Opinion
No. 92356-6
03-08-2017
IN RE the Personal Restraint of Diamond L. BOYD, Petitioner.
ORDER
¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins, and Gordon McCloud, considered this matter at its March 7, 2017, Motion Calendar. The Petitioner's motion for discretionary review seeks review of the Court of Appeals order dismissing as improperly successive his personal restraint petition, in which he challenges his 2001 conviction for first-degree assault. Although the petition was successive, it also raised a new issue. As to the new issue, the Court of Appeals should have made a determination whether that issue was time-barred. In re Pers. Restraint of Reginal Bell , Supreme Court No. 92679-4, 2017 WL 238586 (Wash) (January 19, 2017). Because the Court of Appeals did not address whether the newly raised issue was time-barred, the Court of Appeals should have transferred the petition to the Supreme Court pursuant to In re Pers. Restraint of Perkins , 143 Wn.2d 261, 266, 19 P.3d 1027 (2001). Therefore, by unanimous vote, the motion for discretionary review is granted, the Court of Appeals order dismissing the personal restraint petition is reversed, and the personal restraint petition is hereby transferred to the Supreme Court for determination.
¶2 The personal restraint petition is successive but it also raises for the first time an argument that the evidence was insufficient to convict the Petitioner of first-degree assault. Because the petition was filed more than one year after his judgment and sentence was final, the challenge is untimely unless the Petitioner demonstrates that the judgment and sentence is facially invalid or was entered without competent jurisdiction under RCW 10.73.090(1), or he raises only grounds for relief that are exempt from the one-year limit under RCW 10.73.100. See In re Pers. Restraint of Adams , 178 Wn.2d 417, 422, 309 P.3d 451 (2013). A claim that the evidence was insufficient to convict is a potentially exempt ground for relief under RCW 10.73.100(4).
¶3 To prove that the Petitioner committed first-degree assault, the State was required to prove that, with the intent to inflict great bodily harm, the Petitioner assaulted another with a firearm. The evidence was plainly sufficient to prove the Petitioner committed first-degree assault. In particular, the Petitioner's intent to inflict great bodily harm on Byron White or another transferred to Jalana Salas-Anthony, an unintended victim. See State v. Elmi , 166 Wn.2d 209, 215, 216-18, 207 P.3d 439 (2009). The Petitioner argues that the State failed to prove that the bullet that injured Salas-Anthony came from his gun. However, the jury could reasonably make that inference from the evidence presented on the timing of the shots and the different calibers of the weapons, showing that Salas-Anthony was hit during the initial round of gunshots by a smaller caliber weapon as the Petitioner was shooting at White. The Petitioner thus fails to show the existence a valid basis for avoiding the time bar on collateral attack. Therefore, the Department unanimously agreed that the following order be entered.
¶4 IT IS ORDERED:
¶5 The Petitioner's personal restraint petition is hereby dismissed as untimely.
For the Court
/s/ Fairhurst, C.J.
CHIEF JUSTICE