(concurring in the majority) — I agree with the
majority that Vincent Grasso’s petition must be denied. I write separately because I disagree with the standard that the majority applies.
Unquestionably, Mr. Grasso’s petition is time barred under RCW 10.73.090(1) and must be dismissed unless his *22petition is based solely on one or more of the grounds specified in RCW 10.73.100. Here, Grasso cites an exception to the time bar, contending that there has been a significant change in the law that is material to his conviction. RCW 10.73.100(6). Specifically, Grasso argues that this court’s decision in State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), overruled a prior opinion of the Court of Appeals, State v. Borland, 57 Wn. App. 7, 786 P.2d 810 (1990). In Borland, the Court of Appeals construed the requirement in the child hearsay statute, RCW 9A.44.120(2)(a), that a child “testify” before the child’s hearsay can be admitted in criminal proceedings. The court held that child hearsay evidence is admissible if the child is competent and physically available, regardless of whether the child actually testifies. Id. at 13.
In Rohrich this court disapproved Borland and concluded that “testifies,” as used in RCW 9A.44.120(2)(a), means that “the child takes the stand and describes the acts of sexual contact alleged in the hearsay.” Rohrich, 132 Wn.2d at 481. This construction, Rohrich stated, “is consistent with the Confrontation Clause and comports with legislative intent.” Id. Thus, Rohrich is an intervening opinion overturning a prior appellate decision that originally determined the meaning of “testify” in the child hearsay statute, arguably constituting a significant change in the law material to Grasso’s conviction. In re Pers. Restraint of Greening, 141 Wn. 2d 687, 696, 9 P.3d 206 (2000).
Assuming that Rohrich constitutes a significant change in the law, rendering Grasso’s petition timely under the exception of RCW 10.73.100(6), In re Personal Restraint of Cook, 114 Wn.2d 802, 792 P.2d 506 (1990), sets forth the correct standard in Washington to be applied to his personal restraint petition. Under Cook, when a personal restraint petitioner seeks collateral relief based on a nonconstitutional issue, the petitioner must demonstrate that the alleged error constitutes a fundamental defect, which inherently results in a complete miscarriage of justice. Cook, 114 Wn.2d at 813. The claimed error in *23Grasso’s case is nonconstitutional because it involves the appropriate interpretation of the child hearsay statute, not what protections are afforded under the confrontation clause.
The situation here is similar to that in Cook. There, this court recognized that a right protected by statute may be closely akin to a fundamental constitutional right. The petitioner in Cook claimed, in a second petition, that he was entitled to relief based upon this court’s interpretation of RCW 10.43.040 (statutory double jeopardy). At trial the petitioner argued that his state prosecution violated double jeopardy, but he failed to claim a violation of the double jeopardy statute. Although the court recognized that the right protected by the double jeopardy statute is closely akin to a fundamental constitutional right, the court determined that Cook’s petition raised a nonconstitutional error.
Here, however, the majority appears to assume that the issue before the court is whether Grasso’s Sixth Amendment confrontation rights have been violated and applies Cook’s constitutional error standard of “actual prejudice.” This assumption is incorrect. In its discussion of the confrontation clause, Rohrich relied on well-established United States Supreme Court precedent, including White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992); California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986) and a host of federal decisions applying that precedent. Clearly, there was no significant change in the law regarding confrontation rights announced in Rohrich. See In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 703, 72 P.3d 703 (2003) (no significant new law material to defendant’s case where cases relied on were well-established precedent on admissibility of codefendant’s confession).
The distinction is critical to the question whether Grasso’s petition is in fact time barred. If the majority has correctly identified the issue as one relating to a constitu*24tional error then Grasso’s petition is time barred—end of discussion. This is so because State v. Rohrich did not announce a new interpretation of the constitutional protections afforded under the confrontation clause; it only construed the child hearsay statute to be consistent with those protections. Grasso’s petition may be considered as timely only if his claim of error relates to a violation of RCW 9A.44.120(2)(a) as construed in State v. Rohrich.
Because Rohrich represents a significant change in the law only on the nonconstitutional error ground, it follows, as stated above, that the nonconstitutional standard for collateral review applies. In Cook, the court acknowledged that previous case law barred consideration of nonconstitutional claims, which could have been, but were not, advanced at trial or on appeal. Cook, 114 Wn.2d at 809. However, the court then rejected the automatic bar to raising nonconstitutional issues, replacing it with a requirement that the petitioner demonstrate that the error constituted a fundamental defect resulting in a complete miscarriage of justice. Such a showing, Cook observed, is stricter than the “actual prejudice” standard for constitutional error and strikes the proper balance between finality and consideration of serious nonconstitutional error. Id. at 809-11.
Similar to the petitioner in Cook, Grasso seeks statutory protection under the child hearsay statute, which this court has construed to be consistent with the confrontation clause. As with petitioner’s claim in Cook, Grasso’s claim is statutory, not constitutional. Accordingly, the standard to be applied to this petition is the stricter standard established in Cook for nonconstitutional error.
Applying this standard, the first question is whether error occurred. I agree that a violation of RCW 9A.44.120 occurred in this case. The State may not give a witness permission to refuse to testify. In order to prevail on a collateral attack, however, Grasso must establish that upholding his conviction would amount to a complete miscarriage of justice. He cannot do so. At the competency/ *25reliability hearing conducted pretrial, Grasso stipulated to the reliability of child hearsay statements made to Tucker Copple, Elaine Metz, and Jean Bourget. Further, at that hearing the trial court found the additional statement to Kathy Keating-Harvey reliable. At trial, Grasso did not object to R.G.’s testimony and did not move to strike. Rather, through his attorney, Grasso proceeded to cross-examine R.G. about the alleged sexual abuse and her statements regarding that abuse. As amply described by the majority, R.G. answered every defense question, essentially agreeing that she had denied the abuse in prior statements to defense counsel and affirming the truth of those statements of denial.
It is true, as the dissent says, that under Rohrich, responses given on cross-examination have no bearing on whether the prosecution properly conducted its direct examination under RCW 9A.44.120. Dissent at 29-30. However, collateral review changes the analysis. Grasso bears the burden of establishing a complete miscarriage of justice. Under this standard the court must view the entire record, including cross-examination. In light of the entire record, petitioner Grasso cannot meet his burden to demonstrate that upholding his conviction amounts to a complete miscarriage of justice.
Fairhurst, J., concurs with Madsen, J.