Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint             )
Petition of                                         )          No. 81939-4
                                                    )
JAMES EASTMOND,                                     )
                                                    )            En Banc
                             Petitioner.            )
                                                    )     Filed February 2, 2012

       OWENS, J.  --  James Eastmond was convicted of first degree robbery and first 

degree burglary.  At sentencing, the trial court imposed a firearm sentence 

enhancement for each count based on the jury's determination that Eastmond was 

armed with a deadly weapon.  While Eastmond's case remained on direct appeal, we 

decided State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005) (Recuenco I), rev'd 

on other grounds, Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 

2d 466 (2006) (Recuenco II), in which we recognized that such sentences violated the 

Sixth Amendment to the United States Constitution.  Id. at 162-63. By personal 

restraint petition, Eastmond now challenges the imposition of the firearm sentence 

enhancements.  The central question presented in this case is whether, in these 

circumstances, prejudice should be conclusively presumed on collateral review, as 

In re Pers. Restraint of Eastmond
No. 81939-4

we recently held that it is on direct review, see State v. Williams-Walker, 167 Wn.2d 

889, 901, 225 P.3d 913 (2010), or whether Eastmond must demonstrate actual 

prejudice.  We hold that the rule announced in Williams-Walker is a new rule that does 

not apply retroactively.  Accordingly, Eastmond must demonstrate actual prejudice.  

Because he has not done so, we dismiss his petition.

                                            FACTS

       In 2000, the State filed an amended information charging Eastmond with first 

degree robbery and first degree burglary.  With respect to each count, the State alleged 

in the amended information "that at the time of the commission of the crime, the 

defendant or an accomplice was armed with a firearm, as provided and defined in 

RCW 9.94A.310, RCW 9.41.010, and RCW 9.94A.125."  Pers. Restraint Pet. & 

Apps., App. 1. In addition to the general verdict forms, the court submitted special 

verdict forms for each count, asking whether Eastmond was "armed with a deadly 

weapon at the time of the commission of the crime."  Id. at App. 4.  The jury found 

Eastmond guilty of both counts and answered "Yes" on both special verdict forms.  Id.

       Eastmond was ultimately sentenced to 36 months of imprisonment for the 

robbery conviction and 21 months for the burglary conviction, to run concurrently.  

The court also imposed two firearm sentence enhancements of 60 months each, to run 

consecutively, yielding a total maximum term of confinement of 156 months.  The 

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In re Pers. Restraint of Eastmond
No. 81939-4

Court of Appeals affirmed Eastmond's sentence.  State v. Eastmond, noted at 125 Wn. 

App. 1028, 2005 WL 221889, at *3.  Eastmond petitioned this court for review.  While 

his petition was pending, we decided Recuenco I, and Eastmond, in May 2005, was 

given permission to file a supplemental brief addressing the effect of Recuenco I on 

his case.  We denied Eastmond's petition for review on October 2, 2007, State v. 

Eastmond, 161 Wn.2d 1015, 171 P.3d 1056 (2007), and the Court of Appeals issued 

its mandate on November 16, 2007.

                                            ISSUE

       Is Eastmond entitled to relief from his firearm sentence enhancement on 

collateral review?

                                         ANALYSIS

       A. Deadly Weapon Sentence Enhancements and the Sixth Amendment

       Before addressing the unique facts presented by Eastmond's petition, it is first 

useful to address the context in which this case arises.  In Washington there are two 

types of deadly weapon sentence enhancements: firearm sentence enhancements and 

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In re Pers. Restraint of Eastmond
No. 81939-4

deadly-weapon-other-than-a-firearm sentence enhancements.1 RCW 9.94A.533(3), 

(4); see also In re Pers. Restraint of Cruze, 169 Wn.2d 422, 430, 237 P.3d 274 (2010).  

Prior to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 

(2004), Washington courts held that it was not error for the jury to determine only that 

the defendant was armed with a deadly weapon and, at sentencing, for the trial court to 

determine which of the two deadly weapon sentence enhancements applied.  See, e.g., 

State v. Rai, 97 Wn. App. 307, 310-12, 983 P.2d 712 (1999); State v. Meggyesy, 90 

Wn. App. 693, 707-09, 958 P.2d 319 (1998); cf. State v. Thorne, 129 Wn.2d 736, 782, 

921 P.2d 514 (1996) (stating that "[t]here is no constitutional requirement that a 

deadly weapon finding be made by the jury; if it is a sentencing factor, the sentencing 

court may make that finding").  Blakely put an end to this practice.  In Apprendi v. 

