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This opinion was filed for record
FTTE
IN CLERKt OFFICE at B/CO QilU onl4^ >
•UPRBE(XHjm;am OFwuHMeroN
OATS'KOV 3 0 201?
nAA lAUAk^, SUSAN L CARLSON
GmsFjusncE SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 93605-6
Respondent,
V.
EN BANC
MARCO BAILON WENCES,
Filed V 3 0 21
Petitioner.
STEPHENS, J.—^In State v. Williams-Walker, 167 Wn.2d 889, 899-900, 225
P.3d 913 (2010), this court held that article I, sections 21 and 22 of the Washington
State Constitution prohibit a sentencing court from imposing a firearm enhancement
based on a deadly weapon special verdict finding. We subsequently recognized that
Williams-Walker announced a new rule ofcriminal procedure, applicable to all cases
pending at the time it was decided. In re Pers. Restraint ofEastmond, 173 Wn.2d
632, 634, 272 P.3d 188 (2012). Our holding in Eastmond adhered to the long
standing principle that "[a] new rule for the conduct of criminal prosecutions is to
be applied... to all cases, state or federal, pending on direct review or not yet final.
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State V. Wences(Marco Bailon), 93605-6
In rePers. Restraint ofSt. Pierre, 118 Wn.2d 321, 326, 823 P.2d492(1992)(citing
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)).
The question in this case is whether the rule in Williams-Walker applies to
appellate review of Marco Wences's 2015 sentence. The obvious answer to this
question—^yes—is obscured by the fact that Wences's sentence was imposed for a
conviction dating back to 2005. Concluding that Wences "should not benefit from
changes in the law that apply to him solely because he absconded and delayed his
sentencing," the Court of Appeals affirmed the superior court's decision to impose
a firearm enhancement based on prQ-Williams-Walker law. State v. Wences, No.
73333-8-1, slip op. at 7 (Wash. Ct. App. July 25, 2016) (unpublished),
https://www.courts.wa.gov/opinions/pdf/733338.pdf. We hold that this result is
impermissible under settled law. We reverse the Court of Appeals and remand to
the superior court for resentencing consistent with Williams-Walker.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Following a search of Wences's car in 2003, the State charged him with
possession ofa controlled substance(methamphetamine) with intent to manufacture
or deliver. The State also alleged that Wences was armed with a firearm during the
commission ofthe crime. A jury convicted Wences of all charges in 2005. The trial
court instructed the jury that a firearm is a deadly weapon, and the jury answered
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State V. Wences(Marco Bailon), 93605-6
yes to a special verdict form that asked whether Wences was "armed with a deadly
weapon at the time ofthe commission ofthe crime." Clerk's Papers(CP)at 30.
Wences did not appear for a scheduled sentencing hearing in 2005. Starting
around that time, our law on firearm and deadly weapon enhancements was
evolving. See State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005)(Recuenco
I), rev'd and remanded on other grounds, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed.
2d 466 (2006) {Recuenco II), on remand, 163 Wn.2d 428, 180 P.3d 1276 (2008)
{Recuenco III); Williams-Walker, 167 Wn.2d 889. Our cases considered the import
of two earlier United States Supreme Court decisions interpreting the Sixth
. Amendment right to a jury trial under the United States Constitution. U.S. Const,
amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury."). In those decisions, the Supreme
Court held "Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The '"statutory maximum'"
in this context is "the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.'''' Blakely v.
Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
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State V. Wences (Marco Bailon), 93605-6
Building on these Supreme Court decisions, this court recognized that "[i]n
Washington there are two types of deadly weapon sentence enhancements: firearm
sentence enhancements and deadly-weapon-other-than-a-firearm sentence
enhancements." Eastmond, 173 Wn.2d at 635; see also RCW 9.94A.533(3),(4). In
two cases, we specifically addressed whether a sentencing court can constitutionally
impose a firearm enhancement where the jury's special verdict finding authorizes
only a deadly weapon enhancement. Reciienco I, 154 Wn.2d at 158-59; Williams-
Walker, 167 Wn.2d at 892.
In Recuenco I, this court held that "[wjithout an explicit firearm finding by
the jury, [a] court's imposition of a firearm sentence enhancement violate[s] [a
defendant's constitutional right to a]jury trial." 154 Wn.2d at 162; WASH. Const.
art. I, § 21 ("The right oftrial byjury shall remain inviolate."); Wash.Const, art. I,
§ 22("In criminal prosecutions the accused shall have the right... to have a speedy
public trial by an impartial jury."). Next, in Williams-Walker, this court held that
"[a] sentence enhancement must not only be alleged, it also must be authorized by
the jury in the form of a special verdict.'''' 167 Wn.2d at 900 (emphasis added).
