In re Pers. Restraint of Colbert

FILE This opinion was filed for record
IN CLERKS OFFICE
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SUSAN L. CARLSON '
SUPREME COURT CLERK
IN HE SUPREME COURT OF THE STATE OFWASIDNGTON

In the Matter of the Personal )
Restraint of ) No. 92421-0
)
BOBBY DARRELL COLBERT, ) EnBanc
)
Petitioner. )
) Filed SEP 2 9 2016

JOHNSON, J.-In this personal restraint petition (PRP), the petitioner

challenges his 2005 conviction for second degree rape, arguing our decision in

State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014)-which held that instructing

the jury that the defendant bears the burden to establish the victim's consent was

error-should apply retroactively. He presents two main arguments: that his PRP

overcomes the one-year time limit under chapter 10.73 RCW because the decision

in W.R. either involved statutory interpretation exempt from the time bar or is a

significant change in the law material to his conviction that requires retroactive

application. We hold that W.R. does not apply retroactively and deny the petition

as time barred.

This is Bobby Colbert's third PRP. Colbert was tried on January 31, 2005,

for rape in the third degree and rape in the second degree involving two different
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

victims on two different dates. A jury convicted Colbert on both counts. Colbert

received an indeterminate sentence of 136 months to life on March 31, 2005, for

the second degree rape conviction. 1

At Colbert's trial, the court instructed the jury that Colbert had the burden of

proving consent as to the second degree rape charge. While Colbert's counsel

acknowledged that the proposed instruction was consistent with then-existing case

law as setforth in State v. Camara, 113 Wn.2d 631, 781 P.2d 483 (1989),

overruled by WR., 181 Wn.2d 757, and proposed an instruction similar to the one

given there, 2 counsel expressed concern that the instruction would cause confusion

about the burdens as to consent. The court overruled the objection3 and instructed

the jury:

Consent is a defense to a charge of rape in the second degree. This
defense must be established by a preponderance ofthe evidence.
Preponderance of the evidence means that you must be persuaded,
considering all the evidence in the case, that it is more probably true
than not true. If you find that the defendant has established this
defense, it will be your duty to return a verdict of not guilty.

1
The second degree rape charge--involving victim K.P .-is the only one at issue in this
petition.

2
Before the rule discussed below, Camara held the burden of proof on consent in rape
prosecution lies with the defendant.

3
The court noted that the defense had the benefit of any evidence, regardless of which
party presented it.

2
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

Pers. Restraint Pet. Ex. 1 (Instr. 15). In W.R., we held giving this instruction is

error.

Colbert filed this third PRP in this court on December 26, 2013. The petition

was originally based on State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013),

which involved the Sixth Amendment to the United States Constitution's right to

control one's defense. We transferred the PRP to the Court of Appeals. The Court

of Appeals then certified Colbert's PRP to this court after W.R. was decided.

Colbert alleges that he is unlawfully restrained because there has been a

significant change in the law that is material to his conviction. RAP 16.4(c)(4).4 He

argues that the trial court violated his due process rights by requiring him to prove

consent by a preponderance of the evidence, contrary to the holding of W.R.

The question here is whether the petition is timely. Because Colbert's case

became final on June 8, 2007, when the appellate mandate issued, he is outside the

one-year period for collaterally attacking a conviction unless an exception applies.

RCW 10.73.090.

4 "The restraint must be unlawful for one or more of the following reasons:
"
"(4) There has been significant change in the law, whether substantive or procedural,
which is material to the conviction, sentence, or other order entered in a criminal proceeding or
civil proceeding instituted by the state or local govermnent, and sufficient reasons exist to
require retroactive application of the changed legal standard."

3
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

Colbert first argues that his petition is not subject to the one-year time bar of

RCW 10.73.090 because his claims are based on a "significant change in the law,"

an exception to the one-year limitation under RCW 10.73.100(6), which provides:

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.

Colbert claims that WR. significantly changed the law regarding the burden of

proof of consent in a second degree rape case.

RCW 10.73.100(6) sets forth three conditions that must be met before a

petitioner can overcome the one-year time bar: (1) a substantial change in the law

(2) that is material and (3) that applies retroactively. Colbert is correct that WR.

constitutes a significant change in the law, material to his conviction. A

"significant change in the law" occurs when "'an intervening opinion has

effectively overturned a prior appellate decision that was originally determinative

of a material issue."' In re Pers. Restraint ofDomingo, 155 Wn.2d 356, 366, 119

P.3d 816 (2005) (quoting In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9

4
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

P.3d 206 (2000)). The State does not disagree that WR. constitutes a substantial

change in the law that is material to Colbert's conviction. See Suppl. Br. ofResp't

at 15 (acknowledging that WR. constitutes a "significant change of the law" within

the meaning ofRCW 10.73.100(6)). However, determining whether a decision is a

change in the law is an inquiry distinct from determining whether it is applied

retroactively.

Colbert first contends that retroactive application is warranted because the

WR. opinion does not create a "new rule" because it is based on interpretation of a

1975 statute. Suppl. Br. ofPet'r at 8-9. While Colbert is correct that "where a

statute has been construed by the highest court ofthe state, the court's construction

is deemed to be what the statute has meant since its enactment. In other words,

there is no question of retroactivity." State v. Moen, 129 Wn.2d 535, 538, 919 P.2d

69 (1996); see also In re Pers. Restraint ofVandervlugt, 120 Wn.2d 427, 842 P.2d

950 (1992); In re Pers. Restraint ofMoore, 116 Wn.2d 30, 803 P.2d 300 (1991)

(holding when this court interprets a statute, that statute is deemed to have had that

newly interpreted meaning since that statute was enacted). We disagree that WR.

involved statutory interpretation. 5

5
Even if W.R. was grounded in statutory interpretation, and it was not, it would have
overruled a previous interpretation of the rape statute. In other words, it was a reinterpretation of
the statute, and the principle that the court's construction is deemed to be what the statute has
meant since its enactment does not logically appear to apply. No cases have been cited or found
where a decision overrules prior cases involving statutory interpretation subject to this rule.

5
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

W.R. expressly overruled Camara and State v. Gregory, 158 Wn.2d 759, 147

P.3d 1201 (2006), 6 on due process grounds and was not based on statutory

interpretation. WASH. CaNST. art. I, § 12. We know that because the W.R. opinion

itself holds that is a violation of due process to task the defendant with proving a

defense that negates an element ofthe crime charged. The decision did not turn on

any statutory language. The misallocation of the burden addressed in W.R. has only

a tangential relationship to the second degree rape statute insofar as consent can

negate an element ofthe offense. The statutory language of rape in the second

degree does not mention consent or contain any provisions relating to affirmative

defense. 7 Unlike rape in the third degree, consent is not an element of rape in the

second degree. As was explained in Lynch:

Whether the interpretation applies from enactment or from the date of the case "reinterpreting" a
statute is an interesting issue we need not resolve.

6
Gregory reaffirmed the holding in Camara that the defendant must prove consent by a
preponderance of the evidence.

7
Rape in the second degree:
"(1) A person is guilty of rape in the second degree when, under circumstances not
constituting rape in the first degree, the person engages in sexual intercourse with another
person:
"(a) By forcible compulsion." RCW 9A.44.050.
Rape in the third degree:
"( l) A person is guilty of rape in the third degree when, under circumstances not
constituting rape in the first or second degrees, such person engages in sexual intercourse with
another person:
"(a) Where the victim did not consent as defined in RCW 9A.44.01 0(7), to sexual
intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's
words or conduct, or

6
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

Rape in the second degree encompasses sexual intercourse by forcible
compulsion "under circumstances not constituting rape in the first
degree," sexual intercourse with a victim who is physically helpless or
mentally incapacitated, and sexual intercourse characterized by the
victim's vulnerability and dependence on the perpetrator for certain
care or services. Rape in the third degree encompasses sexual
intercourse "under circumstances not constituting rape in the first or
second degrees," where the victim clearly expressed a lack of consent
or the perpetrator made a "threat of substantial unlawful harm" to the
victim's "property rights."

