State of Washington v. Kelly Jay Balles

556 P.3d 698

• Court: Court of Appeals of Washington
• Decided: September 27, 2024
• Docket: 39733-5
• Status: Published

Opinion

FILED SEPTEMBER 27, 2024 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

STATE OF WASHINGTON, ) ) No. 39733-5-III Appellant, ) ) v. ) ) KELLY JAY BALLES, ) PUBLISHED OPINION ) Respondent. )

COONEY, J. — Kelly Balles was convicted of unlawful possession of a controlled

substance and sentenced to community custody under the supervision of the Department

of Corrections (DOC). While on community custody, Mr. Balles failed to report to his

community corrections officer (CCO), resulting in the issuance of a DOC secretary’s

warrant for his arrest. Thereafter, in State v. Blake, the Supreme Court declared

unconstitutional the statute under which he was convicted. 197 Wn.2d 170, 481 P.3d 521

(2021). After the court issued its opinion, but before the mandate issued in Blake, the

DOC served the secretary’s warrant on Mr. Balles. While serving the secretary’s

warrant, Mr. Balles was found to be in possession of a large quantity of controlled

substances and a stolen firearm. The State charged Mr. Balles with two counts of

possession of a controlled substance with intent to deliver, first degree unlawful

possession of a firearm, and possession of a stolen firearm. No. 39733-5-III State v. Balles

Mr. Balles moved to suppress the evidence seized during his arrest, arguing that

Blake voided his unlawful possession of a controlled substance conviction, thereby

invalidating the secretary’s warrant. The trial court agreed, suppressed the evidence, and

dismissed the charges.

The State appeals the trial court’s orders that suppressed evidence and dismissed

the charges, as well as its finding of fact 10.

We hold that Mr. Balles’ conviction for unlawful possession of a controlled

substance was not “void on February 25, 2021[,] per the Blake decision,” Clerk’s Papers

(CP) at 86; that the secretary’s warrant was valid when it was served; that the search

pursuant to the secretary’s warrant was lawful; and that substantial evidence did not

support the trial court’s finding of fact 10. We reverse the trial court’s orders and remand

for further proceedings.

BACKGROUND

In 2014, Mr. Balles was found guilty of one count of unlawful possession of a

controlled substance under former RCW 69.50.4013(1) (2013) and was sentenced to,

among other conditions, a term of community custody. Mr. Balles’ community custody

conditions included that he report to his assigned CCO, not possess ammunition or

firearms, and not possess or use any controlled substances.

2 No. 39733-5-III State v. Balles

While serving the community custody portion of his sentence, Mr. Balles failed to

report to his CCO as directed, resulting in a secretary’s warrant being issued for his arrest

on January 28, 2020. The secretary’s warrant lacked any reference to Mr. Balles’ crime

of conviction or to RCW 69.50.4013.

On February 25, 2021, the Washington State Supreme Court issued its decision

in Blake, declaring RCW 69.50.4013(1) unconstitutional. Just over a month later, on

March 31, DOC officers, members of the Pacific Northwest Violent Offender’s Task

Force, and the Yakima County Sheriff’s Office visited Mr. Balles’ last known address in

Yakima County in an attempt to serve the secretary’s warrant. Officers found Mr. Balles

laying on a bed in a locked bedroom within the residence. After Mr. Balles was taken

into custody, Officer Joel Panattoni saw “a rock of powdery crystalline substance” on a

glass plate at the foot of the bed, which he suspected to be methamphetamine. CP at 53.

DOC officers also found a full box of ammunition under the mattress and a bag

containing four to six bags of suspected methamphetamine under the bed. Based on what

the officers had discovered, they discontinued the search pending application for a

judicial search warrant.

Once Detective Hull1 was granted a search warrant by a Yakima County Superior

Court judge, the search resumed. The resulting search yielded a stolen firearm, dominion

1 Detective Hull’s full name is not contained in the record.

3 No. 39733-5-III State v. Balles

and control items associated with Mr. Balles, a “copious amount[ ] of unused packaging

materials,” CP at 3; more ammunition; 10.7 pounds of marijuana; a functional digital

scale; and over $20,000 in currency.

On April 9, 2021, the State charged Mr. Balles with two counts of possession of a

controled substance with intent to deliver, first degree unlawful possession of a firearm,

and possession of a stolen firearm.

Two months after it issued its original decision, on April 20, 2021, the Supreme

Court entered an order amending its opinion in Blake. The mandate was filed the

following day.

