Personal Restraint Petition of Kim O Albert Henriques ( 2020 )

FILED
AUGUST 18, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of )
) No. 36408-9-III
KIMO ALBERT HENRIQUES, )
) PUBLISHED OPINION
Petitioner. )
KORSMO, A.C.J. — Kimo Henriques challenges his sentence by personal restraint
petition (PRP), arguing that State v. McFarland, 189 Wash. 2d 47, 399 P.3d 1106 (2017),
constitutes a significant change of law that justifies applying the case retroactively to his
2009 resentencing. We conclude that McFarland is not retroactive and deny relief.
PROCEDURAL HISTORY
Mr. Henriques was convicted at jury trial in 2007 of five counts of possession of a
stolen firearm (counts 1-5), one count of second degree unlawful possession of a firearm
(count 6), and one count of first degree unlawful possession of a firearm (count 7). At
sentencing on October 8, 2007, the parties and court agreed that the two unlawful
possession counts merged, resulting in the dismissal of count 6.
The court granted a defense motion to arrest the judgment on counts 4 and 5. The
court and parties noted that consecutive sentences were required due to RCW
9.94A.589(1)(c). The defense did not request an exceptional sentence. The trial court
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declined defense requests for leniency and imposed consecutive midrange terms of 84
months on counts 1 through 3 and 97 months on count 7, resulting in a total sentence of
349 months.1 Mr. Henriques appealed to this court, and the State cross appealed. This
court affirmed the convictions, reversed the dismissal of counts 4 and 5, and remanded
those two counts for resentencing. State v. Henriques, noted at 149 Wn. App 1057, slip
op. at 22 (2009). Rejecting a pro se argument, this court also concluded that the trial
court had properly imposed consecutive sentences. Id. at 19-21. The Washington
Supreme Court denied review. State v. Henriques, noted at 166 Wash. 2d 1034 (2009).
Resentencing occurred December 14, 2009. Without discussing the other four
counts, the court imposed consecutive terms of 72 months on counts 4 and 5, resulting in
a total term of 493 months. Mr. Henriques did not appeal from the resentencing. He did,
however, file a PRP in which he alleged ineffective assistance of counsel and argued that
the length of his sentence constituted cruel and unusual punishment. Our chief judge
dismissed the petition as frivolous. Order Dismissing Pers. Restraint Pet., In re Pers.
Restraint of Henriques, No. 29558-3-III (Wash. Ct. App. Dec. 8, 2011).
On August 3, 2017, the Washington Supreme Court issued its decision in
McFarland, 189 Wash. 2d 47. There the court applied its reasoning from In re Pers.
Restraint of Mulholland, 161 Wash. 2d 322, 166 P.3d 677 (2007), and concluded that
1
Mr. Henriques had nine prior adult felony convictions before this incident,
resulting in an offender score calculated simply as 9+ on all counts.
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exceptional sentences were available for unlawful possession of weapons offenses
sentenced under RCW 9.94A.589(1)(c).
Mr. Henriques promptly filed this current PRP, claiming that McFarland
constituted a change in law that retroactively applied to his case. This court called for a
response from the State and appointed counsel for Mr. Henriques. The acting chief judge
directed that the case be set before a panel.
The panel considered the case without hearing oral argument.
ANALYSIS
The sole issue presented is whether McFarland applies retroactively to cases that
were final when that opinion issued.2 In light of state precedent, McFarland does not
announce a new principle of law and is not retroactive.
Multiple rules governing PRPs are implicated by this petition. In order to prevail
on a claim of nonconstitutional error, a petitioner must establish that the error constitutes
a fundamental defect that inherently results in a complete miscarriage of justice. In re
Pers. Restraint of Nichols, 171 Wash. 2d 370, 373, 256 P.3d 1131 (2011). RCW 10.73.090
imposes a one year time limit for bringing a collateral attack against a facially valid
judgment and sentence. In addition, where a petitioner has previously filed a PRP, this
2
Petitioner’s motion to amend his PRP to argue that the Governor’s Proclamation
20-47 renders his petition timely is denied as moot since we are addressing the merits of
his claim. Mulholland, 161 Wash. 2d at 333. The proclamation also does not waive the
successive petition rule.
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court cannot consider a subsequent petition unless the petitioner certifies that he has not
previously petitioned the court on similar grounds and shows good cause why the new
grounds were not raised in the previous petition. RCW 10.73.140. Good cause to file a
successive petition includes a material change in the governing law. In re Pers. Restraint
of Johnson, 131 Wash. 2d 558, 567, 933 P.2d 1019 (1997).
The initial interpretation of a statute by the Washington Supreme Court carries
particular significance:
where a statute has been construed by the highest court of the state, the
court’s construction is deemed to be what the statute has meant since its
enactment. In other words, there is no question of retroactivity.
