Personal Restraint Petition Of Jason Robert Stomps

Filed
Washington State
Court of Appeals
Division Two
December 1, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 53400-2-II
JASON ROBERT STOMPS,
UNPUBLISHED OPINION
Petitioner.
LEE, C.J. — In this personal restraint petition (PRP), Jason R. Stomps seeks relief from
restraint resulting from his convictions for first degree burglary and three counts of second degree
kidnapping; each conviction included a firearm sentencing enhancement.1 Stomps’ grounds for
relief include ineffective assistance of counsel, sufficiency of the evidence, and freestanding actual
innocence. Recognizing he has filed his PRP more than one year after his judgment became final,2
Stomps argues that his PRP is not time barred because he has a gateway actual innocence claim,
his claims are based on newly discovered evidence, and there has been a significant change in the
law. We hold that Stomps’ PRP is a mixed petition and must be dismissed.
1
Stomps was also found guilty of three counts of second degree assault. At sentencing, the trial
court found that the assault charges merged with the kidnapping charges and vacated the verdicts
on the three counts of second degree assault.
2
RCW 10.73.090(1).
No. 53400-2-II
FACTS
The facts underlying Stomps’ convictions are documented in Stomps’ direct appeal3 and
are undisputed here. We summarized the facts underlying Stomps’ convictions in his direct appeal:
Stomps worked as a bail bond recovery agent. One evening, Stomps went
to the home of Annette and Bill Waleske looking for Courtney Barnes. Barnes was
free on bail, and his girlfriend, Sinan Hang, guaranteed the bail bond. Hang listed
the Waleskes’ address as her address. Hang was friends with Annette and had used
the Waleskes’ address in the past, but she did not have permission to use it on the
bail bond application. Barnes listed a separate address. When Barnes failed to
appear for a court hearing, the bail bond company contracted with Stomps to locate
him.
When Stomps arrived at the Waleskes’ residence, Annette and Bill were
out, but their daughter, Tayler Waleske; son, Quincey Waleske; and daughter’s
boyfriend, Nathan Panosh, were at the home. Tayler and Nathan were watching a
movie when they heard pounding on the door. They walked towards the door and
heard Stomps yell, “I’m looking for Courtney Barnes. Open up your door, or I’ll
kick your f[*****]g door down.” Report of Proceedings (RP) at 114. Tayler did
not know anyone by the name of Courtney Barnes. Tayler was frightened by
Stomps, and yelled out, “We don’t know Courtney. You need to leave.” RP at 115.
The pounding and yelling continued. Tayler and Nathan went upstairs to get
Quincey. Tayler then called 911.
While Tayler was on the phone with the 911 operator, Stomps broke down
the front door with a railroad tie driver, which is similar to a sledgehammer. Once
inside, he ordered everyone downstairs. Even though he recognized that the three
individuals were not the fugitive he was looking for and that Barnes was not in the
house, Stomps pointed his gun at them and ordered Quincey, who had just gotten
out of the shower and had only a towel wrapped around him, to handcuff himself
to Nathan and then ordered all three to get on the floor. Stomps then identified
himself as a bail bond recovery agent. The parties dispute whether this was the first
time Stomp[s] identified himself. Nathan then repeatedly asked for the key to
unlock the handcuffs, but Stomps refused.
Police arrived at the residence and detained Stomps. The State ultimately
charged Stomps with first degree burglary, three counts of first degree kidnapping,
3
State v. Stomps, No. 47546-4-II (Wash. Ct. App. July 19, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2047546-4-II%20Unpublished%20Opinion.pdf.
2
No. 53400-2-II
and three counts of second degree assault; each charge included a special allegation
that he was armed with a firearm.
Stomps, No. 47546-4-II, slip. op. at 1-2. Stomps testified in his own defense at trial.
A jury found Stomps guilty as charged. Id. at 3. Stomps appealed, arguing that evidence
was insufficient to support the jury’s verdict. Id. We affirmed Stomps’ convictions. Id at 7. The
mandate terminating review was issued on February 13, 2017.4
Stomps filed this PRP on April 22, 2019.