On August 4, 2021, Mr. Balles’ 2014 unlawful possession of a controlled

substance conviction, the conviction for which he was serving community custody, was

vacated and the charge dismissed pursuant to Blake. Thereafter, Mr. Balles filed a

motion to suppress the evidence seized during the service of the secretary’s warrant,

arguing that effective February 25, 2021, Blake rendered his unlawful possession of a

controlled substance conviction void and the secretary’s warrant invalid. The trial court

agreed, explaining in part:

[T]his Court is finding today in understanding what Blake stands for and what our Washington State Supreme Court intended by it, I am making the finding that the Washington State Supreme Court intended that as soon as the Blake decision came out that no one was⎯no convictions were valid or constitutional.

4 No. 39733-5-III State v. Balles

There wasn’t a hearing that needed to be done. There wasn’t an analysis that needed to be done. They just said all possession of controlled substance cases from before and here on after are just constitutionally invalid. And so, therefore, nobody could be held under any type of authority from any conviction on those because they were never properly convicted, they were never constitutionally convicted. And that’s what Blake stands for. I don’t know if our state supreme court ever⎯I think that’s exactly what they intended. Whether we personally agree or not, I think that’s exactly what they intended from the Blake case itself. .... And I think that’s what the state supreme court intended with Blake. Blake came out. The administrative warrant then was no longer valid because Mr. Balles should no longer have been on community custody. And, therefore, the CCO had no authority to search Mr. Balles in his residence at⎯or at that residence at the time. And for those reasons I’m finding that any substances or property or evidence that was seized as part of that arrest will be suppressed from the facts in this case.

Rep. of Proc. (RP) at 46-48. The trial court then entered an order dismissing the charges

against Mr. Balles. The trial court’s oral ruling was incorporated into its September 6,

2023, findings of fact and conclusions of law.

The State timely appeals, arguing the trial court’s finding of fact 10 is not

supported by substantial evidence and that the trial court erred in suppressing evidence

and dismissing the charges.

ANALYSIS

This appeal calls on us to decide the validity of a secretary’s warrant, which was

issued pre-Blake yet served post-Blake, on an offender subject to supervision by the

5 No. 39733-5-III State v. Balles

DOC, based on a conviction for unlawful possession of a controlled substance. The State

further assigns error to the trial court’s finding of fact 10.

We hold that the trial court’s finding of fact 10 is not supported by substantial

evidence in the record and that the court erred when it concluded that: Mr. Balles’

conviction was void on February 25, 2021, the secretary’s warrant was not valid, and all

evidence located during the March 31 search was obtained illegally. We reverse the trial

court’s orders and remand for the court to consider Mr. Balles’ alternative argument that

the DOC’s search exceeded the scope of the warrant.

FINDING OF FACT 10

The State argues the trial court’s chronology of events, related to finding of fact

10, is unsupported by substantial evidence in the record. We agree.

We review a trial court’s findings of fact pertaining to suppression of evidence

under the substantial evidence standard. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d

1076 (2006). Substantial evidence is “a sufficient quantity of evidence . . . to persuade a

fair-minded, rational person of the truth of the finding.” State v. Hill, 123 Wn.2d 641,

644, 870 P.2d 313 (1994). Disputed evidence will be upheld “when any reasonable view

substantiates [the court’s] findings, even though there may be other reasonable

interpretations.” Ebling v. Gove’s Cove, Inc., 34 Wn. App. 495, 501, 663 P.2d 132

6 No. 39733-5-III State v. Balles

(1983). Unchallenged findings of fact become verities on appeal. State v. O’Neill, 148

Wn.2d 564, 571, 62 P.3d 489 (2003).

Among other findings, the trial court found:

9. Officers arrested Mr. Balles and brought him upstairs and placed him in a patrol vehicle, then requested permission to search the room where Mr. Balles was located. 10. Officers then thoroughly searched the room, including opening drawers of a small dresser and unzipping a duffle bag found under the bed. They located a firearm and other contraband items, including likely controlled substances. 11. Based on the information found in the search, the officers then contacted the Yakima County Superior Court to obtain a search warrant, which was approved by the Honorable David Elofson.

CP at 86 (emphasis added). The State contends that the records lacks support for the trial

court’s finding that the “drawers of the small dresser” were opened prior to a judicial

search warrant being authorized.

The only evidence related to the search of a dresser is in a report authored by

Detective Sergeant R. Tucker.2 After reporting that Detective Hull had been granted a

judicial search warrant for the residence, Detective Sergeant Tucker wrote that he

photographed evidence located during the search. “[He] then went back downstairs and

photographed further items” and “took up an entire drawer from a dresser that contained

2 Detective Sergeant R. Tucker’s full name is not provided in the record.

7 No. 39733-5-III State v. Balles

US currency, a large amount of marijuana and dominion for Balles. The dresser was the

same one that had contained the firearms.” CP at 61-62.

On this record, the trial court’s findings that officers searched a small dresser prior

to obtaining a judicial warrant was not based on disputed evidence and is not supported

by the record. The only evidence in the record concerning the dresser reveals it was

searched after the judicial search warrant was granted, not during the initial search.