"Disregard of... the special verdicts violates [a] defendant['s] right[] to a jury trial
under article I, sections 21 and 22 [of the Washington Constitution]." Id. at 899-
900. In sum, by 2010 it was clear under Washington law that, "[wjhen the jury is
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State V. Wences(Marco Bailon), 93605-6
instructed on a specific enhancement and makes its finding, the sentencing judge is
bound by the jury's finding." Id. at 899.
In 2015, Wences appeared pursuant to a warrant for his arrest and the court
set a sentencing hearing on his 2005 conviction. Per the State's recommendation,
the court sentenced Wences to 100 months of confinement, including a 64-month
standard range base sentence and a 36-month firearm enhancement. The State noted
that its recommendation was "a lengthier recommendation than would have been
made had [Wences] not failed to appear [at his sentencing hearing in 2005].
Verbatim Tr. ofProceedings on Appeal(VTP)(Mar. 23, 2015) at 3.
Wences appealed his sentence, arguing that because the jury verdict
authorized only a deadly weapon enhancement, the sentencing court violated his
constitutional right to ajury trial when it imposed the lengthier firearm enhancement.
Br. of Appellant at 21-22 (relying on Williams-Walker, 167 Wn.2d at 897). The
State countered that thejury instructions, read together with the special verdict form,
authorized the firearm enhancement. See Br. of Resp't at 14-17. Division One of
the Court of Appeals upheld Wences's sentence on grounds raised sua sponte.
Wences, slip op. at 6-8. That court stated:
While Wences' judgment and sentence was not final until 2015, it would
have been final prior to both Recuenco and Williams-Walker but for Wences'
flight and the consequent 11-year delay of his sentencing. A defendant
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State V. Wences(Marco Bailon), 93605-6
should not benefit from changes in the law that apply to him solely because
he absconded and delayed his sentencing.
Id. at 7.1
Wences filed a petition for review in this eourt, which we granted. State v.
Wences, 187 Wn.2d 1016, 388 P.3d 761 (2017). He challenges only the lawfulness
of his enhanced sentence. Pet. for Review at 14.
ANALYSIS
We must decide whether the rule in Williams-Walker applies to appellate
review of Wences's sentence. But for the fact that Wences was convicted in 2005,
this would be a straightforward case because the judgment and sentence under
review were entered in 2015, five years after the decision in Williams-Walker} See,
1 The Court of Appeals did not call for additional briefing from the parties on the
question of whether Wences's flight precluded him from benefiting from Williams-Walker.
^ The Court of Appeals acknowledged that Wences's "judgment and sentence was
not fmal until 2015." Wences, slip op. at 7. It looked to the law in 2005 on the premise
that Wences's case "would have been final prior to both Recuenco and Williams-Walker
but for [his] flight and the consequent 11-year delay of his sentencing." Id. While this
result was a possibility, it was by no means certain. The relevant law was evolving quickly
at the time of Wences's original sentencing hearing in 2005. Wences's case could have
been stayed pending Recuenco I, which this court decided only six days after Wences's
anticipated sentencing date. See, e.g.. State v. Bainard, 148 Wn. App. 93, 100-01, 111,
199 P.3d 460 (2009) (appeals court stayed case pending Recuenco I and subsequently
applied Recuenco III on appeal); see also Mot. for New Trial Sentencing (Apr. 8, 2005) at
2(Wences's counsel moved to continue sentencing for two weeks). Even had Wences's
case not been stayed, he may have brought a successful ineffective assistance of counsel
claim on that basis. See, e.g.. In re Pers. Restraint ofNetherton, 111 Wn.2d 798, 801-03,
306 P.3d 918 (2013) (finding prejudice supported vacating the defendant's fneaim
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State V. Wences(Marco Bailon), 93605-6
e.g., State v. Taylor, 150 Wn.2d 599, 601, 80 P.3d 605 (2003) ("In a criminal
proceeding, a final judgment 'ends the litigation, leaving nothing for the court to do
but execute the judgment.'"(intemal quotation marks omitted)(quoting In re Det.
ofPetersen, 138 Wn.2d 70, 88, 980 P.2d 1204(1999))); see also State v. Siglea, 196
Wash. 283, 286, 82 P.2d 583 (1938)("In a criminal case, it is the sentence that
constitutes the judgment against the accused, and, hence, there can be no judgment
against him until sentence is pronounced."). Given that "the rule announced in
Williams-Walker is a new rule" ofcriminal procedure,Eastmond, 173 Wn.2d at 634,
settled precedent required the Court of Appeals to consider Wences's challenge to
his sentence in light of Williams-Walker.
