State v. Brown, 75635-0.

• Decision Date: 04 August 2005
• Docket Number: No. 76195-7.,No. 75635-0.,75635-0.,76195-7.
• Citation: 117 P.3d 336,154 Wn.2d 787
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Byron Lee BROWN, Petitioner. In the Matter of the Personal Restraint of Byron Lee Brown, Petitioner.

117 P.3d 336

154 Wn.2d 787

STATE of Washington, Respondent, v. Byron Lee BROWN, Petitioner.

In the Matter of the Personal Restraint of Byron Lee Brown, Petitioner.

No. 75635-0.

No. 76195-7.

Supreme Court of Washington, En Banc.

Argued May 10, 2005.

Decided August 4, 2005.

Pattie Mhoon, Tacoma, for Petitioner.

Arthur David Curtis, James Everett David, Thomas C. Duffy, Clark Co. Prosecuting Atty., Vancouver, for Respondent.

SANDERS, J.

¶ 1 In his direct appeal, Byron Lee Brown brings a Blakely¹ challenge to the exceptional sentence imposed on him by the trial court under both the "major economic offense" and "free crimes" doctrines. In his personal restraint petition (PRP) filed directly with this court, Brown claims that he was unconstitutionally seized under this court's recent decision, State v. Rankin, 151 Wash.2d 689, 92 P.3d 202 (2004), when an officer requested identification and ran a warrants and license check without any articulable suspicion of wrongdoing. We agree the seizure was contrary to the constitution and grant the petition, rendering the Blakely issue moot.

FACTS AND PROCEDURAL HISTORY

¶ 2 Brown was convicted of multiple counts of forgery, identity theft, and second degree stolen property. He was a passenger in a station wagon displaying an Oregon trip permit which was stopped at 10:48 p.m. by Vancouver Police Officer Jim Watson, who believed the trip permit was "illegal." The officer had his overhead lights and headlights on as he approached the vehicle. After pulling the vehicle over, the officer approached the vehicle on foot on the passenger side.

¶ 3 As Officer Watson approached the vehicle, another officer arrived. That officer approached the driver's side and took the driver's license.

¶ 4 Officer Watson "started to walk back, and then I asked the passenger if I could have his name." Report of Proceedings (Apr. 29, 2002) (RP) at 27.² Brown gave the name "Jemeliah D. Johnson." The officer then asked for Brown's birth date and where he was from, and Brown said his birth date was June 7, 1977, and he was from California.

¶ 5 Officer Watson "ran both [the driver and Brown] for driver status and warrants." RP at 28. He also ran a check on the license plate of the vehicle. The records check of the license plate determined it was "flagged sold or just expired," though Officer Watson later testified that he could not recall which. Id. The car did not return as registered to either the driver or Jemeliah D. Johnson, but the records/warrants check of the driver came back "clear and current." RP at 28-29.

¶ 6 The records check revealed no records for the name Brown gave. The officer asked Brown to confirm the name, and when the name returned no records after two additional checks the officer asked Brown for "any license or I.D. on him." RP at 30. Brown said he had left his license in California.

¶ 7 The officer then asked Brown, "So if I checked your pockets right now, I wouldn't find any identification?" RP at 30. Brown said "no." Id. Officer Watson then asked, "Would you mind if I checked you?" Id. Brown again said "no," and exited the vehicle. RP at 30-31.

¶ 8 The officer then searched Brown. The officer located a palm pilot, which the officer opened. In it the officer found a credit card labeled "Plotinum" and bearing the name "Tim W. Cross" along with a hotel key card. RP at 31. After learning from Brown that he was staying across the street, the officers had the hotel manager identify Brown as the person who had registered as "Byron Black." RP at 33. Officer Watson called the credit card company to confirm his suspicions that the credit card might be forged, then arrested Brown. The officers obtained a search warrant for the hotel room, where they found materials for making forged credit cards and forged identification.

¶ 9 Brown moved to suppress the evidence derived from the seizure and the trial court held a CrR 3.6 hearing on April 29, 2002. The trial court denied the motion to suppress.³

¶ 10 At Brown's sentencing the State recommended that the court run the sentences for identity theft consecutively rather than concurrently, resulting in an exceptional sentence of 114 months. The State argued for the exceptional sentence under RCW 9.94A.535 on two grounds: (1) that the crime constituted a major economic offense involving a high degree of sophistication, and (2) that because Brown's offender score was higher than nine some of his crimes would go unpunished, and therefore the standard range sentence was clearly too lenient. The trial court followed the State's recommendation.