Conseqeuntly, finding of fact 10 is unsupported by the record.

SUPPRESSION OF EVIDENCE AND DISMISSAL OF CHARGES

The State argues the trial court erred when it concluded that Mr. Balles’ unlawful

possession of a controlled substance conviction was void upon the Supreme Court’s

issuance of its decision in Blake and when it granted Mr. Balles’ motion to suppress and

dismiss. We agree.

We review de novo conclusions of law pertaining to a trial court’s suppression of

evidence. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). Under the Fourth

Amendment to the United States Constitution, individuals have the right to be secure in

their houses against unreasonable searches and seizures. Article I, section 7 of the

Washington Constitution provides: “No person shall be disturbed in his private affairs, or

his home invaded, without authority of law.” “[W]arrantless searches are unreasonable

per se.” State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). However, a

8 No. 39733-5-III State v. Balles

search warrant generally constitutes the requisite “‘authority of law.’” State v. Morse,

156 Wn.2d 1, 7, 123 P.3d 832 (2005) (quoting State v. Ladson, 138 Wn.2d 343, 350, 979

P.2d 833 (1999)).

This authority of law has been extended to the DOC. See RCW 9.94A.631(1).

DOC supervision “primarily furthers the punitive purposes of deterrence and protection.”

State v. Ross, 129 Wn.2d 279, 286, 916 P.2d 405 (1996). Offenders subject to

supervision through the DOC do not enjoy the same constitutional privacy protections as

other citizens. State v. Olsen, 189 Wn.2d 118, 124, 399 P.3d 1141 (2017). The DOC not

only manages offenders in total conefinement (prison), its supervision of offenders

extends to those serving time on community custody. RCW 9.94A.704(1). The

legislature “has explicitly and broadly given the [DOC] the power and responsibility to

supervise offenders while on various types of community custody.” In re Pers. Restraint

of Dalluge, 162 Wn.2d 814, 818, 177 P.3d 675 (2008). While the nature of the restraint

may be different, “‘[a] defendant is no less restricted when he is under community

placement, particularly community custody, as when incarcerated.’” Ross, 129 Wn.2d at

287 (quoting In re Pers. Restraint of Caudle, 71 Wn. App. 679, 683, 863 P.2d 570

(1993)).

As part of its duty to supervise offenders on community custody, the DOC’s

secretary may issue an arrest warrant based on “reasonable cause” to believe that an

9 No. 39733-5-III State v. Balles

offender has violated the terms of his community custody. RCW 9.95.220(2). Further,

“[i]f there is reasonable cause to believe that an offender has violated a condition or

requirement of the sentence, a community corrections officer may require an offender to

submit to a search and seizure of the offender’s person, residence . . . or other personal

property.” RCW 9.94A.631(1).

An offender under the DOC’s supervision “must submit to confinement until

discharged by due process of law.” See State v. Paniagua, 22 Wn. App. 2d 350, 358, 511

P.3d 113, rev. denied, 200 Wn.2d 1018, 520 P.3d 970 (2022). Said another way, the

DOC is obligated to carry out a final judgment and sentence until a defendant obtains

judicial relief. Dress v. Dep’t of Corr., 168 Wn. App. 319, 328, 279 P.3d 875 (2012).

The DOC has no authority to “contravene or decrease court-imposed conditions.”

RCW 9.94A.704(6). It is also not authorized to correct or ignore a final judgment and

sentence, even one that may be erroneous. State v. Broadaway, 133 Wn.2d 118, 135, 942

P.2d 363 (1997); In re Pers. Restraint of West, 154 Wn.2d 204, 209-10, 110 P.3d 1122

(2005); In re Pers. Restraint of Davis, 67 Wn. App. 1, 9, 834 P.2d 92 (1992). Rather, an

offender subject to community custody may appeal an erroneous sentence. Broadaway,

133 Wn.2d at 135. Alternatively, the DOC may challenge an erroneous sentence under

RCW 9.94A.585(7). See Davis, 67 Wn. App. at 8-9.

10 No. 39733-5-III State v. Balles

Here, after Mr. Balles failed to report to his CCO, and before Blake was decided, a

secretary’s warrant was issued for his arrest under RCW 9.94A.716. The warrant was

based on reasonable cause to believe Mr. Balles had violated the terms of his community

custody. It is undisputed the DOC had the authority to issue the secretary’s warrant and

that the warrant was valid at the time of issuance. Consequently, we must next address

whether the warrant remained valid and whether the DOC possessed the authority to

execute the warrant following the Supreme Court’s decision in Blake. To answer this, we

must examine Blake and its effect on Mr. Balles’ unlawful possession of a controlled

substance conviction.