As noted, "[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." St. Pierre, 118 Wn.2d at 326 (citing Griffith, 479 U.S. at 328).^ Simply
stated, "[A]ll new rules .. . must be applied to all cases subject to direct review at
the time the rule is announced." Id. at 325-26; see id. at 324-26 (describing the
enhancement because had counsel moved to stay pending Recuenco III, the court likely
would have decided the case in light ofRecuenco 111 to the defendant's benefit).
^ Although St. Pierre, Griffith, and Eastmond concemed retroactive application of
a new mle, they also set "out current prospective application analysis in Washington."
State V. Hanson, 151 Wn.2d 783, 789, 91 P.3d 888 (2004). "As stated in St. Pierre, the
mle based on those cases is that a new mle prospectively applies to cases not yet finalized."
Id. at 790.
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State V. Wences(Marco Bailon), 93605-6
evolution of the Supreme Court's retroactivity analysis, which this court has
"attempted from the outset to stay in step with"). "The critical issue in applying the
current retroactivity analysis is whether the case was final when the new rule was
announced." Id. at 327. "'[FJinaT for the purposes of retroactivity analysis . . .
'mean[s]a case in which ajudgment ofconviction has been rendered,the availability
ofappeal exhausted, and the time for a petition for certiorari elapsed or a petition for
certiorari finally denied.'" Id.(quoting Griffith, 479 U.S. at 321 n.6).
Applying new law that arises during the pendency ofa direct appeal, appellate
courts regularly reverse sentences that would have been valid under former law and
remand for resentencing. See, e.g., State v. Hanson, 151 Wn.2d 783, 791, 91 P.3d
888 (2004) (vacating the defendant's sentence and remanding for further
proceedings because the defendant's case was not final when the new rule was
announced); see also State v. McNeal, 142 Wn. App. 777, 786-87, 787 n.l3, 175
P.3d 1139(2008)(holding Blakely applies on remand when the defendant's sentence
is vacated on appeal and resentencing on remand constitutes a new sentencing
proceeding). Butsee State v. Rowland, 174 Wn.2d 150,155-56,272 P.3d 242(2012)
(holding Blakely does not apply on remand when the trial court does not disturb
factual findings or increase the defendant's sentence).
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State V. Wences(Marco Bailon), 93605-6
Our precedent makes clear that we "prefer the bright line established by St.
Pierre.'" Hanson, 151 Wn.2d at 791. While we may sjnnpathize with the desire of
the lower court and the dissent to find an exception for Wences's particular situation,
given his decision to abscond, creating an exception for this unusual case comes at
too high a cost to established principles of finality and standards for applying new
rules of criminal procedure to cases on direct appeal."^ Because we have previously
recognized that the "State may pursue [separate,] additional charges for the act of
fleeing," we reject introducing a punishment paradigm into our analysis. State v.
French, 157 Wn.2d 593, 602, 141 P.3d 54 (2006); see also Ortega-Rodriguez v.
United States, 507 U.S. 234, 247, 113 S. Ct. 1199, 122 L. Ed. 2d 581 (1993)("flight
is a separate offense punishable" by the trial court). At any rate, the State
acknowledges that it has accounted for Wences's flight insofar as the State's
sentencing recommendation was"a lengthier recommendation than would have been
The dissent's analogy to cases that dismissed appeals as abandoned misses the
mark. See dissent at 2-3. The parties agree that Wences did not knowingly waive or
abandon his appeal. More importantly, there is no justification for a court to impose an
unlawful, indeed unconstitutional, sentence. See Williams-Walker, 167 Wn.2d at 899-900
(noting constitutional requirement that sentence enhancements follow jury's special
verdict). The imposition of a sentence that conforms to the law can hardly be characterized
as an unwarranted "benefit" to a defendant. Despite the dissent's protestations to the
contrary, what it seeks is simply punishment for Wences's act of absconding.
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State V. Wences(Marco Bailon), 93605-6
made had [Wences] not failed to appear [at his sentencing hearing in 2005]." VTP
(Mar. 23, 2015) at 3.