New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United 

States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact 

that increases the penalty for a crime beyond the prescribed statutory maximum must 

1 The term "deadly-weapon-other-than-a-firearm sentence enhancement" is, 
understandably, sometimes referred to simply as a "deadly weapon sentence 
enhancement."  This shortened expression technically creates ambiguity, as it could refer 
either to the general category of deadly weapon enhancements, which comprises both 
firearms and deadly weapons other than firearms, or the subset of deadly weapon 
enhancements not involving firearms.  Though the latter use of the term is best avoided, 
context generally makes the intended meaning clear.  One possible alternative is to refer 
to the respective enhancements as "firearm deadly weapon enhancements" and 
"nonfirearm deadly weapon enhancements."

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In re Pers. Restraint of Eastmond
No. 81939-4

be submitted to a jury, and proved beyond a reasonable doubt."  Blakely clarified that 

the "'statutory maximum' for Apprendi purposes is the maximum sentence a judge 

may impose solely on the basis of the facts reflected in the jury verdict or admitted by 

the defendant."  542 U.S. at 303.

       In Recuenco I, we recognized that "[w]ithout an explicit firearm finding by the 

jury, the court's imposition of a firearm sentence enhancement" violates a criminal 

defendant's Sixth Amendment jury trial right, as announced in Apprendi and Blakely.  

154 Wn.2d at 162.  We further held that Blakely "violations can never be deemed 

harmless."  Id. at 164.  The United States Supreme Court granted certiorari and 

reversed our judgment, holding that "[f]ailure to submit a sentencing factor to the jury 

. . . is not structural error" and, therefore, is subject to harmless error analysis.  

Recuenco II, 548 U.S. at 222.

       On remand following Recuenco II, we addressed whether imposition of a 

firearm enhancement following only a deadly weapon finding was subject to harmless 

error analysis under state law.  State v. Recuenco, 163 Wn.2d 428, 431, 180 P.3d 1276 

(2008) (Recuenco III). We acknowledged that the error addressed in Recuenco I "was 

an error of judicial fact finding."  Id. at 441. However, we reframed the error in 

Recuenco III as one of judicial usurpation of the State's authority to select the 

appropriate charges and failure to give the defendant notice of the enhancement 

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imposed.  Id. at 433-34, 441-42.  The State had not provided notice to Recuenco that it 

intended to seek the greater firearm sentence enhancement, indicating that only the 

lesser deadly-weapon-other-than-a-firearm sentence enhancement was sought.  Id. at 

436-37. The jury returned a corresponding verdict.2  Id. at 436. The sentence 

enhancement sought by the State and found by the jury was simply the deadly-weapon-

other-than-a-firearm enhancement. In light of this, "[t]he trial court simply exceeded 

its authority in imposing a sentence not authorized by the charges."  Id. at 442.  By a 

vote of five-to-four, we held that this error could never be harmless.  Id.  In doing so, 

we distinguished Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 

(1999), relied on by the Supreme Court in Recuenco II, 548 U.S. at 218-22, on the 

basis that "[i]n Neder, the defendant received notice because he was properly 

charged."  Recuenco III, 163 Wn.2d at 441.

       We recently built on Recuenco III in Williams-Walker.  Williams-Walker

involved three consolidated cases.  In two of the consolidated cases, use of a firearm 

was an element of the underlying conviction and, by virtue of a guilty verdict, had 

been found by the jury beyond a reasonable doubt.  Williams-Walker, 167 Wn.2d at

894.  In the third case, the State included the firearm sentence enhancement in the 

charging document.  Id. at 893.  In all three consolidated cases, however, the jury was 

2 Implicit in our holdings in Recuenco I and Recuenco III is that where a jury finds only 
that the defendant was armed with an unspecified "deadly weapon," the lesser deadly-
weapon-other-than-a-firearm enhancement is authorized.

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In re Pers. Restraint of Eastmond
No. 81939-4

only asked whether the defendant was armed with an unspecified "deadly weapon."  

