Opinion
No. 48449-4-I
Filed: January 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No 00-1-05900-7. Judgment or order under review. Date filed: 04/17/2001. Judge signing: Hon. Leroy McCullough.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Randi J. Austell, Attorney at Law, King Co Pros Attorney, 516 3rd Ave Ste 5th, Seattle, WA 98104-2385.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Ann Marie Summers, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Jess Smith appeals his conviction following a guilty plea to second degree felony murder in King County No. 00-1-05900-7. Smith contends he is entitled to withdraw his plea under In re Personal Restraint of Andress, 147 Wn.2d 602, 604, 56 P.3d 981 (2002). In that case, our Supreme Court held that, under former RCW 9A.32.050 (1976), second degree assault may not serve as the predicate crime to convict a defendant of second degree felony murder. In In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), the Supreme Court clarified that Andress applies to anyone convicted of second degree felony murder under former RCW 9A.32.050 if assault was the predicate felony. The court reasoned that, because the `construction of former RCW 9A.32.050 in Andress determined what the statute meant since 1976,' the former felony murder statute did not establish a crime based upon second degree assault.
Andress applies here as well. Based on the plain and unambiguous language in Andress and Hinton, Smith pleaded guilty to a nonexistent crime. Recognizing that the principle of stare decisis compels us to follow the decisions of the Supreme Court, State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997); State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227, 39 A.L.R.4th 975 (1984) (Court of Appeals is bound by decisions of the Washington Supreme Court), we agree with Smith that he is entitled to withdraw his plea. We also agree with the State that if Smith withdraws his plea, the State may pursue such additional charges as are authorized by law. See State v. Ramos, Wn. App., 101 P.3d 872 (2004).
We remand this matter to the King County Superior Court for further proceedings consistent with Andress, Hinton, and Ramos.
COLEMAN, SCHINDLER and APPELWICK, JJ.