In the Matter of the Personal Restraint of: Bradleigh A. Hines

FILED
FEBRUARY 23, 2021
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. 37647-8-III
BRADLEIGH A. HINES, )
)
Petitioner. ) UNPUBLISHED OPINION
STAAB, J. — In 2009, Bradleigh Hines was convicted of two counts of failure to
register as a sex offender in Asotin County. The court imposed concurrent sentences of
25.5 months. Mr. Hines did not appeal the judgment or sentence. Three months later, the
unit of prosecution for this offense was defined in State v. Durrett, 150 Wn. App. 402,
406, 208 P.3d 1174 (2009).
Mr. Hines filed this personal restraint petition (PRP) in 2020, arguing that his two
convictions violated double jeopardy under Durrett. The State agrees that the PRP is
timely and that the multiple convictions violated Mr. Hines’s double jeopardy rights. We
vacate his second conviction for failing to register as a sex offender and remand for
resentencing.
No. 37647-8-III
In re Pers. Restraint of Hines
FACTS
In September 2008, the State charged Bradleigh Hines with one count of failure to
register as a sex offender in Asotin County. An amended information was filed on
February 24, 2009, charging Mr. Hines with two counts of failure to register. Count one
alleged a failure to register between August 1, 2008 and September 1, 2008, and count
two alleged a failure to register between November 25, 2008 and December 13, 2008.
Following a bench trial on February 26, 2009, Mr. Hines was found guilty of both counts
and sentenced to 25.5 months on each count, concurrent.
On July 10, 2020, Hines filed this PRP, asserting that double jeopardy bars his
second conviction for failure to register. This court called for a response from the State,
and the acting chief judge referred this matter to a panel of judges for determination on
the merits after determining that Mr. Hines’s petition is not frivolous. RAP 16.11(b).
ANALYSIS
As a threshold matter, this court must decide if Mr. Hines’s PRP, filed more than
one year after the judgment became final, is timely. To prevail in a PRP, a petitioner
must establish (1) a constitutional error that resulted in actual and substantial prejudice or
(2) a fundamental defect of a nonconstitutional nature that inherently resulted in a
complete miscarriage of justice. In re Pers. Restraint of Dove, 196 Wn. App. 148, 154,
381 P.3d 1280 (2016); see also In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33,
267 P.3d 324 (2011). However, there are certain constitutional errors for which relief is
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automatically available on collateral review, including double jeopardy violations. In re
Pers. Restraint of Moi, 184 Wn.2d 575, 579, 360 P.3d 811 (2015) (petitioner satisfies his
burden to demonstrate actual and substantial prejudice if he demonstrates a double
jeopardy violation); In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106(2007).
A personal restraint petition filed more than one year after the judgment and
sentence becomes final is barred as untimely under RCW 10.73.090(1) unless the
judgment and sentence is invalid on its face, the trial court lacked jurisdiction, or the
petition is based solely on one or more of the exceptions set forth in RCW 10.73.100(1)-
(6). Mr. Hines claims his petition is timely pursuant to RCW 10.73.100(3), under which
double jeopardy claims are exempt from RCW 10.73.090’s one-year time bar. The
timeliness question is a threshold inquiry: this court does not have to decide whether an
entire claim is meritorious to decide whether it fits within an exception to the time bar.
See In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 99-108, 351 P.3d 138(2015) (examining whether two petitioners’ PRP claims fit within the RCW 10.73.100
exception to the one-year time bar, for both the petitioner whose claim did survive and
also the petitioner whose claim did not survive). Since Mr. Hines’s PRP is based solely
on a double jeopardy claim, it clearly fits within RCW 10.73.100(3)’s exception to the
one-year time bar, and this court must consider the merits of his argument. See, e.g., In
re Pers. Restraint of Schorr, 191 Wn.2d 315, 320, 422 P.3d 451 (2018).