Lynch, 178 Wn.2d at 515 (Gordon McCloud, J., concurring) (footnotes omitted)

(quoting RCW 9A.44.050(1)(a), .060(l)(b)). Since second degree rape requires

proof of forcible compulsion and not lack of consent, the reasoning in W.R. did not

turn on statutory interpretation, even though, in some cases, consent negates the

element of forcible compulsion. The holding of W.R. makes this point expressly.

Nonetheless, Colbert cites two cases in support of his argument that W.R. is

based on statutory interpretation, In re Personal Restraint of Grasso, 151 Wn.2d 1,

84 P.3d 859 (2004) (plurality opinion), and In re Personal Restraint ofYung-

Cheng Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015). Grasso dealt with the admission

of a child victim's hearsay statements in a child molestation case. In a three-justice

lead opinion, Grasso held that the meaning of "testifY" as used in RCW

9A.44.120(2)(a) and redefined in State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697

(1997), must be applied retroactively because it was based on statutory

"(b) Where there is threat of substantial unlawful harm to property rights of the victim."
RCW 9A.44.060 (emphasis added).

7
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

interpretation and thus not a "new rule" warranting Teague retroactivity analysis.

Teague v. Lane, 489 U.S. 288,299,311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)

(plurality opinion). However, Grasso is inapposite to WR.

In Grasso, we decided retroactive application was appropriate for two

reasons: first, because the rule announced in Rohrich was based on statutory

construction of the word "testifies," the court's construction was deemed to be

what the statute has meant since its enactment. In other words, there was no

question of retroactivity. Unlike Grasso, as pointed out above, WR. is based on

constitutional due process principles rather than statutory interpretation. Second,

and more importantly, Grasso was procedurally situated differently and not facing

the same time bar that Colbert now faces. To the extent that Rohrich was based on

constitutional principles similar to WR., the Rohrich decision was filed before

Grasso's direct review was final. See Grasso, 151 Wn.2d at 12 ("'[a] new rule for

the conduct of criminal prosecutions is to be applied retroactively to all cases, state

or federal, pending on direct review or not yet final.' ... Because we consider the

date of the mandate to be the date of finality in this case, the Rohrich decision

occurred before Grasso's direct review was fmal." (alteration in original) (quoting

In re Pers. Restraint ofSt. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 (1992)). In

the present case, since the WR. decision occurred several years after the mandate

issued, it is not controlling.

8
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

Next, Colbert argues that Tsai supports his position that W.R. warrants

retroactive application. In Tsai, we granted collateral relief involving a claim of

ineffective assistance of counsel regarding the advisement of immigration

consequences of a conviction. The ineffective assistance claim was based on the

statutory requirements ofRCW 10.40.200, which in certain cases deals with

deportation upon conviction. We held that Padilla v. Kentucky, 559 U.S. 356, 130

S. Ct. 1473, 176 L. Ed. 2d 284 (2010), did not announce a new rule under

Washington law for Teague purposes because RCW 10.40.200, adopted in 1983,

had always required a defendant to be advised by counsel of immigration

consequences, which Padilla ultimately recognized. We held that Padilla

warranted retroactive application as a significant, material, and retroactive

application of statutory requirements exempting the PRP from the one-year time

bar, but was not a new rule subject to Teague analysis. Because W.R. is not

statutorily based, Tsai is not controlling here.

Even where a case does not involve statutory interpretation, it may in limited

circumstances be retroactive under narrow exceptions recognized in Teague. In

determining whether an exception applies, we typically first determine whether the

rule is a new rule subject to Teague analysis. Generally, RCW 10.73.100(6) is

interpreted consistent with the federal retroactivity analysis under Teague. See In

re Pers. Restraint of Gentry, 179 Wn.2d 614,625,316 P.3d 1020 (2014). Under

9
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

that analysis, a "new rule" will not be given retroactive application to cases on

collateral review. St. Pierre, 118 Wn.2d at 326 (citing Teague, 489 U.S. at 311 ). A

·new rule is defined as one that breaks new ground or "'was not dictated by

precedent existing at the time the defendant's conviction became final.' Moreover,

if 'reasonable jurists could disagree on the rule of law, the rule is new."' In re Pers.

Restraint ofHaghighi, 178 Wn.2d 435, 443, 309 P.3d 459 (2013) (emphasis and

citation omitted) (quoting In re Pers. Restraint ofEastmond, 173 Wn.2d 632, 639-

40, 272 P.3d 188 (2012)). W.R. is such a "new rule." The change in who bears the

burden of proving consent in a second degree rape case was not dictated by

precedent. W.R. expressly overruled our prior cases, which had established the

contrary rule. W.R. explicitly noted Camara and Gregory had "become incorrect"

because "subsequent United States Supreme Court precedent clarifie[d] that our

prior understanding was erroneous." W.R., 181 Wn.2d at 768. As a new rule, we

thus turn to the Teague framework to determine if the change in who bears the

burden of proving consent in a second degree rape case warrants retroactivity.

Under the Teague analysis, a new rule warrants retroactive application under

two circumstances: "It must either be a substantive rule that places certain behavior

'beyond the power of the criminal law-making authority to proscribe' or a

watershed rule of criminal procedure 'implicit in the concept of ordered liberty.'"

10
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

Gentry, 179 Wn.2d at 628 (internal quotation marks omitted) (quoting Teague, 489

U.S. at 311). We have recognized that

Teague presents a very high hurdle to overcome. In announcing
watershed rules, courts have been sparing to the point of
unwillingness. See In re Pers. Restraint ofMarkel, 154 Wn.2d 262,
269 n.2, 111 P.3d 249 (2005) (noting that in review of 11 claimed
watershed rules, the United States Supreme Court had yet to declare
any a watershed rule triggering retroactivity). The United States
Supreme Court has cited the rule announced in Gideon v. Wainwright,
[372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)] guaranteeing the
right to counsel for criminal defendants, as an example of a watershed
rule of criminal procedure, though the decision in Gideon predated
Teague by several years. Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct.
1257, 108 L. Ed. 2d 415 (1990). But the United States Supreme Court
has stopped short of recognizing any other instance ofthe type of rule
it discussed in Teague. Likewise, we have yet to announce such a rule,
though we have several times concluded a rule does not meet the
Teague requirements. See Markel, 154 Wn.2d at 273 (holding the rule
announced in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), is not a watershed rule of criminal
procedure); State v. Evans, 154 Wn.2d 438, 447-48, 114 P.3d 627
(2005) (same with regard to Apprendi [v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)] and Blakely [v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)]
rules).

Gentry, 179 Wn.2d at 628-29 (footnotes omitted).

Colbert argues that if the rule from WR. regarding the burden of proof of

consent is a new rule, it must be applied retroactively under a Teague exception.

The first Teague exception-generally involving substantive rules that place

certain behavior beyond the power of the criminal-law-making authority to

proscribe-we conclude does not apply because that exception involves a rule that

11
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

either decriminalizes a class of private conduct or prohibits the imposition of

capital punishment on a particular class of persons. Saffle, 494 U.S. at 495 (holding

Teague exceptions not met based on Gideon, 372 U.S.335).

