these new cases, we concluded that the warrantless search of Rhone's car incident to his arrest was unlawful "because Rhone had been secured, he could not access the interior of the vehicle, he posed no safety risk, and the vehicle contained no evidence that could be concealed or destroyed." Id. at 8. We held this error was not harmless with respect to Rhone's convictions for unlawful possession of a controlled substance with intent to deliver and unlawful possession of a firearm, and we remanded for the trial court to vacate those two convictions. Id. at 12-13. We did not disturb Rhone's conviction for first degree robbery. Id. at 12.

¶11 While Rhone's case was on remand, the Supreme Court decided Erickson , officially adopting "the bright-line rule first espoused by the dissent in [ Rhone II ]." 188 Wash.2d at 724, 398 P.3d 1124. Rhone filed a CrR 7.8 motion to vacate his new judgment and sentence, arguing Erickson constituted a significant change in the law that was material to his robbery conviction. The trial court transferred the CrR 7.8 motion, along with a separate motion for a new trial based on a jury instruction issue, "to this court as a single PRP." State v. Rhone , No. 51517-2-II (consolidated with No. 51797-3-II), slip op. at 6 (Wash. Ct. App. Dec. 17, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051517-2-II%20Unpublished%20Opinion.pdf ( Rhone IV ). Rhone also sought to directly appeal his new judgment and sentence. Id. We consolidated that direct appeal with the transferred PRP. Id.⁵

516 P.3d 406

¶12 Rhone argued "recent Washington cases applying Batson " constituted a material and significant change in the law that fell within an exception to the one-year time bar for collateral attacks. Id. at 12 ; see RCW 10.73.090(1), .100(6). But we concluded Rhone's jury instruction claim was time barred and therefore dismissed his entire PRP as a mixed petition. Rhone IV, 51517-2-II, slip op. at 13. "We accordingly [did] not address Rhone's remaining claims related to his Batson challenge." Id.

¶13 The Supreme Court denied discretionary review. The deputy commissioner clarified in his ruling denying review, "I do not consider the change in law issue properly raised here. ... If Mr. Rhone wishes to argue the change in law issue, he may do so in a personal restraint petition that raises solely that ground for relief." Ruling Den. Review, In re Pers. Restraint of Rhone , No. 98109-4, at 4 n.2 (Wash. May 20, 2020); see also In re Pers. Restraint of Hankerson , 149 Wash.2d 695, 702, 72 P.3d 703 (2003) (explaining that a petitioner may refile a timely claim dismissed as part of a "mixed petition" under RCW 10.73.100 "because by definition any claim that is not time barred may be refiled without danger of untimeliness").

III. CURRENT PRP

¶14 Rhone then submitted two new PRPs, each arguing that Erickson and Jefferson were significant changes in the law, material to his conviction, which should apply retroactively. We consolidated Rhone's PRPs.

ANALYSIS

¶15 We will grant appropriate...