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The next question this court must address is whether the PRP has merit. The
double jeopardy clause of the United States Constitution provides that no person shall “be
subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.
amend. 5. Similarly, the Washington State Constitution provides that “[n]o person shall
be . . . twice put in jeopardy for the same offense.” Const. art. I, § 9. Washington’s
clause provides the same protection as the federal clause. In re Pers. Restraint of Davis,
142 Wn.2d 165, 171, 12 P.3d 603 (2000).
The double jeopardy provision of both the state and federal constitutions prohibits
multiple convictions under the same statute if the defendant has committed only “one unit
of the crime.” State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002). Accordingly,
when a defendant is convicted of multiple violations of the same statute, the double
jeopardy question focuses on “‘what unit of prosecution’” the legislature intended as the
punishable act under the statute. Davis, 142 Wn.2d at 172 (quoting State v. Tili, 139
Wn.2d 107, 113, 985 P.2d 365 (1999)). This question is resolved by examining the
relevant statute in order to ascertain what the legislature intended. Davis, 142 Wn.2d at
172.
In State v. Durrett, 150 Wn. App. 402, 410-11, 208 P.3d 1174 (2009), Division
One of this court held that the “requirement” to register as a sex offender is an ongoing
course of conduct that may not be divided into separate time periods to support separate
charges. In that case, the defendant was a sex offender who was required to report
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weekly pursuant to former RCW 9A.44.130(6)(b) (2006). Id. at 405-06. He failed to
report for two weeks in a row, reported in the next two weeks, and then failed to report
again until he was arrested seven weeks later. The State charged the defendant with two
counts of failure to register based on the two separate periods of noncompliance, and he
was found guilty of both charges. Id. Division One of the Court of Appeals held that the
defendant’s convictions for two counts of failure to register as a sex offender violated
double jeopardy, concluding that the punishable offense, failure to comply with an
ongoing duty to report, was a single course of conduct. The court held that the period of
the defendant’s failure to report ran from the date of his first failure to report until his
arrest, rejecting the State’s argument that the fact that the defendant reported for two
weeks in the middle of that period of noncompliance subjected the defendant to two
convictions.
Division Two of the Court of Appeals subsequently applied the same reasoning in
State v. Green, 156 Wn. App. 96, 99-101, 230 P.3d 654 (2010). The defendant in that
case was a sex offender who was required to register every 90 days pursuant to RCW
9A.44.130. Id. at 98. He registered as required in April 2007 but failed to report again
for over a year. Id. The State charged the defendant with failing to register, stating the
violation date as July 2007. After the trial court found the defendant not guilty, the State
again charged the defendant with failure to register, stating the violation date as October
2007. The court dismissed the second charge on double jeopardy grounds. On appeal,
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Division Two of the Court of Appeals relied on Durrett to conclude that the duty to
register every 90 days pursuant to RCW 9A.44.130 “create[s] an ongoing course of
conduct that cannot support separate charges.” Id. at 101.
In this case, the State agrees that under Durrett,1 failure to register as a sex
offender is an “ongoing” offense that must be considered a “course of conduct.” Thus,
multiple convictions for the offense of failure to register are barred. As charged here, the
period of Mr. Hines’s failure to report ran from the date of his first failure to report, on or
about August 1, 2008, until his arrest. Accordingly, the second count of failure to
register that was purportedly based on the period of noncompliance from November 25,
2008, until December 13, 2008, violated double jeopardy.
Because Mr. Hines has demonstrated that one of his convictions violates double
jeopardy, he has demonstrated that he is entitled to relief. In re Pers. Restraint of Moi,
184 Wn.2d 575, 579, 360 P.3d 811 (2015); In re Pers. Restraint of Borrero, 161 Wn.2d
532, 536, 167 P.3d 1106 (2007). The applicable remedy is to vacate the second count of
failure to register as a sex offender and remand for resentencing. In re Pers. Restraint of
1
The Durrett opinion was filed on June 1, 2009, several months after Mr. Hines
was found guilty and sentenced. The State does not challenge the applicability of Durrett
to Mr. Hines, apparently conceding that Durrett applies retroactively. See, e.g., In re
Pers. Restraint of Farney, 91 Wn.2d 72, 75-76, 583 P.2d 1210 (1978) (noting that when a
positive constitutional right, such as the prohibition against double jeopardy, is violated,
the controlling decision is applied retroactively).
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Francis, 170 Wn.2d 517, 532, 242 P.3d 866 (2010); see also In re Pers. Restraint of
White, 1 Wn. App. 2d 788, 798, 407 P.3d 1173 (2017).
Vacate and remand.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Pennell, C.J.
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