State v. Hanson, 74079-8.

• Citation: 151 Wash.2d 783,91 P.3d 888
• Decision Date: 17 June 2004
• Docket Number: No. 74079-8.,74079-8.
• Parties: STATE of Washington, Respondent, v. Chayce HANSON, Appellant.
• Court: United States State Supreme Court of Washington

91 P.3d 888

151 Wash.2d 783

STATE of Washington, Respondent, v. Chayce HANSON, Appellant.

No. 74079-8.

Supreme Court of Washington, En Banc.

Argued October 28, 2003.

Decided June 17, 2004.

Suzanne Lee Elliott, Seattle, WA, for Appellant.

Norm Maleng, King County Prosecutor, James Whisman, Deputy, Stephen Paul Hobbs, Deputy, Seattle, WA, for Respondent.

IRELAND, J.

Chayce Hanson appealed his conviction for second degree felony murder predicated on assault for the death of 34 month old Nenah Walters. This court accepted direct review.

The primary issue in this case is whether Hanson's conviction for second degree felony murder should be vacated in light of this court's decision in In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002). In Andress this court held that a conviction for second degree felony murder could not be based upon a predicate crime of assault. We hold that Andress applies prospectively to include cases not final under RAP 12.7. Hanson's case is not yet final; therefore, we vacate his sentence and remand for further proceedings in accord with this decision.

FACTS

The State charged Hanson with the crime of second degree felony murder predicated on second degree assault committed between July 18, 2000 and July 19, 2000 for the death of 34 month old Nenah Walters and assault of a child in the third degree for acts committed on July 17, 2000. Clerk's Papers (CP) 62-63. A jury found Hanson guilty of second degree felony murder but not guilty of assault of a child in the third degree. CP at 128, 153-59. The sentencing court imposed a 300 month exceptional sentence.

Hanson appealed to the Court of Appeals. The State moved to transfer Hanson's appeal from the Court of Appeals to the Supreme Court. The commissioner granted the State's motion and the matter is now before this court.

A. STANDARD OF REVIEW

The standard of review for an issue involving questions of law is de novo. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999); Bishop v. Miche, 137 Wash.2d 518, 523, 973 P.2d 465 (1999).

B. ISSUE

Should the Andress decision be applied prospectively to a case which is not yet final?

C. ANALYSIS

The State asks the court to overrule Andress. We declined reconsideration and again decline the State's invitation to overrule Andress.

In Andress, we held that assault could not serve as a predicate to second degree felony murder. Both parties argue for prospective application of Andress but differ on whether Hanson is entitled to the benefit of the Andress decision. The State argues that Andress should apply "purely" prospectively, that is only to trials which have yet to begin or are still at trial where no verdict has been rendered, and not to cases where a conviction has been adjudicated.

Hanson argues that under In re Personal Restraint of St. Pierre, 118 Wash.2d 321, 823 P.2d 492 (1992), prospective application includes those cases not yet final including cases on appeal, and claims St. Pierre requires a vacation of Hanson's second degree murder conviction predicated upon assault.

The State relies on this court's decisions in other areas of law, public policy arguments, and decisions from other states in support of "purely" prospective application. The State submits that State ex rel. Washington State Finance Committee v. Martin, 62 Wash.2d 645, 384 P.2d 833 (1963) supports a prospective application of Andress. The Martin court opined:

If rights have vested under a faulty rule, or a constitution misinterpreted, or a statute misconstrued, or where, as here, subsequent events demonstrate a ruling to be in error, prospective overruling becomes a logical and integral part of stare decisis by enabling the courts to right a wrong without doing more injustice than is sought to be corrected.... The courts can act to do which ought to be done, free from the fear that the law itself is being undone.

Martin, 62 Wash.2d at 666, 384 P.2d 833.

The State asks this court to apply Andress "purely" prospectively, that is to cases not yet adjudicated to verdict, rather than adhering to the St. Pierre rule. The State offers several public policy arguments in support of applying Andress "purely" prospectively. First, that parties and lower courts reasonably relied on the court's interpretation of RCW 9A.32.030(1)(c) that assault could be a predicate to felony murder and should not be penalized for such a justifiable reliance. However, the State does not furnish authority for balancing the risk of uncertainty in favor of the State rather than the defendant.

