In the Matter of the Personal Restraint of: Bradleigh A. Hines

• Court: Court of Appeals of Washington
• Decided: February 23, 2021
• Docket: 37647-8
• Status: Unpublished

Opinion

FILED FEBRUARY 23, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Personal Restraint of ) ) No. 37647-8-III BRADLEIGH A. HINES, ) ) Petitioner. ) UNPUBLISHED OPINION

STAAB, J. — In 2009, Bradleigh Hines was convicted of two counts of failure to

register as a sex offender in Asotin County. The court imposed concurrent sentences of

25.5 months. Mr. Hines did not appeal the judgment or sentence. Three months later, the

unit of prosecution for this offense was defined in State v. Durrett, 150 Wn. App. 402,

406, 208 P.3d 1174 (2009).

Mr. Hines filed this personal restraint petition (PRP) in 2020, arguing that his two

convictions violated double jeopardy under Durrett. The State agrees that the PRP is

timely and that the multiple convictions violated Mr. Hines’s double jeopardy rights. We

vacate his second conviction for failing to register as a sex offender and remand for

resentencing. No. 37647-8-III In re Pers. Restraint of Hines

FACTS

In September 2008, the State charged Bradleigh Hines with one count of failure to

register as a sex offender in Asotin County. An amended information was filed on

February 24, 2009, charging Mr. Hines with two counts of failure to register. Count one

alleged a failure to register between August 1, 2008 and September 1, 2008, and count

two alleged a failure to register between November 25, 2008 and December 13, 2008.

Following a bench trial on February 26, 2009, Mr. Hines was found guilty of both counts

and sentenced to 25.5 months on each count, concurrent.

On July 10, 2020, Hines filed this PRP, asserting that double jeopardy bars his

second conviction for failure to register. This court called for a response from the State,

and the acting chief judge referred this matter to a panel of judges for determination on

the merits after determining that Mr. Hines’s petition is not frivolous. RAP 16.11(b).

ANALYSIS

As a threshold matter, this court must decide if Mr. Hines’s PRP, filed more than

one year after the judgment became final, is timely. To prevail in a PRP, a petitioner

must establish (1) a constitutional error that resulted in actual and substantial prejudice or

(2) a fundamental defect of a nonconstitutional nature that inherently resulted in a

complete miscarriage of justice. In re Pers. Restraint of Dove, 196 Wn. App. 148, 154,

381 P.3d 1280 (2016); see also In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33,

267 P.3d 324 (2011). However, there are certain constitutional errors for which relief is

2 No. 37647-8-III In re Pers. Restraint of Hines

automatically available on collateral review, including double jeopardy violations. In re

Pers. Restraint of Moi, 184 Wn.2d 575, 579, 360 P.3d 811 (2015) (petitioner satisfies his

burden to demonstrate actual and substantial prejudice if he demonstrates a double

jeopardy violation); In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106

(2007).

A personal restraint petition filed more than one year after the judgment and

sentence becomes final is barred as untimely under RCW 10.73.090(1) unless the

judgment and sentence is invalid on its face, the trial court lacked jurisdiction, or the

petition is based solely on one or more of the exceptions set forth in RCW 10.73.100(1)-

(6). Mr. Hines claims his petition is timely pursuant to RCW 10.73.100(3), under which

double jeopardy claims are exempt from RCW 10.73.090’s one-year time bar. The

timeliness question is a threshold inquiry: this court does not have to decide whether an

entire claim is meritorious to decide whether it fits within an exception to the time bar.

See In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 99-108, 351 P.3d 138

(2015) (examining whether two petitioners’ PRP claims fit within the RCW 10.73.100

exception to the one-year time bar, for both the petitioner whose claim did survive and

also the petitioner whose claim did not survive). Since Mr. Hines’s PRP is based solely

on a double jeopardy claim, it clearly fits within RCW 10.73.100(3)’s exception to the

one-year time bar, and this court must consider the merits of his argument. See, e.g., In

re Pers. Restraint of Schorr, 191 Wn.2d 315, 320, 422 P.3d 451 (2018).

