State v. Brand, 29310-9-I

Decision Date20 April 1992
Docket NumberNo. 29310-9-I,29310-9-I
Citation65 Wn.App. 166,828 P.2d 1
CourtWashington Court of Appeals
PartiesSTATE of Washington, Appellant, v. William Charles BRAND, Respondent.

Norm Maleng, King County Pros. Atty., Michele Shaw, Seattle, for appellant.

Mark D. Mestel, Mestel & Muenster, Everett, for respondent.


The State appeals a superior court order vacating Brand's conviction and granting Brand a new trial, claiming: (1) the motion was not timely filed, (2) the motion violates prohibitions on multiple petitions, (3) the court abused its discretion in granting the motion, and (4) the court lacked jurisdiction to hear the motion. We reverse and remand.

Brand was charged February 27, 1985, with first degree premeditated murder of his wife on February 21 or 22, 1985. Prior to trial Brand underwent extensive medical, psychiatric and psychological evaluations. The trial date was continued at least twice to allow for continued evaluations. The case proceeded on a bench trial before Judge Jim Bates. At trial the experts were only able to conclude that Brand suffered from diminished capacity. Judgment and sentence were entered September 23, 1986 and Brand was acquitted on first degree murder, due to the insufficiency of evidence of premeditation, but was found guilty of the lesser charge of second degree murder.

Brand appealed the conviction and also filed a pro se personal restraint petition (PRP). In his PRP Brand argued that the use of anabolic steroids and antidepressants caused him to be legally insane at the time of the murder. The PRP cited RAP 16.4(c)(3), "[m]aterial facts which have not been previously presented", and requested this court to return the case to the superior court for a reference hearing pursuant to RAP 16.11(b). Subsequent to the filing of the PRP this court allowed Brand's appellate counsel to supplement the record with articles and correspondence from Dr. Pope, an expert in the field, upon which Brand had relied in filing the PRP.

This court dismissed the PRP holding that Brand's failure to disclose the full extent of his medications to his counsel and medical experts was not a basis for a new trial. This court also found an insufficient causal connection in the expert opinion regarding Brand's mental condition and the alleged new scientific theory. The conviction was affirmed and a mandate issued on April 9, 1990.

Apparently Brand remained in contact with Dr. Pope, and further investigation was conducted. In June of 1991 Brand filed a motion for a new trial with Judge Bates. The motion was based on "newly discovered evidence" citing CrR 7.6(a)(3). The motion was supported by an affidavit from Dr. Pope, not included in the prior PRP, stating that in his opinion Brand was rendered insane by the drugs. Dr. Pope stated the theory that made this conclusion possible was unavailable to the medical community at the time of the original trial. The motion was amended August 12, 1991, to include CrR 7.8 as a basis for relief.

Judge Bates granted the motion on August 20, 1991. The court denied the State's motion for reconsideration October 8, 1991. On October 10, 1991, the court entered a formal order granting a new trial pursuant to CrR 7.8(b)(5), and releasing Brand from custody.



CrR 7.8(b)(5). 1

Brand's motion is based on Dr. Pope's affidavit which explicitly states that the information is new and was not available at the date of trial. Hence, the motion is unequivocally based on "newly discovered evidence", CrR 7.8(b)(2). Indeed, the judge first proposed to grant relief on this basis. After the State pointed out that relief under CrR 7.8(b)(2) was limited for a period of not more than 1 year after judgment, the judge shifted the basis of his ruling to CrR 7.8(b)(5). Brand urges that when the motion is based on CrR 7.8(b)(5) the 1 year time limit is no longer applicable and the motion need only be filed within a reasonable time. While this may be a correct understanding of the time limit, we do not agree that the basis of the motion may be shifted in this manner.

CrR 7.8(b)(5) states, "Any other reason justifying relief....". (Emphasis added.) In context CrR 7.8(b)(5) plainly means any reason other than those set forth in the four prior subsections, including newly discovered evidence dealt with Since Brand's motion was filed more than 1 year following his conviction and the mandate from this court he is not entitled to relief under former CrR 7.8(b)(2).

                in (b)(2). 2  It would contravene all the normal rules of statutory construction for the court to accept a construction of CrR 7.8(b)(5) which renders (b)(2) meaningless. 3  CrR 7.8(b)(5) does not authorize relief on the basis of newly discovered evidence


CrR 7.8 was amended to include statutory limitations on filing collateral attacks on criminal judgments. The amended rule became effective September 1, 1991 4 after proceedings on Brand's motion commenced but before the formal order was entered October 9, 1991. However, the criminal rules expressly apply to any proceedings then pending in superior court. 5 The application of the amended rule is particularly appropriate in this case since the statutory limitations, although not then incorporated into CrR 7.8, were in effect when Brand filed his motion. Even absent incorporation a court would have been obligated to consider the relationship between statutory provisions and

                the provisions of the rule.   The amendment incorporating the statutory provisions into the rule avoids the question as to which should prevail in the case of a conflict--the rule or the statute--and mandates that the provisions be construed together.   Accordingly, we hold that Brand's motion should be analyzed under CrR 7.8 as amended September 1, 1991.   Thus, the controlling issue, not addressed by the court below, is whether the statutory provisions which are incorporated into CrR 7.8 justify relief.

