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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 66335-6-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
CARL RAY WILSON,                            )
                                            )
                      Defendant,            )       UNPUBLISHED OPINION
                                            )
and JESS RICHARD SMITH,                     )       FILED:  April 30, 2012
                                            )
                      Appellant.            )
                                            )

       Lau, J.  --  This is Jess Smith's second appeal from his convictions for first 

degree felony murder and first degree manslaughter.  In his first appeal, he argued that 

insufficient evidence supported his first degree felony murder conviction and the two 

convictions violated double jeopardy.  We affirmed Smith's first degree felony murder 

conviction but remanded for vacation of his manslaughter conviction, accepting the 

State's concession that the two convictions violated double jeopardy.  On remand, the 

trial court vacated the manslaughter conviction.  The court also transferred Smith's CrR 

7.8 motion to vacate the judgment to the Court of Appeals as a personal restraint  

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petition (PRP) under CrR 7.8(c)(2).  Smith appeals the decision on remand, arguing 

that (1) the trial court erred in transferring his CrR 7.8 motion as a PRP and (2) his first 

degree felony murder conviction violates double jeopardy.  We affirm.         

                                            FACTS

       On September 19, 2000, the State charged Jess Smith with second degree 

felony murder based on the predicate offense of second degree assault under RCW 

9A.32.050(1)(b).  Smith pleaded guilty as charged.  The trial court entered a judgment 

and sentence in April 2001.  Smith received a standard range sentence of 265 months, 

plus a 60-month firearm enhancement, for a total of 325 months.  

       Smith appealed.  While his appeal was pending, our Supreme Court decided In 

re Personal Restraint of Andress, 147 Wn.2d 602, 615-16, 56 P.3d 981 (2002), holding 

that the second degree felony murder statute in effect at that time did not allow felony 

murder to be predicated on second degree assault.  On appeal, we held that in light of 

our Supreme Court's decisions in Andress and In re Personal Restraint of Hinton, 152 
Wn.2d 853, 100 P.3d 801 (2004),1  Smith "pleaded guilty to a nonexistent crime." We 

held that Smith was "entitled to withdraw his plea" and that "if Smith withdraws his plea, 

the State may pursue such additional charges as are authorized by law." We 

remanded for "further proceedings consistent with Andress, Hinton, and [State v.]
Ramos[, 124 Wn. App. 334, 101 P.3d 872 (2004)]."2 We issued our mandate in Smith's 

       1 In Hinton, our Supreme Court clarified that Andress applies to anyone 
convicted of second degree felony murder under former RCW 9A.32.050 if assault was 
the predicate felony.  Hinton, 152 Wn.2d at 861-62.

       2 In Ramos, we considered whether, after a defendant's felony murder conviction 

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case on March 28, 2005, directing the trial court to proceed in accordance with our 

decision.  

       On remand, the State moved to file a third amended information pursuant to 

Andress, Hinton, and Ramos.  The trial court granted the State's motion on April 5, 

2005.  On April 7, the court also vacated Smith's second degree felony murder 

conviction "[a]s required by the Washington Supreme Court pursuant to [Andress and 

Hinton]."  

       The State filed its third amended information on September 23, 2005, charging 

Smith alternatively with first degree felony murder (based on the predicate offenses of 

kidnapping or robbery) and second degree intentional murder.  In August 2006, a jury 

convicted Smith of first degree felony murder and the lesser included offense of first 

degree manslaughter.  By special interrogatories, the jury found that Smith caused the 

death of Dale Patrick Bateman while committing or attempting to commit the crimes of 

first degree kidnapping and second degree robbery.  The trial court entered a judgment 

and sentence in September 2006.  The court sentenced Smith to 384 months' total 

confinement.  Smith appealed, arguing (1) lack of sufficient evidence to support the 

felony murder conviction and (2) sentencing on both the felony murder and 

manslaughter convictions violated double jeopardy.  

