Opinion
No. 20794-3-III
Filed: March 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 01-1-00760-3. Judgment or order under review. Date filed: 01/11/2002. Judge signing: Hon. Kathleen O'Connor.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Jonathan Edward Michel appeals his conviction of second degree felony murder with assault as the predicate felony. He contends his conviction must be vacated in light of In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), in which our Supreme Court held that assault may not serve as the predicate crime for second degree felony murder. We vacate Mr. Michel's conviction and sentence and remand.
Following the Andress decision, the legislature amended the second degree felony murder statute, effective February 12, 2003, to expressly declare that assault is among the predicate crimes under the second degree felony murder statute. Laws of 2003, ch. 3, sec. 2.
On March 24, 2001, Mr. Michel and his friend, Justin White, spent the evening bar-hopping in downtown Spokane. When the bars closed, they headed to Mr. Michel's apartment. Both men were very drunk. On their way to the apartment, Mr. White picked up a steel pipe from a construction site. They then approached George R. Rice, a transient, who was sleeping under a freeway overpass. Mr. White hit Mr. Rice several times with the steel pipe. At one point, Mr. Michel took the pipe and hit him two or three times. Mr. White then took the pipe and hit him again. Mr. Rice died at the scene from a fractured skull.
Mr. Michel was charged with first degree murder or in the alternative, second degree felony murder with assault as the predicate felony. The jury convicted Mr. Michel of second degree felony murder. This appeal follows.
Mr. Michel contends that Andress requires vacation of his conviction for second degree felony murder because it was based on the predicate felony of assault. Andress held that assault may not serve as the predicate crime to convict a defendant of second degree felony murder. Andress, 147 Wn.2d at 604. The State argues that Andress should only be applied prospectively because Mr. Michel was convicted before that decision was issued. But in State v. Hanson, 151 Wn.2d 783, 791, 91 P.3d 888 (2004), our Supreme Court held to the contrary and determined Andress applied to all cases not yet final when it was decided. In In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), our Supreme Court clarified that Andress applied to anyone convicted of second degree felony murder under former RCW 9A.32.050 (1976) if assault was the predicate felony. The court reasoned that, because its `construction of former RCW 9A.32.050 in Andress determined what the statute had meant since 1976[,]' the former statute did not criminalize conduct as second degree felony murder where the predicate felony was assault. Id. at 859. Andress and Hinton thus apply here and we are constrained to give Mr. Michel relief. His second degree felony murder conviction and sentence are vacated and the case remanded to the Spokane County Superior Court for further lawful proceedings consistent with Andress and Hinton.
Mr. Michel received an exceptional sentence, to which he claimed error on appeal. We need not address the issue because of the vacation and remand. See also Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
A majority of the panel has determined 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.
SCHULTHEIS, J. and BROWN, J., Concur.