State v. Schwab

• Decision Date: 21 August 2006
• Docket Number: No. 56206-1-I.,No. 43255-9-I.,56206-1-I.,43255-9-I.
• Citation: 134 Wn. App. 635,141 P.3d 658
• Parties: STATE of Washington, Respondent, v. Dale Leslie SCHWAB, Jr., Appellant.
• Court: Washington Court of Appeals

141 P.3d 658

134 Wn. App. 635

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

No. 56206-1-I.

No. 43255-9-I.

Court of Appeals of Washington, Division 1.

August 21, 2006.

Nancy P. Collins, Jason Brett Saunders, Washington Appellate Project, Seattle, WA, for Appellant.

Seth Aaron Fine, Attorney at Law, Snohomish Co. Pros. Office., Everett, WA, for Respondent.

AGID, J.

¶ 1 In 1997, Dale Schwab was convicted of first degree manslaughter and second degree felony murder arising out of the same homicide. In 2000, we vacated his manslaughter conviction on double jeopardy grounds. In 2005, we granted Schwab's personal restraint petition vacating his felony murder conviction in light of PRP of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002) and PRP of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004), which held that felony murder charges could not be based on assault as the predicate crime. On remand, the trial court entered an order reinstating his original manslaughter conviction.

¶ 2 Schwab challenges that order on the ground that the law of the case doctrine and double jeopardy prohibit the trial court from reinstating a previously-vacated conviction. He asserts that the trial court lacked authority to reinstate a conviction which has been vacated by an appellate court. He also asks the court to deny the State's Motion to Recall Mandate we issued in 2000 because the motion is untimely, the original mandate was not in error at the time the decision was made, and relitigating these issues contravenes the strong public policy favoring finality of judgments.

¶ 3 When we remanded Schwab's PRP for "further lawful proceedings consistent with Andress and Hinton," we authorized the trial court to act in any lawful manner necessary to resolve any remaining issues in Schwab's case on remand. Schwab's manslaughter and felony murder convictions were inextricably linked. Thus, when his felony murder conviction became invalid after Andress, our direction on remand gave the trial court authority to reinstate Schwab's manslaughter conviction.

¶ 4 Accordingly, we need not recall the mandate issued in 2000. But if it were necessary, we hold that RAP 12.9(b) permits us to do so to correct the inadvertent mistake that arose after the decisions in Andress and Hinton, and RAP 12.3(d) empowers us to change our earlier double jeopardy decision under RAP 2.5(c)(2) when the interests of justice so require.

¶ 5 We affirm the trial court's order reinstating Schwab's manslaughter conviction.

FACTS

1997 Conviction

¶ 6 On December 22, 1997, Dale Schwab and Aaron Beymer assaulted Ernest Sena, took the money from Sena's pockets, and placed his unconscious body on nearby railroad tracks covered with carpet and debris.¹ Minutes later, a train came through and severed Sena's body.² Schwab was charged with first degree premeditated murder and second degree felony murder predicated on second degree assault and/or first degree theft.³ At trial, the jury was instructed on first degree manslaughter as a lesser included offense of first degree murder. The jury hung on the first degree murder charge, but found Schwab guilty of second degree felony murder and first degree manslaughter as lesser included offenses.⁴ The court sentenced him to concurrent standard range sentences on both convictions.⁵

1999 Direct Appeal

¶ 7 In State v. Schwab, we held that Schwab's convictions for both second degree felony murder and first degree manslaughter violated double jeopardy because the legislature did not intend to provide multiple punishments for a single homicide.⁶ Accordingly, we vacated Schwab's conviction for first degree manslaughter because it was the lesser of the two convictions.⁷ On March 13, 2000, this court issued a mandate to the Snohomish County Superior Court to conduct proceedings in accordance with its decision in State v. Schwab. On April 13, 2000, the Snohomish Superior Court entered an Order Amending Judgment and Sentence vacating the first degree manslaughter conviction.

2003 PRP

¶ 8 In 2002, the Washington Supreme Court decided In re Personal Restraint of Andress, which held that second degree felony murder predicated on assault, as defined in former RCW 9A.36.021(1)(a), was not a crime.⁸ On May 9, 2003, Schwab filed a Motion to Modify and Correct Judgment and Sentence in Snohomish Superior Court arguing that the court must vacate his second degree felony murder conviction after Andress. The Superior Court transferred the motion to the Court of Appeals to consider as a personal restraint petition.