Applying the rule of Williams-Walker to the facts of this case, we hold that
the jury's special verdict finding authorized only a deadly weapon enhancement, not
a firearm enhancement. See 167 Wn.2d at 899-900; see also CP at 30 Qhiry finding
that Wences was armed with a "deadly weapon"). Former RCW 9.94A.510(4)(b)
(2001), recodified as RCW 9.94A.533(4)(b), authorized a one-year deadly weapon
sentence enhancement if the defendant was armed with a deadly weapon during the
commission of a class B felony or a crime with a statutory maximum sentence of 10
years.^ This stands in contrast to former RCW 9.94A.510(3)(b)(2001), recodified
as RCW 9.94A.533(3)(b), which authorized a three-year firearm sentence
enhancement if the defendant was armed with a firearm during the commission of
^ In evaluating Wences's sentence, we consider the enhancement statutes in effect
in 2003 when he committed the underlying offense. CP at 86. This is in accordance with
the statutory "savings clause," which provides.
Whenever any criminal or penal statute shall be amended or repealed, all
offenses committed or penalties or forfeitures incurred while it was in force
shall be punished or enforced as if it were in force, notwithstanding such
amendment or repeal, unless a contrary intention is expressly declared in the
amendatory or repealing act.
RCW 10.01.040.
Subject to constitutional constraints, this provision "generally requires that crimes
be prosecuted under the law in effect at the time they were committed." State v. Pillatos,
159 Wn.2d 459, 472, 150 P.3d 1130 (2007);.yee also State v. Ross, 152 Wn.2d 220, 227,
241,95 P.3d 1225(2004)(affirming the sentencing court's application of a statute that was
in effect when the defendant committed the offense).
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State V. Wences(Marco Bailon), 93605-6
such a crime. Possession of methamphetamine with intent to deliver or manufacture
carried a statutory maximum of 10 years at the time Wences committed that crime.
Former RCW 69.50.401(a)(l)(ii) (1998). Consistent with Williams-Walker, the
sentencing court was thus authorized to impose only a one-year deadly weapon
sentence enhancement, rather than a three-year firearm sentence enhancement.
CONCLUSION
A new rule ofcriminal procedure applies to all cases pending on direct review
at the time the rule is announced. This workable, bright line standard contains no
exception for absconding defendants. Applying the standard here requires
evaluating Wences's challenge to his sentence in light of Williams-Walker, a new
rule announced before his 2015 judgment and sentence. Under Williams-Walker,
the jury's special verdict finding authorized only a deadly weapon enhancement, not
the firearm enhancement imposed. We accordingly reverse the Court of Appeals
and remand to the superior court for resentencing consistent with Williams-Walker.
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State V. Wences(Marco Bailon), 93605-6
WE CONCUR:
I\aAAj^ .
'yVjacUMi ut
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State V. Wences
No.93605-6
OWENS,J.(dissenting) — A jury convicted Marco Wences of possession of
methamphetamine with intent to manufacture or deliver and possession of a deadly
weapon. Rather than return to court for his sentencing hearing, Wences fled for
nearly a decade. During the intervening years in which Wences evaded his
sentencing, this court established a new criminal procedure rule for firearm and
deadly weapon enhancements. State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d
913 (2010). The majority's decision to apply this rule to Wences' case, over nine
years after he should have been sentenced, allows him to benefit from his flight. The
majority ignores over 100 years of precedent treating absconding defendants
differently from other criminal defendants. Because this decision departs from this
important precedent and fashions a new rule essentially rewarding defendants who
flee after conviction, I respectfully dissent.
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State V. Wences, No. 93605-6
Owens, J., Dissenting
The majority applies the general rule of finality in spite ofthis case's unique
circumstances. The doctrine of finality provides that new rules for criminal
prosecutions should be applied to all state and federal cases "pending on direct review
or not yet final." In re Pers. Restraint ofSt. Pierre, 118 Wn.2d 321, 326, 823 P.2d
492(1992). However, this court has the authority and worthy cause to create an
exception for defendants who abscond after conviction to avoid sentencing. If a case
is not yet final solely because the defendant has fled and thus delayed court
proceedings, it should not be regarded as "pending" in the normal sense. As opposed
to regular minor court delays, such a case is put on hold because ofthe defendant's
contempt ofthe legal system. The United States Supreme Court, when reviewing a
case of a defendant who fled after appealing, aptly explained that"no court is bound
to submit" to "contempt of its authority." Allen v. State ofGeorgia, 166 U.S. 138,
141, 17 S. Ct. 525,41 L. Ed. 949(1897). It is not in the interest of Washington courts
to apply the general rule offinality to cases intentionally put on hold by absconding
defendants. Instead, defendants who flee should be sentenced under the law at the
time ofthe scheduled sentencing hearing rather than the law at whatever time they
return to the court's jurisdiction.