As previously stated, the Supreme Court rendered its decision in Blake on

February 25, 2021. Blake held that a portion of Washington’s unlawful possession of a

controlled substance statute, RCW 69.50.4013(1), “violates the due process clauses of the

state and federal constitutions and is void.” 197 Wn.2d at 195. Following Blake,

thousands of convictions had to be vacated and resentencing was required in many cases.

We have previously rejected the notion that unlawful possession of a controlled

substance was a nonexistent crime pre-Blake. State v. Olsen, 26 Wn. App. 2d 722, 727,

530 P.3d 249, rev. granted, 26 Wn.3d 1006, 539 P.3d 1 (2023). “[A] nonexistent crime is

conduct which, as charged, does not violate any criminal statute that existed at the time of

the conviction.” Id. at 727-28. We explained in Olsen that “[u]nlawful possession of a

11 No. 39733-5-III State v. Balles

controlled substance . . . was a valid crime that was later invalidated.” Id. at 728

(emphasis added).

A defendant convicted of a crime later deemed unconstitutional and invalidated on

due process grounds is entitled to have their conviction vacated. State v. Carnahan, 130

Wn. App. 159, 164, 122 P.3d 187 (2005). But a conviction under RCW 69.50.4013(1) is

not automatically vacated or invalidated. See State v. LaBounty, 17 Wn. App. 2d 576,

581, 487 P.3d 221 (2021). Rather, it has long been understood that the subject of a court

order must comply with the order until relieved of the obligation to do so. Cronin v.

Cent. Valley Sch. Dist., 12 Wn. App. 2d 123, 131, 456 P.3d 857 (2020) (citing Levinson

v. Vanderveer, 169 Wash. 254, 256, 13 P.2d 448 (1932)). In the civil context, “[a] final

judgment, . . . based upon an erroneous view as to the constitutionality of a statute, is

valid and binding until regularly reversed or set aside.” State v. Sheets, 48 Wn.2d 65, 67,

290 P.2d 974 (1955). The same is true in the criminal context. An offender held in

custody “under process issued on the final judgment . . . is not entitled to his discharge . .

. unless such process or judgment be void.” In re Habeas Corpus of Newcomb, 56 Wash.

395, 403, 105 P. 1042 (1909). When faced with a potentially invalid court order, the

solution is not to willfully violate it. Instead, the defendant must challenge his original

judgment and sentence in a timely manner and comply with the terms of the order until it

is otherwise overturned.

12 No. 39733-5-III State v. Balles

In response to the challenges brought by Blake, the legislature, in enacting

RCW 9.94A.728(2), shared our notion that a Blake-affected judgment and sentence

could be altered only by a court order. RCW 9.94A.728(2) provides:

Notwithstanding any other provision of this section, an incarcerated individual entitled to vacation of a conviction or the recalculation of his or her offender score pursuant to State v. Blake, No. 96873-0 (Feb. 25, 2021), may be released from confinement pursuant to a court order if the incarcerated individual has already served a period of confinement that exceeds his or her new standard range. This provision does not create an independent right to release from confinement prior to resentencing.

(Emphasis added.)

In this case, Mr. Balles remained on community custody and subject to the terms

of his judgment and sentence until a court issued an order vacating his 2014 conviction

for unlawful possession of a controlled substance. Mr. Balles’ conviction was not

vacated until August 4, 2021. Thus, when the DOC executed the secretary’s warrant four

months earlier, on March 31, Mr. Balles was still subject to the terms of his 2014

judgment and sentence. The DOC’s duty to supervise Mr. Balles under the terms of his

judgment and sentence was not effected until Mr. Balles’ conviction was vacated. In

other words, while Blake voided Mr. Balles’ conviction, he was still subject to the terms

of his judgment and sentence until his conviction was vacated. The trial court erred when

it concluded the effect of the Blake decision was instant on Mr. Balles’ judgment and

sentence.

13 No. 39733-5-III State v. Balles

Ifwe were to adopt the trial court's conclusion that Mr. Balles' conviction was

void when the Blake decision was released, it would place the DOC and its field officers

in the untenable position of reviewing every appellate decision, interpreting the decision,

and then imposing its interpretation on those it supervises, all prior to a mandate being

filed. Meanwhile, the appellate courts would retain the ability to amend the opinion until

the filing of a mandate. Indeed, the Blake decision was amended one day before the

mandate was filed.

CONCLUSION

We reverse the trial court's finding of fact 10 and the orders that suppressed

evidence and dismissed the charges. We remand for further proceedings, including the

trial court's consideration of Mr. Balles' alternative claim for relief.

Cooney, J.

