Opinion Information Sheet

			

In the Matter of the Personal Restraint of Scott (Joshua Dean)

                                         No. 82951-9

       Stephens J. (concurring) -- I concur in the lead opinion's dismissal of Joshua 

Dean Scott's personal restraint petition (PRP).  But I cannot endorse the lead 

opinion's gratuitous announcement of a new "rule" affecting determinations of facial 
invalidity.  After tracing our case law since Stoudmire,1 the lead opinion states that 

courts may review charging documents, verdict forms, and documents related to 

plea agreements, "but not jury instructions," in assessing whether a judgment and 

sentence is facially valid.  Lead opinion at 7 & n.3.  No support exists for drawing 

this line.  

       As with our recent decision in Coats, this case does not present an occasion 

to revisit our precedent since Stoudmire.  In re Pers. Restraint of Coats, 173 Wn.2d 

123, 136 n.8, 267 P.3d 324 (2011).  Thus, we begin with the proposition that courts 

may look beyond the four corners of a judgment and sentence in order to ascertain 

facial invalidity under RCW 10.73.090.  Coats, 173 Wn.2d at 138-39.  The court in 

       1 In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 5 P.3d 1240 (2000), 
overruled in part by In re Pers. Restraint of Turay, 153 Wn.2d 44, 101 P.3d 854 (2004). 

In the Matter of the Personal Restraint of Scott (Joshua Dean), 82951-9
(Stephens, J. Concurrence)

Coats observed that we have never rested a determination of facial invalidity on 

"jury instructions, trial motions, and other documents that relate to whether the 

defendant received a fair trial," further cautioning that defects in jury instructions 

cannot render a judgment and sentence invalid on its face.  Id. at  140 & n.11.  

Presumably, the lead opinion seeks to build on Coats and draw a bright line to limit 

the grounds upon which courts will consider the merits of otherwise untimely PRPs.

       While I support the lead opinion's goal, I believe its approach is misguided.  

Refusing to find a judgment and sentence facially invalid based on defective jury 

instructions is not the same thing as refusing to consider jury instructions, along with 

charging documents and verdict forms, to determine whether a claim of facial 

invalidity is supported.  Unfortunately, the categorical refusal to look at jury 

instructions could actually lead a court to find facial invalidity where none exists.  

Consider, for example, a case similar to this one but where the law post-Recuenco 
III2 applies.  The information (which the court considers) charges a firearm 

enhancement; the special verdict form (which the court also considers) reflects a 

deadly weapon finding.  If we look at nothing else, a judgment and sentence 

imposing a firearm enhancement reveals a facial invalidity.  But, what if the jury 

instructions relating to the special verdict form tell the jury it should give an 

affirmative answer on the special verdict form only if it finds the defendant armed 

with the charged firearm?  In other words, under the law explained to the jury, a 

       2 State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008).

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In the Matter of the Personal Restraint of Scott (Joshua Dean), 82951-9
(Stephens, J. Concurrence)

deadly weapon verdict reflected a firearm finding.  Without an ability to consider 

the jury instructions in conjunction with the charging document and the  special 

verdict form, a court reviewing the judgment and sentence is unable to confirm the 

absence of any facial invalidity.  This makes no sense.  After all, courts often 

ascertain the meaning of special verdict forms in light of the instructions given to the 

jury.  Why not in this context?  My concern is that the artificial line the lead opinion

draws provides no real limitation on PRPs and may well expand as often as limit the 

instances in which facial invalidity will be found.

       Nor is this an appropriate case in which to engage in such line drawing.  In 

support of his PRP, Scott offers only the charging document, verdict forms, and 

judgment and sentence.  See Personal Restraint Pet. (Apr. 10, 2006), Apps. 1, 2, 3.  

Rather than announce a bright line rule about jury instructions, we should decide 

this case based on what is before us.  Scott cannot demonstrate the facial invalidity 

of his judgment and sentence because it is valid under the law in effect at the time it 

was entered, and Scott is not entitled to the retroactive benefit of our later decisions.  

For this reason, his PRP must be dismissed. 

                                              -3- 

In the Matter of the Personal Restraint of Scott (Joshua Dean), 82951-9
(Stephens, J. Concurrence)

AUTHOR:
       Justice Debra L. Stephens

WE CONCUR:

       Justice Mary E. Fairhurst

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