In the Matter of The Pers. Restraint Petition of Raymond Martinez

• Decision Date: 28 April 2011
• Docket Number: No. 83219–6.,83219–6.
• Citation: 256 P.3d 277,171 Wash.2d 354
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition of Raymond MARTINEZ, Petitioner.

171 Wash.2d 354

256 P.3d 277

In the Matter of the Personal Restraint Petition of Raymond MARTINEZ, Petitioner.

No. 83219–6.

Supreme Court of Washington, En Banc.

Decided April 28, 2011.

OPINION TEXT STARTS HEREArgued Jan. 18, 2011.

Background: After defendant's conviction for first degree burglary was affirmed, 2006 WL 954047, and personal restraint petition (PRP) was dismissed, defendant filed second PRP contending that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon. The Court of Appeals dismissed the petition on procedural grounds without reaching the merits. Defendant sought review.

Holdings: The Supreme Court, En Banc, Barbara A. Madsen, C.J., held that:

(1) PRP was not time-barred;

(2) second PRP did not seek similar relief to first and, thus, was not barred by rules governing successive petitions;

(3) abuse of writ doctrine did not apply;

(4) there was insufficient evidence that defendant attempted to use knife, to support deadly weapon element of first degree burglary conviction; and

(5) unless a dangerous weapon falls within the narrow category for deadly weapons per se, its status as a deadly weapon rests on the manner in which it is used, attempted to be used, or threatened to be used, disapproving State v. Gamboa, 137 Wash.App. 650, 154 P.3d 312.

Decision of Court of Appeals reversed and conviction vacated.

Eric J. Nielsen, David Bruce Koch, Jennifer J. Sweigert, Nielsen Broman & Koch, PLLC, Seattle, WA, for Petitioner.

Douglas Robert Mitchell, Grant County Prosecutor's Office, Ephrata, WA, for Respondent.

MADSEN, C.J.

[171 Wash.2d 357] ¶ 1 In his personal restraint petition (PRP), Raymond Martinez challenges his conviction for first degree burglary, contending that the State failed to prove beyond a reasonable doubt that he was armed with a deadly weapon within the meaning of the applicable statute. The Court of Appeals dismissed the petition on procedural grounds without reaching the merits. We hold that this petition is properly before the court and that Mr. Martinez's first degree burglary conviction rested on insufficient evidence. Accordingly, we reverse the Court of Appeals and vacate Mr. Martinez's conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2 In the early hours of the morning of February 17, 2004, a burglar alarm at an uninhabited farm shop in rural Grant County alerted law enforcement officers of a potential break-in. Deputy Joseph Wester of the Grant County Sheriff's office arrived on the scene about 5 or 10 minutes later. He parked his marked patrol car in front of the shop, shined his headlights and spotlights in the direction of the shop, and noticed that the door of the shop had been forced open. He could hear someone moving about inside, and he immediately alerted another officer by radio that the door had been forced open. At that time, Mr. Martinez opened the door and stepped out of the building. The deputy, who was in full uniform, shined his flashlight on Mr. Martinez, drew his gun, and commanded Mr. Martinez to stop. Mr. Martinez fled immediately. Deputy Wester began chasing Mr. Martinez and was able to catch up to him when Mr. Martinez ran into a barbed wire fence, fell, did a somersault, and then continued running.

¶ 3 Once Deputy Wester caught up to the defendant, he “tackled him to the ground.” 1 Verbatim Report of Proceedings (VRP) at 62. After handcuffing the defendant, Deputy Wester patted him down and noticed an empty knife sheath on his belt. When Deputy Wester inquired about the missing knife, Mr. Martinez said that it “should be in the sheath and that it must have fallen out while he was running.” Id. at 65. He provided no further explanation. Later, law enforcement officers retraced the path on which the chase had occurred and located a knife in the mud, about 15 feet from the farm shop. Mr. Martinez identified the knife as his own. The knife had a fixed blade and was about three-and-a-half to four inches long.

¶ 4 Mr. Martinez was charged by amended information with burglary in the first degree, theft in the first degree, malicious mischief in the third degree, obstructing a law enforcement officer, resisting arrest, and possessing stolen property in the first degree. He pleaded not guilty on all six counts.

¶ 5 At trial, the knife and sheath at issue were admitted into evidence, but none of the witnesses provided a verbal description of the sheath or indicated whether it was fastened or unfastened when it was found on Mr. Martinez's person.

¶ 6 In closing, the State argued:

The defendant on this date and time was in the process of using this knife. As you can see, and you'll have the opportunity to view this knife, this knife has a button and it has to be unbuttoned in order to come out. This is the knife that was there on February 17th, 2004. As you can see, it is sharp. It is deadly. The defendant was in the process of pulling it out. He was wearing what's been identified as Plaintiff's Exhibit 14, these blue latex hospital gloves. He possibly had a very good grip considering he was using these hospital gloves.