I CONCUR:

Staab, A.6.

f

14 No. 39733-5-III

FEARING, J. (dissent) — This court again measures the extent of the reach of the

Washington Supreme Court’s 2021 decision, State v. Blake, 197 Wn.2d 170, 481 P.3d

581 (2021). On January 28, 2020, one year before the release of State v. Blake, the

Washington Department of Corrections (DOC) issued a warrant for the arrest of

Kelly Jay Balles, then under community custody supervision for a drug possession

conviction. Balles had missed a meeting with his community corrections officer. On

February 25, 2021, the Supreme Court issued State v. Blake, which held unconstitutional

RCW 69.50.4013, the statute creating the crime of possession. DOC had not yet served

the warrant on Balles. On March 31, 2021, DOC served the warrant on Balles at his

residence, where the officers found not only Balles but a cornucopia of pharmacopeia and

drug dealing gizmos.

This appeal asks whether the Blake decision, released on February 25, invalidated,

as of March 31, the secretary’s warrant to arrest Kelly Jay Balles. Because stare decisis

demanded that government officials immediately obey the Blake decision and because,

based on the rule announced in State v. Blake, the State had imposed Kelly Jay Balles’

community custody conditions on an unlawful judgment and sentence, I answer in the

affirmative. I would affirm the superior court’s grant of Balles’ motion to suppress the

evidence discovered during the March 31 execution of the DOC administrative warrant. No. 39733-5-III State v. Balles (Dissent)

FACTS

The facts intertwine Kelly Jay Balles’ excursion inside the Washington State

criminal justice system with the course of State v. Blake inside the Washington Supreme

Court. In 2014, Kelly Jay Balles was found guilty of one count of possession of a

controlled substance, in violation of RCW 69.50.4013, under Yakima County cause

number 14-1-00135-1. His sentence incorporated a term of community custody. The

conditions of community custody included periodically reporting to his assigned

community corrections officer, notifying the DOC of any change of address, possessing

no ammunition or firearms, and possessing no controlled substances.

On an unidentified day years later, Kelly Jay Balles missed a meeting with his

DOC community corrections officer. On January 28, 2020, DOC issued a secretary’s

warrant for the arrest and detention of Balles as a result of his averting the meeting. The

warrant did not direct law enforcement officers or community custody officers to search

the residence or surroundings of Balles.

On February 25, 2021, the Washington Supreme Court issued its decision in

State v. Blake, 197 Wn.2d 170 (2021). The decision held unconstitutional, under the state

and federal due process clauses, RCW 69.50.4013(1). Kelly Jay Balles had been under

community custody for violating this unconstitutional statute. As of February 25,

DOC had not executed the secretary’s warrant to arrest Balles.

2 No. 39733-5-III State v. Balles (Dissent)

On March 17, 2021, the State of Washington, in State v. Blake, filed a motion for

reconsideration with the Supreme Court. The State asserted that some of the justices on

the court failed to fathom the ramifications of the decision proclaiming the drug

possession statute unconstitutional. The State complained that the high court grounded

its ruling on an argument forwarded by an amici, not by Shannon Blake. Thus, according

to the State, the Supreme Court violated its own principle to only address contentions

raised by the parties. In turn, the State murmured that it lacked a full opportunity to brief

the contention adopted by the court. Finally, as part of its motion for reconsideration, the

State asked the court to declare its ruling to apply only prospectively.

Meanwhile, back in Wapato, on March 31, 2021, DOC officers and members of

the Pacific Northwest Violent Offender Task Force went to Kelly Balles’ last known

address to execute the administrative arrest warrant. Three women at the Wapato

residence confirmed Balles lived there, but the women denied the officers permission to

enter. DOC officers obtained approval from a DOC supervisor to enter the residence

without consent.

Upon entering the Wapato dwelling, law enforcement officers encountered a room

locked with a padlock. Officers severed the lock, entered the room, and discovered Kelly

Jay Balles inside. The officers arrested Balles. DOC Officer Jose Gonzalez saw in plain

view a plate holding a rock of a powdery crystalline substance that Gonzalez identified as

3 No. 39733-5-III State v. Balles (Dissent)

methamphetamine. Officers then scoured the room and located a box of ammunition

under the mattress. Sergeant Tucker found a large blue and black bag, which he opened.

Inside Tucker found a substance he suspected to be methamphetamine.

Law enforcement officers paused the search in order to procure a judicial search

warrant. A Yakima County Superior Court judge approved the warrant. When resuming

their search, officers found a firearm, ammunition, papers showing Balles to reside in the

room, 10.7 pounds of marijuana, a functional digital scale, packaging materials, and over

twenty thousand dollars in cash.

We revisit Olympia. On April 20, 2021, the Washington Supreme Court entered

an order amending its opinion. The two amendments did not change the court’s ruling

invalidating RCW 69.50.4013(1). The amendments did not address any of the arguments

posed in the motion for reconsideration. The court ignored the State’s request to apply

the court’s decision only prospectively. On the same day, the court also entered an order

denying reconsideration. On April 21, 2021, the Supreme Court issued its mandate to the

superior court to conduct further proceedings consistent with its February 25 opinion.

