In re the Personal Restraint of Domingo

¶39 Madsen, J.

(dissenting) — The majority erroneously concludes that State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000), and State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000) did not significantly change the law of accomplice liability and that the exception in RCW 10.73.100(6) to the one-year time limitation of RCW 10.73.090 therefore does not apply. In State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984), this court explicitly reaffirmed the legal principle that once an accomplice agreed to participate in a criminal act, he or she ran the risk that the primary actor would exceed the scope of the prearranged crime. Id. at 658. Plainly, Roberts and Cronin altered this legal principle and significantly changed the law.

¶ 40 The Court of Appeals in In re Personal Restraint of Smith, 117 Wn. App. 846, 73 P.3d 386 (2003), reached the correct result. That court explained that based on its reading of Davis and its progeny it would have rejected, prior to Roberts, a challenge to the accomplice liability instruction invalidated in Roberts. Id. at 857. And in fact, the Court of Appeals had rejected the same challenge in another case. See id. at 856-57 (citing In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 833-34, 39 P.3d 308 (2001), and explaining that based on Davis it had rejected the challenge on the petitioner’s direct appeal in Sarausad). The Court of Appeals said in Smith, and I agree, “we cannot expect [the petitioner] to have understood the limitations of the Supreme Court’s decision in Davis when we ourselves *371failed to recognize them until the Cronin and Roberts decisions were published.” Smith, 117 Wn. App. at 857.

¶41 The majority says, though, that Roberts and Cronin did not constitute a significant change in the law because the language of the accomplice liability statute made available the argument that liability attaches only if the accomplice knowingly aids the principal in the commission of the specific crime for which the accomplice is charged. But as the Court of Appeals explained, the argument was rejected prior to Roberts and Cronin despite the statutory language.

f 42 Like the Court of Appeals, even this court failed to understand the limitations of its decision in Davis, as is apparent from the fact that less than a month after Davis was filed the court handed down State v. Rice, 102 Wn.2d 120, 124, 683 P.2d 199 (1984), where the jury instruction stated the law of accomplice liability that was subsequently held invalid in Roberts and Cronin. And at that time the accomplice liability statute, as now, provided for accomplice liability if the accomplice acted with knowledge that his or her acts would “ ‘promote or facilitate the commission of the crime.’ ” Davis, 101 Wn.2d at 657 (emphasis added) (quoting RCW 9A.08.020(3)(a)).

¶43 In an attempt to rewrite history, the majority says that Roberts expressly adhered to Davis and thus did not change the law. But Roberts and Cronin adhered only to the holding in Davis that to establish accomplice liability the State must prove that the accomplice acted with general knowledge of the principal’s crime; the State does not have to prove that the accomplice had specific knowledge of the elements of the crime. Roberts, 142 Wn.2d at 512-13; Cronin 142 Wn.2d at 578. Roberts and Cronin broke new ground, however, in holding that the accomplice must have knowledge of the crime charged. Roberts, 142 Wn.2d at 509-13; Cronin, 142 Wn.2d at 578-79.

¶44 The majority labels as dicta the ruling in Davis that “the law has long recognized that an accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the *372preplanned illegality.” Davis, 101 Wn.2d at 658. But the court was directly addressing the rationale for the holding in the case, and its statement was not dicta. See State v. Robertson, 88 Wn. App. 836, 847, 947 P.2d 765 (1997) (explaining that “the court in Davis based its decision in part on the distinction between substantive crimes and enhancement statutes”).

¶45 The majority rejects the petitioner’s reliance on 11 Washington Pattern Jury Instructions: Criminal 10.51, at 157 (2d ed. 1994) (WPIC)11 as showing that Roberts and Cronin changed the law. But this court has expressly referred prosecutors to the WPICs for the purpose of identifying the elements of a crime. State v. Vangerpen, 125 Wn.2d 782, 791 n.17, 888 P.2d 1177 (1995); State v. Kjorsvik, 117 Wn.2d 93, 102 n.13, 812 P.2d 86 (1991). The court has also referred to the WPICs themselves to identify elements of a crime in both criminal and civil cases. E.g., State v. Lee, 128 Wn.2d 151, 158-59, 904 P.2d 1143 (1995); Mendoza v, Rivera-Chavez, 140 Wn.2d 659, 676, 999 P.2d 29 (2000).

¶46 Despite the majority’s attempt to avoid the consequences of our decisions, Roberts and Cronin constitute a significant, material change in the law of accomplice liability, and the petitioners should not be faulted for having failed to make an argument that was essentially unavailable on their direct appeals. See In re Pers. Restraint of Greening, 141 Wn.2d 687, 696-97, 9 P.3d 206 (2000). RCW 10-.73.090’s one year time bar to filing personal restraint petitions does not apply where there has been “a significant change in the law, whether substantive or procedural, which is material to the conviction . . . [and] sufficient rea*373sons exist to require retroactive application of the changed legal standard.” RCW 10.73.100(6).

¶47 Because I would hold that Roberts and Cronin constitute a significant change in the law material to petitioners’ convictions, the next question under RCW 10-.73.100(6) is whether Roberts and Cronin should be applied retroactively to cases on collateral review. Roberts and Cronin are based on the court’s construction of the accomplice liability statute. When this court construes a statute, its construction is deemed to be what the statute has meant since its enactment. State v. Moen, 129 Wn.2d 535, 538, 919 P.2d 69 (1996). Such a ruling is “automatically ‘retroactive.’ ” Greening, 141 Wn.2d at 693 n.7 (quoting Moen, 129 Wn.2d at 538)).

¶48 Importantly, the holding in Roberts and Cronin does not concern a new rule of criminal procedure. See generally In re Pers. Restraint of Markel, 154 Wn.2d 262, 268-69, ¶ 11, 111 P.3d 249 (2005) (describing analysis for determining retroactive application on collateral review of a new rule for the conduct of criminal prosecutions). Instead, the substantive law of accomplice liability is at issue. As the United States Supreme Court recently explained, a new substantive rule generally applies retroactively. Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). This is true of “decisions that narrow the scope of a criminal statute by interpreting its terms.” Id. While the Teague12 doctrine will generally preclude application of procedural rules retroactively on collateral review, the same is not true of substantive rules affecting criminal liability. Bousley v. United States, 523 U.S. 614, 620, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998).

149 Thus, the one-year bar of RCW 10.73.090 does not apply in this case, and the court should determine whether the petitioners have met their burden of showing that they were actually and substantially prejudiced by the claimed error. See State v. Evans, 154 Wn.2d 438, 453, ¶ 30, 114 P.3d *374627 (2005) (personal restraint petitioners asserting error in giving the accomplice liability instructions invalidated in Roberts must meet this burden).

¶50 I dissent.

C. Johnson, Sanders, and Fairhurst, JJ., concur with Madsen, J.

WPIC 10.51 (2d ed. 1994) provided:

“A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
“(1) solicits, commands, encourages, or requests another person to commit the crime; or
“(2) aids or agrees to aid another person in planning or committing a crime.”

(Emphasis added.)

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).