Since 1902, this court has recognized that absconding defendants warrant
exceptional treatment in the course of criminal adjudication. See State v. Handy,27
Wash. 469, 470-71,67 P. 1094(1902)(appeal dismissed because defendant fled the
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State V. Wences,tio. 93605-6
Owens, J., Dissenting
jurisdiction); State v. Mosely, 84 Wn.2d 608,610, 528 P.2d 986(1974)(appeal
dismissed because defendant absconded prior to appellate oral argument); State v.
Johnson, 105 Wn.2d 92, 97-98, 711 P.2d 1017(1986)(appeal dismissed because
defendant failed to appear at probation revocation hearing). The majority ignores this
court's long-standing aversion to applying customary rules to absconding defendants.
The majority insists that St. Pierre created a bright line standard for new rules of
criminal procedure containing no exception for absconding defendants. Yet, this is
the first case in this court that has demanded the exception. Based on a century of
cases consistently creating procedural exceptions for absconding defendants, there is
strong precedent to impose an exception in this case.
In addition to supporting precedent, there are two important policy grounds for
creating an exception for absconding defendants. First, defendants should not benefit
from absconding and evading sentencing. By sentencing Wences under the law at the
time of his 2005 conviction, the trial court appropriately refused to afford him the
benefit of legal developments established years after his scheduled sentencing. The
majority labels this a punishment paradigm. This characterization is incorrect. It
cannot be considered a punishment to follow the legal standards in place at the time
Wences should have been sentenced had he abided by the court-ordered timeline.
Rather, it is a refusal to confer a benefit for absconding. By failing to create an
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State V. Wences, No. 93605-6
Owens, J., Dissenting
exception and allowing Wences to be sentenced under the law at the time ofthe 2015
sentencing hearing, the majority essentially rewards him for evading justice.
Second, the State is unfairly prejudiced by the majority's holding. The special
verdict rule pronounced in Williams-Walker came in 2010,five years after Wences'
trial. The State should not be expected to predict the development of criminal
procedural law years down the road in order to properly secure a conviction and
appropriate sentence. Here,the new rule of criminal procedure reduces the weapon
enhancement from three years to one. However, the consequences of a different rule
could be much more drastic, for example, overturning a conviction completely. The
majority's decision to apply legal rules developed years after Wences' conviction
establishes an impossible standard for the State.
The majority's decision forces the trial court to submit to Wences' contempt of
its authority by rewarding him for absconding and imposes substantial uncertainty and
costs on the State. I respectfully dissent.
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State V. Wences, No. 93605-6
Owens, J., Dissenting
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
No. 93605-6
YU,J.(concurring in dissent)—I concur in the concerns raised by the
dissent. I would also affirm the Court of Appeals decision to uphold petitioner
Marco Bailon Wences' sentence because the new rule of criminal procedure
announced in State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010), does
not apply to this case. The majority, however, believes that binding precedent
requires it to reach the opposite conclusion. I write separately to further explain
why that belief is unfounded and to support the dissent's justified indignation at the
majority's resolution of this case. I therefore respectfully concur in the dissent.
I agree with the majority that this case does not require us to reconsider the
rules for prospective and retrospective application of new rules of criminal
procedure that this court adopted in In re Personal Restraint ofSt. Pierre, 118
Wn.2d 321, 823 P.2d 492(1992), which we have applied in numerous cases over
the years. Majority at 7(quoting St. Pierre, 118 Wn. 2d at 326 (citing Griffith v.
Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987))); e.g.. In re
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State V. Wences,'Ho. 93605-6
(Yu, J., concurring in dissent)
Pers. Restraint ofGentry, 179 Wn.2d 614, 627, 316 P.3d 1020 (2014); In rePers.
Restraint ofHaghighi, 178 Wn.2d 435, 441, 309 P.3d 459(2013);In re Pers.
Restraint ofEastmond, 173 Wn.2d 632, 640, 272 P.3d 188 (2012); In re Pers.
Restraint ofMarket, 154 Wn.2d 262, 268-69, 111 P.3d 249(2005).
However,this case does require us to apply those established rules to a novel
situation presented by unusual facts. Thus, the question of whether Williams-
Walker applies to Wences' sentence is a matter of first impression whose outcome,
by definition, cannot be controlled by binding precedent. Instead, we must look to
precedent that is not directly on point, but nevertheless relevant.
I agree with the majority that the St. Pierre line of cases is relevant here.
See majority at 7-8. I further agree that Wences' appeal was not "final" in any
sense of that word when Williams-Walker was decided. Id. at 6. In fact, his appeal
was not even ripe yet because Wences absconded after his conviction, delaying his
sentencing for over a decade. Id. at 2.
