State v. Carney

Decision Date16 December 2013
Docket NumberNo. 68168–1–I.,68168–1–I.
Citation314 P.3d 736,178 Wash.App. 349
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. William Hall CARNEY, Appellant.

OPINION TEXT STARTS HERE

Recognized as Unconstitutional

West's RCWA 10.73.120Nielsen Broman Koch PLLC, Attorney at Law, Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Alison Moore Bogar, King County Prosecutor's Office, Seattle, WA, for Respondent.

SCHINDLER, J.

¶ 1 William Hall Carney contends that under State v. Jones, 99 Wash.2d 735, 664 P.2d 1216 (1983), he is entitled to dismissal of the 1982 conviction of arson in the first degree, the acquittal by reason of insanity and order of civil commitment, and the 2011 order revoking his conditional release. Because Jones does not apply retroactively, we affirm the decision to dismiss Carney's collateral attack of the 1982 conviction and order of commitment, and the 2011 order revoking his conditional release.

FACTS

¶ 2 On March 31, 1982, police responded to a report of a disturbance at the apartment of William Hall Carney. Carney had barricaded himself inside and was fanning the flames of a fire in the apartment. Fire investigators concluded the fire was deliberately set by using a match to ignite combustible material in the apartment.

¶ 3 On April 1, 1982, the State charged Carney with arson in the first degree. On April 5, the court entered a 15–day order of commitment to the Department of Social and Health Services (DSHS) at Western State Hospital (WSH) to evaluate Carney and determine whether he was competent to stand trial. On April 23, a WSH psychologist reported Carney was “psychotic,” “responding to auditory hallucinations,” and not competent to stand trial. The court granted the request for a 90–day extension of the commitment.

¶ 4 On May 19, the WSH psychiatrist filed a report with the court stating that Carney had “slowly improved” with treatment and was competent to stand trial. The psychiatrist states Carney's paranoid schizophrenia is “now in fair remission.”

[W]ith treatment Mr. Carney's condition has slowly improved and he is now more cooperative, coherent and rational. He has a lengthy history of psychiatric treatment at numerous mental facilities. Our diagnostic impression continues to be Schizophrenia, chronic, paranoid type now in fair remission.

It is our opinion that Mr. Carney has regained competency to stand trial. He now fully understands the nature of the proceedings against him and is able to assist his attorney in preparing a defense.

¶ 5 On June 4, the court found Carney competent to stand trial. Following arraignment on the charge of arson in the first degree, Carney entered a plea of not guilty.

¶ 6 At the beginning of the jury trial on July 2, the State asked the court to enter a plea of not guilty by reason of insanity on behalf of Carney. Carney did not object. The court granted the motion.

¶ 7 The State called a number of witnesses to testify at trial, including police officers and two psychiatrists. At the conclusion of the State's case, the defense moved to withdraw the plea of not guilty by reason of insanity. The court denied the motion. Carney testified in his defense.

¶ 8 In answer to a special verdict form, the jury found Carney committed the crime of arson in the first degree but found him “not guilty because of insanity existing at the time of the act charged.” The jury also found Carney was “a substantial danger to other persons” and “present[ed] a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.”

¶ 9 At the sentencing on July 9, the court entered an order of acquittal by reason of insanity and an order of commitment. The findings state that when Carney committed the crime of arson in the first degree, he “was affected by mental disease or defect to such an extent that he was unable to perceive the nature and quality of the act with which he is charged and unable to tell right from wrong.” The findings also state that Carney “is a substantial danger to other persons” and presented a substantial likelihood of committing acts jeopardizing public safety. The order of commitment remands Carney “to the custody of [DSHS] for hospitalization at such place as shall be designated for the care and treatment of the criminally insane.”

¶ 10 The court advised Carney that he had the right to appeal the order of acquittal by reason of insanity and order of commitment. Carney signed and acknowledged receipt of the “Certificate of Compliance with Rule 7.1(b) CrR Rule for Superior Court.” The certificate states that unless a written notice of appeal is filed within 30 days of entry of the order of acquittal and commitment, “the right of appeal is irrevocably waived.” Carney did not file an appeal.