PROCEDURE

On April 9, 2021, the State of Washington charged Kelly Jay Balles with

possession of methamphetamine with an intent to deliver, possession of marijuana with

an intent to deliver, unlawful possession of a firearm, and possession of a stolen firearm.

4 No. 39733-5-III State v. Balles (Dissent)

On August 4, 2021, in Yakima County cause number 14-1-00135-1, the superior

court vacated Balles’ 2014 drug possession conviction. DOC had issued its arrest

warrant under the community custody provisions of the 2014 judgment and sentence.

On April 14, 2023, Kelly Jay Balles filed a motion to suppress the evidence

obtained during the March 31, 2021 search of his houseroom. Balles argued that the

Blake decision voided his 2014 conviction for possession of a controlled substance and,

in turn, abrogated the DOC secretary’s warrant. According to Balles, he was not lawfully

under community custody on March 31. He further argued that the search lacked a nexus

to his community custody conditions.

On May 4, 2023, the superior court entertained Kelly Jay Balles’ motion to

suppress, agreed with Balles’ first argument, and granted the motion. The superior court

suppressed all evidence found in Balles’ room on March 31. The court did not address

whether the officers’ search lacked a nexus to Balles’ community custody. The State

then dismissed the three charges against Balles without prejudice because the State could

not prove the charges without presentation of the suppressed evidence.

LAW AND ANALYSIS

Since issuance of State v. Blake, Washington courts have gradually, but steadily,

untangled the complications attended to a drug possession conviction inflicted on the

basis of RCW 69.50.4013, the statute declared unconstitutional. We are the first

5 No. 39733-5-III State v. Balles (Dissent)

appellate court to answer whether the Blake decision invalidated community custody

conditions imposed in a judgment and sentence and whether the decision abrogated an

administrative arrest warrant for violating such conditions even before a court vacates the

possession conviction. I deem the key to this appeal being the Blake decision’s issuance

before the arrest and search of Kelly Jay Balles’ premises.

The State appeals the superior court’s grant of Kelly Jay Balles’ suppression

motion. The State contends Balles remained under an obligation to obey the 2014

judgment and sentence for possession of a controlled substance, which sentence imposed

community custody, until a judicial determination declared the conviction annulled.

According to the State, the layers of heavy prison doors did not automatically open, with

the release of State v. Blake, for those imprisoned for drug possession. The State

maintains that, similarly, Balles’ custody term outside jail walls did not immediately end.

According to the State, Balles should have applied to the superior court to eliminate the

2014 sentence and continue to submit to community supervision until the vacation. As

the argument continues, an April 2021 vacation of the judgment and sentence did not

impact the legality of a search in March. The State relatedly argues that DOC officers

must continue to supervise those whom a court ordered them to superintend until

vacation of the court order.

6 No. 39733-5-III State v. Balles (Dissent)

In response, Kelly Jay Balles maintains that the Blake decision immediately

expunged every conviction in Washington State for possession of a controlled substance

without the intent to deliver. In turn, the decision invalidated a warrant for violation of

community custody conditions when the offender served under supervision as a result of

a drug possession conviction. Thus, beginning on February 25, 2021, Balles no longer

lived under DOC supervision, and DOC lacked any authority to arrest him or search his

premises and property. According to Balles, although the court may formally vacate the

conviction later, the vacation only corrects the record. Balles analogizes to the

hypothetical situation of an offender being convicted of theft on February 26, 2021, the

day after State v. Blake, without the vacation of an earlier drug possession conviction.

Under this scenario, the sentencing court still may not count the prior drug conviction in

the offender score.

To answer the question on appeal, I outline the law on warrants. I dissect the

Supreme Court’s decision in State v. Blake. I review the nature of and ramifications

extending from the Washington Supreme Court’s declaration of a criminal statute as

unconstitutional. I analyze the two handfuls of Washington appellate decisions

addressing, in other settings, complications resulting from State v. Blake. I investigate

the nature of the doctrine of stare decisis and the function of appellate court mandates.

7 No. 39733-5-III State v. Balles (Dissent)

I explore the timing of when a Supreme Court decision binds lower courts and

government actions. Finally, I scrutinize the majority opinion.

The parties’ respective positions sometimes assume that the date of issuance, or

alternatively the date of binding effect, of State v. Blake bears relevance to, if not

controls, the legality of the March 31, 2021 seizure. I question this assumption. I

conclude that, even if the Washington Supreme Court decided State v. Blake yesterday,

the decision would demand the suppression of the evidence garnered in March 2021 as a

result of the community custody sentence and the secretary’s warrant. This conclusion

follows from the retroactive nature of a declaration of a criminal statute as

unconstitutional. Nevertheless, I bolster my dissent by primarily analyzing the validity of

the search and seizure of Kelly Jay Balles’ personal property as if the date of the Blake

decision’s precedential value controls the motion to suppress.

