State Of Washington v. William Carney ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68168-1-1
Respondent, DIVISION ONE
v.
PUBLISHED OPINION
WILLIAM HALL CARNEY,
Appellant. FILED: December 16, 2013
Schindler, J. — William Hall Carney contends that under State v. Jones, 99
Wash. 2d 735, 664 P.2d 1216 (1983), he is entitled to dismissal of the 1982 conviction of
arson in the first degree, the acquittal by reason of insanity and order of civil
commitment, and the 2011 order revoking his conditional release. Because Jones does
not apply retroactively, we affirm the decision to dismiss Carney's collateral attack of the
1982 conviction and order of commitment, and the 2011 order revoking his conditional
release.
FACTS
On March 31, 1982, police responded to a report of a disturbance at the
apartment ofWilliam Hall Carney. Carney had barricaded himself inside and was
fanning the flames of a fire in the apartment. Fire investigators concluded the fire was
deliberately set by using a match to ignite combustible material in the apartment.
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On April 1, 1982, the State charged Carney with arson in the first degree. On
April 5, the court entered a 15-day order of commitment to the Department of Social and
Health Services (DSHS) at Western State Hospital (WSH) to evaluate Carney and
determine whether he was competent to stand trial. On April 23, a WSH psychologist
reported Carney was "psychotic," "responding to auditory hallucinations," and not
competent to stand trial. The court granted the request for a 90-day extension of the
commitment.
On May 19, the WSH psychiatrist filed a report with the court stating that Carney
had "slowly improved" with treatment and was competent to stand trial. The psychiatrist
states Carney's paranoid schizophrenia is "now in fair remission."
[W]ith treatment Mr. Carney's condition has slowly improved and he is
now more cooperative, coherent and rational. He has a lengthy history of
psychiatric treatment at numerous mental facilities. Our diagnostic
impression continues to be Schizophrenia, chronic, paranoid type now in
fair remission.
It is our opinion that Mr. Carney has regained competency to stand
trial. He now fully understands the nature of the proceedings against him
and is able to assist his attorney in preparing a defense.
On June 4, the court found Carney competent to stand trial. Following
arraignment on the charge of arson in the first degree, Carney entered a plea of not
guilty.
At the beginning of the jury trial on July 2, the State asked the court to enter a
plea of not guilty by reason of insanity on behalf of Carney. Carney did not object. The
court granted the motion.
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The State called a number of witnesses to testify at trial, including police officers
and two psychiatrists. At the conclusion of the State's case, the defense moved to
withdraw the plea of not guilty by reason of insanity. The court denied the motion.
Carney testified in his defense.
In answer to a special verdict form, the jury found Carney committed the crime of
arson in the first degree but found him "not guilty because of insanity existing at the time
of the act charged." The jury also found Carney was "a substantial danger to other
persons" and "presented] a substantial likelihood of committing felonious acts
jeopardizing public safety or security unless kept under further control by the court or
other persons or institutions."
At the sentencing on July 9, the court entered an order of acquittal by reason of
insanity and an order of commitment. The findings state that when Carney committed
the crime of arson in the first degree, he "was affected by mental disease or defect to
such an extent that he was unable to perceive the nature and quality of the act with
which he is charged and unable to tell right from wrong." The findings also state that
Carney "is a substantial danger to other persons" and presented a substantial likelihood
of committing acts jeopardizing public safety. The order of commitment remands
Carney "to the custody of [DSHS] for hospitalization at such place as shall be
designated for the care and treatment of the criminally insane."
The court advised Carney that he had the right to appeal the order of acquittal by
reason of insanity and order of commitment. Carney signed and acknowledged receipt
of the "Certificate of Compliance with Rule 7.1 (b) CrR Rule for Superior Court." The
certificate states that unless a written notice of appeal is filed within 30 days of entry of
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the order of acquittal and commitment, "the right of appeal is irrevocably waived."
Carney did not file an appeal.
