In re Markel

111 P.3d 249

154 Wash.2d 262

In the Matter of the Personal Restraint Petition of Eric MARKEL, Petitioner.

In the Matter of the Personal Restraint Petition of Leadee Markel, Petitioner.

Nos. 75459-4, 75537-0.

Supreme Court of Washington, En Banc.

Argued November 10, 2004.

Decided May 5, 2005.

Rodney Reinbold, Okanogan, for Petitioner.

Karl F. Sloan, Jennifer R. Richardson, Okanogan County Pros. Atty. Office, Okanogan, for Respondent.

Sheryl Gordon McCloud, James Elliot Lobsenz, Carney Badley Spellman, Rita Joan Griffith, Jeffrey L Fisher, Seattle, for Amicus Curiae Wash. Ass'n of Criminal Defense Lawyers.

Pamela Beth Loginsky, Wash. Assoc. of Pros. Atty., Olympia, for Amicus Curiae Wash. Ass'n of Pros. Attorneys.

OWENS, J.

¶ 1 Petitioners Eric and Leadee Markel (Markels) seek reversal of their convictions under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), resentencing under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), appointment of counsel at public expense. In March 1991, the Markels were each convicted by a jury on four counts of first degree rape of a child of their then five-year-old daughter, Ricki Markel. Ricki was ruled incompetent to testify at trial, and her account of the Markels' conduct was related to the jury under the child hearsay exception by multiple witnesses. The Markels were sentenced to the minimum term within the applicable sentencing range of 210-280 months on each count, to be served concurrently, and both are currently serving that sentence. Because Crawford does not apply retroactively to cases on collateral review, and because the Markels' sentencing does not raise a Blakely issue, their personal restraint petitions must be dismissed.

FACTS

A. Background

¶ 2 The Markels were charged either directly or as accomplices with first degree rape of a child in the following manner:

Count I: Digital penetration of the mother by the child on or about November 24, 1990; father accomplice.

Count II: Penile penetration by the father on or about November 24, 1990; mother accomplice.

Count III: Digital penetration of the child by the father between September 1 and November 24, 1990; mother accomplice.

Count IV: Digital penetration of the child by a parent between September 1 and November 24, 1990; other parent an accomplice.

Count V: Contact by the child's mouth with the mother's vagina between September 1 and November 24, 1990; father accomplice.

Excerpt of Record (ER) at 129-32, Third Am. Information; ER at 133-34, Additional Bill of Particulars.

¶ 3 In a pretrial hearing, Ricki was declared incompetent to testify at trial because of her age. The court went on to rule that the child hearsay exception was applicable as to testimony of five witnesses: (1) Leola Houtz, Ricki's grandmother, (2) Keith Houtz, Ricki's grandfather, (3) Arlen Johnson, the nurse practitioner who first examined Ricki, (4) Suzanne Craig, a Department of Social and Health Services social worker, and (5) Officer Joe Somday of the Omak Police Department, who recorded an interview with Ricki. Each of these witnesses related to the jury various statements made by Ricki concerning the sexual abuse allegations. In March 1991, the jury found both Leadee and Eric Markel guilty of counts I, II, IV, and V, based largely on the hearsay testimony, with some corroborating medical evidence. The Markels' four first degree rape of a child convictions resulted in an offender score of 9 with a seriousness level of 11. Consequently, the applicable sentencing range was 210-280 months, out of which the Markels each received 210 months.

B. Procedural History

¶ 4 After their trials, the Markels undertook a direct appeal to Division Three of the Court of Appeals, which affirmed the convictions. State v. E.D.M. and State v. L.M.M., noted at 70 Wash.App. 1064 (1993). This court entered an order denying the Markels' petition for review on February 2, 1994. 123 Wash.2d 1009, 869 P.2d 1084 (1994). In 1995, the Markels filed personal restraint petitions in Division Three of the Court of Appeals challenging the use of child hearsay under the then-applicable confrontation clause requirements articulated in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Those petitions were dismissed by the Court of Appeals, and this court again denied review. Finally, the Markels filed petitions for writs of habeas corpus in United States District Court for the Eastern District of Washington, again challenging, inter alia, the admission of the child hearsay statements under Ohio v. Roberts. The Markels' habeas corpus petitions were dismissed by the district court, and the United States Court of Appeals for the Ninth Circuit affirmed on August 1, 2000. Markel v. Walter, noted at 232 F.3d 895, 2000 WL 1058946 (9th Cir.2000) (unpublished).