¶ 9 In 2004, the Washington Supreme Court decided In re Personal Restraint of Hinton, holding that Andress applied retroactively.⁹ On January 6, 2005, this Court granted Schwab's PRP, remanding his case to the Snohomish County Superior Court "for further lawful proceedings consistent with Andress and Hinton."¹⁰

2005 Remand Proceedings

¶ 10 On February 24, 2005, the Snohomish County Superior Court again heard Schwab's case on remand. At this hearing, the State asked the court to re-impose sentence for first degree manslaughter, arguing that we had authorized it on remand to act in any "lawful" manner consistent with Andress and Hinton. At the hearing, the court rejected the State's reliance on State v. Ward as support for its motion to reinstate Schwab's manslaughter conviction, ordered the prosecutor to obtain direction from the Court of Appeals, and scheduled a hearing.

¶ 11 On April 14, the State informed the trial court it had filed a motion to recall the mandate¹¹ we issued in 2000 after ruling that Schwab's first degree manslaughter conviction be vacated on double jeopardy grounds. The State argued the court had authority to reinstate Schwab's manslaughter conviction because our reasoning in State v. Schwab no longer applied now that Schwab's second degree felony murder conviction had been vacated.¹² The Superior Court reinstated Schwab's manslaughter conviction.¹³ In its oral ruling, the court stated:

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.

¶ 12 On April 29, 2005, the Snohomish County Superior Court sentenced Schwab to 194 months, the high end of the standard sentencing range for first degree manslaughter. On June 27, 2005, this court entered an order consolidating Schwab's appeal of his manslaughter judgment and sentence with the State's Motion to Recall Mandate.¹⁴ Our review is de novo.¹⁵

DISCUSSION

Reinstatement of Vacated Conviction

¶ 13 Schwab argues double jeopardy and the law of the case doctrine prohibit a court from reinstating his vacated conviction and prevent a lower court from reexamining issues which have been decided by a reviewing court. He also challenges the authority on which the State relies on the ground that the cases do not involve a trial court's decision to reinstate a conviction an appellate court has previously vacated.

¶ 14 The State argues that reinstating Schwab's manslaughter conviction simply restored him to the same position in which he would have been had no error occurred in the first place. It asserts double jeopardy merely protected Schwab from multiple punishments arising out of the same crime, but that the doctrine does not prohibit the court from reinstating his manslaughter conviction because the jury's guilty verdict on that lesser included crime was always valid.

¶ 15 The State relies primarily on three cases to support its position, State v. Ward,¹⁶ a Washington case, and two out of state cases, Byrd v. United States¹⁷ and Taflinger v. Indiana.¹⁸ In Ward, the defendant was found guilty of both second degree felony murder predicated on assault and first degree manslaughter.¹⁹ The court entered judgment and sentence on the second degree felony murder conviction and denied Ward's motion to vacate the first degree manslaughter conviction.²⁰ On appeal, Ward sought to have the felony murder conviction vacated in conformance with Andress and argued that his manslaughter conviction could not be revived.²¹ Because the superior court did not enter judgment on the manslaughter charge, this court held that "[e]ntering judgment and sentence [for manslaughter] against him now is not a violation of his constitutional rights. . . . [I]nstead of granting a windfall, we return Ward to the position in which he would have been if no error had occurred."²² It then remanded the case to the trial court to do so.²³

¶ 16 In Byrd, the Court of Appeals for the District of Columbia authorized the lower court to decide which conviction to vacate on remand to cure a multiple punishment problem.²⁴ In a footnote, the court stated the trial court "should consider favorably a government motion to reinstate the vacated murder conviction" if the unvacated conviction were later successfully collaterally attacked.²⁵ In Taflinger, the trial court reinstated a conviction it had dismissed on double jeopardy grounds before sentencing.²⁶ The appellate court affirmed, holding that reinstating the jury's verdict did not violate double jeopardy. The vacated conviction was an existing valid verdict which made a second trial for the crime unnecessary.²⁷ Collectively, these...