On November 17, 1987, the court entered an order of conditional release of
Carney to the community. His conditional release was subject to a number of
conditions. While on conditional release, Carney was hospitalized a number of times
"for inpatient treatment following episodes of psychiatric decompensation."1
In June 2005, Carney was hospitalized again after he "stopped taking his
medication and his behavior deteriorated rapidly." Following inpatient treatment, WSH
discharged Carney on September 11, 2007 to the Maple Creek Residential Facility.
The court entered an order modifying the conditions of release. The order required
Carney to follow the treatment plan, attend therapy sessions, remain in remission, and
maintain good conduct in the community.
In March 2011, WSH submitted a report to the court addressing adherence to the
terms and conditions of conditional release. The report states that the Maple Creek
Residential Facility continued to provide the necessary level of care and Carney
appeared to be "at his baseline level of stability." However, the report also describes
concerns expressed by Maple Creek Residential Facility staff about Carney's behavior
and hygiene. According to staff, Carney believed his food was being poisoned, and
insisted on "taking many books, papers and reading materials with him wherever he
goes, fearing 'they will be stolen' if left in his room."
1"Decompensation" means "loss of adequate functional power." Webster's Third New
International Dictionary 587 (2002).
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On June 3, 2011, the Secret Service investigated telephone calls Carney made
from the Maple Creek Residential Facility to the White House. Carney made six
telephone calls to the White House to schedule a meeting with the President of the
United States. When White House staff refused to schedule a meeting, Carney said
that he was putting the staff person on his "list."
On June 15, the Maple Creek Residential Facility provided a 30-day eviction
notice to Carney and DSHS. On July 11, Carney met with his community program
therapist and the community program director. Carney "presented as disheveled, poor
hygiene, food and stains on his clothes, odor coming from his body, and his hair was
not groomed." Carney insisted he "does not have to move out of his current residence
although an eviction notice was given to him . . ., and believes that the director of his
current residence is against him." In the report to the court, the therapist and the
community program manager state that Carney was "showing signs of decompensation"
and "appears to have difficulty holding a reality-based conversation at this time."
On July 27, the WSH Risk Review Board recommended revocation of Carney's
conditional release. The report states Carney suffers from "Schizoaffective Disorder"
and moderate to severe chronic mental illness. The report identifies a number of risk
factors, including Carney's refusal to take his medication, deteriorating and threatening
behavior, and paranoia. The State filed a motion to revoke the order of conditional
release.
The court scheduled a revocation hearing for September 9. Carney filed a
motion to dismiss. Carney argued the court did not have jurisdiction to enter an order
revoking the conditional release. Carney relied on State v. Jones, 99 Wash. 2d 735, 664
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P.2d 1216 (1983), to argue the 1982 conviction and verdict of not guilty by reason of
insanity violated his constitutional rights.
The court denied the motion to dismiss. The court ruled Carney's collateral
attack of his 1982 conviction, acquittal by reason of insanity, and order of commitment
was time barred. The court found Carney violated the conditions of release, entered an
order revoking conditional release, and remanded Carney to DSHS to inpatient
treatment. Carney appeals.
ANALYSIS
Time Bar
Carney contends the court erred in ruling his collateral attack was time barred
because he did not receive notice of the statutory one-year time limit. Whether the
statutory one-year time bar applies is a question of law that we review de novo. State v.
Schwab. 141 Wash. App. 85, 91, 167 P.3d 1225 (2007).
On July 6, 1982, the jury found Carney committed the crime of arson in the first
degree but was not guilty by reason of insanity. The court entered the order of acquittal
by reason of insanity and order of commitment on July 9, 1982.
In 1989, the legislature enacted RCW 10.73.090. Laws of 1989, ch. 395, § 1.
RCW 10.73.090 imposes a one-year time bar on a collateral attack. Under RCW
10.73.090, a defendant must file a collateral attack within one year of the judgment and
sentence becoming final, and the court must advise the defendant of the one-year time
bar at sentencing. RCW 10.73.110.
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Under RCW 10.73.130, the one-year time bar applies only to a collateral attack
filed more than one year after July 23, 1989. RCW 10.73.120 requires the Department
of Corrections to "attempt to advise" those who, on July 23, 1989, were "serving a term
of incarceration, probation, parole, or community supervision," of the new statutory time
limit to file a collateral attack.
