In re the Personal Restraint of Colbert , 186 Wash. 2d 614 ( 2016 )

Madsen, C.J.

¶21 (concurring) — Both the majority and concurrence/dissent agree that our recent decision in State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014), constitutes a significant change in the law for purposes of RCW 10.73.100(6). I agree with the majority that W.R. rests on constitutional due process principles rather than statutory interpretation. Wash. Const. art. I, § 12. Also, I agree with the concurrence/dissent that the Teague retroactivity rule, relied on by the majority, applies only to a new rule of constitutional law. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 334 (1989) (partial plurality opinion).

¶22 But the question here is whether there is sufficient reason to require retroactive application of a significant change in the law under RCW 10.73.100, which creates an exception to the time bar under RCW 10.73.090. See RCW 10.73.100(6) (the time limit in RCW 10.73.100 does not apply if “[t] here has been a significant change in the law,... which is material to the conviction,” if a “court . . . determines that sufficient reasons exist to require retroactive application of the changed legal standard”). In In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 105, 351 P.3d 138 (2015), this court held that a “significant change” in state law and a “new” constitutional rule of criminal procedure under Teague have different meanings and serve different purposes. However, just as Tsai held there is a difference between “a significant change” in state law and retroactivity considerations under Teague, I would hold that retroactivity under RCW 10.73.090, which provides for exceptions to the time bar for personal restraint petitions, also has a distinct meaning and serves a distinct purpose from “a significant change in the law.” The mere fact that there is a significant change in the law cannot signal that the change necessarily will be applied retroactively because the statute provides discretion to the court to make that decision.

¶23 RCW 10.73.100(6) requires the court to decide whether “sufficient reasons exist to require retroactive application of the changed legal standard.” The fact that there has been a significant change in state law does not automatically mean there is reason to apply that change to cases that are final. This court has been inconsistent about what standard to apply when there is a significant change in the law. See Tsai, 183 Wn.2d 91; In re Pers. Restraint of Markel, 154 Wn.2d 262, 111 P.3d 249 (2005); In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 823 P.2d 492 (1992).

¶24 I am not prepared to resolve the issue here, but I agree with the concurrence/dissent that even if the court found an exception to the time bar, the petitioner has failed to show he was actually and substantially prejudiced by the instructional error in this case. Therefore, I would deny his petition.