740798MAJ
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                    Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       74079-8
Title of Case:       State of Washington, Respondent V Chayce
                     A. Hanson, Appellant
File Date:           06/17/2004
Oral Argument Date:  10/28/2003


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County
            Honorable Terry Lukens


                                    JUSTICES
                                    --------
Authored by Faith Ireland
Concurring: Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Richard B. Sanders
            Susan Owens
            Tom Chambers
            Mary Fairhurst


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Suzanne Lee Elliott
            Attorney at Law
            Ste 1300 Hoge Bldg
            705 2nd Ave
            Seattle, WA  98104-1741

Counsel for Respondent(s)
            Stephen Paul Hobbs
            King County Prosecuting Attorney
            500 4th Ave Ste 900
            Seattle, WA  98104-2337

            James Morrissey Whisman
            King Co Pros Aty/Appellate Unit
            700 5th Ave Ste 1850
            Seattle, WA  98104-5009

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             )
                                                 )
     Respondent,                                 ) No. 74079-8
                                                 )
               v.                                ) En Banc
                                                 )
CHAYCE HANSON,                                   )
                                                 ) Filed June 17, 2004
Appellant.                                       )
                                                 )

IRELAND, J. - Chayce Hanson appealed his conviction for second degree
felony murder predicated on assault for the death of 34 month old Nenah
Walters.  This court accepted direct review.
The primary issue in this case is whether Hanson's conviction for second
degree felony murder should be vacated in light of this court's decision in
In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). In
Andress this court held that a conviction for second degree felony murder
could not be based upon a predicate crime of assault.  We hold that Andress
applies prospectively to include cases not final under RAP 12.7.  Hanson's
case is not yet final; therefore, we vacate his sentence and remand for
further proceedings in accord with this decision.
FACTS
     The State charged Hanson with the crime of second degree felony murder
predicated on second degree assault committed between July 18, 2000 and
July 19, 2000 for the death of 34 month old Nenah Walters and assault of a
child in the third degree for acts committed on July 17, 2000. Clerk's
Papers (CP) 62-63.  A jury found Hanson guilty of second degree felony
murder but not guilty of assault of a child in the third degree.  CP at
128, 153-59.  The sentencing court imposed a 300 month exceptional
sentence.
     Hanson appealed to the Court of Appeals.  The State moved to transfer
Hanson's appeal from the Court of Appeals to the Supreme Court.  The
commissioner granted the State's motion and the matter is now before this
court.
A.   STANDARD OF REVIEW
The standard of review for an issue involving questions of law is de novo.
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999); Bishop
v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
B.   ISSUE
Should the Andress decision be applied prospectively to a case which is not
yet final?
C.   ANALYSIS
     The State asks the court to overrule Andress.  We declined
reconsideration and again decline the State's invitation to overrule
Andress.
In Andress, we held that assault could not serve as a predicate to second
degree felony murder.  Both parties argue for prospective application of
Andress but differ on whether Hanson is entitled to the benefit of the
Andress decision.  The State argues that Andress should apply "purely"
prospectively, that is only to trials which have yet to begin or are still
at trial where no verdict has been rendered, and not to cases where a
conviction has been adjudicated.
Hanson argues that under In re Personal Restraint of St. Pierre, 118 Wn.2d
321, 823 P.2d 492 (1992), prospective application includes those cases not
yet final including cases on appeal, and claims St. Pierre requires a
vacation of Hanson's second degree murder conviction predicated upon
assault.
The State relies on this court's decisions in other areas of law, public
policy arguments, and decisions from other states in support of "purely"
prospective application.  The State submits that State ex rel. Washington
State Finance Committee v. Martin, 62 Wn.2d 645, 384 P.2d 833 (1963)
supports a prospective application of Andress.  The Martin court opined:
If rights have vested under a faulty rule, or a constitution
misinterpreted, or a statute misconstrued, or where, as here, subsequent
events demonstrate a ruling to be in error, prospective overruling becomes
a logical and integral part of stare decisis by enabling the courts to
right a wrong without doing more injustice than is sought to be corrected.
. . . The courts can act to do which ought to be done, free from the fear
that the law itself is being undone.
Martin, 62 Wn.2d at 666.
The State asks this court to apply Andress "purely" prospectively, that is
to cases not yet adjudicated to verdict, rather than adhering to the St.
Pierre rule.  The State offers several public policy arguments in support
of applying Andress "purely" prospectively.  First, that parties and lower