¶ 11 Brown appealed his conviction on multiple grounds. While his case was pending at the Court of Appeals, Brown filed a PRP pro se with that court, claiming that the initial traffic stop leading to his arrest was unlawful because Oregon trip permits were valid in Washington. The Court of Appeals summarily dismissed that PRP.

¶ 12 On January 6, 2004 the Court of Appeals affirmed his conviction. Brown moved the Court of Appeals to reconsider its decision. Less than two months after the Court of Appeals denied Brown's reconsideration motion this court issued Rankin, 151 Wash.2d 689, 92 P.3d 202, which overturned a case the Court of Appeals relied upon to reject Brown's direct appeal. See State v. Brown, noted at 119 Wash.App. 1073, 2004 WL 27207, at *4. Rankin was published in the advance sheets on July 20, 2004.

¶ 13 Brown filed a pro se motion with this court to allow late filing of a petition for review of his direct appeal, which was granted, and the petition was also filed on July 20, 2004. Brown later filed a pro se motion to amend his petition for review to include an issue regarding his exceptional sentence premised on Blakely. The court granted Brown's motion but accepted review only of the Blakely issue and appointed counsel to assist Brown.

¶ 14 Brown later filed a pro se PRP in this court, claiming that the intervening Rankin case vitiated the seizure during the traffic stop that resulted in his arrest. This court consolidated Brown's PRP with his direct appeal and instructed Brown's appointed counsel to assist with both matters.

ANALYSIS

I. Is Brown procedurally barred from raising Rankin in his second PRP?

¶ 15 The State contends that Brown is barred from raising his Rankin challenge to the constitutionality of his seizure because (1) he raised "similar issues" in his first PRP, and (2) he raised the issue in his direct appeal, the Court of Appeals decided against him, and he abandoned it upon appeal to this court.

¶ 16 The government alleges "RCW 10.73.140 provides strong guidance to the Court that a person is entitled to one petition absent good cause." Resp. to PRP at 12. However, RCW 10.73.140 does not bar the Supreme Court from considering successive PRPs. In re Pers. Restraint of Johnson, 131 Wash.2d 558, 563-66, 933 P.2d 1019 (1997). And the issue Brown raised pro se in his first PRP is not similar to the issue he raises in his second PRP. In his first PRP, Brown raised the issue of whether an Oregon trip permit was valid on Washington's roads. In his second PRP Brown questioned whether he was unconstitutionally seized when the officer requested identification without an articulable suspicion of criminal activity.

¶ 17 The State also cites Rule of Appellate Procedure 16.4(d) that "[n]o more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown." However, "similar relief" has been defined by this court as the same "grounds," meaning "simply a distinct legal basis for granting relief" having been determined adversely to the applicant on a prior application. In re Pers. Restraint of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986). The legal basis for granting relief if the trip permit had been valid was distinct and separate from the legal basis for granting relief if Brown was unconstitutionally seized when an officer requested identification without an articulable suspicion of criminal activity. Further, even if this court treated Brown's PRP as a request for "similar relief" under RAP 16.4(d), the "good cause" exception to that bar applies. We have held a significant, intervening change in the law, which may result from a decision by this court, is good cause. Johnson, 131 Wash.2d at 567, 933 P.2d 1019; In re Pers. Restraint of Greening, 141 Wash.2d 687, 701, 9 P.3d 206 (2000).

¶ 18 The State also claims that Brown abandoned the Rankin issue by not preserving it upon direct review. However, the only authority cited by the State is In re Personal Restraint of Lord, 123 Wash.2d 296, 303, 868 P.2d 835 (1994), and only for the proposition that "a personal restraint petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue." Id. at 303, 868 P.2d 835 (citing Taylor, 105 Wash.2d at 688, 717 P.2d 755). The case on which Lord relies undermines the State's argument. The seminal Taylor case follows the United States Supreme Court in determining that the "ends of justice" are served where "`[i]f purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law.'" Taylor, 105 Wash.2d at 688, 717 P.2d 755 (quoting Sanders v. United States, 373 U.S 1, 16-17, 83 S.Ct. 1068, 1077-1078, 10 L.Ed.2d 148 (1963)).

¶ 19 "`[W]here an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a "significant change in the law."'" In re Pers. Restraint of Grasso, 151 Wash.2d 1, 11, 84 P.3d 859 (2004) (quoting In re Pers. Restraint of Greening, 141 Wash.2d 687, 697, 9 P.3d 206 (2000)). The Court of Appeals below directly and repeatedly relied upon its fellow Court of Appeals decision in State v. Rankin, 108 Wash.App. 948, 33 P.3d 1090 (2001) to reject Brown's challenges to...