Opinion
No. 22617-4-III
Filed: December 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 97-1-01949-5. Judgment or order under review. Date filed: 05/22/1998. Judge signing: Hon. Linda G Tompkins.
Counsel for Petitioner(s), Aaron Robert Simpson (Appearing Pro Se), #782218, P.O. Box 888, Monroe, WA 98272-0888.
Aaron Robert Simpson seeks relief from personal restraint imposed for his 1998 Spokane County convictions upon plea of guilty to second degree felony murder involving the predicate felony of second degree assault, first degree robbery, and second degree robbery. Mr. Simpson claims his second degree felony murder conviction must be vacated in light of our Supreme Court's holding in In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), that assault may not serve as the predicate crime for second degree felony murder under former RCW 9A.32.050(1)(b) (1976). Mr. Simpson does not challenge his robbery convictions but requests recalculation of his offender score for those crimes.
Following the Andress decision, the legislature amended the second degree felony murder statute, effective February 12, 2003, to expressly declare that assault is included among the predicate crimes under the second degree felony murder statute. Laws of 2003, ch. 3, sec. 2.
We stayed Mr. Simpson's petition pending a decision and issuance of a certificate of finality in In re Pers. Restraint of Hinton, Wn.2d, 100 P.3d 801 (2004). The Hinton decision became final on December 14, 2004. We now lift the stay in this petition.
In Hinton, the court held that the decision in Andress applied retroactively to personal restraint petitioners convicted of the crime of second degree felony murder predicated on assault. Hinton, 100 P.3d at 804. Therefore, the petitioners' judgments were facially invalid and not subject to the one year time limit of RCW 10.73.090(1) for collateral attack. The court also held that the 2003 legislative amendment that included assault as a predicate crime for second degree felony murder was not retroactive because retroactive application would violate the ex post facto clauses of the state and federal constitutions. Hinton, 100 P.3d at 805. The court thus vacated the petitioners' convictions.
The holdings in Andress and Hinton apply to Mr. Simpson's case and entitle him to relief.
Accordingly, we grant Mr. Simpson's personal restraint petition to the extent that his second degree felony murder conviction and sentence for that crime is vacated and his case remanded to the Spokane County Superior Court for further lawful proceedings consistent with Andress and Hinton. Hinton, 100 P.3d at 805 (citing Andress, 147 Wn.2d at 617 n. 5).
The court has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Kato, C.J.