The second Teague exception, involving "watershed" procedural rules, is

limited to new procedures considered essential for an accurate conviction. Teague,

489 U.S. at 313. As Colbert acknowledges, courts are reluctant to declare rules

"watershed." Suppl. Br. ofPet'r at 20-21. In this context, to qualify as a new

watershed rule, the rule must be necessary to prevent "an impermissibly large risk"

of inaccurate convictions and must "'alter our understanding of the bedrock

procedural elements"' essential to the fairness of a proceeding. Teague, 489 U.S. at

312, 311 (emphasis omitted) (quoting Mackey v. United States, 401 U.S. 667, 693,

91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). This second Teague exception is very

narrow. The Court of Appeals has correctly recognized this:

The Court has repeatedly emphasized the limited scope of the
second Teague exception. O'Dell v. Netherland, 521 U.S. 151, 157,
117 S. Ct. 1969, 138 L. Ed. 2d 351 (1997) (citing Graham v. Collins,
506 U.S. 461, 478, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993)).
Because any rule "'would be so central to an accurate determination
of innocence or guilt [that it is] unlikely that many such components
of basic due process have yet to emerge,"' the Supreme Court has yet
to find a new rule that falls under the second Teague exception.
Graham, 506 U.S. at 478 (quoting Teague, 489 U.S. at 313). "'[T]his
class of rules is extremely narrow, and it is unlikely that any ... ha[s]
yet to emerge."' Markel, 154 Wn.2d at 269 (quoting Schriro[8l).

8
Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).

12
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

State v. Carney, 178 Wn. App. 349, 362, 314 P.3d 736 (2013) (most alterations in

original) (footnote omitted). We agree.

Colbert cites to a footnote in Hall v. Kelso, 892 F .2d 1541 (11th Cir. 1990)

to support his argument that found retroactivity applicable under the "watershed"

exception. There, the court held a jury instruction was an improper burden shift

under Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39

( 1979), and warranted retroactive application. While Hall found retroactive

application under the watershed rule of Teague warranted, 9 other federal courts

considering the same issue involved in Hall have disagreed that Sandstrom created

a watershed rule. See Johnson v. McKune, 288 F.3d 1187, 1200 (lOth Cir. 2002);

Cain v. Redman, 947 F.2d 817, 822 (6th Cir. 1991). The United States Supreme

Court has not held that Sandstrom created a watershed rule.

Moreover, Hall dealt with a felony murder case where the instruction was

held to be impermissible because it relieved the State altogether of the burden of

proving that the defendant had the requisite criminal intent for the underlying

crime. Because the State here was required to prove that forcible compulsion

occurred and all other elements of the offense, the risk of an inaccurate conviction

does not exist. The jury necessarily found the State proved forcible compulsion.

9
Hall, 892 F.2d at 1543 n.l. The Hall opinion included its retroactivity analysis in a
footnote, which we find unpersuasive.

13
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0

We hold that Colbert's petition is beyond the time limits ofRCW 10.73.090

and fails to meet the time bar exception set out in RCW 10.73.100(6).l11 We deny

Colbert's petition.

/
\___,,

WE CONCUR:

vrz--eC('fZ

10
Because we determine that the decision in W.R. announced a new rule not given
retroactive application and dismiss Colbert's petition as time barred, we need not reach the two
questions of (1) whether Colbert was actually and substantially prejudiced by the change in
burden of proof of consent and (2) whether Colbert invited error by seeking a jury instruction
similar to the one proposed by the State and submitted to the jury.

14
In re Pers. Restraint of Colbert (Bobby D.)

No. 92421-0

MADSEN, C.J. (concurring)-Both the majority and concurrence/dissent agree

that our recent decision in State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014),

constitutes a significant change in the law for purposes ofRCW 10.73.100(6). I agree

with the majority that W.R. rests on constitutional due process principles rather than

statutory interpretation. WASH. CONST. art. I,§ 12. Also, I agree with the

concurrence/dissent that the Teague retroactivity rule, relied on by the majority, applies

only to a new rule of constitutional law. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060,

103 L. Ed. 334 (1989) (plurality opinion).

But the question here is whether there is sufficient reason to require retroactive

application of a significant change in the law under RCW 10.73.100, which creates an

exception to the time bar under RCW 10.73.090. See RCW 10.73.100(6) (the time limit

in RCW 10.73.100 does not apply if"[t]here has been a significant change in the law, ...

which is material to the conviction," if a "court ... determines that sufficient reasons

exist to require retroactive application of the changed legal standard"). In In re Personal

Restraint ofYung-Cheng Tsai, 183 Wn.2d 91, 105, 351 P.3d 138 (2015), this court held

that a "significant change" in state law and a "new" constitutional rule of criminal
No. 92421-0
Madsen, C.J., concurring

procedure under Teague have different meanings and serve different purposes. However,

just as Tsai held there is a difference between "a significant change" in state law and

retroactivity considerations under Teague, I would hold that retroactivity under RCW

10.73 .090, which provides for exceptions to the time bar for personal restraint petitions,

also has a distinct meaning and serves a distinct purpose from "a significant change in the

law." The mere fact that there is a significant change in the law cannot signal that the

change necessarily will be applied retroactively because the statute provides discretion to

the court to make that decision.

RCW 10.73.100(6) requires the court to decide whether "sufficient reasons exist to

require retroactive application of the changed legal standard." The fact that there has

been a significant change in state law does not automatically mean there is reason to

apply that change to cases that are final. This court has been inconsistent about what

standard to apply when there is a significant change in the law. See Tsai, 183 Wn.2d 91;

In re Pers. Restraint ofMarkel, 154 Wn.2d 262, 111 P.3d 249 (2005); In re Pers.

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

I am not prepared to resolve the issue here but I agree with the concurrence/dissent

that even if the court found an exception to the time bar, the petitioner has failed to show

he was actually and substantially prejudiced by the instructional error in this case.

Therefore, I would deny his petition.

2
No. 92421-0
Madsen, C.J., concurring

3
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

No. 92421-0

GORDON McCLOUD, J. (dissenting in part and concurring in part)-The

presumption of nonretroactivity adopted by the United States Supreme Court in

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

opinion), and subsequently by this court, 1 applies only to new rules of constitutional

law. 2 If the holding in State v. WR., 181 Wn.2d 757, 336 P.3d 1134 (2014), were

such a rule, then I would agree with the majority that it applied only prospectively

because it meets neither of Teague's exceptions to presumptive nonretroactivity:

1
In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 325-26, 330, 823 P.2d 492
(1992).
2
Teague, 489 U.S. at 310 ("Unless they fall within an exception to the general rule,
new constitutional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced."); Danforth v. Minnesota, 552 U.S.
264,266, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008) ("New constitutional rules announced
by this Court that place certain kinds of primary individual conduct beyond the power of
the States to proscribe, as well as 'watershed' rules of criminal procedure, must be applied
in all future trials, all cases pending on direct review, and all federal habeas corpus
proceedings.").

