In re the Personal Restraint of Domingo , 155 Wash. 2d 356 ( 2005 )

¶1 J.M. Johnson, J.

We have previously held that our state’s complicity statute, RCW 9A.08.020, requires that a defendant charged as an accomplice must have general knowledge of the charged crime in order to be convicted of that crime. See State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000). Petitioners Jerry Domingo, Kiet Hoang Le, and Bob Kaseweter each claim that they were convicted as an accomplice to various crimes in violation of that standard. Because they had exhausted their direct appeals, they filed personal restraint petitions.

¶2 The threshold question here is whether these petitions are timely. The Court of Appeals dismissed the petitions as time barred under RCW 10.73.090. Petitioners argue that their petitions are not subject to the one-year time bar of RCW 10.73.090 because their claims are based on a “significant change in the law,” an exception to the one-year limitation under RCW 10.73.100(6). Specifically, petitioners claim that Roberts and Cronin significantly changed the law of complicity, or accomplice liability, as previously set forth in State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984), and its progeny. We disagree with petitioners and affirm the Court of Appeals.

I. Facts and Procedural History

A. The Convictions

1. Jerry Domingo

¶3 Early on the morning of May 31,1994, Jerry Domingo led his gang in an armed robbery of a Vancouver convenience store. When the gang arrived at the store, Burton Morton was using a pay phone in front of the store and saw the perpetrators’ faces as they had not yet donned their masks. During the course of the robbery, one of Domingo’s associates shot Morton multiple times but failed to kill him. Other witnesses present who did not see the perpetrators’ faces were assaulted but not shot.

¶4 A jury convicted Domingo of attempted murder in the first degree, robbery in the first degree, and assault in the first degree. Domingo appealed his convictions and the Court of Appeals affirmed in an unpublished opinion. The Court of Appeals issued its mandate on December 13, 1996.

2. Kiet Hoang Le

¶5 Early on the morning of October 5, 1995, Kiet Hoang Le and three associates broke into the home of JingXiu Zhu and Phuong Le.¹ The intruders found Jing and Phuong sleeping. They held the couple at gunpoint, restrained their hands and feet with duct tape, and threatened to kill the couple if they did not reveal the location of their valuables. The intruders took many items of property, then placed tape over the eyes and mouths of the victims and left. Shortly thereafter, Phuong freed herself and called the police. Le and his associates were arrested in a car later that day. Police found various items associated with the crimes in the car. They also found money and jewelry in Le’s pockets.

|6 A jury convicted Le of two counts of kidnapping in the first degree, two counts of robbery in the first degree, burglary in the first degree, possession of stolen property in the first degree, and possession of stolen property in the third degree. Le appealed his convictions and the Court of Appeals affirmed in an unpublished opinion. Le then petitioned this court for review. We earlier granted review on an issue unrelated to the instant action and remanded for resentencing. The superior court entered an amended judgment and sentence on October 29, 1998.

3. Bob Kaseweter

¶7 Early on the morning of April 23, 1992, Andrew Kington and his girl friend Roberta Ogle were awakened by a knock on the door of Kington’s apartment and alerted that someone was pushing Ogle’s car out of the apartment parking lot. Kington and Ogle walked out to the car which had been moved into the street. There they saw a man later identified as James Shirk. After reaching her car, Ogle also saw Donovan Shirk, James Shirk’s brother, walking towards them from the other side of the street. Ogle had earlier worked with Donovan Shirk and Bob Kaseweter, her recently estranged ex-boyfriend. Ogle later testified that Kaseweter had taken her car keys after their breakup.

¶8 Donovan pulled out a gun and told Kington and Ogle to get in the car. Ogle got into the driver’s seat and found the key in the ignition. After Kington got in, Ogle started the car and began to drive away. Donovan shot at the car several times, hitting Kington once in the hand. Soon thereafter, the police arrived and the Shirk brothers fled.

