In re the Personal Restraint of Colbert

Johnson, J.

¶1 In this personal restraint petition (PRP), the petitioner challenges his 2005 conviction for second degree rape, arguing our decision in State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014)—which held that instructing the jury that the defendant bears the burden to establish the victim’s consent was error—should apply retroactively. He presents two main arguments: that his PRP overcomes the one-year time limit under chapter 10.73 RCW because the decision in W.R. either involved statutory interpretation exempt from the time bar or is a significant change in the law material to his conviction that requires retroactive application. We hold that W.R. does not apply retroactively and deny the petition as time barred.

¶2 This is Bobby Colbert’s third PRP. Colbert was tried on January 31, 2005, for rape in the third degree and rape in the second degree involving two different victims on two different dates. A jury convicted Colbert on both counts. Colbert received an indeterminate sentence of 136 months to life on March 31, 2005, for the second degree rape conviction.¹

¶3 At Colbert’s trial, the court instructed the jury that Colbert had the burden of proving consent as to the second degree rape charge. While Colbert’s counsel acknowledged that the proposed instruction was consistent with then-existing case law as set forth in State v. Camara, 113 Wn.2d 631, 781 P.2d 483 (1989), overruled by W.R., 181 Wn.2d 757, and proposed an instruction similar to the one given there,² counsel expressed concern that the instruction would cause confusion about the burdens as to consent. The court overruled the objection³ and instructed the jury:

Consent is a defense to a charge of rape in the second degree. This defense must be established by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering ah the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty.

PRP Ex. 1 (Instr. 15). In W.R., we held giving this instruction is error.

¶4 Colbert filed this third PRP in this court on December 26, 2013. The petition was originally based on State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013), which involved the Sixth Amendment to the United States Constitution’s right to control one’s defense. We transferred the PRP to the Court of Appeals. The Court of Appeals then certified Colbert’s PRP to this court after W.R. was decided.

¶5 Colbert alleges that he is unlawfully restrained because there has been a significant change in the law that is material to his conviction. RAP 16.4(c)(4).⁴ He argues that the trial court violated his due process rights by requiring him to prove consent by a preponderance of the evidence, contrary to the holding of W.R.

¶6 The question here is whether the petition is timely. Because Colbert’s case became final on June 8, 2007, when the appellate mandate issued, he is outside the one-year period for collaterally attacking a conviction unless an exception applies. RCW 10.73.090.

¶7 Colbert first argues that his petition is not subject to the one-year time bar of RCW 10.73.090 because his claims are based on a “significant change in the law,” an exception to the one-year limitation under RCW 10.73.100(6), which provides:

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.

Colbert claims that W.R. significantly changed the law regarding the burden of proof of consent in a second degree rape case.

¶8 RCW 10.73.100(6) sets forth three conditions that must be met before a petitioner can overcome the one-year time bar: (1) a substantial change in the law (2) that is material and (3) that applies retroactively. Colbert is correct that W.R. constitutes a significant change in the law, material to his conviction. A “significant change in the law” occurs when “ ‘an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue.’ ” In re Pers. Restraint of Domingo, 155 Wn.2d 356, 366, 119 P.3d 816 (2005) (quoting In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000)). The State does not disagree that W.R. constitutes a substantial change in the law that is material to Colbert’s conviction. See Suppl. Br. of Resp’t at 15 (acknowledging that W.R. constitutes a “significant change of the law” within the meaning of RCW 10.73.100(6)). However, determining whether a decision is a change in the law is an inquiry distinct from determining whether it is applied retroactively.