Id. at 893-94. Acknowledging that this "present[ed] a different and much closer 

question," we held that a firearm sentence enhancement is only permissible where the 

jury makes the firearm finding by special verdict.  Id. at 898.  We also held that 

imposition of the firearm sentence enhancement can never be harmless error, even 

where use of a firearm is alleged in the charging document or necessarily found as part 

of the underlying conviction.  Id. at 898-902. Though the holding in Williams-Walker

involved several rules, in this opinion we use the term "Williams-Walker rule" to refer 

to the holding that an imposed sentence enhancement included in the charging 

document but not found by the jury can never be harmless error.

       B. Is Eastmond Entitled to Relief on Collateral Review?

       Eastmond's case is before this court on collateral review by means of a personal 

restraint petition.  "We have limited the availability of collateral relief because it 

undermines the principles of finality of litigation, degrades the prominence of trial, and 

sometimes deprives society of the right to punish admitted offenders."  In re Pers. 

Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492 (1992). One limitation on 

the availability of collateral relief is the limited applicability of new rules of criminal 

procedure. A personal restraint petitioner is only entitled to the benefit of a new rule 

for the conduct of criminal prosecutions if (1) the rule was announced before the 

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In re Pers. Restraint of Eastmond
No. 81939-4

petitioner's direct appeal became final or (2) the rule is announced after the 

petitioner's conviction became final and "(a) . . . places certain kinds of primary, 

private individual conduct beyond the power of the state to proscribe, or (b) . . .

requires the observance of procedures implicit in the concept of ordered liberty."  Id. 

at 326.

       Because this is a personal restraint petition, Eastmond has the burden of 

establishing both error and, because the error asserted is constitutional in nature, 

actual prejudice.  In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 

(2007).  This showing must be made by a preponderance of the evidence.  St. Pierre, 

118 Wn.2d at 328.

       The State concedes constitutional error in the imposition of Eastmond's 

sentence.  We accept the State's concession.  Eastmond's conviction became final 

when the Court of Appeals issued its mandate on November 16, 2007.  As such, he is 

entitled to the benefit of those cases decided prior to that date, including Apprendi, 

Blakely, Recuenco I, and Recuenco II.  Under Apprendi, Blakely, and Recuenco I, it 

was constitutional error for the sentencing court to impose the firearm sentence 

enhancement when the jury did not determine that Eastmond was armed with a 

firearm.  See Recuenco I, 154 Wn.2d at 162-63.  At the time that Eastmond's 

conviction became final, this error was treated as "an error of judicial fact finding."  

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In re Pers. Restraint of Eastmond
No. 81939-4

Recuenco III, 163 Wn.2d at 441.  Only after Eastmond's conviction became final did 

we recharacterize the error.  See id.

       Eastmond must still demonstrate actual prejudice arising from the constitutional 

error.  Eastmond contends that, under the Williams-Walker rule, harmless error 

analysis does not apply and, consequently, he need not demonstrate prejudice.3  

Williams-Walker, however, was decided after Eastmond's conviction became final.  

As such, we must determine whether it announced a new rule.  A rule is "new" if it 

"breaks new ground or . . . . if the result was not dictated by precedent existing at the 

time the defendant's conviction became final."  Teague v. Lane, 489 U.S. 288, 301, 

109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (citations omitted).  "If before the opinion 

is announced, reasonable jurists could disagree on the rule of law, the rule is new."  

State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627 (2005).

       At the time that Eastmond's conviction became final, precedent did not dictate 

the conclusion that imposition of a firearm sentence enhancement in the absence of a 

firearm finding by a jury could never be harmless error.  To the contrary, the United 

States Supreme Court had just announced that such an error could be deemed 

harmless.  Recuenco II, 548 U.S. at 222.  Eastmond relies exclusively on Apprendi and 

3 Eastmond's argument necessarily presumes that an error that is not subject to harmless 
error analysis under Williams-Walker is per se prejudicial on collateral review.  This issue 
is governed by St. Pierre.  Because we conclude that the Williams-Walker rule is a new 
rule of criminal procedure, we do not address whether it would be per se prejudicial on 
collateral review.

