PRP Of Darcy Dean Racus

Opinion

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April 18, 2023

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Personal Restraint of: No. 54868-2-II

DARCY DEAN RACUS

PUBLISHED OPINION

CRUSER, A.C.J. – In this personal restraint petition (PRP), Darcy Dean Racus challenges

his 2016 jury trial convictions for attempted first degree rape of a child and communication with

a minor for immoral purposes. Less than a year after his direct appeal mandated, Racus filed a

PRP. Racus subsequently amended his PRP by filing a supplemental claim asserting that the trial

court erred when it refused to instruct the jury on the entrapment defense, relying on State v.

Arbogast, 199 Wn.2d 356, 506 P.3d 1238 (2022). He further argues that the entrapment instruction

claim is not time barred because Arbogast is a significant, material, retroactive change in the law

under RCW 10.73.100(6), excepting it from the limitation in RCW 10.73.090(1).

We hold that Arbogast is not a change in the law because it merely clarified existing law.

Accordingly, we hold that the entrapment instruction claim is time barred. And because this claim

is time barred, we dismiss this petition as mixed without addressing any of the other claims. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 54868-2-II

FACTS

I. BACKGROUND

Racus was arrested in an undercover sting operation commonly referred to as “Net Nanny

II.” 5 Verbatim Report of Proceedings (VRP) at 761. Racus had responded to an online Craigslist

ad that was designed to appear to be seeking someone to participate in sexual encounters with

children. The State charged him with attempted first degree rape of a child, commercial sex abuse

of a minor, and communication with a minor for immoral purposes.

At trial, Racus requested that the trial court instruct the jury on the entrapment defense.

The trial court denied his request, stating that it did not “think this case, based upon the evidence

presented, rises to the level of an entrapment defense, so I would not be inclined to give the

entrapment instruction.1 7 VRP at 1101.

The jury found Racus guilty of attempted first degree rape of a child and communicating

with a minor for immoral purposes.2

II. APPEAL AND PETITION FOR REVIEW

Racus appealed. This court affirmed the convictions. State v. Racus, 7 Wn. App. 2d 287,

303, 433 P.3d 830 (2019).

In his appeal, Racus argued, in part, that the trial court erred when it denied his request for

an entrapment jury instruction. State v. Racus, No. 49755-7-II, slip op. at 18 (Wash. Ct. App. Jan.

23, 2019) (unpublished portion), https://www.courts.wa.gov/opinions/pdf/497557.pdf. In the

unpublished portion of our decision, we held that the trial court did not err “[b]ecause Racus failed

1 The trial court did not state what burden of production it was applying. 2 The trial court dismissed the commercial sexual abuse of a minor charge for insufficient evidence.

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No. 54868-2-II

to show by a preponderance of the evidence that he was entitled to a jury instruction on

entrapment.” Id. at 20.

In reaching this conclusion, we stated,

The quantum of evidence required for an instruction to be given as an affirmative defense is sufficient evidence “to permit a reasonable juror to conclude that the defendant has established the defense of entrapment by a preponderance of the evidence.”

Id. at 19 (quoting State v. Trujillo, 75 Wn. App. 913, 917, 883 P.2d 329 (1994)).

Racus then petitioned for review in our supreme court. Am. Pet. for Rev., State v. Racus,

No. 96820-9, at 1 (Wash. Mar. 4, 2019). In his amended petition for review, Racus challenged this

court’s rejection of his entrapment instruction argument. Id. at 13. He argued, in part, that we erred

in relying on the preponderance of the evidence standard set out in Trujillo. Id. at 14-15. And he

asked our supreme court to “disavow Trujillo’s reasoning.” Id. at 15. Our supreme court denied

review without commenting on Racus’s arguments. Ord., No. 96820-9 (Wash. June 5, 2019).

Racus’s appeal mandated on June 18, 2019. Mandate, State v. Racus, No. 49755-7-II, at 1

(Wash. Ct. App. June 18, 2019).

III. PERSONAL RESTRAINT PETITION, ARBOGAST DECISIONS, AND SUPPLEMENTAL FILINGS

On May 5, 2020, less than a year after his appeal mandated, Racus filed a PRP in this court.