ANALYSIS
Stomps argues several grounds for relief in his PRP: (1) ineffective assistance of counsel
based on trial counsel’s failure to request jury instructions on unplanned entry; (2) ineffective
assistance of counsel based on trial counsel’s failure to call Stomps’ former partner, David Smith,
as a witness; (3) sufficiency of the evidence; and (4) freestanding actual innocence. Specifically,
Stomps contends that his PRP is not time barred because he has met his burden to establish a
gateway actual innocence claim, allowing this court to address his ineffective assistance of counsel
claims. He also contends that his claim that his trial counsel was ineffective for failing to call
Smith as a witness is not time barred because of newly discovered evidence, an enumerated
exception to the time bar. Stomps further contends that his PRP is not time barred because
insufficient evidence supports his conviction and there was a significant change in the law material
to his conviction, which are also enumerated exceptions to the time bar. Finally, Stomps contends
that he has a freestanding actual innocence claim.
4
Mandate, No. 47546-4-II (February 13, 2017).
3
No. 53400-2-II
Because Stomps cannot meet his burden to establish a gateway actual innocence claim to
allow him to argue ineffective assistance of counsel based on trial counsel’s failure to request jury
instructions on unplanned entry, at least one of his ineffective assistance claims is time barred.
Therefore, Stomps’ petition is an improper mixed petition and must be dismissed.
A. LEGAL PRINCIPLES
“Relief by way of a collateral challenge to a conviction is extraordinary, and the petitioner
must meet a high standard before this court will disturb an otherwise settled judgment.” In re Pers.
Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). To be entitled to relief in a PRP,
the petitioner must show either (1) a constitutional error resulting 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 Finstad, 177 Wn.2d 501, 506, 301 P.3d
450 (2013). When reviewing a PRP, we may (1) deny the petition, (2) grant the petition, or (3)
transfer the petition to the superior court for a reference hearing. In re Pers. Restraint of Yates,
177 Wn.2d 1, 17, 296 P.3d 872 (2013); In re Pers. Restraint of Schreiber, 189 Wn. App. 110, 113,
357 P.3d 668 (2015).
Under RCW 10.73.090(1), “[n]o petition or motion for collateral attack on judgment and
sentence in a criminal case may be filed more than one year after the judgment becomes final if
the judgment and sentence is valid on its face and was rendered by a court of competent
jurisdiction.”5 RCW 10.73.100 provides six exceptions to the one year time bar on collateral
attacks:
5
We note that, in a statement of additional authorities, Stomps submitted Governor’s
Proclamation 20-47 for consideration on the issue of whether his petition is time barred, implying
4
No. 53400-2-II
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:
(1) Newly discovered evidence, if the defendant acted with reasonable
diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was
unconstitutional on its face or as applied to the defendant’s conduct;
(3) The conviction was barred by double jeopardy under Amendment V of
the United States Constitution or Article I, section 9 of the state Constitution;
(4) The defendant pled not guilty and the evidence introduced at trial was
insufficient to support the conviction;
(5) The sentence imposed was in excess of the court’s jurisdiction;
(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.
If a petition is mixed, in that it raises both untimely claims and claims that are exempt from
the time bar under RCW 10.73.100, then the entire petition must be dismissed. In re Pers.
Restraint of Thomas, 180 Wn.2d 951, 952-53, 330 P.3d 158 (2014). We need only determine
whether one claim is time barred in order to dismiss the petition as mixed. In re Pers. Restraint of
Hankerson, 149 Wn.2d 695, 702-03, 72 P.3d 703 (2003). “Under such circumstances the court
will not analyze every claim that is raised in order to determine or advise which claims are time
the Governor’s proclamation tolls the time bar in RCW 10.73.090. However, the proclamation
only preserves existing rights, it does not revive already expired claims. In re Matter of Blanks,
___ Wn. App. 2d ____, 471 P.3d 272 (Sept. 1, 2020), In re Pers. Restraint of Millspaugh, 14 Wn.
App. 2d 137, 469 P.3d 336 (2020). Here, the time bar expired on February 13, 2018, one year
after the mandate was issued in Stomps’ case and well before the Governor’s proclamation was
issued on April 14, 2020. Therefore, the Governor’s’ proclamation has no application to Stomps’
petition.