In In re Pers. Restraint of Bratz, 101 Wash. App. 662, 5 P.3d 759 (2000), we held
the notification provision under RCW 10.73.120 violated equal protection as applied to
defendants committed following an acquittal by reason of insanity. Bratz. 101 Wash. App.
at 669-70. We adhere to Bratz and hold the court erred in ruling Carney's collateral
attack of the 1982 acquittal and commitment was time barred. See also In re Pers.
Restraint of Schwab, 141 Wash. App. 85, 92, 167 P.3d 1225 (2007) (deeming petition
timely where record contained no evidence showing that the court notified defendant of
the time limit).
Retroactivity of Jones
Carney argues he is entitled to dismissal of the 1982 conviction and acquittal by
reason of insanity and the order of commitment, as well as the 2011 order revoking
conditional release, because Jones applies retroactively. Carney asserts Jones is
retroactive under the decision in Teaaue v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060,
103 L. Ed. 2d 334 (1989). Whether Jones is retroactive is a question of law we review
de novo. State v. Schenck, 169 Wash. App. 633, 642, 281 P.3d 321 (2012).
In Jones, the Washington Supreme Court overruled State v. Smith, 88 Wash. 2d
639, 564 P.2d 1154 (1977). Jones, 99 Wash. 2d at 744. In Smith, the court held the trial
court did not err by imposing the defense of not guilty by reason of insanity over the
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objection of a defendant. Smith, 88 Wash. 2d at 643. The court followed the approach in
Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965), in concluding that "[i]t would
clearly be unconstitutional to permit the conviction of a defendant who was legally
insane at the time of the commission of the crime." Smith, 88 Wash. 2d at 643. The court
states that the imposition of a plea of not guilty by reason of insanity did not prejudice
the defendant because the jury had to first determine whether the defendant committed
the charged crime. Smith, 88 Wash. 2d at 645 ("before [the jury] could find defendant not
guilty by reason of insanity, the jury first had to find that he committed the act charged").
The court held that "[gjiven these competing interests, the trial court was correct in
choosing the course which would uphold the constitution and fulfill his obligation."
Smith, 88 Wash. 2d at 643.
In Jones, the court reversed and held the trial court could not impose a plea of
not guilty by reason of insanity over the objection ofa competent defendant. Jones, 99
Wash. 2d at 743-44. The court relied on Faretta v. California, 422 U.S. 806, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975), in concluding a defendant has the constitutional right
under the Sixth Amendment "to at least broadly control his own defense." Jones, 99
Wash. 2d at 740. "The language and reasoning of Faretta necessarily imply a right to
personally control one's own defense.... In particular, Faretta embodies 'the conviction
that a defendant has the right to decide, within limits, the type of defense he wishes to
mount.'" Jones, 99 Wash. 2d at 740 (quoting United States v. Laura, 607 F.2d 52, 56 (3d
Cir. 1979)).
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The United States Supreme Court has deferred to the states as to whether a
defendant may assert an insanity defense. See, e.g., Foucha v. Louisiana, 504 U.S. 71,
112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). In Foucha. the Court states, in pertinent
part:
[T]he Court's holding . . . places no new restriction on the States' freedom
to determine whether, and to what extent, mental illness should excuse
criminal behavior. The Court does not indicate that States must make the
insanity defense available. See Idaho Code § 18-207(a) (1987) (mental
condition not a defense to criminal charges); Mont. Code Ann. § 46-14-
102 (1991) (evidence of mental illness admissible to prove absence of
state of mind that is an element of the offense).
Foucha, 504 U.S. at 88-89 (O'Connor, J., concurring).2 In a separate opinion, Justice
Kennedy also notes:
Consistent with the general rule that the definition of both crimes and
defenses is a matter of state law, see Patterson v. New York, 432 U.S.[,
197,] 210[, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977)], the States are free to
recognize and define the insanity defense as they see fit.
Foucha, 504 U.S. at 96 (Kennedy, J., dissenting).