courts reasonably relied on the court's interpretation of RCW
9A.32.030(1)(c) that assault could be a predicate to felony murder and
should not be penalized for such a justifiable reliance.  However, the
State does not furnish authority for balancing the risk of uncertainty in
favor of the State rather than the defendant.
Second, the State argues that "purely" prospective application of the
Andress rule would allow citizens both notice and an opportunity to conform
their conduct to law.  The presumption against retroactive application
"'"is deeply rooted in our jurisprudence, and embodies a legal doctrine
centuries older than our Republic."'"  State v. Cruz, 139 Wn.2d 186, 190,
985 P.2d 384 (1999) (quoting Lynce v. Mathis, 519 U.S. 433, 439, 117 S. Ct.
891, 137 L. Ed. 2d 63 (1997)).  The prohibition against retroactive law
concerns situations that burden the citizen.  See generally U.S. Const.
art. I, sec.sec. 9-10 (prohibiting both Congress and States from passing ex
post facto laws); In re Pers. Restraint of Stanphill, 134 Wn.2d 165, 949
P.2d 365 (1998) (ex post facto laws disadvantage citizens because they
impose punishment for an act which was not punishable when committed, or
increased the quantum after the crime was committed).  Andress' holding
that assault cannot serve as a predicate offense to second degree felony
murder does not set out a new rule proscribing a certain activity nor does
it increase punishment after the crime was committed.  The State's second
public policy argument does not weigh in favor of "purely" prospective
application of Andress.
Third, the State contends that "purely" prospective application is
consistent with stare decisis because the court's prior felony decisions
holding that assault could serve as predicate to second degree felony
murder were no less definitive and binding than the rule of law announced
in Andress.  See State v. Crane, 116 Wn.2d 315, 804 P.2d 10 (1991); State
v. Wanrow, 91 Wn.2d 301, 588 P.2d 1320 (1978); State v. Thompson, 88 Wn.2d
13, 558 P.2d 202 (1977); State v. Tamalini, 134 Wn.2d 725, 953 P.2d 450
(1988).  While it is true that those cases involved a conviction for murder
predicated on assault, none of them dealt with the issue in Andress.
Wanrow and Thompson involved a prior version of the second degree felony
murder statute.1  In Crane, we declined to address the issue of whether
assault could serve as a predicate to second degree felony murder.  Crane,
116 Wn.2d at 333.  Tamalini, did not address whether an assault could serve
as a predicate to felony murder.2
Further, the State cites to cases decided by the highest courts in
California, Kansas, New Mexico, and Michigan to  support "purely"
prospective application.
The California and Kansas cases applied a rule prospectively to include
cases where appeal as a matter of right had not yet been exhausted and do
not support the rule that the State seeks.  The New Mexico and Michigan
cases support the rule that the State requests.
California applied its holding that a person could not be convicted of
felony murder when the underlying offense charged was felony child abuse
only prospectively to cases not yet final.  La Rue v. McCarthy, 833 F.2d
140 (9th Cir. 1987).  La Rue was convicted of second degree felony murder
in 1980 with felony child abuse as the predicate offense.  The California
Court of Appeals affirmed La Rue's conviction in 1981.  Id. at 143.  Three
years later, the California Supreme Court in People v. Smith, 35 Cal. 3d
798, 801, 678 P.2d 886, 201 Cal. Rptr. 311 (1984), held that a person could
not be convicted of second degree felony murder predicated upon the crime
of felony child abuse.  La Rue filed petitions for a writ of habeas corpus
seeking to collaterally attack his conviction under Smith.  The California
Court of Appeals and California Supreme Court denied the petition.  La Rue
then filed a habeas corpus petition with the federal district court which
was denied and affirmed by the Ninth Circuit.  La Rue, 833 F.2d 140.
In Easterwood v. Kansas, 273 Kan. 361, 44 P.3d 1209 (2002), Easterwood
pleaded guilty to felony murder, aggravated robbery, and assault.
Easterwood filed a postconviction habeas corpus petition with the trial
court, which was denied.  Easterwood appealed denial of his collateral
attack to the Kansas Supreme Court.  While Easterwood's collateral attack
appeal was pending, the Kansas Supreme court ruled in State v. Sophophone,
270 Kan. 703, 19 P.3d 70 (2001) that a defendant could not be convicted of
felony murder for the killing of his "co-felon," not caused by the
defendant's acts.  Easterwood amended his collateral attack arguing that
Sophophone should be applied retroactively to vacate his felony murder
conviction.  However, the court applied its new rule prospectively to cases
not yet final.
In the third case cited by the State, New Mexico interpreted negligence
under its child abuse statute to require criminal negligence and overruled
previous precedent that allowed convictions based on simple negligence.
The New Mexico court applied its decision prospectively to include cases
that have not reached a verdict.  Santillanes v. New Mexico, 115 N.M. 215,
849 P.2d 358 (1993).
In People v. Aaron, 409 Mich. 672, 299 N.W. 2d 304 (1980), Aaron was
convicted of first degree felony murder as a result of a homicide committed
during the perpetration of an armed robbery.  The Michigan Supreme Court
concluded that "Michigan has no statutory felony-murder rule which allows
the mental element of murder to be satisfied by proof of the intention to
commit the underlying felony." Id. at 733.  The court reversed Aaron's