RCW 10.73.100(1)


RCW 10.73.090(1) provides a 1 year time limit for collateral attack. 6 An exception is made for newly discovered evidence: "if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion". RCW 10.73.100(1). CrR 7.8, as amended, is thus internally inconsistent since the CrR 7.8(b) language limiting relief based on newly discovered evidence to a period of 1 year remains in the rule. Where a statutory amendment is inconsistent with unamended portions of the statute the amendatory portions control. 7 Similar reasoning applies to amendment of the court rules. 8 Indeed the purpose of an amendment is to make a change, thus the later language must prevail in the case of a conflict. While it would be more obvious if the language of sections RCW 10.73.090, .100, .130, and .140 had been set out verbatim, the same result follows from incorporation by reference. Accordingly the previous 1 year limitation for filing a motion based on newly discovered evidence under CrR 7.8(b)(2) is superceded by the newly incorporated statutory provisions. Brand's application must

be examined under the statutory provisions now incorporated into CrR 7.8.




The sufficiency of Brand's motion is tested by RCW 10.73.100(1) requiring the moving party to demonstrate reasonable diligence in discovering the evidence and filing his motion. 9 In this case the court must examine the time between the end of Brand's trial and the filing of his CrR 7.8 motion to determine if Brand exercised reasonable diligence. Although the trial court discussed diligence in connection with the preliminary decision based on CrR 7.8(b)(2), there is no written factual finding on this issue in the court's final order now before us for review. 10 We note that Dr. Pope's affidavit, and the court's findings, specifically address the state of scientific knowledge as of the date of trial. What is not addressed is the precise time that the scientific knowledge became accepted in the scientific community and available to Brand for purposes of post-conviction relief. Dr. Pope's letter, dated July 12, 1989, which was the basis of Brand's first PRP is of significance in this regard. 11


THE RCW 10.73.140



A related, but distinctly different question that must also be addressed is whether Brand has shown good cause for not raising in his first personal restraint petition the grounds The definition of collateral attack in RCW 10.73.090(2) is comprehensive and clearly includes Brand's current CrR 7.8 motion. 12 For the purpose of the RCW 10.73.140 13 limitation on successive writs we consider Brand's current motion under CrR 7.8 the functional equivalent of a PRP. Both the statutory language 14 and the pre-amendment language of the rule establish this equivalence. 15

                asserted in the motion for new trial?   This issue involves two related issues:  (1) is Brand's motion the equivalent of a PRP and, (2) do the limitations on successive petitions apply to motions brought in the superior court?   We answer both of these questions in the affirmative.

RCW 10.73.140 is somewhat confusing because, in establishing limitations on successive applications for PRP's, the section explicitly refers only to actions by the Court of Appeals. Although there is no express language in the statute dealing with PRPs filed in the trial court rather than in the appellate court, it is clear the same limitations apply. 16 By incorporating these statutory provisions in CrR 7.8 for the superior court as well as in RAP 16.4(d), 17 the Supreme Court strongly suggests that the PRP limitations apply in the trial court. Indeed, it would be irrational and indefensible to apply a different standard to applications for postconviction...

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7 cases
  • State v. Roberts, No. 57079-0-I (Wash. App. 6/4/2007)
    • United States
    • Washington Court of Appeals
    • June 4, 2007
    ...contends that Roberts' motion was time barred. The trial court rejected this claim based on this court's holding in State v. Brand, 65 Wn. App. 166, 170-72, 828 P.2d 1 (1992), rev'd on other grounds, 120 Wn.2d 365, 842 P.2d 470 (1992) ("the previous 1-year limitation for filing a motion bas......
  • In re Becker, 68700-5.
    • United States
    • Washington Supreme Court
    • April 5, 2001
    ...and limitations apply in both the trial court and the appellate court to applications for postconviction relief. State v. Brand, 65 Wash.App. 166, 174, 828 P.2d 1, aff'd, 120 Wash.2d 365, 842 P.2d 470 The question then is whether Becker's initial motion raised in district court constitutes ......
  • State v. Brand
    • United States
    • Washington Supreme Court
    • December 10, 1992
    ...time requirements. The Court of Appeals remanded for additional determinations on the procedural matters. State v. Brand, 65 Wash.App. 166, 176-77, 828 P.2d 1 (1992). We granted the State's petition for review and now reverse on grounds that Brand's motion is procedurally We have previously......
  • State v. Walter, No. 22523-2-III (WA 3/22/2005)
    • United States
    • Washington Supreme Court
    • March 22, 2005
    ...proceeding is the same as that applied to a motion for new trial based upon newly discovered evidence.'); State v. Brand, 65 Wn. App. 166, 176 n.23, 828 P.2d 1 (1992), rev'd on other grounds, 120 Wn.2d 365, 842 P.2d 470 (1992) (a reference hearing will require review analogous to a CrR 7.6 ......
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