In determining retroactivity, our supreme court attempts to maintain congruence
with the United States Supreme Court decision in Teague. In re Pers. Restraint of
Markel, 154 Wash. 2d 262, 268, 111 P.3d 249 (2005). In Teague, the Court held that in
general, "new constitutional rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are announced." Teague, 489
U.S. at 310.
2(Emphasis added.) State courts are evenly divided overwhether the trial court may impose an
insanity defense over a defendant's objection. Compare Hendricks v. People. 10 P.3d 1231, 1243-44
(Colo. 2000), with Frendak v. United States. 408 A.2d 364, 379 (D.C. 1979); cf In re Tromblv. 627 A.2d
855, 857 (Vt. 1993) (even though defendant controls the decision whether to request a lesser-included-
offe'nse instruction, court may override defendant's refusal of such an instruction if it "is so ill-advised that
it undermines a fair trial"); see generally David Cohn, Offensive Use ofthe Insanity Defense: Imposing
the Insanity Defense Over the Defendant's Objection, 15 Hastings Const. L.Q. 295 (Winter 1988).
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A rule is " 'new'" under a retroactivity analysis if it" 'breaks new ground' or 'was
not dictated by precedent existing at the time the defendant's conviction became final.'"
Markel. 154Wn.2d at 2703 (quoting league, 489 U.S. at 301); see also Chaidez v.
United States U.S. , 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149 (2013) (citing
Teague, 489 U.S. at 301). Here, there is no dispute the 1983 decision in Jones
announced a new rule of criminal procedure.
When a decision results in a new rule, that rule applies to all criminal cases
pending on direct review. Griffith v. Kentucky. 479 U.S. 314, 328, 107 S. Ct. 708, 93 L.
Ed. 2d 649 (1987). As to convictions that are already final, a defendant can collaterally
attack the conviction only ifthe defendant can establish one of the two exceptions
recognized in Teague. In re Pers. Restraint of Rhome, 172 Wash. 2d 654, 666, 260 P.3d
874 (2011), applies. The two Teague exceptions apply to (1) a rule that places certain
kinds of primary, private individual conduct beyond the State's powerto prohibit, which
the Court also characterizes as a substantive rule;4 and (2) a watershed rule of criminal
procedure. Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S. Ct. 2519, 159 L. Ed. 2d
442 (2004); Teague, 489 U.S. at 311; Rhome, 172 Wash. 2d at 666. Carney argues that
because both of the Teague exceptions apply, he is entitled to collaterally attack the
1982 acquittal and commitment.
(1) Substantive Rule Exception
Generally, the substantive rule exception encompasses rules which either
decriminalize behavior for which the individual was punished or "narrow the scope of a
criminal statute by interpreting its terms." Schriro, 542 U.S. at 351-52; Rhome, 172
3(Emphasis in original.)
4 Cara H. Drinan, Graham on the Ground. 87 Wash. L. Rev. 51, 65-66 (2012) (noting that the
Court "has shifted its terminology somewhat" in describing the first Teague exception as substantive).
10
No. 68168-1-1/11
Wn.2d at 666; see ajso Market 154 Wash. 2d at 269 (exception includes "rule[s] of
substantive law" and not "a change in the procedures required under the Sixth
Amendment[]"). The Court also applied the first Teague exception to "rules prohibiting a
certain category of punishment for a class of defendants because of their status or
offense." Penrv v. Lvnaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256
(1989). abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242,
153 L. Ed. 2d 335 (2002).
Carney relies on Penrv to argue the first exception applies to the rule in Jones.5
In Penrv, the Supreme Court held that as a substantive matter under the Eight
Amendment, a rule prohibiting the execution of mentally retarded persons regardless of
the procedures allowed would apply retroactively to defendants on collateral review.
Penrv, 492 U.S. at 330. The rule the Court considered in Penrv prohibited the
government from imposing a certain type of punishment on a certain class of persons.
Penrv, 492 U.S. at 329-30. Here, unlike in Penrv, the rule in Jones is procedural, not
substantive, does not decriminalize any conduct, and does not categorically prohibit the
assertion of a plea of not guilty by reason of insanity.