¶9 A jury convicted Donovan Shirk of two counts of first degree assault, two counts of first degree kidnapping, and taking a motor vehicle without permission. While awaiting sentencing, Donovan attempted to escape. After his arrest on the escape charge, he admitted for the first time that his brother and Kaseweter were involved in the incident of April 23. James Shirk subsequently made a plea deal with the prosecutor. In exchange for offering testimony against Kaseweter and pleading guilty to second degree kidnapping and second degree assault, James Shirk received a sentence of nine months in the county jail.²

¶10 A jury convicted Kaseweter of conspiracy to commit kidnapping in the first degree and as accomplice to two counts of kidnapping in the first degree, two counts of assault in the first degree, and taking a motor vehicle without the owner’s permission. Kaseweter appealed his convictions and the Court of Appeals affirmed in an unpublished opinion. The Court of Appeals issued its mandate on May 22, 1996.

B. The Instant Actions

¶11 Petitioners filed their personal restraint petitions with Division Two of the Court of Appeals on March 7, 2003 (Le), October 17, 2003 (Domingo), and February 9, 2004 (Kaseweter) respectively. Each petitioner claims that one or more of his convictions is invalid under Roberts and Cronin, and that his petition is not subject to the one-year time bar of RCW 10.73.090 because it is based on a “significant change in the law” under RCW 10.73.100(6). Kaseweter also claims that he possesses “[n]ewly discovered evidence” that exonerates him and exempts his petition from RCW 10.73.090 under RCW 10.73.100(1).

f 12 On July 26, 2004, the chief judge issued an order dismissing Domingo’s petition as untimely under RCW 10-.73.090. Shortly thereafter, Division Two issued a published opinion dismissing Le’s petition. In re Pers. Restraint of Keit Hoang Le, 122 Wn. App. 816, 95 P.3d 1254 (2004). Citing our statements in Roberts and Cronin that we were adhering to long-established precedent, the Court of Appeals held that those decisions did not significantly change the law of complicity for the purposes of RCW 10.73.100(6), and as a result, Le’s petition was untimely under RCW 10.73.090. Le, 122 Wn. App. at 820.³ Applying Le, the acting chief judge issued an order dismissing Kaseweter’s petition two weeks later.

¶13 Petitioners all sought discretionary review in this court. We granted review and consolidated their petitions in an order dated December 1, 2004.

II. Analysis

¶14 Generally, a defendant may not collaterally attack a judgment and sentence in a criminal case more than one year after his judgment and sentence becomes final. RCW 10-.73.090(1). A personal restraint petition is a collateral attack on a judgment. RCW 10.73.090(2). A judgment and sentence becomes final on the day that it is filed with the clerk of the trial court, RCW 10.73.090(3)(a), or the day an appellate court issues its mandate disposing of a timely direct appeal from the conviction, RCW 10.73.090(3)(b).

¶15 Petitioners filed their personal restraint petitions outside the one-year limit provided in RCW 10.73.090(1). There are exceptions to the limit, however. RCW 10.73.100 provides in pertinent part:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:

(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

¶[16 Thus, before we will address the merits of their claims, petitioners must first demonstrate that our decisions in Roberts and Cronin constitute a significant change in the law of accomplice liability. This they fail to accomplish.⁴

¶17 The legislature enacted our state’s complicity statute, RCW 9A.08.020, in 1975. See Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.08.020, as amended by Laws of 1975-76, 2d Ex. Sess., ch. 38, § 1. It provides in pertinent part:

(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.

(2) A person is legally accountable for the conduct of another person when:

(c) He is an accomplice of such other person in the commission of the crime.

(3) A person is an accomplice of another person in the commission of a crime if:

(a) With knowledge that it will promote or facilitate the commission of the crime, he

(i) solicits, commands, encourages, or requests such other person to commit it; or

(ii) aids or agrees to aid such other person in planning or committing it... .

RCW 9A.08.020.

fl8 We first examined RCW 9A.08.020’s knowledge requirement in a pair of cases in 1984: State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984), and State v. Rice, 102 Wn.2d 120, 683 P.2d 199 (1984). In Davis, defendant stood lookout while his associate held up and robbed a pharmacy. Davis claimed that he did not know that his associate was armed and thus could not be convicted as an accomplice to first degree (armed) robbery.

f 19 Accordingly, his appeal presented us with the following narrow issue: “Where criminal liability for a first degree robbery is premised upon accomplice liability, must the State prove that the accomplice knew the principal was armed?” Davis, 101 Wn.2d at 655. This in turn “require[d] a determination of whether the accomplice liability statute predicates criminal liability on general knowledge of a crime or specific knowledge of the elements of the participant’s crime, i.e., possession of a gun.” Id. at 657.