¶ 11 On November 17, 1987, the court entered an order of conditional release of Carney to the community. His conditional release was subject to a number of conditions. While on conditional release, Carney was hospitalized a number of times “for inpatient treatment following episodes of psychiatric decompensation.” 1

¶ 12 In June 2005, Carney was hospitalized again after he “stopped taking his medication and his behavior deteriorated rapidly.” Following inpatient treatment, WSH discharged Carney on September 11, 2007 to the Maple Creek Residential Facility. The court entered an order modifying the conditions of release. The order required Carney to follow the treatment plan, attend therapy sessions, remain in remission, and maintain good conduct in the community.

¶ 13 In March 2011, WSH submitted a report to the court addressing adherence to the terms and conditions of conditional release. The report states that the Maple Creek Residential Facility continued to provide the necessary level of care and Carney appeared to be “at his baseline level of stability.” However, the report also describes concerns expressed by Maple Creek Residential Facility staff about Carney's behavior and hygiene. According to staff, Carney believed his food was being poisoned, and insisted on “taking many books, papers and reading materials with him wherever he goes, fearing they will be stolen’ if left in his room.”

¶ 14 On June 3, 2011, the Secret Service investigated telephone calls Carney made from the Maple Creek Residential Facility to the White House. Carney made six telephone calls to the White House to schedule a meeting with the President of the United States. When White House staff refused to schedule a meeting, Carney said that he was putting the staff person on his “list.”

¶ 15 On June 15, the Maple Creek Residential Facility provided a 30–day eviction notice to Carney and DSHS. On July 11, Carney met with his community program therapist and the community program director. Carney “presented as disheveled, poor hygiene, food and stains on his clothes, odor coming from his body, and his hair was not groomed.” Carney insisted he “does not have to move out of his current residence although an eviction notice was given to him ..., and believes that the director of his current residence is against him.” In the report to the court, the therapist and the community program manager state that Carney was “showing signs of decompensation” and “appears to have difficulty holding a reality-based conversation at this time.”

¶ 16 On July 27, the WSH Risk Review Board recommended revocation of Carney's conditional release. The report states Carney suffers from “Schizoaffective Disorder” and moderate to severe chronic mental illness. The report identifies a number of risk factors, including Carney's refusal to take his medication, deteriorating and threatening behavior, and paranoia. The State filed a motion to revoke the order of conditional release.

¶ 17 The court scheduled a revocation hearing for September 9. Carney filed a motion to dismiss. Carney argued the court did not have jurisdiction to enter an order revoking the conditional release. Carney relied on State v. Jones, 99 Wash.2d 735, 664 P.2d 1216 (1983), to argue the 1982 conviction and verdict of not guilty by reason of insanity violated his constitutional rights.

¶ 18 The court denied the motion to dismiss. The court ruled Carney's collateral attack of his 1982 conviction, acquittal by reason of insanity, and order of commitment was time barred. The court found Carney violated the conditions of release, entered an order revoking conditional release, and remanded Carney to DSHS to inpatient treatment. Carney appeals.

ANALYSIS
Time Bar

¶ 19 Carney contends the court erred in ruling his collateral attack was time barred because he did not receive notice of the statutory one-year time limit. Whether the statutory one-year time bar applies is a question of law that we review de novo. State v. Schwab. 141 Wash.App. 85, 91, 167 P.3d 1225 (2007).

¶ 20 On July 6, 1982, the jury found Carney committed the crime of arson in the first degree but was not guilty by reason of insanity. The court entered the order of acquittal by reason of insanity and order of commitment on July 9, 1982.

¶ 21 In 1989, the legislature enacted RCW 10.73.090. Laws of 1989, ch. 395, § 1. RCW 10.73.090 imposes a one-year time bar on a collateral attack. Under RCW 10.73.090, a defendant must file a collateral attack within one year of the judgment and sentence becoming final, and the court must advise the defendant of the one-year time bar at sentencing. RCW 10.73.110.

¶ 22 Under RCW 10.73.130, the one-year time bar applies only to a collateral attack filed more than one year after July 23, 1989. RCW 10.73.120 requires the Department of Corrections to “attempt to advise” those who, on July 23, 1989, were “serving a term of incarceration, probation, parole, or community supervision,” of the new statutory time limit to file a collateral attack.

¶ 23 In In re Pers. Restraint of...

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