5
No. 53400-2-II
barred and which are not, nor will it decide claims under RCW 10.73.100 that are not time barred.”
Id. at 703.6
B. GATEWAY ACTUAL INNOCENCE
Stomps’ ineffective assistance claim based on trial counsel’s failure to request jury
instructions on unplanned entry does not implicate any of the exceptions to the time bar
enumerated in RCW 10.73.100.7 However, establishing a gateway actual innocence claim would
permit this court to consider grounds for relief in a petition that would otherwise be time barred
under RCW 10.73.090. Thus, Stomps’ ineffective assistance of counsel claim based on the failure
to request jury instructions is time barred unless Stomps meets his burden to establish a gateway
6
Our Supreme Court has explained this rule exists, in part, “because by definition any claim that
is not time barred may be refiled without danger of untimeliness.” Hankerson, 149 Wn.2d at 702.
7
We recognize that the avoidance principle, articulated in In re Personal Restraint of Carter,
requires this court to consider claimed statutory exceptions to the time bar before applying the
actual innocence doctrine. 172 Wn.2d 917, 932-33, 263 P.3d 1241 (2011). However, Stomps’
ineffective assistance of counsel claim based on the failure to request jury instructions on
unplanned entry does not implicate any statutory exception to the time bar. To the extent Stomps
attempts to argue that this claim is based on newly discovered evidence and, therefore, falls under
RCW 10.73.100(1), this argument must fail.
To prevail on a claim of newly discovered evidence, a petitioner must show that the
evidence “‘(1) will probably change the result of the trial; (2) was discovered since the trial; (3)
could not have been discovered before trial by the exercise of due diligence; (4) is material; and
(5) is not merely cumulative or impeaching.’” In re Pers. Restraint of Lord, 123 Wn.2d 296, 319-
20, 868 P.2d 835 (1994) (quoting State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)).
Here, even if certain “newly discovered” evidence could revive an otherwise time barred
ineffective of counsel claim, Stomps has not identified what newly discovered evidence supports
his claim that counsel was ineffective for failing to request a jury instruction on unplanned entry.
Instead, Stomps’ claim is based on what did or did not occur during trial, facts that cannot be
considered “newly discovered.” Therefore, there is no basis for applying the newly discovered
evidence exception to the time bar to Stomps’ ineffective assistance of counsel claim based on the
failure to request jury instructions on unplanned entry.
6
No. 53400-2-II
actual innocence claim. We hold that Stomps does not meet his burden to establish a gateway
actual innocence claim, and therefore, his ineffective assistance claim based on the failure to
request jury instructions is time barred.
Our Supreme Court has recognized that a petitioner may raise two types of actual
innocence claims. In re Pers. Restraint of Weber, 175 Wn.2d 247, 256, 284 P.3d 734 (2012).
First, freestanding actual innocence claims are “constitutional claims of actual innocence in which
innocence itself provides a basis for relief.” Id. Second, gateway actual innocence claims are
“used to avoid procedural time bars so that a court may review other claimed constitutional errors.”
Id.The “probability standard” applies when considering a gateway actual innocence claim.
Id. at 259. “Under the probability standard, after evaluating the new reliable evidence in light of
the evidence presented to the jury, a court must be persuaded that ‘it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Id. at 260
(quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)).
Furthermore,
To be credible, a gateway actual innocence claim requires the petitioner to support
his allegations with new, reliable evidence. This may include exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence that was
not presented at trial. New evidence in this context does not mean “newly
discovered” but rather “newly presented” evidence.
Id. at 258-59.
First, we must determine what “new, reliable” evidence Stomps has presented to support
his gateway actual evidence claim. Id. at 258. Stomps has presented two specific pieces of “new”
7
No. 53400-2-II
evidence to support his claim: (1) David Smith’s statement to the police following the incident and
(2) the expert declaration of Brian Johnson.
When the petitioner’s allegations are based on matters outside of the existing record, the
petitioner must show that competent, admissible evidence supports the allegations. In re Pers.
Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). If the
evidence is based on knowledge that is in the possession of others, the petitioner must present
affidavits of those witnesses or other corroborative evidence. Id. Factual allegations must be
based on more than speculation, conjecture, or inadmissible hearsay. Id.“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay is
inadmissible unless an exception or exclusion applies. ER 802.