However, we are applying precedent, not interpreting statutes. That is an
important difference for which the majority does not account. We always strive to
interpret statutes in a manner that is consistent with legislative intent. Columbia
Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 432, 395 P.3d 1031
(2017). We assume that the legislature intends for courts to apply the plain
meaning of its statutes whenever possible, so long as doing so does not produce
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
absurd results. Id. at 443. When we are mistaken in our assumptions or
interpretations, the legislature may revise its statutory language in response to our
opinion. Cornelius v. Dep't ofEcology, 182 Wn.2d 574, 589-90, 344 P.3d 199
(2015). Indeed, if there were a statute that provided for the "mandatory application
of new rules of criminal procedure to all defendants whose appeals are not yet
final," without any further elaboration, I might be compelled reach the same result
as the majority in this case. However, there is no such statute. Instead, we are
applying the opinions of this court.
"By necessity,judicial opinions focus on the case, facts, and parties at hand,
and any opinion reflects that focus." Washburn v. City ofFederal Way, 178 Wn.2d
732, 751-52, 310 P.3d 1275 (2013). Therefore, when we apply relevant precedent
to novel and distinguishable facts, we must take note ofthe specific issues that
were considered and decided in that precedent. Only then should we decide
whether and how our precedent helps in resolving the question presented.
The question presented here was most certainly not before the court in any
of our prior cases. It is therefore no solution to say, as the majority does, that
because St. Pierre refers to defendants whose appeals are not yet final, any
defendant whose appeal is not yet final for any reason must be given the benefit of
intervening new rules of criminal procedure. Majority at 7(quoting St. Pierre, 118
Wn.2d at 326). Instead, because no case based on St. Pierre has decided the
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
question presented here, we should consider the reasoning and purposes underlying
St. Pierre and related cases, and resolve this case in a way that reflects those
considerations.
As St. Pierre itself states, application of new rules of criminal procedure,
even in cases that are not yet final on direct appeal, is not an independent
constitutional right. 118 Wn.2d at 325 (citing Linkletter v. Walker, 381 U.S. 618,
629, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), abrogated in part on other grounds
by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334(1989)). The
rules regarding prospective and retroactive application of new rules to pending
cases have been adopted and developed by the courts, not for the mere sake of
having such rules, but to support the constitutional right to equal protection ofthe
law. See, e.g., Griffith, 479 U.S. at 327-28; United States v. Johnson, 457 U.S.
537, 555 n.l6, 102 S. Ct. 2579, 73 L. Ed. 2d 202(1982).
Because there is no independent constitutional right to prospective or
retroactive application of new criminal procedural rules, we should apply general
doctrines on that subject to novel factual scenarios (like the one presented here) in
a pragmatic way that advances the underlying "principle oftreating similarly
situated defendants the same." Griffith, 479 U.S. at 323; see State v. French, 157
Wn.2d 593, 601-02, 141 P.3d 54(2006)("[BJecause there is no federal
constitutional right to appeal, federal courts may rely on utilitarian and pragmatic
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State V. Wences,'No. 93605-6
(Yu, J., concurring in dissent)
concepts such as mootness and disrespect to the judiciary to justify using the
fugitive disentitlement doctrine."). Applying Williams-Walker to Wences'
sentence plainly does not do so. Wences is not similarly situated to the vast
majority of criminal defendants whose appeals are not yet final when new rules of
criminal procedure are announced.
First, the most obvious difference is that most defendants do not delay their
own proceedings by willfully absconding for over a decade. Instead, unlike
Wences, most defendants remain in the jurisdiction, and many use proper legal
channels to challenge their convictions or sentences by pursuing appeals with
reasonable diligence in a timely manner. Fundamental fairness supports applying
new rules of criminal procedure to such defendants; the primary reason their
appeals are not yet final when the new rule is announced is that they have
exercised their rights to actively engage in the justice system.
Meanwhile, the only reason Wences' appeal was not yet final when
Williams-Walker was announced is that he intentionally and without justification
removed himselffrom the reach ofthe justice system.' He cannot possibly be
viewed as similarly situated to the vast majority of defendants who do not abscond.
'The majority suggests a number of hypothetical scenarios under which Wences' appeal
might not have been final when Williams-Walker was decided even if he had not absconded.
Majority at 6-1 n.2. I do not question that such scenarios could occur. However, Wences did
abscond, and I cannot understand why the only person who delayed the proceedings without
justification should he the only person who benefits from the doubts raised by that delay.