1
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

W.R. did not announce a substantive rule of law under Teague, 3 and it does not meet

Teague's strict definition of a "watershed rule." 4

But the holding in W.R. is not the kind of rule that triggers Teague's

presumption, for two reasons. First, W.R. rests in part on statutory as opposed to

constitutional interpretation and Teague is "inapplicable to the situation in which

[the] Court decides the meaning of a criminal statute," 5 Bousley v. United States, 523

U.S. 614, 620, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). This is because a statute

3
Cf Montgomery v. Louisiana, _U.S._, 136 S. Ct. 718, 732-34, 193 L. Ed. 2d
599 (2016) (Miller v. Alabama, 567 U.S. , 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407
(2012) prohibition on mandatory life without parole for juvenile offenders announced a
new substantive rule under Teague).
4
Federal cases generally hold that a burden-shifting error triggers the second
Teague exception (for watershed new rules) only if it is a structural error. E.g., United
States v. Sanders, 247 F.3d 139, 148-49 (4th Cir. 2001) (distinguishing rule adopted in
Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), which
applies retroactively under Teague, from rule adopted inApprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which does not, on the ground that
Apprendi errors may be found harmless); Humphrey v. Cain, 120 F.3d 526, 529 (5th Cir.
1997) (Sullivan rule applies retroactively because a structural error makes verdict
fundamentally unreliable), vacated in part on other grounds on reh 'g, 138 F.3d 552, 553
(5th Cir. 1998) (en bane); Harmon v. Marshall, 69 F.3d 963, 967 (9th Cir. 1995); Adams
v. Aiken, 41 F.3d 175, 178-79 (4th Cir. 1994). And the error recognized in WR., 181 Wn.2d
757 is not structural.
5 This is because a holding on legislative intent always applies retroactively: "A
judicial construction of a statute is an authoritative statement of what the statute meant
before as well as after the decision giving rise to that construction." Rivers v. Roadway
Express, Inc., 511 U.S. 298, 312-13, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994) (emphasis
added).

2
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

means what it means-that is, it means what the legislature intended-on

enactment. 6 This court has long observed that rule. 7 Second, to the extent that W.R.

rested on constitutional principles, it did not announce a "new" rule under Teague.

For these reasons, I would hold that the rule announced in W.R. applies to

cases that became final before W.R. was issued and, hence, Bobby Colbert can

overcome the one-year time bar to collateral relief. See majority at 4 (citing RCW

10.73.100(6)). His claim of jury instructional error should therefore be considered

on the merits. On the merits, Colbert has failed to prove that the instructional error

caused actual and substantial prejudice. I therefore concur in the majority's decision

to deny relief.

6
In re Pers. Restraintof.Johnson, 131 Wn.2d 558,568,933 P.2d 1019 (1997).
7
In re Pers. RestraintofHinton, 152 Wn.2d 853, 859-60 & n.2, 100 P.3d 801 (2004)
(retroactively applying statutory interpretation announced in In re Personal Restraint of
Andress, 147 Wn.2d 602, 608-09, 56 P.3d 981 (2002), because "Andress determined what
the statute had meant since 1976"); Johnson, 131 Wn.2d at 568 (retroactively applying
statutory interpretation announced in In re Personal Restraint of Sietz, 124 Wn.2d 645,
650-52, 880 P.2d 34 (1994), because "[o]nce the Court has determined the meaning of a
statute, that is what the statute has meant since its enactment"); State v. Moen, 129 Wn.2d
535, 538-39, 919 P.2d 69 (1996) (retroactively applying statutory interpretation announced
in State v. Krall, 125 Wn.2d 146, 881 P.2d 1040 (1994), because "where a statute has been
construed by the highest court of the state, the court's construction is deemed to be what
the statute has meant since its enactment"); In re Pers. Restraint ofMoore, 116 Wn.2d 30,
38, 803 P.2d 300 (1991) (holding on legislative intent "relates back to the enactment of
that legislation").

3
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

I. THE MAJORITY ERRS BY APPLYING TEAGUE'S PRESUMPTION OF
NONRETROACTIVITY TO A HOLDING ON LEGISLATIVE INTENT

The majority acknowledges that Teague does not apply to new rules of

statutory interpretation: "' [W]here a statute has been construed by the highest court

of the state ... , there is no question of retroactivity."' Majority at 5 (quoting State

v. Moen, 129 Wn.2d 535, 538, 919 P.2d 69 (1996)). But it concludes that Teague

applies to the rule announced in W.R. for two reasons: (1) W.R. "involved [no]

statutory interpretation" and (2) even if W.R. did involve statutory interpretation, "it

was a reinterpretation" and thus our case law on automatic retroactivity "does not

logically appear to apply." !d. at 5 & n.5. I disagree with both of these assertions.

a. W.R. contains both a constitutional holding and a holding on
legislative intent
The majority is correct that W.R. is in large part a constitutional holding. W.R.

held that this court's decisions in State v. Camara, 113 Wn.2d 631, 639-40, 781 P .2d

483 (1989), and State v. Gregory, 158 Wn.2d 759, 801-04, 147 P.3d 1201 (2006),

which permitted the State to burden the defendant in a first or second degree rape

case with proving that the alleged victim consented to sexual contact, violated due

process clause protections and must therefore be overruled as incorrect and harmful.

181 Wn.2d at 768-69. We reasoned that Camara and Gregory both misunderstood

4
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

the significance of the fact that consent "negates" the forcible compulsion element

of first and second degree rape:

When we decided Camara ... [w]e [erroneously] interpreted Martin
[v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987),] to
mean that requiring a defendant to prove a defense by a preponderance
... is "not precluded by the fact that the defense 'negates' an element
of a crime."

I d. at 763 (quoting Camara, 113 Wn.2d at 640). In recognizing this error, W.R. held

that even if the legislature intended to burden the defendant in a first or second

degree rape case with proving consent (i.e., with negating forcible compulsion), due

process clause protections would prohibit the legislature from doing so. 181 Wn.2d

at 766-67 ("The defendant cannot be burdened with proving consent by a

preponderance of the evidence, as the burden must remain on the State to prove

forcible compulsion beyond reasonable doubt.").

If this were the only holding in W.R., I would agree with the majority's

assertion that the case "involved [no] statutory interpretation" for purposes of our

rules on retroactivity. Majority at 5. But W.R. also clearly contains a holding on

legislative intent. Responding to the dissent's contrary argument, the W.R. majority

explains at length that overturning Gregory and Camara "is consistent with rape

reform laws" in 1975 because those reforms were never intended to burden the

defendant with proving consent:

5
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concnrring in part)

The dissent complains that our decision reverses the progress made in
shifting the focus of rape prosecutions away from the victim's conduct
and onto the defendant's. It does not. As Professor Loh explained in a
leading law review article discussed in Camara, the new law "focuses
more on the actor's use or threat of force rather than the victim's
conduct as the external criterion of nonconsent[,]" [but] Washington
and "[m]odern statutory and decisional law do not treat force and
nonconsent as separate formal elements." Rather, force is an objective
indicator ofnonconsent. ... [Therefore], the [rape reform laws'] shift
in focus to "forcible compulsion" was "more a refinement that a
reformulation." It remains that a person is not guilty of rape if the
sexual intercourse is consensual.

W.R., 181 Wn.2d at 767 (emphasis added) (citation omitted) (third alteration in

original) (quoting Wallace D. Loh, The Impact of Common Law and Rape Reform

Statutes on Prosecution: An Empirical Study, 55 WASH. L. REV. 543, 550, 552 n.43

(1980); Camara, 113 Wn.2d at 637 n.3).