(2) Watershed Rule Exception
The second Teague exception applies only to "a small set of 'watershed rules of
criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.'" Markel, 154 Wash. 2d at 2696 (quoting Schriro. 542 U.S. at 352). " 'That a
new procedural rule is fundamental in some abstract sense is not enough; the rule must
5 Carnev also cites Graham v. Florida. 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
As in Penrv, in Graham, the Court held that imposing a life sentence without parole on a juvenile for a
non-homicide offense violates the Eighth Amendment. Graham, 560 U.S. at 80-82.
6(Internal quotation marks omitted.)
11
No. 68168-1-1/12
be one without which the likelihood of an accurate conviction is seriously diminished.'"
Rhome. 172 Wash. 2d at 6677 (quoting Schriro. 542 U.S. at 352). To qualify as a new
watershed rule, the rule must be necessary to prevent" 'an impermissibly large risk'" of
an inaccurate conviction, Teague. 489 U.S. at 312 (quoting Desist v. United States. 394
U.S. 244, 262, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969)), and must" 'alter our
understanding of the bedrock procedural elements" essential to the fairness of a
proceeding. Teague. 489 U.S. at 311-128 (quoting Mackev v. United States. 401 U.S.
667, 693-94, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). "It is not enough for the right to
be important; it must also play a vital instrumental role in securing a fair trial." State v.
Evans, 154 Wash. 2d 438, 445, 114 P.3d 627 (2005).
The Court has repeatedly emphasized the limited scope of the second Teague
exception. O'Dell v. Netherland. 521 U.S. 151, 157, 117 S. Ct. 1969, 138 L. Ed. 2d 351
(1997) (citing Graham v. Collins. 506 U.S. 461, 478, 113 S. Ct. 892, 122 L. Ed. 2d 260
(1993)). Because any rule " 'would be so central to an accurate determination of
innocence or guilt [that it is] unlikely that many such components of basic due process
have yet to emerge,'" the Supreme Court has yet to find a new rule that falls under the
second Teague exception. Graham, 506 U.S. at 478 (quoting Teague. 489 U.S. at
313). " This class of rules is extremely narrow, and it is unlikely that any . . . ha[s] yet to
emerge.'" Markel, 154Wn.2d at 2699 (quoting Schriro, 542 U.S. at 352).
The only rule the United States Supreme Court has identified as an example of
what might fall within the watershed rule exception is Gideon v. Wainwright, 372 U.S.
335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The Court states that Gideon " 'alter[ed] our
7(Emphasis in original) (internal quotation marks omitted).
8(Emphasis in original.)
9(Alterations in original) (internal quotation marks omitted).
12
No. 68168-1-1/13
understanding of the bedrock procedural elements essential to the fairness of a
proceeding.'" Beard v. Banks, 542 U.S. 406, 418, 124 S. Ct. 2504, 159 L. Ed. 2d 494
(2004)10 (quoting Sawyer v. Smith, 497 U.S. 227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d
193 (1990)). In applying the second Teague exception, the Court has "looked to the
example of Gideon, and 'we have not hesitated to hold that less sweeping and
fundamental rules' do not qualify." Whorton v. Bockting. 549 U.S. 406, 421, 127 S. Ct.
1173, 167 L. Ed. 2d 1 (2007) (quoting Beard, 542 U.S. at 418).
In Gideon, the Court held that counsel must be appointed for any indigent
defendant charged with a felony. Gideon. 372 U.S. at 344-45. When a defendant who
wishes to be represented by counsel is denied representation, Gideon held that the risk
of an unreliable verdict is intolerably high. Gideon. 372 U.S. at 344-45; see Mickens v.
Taylor. 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); United States v.
Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). The new rule
announced in Gideon eliminated this risk.
The new rule in Jones is in no way comparable to Gideon, and the relationship of
the Jones rule to the accuracy of the fact-finding process is far less direct or profound.