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State V. Wences,'S\o. 93605-6
(Yu, J., concurring in dissent)
Second, on a national level, Wences is not even similarly situated to the
majority of defendants who do abscond between conviction and sentencing
because most jurisdictions have means to address such situations that Washington
does not. Therefore, in most jurisdictions, there would not even be a possibility
that an absconding defendant like Wences could benefit from new rules of criminal
procedure that were adopted during his voluntary flight from justice.
For instance, in the federal system and many states, a willfully absconding
defendant may be sentenced in absentia. E.g., Fed. R. Crim.P. 43(c)(1)(B),(2);
State V. Anderson, 929 P.2d 1107, 1112(Utah 1996); State v. Braun, 253 Kan. 141,
145, 853 P.2d 686(1993)(voluntarily absent defendant may be sentenced in
absentia if there are "extraordinary circumstances" and "an injustice would occur
by requiring his presence"); Capuzzo v. State, 596 So. 2d 438, 440(Fla. 1992);
Williams v. State, 526 N.E.2d 1179, 1180 (Ind. 1988); People v. Corley, 67 N.Y.2d
105, 109-10, 491 N.E.2d 1090, 500 N.Y.S.2d 633 (1986); State v. Fettis, 136 Ariz.
58, 59, 664 P.2d 208(1983)(voluntarily absent defendant may be sentenced in
absentia "in extraordinary circumstances"); Byrd v. Ricketts, 233 Ga. 779, 780, 213
S.E.2d 610(1975); Flowers v. State, 608 So. 2d 764, 766 (Ala. Crim. App. 1992);
I also note that the majority's assertion that its bright-line rule is necessary to provide
certainty in sentencing is misleading. Id. at 9. Applying the law as it existed when an
absconding defendant was scheduled to be sentenced is also a bright-line rule that can be applied
with certainty. It is uncertain only if one gives Wences the benefit of the doubt he personally
created by absconding. See id. at 10-11.
6
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
Christopher Hall, Annotation, Voluntary Absence ofAccused When Sentence Is
Pronounced, 59 A.L.R. 5th 135 (1998). When a defendant is sentenced in
absentia, the law at the time sentencing was scheduled to take place (in this case,
the law prior to Williams-Walker) is applied from the outset, eliminating any
possible confusion on appeal.
Washington courts have not considered whether a defendant who was
:present at trial can be sentenced in absentia if he or she absconds. However, our
case law regarding trials in absentia explicitly require that the defendant be
allowed to explain his or her absence from trial prior to sentencing, suggesting that
while trial in absentia may be allowed in Washington, sentencing in absentia is not.
State V. Garza, 150 Wn.2d 360, 367, 77 P.3d 347.(2003); CrR 3.4(a)("The
defendant shall be present... at the imposition of sentence, except as otherwise
provided by these rules."),(b)("The defendant's voluntary absence after the trial
has commenced in his or her presence shall not prevent continuing the trial to and
including the return ofthe verdict."(emphasis added)).
Moreover, in the federal system and many states, courts may (or, in some
jurisdictions, must, see, e.g.. Redden v. State, 418 A.2d 996,997(Del. 1980)),
dismiss a defendant's appeal pursuant to the fugitive disentitlement doctrine if
(1)the defendant absconds without justification and (2)the delay causes prejudice
to the justice system or to the State. While the rule varies slightly across
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State V. Wences,'No. 93605-6
(Yu, J., concumng in dissent)
jurisdictions, these two prongs underpin the doctrine nationwide. See Ortega-
Rodriguez V. United States, 507 U.S. 234, 239-40, 113 S. C. 1199, 122 L. Ed. 2d
581 (1993); United States v. Sudthisa-Ard, 17 F.3d 1205, 1206-08 (9th Cir. 1994);
United States v. Persico, 853 F.2d 134, 138(2d Cir. 1988); United States v.
Puzzanghera, 820 F.2d 25, 27(1st Cir. 1987); State v. Brabham, 301 Conn. 376,
377, 21 A.3d 800(2011); Hires v. State, 2002-CT-00059-SCT, 882 So. 2d 225,
; 227-28 (Miss. 2004); State v. Bell, 2000 ND 58, 608 N.W.2d 232, 235-36; State v.
Troupe, 891 S.W.2d 808, 811 (Mo. 1995); State v. Patten, 134 N.H. 319, 321, 591
A.2d 1329 (1991); Reid v. Commonwealth, 57 Va. App. 42, 50-52, 698 S.E.2d 269
(2010); Polanski v. Superior Court, 180 Cal. App. 4th 507, 531-33, 102 Cal. Rptr.
