State v. Schwab

• Decision Date: 12 June 2008
• Docket Number: No. 79262-3.,79262-3.
• Citation: 185 P.3d 1151,163 Wash.2d 664
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Dale Leslie SCHWAB, Jr., Petitioner.

185 P.3d 1151

163 Wash.2d 664

STATE of Washington, Respondent, v. Dale Leslie SCHWAB, Jr., Petitioner.

No. 79262-3.

Supreme Court of Washington, En Banc.

Argued October 18, 2007.

Decided June 12, 2008.

Jason Brett Saunders, Washington Appellate Project, Seattle, WA, for Petitioner.

Snohomish County Prosecutor's Office, Seth Aaron Fine, Everett, WA, for Respondent.

BRIDGE, J.^*

¶ 1 Dale Schwab was convicted of first degree manslaughter and second degree felony murder predicated on assault and/or theft. On direct appeal, the Court of Appeals ordered that the manslaughter conviction be vacated on double jeopardy grounds. Then, pursuant to In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002) and In re Personal Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004), Schwab's second degree murder conviction was vacated. The Snohomish County Superior Court subsequently reinstated the previously vacated manslaughter conviction and resentenced Schwab for manslaughter. The Court of Appeals affirmed the reinstatement of the manslaughter conviction. Schwab now argues that a previously vacated conviction cannot be revived and that he should be released.

¶ 2 We conclude that RAP 2.5(c)(2) provides a clear mechanism under which the Court of Appeals had authority to review the vacated manslaughter conviction in light of Andress. The Court of Appeals acted well within its discretion when it determined that justice would be best served by reinstatement of Schwab's manslaughter conviction. We affirm the Court of Appeals.

I Facts and Procedural History

¶ 3 In December 1997, Schwab and his friend Aaron Beymer were homeless and living under an overpass in Everett. On the night of December 22, they encountered Ernest Sena under the overpass. The encounter was initially friendly, but then Sena smacked Beymer's dog, leading to a fight on the hillside leading down to the railroad tracks. First, Schwab and Sena fought, and then Beymer beat Sena repeatedly in the head with a stick. After Sena was rendered unconscious, Schwab and Beymer took Sena's money and then returned to the overpass to drink beer. Evidence in the record regarding Schwab's further participation conflicts; testimony recounting Schwab's statements to cellmates indicates that Schwab helped to place Sena on the railroad tracks. See State v. Schwab, 98 Wash.App. 179, 181, 988 P.2d 1045 (1999) (Schwab I). Yet according to Beymer, it was he who eventually decided to kill Sena. Beymer claims that he beat Sena in the head again with a rock and then dragged his body onto the railroad tracks, all while Schwab watched. Beymer then covered Sena with carpet remnants and other debris. Beymer and Schwab watched as a train hit Sena, severing his body. Then Schwab and Beymer left the scene to purchase beer, in part with the money that they took from Sena.

¶ 4 Beymer pleaded guilty to first degree manslaughter and agreed to testify against Schwab. The State charged Schwab with one count of first degree murder, alleging that Schwab intentionally and with premeditation caused Sena's death. The State also charged him with one count of second degree felony murder based on the predicate felonies of assault and/or theft. The prosecutor did not request a special verdict form declaring which predicate felony the jury found.

¶ 5 The jury convicted Schwab of the lesser included crime of first degree manslaughter on the first count and of second degree felony murder as charged on the second count. The trial court sentenced Schwab on both counts, 240 months for the second degree murder and 194 months for the first degree manslaughter, to run concurrently.

¶ 6 Schwab appealed, arguing that his convictions and sentences for both second degree felony murder and first degree manslaughter violated double jeopardy. He also argued that the trial court erred when it failed to give the jury an instruction on second degree manslaughter. The Court of Appeals agreed that convictions for both second degree felony murder and first degree manslaughter for a single homicide violated double jeopardy. The court affirmed the second degree felony murder conviction, but vacated the conviction and sentence for first degree manslaughter. Because it vacated the manslaughter conviction, it did not address Schwab's challenge regarding the instruction on second degree manslaughter. On remand, the trial court entered an order amending Schwab's judgment and sentence and vacating the first degree manslaughter conviction. The mandate was issued on March 13, 2000.