¶20 We concluded that only “general knowledge” of the charged crime was required. Thus, Davis was validly convicted as an accomplice to first degree robbery even if he did not know the principal was armed because the State proved he had general knowledge that he was aiding in the crime of robbery.

¶21 We reinforced this conclusion one month later in Rice, stating that:

where criminal liability is predicated on the accomplice liability statute, the State is required to prove only the accomplice’s general knowledge of his coparticipant’s substantive crime. Specific knowledge of the elements of the coparticipant’s crime need not be proved to convict one as an accomplice.

Rice, 102 Wn.2d at 125.

¶22 Petitioners argue, however, that dicta from Davis established a broader principle.⁵ They contend that Davis and its progeny established the “in for a dime, in for a dollar” theory of complicity. This theory holds that accomplice liability attaches for any and all crimes committed by the principal so long as the putative accomplice knowingly aided in any one of the crimes. See, e.g., Cronin, 142 Wn.2d at 586 (Talmadge, J., dissenting). Petitioners further claim that by rejecting this theory in Roberts and Cronin, we significantly changed the law of complicity for the purposes of RCW 10.73.100(6).

¶23 Petitioners’ argument is contradicted by express language in Roberts and Cronin, however, wherein we expressly affirmed that we were “adher[ing] to the rule of Davis and Rice” Roberts, 142 Wn.2d at 513. We rejected the assertion of a minority of the court, see Cronin, 142 Wn.2d at 586-87 (Talmadge, J., dissenting), that Davis allowed the “conviction of an accomplice for any criminal result that occurred so long as the accomplice agreed to participate in any crime whatsoever.” Roberts, 142 Wn.2d at 511. Instead, we expressly noted that Davis and Rice “merely reaffirm [ed] our long-standing rule that an accomplice need not have specific knowledge of every element of the crime committed by the principal, provided he has general knowledge of that specific crime.” Id. at 512.

¶24 Our cases between Davis/Rice and Roberts/Cronin confirm this conclusion. See State v. Sweet, 138 Wn.2d 466, 479, 980 P.2d 1223 (1999) (relying on Davis in stating that “[i]t is not necessary for an accomplice to have specific knowledge of every element of the principal’s crime.”); State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991) (relying on Davis in stating that accomplice liability is predicated “on general knowledge of the crime and not on specific knowledge of the elements of the participant’s crime”).

¶25 Moreover, while some language in Davis was rather broad, resolution of the issue before the court did not require us to determine the propriety of the “in for a dime, in for a dollar” theory. Thus, it cannot be maintained that Davis stands for that principle. See Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 531, 79 P.3d 1154 (2003) (“ ‘Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.’ ” (quoting State v. Potter, 68 Wn. App. 134, 149 n.7, 842 P.2d 481 (1992)).

¶26 Despite this, petitioners insist that the arguments made by Roberts and Cronin were unavailable to petitioners at the time of their direct appeals, relying on several Court of Appeals’ decisions and II Washington Pattern Instructions: Criminal 10.51 (2d ed. 1994) (WPIC) for support (discussed infra at 366-68). They argue these indicate a significant change in the law has occurred, allowing collateral attack in accordance with the reasoning of In re Personal Restraint of Greening, 141 Wn.2d 687, 9 P.3d 206 (2000).

¶27 In Greening, we noted that we consider whether a personal restraint petitioner’s argument was available to him on direct appeal in deciding whether there has been a significant change in the law under RCW 10.73.100(6). See Greening, 141 Wn.2d at 697. We do not fault petitioners “for having omitted arguments that were essentially unavailable at the time . . ..” Id. Thus, “where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a ‘significant change in the law’ for purposes of exemption from procedural bars.” Id.