conviction stating that the decision applied prospectively to trials in
progress and trials occurring after the date of the opinion. Id. at 734.
While Santillanes and Aaron support the states request for a "purely"
prospective rule, the cases are in conflict with St. Pierre.
We now turn our attention to St. Pierre which Hanson urges us to retain as
controlling authority.  St. Pierre was found guilty of "first degree felony
murder, first degree kidnapping, and second degree assault in the death of
Damon Wells."  St. Pierre, 118 Wn.2d at 323.  At trial, the jury was
instructed that if it failed to find St. Pierre "guilty of the charged
crime of aggravated first degree murder" it could find St. Pierre guilty of
a lesser included offense of "premeditated murder in the first degree,
felony murder in the first and second degree, and murder in the second
degree."  Id. at 324.  On appeal, the court affirmed St. Pierre's first
degree felony murder conviction of Wells and St. Pierre moved for
reconsideration.  Eight days before the court denied the motion for
reconsideration, the court decided State v. Irizarry, 111 Wn.2d 591, 763
P.2d 432 (1988), which concluded that felony murder was not an included
offense within the offense of aggravated first degree murder.  St. Pierre
brought a personal restraint petition seeking retroactive application of
Irizarry.  We concluded that St. Pierre's conviction was not yet final
since we announced the rule in Irizarry eight days before denying St.
Pierre's motion for reconsideration and that St. Pierre was entitled to the
benefit of Irizarry.  However, we affirmed the Court of Appeals' dismissal
of St. Pierre's petition because the petitioner failed to establish actual
and substantial prejudice of the error.
St. Pierre sets out current prospective application analysis in Washington.
The analysis derives from two United States Supreme Court cases. In
Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649
(1987), the Court held that a new rule applies prospectively to all cases
pending on direct review or not yet final.  In Teague v. Lane, 489 U.S.
288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the Court held that a new
rule will not be given retroactive application to cases on collateral
review except when either (a) the new rule places certain kinds of primary,
private individual conduct beyond the power of the state to proscribe, or
(b) the rule requires the observance of procedures implicit in the concept
of ordered liberty.  Teague, 489 U.S. at 290.
A new rule breaks new ground or imposes a new obligation.  Teague, 489 U.S.
at 301.  A new rule is a "result . . . not dictated by precedent existing
at the time the defendant's conviction became final."  Id.  As stated in
St. Pierre, the rule based on those cases is that a new rule prospectively
applies to cases not yet finalized unless a collateral review exception is
present.  "The critical issue in applying the current {prospectivity}
analysis is whether the case was final when the new rule was announced."
St. Pierre, 118 Wn.2d at 327.  The St. Pierre Court interpretation of
finality is consistent with RAP 12.7.
We have stated that "{o}ur appellate court procedural rules provide two
methods of seeking review of trial court decisions. One is review as a
matter of right, called an 'appeal', and the other is review by permission
of the reviewing court, called 'discretionary review.'"  In re Dependency
of Grove, 127 Wn.2d 221, 235, 897 P.2d 1252 (1995) (citing RAP 2.1(a)).  We
held in St. Pierre that finality of a case is to be contemplated as a whole
and not the finality of a single issue.  RAP 12.7 defines the finality of a
decision by an appellate court.3  Once an appellate decision is final,
review as a matter of right is exhausted.
The State's "purely" prospective application would exclude Hanson from the
benefit of Andress because Hanson's had been adjudicated to verdict.  The
State asks the court to adopt a prospective application rule that is a
departure from this court's decisional law in St. Pierre, which applied new
rules prospectively to nonfinalized cases.  Further, while the State cites
to cases from other states for a "purely" prospective application of
Andress, those cases did not use a "purely" prospective application with
the exception of Santillanes and Aaron.  La Rue, 833 F.2d 140; Santillanes,
115 N.M. 215; Aaron, 409 Mich. 672; Easterwood, 273 Kan. 361. The two cases
the State relies on for a "purely" prospective analysis are in conflict
with St. Pierre.  We prefer the bright line established by St.Pierre.
Hanson's case falls squarely to our decision in St. Pierre to which we
adhere.  We hold that Andress applies prospectively to include cases not
yet final when the Andress decision was decided.  We vacate Hanson's
sentence because his case was not yet final under RAP 12.7 when Andress was
decided and remand for further proceedings in accord with this decision.
We do not reach Hanson's other issues having decided that Hanson's
conviction is vacated.
CONCLUSION
The State fails to make any compelling arguments for a deviation from
normal prospective application used by this court and other jurisdictions.
We hold that the St. Pierre rule of prospective application applies to the
Andress decision.  Here, Hanson's case is on appeal as a matter of right.
His case is not yet final under RAP 12.7.  Hanson is entitled to the
benefit of our holding that assault is not a predicate to second degree
felony murder.  We vacate Hanson's sentence and remand for further
proceedings in accord with this opinion.  Andress, 147 Wn.2d at 616 n.5.