¶9 Colbert first contends that retroactive application is warranted because the W.R. opinion does not create a “new rule” because it is based on interpretation of a 1975 statute. Suppl. Br. of Pet’r at 8-9. While Colbert is correct that “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 Wn.2d 535, 538, 919 P.2d 69 (1996); see also In re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 842 P.2d 950 (1992); In re Pers. Restraint of Moore, 116 Wn.2d 30, 803 P.2d 300 (1991) (holding when this court interprets a statute, that statute is deemed to have had that newly interpreted meaning since that statute was enacted). We disagree that W.R. involved statutory interpretation.⁵

¶10 W.R. expressly overruled Camara and State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006),⁶ on due process grounds and was not based on statutory interpretation. Wash. Const. art. I, § 12. We know that because the W.R. opinion itself holds that it is a violation of due process to task the defendant with proving a defense that negates an element of the crime charged. The decision did not turn on any statutory language. The misallocation of the burden addressed in W.R. has only a tangential relationship to the second degree rape statute insofar as consent can negate an element of the offense. The statutory language of rape in the second degree does not mention consent or contain any provisions relating to affirmative defense.⁷ Unlike rape in the third degree, consent is not an element of rape in the second degree. As was explained in Lynch:

Rape in the second degree encompasses sexual intercourse by forcible compulsion “under circumstances not constituting rape in the first degree,” sexual intercourse with a victim who is physically helpless or mentally incapacitated, and sexual intercourse characterized by the victim’s vulnerability and dependence on the perpetrator for certain care or services. Rape in the third degree encompasses sexual intercourse “under circumstances not constituting rape in the first or second degrees,” where the victim clearly expressed a lack of consent or the perpetrator made a “threat of substantial unlawful harm” to the victim’s “property rights.”

Lynch, 178 Wn.2d at 515 (Gordon McCloud, J., concurring) (footnotes omitted) (quoting RCW 9A.44.050(1)(a), .060(1)(b)). Since second degree rape requires proof of forcible compulsion and not lack of consent, the reasoning in W.R. did not turn on statutory interpretation, even though, in some cases, consent negates the element of forcible compulsion. The holding of W.R. makes this point expressly.

¶11 Nonetheless, Colbert cites two cases in support of his argument that W.R. is based on statutory interpretation, In re Personal Restraint of Grasso, 151 Wn.2d 1, 84 P.3d 859 (2004) (plurality opinion), and In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015). Grasso dealt with the admission of a child victim’s hearsay statements in a child molestation case. In a three-justice lead opinion, Grasso held that the meaning of “testify” as used in RCW 9A.44.120(2)(a) and redefined in State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), must be applied retroactively because it was based on statutory interpretation and thus not a “new rule” warranting Teague retroactivity analysis. Teague v. Lane, 489 U.S. 288, 299, 311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion). However, Grasso is inapposite to W.R.

¶12 In Grasso, we decided retroactive application was appropriate for two reasons: First, because the rule announced in Rohrich was based on statutory construction of the word “testifies,” the court’s construction was deemed to be what the statute has meant since its enactment. In other words, there was no question of retroactivity. Unlike Grasso, as pointed out above, W.R. is based on constitutional due process principles rather than statutory interpretation. Second, and more importantly, Grasso was procedurally situated differently and not facing the same time bar that Colbert now faces. To the extent that Rohrich was based on constitutional principles similar to W.R., the Rohrich decision was filed before Grasso’s direct review was final. See Grasso, 151 Wn.2d at 12 (“ ‘[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final! .. . Because we consider the date of the mandate to be the date of finality in this case, the Rohrich decision occurred before Grasso’s direct review was final.” (first alteration in original) (quoting In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 (1992))). In the present case, since the W.R. decision occurred several years after the mandate issued, it is not controlling.

¶13 Next, Colbert argues that Tsai supports his position that W.R. warrants retroactive application. In Tsai, we granted collateral relief involving a claim of ineffective assistance of counsel regarding the advisement of immigration consequences of a conviction. The ineffective assistance claim was based on the statutory requirements of RCW 10.40.200, which in certain cases deals with deportation upon conviction. We held that Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), did not announce a new rule under Washington law for Teague purposes because RCW 10.40.200, adopted in 1983, had always required a defendant to be advised by counsel of immigration consequences, which Padilla ultimately recognized. We held that Padilla warranted retroactive application as a significant, material, and retroactive application of statutory requirements exempting the PRP from the one-year time bar, but was not a new rule subject to Teague analysis. Because W.R. is not statutorily based, Tsai is not controlling here.