In December 2020, Division Three of this court rejected Trujillo’s preponderance of the

evidence standard in State v. Arbogast, 15 Wn. App. 851, 871-73, 478 P.3d 115 (2020), aff’d, 199

Wn.2d 356 (2022). Racus filed his first supplement to this PRP on January 27, 2021. In this

supplement, Racus argued that Division Three’s Arbogast decision was a significant, material,

retroactive change in the law and that he was entitled to a new trial because the trial court erred

when it refused to instruct the jury on entrapment.

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No. 54868-2-II

At the State’s request, we stayed the consideration of this matter pending our supreme

court’s review of Division Three’s Arbogast decision. Our supreme court affirmed Division

Three’s Arbogast decision in March 2022. Arbogast, 199 Wn.2d at 361.

After the stay was lifted, Racus filed a second supplemental filing on June 29, 2022. In this

supplemental filing, Racus argued that our supreme court’s Arbogast decision was a significant,

material, retroactive change in the law and that it established that the trial court had erred when it

refused to instruct the jury on the entrapment defense.

ANALYSIS

I. ARBOGAST IS NOT A SIGNIFICANT CHANGE IN THE LAW

Racus argues that our supreme court’s Arbogast decision overrules Trujillo and establishes

that the trial court erred when it refused to instruct the jury on the entrapment defense. He also

argues that Arbogast is a significant, material, retroactive change in the law, so his entrapment

instruction issue is not time barred. The State argues that Arbogast is not a significant change in

the law, so we should not address this claim further. We hold that this claim is time barred because

Racus fails to establish that Arbogast is a significant change in the law.

A. LEGAL PRINCIPLES

RCW 10.73.090(1) bars collateral attacks on a judgment and sentence “filed more than one

year after the judgment becomes final if the judgment and sentence is valid on its face and was

rendered by a court of competent jurisdiction.” Under RCW 10.73.100(6), a petitioner can

overcome the time bar by establishing that (1) there has been a significant change in the law, (2)

the change in the law is material, and (3) the change in the law applies retroactively. State v. Miller,

185 Wn.2d 111, 114, 371 P.3d 528 (2016).

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No. 54868-2-II

The significant change in the law exception applies “ ‘where an intervening opinion has

effectively overturned a prior appellate decision that was originally determinative of a material

issue.’ ” In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 104, 351 P.3d 138 (2015)

(quoting In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000)). “ ‘One test

to determine whether an [intervening case] represents a significant change in the law is whether

the defendant could have argued this issue before publication of the decision.’ ” In re Pers.

Restraint of Lavery, 154 Wn.2d 249, 258-59, 111 P.3d 837 (2005) (alteration in original) (quoting

In re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 264, 36 P.3d 1005 (2001)).

B. SUMMARY OF RELEVANT CASE LAW

In State v. Galisia, Division One of this court held that to be entitled to an entrapment

instruction the defendant had to produce “some evidence” to support the instruction.3 63 Wn. App.

833, 836, 822 P.2d 303 (1992), abrogated in part by Trujillo, 75 Wn. App. at 917. Two years later,

Division One disavowed Galisia in Trujillo, holding that in order to be entitled to an entrapment

instruction “a defendant must present evidence which would be sufficient to permit a reasonable

juror to conclude that the defendant has established the defense of entrapment by a preponderance

of the evidence.” Trujillo, 75 Wn. App. at 917, abrogated by Arbogast, 199 Wn.2d at 371-72.

In 2020, Division Three of this court rejected Trujillo’s preponderance of the evidence

standard in their Arbogast decision. 15 Wn. App. 2d at 871-73. Observing that “Trujillo’s holding

on this heightened standard for instruction has been relied on without examination in over a dozen

3 In Galisia, Division One relied on our supreme court’s opinion in State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983), which stated that in order to obtain an instruction on an affirmative defense, “there need only be some evidence admitted in the case from whatever source” to support the defense.

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No. 54868-2-II

unpublished Court of Appeals decisions” and that Trujillo had never been cited by our supreme

court, Division Three analyzed the issue and determined that the application of the Trujillo

standard violated due process. Id. Our supreme court accepted review of this decision. State v.

Arbogast, 197 Wn.2d 1007, 484 P.3d 1262 (2021).

On review, our supreme court addressed “the standard for obtaining an entrapment

instruction.” Arbogast, 199 Wn.2d at 365. The court stated that although the burden of proof for

entrapment was well settled law, “other cases have created confusion about the burden of

production, that is, the quantum of evidence necessary to raise the defense and get it before a jury.”