Since this appeal concerns an arrest warrant, I begin with the law of warrants.

Article I, section 7 of the Washington Constitution creates a vigorous privacy right.

State v. Cornwell, 190 Wn.2d 296, 301-02, 412 P.3d 1265 (2018). The section declares:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

CONST. art. I, § 7 (emphasis added). The “authority of law” generally stems from a

warrant. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).

8 No. 39733-5-III State v. Balles (Dissent)

Under RCW 9.94A.631, a community custody officer may search a supervised

individual based on reasonable suspicion of a probation violation, rather than a warrant

supported by probable cause. RCW 9.94A.631(1) declares:

If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Nevertheless, the community custody officer may not search without “an authorizing

probation condition in a valid, court-ordered judgment and sentence.” State v. Cornwell,

190 Wn.2d 296, 302 n.2 (2018) (emphasis added).

The State claims authority of law from the DOC secretary’s warrant of arrest and

from RCW 9.94A.631. Kelly Balles argues that State v. Blake abrogated the warrant

such that law enforcement conducted the March 31, 2021 search without authority of law.

According to Balles, State v. Blake also annulled his 2014 judgment and sentence

containing the community custody conditions.

I first seek clues as to how to answer the pending question from the Supreme

Court decision itself. In State v. Blake, 197 Wn.2d 170 (2021), the court voided

RCW 69.50.4013 based on the due process clause protections that bar state legislatures

9 No. 39733-5-III State v. Balles (Dissent)

from punishing as a serious crime innocent and passive conduct with no criminal intent.

RCW 69.50.4013, at least as applied in previous Supreme Court decisions, required no

mens rea for a conviction for simple controlled substance possession. The majority

concluded its opinion:

Accordingly, RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void. We vacate Blake’s conviction.

State v. Blake, 197 Wn.2d at 195.

Most breakthrough decisions do not analyze the practicalities of their rulings.

High courts traditionally announce a new rule of law in one case and then keep the bench

and bar on edge, waiting for another decision that reveals the retroactivity or

prospectivity of the rule announced. People v. Trice, 75 Cal. Dist. Ct. App. 3d 984, 986,

143 Cal. Rptr. 730 (1977). State v. Blake was no exception to this common law tradition

of law on installment.

In State v. Blake, the Supreme Court did not order its decision to apply

retroactively or prospectively. The court did not state whether all earlier convictions for

possession of a controlled substance became void, and, if so, the date on which the

convictions became void. The Blake decision did not mention whether the penal

ramifications of a controlled substance conviction end only when a court formally vacates

10 No. 39733-5-III State v. Balles (Dissent)

the earlier conviction. The opinion did not address whether community custody ordered

because of a controlled substance possession conviction ended, and, if so, when. The

Supreme Court did not expressly comment that its ruling immediately bound lower courts

or whether stare decisis would achieve command status only at a later date such as the

issuance of the mandate.

Assuming State v. Blake became authoritative straightaway, the lawfulness or

unlawfulness of the seizure of Kelly Jay Balles and his personal property does not depend

on the retroactive application of Blake. Even if the ruling only applied prospectively, the

search of Kelly Jay Balles’ houseroom succeeded the ruling. Regardless, the State of

Washington, the Washington Court of Appeals, and Washington trial courts, based on

more general principles of law, have operated on the assumption that Blake should be

applied retroactively. An unconstitutional statute is and has always been a legal nullity.

State ex rel. Evans v. Bhd. of Friends, 41 Wn.2d 133, 143, 247 P.2d 787 (1952). A new

substantive rule decided on constitutional grounds operates retroactively. Teague v.

Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989); In re Personal Restraint

of Ali, 196 Wn.2d 220, 236, 474 P.3d 507 (2020); State v. Paniagua, 22 Wn. App. 2d

350, 354, 511 P.3d 113 (2022). State v. Blake created such a new substantive rule.

Language from Washington Court of Appeals opinions subsequent to State v.

Blake support Kelly Jay Balles’ position that Blake immediately revoked his community

11 No. 39733-5-III State v. Balles (Dissent)

custody supervision and annulled the secretary’s warrant.

[RCW 69.50.4013,] pursuant to Blake, has always been void under both the state and federal constitutions.

State v. French, 21 Wn. App. 2d 891, 894, 508 P.3d 1036 (2022). An unconstitutional

law is void, and is as no law. State v. Markovich, 19 Wn. App. 2d 157, 172, 492 P.3d

206 (2021). A penalty imposed pursuant to an unconstitutional law is void even if the

prisoner’s sentence became final before the law was held unconstitutional. State v.

Markovich, 19 Wn. App. 2d 157, 172 (2021). A Washington court never held lawful

authority to enter judgment on a conviction for unlawful possession of a controlled

substance. State v. French, 21 Wn. App. 2d 891, 897 (2022).