Indeed, the W.R. dissent does not address the majority's constitutional holding

at all. It makes no attempt to explain how consent and forcible compulsion could

coexist (not negate one another); thus, it makes no attempt to argue that

Washington's second degree rape statute would satisfy due process even if it did

require a defendant to prove consent. W.R., 181 Wn.2d at 771-74 (Owens, J.,

dissenting). Instead, the W.R. dissent argues only that Washington's 1975 legislature

intended to make the accuser's consent an affirmative defense to first or second

degree rape and defends that policy decision as tending to reduce societal victim-

blaming. Id. Had the W.R. majority rested its holding on constitutional principles

6
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

alone, it would not have needed to rebut the dissent's statutory interpretation. It

would have sufficed to point out that no matter how badly the legislature wanted to

burden rape defendants with proving consent, the constitution prohibits it. See id. at

763-65 ("Burdening a Defendant with Proving a Defense That Negates an Element

of the Crime Charged Violates Due Process").

But the W.R. majority goes further than that: it clearly rejects both

Camara! Gregory's constitutional holding and the dissent's statutory interpretation.

Thus, W.R. contains both a constitutional holding and a holding on the legislative

intent embodied in the 1975 rape reform laws.

b. W.R. 's statutory holding should apply retrospectively to the time of
enactment, even though it overrules a prior decision of this court
After concluding that W.R. involved no statutory interpretation, the majority

goes on to assert that "[e]ven if W.R. was grounded in statutory interpretation," it

would not apply retroactively because "it would have overruled a previous

interpretation of the rape statute." Majority at 5 n.5. Without explanation, the

majority concludes that our precedent holding that statutory interpretations date back

to the time of enactment "does not logically appear to apply" when this court

reverses its own prior interpretation of a statute. I d.

I disagree. When this court interprets a statute, it makes a determination of

legislative intent. See State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013)

7
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

("The purpose of statutory interpretation is 'to determine and give effect to the intent

of the legislature."' (quoting State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305

(2012))). And absent any intervening amendment to the statute in question, that

prior legislative intent does not change between enactment and judicial

interpretation, no matter what happens in between. See Darkenwald v. Emp 't Sec.

Dep 't, 183 Wn.2d 237, 252, 350 P.3d 647 (2015). Thus, logic compels us to apply

a statutory interpretation retrospectively to the date of enactment of the language

being interpreted, even if we must overturn long-standing lower court precedent to

do that. E.g., In re Pers. Restraint ofJohnson, 131 Wn.2d 558, 568,933 P.2d 1019

(1997) (retroactively applying statutory interpretation, announced in 1994, that

overturned Court of Appeals' 1988 interpretation because "[o]nce the Court has

determined the meaning of a statute, that is what the statute has meant since its

enactment"). There is no reason to depart from this rule 8 just because the erroneous

interpretation at issue is our own.

I recognize that W.R. 's hybrid statutory-constitutional holding makes this case

different from our previous decisions on retroactivity. Those previous decisions all

8
Other than perhaps unwillingness to acknowledge that we also make mistakes. But
our mistakes about legislative intent, like lower court mistakes about legislative intent,
should be corrected just as completely.

8
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

fit neatly into one category-either statutory interpretation9 or constitutional

holding. 10 Because W.R. contains both, it presents a retroactivity question of first

impression." But in order to answer that question correctly, we must consider the

9
E.g., Hinton, 152 Wn.2d at 859-60 & n.2; Johnson, 131 Wn.2d at 567; Moen, 129
Wn.2d at 538-39; In re Pers. Restraint ofVandervlugt, 120 Wn.2d 427, 432, 842 P.2d 950
(1992); Moore, 116 Wn.2d at 38; State v. Darden, 99 Wn.2d 675, 678-79, 663 P.2d 1352
(1983).

10
E.g., In re Pers. Restraint of Eastmond, 173 Wn.2d 632, 639-40, 272 P.3d 188
(2012) (applying Teague analysis to rule announced in State v. Williams-Walker, 167
Wn.2d 889, 897-900, 225 P.3d 913 (2010), that constitutional jury trial right applies to the
imposition of a sentence enhancement); In re Pers. Restraint of Rhome, 172 Wn.2d 654,
666-67, 260 P.3d 874 (2011) (applying Teague analysis to petitioner's proposed due
process rule); State v. Kilgore, 167 Wn.2d 28, 35, 216 P.3d 393 (2009) (under Teague
analysis, constitutional rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004 ), applies only to cases pending on direct review or not yet
final); State v. Abrams, 163 Wn.2d 277,290-91, 178 P.3d 1021 (2008) (applying Teague
analysis to new rule based in constitutional jury trial right); In re Pers. Restraint ofMarkel,
!54 Wn.2d 262, 270-71, Ill P .3d 249 (2005) (rule announced in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), does not apply retroactively under
Teague).

11 Colbert is correct that our most relevant precedent is In re Personal Restraint of
Grasso, 151 Wn.2d 1, 84 P.3d 859 (2004) (plurality opinion). That case, like this one,
involved the retroactivity (under RCW 10.73.100(6)'s time bar) of a holding with both
statutory and constitutional aspects. !d. at 11-12 (considering retroactivity of holding in
State v. Rohrich, 132 Wn.2d 472, 476-81, 939 P.2d 697 (1997), that child hearsay statute
required child witness to actually testify since "[t]he Legislature intended the child hearsay
statute to be constitutional and 'carefully drafted [it] to avoid any confrontation clause
problems"' (quoting Judy Yun, Note, A Comprehensive Approach to Child Hearsay
Statements in Sex Abuse Cases, 83 COLUM. L. REv. 1745, 1766 (1983))). But because
Grasso is a fragmented opinion and presented a different procedural posture-in Grasso,
the petitioner's case was not final before Rohrich was decided-! agree with the majority
that it does not control the outcome here. Majority at 7-8; Grasso, 151 Wn.2d at 11-12
(lead opinion) (concluding that Rohrich had both a statutory and constitutional holding),
21-24 (Madsen, .T., concurring) (concluding that Rohrich holding was purely statutory), 25-
26 (Sanders, J., dissenting) (concluding that Rohrich was hybrid holding). I disagree with
9
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

logic underlying our precedent on retroactivity. That logic leads to only one

conclusion here: W.R. 's statutory holding should trigger our time-of-enactment rule,

and there should be no question of retroactivity. Simply put, there is no logical

reason to hold that this court's long-standing rule-that holdings on legislative intent

date back to the time of enactment-drops away when that intent is bolstered by a

constitutional mandate. Nor is there any logical reason to apply our time-of-

enactment rule when this court corrects a lower appellate court's statutory

interpretation, but not when we correct our own erroneous interpretation.

II. To THE EXTENT THAT W.R. Is BASED ON A CONSTITUTIONAL RULE,
THAT RULE Is NOT "NEW" UNDER TEAGUE

Even ifl concluded that W.R. 's statutory holding was insufficient, by itself, to

trigger our time-of-enactment rule, I would still conclude that W.R. applies

retrospectively to the statute at issue in this personal restraint petition (PRP). This

is because W.R. rests on a constitutional rule that was well established in federal case

the majority, however, that Grasso is distinguishable from this case for any other reason.
See majority at 8 (asserting that this case implicates a rule of purely constitutional
dimensions, whereas Grasso implicated statutory interpretation). The lead opinion in
Grasso specifically distinguished the statutory and constitutional components of the
Rohrich holding and concluded that the statutory components alone triggered retroactive
application under our precedent. Grasso, 151 Wn.2d at 12. While this was arguably dicta,
given the procedural posture of the case, it is the most relevant discussion our case law
contains regarding the retroactive application of a hybrid holding. And it supports
retroactivity in this case.
10
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

law (despite the fact that it was a significant change in state law) before Colbert's

conviction became final.

