In Re Greening
The only contested issues in this case are procedural. Both parties agree that, on the merits, nearly one-third of David Greening‘s 18 ¼ year sentence was unlawfully imposed. Specifically, his firearm enhancements were to run consecutively to each other, contrary to former RCW 9.94A.310(3)(e) (Laws of 1995, ch. 129, § 2), as subsequently construed
FACTS
On August 28, 1997, David Greening, a.k.a. Nathan Johnson, pleaded guilty to, and was sentenced for, three offenses: second degree assault, first degree burglary, and first degree theft. The Pierce County Superior Court found no aggravating factors, and Greening was given concurrent standard-range sentences of 63 months, 87 months, and 33 months, respectively. Pursuant to the “Hard Time for Armed Crime” initiative codified at
On August 10, 1998, acting without counsel, Greening timely filed a PRP in thе Court of Appeals, claiming, inter alia, “my charges werent [sic] ran [sic] together the proper way....” PRP at 2. One of his formal assignments of error was that “they charged me with three gun enhanc[e]ments, and three felony cases, when all the charges should have been ran [sic] together.” Id. at 2b (second unnumbered page after 2). Nine days later, Division Two‘s chief judge summarily dismissed the PRP for presenting unsuрported claims. Greening‘s one-year
On October 16, 1998, Greening filed an untimely motion for reconsideration, this time expressly citing Charles as support for his consecutive enhancement claim. Treating the pro se pleading as a motion for discretionary review, the Court of Appeals transferred it to this court оn October 20, 1998. On December 20, 1998, this court‘s commissioner rejected the motion as untimely filed. More than two months later, on February 24, 1999, Greening filed a pro se motion to modify the commissioner‘s ruling, which was also untimely and rejected on that basis. On September 20, 1999, Greening filed this second pro se petition with this court, requesting relief based on Charles. We granted review and appointed counsel to represent Greening.
ANALYSIS
This case raises three questions. First, is Greening entitled to relief on the merits under
I
While this petition‘s procedural viability is vigorously disputed, its merits are not. Our rules of appellate procedure entitle a petitioner to collateral relief if his or her “sentence... was imposed or entered in violation of the ... laws of the State of Washington[.]”
We faced a related situation in In re Personal Restraint of Carle, 93 Wash.2d 31, 604 P.2d 1293 (1980). After pleading guilty to first degree robbery with a deadly weapon, Carle was sentenced in July 1978 to a maximum term of imprisonment not to exceed 20 years, plus a five year enhancement under RCW 9.41.025(1) (repealed July 1, 1984). Id. at 32, 604 P.2d 1293. He did not appeal. Id. Two months later, though, in State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978), this court ruled that the five year enhancement could not be imposed for a first degree robbery conviction. Carle petitioned for relief, which we granted under
Similarly, in In re Personal Restraint of Moore, 116 Wash.2d 30, 33, 803 P.2d 300 (1991), Moore had pleaded guilty in March 1980 and had been sentenced to life without the possibility of parole. He had not appealed. Id. at 32, 803 P.2d 300. Four months later, though, in State v. Martin, 94 Wash.2d 1, 8, 614 P.2d 164 (1980), we declared such a sentence unlawful following a guilty plea. Nine years then went by4 before Moore finally petitioned for relief from his unlawful sentence under our Martin decision. See Moore, 116 Wash.2d at 39, 803 P.2d 300. Noting that “failure to correct the defect could result in a denial of petitioner‘s due process rights,” id. at 33, 803 P.2d 300, we granted Moore‘s petition, remanding for resentencing to life with the possibility of parole. Id. at 39, 803 P.2d 300. We explained, “Confinement beyond that authorized by statute is exactly the kind of fundamental defect which the rule we announced in [In re Personal Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990)5] was aimed at remedying.” Moore, 116 Wash.2d at 33, 803 P.2d 300.6
Most similar to Greening‘s case, though, is In re Personal Restraint of Johnson, 131 Wash.2d 558, 933 P.2d 1019 (1997),
On the merits, Greening‘s claim is indistinguishable. When he was sentenced in August 1997, former RCW 9.94A.310(3)(e) mandated that “any and all firearm enhаncements... shall not run concurrently with any other sentencing provisions.” The parties and the sentencing judge interpreted that statute in accordance with a controlling Division Two case decided just two months earlier, State v. Lewis, 86 Wash.App. 716, 937 P.2d 1325 (1997). In May 1998, however, we reversed Lewis, holding that firearm enhancements in nonexceptional sentences must run consecutively to other sentencing provisions, but concurrently to each other. Charles, 135 Wash.2d at 245-46, 254, 955 P.2d 798. Because Greening‘s sentence was imposed contrary to lаw, as the State itself acknowledges, the merit of his petition under
II
However, the State claims that this petition is procedurally barred because it was filed on September 20, 1999, more than a year after Greening‘s sentence became final on August 28, 1997, and because none of the statutory exceptions applies.
No petition or motion for collateral attack on a 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.
Still, Greening argues, inter alia, that
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.
In 1993, when this court upheld the constitutionality of the one-year time bar for PRPs, we emphasized the “[b]road exceptions” provided in
In re Personal Restraint of Runyan, 121 Wash.2d 432, 440, 444-45, 853 P.2d 424 (1993) (emphasis added). “In streamlining the postconviction collateral review process,
RCW 10.73.090 et seq. have preserved unlimited access to review in cases where there truly exists a question as to the validity of the prisoner‘s continuing detention.” Id. at 453, 853 P.2d 424 (emphasis addеd). We added, “Faced with a virtually unlimited universe of possible postconviction claims, the Legislature wisely chose to exempt those contentions which go to the very validity of the prisoner‘s continued incarceration.” Id. at 449, 853 P.2d 424 (emphasis added). Here, the State acknowledges that six years of this prisoner‘s prescribed incarceration period have been unlawfully imposed.