       On appeal, we affirmed Smith's first degree felony murder conviction, ruling that 

was vacated pursuant to Andress, the State could retry the defendant for manslaughter.  
Ramos, 124 Wn. App. at 338.  We held that the "end of justice" exception to the 
mandatory joinder rule applied where, as in Ramos, "[t]he fact that the convictions thus 
obtained must now be vacated is the result of extraordinary circumstances outside the 
State's control."  Ramos, 124 Wn. App. at 342.  
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substantial evidence supported the jury's verdict.  But we remanded for vacation of 

Smith's manslaughter conviction, accepting the State's concession that the two 

convictions violated double jeopardy.  We remanded to the trial court "for any further 

proceedings that are necessary."  State v. Smith, noted at 148 Wn. App. 1021, 2009 

WL 163096, at *16.  Our mandate was issued on April 14, 2010.  On October 21, the 

trial court entered an order vacating the manslaughter conviction.  
       On remand, Smith filed a CrR 7.83 motion to vacate the September 2006 

judgment and sentence.  He argued that the trial court improperly vacated his 2001 

second degree felony murder conviction without his request or agreement, and thus,

the charge and conviction for first degree felony murder constituted double jeopardy.  

He claimed his original conviction was still valid because he never withdrew his guilty 

plea.  The State moved to transfer Smith's motion to the Court of Appeals for 

consideration as a PRP under CrR 7.8(c)(2).  The court agreed and entered an order 
transferring the motion to the Court of Appeals.4 The court denied Smith's subsequent 

motion for reconsideration.  Smith appeals, arguing (1) the trial court erred in 

       3 CrR 7.8(b) authorizes the court to relieve a party from a final judgment, order,
or proceeding for the following reasons:
       "(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in 
obtaining a judgment or order;
       "(2) Newly discovered evidence which by due diligence could not have been 
discovered in time to move for a new trial under rule 7.5;
       "(3) Fraud . . ., misrepresentation, or other misconduct of an adverse party;
       "(4) The judgment is void; or
       "(5) Any other reason justifying relief from the operation of the judgment."

       4 Smith's PRP, No. 66364-0, has been stayed pending the outcome of this 
appeal.  Appellant's Br. at 8 n.5.
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transferring his CrR 7.8 motion as a PRP and (2) his first degree felony murder 

conviction violates double jeopardy and article I, section 22 of the Washington 

Constitution.

                                          ANALYSIS

       CrR 7.8 Motion

       Smith argues that the trial court did not fully consider his claims or provide an 

adequate basis for its decision to transfer his CrR 7.8 motion to the Court of Appeals as 

a PRP.  He contends the trial court erred when it failed to address the merits of his 

motion and "summarily transferred the motion to [the Court of Appeals] without 

determining whether Mr. Smith made a substantial showing he was entitled to relief."  

Appellant's Reply Br. at 1.  The State counters that Smith failed to make such a 

showing, and thus, the trial court properly transferred his CrR 7.8 motion as a PRP.

       In 2007, CrR 7.8(c)(2) was amended to require the following procedure:

       The court shall transfer a motion filed by a defendant to the Court of Appeals for 
       consideration as a personal restraint petition unless the court determines that 
       the motion is not barred by RCW 10.73.090 and either (i) the defendant has 
       made a substantial showing that he or she is entitled to relief or (ii) resolution of 
       the motion will require a factual hearing.

When we consider such a transferred motion as a PRP, we are not bound by the trial 

court's conclusions regarding whether a factual hearing is required or whether the 

defendant made a substantial showing that he or she is entitled to relief.  We consider

de novo whether any relief is barred by RCW 10.73.090, whether there is a sufficient 

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showing that the defendant is entitled to relief, and whether resolution of the petition 

requires a factual hearing.  See RAP 16.11; In re Pers. Restraint of Rice, 118 Wn.2d 

876, 885, 828 P.2d 1086 (1992) (detailing court's procedure in considering issues 

raised in a PRP).   

       Smith argues that under CrR 7.8(c)(2), the trial court must address the merits of 

a CrR 7.8 motion in order to determine whether the defendant has made a substantial 

showing he or she is entitled to relief.  He claims the court erred in failing to address 

the merits of his motion.  But he cites no authority requiring a court to address the 

merits of a CrR 7.8 motion or make findings before transferring the motion as a PRP.  

See State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) ("'Where no 

authorities are cited in support of a proposition, the court is not required to search out 

authorities, but may assume that counsel, after diligent search, has found none.'") 

(quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 

(1962)).  Nothing in 

CrR 7.8(c)(2) mandates that a trial court reviewing a CrR 7.8 motion must address the 

merits or make findings regarding whether the defendant has shown he is entitled to 

relief.

       A transfer pursuant to CrR 7.8(c)(2) is not a final decision by the trial court 
granting or denying relief.  Thus, RAP 2.2(a)(9), (10), (11), and (13)5 do not apply and 

       5 These RAP provisions describe decisions of the superior court that may be 

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the transfer is not appealable as a matter of right.  We conclude that because Smith's 

CrR 7.8 motion was transferred for consideration as a PRP, any objection should be 

raised in that proceeding.

       First Degree Felony Murder Conviction

              A.  Double Jeopardy

       Smith contends that his first degree felony murder conviction violates double 

jeopardy.  He argues that because he never moved to withdraw his plea to the original 

second degree felony murder charge, that conviction was final and the State violated 

double jeopardy when it retried him for a greater charge -- first degree felony 

murder -- for the same offense.

       Smith failed to raise the above double jeopardy argument when he appealed his 
first degree felony murder and first degree manslaughter convictions.6 The only double 

jeopardy argument he raised on appeal concerned whether the first degree felony 

murder and manslaughter convictions constituted double jeopardy.  RAP 2.5(c)(1) 

states:

       If a trial court decision is otherwise properly before the appellate court, the 

appealed, including an order granting or denying a motion for new trial or amendment 
of judgment, an order granting or denying a motion to vacate a judgment, an order 
arresting or denying arrest of a judgment in a criminal case, or a final order made after 
judgment that affects a substantial right. 

       6 The record shows that Smith raised the issue in the trial court at the sentencing 
hearing for his first degree felony murder and first degree manslaughter convictions, 
but he failed to designate that issue on appeal.  
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       appellate court may at the instance of a party review and determine the propriety 
       of a decision of the trial court even though a similar decision was not disputed in 
       an earlier review of the same case.

In State v. Barberio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993), our Supreme Court 

interpreted this rule narrowly, stating:

              This rule does not revive automatically every issue or decision which was 
       not raised in an earlier appeal.  Only if the trial court, on remand, exercised its 
       independent judgment, reviewed and ruled again on such issue does it become 
       an appealable question. . . .
              Clearly the rule is permissive for both the trial court and the appellate 
       court.  It is discretionary for the trial court to decide whether to revisit an issue 
       which was not the subject of appeal.  If it does so, RAP 2.5(c)(1) states that the 
       appellate court may review such issue.

(First emphasis added.)

       Here the "deciding factor" under RAP 2.5(c)(1) and Barberio is whether the trial 

court on remand considered the issues Smith seeks to raise in this court.  State v. 

Traicoff, 93 Wn. App. 248, 257, 967 P.2d 1277 (1998) (declining to consider challenge 

to conditions of community placement when defendant failed to raise challenge in first 

appeal and trial court did not reconsider the conditions on remand).  It did not.  Smith 

did raise the issues in the CrR 7.8 motion he prepared on remand.  But the court 

transferred that motion under CrR 7.8(c)(2) to the Court of Appeals as a PRP without 

addressing the merits.  It did not, "on remand, exercise[] its independent judgment, 

review[] and rule[]" on the argument Smith now raises.  Barberio, 121 Wn.2d at 50.  

Accordingly, Smith is barred from raising his double jeopardy argument for the first time 
in this appeal.7   

       7 The rule we follow here applies equally to constitutional and nonconstitutional 
issues.  See State v. Sauve, 100 Wn.2d 84, 87, 666 P.2d 894 (1983) (declining to 
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              B.  Washington Constitution, Article I, Section 22

       Smith also argues that his original second degree felony murder conviction was 

"vacated on the basis of a defective information" and, thus, article I, section 22 of the 
Washington constitution8 precludes the State from retrying him on a greater charge.  

Appellant's Br. at 17.  The State contends that no charging error occurred.

       Smith failed to raise his article I, section 22 argument in the previous appeal 

when he challenged his first degree felony murder and first degree manslaughter 

convictions.  Our review of the record also indicates that Smith failed to raise this 

constitutional argument on remand.  Thus, the trial court on remand never addressed 

the argument.  For the reasons discussed above, RAP 2.5(c)(1) precludes Smith from 

raising his article I, section 22 argument for the first time in this appeal.