The majority correctly notes that a rule is not new, for purposes of Teague

retroactivity, if it was dictated by precedent existing when the defendant's conviction

became final. Majority at 10; Beard v. Banks, 542 U.S. 406, 416, 124 S. Ct. 2504,

159 L. Ed. 2d 494 (2004) (rule is not dictated by precedent, and is therefore "new"

under Teague, if"reasonablejurists" could differ on this question). But the majority

applies this principle incorrectly. It concludes that W.R. 's narrow holding-that the

State "bears the burden of proving [non]consent in a second degree rape case" in

Washington-was not dictated by precedent because WR. "expressly overruled

prior cases, which had established the contrary rule," and on this basis concludes

that WR. announced a "new" constitutional rule under Teague. Majority at 10. This

conclusion is wrong for two reasons: it ignores WR. 's broader constitutional

holding--that the State may not burden a defendant with disproving an element of

the charged crime-and it conflicts with our cases applying RCW 10.73.100(6)-

the time bar exception for PRPs based on a significant, material, and retroactively

applicable change in the law.

Under our cases applying RCW 10.73.100(6), the fact that W.R. expressly

overruled prior precedent is significant to Colbert's PRP for only one reason: it

11
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

shows that W.R. was a "significant change" in the law triggering an exception to the

time bar. !d. at 4-5. But it does not make W.R. a "new rule" under Teague. See In

re Pers. Restraint ofYung-Cheng Tsai, 183 Wn.2d 91, 103-04, 351 P.3d 138 (2015)

(explaining that a rule can be a significant change, under RCW 10.73.100(6), without

also being a new rule for purposes of Teague). The majority errs by conflating these

two different questions. When a constitutional holding is dictated by prior federal

precedent, and yet also overrules or supersedes prior Washington precedent, it is a

significant change but not a new rule. Tsai, 183 Wn.2d at 100, 106-07. The

constitutional holding in W.R. falls into this category.

W.R. relied on two United States Supreme Court decisions, "[r]ead together,"

for its constitutional holding: Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L.

Ed. 2d 267 (1987), and Smith v. United States,_ U.S._, 133 S. Ct. 714, 184 L.

Ed. 2d 570 (2013). 181 Wn.2d at 764. Martin, which established the "negates

analysis" this court applied in W.R., id. at 764-65, was decided 20 years before

Colbert's conviction became final. And while Smith was decided several years after

Colbert's conviction became final, it did not alter the relevant part of Martin's due

process holding-the negates analysis·-at all. On the contrary, Smith refers to that

analysis as a long-settled, nondebatable constitutional requirement: "The State is

foreclosed from shifting the burden of proof to the defendant only 'when an

12
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

affirmative defense ... negate[s] an element of the crime[,]' ... but [not where it]

'does not controvert any of the elements of the offense itself."' Smith, 133 S. Ct. at

719 (quoting Martin, 480 U.S. at 237 (Powell, J., dissenting); Dixon v. United States,

548 U.S. 1, 6, 126 S. Ct. 2437, 165 L. Ed. 2d 299 (2006)). In other words, the Smith

decision recites the negates analysis as a background rule, not a new rule.

W.R. recognizes this fact. It refers to Smith as "clarifying" that our prior

precedent-Gregory and Camara-was already incorrect under Martin. 181 Wn.2d

at 763 (explaining that the Camara court failed to apply the negates analysis because

it misinterpreted Martin), 768 ("Camara and Gregory ... misapprehend United

States Supreme Court precedent and misdescribe the relationship between forcible

compulsion and nonconsent ... [, and] neither case explains how two things can be

conceptual opposites without negating one another."); see also id. at 764-65

(acknowledging that, Camara's and Gregory's error aside,"[ s]ince Martin, we have

applied the negates analysis to a variety of defenses," including in the rape context).

Thus, it finds Gregory and Camara "incorrect"-the first prerequisite to overruling

a prior decision-because they misconstrued precedent from 1987 (Martin). 181

Wn.2d at 768-69.

W.R. 's constitutional holding thus rests on federal precedent that is almost 30

years old-precedent that existed shortly before this court decided Camara and long

13
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

before Colbert's conviction became final. Thus, W.R. does not announce a new rule

for purposes of Teague's analysis.

The majority offers no clear explanation for its contrary conclusion (other than

its erroneous assertion that a holding announces a new rule if it overrules a prior

case). Majority at 10. It implicitly endorses the State's argument that because three

justices dissented in W.R., W.R. announced a rule about which "reasonable jurists

could disagree." 12 But as explained above, W.R. held that the negates analysis this

court rejected in Camara was in fact dictated by United States Supreme Court

precedent from 1987 (Martin). 181 Wn.2d at 764-65. Thus, W.R. applied a

preexisting constitutional rule; it did not announce a new one. Where that occurs,

the dictated-by-precedent question is answered, and a prior dissenting opinion-no

matter how well written-does not constitute reasonable disagreement for purposes

of Teague. That is why every federal court of appeals to consider the question has

held that the companion holdings in Missouri v. Frye,_ U.S._, 132 S. Ct. 1399,

12 Majority at 10 ("[a] new rule is defined as one that 'breaks new ground or ... was
not dictated by precedent existing at the time the defendant's conviction became final' ...
[and] if 'reasonable jurists could disagree on the rule oflaw, the rule is new' ... , WR. is
such a new rule" (internal quotation marks omitted) (quoting In re Pers. Restraint of
Haghighi, 178 Wn.2d 435, 443, 309 P.3d 459 (2013))); Suppl. Br. of Resp't on Pers.
Restraint Pet. at 16 ("A 'new rule' is one that was not 'dictated by precedent existing at the
time the defendant's conviction became final' ... When reasonable jurists could disagree
on the rule of law, the rule is new .... The decision in WR. resulted in a three justice
dissent. Reasonable jurists did disagree." (quoting Evans, 154 Wn.2d at 444)).

14
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

182 L. Ed. 2d 379 (2012) and Lafler v. Cooper,_ U.S._, 132 S. Ct. 1376, 182 L.

Ed. 2d 398 (2012), were dictated by the holding in Strickland v. Washington, 466

U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and thus did not announce

any new rule under Teague, 13 even though both Lafler and Frye were split

decisions. 14

III. THE INSTRUCTIONAL ERROR DID NOT CAUSE ACTUAL AND
SUBSTANTIAL PREJUDICE; THUS, COLBERT Is NOT ENTITLED TO RELIEF
ON COLLATERAL REVIEW
As the majority recognizes, Colbert's jury received an instruction on consent

that violated due process protections. Majority at 2-3 Gury instruction burdening

Colbert with proving consent by a preponderance was error under W.R. ). Because

this instruction violated both the statute and the constitution, we apply the prejudice

standard applicable to constitutional errors: Colbert is entitled to relief in this

collateral proceeding if he can show actual and substantial prejudice. In re Pers.

13
Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (per curiam); In re
Liddell, 722 F.3d 737, 738-39 (6th Cir. 2013) (per curiam); In re Graham, 714 F.3d 1181,
1182-83 (lOth Cir. 2013) (per curiam); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012)
(per curiam); In re Perez, 682 F.3d 930, 932-33 (11th Cir. 2012) (per curiam); Hare v.
United States, 688 F.3d 878, 879 (7th Cir. 2012); Buenrostro v. United States, 697 F.3d
1137, 1140 (9th Cir. 2012).
14 Lafler, 132 S. Ct. at 1391 (Scalia, J., dissenting) (complaining that six-member
majority "opens a whole new field of constitutionalized criminal procedure: plea-
bargaining law"); Frye, 132 S. Ct. at 1414 (Scalia, J., dissenting) (criticizing five-member
majority for issuing a holding that is "inconsistent with the Sixth Amendment and decades
of our precedent").
15
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

Restraint of Cook, 114 Wn.2d 802, 810,792 P.2d 506 (1990) (citing In re Pers.