1 Former RCW 9.48.040, repealed by Laws of 1975, 1st Ex. Sess., ch. 260,
sec. 9A.92.010.
2 The two issues facing the court in Tamalini were: (1) is first or second
degree manslaughter a lesser included offense of second degree felony
murder; and (2) is first or second degree manslaughter an inferior degree
of second degree felony murder.  Tamalini, 134 Wn.2d at 728, 730.
3 RAP 12.7 defines when a case is final and reads in part:

          (a) Court of Appeals. The Court of Appeals loses the power to
change or modify its decision (1) upon issuance of its mandate in
accordance with rule 12.5, except when the mandate is recalled as
provided in rule 12.9, (2) upon acceptance by the Supreme Court
of review of the decision of the Court of Appeals, or (3) upon
issuance of a certificate of finality as provided in rules
12.5(e) and rule 16.15.(e).

          (b) Supreme Court. The Supreme Court loses the power to
change or modify a decision of the Court of Appeals upon issuance
of the mandate of the Court of Appeals in accordance with rule
12.5, except when the mandate is recalled as provided in rule
12.9.  The Supreme Court loses the power to change or modify a
Supreme Court decision upon issuance of the mandate of the
Supreme Court in accordance with rule 12.5, except when the
mandate is recalled as provided in rule 12.9.

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