Opinion
NO. 91581–4
06-01-2016
In re the Personal Restraint of Jesse Marion White, Petitioner.
ORDER
¶ 1 Department II of the Court, composed of Chief Justice Madsen and Justices Owens, Stephens, González and Yu, considered this matter at its May 31, 2016, Motion Calendar. At the Court of Appeals, White's personal restraint petition was decided by the acting chief judge pursuant to RAP 16.11(b). A petition is frivolous within the meaning of that rule if it fails to present an arguable legal or factual basis for collateral relief in light of the constraints of personal restraint procedures. In re Pers. Restraint of Khan , 184 Wn.2d 679, 686–87, 363 P.3d 577 (2015). In his petition, White argued his appellate counsel was ineffective for not adequately arguing a potentially meritorious double jeopardy theory based on continuing assaultive conduct against a single victim. Although White raised the double jeopardy issue in his direct appeal and it was rejected, this Court's subsequent decision in State v. Villanueva–Gonzalez , 180 Wn.2d 975, 984–85, 329 P.3d 78 (2014), may require reconsideration of this issue. Therefore, the Department unanimously agreed that the personal restraint petition was not frivolous and that the following order be entered.
¶ 2 IT IS ORDERED:
¶ 3 That the Petitioner's Motion for Discretionary Review is granted and this case is remanded to the Court of Appeals to consider the Petitioner's personal restraint petition on the merits.
For the Court
/s/ Madsen, C.J.
CHIEF JUSTICE