¶14 Even where a case does not involve statutory interpretation, it may in limited circumstances be retroactive under narrow exceptions recognized in Teague. In determining whether an exception applies, we typically first determine whether the rule is a new rule subject to Teague analysis. Generally, RCW 10.73.100(6) is interpreted consistent with the federal retroactivity analysis under Teague. See In re Pers. Restraint of Gentry, 179 Wn.2d 614, 625, 316 P.3d 1020 (2014). Under that analysis, a “new rule” will not be given retroactive application to cases on collateral review. St. Pierre, 118 Wn.2d at 326 (citing Teague, 489 U.S. at 311). A new rule is defined as one that breaks new ground or “ ‘was not dictated by precedent existing at the time the defendant’s conviction became final.’ Moreover, if‘reasonable jurists could disagree on the rule of law, the rule is new.’ ” In re Pers. Restraint of Haghighi, 178 Wn.2d 435, 443, 309 P.3d 459 (2013) (citation and internal quotation marks omitted) (quoting In re Pers. Restraint of Eastmond, 173 Wn.2d 632, 639-40, 272 P.3d 188 (2012)). W.R. is such a “new rule.” The change in who bears the burden of proving consent in a second degree rape case was not dictated by precedent. W.R. expressly overruled our prior cases, which had established the contrary rule. W.R. explicitly noted Camara and Gregory had “become incorrect” because “subsequent United States Supreme Court precedent clarifie[d] that our prior understanding was erroneous.” W.R., 181 Wn.2d at 768. As a new rule, we thus turn to the Teague framework to determine if the change in who bears the burden of proving consent in a second degree rape case warrants retroactivity.

¶15 Under the Teague analysis, a new rule warrants retroactive application under two circumstances: “It must either be a substantive rule that places certain behavior ‘beyond the power of the criminal law-making authority to proscribe’ or a watershed rule of criminal procedure ‘implicit in the concept of ordered liberty.’ ” Gentry, 179 Wn.2d at 628 (internal quotation marks omitted) (quoting Teague, 489 U.S. at 311). We have recognized that

Teague presents a very high hurdle to overcome. In announcing watershed rules, courts have been sparing to the point of unwillingness. See In re Pers. Restraint of Market, 154 Wn.2d 262, 269 n.2, 111 P.3d 249 (2005) (noting that in review of 11 claimed watershed rules, the United States Supreme Court had yet to declare any a watershed rule triggering retroactivity). The United States Supreme Court has cited the rule announced in Gideon v. Wainwright, [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963),] guaranteeing the right to counsel for criminal defendants, as an example of a watershed rule of criminal procedure, though the decision in Gideon predated Teague by several years. Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). But the United States Supreme Court has stopped short of recognizing any other instance of the type of rule it discussed in Teague. Likewise, we have yet to announce such a rule, though we have several times concluded a rule does not meet the Teague requirements. See Markel, 154 Wn.2d at 273 (holding the rule announced in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), is not a watershed rule of criminal procedure); State v. Evans, 154 Wn.2d 438, 447-48, 114 P.3d 627 (2005) (same with regard to Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),] and Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),] rules).

Gentry, 179 Wn.2d at 628-29 (footnotes omitted).

¶16 Colbert argues that if the rule from W.R. regarding the burden of proof of consent is a new rule, it must be applied retroactively under a Teague exception. The first Teague exception—generally involving substantive rules that place certain behavior beyond the power of the criminal-law-making authority to proscribe—we conclude does not apply because that exception involves a rule that either decriminalizes a class of private conduct or prohibits the imposition of capital punishment on a particular class of persons. Saffle, 494 U.S. at 495 (holding Teague exceptions not met based on Gideon, 372 U.S. 335).