3 No. 37647-8-III In re Pers. Restraint of Hines

The next question this court must address is whether the PRP has merit. The

double jeopardy clause of the United States Constitution provides that no person shall “be

subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.

amend. 5. Similarly, the Washington State Constitution provides that “[n]o person shall

be . . . twice put in jeopardy for the same offense.” Const. art. I, § 9. Washington’s

clause provides the same protection as the federal clause. In re Pers. Restraint of Davis,

142 Wn.2d 165, 171, 12 P.3d 603 (2000).

The double jeopardy provision of both the state and federal constitutions prohibits

multiple convictions under the same statute if the defendant has committed only “one unit

of the crime.” State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002). Accordingly,

when a defendant is convicted of multiple violations of the same statute, the double

jeopardy question focuses on “‘what unit of prosecution’” the legislature intended as the

punishable act under the statute. Davis, 142 Wn.2d at 172 (quoting State v. Tili, 139

Wn.2d 107, 113, 985 P.2d 365 (1999)). This question is resolved by examining the

relevant statute in order to ascertain what the legislature intended. Davis, 142 Wn.2d at

172.

In State v. Durrett, 150 Wn. App. 402, 410-11, 208 P.3d 1174 (2009), Division

One of this court held that the “requirement” to register as a sex offender is an ongoing

course of conduct that may not be divided into separate time periods to support separate

charges. In that case, the defendant was a sex offender who was required to report

4 No. 37647-8-III In re Pers. Restraint of Hines

weekly pursuant to former RCW 9A.44.130(6)(b) (2006). Id. at 405-06. He failed to

report for two weeks in a row, reported in the next two weeks, and then failed to report

again until he was arrested seven weeks later. The State charged the defendant with two

counts of failure to register based on the two separate periods of noncompliance, and he

was found guilty of both charges. Id. Division One of the Court of Appeals held that the

defendant’s convictions for two counts of failure to register as a sex offender violated

double jeopardy, concluding that the punishable offense, failure to comply with an

ongoing duty to report, was a single course of conduct. The court held that the period of

the defendant’s failure to report ran from the date of his first failure to report until his

arrest, rejecting the State’s argument that the fact that the defendant reported for two

weeks in the middle of that period of noncompliance subjected the defendant to two

convictions.

Division Two of the Court of Appeals subsequently applied the same reasoning in

State v. Green, 156 Wn. App. 96, 99-101, 230 P.3d 654 (2010). The defendant in that

case was a sex offender who was required to register every 90 days pursuant to RCW

9A.44.130. Id. at 98. He registered as required in April 2007 but failed to report again

for over a year. Id. The State charged the defendant with failing to register, stating the

violation date as July 2007. After the trial court found the defendant not guilty, the State

again charged the defendant with failure to register, stating the violation date as October

2007. The court dismissed the second charge on double jeopardy grounds. On appeal,

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Division Two of the Court of Appeals relied on Durrett to conclude that the duty to

register every 90 days pursuant to RCW 9A.44.130 “create[s] an ongoing course of

conduct that cannot support separate charges.” Id. at 101.

In this case, the State agrees that under Durrett,1 failure to register as a sex

offender is an “ongoing” offense that must be considered a “course of conduct.” Thus,

multiple convictions for the offense of failure to register are barred. As charged here, the

period of Mr. Hines’s failure to report ran from the date of his first failure to report, on or

about August 1, 2008, until his arrest. Accordingly, the second count of failure to

register that was purportedly based on the period of noncompliance from November 25,

2008, until December 13, 2008, violated double jeopardy.

Because Mr. Hines has demonstrated that one of his convictions violates double

jeopardy, he has demonstrated that he is entitled to relief. In re Pers. Restraint of Moi,

184 Wn.2d 575, 579, 360 P.3d 811 (2015); In re Pers. Restraint of Borrero, 161 Wn.2d

532, 536, 167 P.3d 1106 (2007). The applicable remedy is to vacate the second count of

failure to register as a sex offender and remand for resentencing. In re Pers. Restraint of

1 The Durrett opinion was filed on June 1, 2009, several months after Mr. Hines was found guilty and sentenced. The State does not challenge the applicability of Durrett to Mr. Hines, apparently conceding that Durrett applies retroactively. See, e.g., In re Pers. Restraint of Farney, 91 Wn.2d 72, 75-76, 583 P.2d 1210 (1978) (noting that when a positive constitutional right, such as the prohibition against double jeopardy, is violated, the controlling decision is applied retroactively).

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Francis, 170 Wn.2d 517, 532, 242 P.3d 866 (2010); see also In re Pers. Restraint of

White, 1 Wn. App. 2d 788, 798, 407 P.3d 1173 (2017).

Vacate and remand.

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.

_________________________________ Staab, J.

WE CONCUR:

_________________________________ Fearing, J.

_________________________________ Pennell, C.J.