Smith’s statement is not a sworn declaration or affidavit. Stomps provides only the
transcript from Smith’s recorded interview with the police. These unsworn, out-of-court
statements are inadmissible hearsay. See ER 802. Therefore, Smith’s statement to the police is
not competent, admissible evidence that can be used to support Stomps’ claims in his PRP. Rice,
118 Wn.2d at 886.
In contrast, Johnson’s declaration is properly sworn and presents Johnson’s conclusions
based on his training and experience. Therefore, Johnson’s declaration is the only “new, reliable”
evidence Stomps has presented in support of his gateway actual innocence claim. Weber, 175
Wn.2d at 258.
Johnson declared that he is “widely considered to be a ‘recognized authority’ in the field
of Bail, Bondsmen and Bail Recovery Agents.” Ex. 7 at 1. Johnson has extensive academic
8
No. 53400-2-II
experience studying criminal justice and the bail industry. Johnson reviewed Stomps’ case and,
based on his training and experience, offered his opinions on Stomps’ actions. Johnson opined
that Stomps exercised “ordinary care and prudence in establishing reasonable suspicion that
Barnes was present in the home.” Ex. 7 at 6. Johnson also opined that Stomps’ entry into the
home was unplanned. Finally, Johnson opined that Stomps’ use of force and restraint of the three
teenagers in the home was appropriate in the circumstances.
The question before us is whether “‘it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt’” when Johnson’s opinions are considered
in light of the evidence presented at trial. Weber, 175 Wn.2d at 260 (quoting Schlup, 513 U.S. at
327). We hold that Johnson’s opinions are insufficient to establish Stomps’ gateway actual
innocence claim.
Here, Stomps does not dispute the underlying facts supporting his conviction. Stomps only
argues that his actions were reasonable under the circumstances and, therefore, he should not be
subject to criminal liability. However, Johnson’s declaration is not proof that Stomps is innocent
of the charges. It is nothing more than Johnson’s expert opinion that Stomps acted reasonably
under the circumstances. Juries are not bound by an expert’s opinion and are instructed that they
are responsible for determining the weight and credibility of the evidence. State v. Kirkman, 159
Wn.2d 918, 928, 155 P.3d 125 (2007). Given that Stomps does not dispute he forcibly entered the
residence without conclusively identifying Barnes, brandished a firearm, and held the three
teenage occupants at gunpoint, a reasonable juror could have rejected Johnson’s opinion and found
9
No. 53400-2-II
Stomps guilty of the charges against him. Therefore, Stomps has failed to meet his burden to
establish a gateway actual innocence claim.8
Because Stomps has failed to meet his burden to establish a gateway actual innocence
claim, any grounds for relief that do not fall within the exception to the time bar enumerated in
RCW 10.73.100 are time barred. Here, Stomps’ ineffective assistance of counsel claim based on
the failure to request jury instructions on unplanned entry does not implicate any of the enumerated
exceptions to the time bar. Accordingly, this claim is time barred.
C. MIXED PETITION
As discussed above, Stomps fails to meet his burden of establishing a gateway actual
innocence claim to allow us to address his ineffective assistance of counsel claim based on the
failure to request jury instructions on unplanned entry. Therefore, his ineffective assistance of
counsel claim is time barred. Because at least one of the grounds that Stomps raises in his PRP is
time barred, Stomps’ petition is mixed. Accordingly, we dismiss Stomps’ PRP.
8
Although, as discussed below, Stomps’ failure to meet his burden to establish a gateway actual
innocence claim makes this petition a mixed petition that must be dismissed without addressing
any of the remaining claims, it is worth noting that Stomps’ freestanding actual innocence claim
also must necessarily fail. The burden to establish a freestanding actual innocence claim is higher
than the burden to establish a gateway actual innocence claim. Weber, 175 Wn.2d at 262-63.
Therefore, the failure to succeed at establishing a gateway actual innocence claim means a
petitioner necessarily fails at making the required showing on a freestanding actual innocence
claim. Id.10
No. 53400-2-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, C.J.
We concur:
Maxa, J.
Glasgow, J.
11