¶28 Petitioners note that Division One of the Court of Appeals employed similar reasoning in finding that Roberts and Cronin constitute a significant change in the law. See In re Pers. Restraint of Smith, 117 Wn. App. 846, 73 P.3d 386 (2003). Relying on the dissent in Cronin, the Smith court claimed that Roberts and Cronin constituted a “new interpretation” of the accomplice liability statute. Smith, 117 Wn. App. at 856. The Smith court accordingly concluded that it could not expect defendants to understand the limits of Davis when Division One itself failed to recognize those limits prior to Roberts and Cronin. Smith, 117 Wn. App. at 857. The court also stated that if Smith had claimed on direct appeal that the complicity instruction given at his trial was erroneous, it would have rejected his argument given Division One’s understanding of Davis at that time. Id.

f29 Division One’s conclusion in Smith and petitioners’ reliance on Greening fail for three reasons. First, and most obviously, ROW 9A.08.020 has not been amended in almost 30 years.⁶ Thus, petitioners’ argument was just as “available” to them on direct appeal as it was to Roberts and Cronin in their appeals.

¶30 Second, petitioners’ argument and Smith are largely based on Cronin’s dissent, rather than the majorities’ holdings in Cronin and Roberts. Dissenting opinions are not binding upon this court. See Roberts v. Dudley, 140 Wn.2d 58, 75 n.13, 993 P.2d 901 (2000).

¶31 Finally, a review of the cases relied on by petitioners reveals that the Courts of Appeal, while sometimes using imprecise or overbroad language, rarely if ever deviated from the holdings oí Roberts, Cronin, and Davis during the 16 years separating those decisions.⁷ Moreover, neither Davis nor any of this court’s decisions subsequent to Davis approves of the proposition that accomplice liability attaches for any and all crimes committed by the principal so long as the putative accomplice knowingly aided in any one of the crimes.

¶32 Given this, it is untenable to claim that Roberts and Cronin “effectively overturned a prior appellate decision that was originally determinative of a material issue” as required by Greening. Greening, 141 Wn.2d at 697; see also In re Pers. Restraint of Turay, 150 Wn.2d 71, 83, 74 P.3d 1194 (2003) (stating that an appellate decision that merely settles a point of law without overturning precedent, or applies settled law to new facts, does not constitute a significant change in the law).

133 Conversely, in Greening the petitioner had been sentenced pursuant to a Court of Appeals’ decision that we explicitly reversed a few months later. Greening, 141 Wn.2d at 697-98 (citing State v. Lewis, 86 Wn. App. 716, 937 P.2d 1325 (1997), rev’d sub nom. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d 798 (1998)).

¶34 Petitioners’ reliance on WPIC 10.51 is similarly misplaced. Originally, WPIC 10.51 basically tracked the language of RCW 9A.08.020, requiring the State to prove that an accomplice had knowledge of “the” crime for which he was charged. See WPIC 10.51 (1977); WPIC 10.51 (Supp. 1986). However, the Washington Supreme Court committee on jury instructions later amended WPIC 10.51 to provide that one could be convicted as an accomplice so long as he had knowledge of “a” crime committed by the principal. See WPIC 10.51 (2d ed. 1994).⁸

¶35 The pattern jury instructions are “intended to be accurate, concise, unbiased statements of the law . . . .” 13 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 4402, 256 (3d ed. 2004). Nevertheless, they are not the law — they “are not mandatory, nor are they in any sense preapproved by the Supreme Court.” 14A Karl B. Tegland, Washington Practice: Civil Procedure § 31.2, 261 (2003). Thus, our discussion of WPIC 10.51 (2d ed. 1994) in Roberts and Cronin lends no support to petitioners’ claims.

¶36 Petitioners finally argue that Roberts and Cronin constitute a significant change in the law pursuant to principles set forth in In re Personal Restraint of Jeffries, 114 Wn.2d 485, 789 P.2d 731 (1990), and In re Personal Restraint of Vandervlugt, 120 Wn.2d 427, 842 P.2d 950 (1992). In Jeffries we said that, in determining whether there has been a material change in the law, we will assess whether new decisions have provided us with an opportunity to refine our analysis and a larger pool of cases under which we may assess a petition.⁹ Jeffries, 114 Wn.2d at 489. And in Vandervlugt, we found a significant change in the law where we decided a pair of cases that presented an issue of first impression in between petitioner’s direct appeal and personal restraint petition that affected his conviction. Vandervlugt, 120 Wn.2d at 433-34. But here, as demonstrated above and as acknowledged in Roberts and Cronin, our approach to accomplice liability has avowedly remained consistent going back to Davis and Rice — decisions that long predate petitioners’ convictions.