       Statement of Additional Grounds (SAG)

       Smith raises several issues in his pro se SAG.  First, he argues that we "directed 

the trial court to go beyond a mere ministerial duty by [our] 'any further proceedings 

that are necessary' language." SAG at 6.  Thus, he argues that the court on remand 

consider constitutional issue that appellant failed to raise in first appeal); State v. 
Corrado, 94 Wn. App. 228, 236, 972 P.2d 515 (1999) ("an issue that was raised or 
could have been raised in a previous appeal may not be raised in a later appeal of the 
same case. . . . [T]his is so even where the issue is constitutional.") (citation omitted).

       8 Article I, section 22 requires that a defendant receive notice of the criminal 
charges against him or her.  Wash. Const. art. I, § 22; State v. Schaffer, 120 Wn.2d 
616, 619-20, 845 P.2d 281 (1993).  A charging document must include all "essential 
elements" of the charged crime.  State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 
1177 (1995).  When a conviction is reversed due to an insufficient charging document, 
the remedy is dismissal of the charge without prejudice.  Vangerpen, 125 Wn.2d at 
791.  

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had authority to address his CrR 7.8 motion and was required to use its discretion to do 

so.  As discussed above, Smith's CrR 7.8 motion was transferred to this court for 

consideration as a PRP and any objection should be raised in that proceeding.

       Smith argues that double jeopardy issues can be raised at any time -- thus 

establishing "an exception to a ministerial act" -- and the trial court should have 

resolved this issue at sentencing.  SAG at 10.  He also cites State v. Toney, 149 Wn. 

App. 787, 205 P.3d 944 (2009), for the proposition that a defendant may raise and 

argue issues in a second appeal despite failing to raise those issues in the first appeal.  

Toney held that a defendant "may raise sentencing issues on a second appeal if, on

the first appeal, the appellate court vacates the original sentence or remands for an 

entirely new sentencing proceeding, but not when the appellate court remands for the 

trial court to enter only a ministerial correction of the original sentence."  Toney, 149 

Wn. App. at 792.  Because the trial court in Toney was not limited to making a 

ministerial correction and it exercised its discretion on remand by conducting a "full, 

adversarial resentencing proceeding," the defendant could raise issues on his second 

appeal that he failed to raise in his first appeal.  Toney, 149 Wn. App. at 793.  In 

contrast, here, the trial court did not rule on the merits of Smith's CrR 7.8 motion and,

thus, Smith cannot raise those issues in his second appeal after failing to raise them in 

his first appeal.  Toney is inapplicable. 

       Smith makes several arguments regarding his original plea to second degree 

felony murder.  He argues that the prosecutor "made up a filing policy called 

'conventional filing'" and effectively forced him to plea.  SA

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G at 11.  He also alleges the State committed procedural and due process violations at 

the plea hearing.  Because these allegations refer to alleged evidence outside the 

record on review, we decline to address it on direct appeal.  If a defendant "wishes to 

raise issues on appeal that require evidence or facts not in the existing trial record, the 

appropriate means of doing so is through a personal restraint petition . . . ."  State v. 

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).         

       Smith argues throughout his SAG that the State on remand from the second 

degree felony conviction was permitted to charge only the same or lesser charges and, 

thus, his first degree felony murder conviction violates double jeopardy.  He claims that 

no new evidence or facts supported amendment of the information and the State merely 

"painted a blacker picture with defective old facts." SAG at 13.  We addressed the 

double jeopardy issue above and decline to further discuss it here.

       Finally, to the extent the issues raised in the SAG relate not to the resentencing 

but rather to earlier proceedings, we deem it inappropriate to consider those issues in 

this direct appeal.  Smith may pursue those issues in the context of a PRP, subject to 

whatever limitations may bar issues that were or could have been raised previously.

                                        CONCLUSION

       Because we deem Smith's objection to the trial court's transfer of his CrR 7.8 

motion not appealable and we decline to address his remaining claims for failure to 

raise them in the first appeal, we affirm.

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WE CONCUR:

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