Restraint of Haverty, 101 Wn.2d 498, 504, 681 P.2d 835 (1984)). This is a

significantly higher burden than Colbert would face on direct appeal, where the State

would have to prove the error harmless beyond a reasonable doubt. W.R., 181 Wn.2d

at 770 (citing State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985)). To

demonstrate actual and substantial prejudice, Colbert must demonstrate that "'more

likely than not he was prejudiced by the error.'" In re Pers. Restraint of Brockie,

178 Wn.2d 532, 539, 309 P.3d 498 (2013) (quoting In re Pers. Restraint of Hagler,

97 Wn.2d 818, 826, 650 P.2d 1103 (1982)). Colbert does not meet that burden.

The State offered testimony by seven witnesses: the victim, K.P., and six

witnesses who corroborated her account of the rape with testimony about her

relationship with Colbert, her demeanor before and after the rape, and!or the events

surrounding the rape.

K.P. testified that she went to Colbert's apartment on March 18, 2004, to

borrow cigarettes, Verbatim Report of Proceedings (VRP) (Feb. 1, 2005) at 48; that

he put his fingers through her belt loops and backed her up against his kitchen sink,

id. at 69; and that he unbuttoned/unzipped her jeans while she was telling him no,

id. at 50, 70-71. She testified that he maneuvered her into a position where she was

trapped between a kitchen counter and Colbert's refrigerator, and then, standing

16
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

behind her, pushed her pants down. ld. at 73-76. She said that while she was

bending down to try to pull up her pants, Colbert held her torso down with his arm

and forced his penis into her vagina. I d. at 77-78. She testified that he stopped after

about a minute and that she then ran to the apartment of her friend Breearma Loomis

and, at some point shortly thereafter, called her recent ex-boyfriend (Justin Olson)

and then the police. !d. at 79-81; VRP (Feb. 2, 2005) at 140. She testified that she

had not seen Colbert socially since the rape, but did see him approaching her house

a few days afterward and immediately called the police again. VRP (Feb. 1, 2005)

at 82. After the rape occurred, K.P. obtained an antiharassment order against

Colbert. VRP (Feb. 2, 2005) at 152-53.

K.P. also testified that Colbert had made unwanted sexual advances toward

her about two weeks before the rape: while the two were alone together in her

bedroom watching a movie, he "[s]howed [her] his penis and told [her] he just

needed one night." VRP (Feb. 1, 2005) at 42. She said that on that occasion she

asked him to leave and he did. !d. at 43.

On cross-examination, K.P. testified that she did not "struggle" or scream

when Colbert raped her because she had learned in a "[r]ape assistance" course that

that could make a situation more dangerous. VRP (Feb. 2, 2005) at 131-33. She

also admitted that she had a 2001 Uuvenile) conviction for felony theft. !d. at 144.

17
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

Loomis testified that K.P. came to her apartment on March 18, 2004,

appearing to be in shock, and "dropped to the floor and started crying hysterically."

Id. at 212. Loomis testified that K.P. told her that Colbert had raped K.P., but was

too hysterical to report other details. Id. at 213-14. Loomis said that she and K.P.

then went to K.P. 's house, where K.P. called the police, and that Loomis then

accompanied K.P. to the hospital. I d. at 214-15. Loomis described K.P.' s demeanor

at the hospital as "[b]lah, just nothing," and said she had never seen K.P. act that

way before. /d. at 216. She testified that when the two returned to K.P.'s house

after the hospital examination, they talked for about an hour and K.P. cried most of

that time. Jd. at 217. She also said that K.P.'s demeanor since that time had been

angrier, more hostile toward men, and quieter than before. Id. Finally, Loomis

testified that she and K.P. were close friends before all of this took place, but were

no longer friendly; that the two had not discussed the rape or the trial since March

18, 2004; and that Colbert had denied raping K.P. when Loomis asked him about it.

Id. at217-19.

Dr. Kirk Brownell testified that he examined K.P. on the evening of March

18, 2004. VRP (Feb. 3, 2005) at 33-34. He said that K.P. told him she had been

raped; the account that he said K.P. gave him was consistent with K.P.'s testimony

at trial. /d. at 38-40. He testified that based on K.P.'s description of the rape, he did

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In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

not expect to find any physical injuries, that he did not find any, and that this was

the case in about half of the sexual assault evaluations he performed. 1d. at 41-43.

Dr. Brownell explained that "[i]t's well known that ... often a woman out of fear or

many other factors may not resist in such a way that would make injury likely" and

that "[vaginal] tissue is pliable elastic, stretchy and can absorb a fair amount of

trauma." !d. at 44.

Officer Brent Thompson of the Mount Vernon Police Department testified

that at about 6:00p.m. on March 18, 2004, K.P. told him she had been sexually

assaulted and that he took her to the hospital shortly thereafter. I d. at 66-68. He said

that he took her full written statement at the hospital. Id. at 68. He described her

demeanor as "withdrawn" at all times. Id. at 69.

Officer Joel McCloud, also with the Mount Vernon Police Department,

testified that he was assigned on March 18, 2004, to investigate K.P.'s rape

complaint. Id. at 77. For the investigation, Officer McCloud searched Colbert's

apartment and interviewed K.P ., Loomis, another woman, and Colbert. I d. at 79-81.

Officer McCloud testified that although he spoke to K.P. more than once, she never

told him about the incident in which Colbert exposed his penis to her. Id. at 88. He

testified that he recorded an interview with Colbert, at which Colbert waived his

right to an attorney. Id. at 89-91.

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In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

Olson testified that he was currently dating K.P. but did not think that the two

were dating on March 18, 2004. Id. at 130. He testified that he had discussed the

rape with K.P. only "[o]nce or twice, maybe" and explained that "[s]he doesn't care

to discuss it." Id. at 141. He corroborated K.P.'s account ofthe incident in which

Colbert exposed his penis to her, saying that she told him about it immediately after

it occurred. Id. at 145. He testified that the incident made him angry but that he

didn't confront Colbert about it because he wanted to "be there for [K.P.'s] children

... [and] couldn't be an appropriate father figure ... in a jail cell." Id. at 145-46.

Olson also testified, however, that he forgot to mention the penis-exposure incident

when he was initially interviewed by detectives for the rape investigation. I d. at 146.

He said that K.P. left him a voice message on March 18, 2004, saying that there was

an emergency and that when he saw her later that day, she was hysterical. I d. at 147.

He said that since that day, K.P. had been less socially outgoing, had dressed more

conservatively, and did not "discuss anything related to the incident." I d. at 150-51.

Defense counsel asked Olson whether, on the day of the alleged rape, K.P.

had told him that "she wanted to call [Olson] first and sort it out and get the story

straight before calling [the police]." I d. at 147. Olson emphatically denied that K.P.

had ever made such a statement, but explained that when he first spoke to K.P. on

March 18, 2004, she was so hysterical that he "told her that she needed to calm down

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In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

and relax so that she would be able to communicate in a proper manner if she decided

to call the police." Id. at 147-48.

Finally, K.P. 'smother testified that in March 2004, K.P. and her two children

occupied the master bedroom of the house where K.P. 's mother also lived. VRP

(Feb. 7, 2005 (p.m.)) at 92. She stated that this room had a sliding glass door leading

to the outside and another door leading to a hallway inside the house. Id. She

testified that the door to the hallway had no "metal plates that would match up the

doorknob closer" and therefore had never "been able to latch so it would close" as

long as her family had lived there. Id. at 93-94. The State offered photographs of

the door, illustrating its lack of any latching mechanism. This contradicted Colbert's

testimony (discussed below) that the door locked and clicked.