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In re Pers. Restraint of Eastmond
No. 81939-4

Blakely to support his argument that Williams-Walker did not announce a new rule.  In 

light of Recuenco II, however, that argument is untenable; even if Apprendi and 

Blakely had announced that the errors they identified could never be harmless?which 

they certainly did not?that holding would have been overruled by Recuenco II.  Even 

if the Williams-Walker rule was dictated by Recuenco III, the conclusion that the error 

in Recuenco III could never be harmless was also a new rule announced after 

Eastmond's conviction became final.  In Recuenco III, four justices not only 

reasonably believed the majority's harmless error rule was not compelled by existing 

precedent, but, to the contrary, believed that existing precedent compelled the opposite

result.  163 Wn.2d at 443-47 (Fairhurst, J., dissenting). Reasonable jurists could and 

did disagree on the rule of law.  As such, even if it was compelled by Recuenco III, the

Williams-Walker rule is a "new rule" as to Eastmond.

       Eastmond does not argue, nor could he, that the Williams-Walker rule applies 

retroactively to his case on collateral review.  The rule that the erroneous imposition of 

a firearm sentence enhancement can never be harmless error neither "place[s] certain 

kinds of primary, private individual conduct beyond the power of the state to 

proscribe" nor is it a "procedure[] implicit in the concept of ordered liberty."  St. 

Pierre, 118 Wn.2d at 326. It is, therefore, not retroactive, and Eastmond is not 

entitled to the benefit of the new rule in a collateral proceeding.

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In re Pers. Restraint of Eastmond
No. 81939-4

       Because Eastmond is not entitled to the rule that imposition of a firearm 

sentence enhancement without a corresponding jury verdict is per se prejudicial, he 

bears the burden of establishing, by a preponderance of the evidence, actual prejudice.  

The relevant inquiry is "whether the jury would have returned the same verdict absent 

the error."  Recuenco II, 548 U.S. at 221.  Thus, it is not enough to show that the 

firearm sentence enhancement carried a greater sentence than a deadly-weapon-other-

than-a-firearm sentence enhancement would have.  Eastmond has offered no evidence 

or argument to the effect that the jury would not have returned a firearm verdict had it 

been presented.  Because the demonstration of prejudice is Eastmond's burden and he 

has adduced no evidence in support of it, he has not met his burden.4 As such, we 

must deny his personal restraint petition.5

       We acknowledge that imposition of 120 additional months of imprisonment for 

an accomplice's use of a firearm, where the petitioner's sentence on the underlying 

convictions was only 36 months, may appear to some to be disproportionate and 

4 The dissent claims that, in light of our holding, "it is hard to imagine what would" 
constitute actual prejudice.  Dissent at 1.  This is a rather alarming failure of imagination.  
For instance, demonstrating that the record was equivocal as to whether the deadly 
weapon with which the defendant was armed was in fact a firearm would likely be 
sufficient to demonstrate actual prejudice.  Eastmond has not done so.
5 Eastmond also requests that we recall the mandate issued in his direct appeal, citing to 
RAP 2.5(c)(2).  RAP 2.5(c) is limited to cases "again before the appellate court following 
a remand."  It is plainly inapplicable here.  RAP 12.9(b), though closer to the mark, is 
also unhelpful to Eastmond as there was no "inadvertent mistake" or "fraud of a party or 
counsel."  Accordingly, we decline to recall the mandate in Eastmond's direct appeal.

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In re Pers. Restraint of Eastmond
No. 81939-4

draconian.  However, provided that the sentence neither runs afoul of the Eighth 

Amendment to the United States Constitution nor article I, section 14 of the 

Washington Constitution?and there is no assertion in this case of any such 

constitutional violation?it is for the people, through their representatives in the 

legislature or the initiative process, to determine the appropriate sentences.  State v. 

Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986) ("[T]he fixing of 

legal punishments for criminal offenses is a legislative function.").

                                       CONCLUSION

       The Williams-Walker rule?that imposition of a firearm sentence enhancement 

where the State has charged but the jury has not found use of a firearm can never be 

harmless error?is a new rule that is not retroactive to cases that were not pending at 
the time that Williams-Walker was decided.6  Because prejudice is therefore not 

presumed and Eastmond has failed to meet his burden of establishing actual prejudice, 

we must dismiss Eastmond's personal restraint petition.

6 We do not decide here whether the result in Williams-Walker was compelled by 
Recuenco III.

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In re Pers. Restraint of Eastmond
No. 81939-4

AUTHOR:
        Justice Susan Owens

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

                                                         Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

        Justice Mary E. Fairhurst

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