Gideon effected a profound and " 'sweeping'" change. Whorton, 549 U.S. at 421
(quoting Beard, 542 U.S. at 418). The decision in Jones did not change the need for
the jury to first determine whether a defendant committed the charged crime or the right
to assert the defense of not guilty by reason of insanity. Emphasizing the right under
Faretta to control the defense, the court in Jones limited the authority of the trial court to
impose the defense over the objection of a competent defendant. Jones, 99 Wash. 2d at
740.
10 (Emphasis in original) (alteration in original).
13
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We hold that the change in the law and new rule of criminal procedure adopted
by the court in Jones is not a watershed rule that applies retroactively. See Markel, 154
Wash. 2d at 273 (refusing to apply Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), retroactively); Evans, 154 Wash. 2d at 447-48 (concluding
neither Apprendi v. New Jersey. 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), nor Blakelv v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004), apply retroactively); State v. Abrams, 163 Wash. 2d 277, 290-92, 178 P.3d 1021
(2008) (perjury statute requiring judge rather than jury to determine materiality was
unconstitutional but not retroactive).11
RCW 10.73.100(6)
Carney argues that even if the two exceptions under Teague do not apply, the
decision in Jones is retroactive under the significant and material change in the law
exception to the one-year time bar on collateral attacks under RCW 10.73.100(6).12 We
disagree. In a recent case, In re Pers. Restraint of Haghighi, 178 Wash. 2d 439, 309 P.3d
459 (2013), the Washington Supreme Court reiterated that it has "interpreted RCW
11 We also note that in cases predating Teague, several courts held that Faretta did not apply
retroactively. Martin v. Wvrick. 568 F.2d 583, 587 (8th Cir. 1978) ("the determination that the purpose
underlying Faretta was not to enhance the fact-finding process strongly suggests the rule should not be
made retroactive."); People v. McDaniel. 16 Cal. 3d 156, 166 (1976) (purpose of Faretta rule is not "to
enhance the reliability ofthe truth-determining or fact-finding process"); Scottv. State, 345 So. 2d 414,
416-17 (Fl. Dist. Ct. App. 1977V Houston v. Nelson. 404 F. Supp. 1108, 1115 (D.C. Cat. 1975). But see
People v. Holcomb. 395 Mich. 326, 336 n.7 (1975).
12 RCW 10.73.100(6) states:
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: . .. There has been [(1)] a
significant change in the law, whether substantive or procedural, [(2)] 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 [(3)] 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.
(Alterations added.)
14
No. 68168-1-1/15
10.73.100 as a procedural rule that is entirely consistent with the federal retroactivity
analysis. . . . Since Teague . . . , this court has consistently and repeatedly followed and
applied the federal retroactivity analysis as established in Teague." Haghighi, 178
Wash. 2d at 464, 462; see ajso Markel, 154 Wash. 2d at 268; Abrams, 163 Wash. 2d at 291
(interpreting RCW 10.73.100(6) consistent with Teague); In re Pers. Restraint of Benn,
134 Wash. 2d 868, 939-40, 952 P.2d 116 (1998).
The cases Carney relies on to argue that the exception under RCW 10.73.100(6)
applies are inapposite. None of these cases address retroactivity, implicate a new
constitutional procedural rule, or address whether sufficient reasons exist to require
retroactive application of the changed legal standard. See In re Pers. Restraint of
Lavery, 154 Wash. 2d 249, 111 P.3d 837 (2005) (holding change in law determining strike
offenses was significant change in the law without discussing retroactivity); In re Pers.
Restraint of Rowland, 149 Wash. App. 496, 204 P.3d 953 (2009) (holding change in
comparability rule affecting offender score is significant change in the law under RCW
10.73.100(6) without discussing retroactivity); In re Pers. Restraint of Smith, 117 Wn.
App. 846, 73 P.3d 386 (2003), abrogated by In re Pers. Restraint of Domingo, 155
Wash. 2d 356, 119 P.3d 816 (2005) (holding that change to limits of accomplice liability
was significant change in the law under RCW 10.73.100(6) without discussing
retroactivity).
15
No. 68168-1-1/16
Because Jones is not retroactive, Carney cannot collaterally attack the 1982
acquittal by reason of insanity and commitment or the 2011 order revoking conditional
release. We affirm.
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WE CONCUR:
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16