The defense presented testimony by two witnesses: Colbert and Brandi

Bowers, an investigator for the Skagit County Public Defender's Office.

Bowers testified that she interviewed Loomis in December 19, 2004. VRP

(Feb. 4, 2005) at 5-6. She described Loomis as "seem[ing] protective of[K.P.]" and

reluctant to speak with Bowers during this interview. I d. at 8. She also said that she

called Loomis on February I, 2005, to clarify some things; that someone other than

Loomis answered the phone; and that Bowers believed this other person was K.P.

Jd. at 9-10. She also testified, however, that this other person might have sounded

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In re Pers. Restraint of Colbert (Bobby DarrelV, No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

like Loomis' sister. I d. at 11-12, 30-31. Bowers testified that she was present when

defense counsel interviewed Olson, and that Olson told defense counsel that K.P.

called him before she called the police so that they could "sort it out get the stories

straight ... because she said they wouldn't believe her." Id. at 21. On cross-

examination, Bowers admitted that she did not videotape or audiotape her interview

with Loomis, and that she did not actually write down anything in her notes about

Loomis seeming reluctant or protective. Id. at 25-26.

Colbert testified that he was having a secret affair with K.P. while she was

dating Olson and that on at least two occasions after Olson left for work, Colbert

"sneak[ed] over" to K.P. 's bedroom for sexual contact short of intercourse. I d. at

112-13. Colbert also testified that the first sexual contact he had with K.P. occurred

while Olson, K.P., Colbert, and others were all socializing at K.P. 's house and Olson

was out getting food for everyone. VRP (Feb. 7, 2005 (a.m.)) at 69-70.

Colbert described this sexual encounter in various different ways. First, he

testified that he asked K.P. to perform oral sex on him in her bedroom and that she

willingly did so. VRP (Feb. 4, 2005) at 111. Later, he testified that K.P. was both

"lying on the bed" and "sitting in a suggestive way," prompting Colbert to ask her

"what's up?" VRP (Feb. 7, 2005 (a.m.)) at 76. He said that K.P. responded by

getting up to lock the bedroom door, pushing him back down on the bed, and

22
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

unbuttoning his pants. !d. at 77. On direct examination, Colbert testified that he and

K.P. were alone when this occurred. VRP (Feb. 4, 2005) at 111. On cross-

examination, he said that after he asked K.P. to perform oral sex on him, "[s]he took

her oldest child to the door, gave her to one of her sisters or something; then she

closed the door and clicked it." VRP (Feb. 7, 2005 (a.m.)) at 70-71. Colbert gave a

detailed description of the door's locking sound. He testified that K.P. "[s]hut and

locked" the bedroom door, VRP (Feb. 4, 2005) at 111, and that he "heard a click ..

. [l]ike a bolt lock turning," VRP (Feb. 7, 2005 (a.m.)) at 71.

When asked why he left K.P.'s house immediately after this incident, Colbert

explained that he felt bad and couldn't face Olson, who would soon be returning

with the food. Id. at 80. But he also testified that he (Colbert) quickly "got over it"

and didn't avoid Olson in the days afterwards. Id. at 80. Colbert explained that K.P.

had been unfaithful to Olson with many men and that if Olson wanted to be with

"that kind of girl," it was his choice. Id. at 85.

Regarding the rape charge itself, Colbert testified that he and K.P. had vaginal

intercourse for the first time on March 18, 2004, in his kitchen, after K.P. let herself

into his apartment, smoked a cigarette with him, and then initiated sexual contact.

VRP (Feb. 4, 2005) at 114-17. Colbert testified that they had sex in the kitchen in

front of an uncovered window. I d. at 118. He said that the sex did not last long and

23
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

was not complete because the position hurt his back. I d. at 121-22. Colbert testified

that he told "[a]lmost everybody I come in contact with," including Olson, about this

sexual encounter. Id. at 126. He said that this made Olson "hot as a fire cracker."

Id. Later he explained that he told Olson about the sex only after K.P. told Olson,

when Olson came to Colbert's apartment on the evening of March 18, 2004, kicked

his door open, and demanded that Colbert "defend [him]self." VRP (Feb. 7, 2005

(p.m.)) at 71. Colbert testified, "I told him his girlfriend was a ho and that she had

been performing oral sex on me even before he knew it. I apologized to him for that.

I told him if he wants to fight over a girl that's loose like that we could do it." I d.

When asked how Olson reacted to those statements, Colbert said, "Well it broke his

heart." I d.

Colbert theorized that K.P. and Loomis "cooked up" the conspiracy against

him because they both wanted to sleep with him and, when K.P. "got [him] first,"

Loomis was angry. Id. at 47-48. He also suggested thatK.P. made up the rape either

because she was mad at him for selling his car, leaving Olson with no vehicle to

borrow to get to work, or because K.P. needed to explain to Olson why she had had

sex with Colbert and it was easy to accuse a black man of rape. I d. at 70. (On cross-

examination, Colbert acknowledged that K.P. was not a white woman accusing a

black man of rape, since K.P. is black. I d. at 80.) Finally, he said he couldn't explain

24
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

why K.P. would make up the rape but that "she might have ... been super high one

day." Id. at 79.

On cross-examination, Colbert testified that when he was served with the

antiharassment petition, he threw it in the garbage; he claimed he did not understand

that the notice advised him of his right to contest the petition at a hearing. VRP

(Feb. 4, 2005) at 130-31.

The jury heard two completely different versions of what happened in this

case and had the chance to evaluate the credibility of the defendant, the accuser, and

the other witnesses. According to the State's theory, Colbert raped K.P. when she

went to his apartment looking for cigarettes. According to the defense theory,

Colbert and K.P. had been having a secret sexual affair for a few weeks when K.P.

suddenly decided to tell her boyfriend about the affair and then successfully enlisted

her boyfriend and another friend in a conspiracy to frame Colbert for rape. The

State's theory was supported by the overwhelmingly consistent testimony of six

separate witnesses. None of these witnesses was successfully impeached on cross-

examination. The defense theory, on the other hand, was supported by two

witnesses. One of these witnesses, investigator Bowers, provided testimony that was

largely speculative. The other, Colbert, offered a version of events that was

permeated with internal inconsistencies and, with respect to K.P.'s bedroom door,

25
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

directly contradicted by physical evidence. In light of this testimony, I cannot

conclude that Colbert was actually and substantially prejudiced by the erroneous

instruction on consent.

I recognize that consent was the sole contested issue in this case, since the

physical act of sexual intercourse was not disputed. In a direct appeal, where the

State would have to prove harmlessness beyond a reasonable doubt, a burden-

shifting error on this central issue might well result in reversal. But in this collateral

attack, Colbert bears the burden of proving that the error more likely than not

affected the outcome. Brockie, 178 Wn.2d at 539. He has not met that burden.

CONCLUSION

Under our precedent, the holding in WR. is not a new rule of constitutional

law triggering a presumption of nonretroactivity. Instead, it is based in significant

part on statutory interpretation. I therefore respectfully dissent from the decision

that WR. does not apply retrospectively to this PRP. I concur in the majority's result,

however, because I conclude that Colbert has now shown that he was actually and

substantially prejudiced by the instructional error in this case.

26
In re Pers. Restraint of Colbert (Bobby Darrell), No. 92421-0
(Gordon McCloud, J., dissenting in part and concurring in part)

tCUA~.q.

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