III. Conclusion

¶37 Because we find that Roberts and Cronin do not constitute a significant change in the law of complicity, the instant petitions are time barred under RCW 10.73.090. Accordingly, we do not address the other issues presented or the merits of petitioners’ individual claims.¹⁰

¶38 Affirmed.

Alexander, C.J., and Bridge, Chambers, and Owens, JJ., concur.

1 Because one of the victims here shares petitioner’s last name, we use the victims’ first names for clarity.

2 Donovan Shirk was also to offer testimony against Kaseweter, hut reneged on his deal.

3 This holding directly conflicted with Division One’s decision in In re Personal Restraint of Smith, 117 Wn. App. 846, 73 P.3d 386 (2003) (discussed infra at 366-67).

4 Had they shown such change in law, petitioners also would have had to demonstrate that the change was material to their convictions, and that the change applies retroactively, before we would reach the merits of their petitions. RCW 10.73.100(6).

5 Specifically, petitioners point to our statement that “the law has long recognized that an accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned illegality.” Davis, 101 Wn.2d at 658. We also said that “the Legislature has a valid interest in discouraging the use of deadly weapons by imposing strict liability on all those involved in robbery . .. .” Id. at 659.

6 ROW 9A.08.020 was last amended by Laws of 1975-76, 2d Ex. Sess., ch. 38, § 1.

7 See State v. Johnston, 100 Wn. App. 126, 139, 996 P.2d 629 (2000), petition for relief from personal restraint granted in part, 125 Wn. App. 1032 (2005); State v. Guzman, 98 Wn. App. 638, 645, 990 P.2d 464 (1999); State v. Robertson, 88 Wn. App. 836, 846-47, 947 P.2d 765 (1997); State v. Jackson, 87 Wn. App. 801, 818, 944 P.2d 403 (1997); State v. Hinds, 85 Wn. App. 474, 484-85, 936 P.2d 1135 (1997); State v. Ferreira, 69 Wn. App. 465, 471-72, 850 P.2d 541 (1993); State v. Langford, 67 Wn. App. 572, 580-81, 837 P.2d 1037 (1992); State v. Anderson, 63 Wn. App. 257, 260-61, 818 P.2d 40 (1991); State v. Randle, 47 Wn. App. 232, 236-37, 734 P.2d 51 (1987); State v. Davis, 39 Wn. App. 916, 920-21, 696 P.2d 627 (1985); State v. Gamboa, 38 Wn. App. 409, 413-14, 685 P.2d 643 (1984). But see In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 833-34, 39 P.3d 308 (2001); State v. Swenson, 104 Wn. App. 744, 757, 9 P.3d 933 (2000). It should be noted that these latter two opinions were decided after petitioners’ direct appeals became final, and thus could not have affected their convictions.

8 Domingo received a complicity instruction that generally tracked the language of RCW 9A.08.020. Le received a complicity instruction similar to the amended WPIC 10.51 (2d ed. 1994). Kaseweter received a complicity instruction similar to the original WPIC 10.51 with some dicta from Davis appended.

9 It should be noted that Jeffries dealt not with RCW 10.73.100(6), but rather with whether petitioner had good cause for renewing claims that had previously been rejected on direct appeal and in his first two personal restraint petitions.

10 Specifically, we need not decide whether Kaseweter’s petition contains “[n]ewly discovered evidence” for the purposes of RCW 10.73.100(1). Even if it does, “[w]here one or more of the grounds asserted for relief fall within the exceptions in RCW 10.73.100 and one or more do not, then the petition is a ‘mixed petition’ that must be dismissed.” Turay, 150 Wn.2d at 85-86.