Matter of Personal Restraint of Grisby , 121 Wash. 2d 419 ( 1993 )

Utter, J.

(concurring in part, dissenting in part) — I agree with the majority that prejudice has not been shown by petitioner Grisby. I disagree, however, with the majority's disposition of the substantive issue. The majority fails to give effect to a clear line of federal cases.

The United States Court of Appeals for the Ninth Circuit has held the sentence of life imprisonment without the possibility of parole under the 1977 aggravated murder-death penalty statute unconstitutional. It has ordered defendants who, after a jury trial, were sentenced to life imprisonment without parole to be resentenced to life imprisonment with the possibility of parole. See Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir. 1989), cert. denied sub nom. Robtoy v. Callahan, 494 U.S. 1031, 108 L. Ed. 2d 619, 110 S. Ct. 1483 (1990); Norman v. Ducharme, 871 F.2d 1483 (9th Cir. 1989), cert. denied, 494 U.S. 1031, 108 L. Ed. 2d 619, 110 S. Ct. 1483 (1990). This court has approved that line of cases. See In re Moore, 116 Wn.2d 30, 37, 803 P.2d 300 (1991). In my view, we are bound by this case law interpreting the death penalty statutes, former RCW 10.94.010-.900; former RCW 9A.32.045, .046, .047 (repealed 1981).¹⁶ Grisby could not have received the sentence of life imprisonment without the possibility of parole had he decided to plead guilty. The statute therefore penalized the exercise of the constitutional right to a jury trial. Compare former RCW 9A.32.040(2) with former RCW 9A.32.040(3). See Robtoy v. Kincheloe, supra; Norman v. Ducharme, supra; Marzano v. Kincheloe, 915 F.2d 549 (9th Cir. 1990).

I would reverse the Court of Appeals, grant the petition, and remand to the trial court with instructions to resentence Grisby to life imprisonment with the possibility of parole.

Johnson, J., concurs with Utter, J.

16 The statute in question, Washington’s former death penalty statute, was enacted in 1977. Laws of 1977, 1st Ex. Sess., ch. 206. Due to constitutional deficiencies, the death penalty statute was rewritten and reenacted in 1981. See Laws of 1981, ch. 138. The current aggravated murder-death penalty statute is not challenged in this case.