So in the process the defendant had to unsnap this button and then take this knife out. Fortunately for Officer [sic] Wester this knife fell on the floor or on the ground. Because if it had not, we wouldn't be talking about Joe Wester as being one person testifying in this case, we might have a coroner testifying about Joe Wester being dead.

2 VRP at 244–45. The defense, in response, argued that the knife was not a deadly weapon “under the circumstances in which it [was] used, attempted to be used, or threatened to be used.” Id. at 250.

¶ 7 The jury found Mr. Martinez guilty of burglary in the first degree, among other crimes.¹ On direct appeal, Mr. Martinez argued that the prosecutor had committed prosecutorial misconduct by misstating the evidence, misleading the jury, and making an “inflammatory statement” in his closing remarks. State v. Martinez, noted at 132 Wash.App. 1031, 2006 WL 954047, at *2 (2006). In an unpublished decision, Division Three agreed that the prosecutor's comments were indeed unsupported by the evidence but held that they were not sufficiently prejudicial to warrant reversal where Mr. Martinez had failed to object at trial.

It may have been reasonable to infer that Mr. Martinez would use the knife if it had been available. But there is no evidence that Mr. Martinez reached for the knife, unbuttoned it, removed it, or that he had a good grip on it. There is also no direct evidence that Mr. Martinez would have used the knife to kill Deputy Wester. The prosecutor's comments were then improper. But the question is whether they are ‘so flagrant and ill-intentioned’ that any prejudice could not have been cured by an instruction to the jury. And we conclude that they are not.Id. at *3 (citations omitted).

¶ 8 On March 7, 2007, Mr. Martinez filed a PRP in the Court of Appeals, Division Three, seeking reversal of his first degree burglary conviction on grounds of ineffective assistance of counsel. In a letter to the Court of Appeals accompanying his petition, Mr. Martinez also argued that the State's first degree burglary charges were unwarranted because he had neither used nor threatened to use his knife during the alleged burglary. After the court requested briefing, Mr. Martinez filed a pro se brief, in which he abandoned his argument as to the use or threatened use of the knife. The Court of Appeals dismissed that petition on August 1, 2007, without addressing Mr. Martinez's argument that he had neither used nor threatened to use his knife. Order Dismissing Pers. Restraint Pet., In re Pers. Restraint of Martinez, No. 25942–1–III (Aug. 1, 2007).

¶ 9 On March 13, 2009, Mr. Martinez filed a CrR 7.8 motion for relief from judgment in which he argued that “[t]he Trial Court's failure to properly define deadly weapon in 1st degree burglary violated RCW 9A.04.110(6), and XIV Amendment of the United States Constitution.” Mot. for Relief from J. and Order Under CrR Rule 7.8 (Pet'r's Suppl. Br. at App. B) at 2. Pursuant to CrR 7.8(c)(2), the superior court transferred the motion to the Court of Appeals for consideration as a PRP.

¶ 10 On May 13, 2009, Division Three dismissed Mr. Martinez's March 13 petition as both untimely and successive. Order Dismissing Pers. Restraint Pet., In re Pers. Restraint of Martinez, No. 27949–9–III, at *3 (May 13, 2009). The Court of Appeals found that this petition was untimely because it was filed more than a year after the certificate of finality on the first petition, the judgment and sentence were valid, and Mr. Martinez did not raise any of the statutory exceptions to the one-year bar listed in RCW 10.73.100. Id. at *2. The court further held that it lacked jurisdiction to consider the petition under RCW 10.73.140 because Mr. Martinez had not shown good cause for failing to raise his claims in a prior petition. Id. at *2–3. Consequently, it dismissed Mr. Martinez's petition without reaching the merits. Id. at *3.

¶ 11 Still acting pro se, Mr. Martinez sought review of the order dismissing his second PRP.

ANALYSIS

¶ 12 RCW 10.73.090 imposes a general bar on PRPs filed more than one year after a judgment becomes final, where a judgment is valid on its face and rendered by a court of competent jurisdiction. However, under RCW 10.73.100(4), the one-year bar does not apply where “[t]he defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction.” ² Mr. Martinez's PRP is not time-barred.

¶ 13 In addition to holding that Mr. Martinez's petition was untimely, the Court of Appeals held that it lacked jurisdiction under RCW 10.73.140. Specifically, the court found that Mr. Martinez had not raised the deadly weapon challenge in his prior petition and lacked good cause for failing to do so. Order Dismissing Pers. Restraint Pet., No. 27949–9–III, supra, at *2–3.

¶ 14 When the Court of Appeals determines that its review is barred...