Second, the State argues that "purely" prospective application of the Andress rule would allow citizens both notice and an opportunity to conform their conduct to law. The presumption against retroactive application "`"is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic."'" State v. Cruz, 139 Wash.2d 186, 190, 985 P.2d 384 (1999) (quoting Lynce v. Mathis, 519 U.S. 433, 439, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997)). The prohibition against retroactive law concerns situations that burden the citizen. See generally U.S. Const. art. I, §§ 9-10 (prohibiting both Congress and States from passing ex post facto laws); In re Pers. Restraint of Stanphill, 134 Wash.2d 165, 949 P.2d 365 (1998) (ex post facto laws disadvantage citizens because they impose punishment for an act which was not punishable when committed, or increased the quantum after the crime was committed). Andress' holding that assault cannot serve as a predicate offense to second degree felony murder does not set out a new rule proscribing a certain activity nor does it increase punishment after the crime was committed. The State's second public policy argument does not weigh in favor of "purely" prospective application of Andress.

Third, the State contends that "purely" prospective application is consistent with stare decisis because the court's prior felony decisions holding that assault could serve as predicate to second degree felony murder were no less definitive and binding than the rule of law announced in Andress. See State v. Crane, 116 Wash.2d 315, 804 P.2d 10 (1991)

; State v. Wanrow, 91 Wash.2d 301, 588 P.2d 1320 (1978); State v. Thompson, 88 Wash.2d 13, 558 P.2d 202 (1977); State v. Tamalini, 134 Wash.2d 725, 953 P.2d 450 (1998). While it is true that those cases involved a conviction for murder predicated on assault, none of them dealt with the issue in Andress. Wanrow and Thompson involved a prior version of the second degree felony murder statute.¹ In Crane, we declined to address the issue of whether assault could serve as a predicate to second degree felony murder. Crane, 116 Wash.2d at 333,

804 P.2d 10. Tamalini, did not address whether an assault could serve as a predicate to felony murder.²

Further, the State cites to cases decided by the highest courts in California, Kansas, New Mexico, and Michigan to support "purely" prospective application. The California and Kansas cases applied a rule prospectively to include cases where appeal as a matter of right had not yet been exhausted and do not support the rule that the State seeks. The New Mexico and Michigan cases support the rule that the State requests.

California applied its holding that a person could not be convicted of felony murder when the underlying offense charged was felony child abuse only prospectively to cases not yet final. La Rue v. McCarthy, 833 F.2d 140 (9th Cir.1987). La Rue was convicted of second degree felony murder in 1980 with felony child abuse as the predicate offense. The California Court of Appeals affirmed La Rue's conviction in 1981. Id. at 143. Three years later, the California Supreme Court in People v. Smith, 35 Cal.3d 798, 801, 678 P.2d 886, 201 Cal.Rptr. 311 (1984), held that a person could not be convicted of second degree felony murder predicated upon the crime of felony child abuse. La Rue filed petitions for a writ of habeas corpus seeking to collaterally attack his conviction under Smith. The California Court of Appeals and California Supreme Court denied the petition. La Rue then filed a habeas corpus petition with the federal district court which was denied and affirmed by the Ninth Circuit. La Rue, 833 F.2d 140.

In Easterwood v. Kansas, 273 Kan. 361, 44 P.3d 1209 (2002), Easterwood pleaded guilty to felony murder, aggravated robbery, and assault. Easterwood filed a postconviction habeas corpus petition with the trial court, which was denied. Easterwood appealed denial of his collateral attack to the Kansas Supreme Court. While Easterwood's collateral attack appeal was pending, the Kansas Supreme court ruled in State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001) that a defendant could not be convicted of felony murder for the killing of his "co-felon," not caused by the defendant's acts. Easterwood amended his collateral attack arguing that Sophophone should be applied retroactively to vacate his felony murder conviction. However, the court applied its new rule prospectively to cases not yet final.

In the third case cited by the State, New Mexico interpreted negligence under its child abuse statute to require criminal negligence and overruled previous precedent that allowed convictions based on simple negligence. The New Mexico court applied its decision prospectively to include cases that have not reached a verdict. Santillanes v. New Mexico, 115 N.M. 215, 849 P.2d 358 (1993).

In People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980), Aaron was convicted of first degree felony murder as a result of a homicide committed during the perpetration of an armed robbery. The Michigan Supreme Court concluded that "Michigan has no statutory felony-murder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony." Id. at 733, 299 N.W.2d 304. The court reversed Aaron's conviction stating that the decision applied prospectively to trials in...