In Holmes, this court declined to view In re Personal Restraint of Pepperling, 65 Wash.App. 17, 827 P.2d 347 (1992), as having significantly changed any relevant case law. Thus, Holmes could not be excused for omitting the claim from his first PRP under the
In Olivera-Avila, 89 Wash.App. 313, 949 P.2d 824, Division Three also rejected a “change in the law” claim, but for a different reason, namely, that the intervening opinion simply applied settled case law to new facts. Olivera-Avila had pleaded guilty in 1993. Id. at 316, 949 P.2d 824. In August 1996, Olivera-Avila filed a
While litigants have a duty to raise available arguments in a timely fashion and may later be procedurally penalized for failing to do so, as occurred in Holmes and Olivera-Avila, thеy should not be faulted for having omitted arguments that were essentially unavailable at the time, as occurred here.9 We hold that where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a “significant change in the law” for purposes of exemption from procedural bars.
Here, when the Pierce Cоunty Superior Court sentenced Greening in August 1997, the Court of Appeals had just two months earlier, in Lewis, 86 Wash.App. 716, 937 P.2d 1325, construed former RCW 9.94A.310(3)(e) to mean that multiple firearm enhancements had to be imposed consecutively to each other. Id. at 718, 937 P.2d 1325. At the time, Lewis was the determinative construction of that statute. It was only when Charles overturned Lewis that it became apparent that six years of Greening‘s sentence had been unlawfully imposed. Thus, we find that Charles brought about a “significant change in the law” material to Greening‘s sentence and that the
For several reasons we reject the State‘s argument that the “significant change in the law” exemption should apply only to a petitioner‘s first collateral attack following that change, and only when that change takes place after the initial year. First, the statutory language in no way supports the Statе‘s reading. As written, the exemption applies whenever “[t]here has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order....”
III
The State also contends that the successive petition limitations in
As for
We must first determine whether Greening‘s consecutive enhancement claim was “previously heard and determined” on the merits. In his earlier petition, Greening
This is not the most elegant language in the world. But it clearly shows that Mr. Greening attempted to raise a challenge to his three consecutive firearm enhancements, on the ground that they `should have been ran [sic] together,\’ in a timely manner in his first petition.
Second Suppl. Br. of Pet. at 2. We conclude, though, that Greening‘s attempt to raise the issue failed. He barely articulated the claim, citing no legal authority. Indeed, his first petition was summarily dismissed without any acknowledgment that the claim had been raised:
David L. Greening has filed a personal restraint petition challenging his 1997 Pierce County convictions for burglary and theft in the first degree and second degree assault. He contends that medications rendered his guilty plea involuntary, that he had ineffective assistаnce of counsel, and that the State provided no proof to support a deadly weapon enhancement.
This petition clearly lacks merit and should be dismissed. The petitioner cites no authority to support his contentions. “Bare allegations unsupported by citation of authority, references to the record, or persuasive reasoning cannot sustain [а petitioner‘s] burden of proof.” State v. Brune, 45 Wash.App. 354, 363, 725 P.2d 454 (1986), review denied, 110 Wash.2d 1002, 1988 WL 631904 (1998). See In re Cook, 114 Wash.2d 802, 813-14, 792 P.2d 506 (1990). Accordingly, it is hereby
ORDERED that this petition is dismissed.
Unpublished Order Dismissing Petition, No. 23582-0-II (Aug. 19, 1998).
Because we find that (1) Greening‘s first attempt to raise the issue was “not sufficient to command judicial consideration and discussion in a personal restraint proceeding,” see In re Personal Restraint of Webster, 74 Wash.App. 832, 833, 875 P.2d 1244 (1994) (citing In re Personal Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086 (1992)), and (2) there is no reasonable basis to conclude that the issue‘s merits were previously reviewed, we find that the issue was not “previously heard and determined” for purposes of successive petition analysis.
Second, we examine whether this petition violates the abuse of the writ doctrine. Issues not “previously heard and determined” on their merits may be dismissed upon a showing that a petitioner is abusing the writ. Jeffries, 114 Wash.2d at 488, 789 P.2d 731. The Jeffries majority wrote:
Contrary to the suggestions ... [in] Justice Brachtenbach‘s concurring/dissenting opinion, we are not creating “a per se rule that the advancing of new issues in successive petitions constitutes an abuse of the [writ]“. We hold only that, if the petitioner was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was “available but not relied upon in a prior petition“.
114 Wash.2d at 492, 789 P.2d 731 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986)).11 Our Charles decision was issued on May 28, 1998, and was thus “available” when Greening filed his first PRP оn August 10, 1998. But since Greening was not “represented by counsel throughout postconviction proceedings,” Jeffries, 114 Wash.2d at 492, 789 P.2d 731, we need not suspect that his failure to effectively raise this claim in his earlier petition was a tactical ploy. Id. We thus find that his raising of this issue now is not abusive of the writ.
Finding that this petition is exempt from the one-year time bar under
GUY, C.J., SMITH, JOHNSON, MADSEN, ALEXANDER, TALMADGE, SANDERS, and IRELAND, JJ., concur.