State v. Moen, 129 Wash. 2d 535, 538, 919 P.2d 69 (1996); accord In re Pers. Restraint of
Hinton, 152 Wash. 2d 853, 860 n.2, 100 P.3d 801 (2004). In contrast, when that court
reverses its previous interpretation, a significant change of law exists that applies
retroactively. State v. Robinson, 171 Wash. 2d 292, 303, 253 P.3d 84 (2011) (“new rule” of
constitutional interpretation is retroactive); State v. Light-Roth, 191 Wash. 2d 328, 333, 422
P.3d 444 (2018) (overturning existing precedent is a significant change of law).
From its earliest days, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A
RCW, set forth a basic principle to govern sentencing on multiple charges: each offense
would count in the offender score for the other charges, thereby raising the standard
range for each count, but those counts would be served concurrently with each other.
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RCW 9.94A.589(1)(a).3 This trade-off is known as the “‘multiple offense policy.’”
State v. Batista, 116 Wash. 2d 777, 786-87, 808 P.2d 1141 (1991). A trial judge is
permitted to vary from this policy by use of an exceptional sentence if the resulting
standard range was “clearly excessive.” RCW 9.94A.535(1)(g).
However, subsections (1)(b) and (1)(c) operated differently than (1)(a). In each
instance, other current offenses did not add to the offender score (and in the case of
(1)(b), no offenses count in the offender score) and the counts were served consecutively
to each other. For varying reasons, all three divisions of this court concluded that
RCW 9.94A.589(1)(b)4 governing serious violent offenses and RCW 9.94A.589(1)(c)5
governing multiple firearms possession charges, required sentences to be served
consecutively.
That view changed with the publication of Mulholland in 2007. There the court
concluded, affirming a Division Two ruling, that mitigated sentences were available
3
Most provisions of the SRA have been renumbered on multiple occasions.
Throughout this opinion, we will cite to the current codification for convenience rather
than trace each provision’s codification history.
4
E.g., State v. Kinney, 125 Wash. App. 778, 106 P.3d 274 (2005); State v. Price,
103 Wash. App. 845, 14 P.3d 841 (2000); State v. Flett, 98 Wash. App. 799, 992 P.2d 1028
(2000).
5
E.g., State v. Collins, No. 70158-3-I (Wash. Ct. App. June 23, 2014)
(unpublished), http://www.courts.wa.gov/opinions/pdf/710583.pdf.; State v. Murphy, 98
Wash. App. 42, 988 P.2d 1018 (1999); State v. Haggin, 195 Wash. App. 315, 381 P.3d 137
(2016).
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when sentencing serious violent offenses. Mulholland, 161 Wash. 2d 327-31. Mulholland
issued nine weeks before the first of Mr. Henriques’ sentencing hearings.
McFarland extended Mulholland to unlawful firearms possession charges, RCW
9.94A.589(1)(c). The court concluded that the Mulholland analysis of subsection (1)(b)
applied equally to subsection (1)(c). McFarland, 189 Wash. 2d at 53-55. Accordingly, the
trial court had authority to consider an exceptional sentence based on the “too excessive”
mitigating factor, RCW 9.94A.535(1)(g). Id. at 55.
Mr. Henriques argues that this change in the law justifies a new sentencing
proceeding in his case. However, there was no change in the law because the
Washington Supreme Court had never issued a contrary interpretation of the statute. An
“intervening appellate decision that . . . ‘simply applies settled law to new facts’ does not
constitute a significant change in the law.” State v. Miller, 185 Wash. 2d 111, 114-15, 371
P.3d 528 (2016) (quoting In re Pers. Restraint of Turay, 150 Wash. 2d 71, 83, 74 P.3d 1194
(2003)). Because McFarland merely applied Mulholland to “new facts” it does not apply
retroactively, RCW 9.94A.589(1)(c).
A year before McFarland, the court considered whether Mulholland constituted a
change in the law that could be applied retroactively. Miller, 185 Wash. 2d at 113. Miller
had been convicted of two counts of attempted first degree murder and received
consecutive sentences five years before Mulholland. Id. at 113. After that decision was
released, the trial court vacated the sentence on the basis that the court had been unaware
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of its discretion to impose an exceptional sentence. Id. at 113-14. Concluding that
Mulholland did not constitute a change in law because no intervening appellate decision
was overturned, the Washington Supreme Court reinstated the sentence. Id. at 115-16.
This case is in the same posture. McFarland did not overturn existing precedent.
Accordingly, the court’s interpretation of RCW 9.94A.589(1)(c) means that provision has
always allowed an exceptional sentence upon an appropriate showing. It is not
retroactive.
Although he attacked the consecutive nature of the sentences in his appeal and in
his first PRP, Mr. Henriques has never argued that he was entitled to an exceptional
sentence. That argument has always been available to him. Because McFarland does not
constitute a retroactive change in law, it does not aid him here. Accordingly, Mr.
Henriques has not shown good cause for accepting his successive petition. It, therefore,
is dismissed. RCW 10.73.140.
Dismissed.
_________________________________
Korsmo, A.C.J.
WE CONCUR:
______________________________ _________________________________
Melnick, J Lawrence-Berrey, J.
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