State v. Waller

458 P.3d 817

The STATE of Washington, Appellant,

v.Anthony Thomas WALLER, Respondent.

No. 79793-0-I

Court of Appeals of Washington, Division 1.

FILED: February 24, 2020

James Morrissey Whisman, King County Prosecutor's Office, Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 3rd Ave., Seattle, WA, 98104-2385, for Appellant.

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Respondent.

PUBLISHED OPINION

SCHINDLER, J.P.T.^*

¶1 Under RAP 2.2(b)(3), the State has the right in a criminal case to appeal an order vacating a judgment. The State does not have the right to appeal an order granting a CrR 7.8(b)(5) motion for relief from judgment requesting a new sentencing hearing to consider the characteristics of youth at the time of the offense. The State has the right to appeal only if following the hearing, the court decides to vacate and amend the judgment and sentence. Under the plain and unambiguous language of CrR 7.8(b), scheduling a new sentencing hearing "does not affect the finality of the judgment or suspend its operation." Because the uncontroverted record establishes the court did not vacate and amend the judgment and sentence, we dismiss the State’s appeal.

Conviction and Exceptional Aggravated Sentence

¶2 On January 17, 1999, 21-year-old Anthony Thomas Waller and three friends drove to an industrial area to drink beer. Waller used a flathead screwdriver to break into vehicles and steal items. As the group was getting ready to leave, Waller saw a man in the distance. Waller was worried the man saw him breaking into vehicles and would remember the license plate number of their vehicle. Waller got out of the vehicle and told his friends he " ‘was going to go beat this guy’s ass.’ "¹ Waller chased after the man. Waller repeatedly stabbed the man in the eyes, face, and head more than 40 times with the flathead screwdriver. The man had "through-and-through" defensive "stab wounds to the left hand."² But the "majority of the wounds were localized around" his eyes.³ There were "at least seven separate penetrating stab wounds that went through the eyes into the brain" that "could alone have been fatal."⁴ After killing the man, Waller told his friends, " ‘This is what happens ... when people fuck with me.’ "⁵

¶3 Waller told his fiance that he had to leave Washington because he murdered someone. In March 1999, the police arrested Waller in Hawaii. Waller waived his Miranda ⁶ rights. Waller initially told the detectives that two of his friends killed the man and that he did not participate in the attack. After the detectives confronted him with evidence they had obtained, Waller admitted that he killed the man and that "he was the sole attacker," but "claimed that he was ‘really drunk’ that night" and did not mean to kill the man.⁷

¶4 A jury convicted Waller of premeditated murder in the first degree. His standard sentence range was 271 to 361 months. The State asked the court to impose an exceptional sentence based on the aggravating factor of deliberate cruelty. At the sentencing hearing, Waller criticized the police investigation, insisted he was innocent, and blamed others for committing the crime.

¶5 The court imposed an exceptional sentence of 432 months. The court found Waller acted with premeditated intent to kill the victim by deliberately stabbing him in the eyes, face, and head more than 40 times with a flathead screwdriver. The court found the "sufficiently long" time it took to inflict the fatal stab wounds through the victim’s eyes into his brain inflicted "extreme fear, pain[,] and suffering" on the victim before his death. The findings state the extent and number of stab wounds were "gratuitous," and the comment Waller made at the end of the attack "further evidenced his deliberate cruelty and intent to perpetrate gratuitous violence" toward the victim. The court concluded the "deliberate cruelty and gratuitous violence" justified the exceptional sentence.

¶6 We affirmed the conviction and imposition of the exceptional sentence based on the aggravating factor of deliberate cruelty. Waller, 2001 WL 919349, at *1. The Washington Supreme Court denied review. State v. Waller, 147 Wash.2d 1009, 56 P.3d 565 (2002). We issued the mandate on November 18, 2002.⁸

CrR 7.8(b)(5) Motion for Relief from Judgment

¶7 On March 8, 2018, Waller filed a pro se motion for relief from judgment under CrR 7.8(b)(5) requesting the court schedule a new sentencing hearing. CrR 7.8(b)(5) permits the court to grant relief from judgment for "[a]ny other reason justifying relief." "A vacation under subsection (5) is limited to extraordinary circumstances not covered by any other section of the rule." State v. Cortez, 73 Wash.App. 838, 841-42, 871 P.2d 660 (1994) (citing State v. Brand, 120 Wash.2d 365, 369, 842 P.2d 470 (1992) ). CrR 7.8, "Relief from Judgment or Order," states, in pertinent part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:

....

(5) Any other reason justifying relief from the operation of the judgment.

The motion ... is further subject to ROW 10.73.090, .100, .130, and .140. A motion under section (b) does not affect the finality of the judgment or suspend its operation.

(c) Procedure on Vacation of Judgment.

(1) Motion. Application shall be made by motion stating the grounds upon which relief is asked, and supported by affidavits setting forth a concise statement of the facts or errors upon which the motion is based.

(2) Transfer to Court of Appeals. The court shall transfer a motion filed by a defendant to the Court of Appeals for consideration as a personal restraint petition unless the court determines that the motion is not barred by RCW 10.73.090 and either (i) the defendant has made a substantial showing that he or she is entitled to relief or (ii) resolution of the motion will require a factual hearing.

(3) Order to Show Cause. If the court does not transfer the motion to the Court of Appeals, it shall enter an order fixing a time and place for hearing and directing the adverse party to appear and show cause why the relief asked for should not be granted.

¶8 Under RCW 10.73.090(2), a CrR 7.8(b) motion for relief from judgment is a collateral attack:

For the purposes of this section, "collateral attack" means any form of postconviction relief other than a direct appeal. "Collateral attack" includes, but is not limited to, a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a motion to arrest judgment.

¶9 As a general rule, RCW 10.73.090(1) requires a defendant to file a motion for collateral attack within one year of final judgment:

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.

However, the one-year time bar under RCW 10.73.090(1) does not apply where there has been a significant change in the law. RCW 10.73.100(6). RCW 10.73.100(6) states:

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.

¶10 Waller cited the Washington Supreme Court decision in State v. O’Dell, 183 Wash.2d 680, 358 P.3d 359 (2015), to argue he was entitled to a new sentencing hearing. In O’Dell, the Washington Supreme Court held the decision in State v. Ha’mim, 132 Wash.2d 834, 940 P.2d 633 (1997), did not bar the sentencing court from considering the characteristics of a youth who just turned 18-years-old as a substantial and compelling factor supporting an exceptional sentence below the standard-range sentencing guidelines under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. O’Dell, 183 Wash.2d at 689, 358 P.3d 359. The court notes that when the legislature defined an "offender" subject to the SRA under former RCW 9.94A.030(34) (2012) as "a person who has committed a felony established by state law and is eighteen years of age or older," it did not have the benefit of the psychological and brain science studies supporting the recent United States Supreme Court decisions in Roper v. Simmons, 543 U.S. 551, 554, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (imposing the death penalty on juvenile offenders is disproportional and unconstitutional), Graham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (absent "some meaningful opportunity to obtain release," the Eighth Amendment to the United States Constitution prohibits sentencing a juvenile to a life sentence without the possibility of parole in nonhomicide cases), and Miller v. Alabama, 567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (a sentencing scheme that mandates life without parole is unconstitutional for juvenile offenders, including homicide cases). O’Dell, 183 Wash.2d at 691, 358 P.3d 359.

¶11 The court in O’Dell states the psychological and neurological studies the Supreme Court cites in Roper, Graham,...