¶ 7 Then in 2002, this court decided Andress, 147 Wash.2d 602, 56 P.3d 981. Schwab filed a personal restraint petition arguing that his second degree murder conviction was invalid because it was based on second degree felony murder with assault as the predicate felony. The State conceded that Andress applied to Schwab's second degree murder conviction but argued that once the second degree felony murder conviction was vacated, there would no longer be a double jeopardy problem and the manslaughter conviction could then be reinstated. On January 6, 2005, the Court of Appeals granted Schwab's personal restraint petition, providing "[w]e remand this matter to the Snohomish County Superior Court for further lawful proceedings consistent with Andress and Hinton." Clerk's Papers (CP) at 24.

¶ 8 On remand, the State argued that the trial court should resentence Schwab for his previously vacated manslaughter conviction because double jeopardy no longer barred punishment for that crime. Schwab argued that he should be released from prison because both of his convictions had been invalidated. The trial judge declined to make a decision on the day of argument and asked the State to get clarification from the Court of Appeals as to what was within the trial court's power on remand.

¶ 9 On March 14, 2005, the State filed a motion to recall the mandate on the manslaughter conviction in the Court of Appeals. Then on April 14, 2005, the trial court decided that it could resentence Schwab under the manslaughter conviction. The trial court compared Schwab's situation to that presented in State v. Ward, 125 Wash.App. 138, 104 P.3d 61 (2005), concluded that the language in the Court of Appeals order authorized revival of the manslaughter conviction, and reasoned:

It seems to me I have an obligation, if I can, to exercise my authority to take any action that I'm allowed to in the interest of justice. In my view, justice is people being held accountable for what they have committed. In this case, Mr. Schwab could not have committed a murder in the second degree, felony murder. Mr. Schwab did commit, apparently, based on the jury's finding, a manslaughter. Manslaughter was taken away because, at the time that decision was made, his felony murder conviction was legitimate.

It has now been determined his felony murder conviction is not legitimate and has been vacated, leaving me in the position of believing the right thing to do, what I have been, in my view, directed by the Court of Appeals to do, and the honest and just thing to do, is to reinstate the manslaughter conviction and impose sentence thereon; and I am prepared to do so.

Report of Proceedings (RP) (Apr. 14, 2005) at 13-14. After a new sentencing hearing, the trial court sentenced Schwab to 194 months for the reinstated manslaughter conviction. Schwab appealed and the Court of Appeals affirmed the trial court's reinstatement of the manslaughter conviction and the resentencing, holding that reinstatement was not barred by double jeopardy or the law of the case doctrine. State v. Schwab, 134 Wash.App. 635, 637-38, 141 P.3d 658 (2006) (Schwab II). The Court of Appeals also concluded that it could have recalled the mandate, had it been necessary to do so. Id. at 647, 141 P.3d 658.

II Analysis

¶ 10 We review questions of law, including the interpretation of court rules, de novo. City of College Place v. Staudenmaier, 110 Wash.App. 841, 845, 43 P.3d 43 (2002). A mandate is "the written notification by the clerk of the appellate court to the trial court and to the parties of an appellate court decision terminating review." RAP 12.5(a). Generally, the Court of Appeals loses the power to change or modify a decision upon issuance of a mandate. RAP 12.2. But there are two exceptions provided under the Rules of Appellate Procedure (RAPs). Upon issuance of a mandate, the appellate court's action or decision becomes effective and binding on the parties and "governs all subsequent proceedings in the action in any court, unless otherwise directed upon recall of the mandate as provided in rule 12.9, and except as provided in rule 2.5(c)(2)." RAP 12.2 (emphasis added). RAP 12.7(d) recognizes that an appellate court "retains the power to change a decision as provided in rule 2.5(c)(2)."

¶ 11 Law of the Case: RAP 2.5(c)(2) restricts application of the law of the case doctrine. The law of the case doctrine provides that once there is an appellate court ruling, its holding must be followed in all of the subsequent stages of the same litigation. Roberson v. Perez, 156 Wash.2d 33, 41, 123 P.3d 844 (2005); Lutheran Day Care v. Snohomish County, 119 Wash.2d 91, 113, 829 P.2d 746 (1992). We have recognized that the doctrine "seeks to promote finality and efficiency in the judicial process," Roberson, 156 Wash.2d at 41, 123 P.3d 844, but RAP 2.5(c)(2) provides that if a case returns to an appellate court following a remand,

[t]he appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.

Because the rule uses the term "may," application of RAP 2.5(c)(2)'s exception to the law of the case doctrine has been characterized as discretionary, rather than mandatory. Roberson, 156 Wash.2d at 42, 123 P.3d...