ISSUES

¶ 5 1. Does Crawford apply retroactively to cases on collateral review that have been deemed "final" for purposes of direct review? ¶ 6 2. Are Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely implicated where the trial court sentenced the Markels to the low end of the applicable range, but the jury verdict did not specify the exact dates of the conduct constituting the basis for each count?

¶ 7 3. Do Apprendi and Blakely apply retroactively to cases on collateral review that have been deemed "final" for purposes of direct review?

¶ 8 4. Are the Markels entitled to the appointment of counsel at public expense?

STANDARD OF REVIEW

¶ 9 On collateral review, a petitioner raising a new issue must show that he or she was actually and substantially prejudiced by constitutional error, or that a nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Lord, 123 Wash.2d 296, 303, 868 P.2d 835 (1994). The bar on successive petitions under RCW 10.73.140 does not apply to the state Supreme Court. In re Pers. Restraint of Johnson, 131 Wash.2d 558, 566, 933 P.2d 1019 (1997). However, where the second petition is similar to the first, "good cause" must be shown. Id. at 564-66, 933 P.2d 1019.

ANALYSIS

A. Crawford's Retroactivity

¶ 10 Historically, we have attempted to maintain congruence in our retroactivity analysis with the standards articulated by the United States Supreme Court.¹ See In re Pers. Restraint of Sauve, 103 Wash.2d 322, 328, 692 P.2d 818 (1985) (holding that the balancing test established by the United States Supreme Court was still appropriate to determine the retroactivity or nonretroactivity of a new decision); In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 324-26, 823 P.2d 492 (1992) (stating that "we have attempted from the outset to stay in step with the federal retroactivity analysis," and discussing a recent change in the federal retroactivity analysis); In re Pers. Restraint of Benn, 134 Wash.2d 868, 940, 952 P.2d 116 (1998) (citing the federal analysis discussed by this court in St. Pierre as the current retroactivity analysis in Washington State). Cf. State v. Hanson, 151 Wash.2d 783, 789, 91 P.3d 888 (2004) (stating that St. Pierre sets out the current prospective application analysis in Washington, which is derived from the two United States Supreme Court retroactivity analysis cases cited in St. Pierre).

¶ 11 The current incarnation of our retroactivity analysis was first summarized in St. Pierre as follows:

1. 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, with no exception for cases in which the new rule constitutes a clear break from the past.

2. A new rule will not be given retroactive application to cases on collateral review except where either: (a) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty.

118 Wash.2d at 326,823 P.2d 492 (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). In this case, part one of the analysis is inapplicable because the Markels long ago exhausted direct review and their cases are now final. Part two, subsection (a), is also inapplicable because Crawford did not announce a new rule of substantive law but, rather, articulated a change in the procedures required under the Sixth Amendment's confrontation clause. Thus, the question presented is whether Crawford is a "new rule" of procedure "implicit in the concept of ordered liberty" under the so-called Teague analysis.

¶ 12 The United States Supreme Court has recently described the Teague analysis as "giv[ing] retroactive effect to only a small set of `"watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.'" Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004) (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060)). Further, "the rule must be one `without which the likelihood of an accurate conviction is seriously diminished.'" Id. (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). Finally, the Court has noted that "[t]his class of rules is extremely narrow, and `it is unlikely that any. . . "ha[s] yet to emerge."'"² Id. (alteration in original) (quoting Tyler v. Cain, 533 U.S. 656, 667 n. 7, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (quoting Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990))). It is with these principles in mind that we evaluate the possible retroactive application of Crawford.

¶ 13 Amicus curiae Washington Association of Criminal Defense Lawyers (WACDL) first raises the possibility that the ...