¶17 The second Teague exception, involving “watershed” procedural rules, is limited to new procedures considered essential for an accurate conviction. Teague, 489 U.S. at 313. As Colbert acknowledges, courts are reluctant to declare rules “watershed.” Suppl. Br. of Pet’r at 20-21. In this context, to qualify as a new watershed rule, the rule must be necessary to prevent “an impermissibly large risk” of inaccurate convictions and must “ ‘alter our understanding of the bedrock procedural elements’ ” essential to the fairness of a proceeding. Teague, 489 U.S. at 312, 311 (emphasis omitted) (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). This second Teague exception is very narrow. The Court of Appeals has correctly recognized this:

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). “ ‘[T]his class of rules is extremely narrow, and it is unlikely that any . . . ha[s] yet to emerge.’" Markel, 154 Wn.2d at 269 (quoting Schriro[⁸]).

State v. Carney, 178 Wn. App. 349, 362, 314 P.3d 736 (2013) (most alterations in original) (footnote omitted). We agree.

¶18 Colbert cites to a footnote in Hall v. Kelso, 892 F.2d 1541 (11th Cir. 1990), to support his argument that found retroactivity applicable under the “watershed” exception. There, the court held a jury instruction was an improper burden shift under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and warranted retroactive application. While Hall found retroactive application under the watershed rule of Teague warranted,⁹ other federal courts considering the same issue involved in Hall have disagreed that Sandstrom created a watershed rule. See Johnson v. McKune, 288 F.3d 1187, 1200 (10th Cir. 2002); Cain v. Redman, 947 F.2d 817, 822 (6th Cir. 1991). The United States Supreme Court has not held that Sandstrom created a watershed rule.

¶19 Moreover, Hall dealt with a felony murder case where the instruction was held to be impermissible because it relieved the State altogether of the burden of proving that the defendant had the requisite criminal intent for the underlying crime. Because the State here was required to prove that forcible compulsion occurred and all other elements of the offense, the risk of an inaccurate conviction does not exist. The jury necessarily found the State proved forcible compulsion.

¶20 We hold that Colbert’s petition is beyond the time limits of RCW 10.73.090 and fails to meet the time bar exception set out in RCW 10.73.100(6).¹⁰ We deny Colbert’s petition.

Owens, Stephens, Wiggins, González, and Yu, JJ., concur.

1 The second degree rape charge—involving victim K.P.—is the only one at issue in this petition.

2 Before the rule discussed below, Camara held the burden of proof on consent in rape prosecution lies with the defendant.

3 The court noted that the defense had the benefit of any evidence, regardless of which party presented it.

4 “The restraint must be unlawful for one or more of the following reasons:

“(4) 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 proceeding or civil proceeding instituted by the state or local government, and sufficient reasons exist to require retroactive application of the changed legal standard.’’

5 Even if W.R. was grounded in statutory interpretation, and it was not, it would have overruled a previous interpretation of the rape statute. In other words, it was a reinterpretation of the statute, and the principle that the court’s construction is deemed to be what the statute has meant since its enactment does not logically appear to apply. No cases have been cited or found where a decision overrules prior cases involving statutory interpretation subject to this rule. Whether the interpretation applies from enactment or from the date of the case “reinterpreting” a statute is an interesting issue we need not resolve.

6 Gregory reaffirmed the holding in Camara that the defendant must prove consent by a preponderance of the evidence.

7 Rape in the second degree:

“(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

“(a) By forcible compulsion.” RCW 9A.44.050.

Rape in the third degree:

“(1) A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person:

“(a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or

“(b) Where there is threat of substantial unlawful harm to property rights of the victim.” RCW 9A.44.060 (emphasis added).

8 Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).

9 Hall, 892 F.2d at 1543 n.1. The Hall opinion included its retroactivity analysis in a footnote, which we find unpersuasive.

10 Because we determine that the decision in W.R. announced a new rule not given retroactive application and dismiss Colbert’s petition as time barred, we need not reach the two questions of (1) whether Colbert was actually and substantially prejudiced by the change in burden of proof of consent and (2) whether Colbert invited error by seeking a jury instruction similar to the one proposed by the State and submitted to the jury.