State v. Evans

Decision Date16 June 2005
Docket Number No. 74851-9, No. 75766-6.
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Michael R. EVANS, Petitioner. In re the Matter of the Personal Restraint of Shawn Swenson, Petitioner.

Linda J. King, Tacoma, David Zuckerman, Seattle, for Petitioner.

Kathleen Proctor, Donna Yumiko Masumoto, Ann Marie Summers, Pierce County Prosecuting Atty. Ofc., Tacoma, Deborah A. Dwyer, Ann Marie Summers, King Co. Pros. Ofc./Appellate Unit, Seattle, for Respondent.

James Elliot Lobsenz, Carney Badley Spellman, Rita Joan Griffith, Sheryl Gordon McCloud, Seattle, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).


¶ 1 After Apprendi, every fact (other than the fact of a prior conviction) that increases the defendant's sentence beyond the statutory maximum may be used only if it was either proved beyond a reasonable doubt to the trier of fact at trial or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (citing Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). In Blakely, the Supreme Court clarified that the "statutory maximum" did not refer to the maximum sentence authorized by the legislature for the crime (as almost every court considering the issue had concluded). Instead "statutory maximum" meant the maximum sentence a trial judge was authorized to give without finding additional facts, in the case of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, the top of the standard sentencing range. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403 (2004). ¶ 2 Prior to Blakely, judges in Washington State could sentence offenders outside of the standard range under the exceptional sentence provisions of the SRA, RCW 9.94A.530 and RCW 9.94A.535. This means that there are offenders currently serving sentences that, if issued today, would be the result of an unconstitutional sentencing procedure. We must decide whether these offenders are entitled to the benefit of Blakely. Michael Evan's conviction was final before both Apprendi and Blakely. Shawn Swenson's conviction was final after Apprendi but before Blakely. Together they offer us the opportunity to address several of the issues surrounding the retroactivity of Blakely.

¶ 3 We conclude that neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced. Accordingly, Evans and Swenson are not entitled to be re-sentenced. However, we conclude that the erroneous accomplice liability instruction used in Swenson's case, coupled with the prosecutor's arguments, caused actual and substantial prejudice to his constitutional rights. Accordingly, we vacate his conviction and remand for further proceedings.


¶ 4 EVANS. Late one night, Michael R. Evans repeatedly entreated a woman working at a convenience store to help him jump start his car. Once she left the comparative safety of the store, Evans grabbed her from behind, held a knife to her throat, forced her into a stolen car, bound her hands and feet, and drove her to Portland, Oregon. Five hours after her ordeal began, he raped her. Evans was convicted by a Pierce County jury of first degree rape.

¶ 5 Evan's standard range sentence for the crime was 149-198 months, plus a 24 month deadly weapon enhancement. The trial court additionally found Evans acted with deliberate cruelty and excessive violence and gave him an exceptional sentence of 360 months. The trial court was affirmed on review, and the conviction became final in 1991. After Apprendi was announced, Evans sought collateral relief on the grounds that his sentence was clearly unconstitutional because the trial judge based it on facts that were not found by a jury beyond a reasonable doubt. The courts below denied relief, and we granted review to decide whether Blakely and/or Apprendi apply retroactively. State v. Evans, 152 Wash.2d 1011, 99 P.3d 895 (2004).

¶ 6 SWENSON. Shawn D. Swenson was convicted of first degree felony murder in the 1995 killing of David Loucks. State v. Swenson, 104 Wash.App. 744, 747, 9 P.3d 933 (2000). Swenson's conviction became final before Blakely was announced. He already had a timely personal restraint petition pending, largely challenging the erroneous accomplice liability instruction used in his case. He also argued his sentence was illegal based on Apprendi because the trial judge, instead of the jury, found the facts that led to his exceptional sentence. While Swenson's petition for collateral relief was under consideration, the United States Supreme Court announced Blakely. We granted a motion to transfer this case from the Court of Appeals primarily to decide whether Blakely applied retroactively to cases final after Apprendi but before Blakely.


¶ 7 Our first task is to determine whether Apprendi or Blakely applies retroactively to cases already final when they are announced. The law favors finality of judgments, and courts will not routinely apply "new" decisions of law to cases that are already final. In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 329, 823 P.2d 492 (1992); cf. State v. Hanson, 151 Wash.2d 783, 790, 91 P.3d 888 (2004)

. Generally, we have followed the lead of the United States Supreme Court when deciding whether to give retroactive application to newly articulated principles of law. See In re Pers. Restraint of Markel, 154 Wash.2d 262, 268, 111 P.3d 249 (2005) (citing In re Pers. Restraint of Sauve, 103 Wash.2d 322, 328, 692 P.2d 818 (1985)).

¶ 8 Under this federal common law retroactivity analysis:

1. A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break from the past.
2. A new rule will not be given retroactive application to cases on collateral review except where either: (a) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe,[1] or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty.

St. Pierre, 118 Wash.2d at 326, 823 P.2d 492 (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) and Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (O'Connor, J., opinion)).

¶ 9 "New" cases are those that "break[ ] new ground or impose[] a new obligation on the States or the Federal government [or] ... if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. 1060 (citations omitted). If before the opinion is announced, reasonable jurists could disagree on the rule of law, the opinion is new. Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004). We have no trouble concluding that Apprendi announced a new rule of law. Reasonable minds could, and did, differ on the constitutionality of determinate sentencing schemes. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 84-85, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)

(upholding statute that imposed mandatory minimum sentence on defendants sentencing judge found were visibly armed). See generally Simpson v. United States, 376 F.3d 679, 681 (7th Cir.2004) (collecting cases finding Apprendi not retroactive).

¶ 10 A new procedural rule will be applied retroactively if it is "implicit in the concept of ordered liberty," implicating the fundamental fairness of the trial. St. Pierre, 118 Wash.2d at 326, 823 P.2d 492 (citing Mackey v. United States, 401 U.S. 667, 692-93, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)). "A rule that qualifies under this exception must not only improve accuracy, but also "`alter our understanding of the bedrock procedural elements'" essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060 (O'Connor, J., opinion) and Mackey, 401 U.S. at 693, 91 S.Ct. 1160 (Harlan, J., concurring)). It is not enough for the right to be important; it must also play a vital instrumental role in securing a fair trial.

¶ 11 The right of trial by jury is not merely important, it is a fundamental right secured by the United States Constitution. It finds its roots in the core principles upon which this nation was founded. U.S. CONST. amend. VI; see also generally Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 780 P.2d 260 (1989)

. As Justice Scalia noted:

Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.

Blakely, 124 S. Ct at 2538-39. The brilliance of our constitution is in its multiplicity of checks and balances. The jury trial is not only the right of the accused it also further assures governance by the people. The jury system permits the people to participate in and provide another check on potential abuses of courts and government. But how the jury right is enjoyed is largely a question of procedural law, and reasonable changes may be made so long as these changes do not trench on the core purposes and protections of the constitutionally ensured right. See Blakely, 124 S.Ct. at 2538-39


¶ 12 At common law, after a trial of the facts on the merits by a jury, sentencing was largely up to the sound discretion of the trial judge. See Blakely, 124...

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