Id. at 366-67.

The court further stated that “[g]enerally, affirmative defense instructions are permitted

upon a prima facie showing of some evidence in support of the defense.” Id. at 368 (emphasis

added). But the court acknowledged that “[a] handful of cases describe the burden differently,” for

instance by stating “that defendants are entitled to an instruction if it is supported by substantial

evidence.” Id. at 369. In light of the differences in language, the court stated, “Simply put, our case

law has used different terms to articulate the burden of production. We take the opportunity to

clarify that regardless of the terms used, the quantum of proof justifying an instruction on a party’s

theory of the case is some evidence supporting the proposition.” Id. at 370 (emphasis added).

After describing Trujillo and Division Three’s Arbogast decision, our supreme court held

that because “Galisia set out the proper burden of production, to the extent that Trujillo

disapproved of Galisia it is incorrect.” Id. at 371-72. By “clarifying” the law, our supreme court

made it clear that the burden of production is, and has always been, “some evidence” and that

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No. 54868-2-II

Trujillo never altered the burden of production because it contravened established supreme court

law.

C. ENTRAPMENT JURY INSTRUCTION ISSUE IS UNTIMELY

Racus’s judgment and sentence became final when his direct appeal mandated on June 18,

2019. RCW 10.73.090(3)(b). The supplemental pleading raising the entrapment instruction claim

was filed in 2021, well over a year after Racus’s judgment and sentence became final. Thus, before

this court can address the entrapment instruction claim, it must determine whether this claim is

time barred.

Racus argues that our supreme court’s Arbogast decision is a significant, material,

retroactive change in the law under RCW 10.73.100(6) because it overrules Trujillo. But this

argument fails because our supreme court in Arbogast did not change the law, it merely clarified

the existing law and, in so doing, acknowledged that Trujillo had misinterpreted, but not changed,

that law.4

4 We have found no case in which the reversal of a court of appeals decision that contravenes existing supreme court law was held to be a significant change in the law for purposes of RCW 10.73.100(6). Moreover, in light of In re Personal Restraint of Arnold, 190 Wn.2d 136, 148-49, 410 P.3d 1133 (2018), which holds that “horizontal stare decisis” does not exist among the divisions of the court of appeals, it would seem inconsistent to conclude that the reversal of one division’s case would be a change in the law in another division that was never bound by that case.

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No. 54868-2-II

Because Arbogast clarified the law and corrected an erroneous interpretation of existing

law but did not change the law, Racus fails to show that the significant, material, retroactive change

in the law exception to the time bar applies.5 Accordingly, we will not consider this claim.

II. MIXED PETITION RULE APPLIES

The State argues that this petition must be dismissed because, if we hold that the entrapment

instruction issue is time barred, the petition is mixed. Racus does not respond to this argument.

We agree with the State and dismiss this petition as mixed.

When one or more grounds for relief fall within the exceptions in RCW 10.73.100 and one

or more do not, then a petition must be dismissed as a mixed petition without any further

consideration.6 In re Pers. Restraint of Williams, 200 Wn.2d 622, 632, 520 P.3d 933 (2022). Here,

the petition contains a time-barred claim and must be dismissed as mixed under RCW 10.73.100.

CONCLUSION

We hold that (1) Arbogast is not a significant, material, retroactive change in the law, so

Racus’s supplemental claim is time barred; and (2) the petition is mixed. Accordingly, we dismiss

this PRP without reaching any of the other claims.

5 In his supplemental reply, Racus argues that judicial estoppel prohibits the State from arguing that Trujillo was not controlling law because the State argued on appeal that Trujillo was controlling law. We decline to address this argument because it was raised for the first time in a responsive brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 6 This rule applies solely to claims governed by RCW 10.73.100. A claim of error arising under RCW 10.73.090(1)—to wit, that the judgment and sentence contains a facial invalidity or that the judgement and sentence was not rendered by a court of competent jurisdiction—does not trigger the mixed petition rule. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000); see also Williams, 200 Wn.2d at 632. Racus does not assert that any of the claims in his petition implicate facial invalidity or that his judgment and sentence was not entered by a court of competent jurisdiction.

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No. 54868-2-II

CRUSER, A.C.J. We concur:

MAXA, J.

VELJACIC, J.