3d 696 (2009); James L. Buchwalter, Annotation, Effect ofEscape by, or Fugitive
Status of State Criminal Defendant on Availability ofAppeal or Other Post-
Verdict or Post-Conviction Relief—State Cases, 105 A.L.R. 5th 529(2003); Brian
L. Porto, Annotation, Application ofFugitive Disentitlement Doctrine in Federal
Criminal Cases, 179 A.L.R. Fed. 291 (2002). Again, we do not have this option in
Washington. French, 157 Wn.2d at 602-03.
However, any jurist with the option to either sentence Wences in absentia or
dismiss his Williams-Walker claim on appeal (that is, most jurists in the country)
would almost certainly do so given the circumstances presented. It is clearly
undisputed that Wences absconded without justification, and as the dissent ably
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
points out, the justice system has suffered prejudice because of Wences' 11-year
flight from justice, and will continue to do so when the majority's holding in this
case is applied to future absconding defendants. Dissent at 4.
I also note that the long delay in sentencing in this case, for which Wences
was solely responsible, was clearly prejudicial to the State. The jury is no longer
available to make the necessary finding to impose a firearm enhancement on a
: properly worded special verdict form.^ And in this case, it cannot reasonably be
denied that the jury would have done so, given that it found Wences was armed
with a deadly weapon and the only deadly weapon that was ever mentioned in this
case was a firearm. Verbatim Report ofProceedings (Feb. 22, 2005)at 34, 70-71.
Thus, in most jurisdictions, a reasonable court presented with an absconding
defendant like Wences would likely either sentence him in absentia without the
benefit of Williams-Walker or dismiss the Williams-Walker claim on appeal. A
Washington court has neither option.
These unusual features of Washington law and Wences' 11-year flight from
justice clearly show that Wences is not similarly situated to the vast majority of
defendants whose appeals are not yet final when new rules of criminal procedure
are announced. The equal protection justification for applying the new rule
^ I disagree with the majority's suggestion that the State should have foreseen and
complied with a new rule of criminal procedure that would not be announced until five years
after Wences absconded. See majority at 3-5.
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
announced in Williams-Walker thus disappears under the circumstances presented.
See Griffith, 479 U.S. at 327-28.
The dissent clearly explains the absurd results and perverse incentives
created by the majority opinion, concerns with which even the majority opinion
purports to "sympathize." Majority at 9; dissent at 3. And because prospective
and retroactive application of new rules of criminal procedure to pending cases is
; not an independent constitutional right, we should not apply it in cases likeThis
one, where there is no justification for doing so and it produces obvious injustice.
Therefore, Williams-Walker does not apply to Wences' case. We should affirm the
Court of Appeals.
Finally, I must note that it appears the majority would reach the same
conclusion if the intervening change in law were harmful to the defendant, as
nothing in its analysis suggests a reasoned way to distinguish such a case.
However, applying the new rule of criminal procedure under those circumstances
would impose the punitive approach that the majority claims to reject.
By way of illustration, suppose a defendant is in hiding outside of
Washington, having absconded after his or her conviction but before sentencing. If
Williams-Walker is overruled while the defendant is in hiding, the defendant would
not be allowed to raise a Williams-Walker claim on appeal after he or she is finally
apprehended and sentenced because "'a new rule for the conduct of criminal
10
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
prosecutions is to be applied ... to all cases, state or federal, pending on direct
review or not yet final.'" Majority at 1-2 (alteration in original)(quoting St.
Pierre, 118 Wn.2d at 326). Therefore, if the trial court were to impose a firearm
enhancement on the basis of a deadly weapon special verdict, the defendant would
have no recourse because such an enhancement would comply with the law at the
time of sentencing, even though it was prohibited by the law at the time of
conviction. This means that the sentencing delay caused by the defendant's flight
from justice would directly result in a longer sentence.
The majority purports to reject any such "punishment paradigm," majority at
9, but, as the above example illustrates, the majority's reasoning clearly allows for
it. Meanwhile, as pointed out by the dissent, refusing to apply Williams-Walker in
this case is not a punishment at all, but merely a refusal to reward Wences for
absconding. Dissent at 1.
CONCLUSION
We do not apply new rules of criminal procedure to pending cases for the
mere sake of doing so. We do so to promote equal protection ofthe laws. Giving
Wences the benefit of Williams-Walker directly undermines equal protection
because Wences is not similarly situated to the vast majority of defendants whose
appeals are not yet final when new rules of criminal procedure are armounced
11
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State V. Wences,'No. 93605-6
(Yu, J., concurring in dissent)
because Wences willfully absconded for 11 years. I would therefore affirm the
Court of Appeals and respectfully concur in the dissent.
12
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State V. Wences, No. 93605-6
(Yu, J., concurring in dissent)
13