Next, I review the many appellate decisions, beginning with decisions detrimental

to Balles, analyzing collateral consequences of State v. Blake in an effort to discern how

to resolve Kelly Jay Balles’ appeal. The Blake decision’s declaration of

unconstitutionality does not benefit an accused in other settings. In State v. Olsen,

26 Wn. App. 2d 722, 726, 530 P.3d 249 (2023),aff’d, No. 100204-1 (Wash. Sept. 12,

2024), this court ruled that a defendant may not withdraw a guilty plea for the crime of

possession of a controlled substance if the plea was part of a plea bargain that allowed the

accused to avoid a greater offense. The Washington Supreme Court has accepted review

of State v. Olsen.

12 No. 39733-5-III State v. Balles (Dissent)

An earlier conviction for bail jumping during the time when one faced charges for

possession of a controlled substance remains valid even though State v. Blake later

invalidated the possession statute. State v. Paniagua, 22 Wn. App. 2d 350, 355-56, 511

P.3d 113 (2022). The same rule holds true for escape from prison while one serves a

sentence for violating RCW 69.50.4013. State v. Paniagua, 22 Wn. App. 2d 350, 355

(2022). The rule in escape and bail jumping cases follows from the State lacking any

burden of showing that the accused was facing charges under a constitutional statute or

had been sentenced to prison under a valid statute. Instead, the accused must submit to

confinement until discharged by due process of law. State v. Paniagua, 22 Wn. App. 2d

350, 358 (2022). His or her remedy is to seek a declaration of the unconstitutionality of

the statute, not flee from justice. State v. Paniagua, 22 Wn. App. 2d 350, 359 (2022). A

purpose behind outlawing bail jumping is to effectuate orderly administration of justice.

State v. Paniagua, 22 Wn. App. 2d 350, 359 (2022).

State v. Paniagua is distinguishable because RCW 69.50.4013 had not been

declared unconstitutional at the time Victor Paniagua jumped bail. In contrast,

RCW 69.50.4013 had been declared unconstitutional before the service of the warrant on

Kelly Jay Balles. Orderly administration of law, instead of justifying the arrest of Kelly

Jay Balles, demanded that DOC obey the Supreme Court’s ruling in State v. Blake and

13 No. 39733-5-III State v. Balles (Dissent)

immediately terminate community custody when based on the statute declared void. The

State, just as offenders, must obey Supreme Court rulings.

In another setting, the government may rely on an accused’s conduct violating a

statute later declared unconstitutional, including RCW 69.50.4013, when forming

probable cause. State v. White, 97 Wn.2d 92, 103, 640 P.2d 1061 (1982); State v. Moses,

22 Wn. App. 2d 550, 561, 512 P.3d 600, review denied, 518 P.3d 205 (2022); In re Pers.

Restraint of Pleasant, 21 Wn. App. 2d 320, 339-40, 509 P.3d 295 (2022). In State v.

Moses and Personal Restraint of Pleasant, this court ruled that law enforcement lawfully

stopped and searched the respective individuals based on probable cause that each

possessed controlled substances. The searches occurred before the release of State v.

Blake. Both accused sought to suppress the ingathering from the respective searches after

the announcement of the Blake decision.

State v. White, State v. Moses, and Personal Restraint of Pleasant followed the

teachings of the United States Supreme Court decision in Michigan v. DeFillippo,

443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). According to Michigan v.

DeFillippo, a later determination that a statute is unconstitutional does not necessarily

invalidate an earlier finding of probable cause to believe that a person violated the statute.

Michigan v. DeFillippo, 443 U.S. 31, 37-38 (1979). DeFillippo, however, recognized an

exception to the rule in the instance of a law “so grossly and flagrantly unconstitutional

14 No. 39733-5-III State v. Balles (Dissent)

that any person of reasonable prudence would be bound to see its flaws.” Michigan v.

DeFillippo, 443 U.S. 31, 38 (1979). I cannot characterize RCW 69.50.4013 as grossly

unconstitutional since the Washington Supreme Court repeatedly declared the statute

constitutional until 2021. State v. Bradshaw, 152 Wn.2d 528, 539-40, 98 P.3d 1190

(2004); State v. Cleppe, 96 Wn.2d 373, 380-81, 635 P.2d 435 (1981).

I do not consider the DeFillippo rule helpful in answering the question on appeal.

DOC did not rely for probable cause on any current possession of controlled substances

by Kelly Jay Balles when issuing the administrative warrant. Instead, when executing the

warrant, DOC relied on a judgment and sentence entered under an unconstitutional

statute. The entirety of Kelly Jay Balles’ community custody was void not just the

probable cause to search.

I find State v. White, 97 Wn.2d 92 (1982), helpful in resolving Kelly Jay Balles’

appeal for a different reason than addressing probable cause. The Supreme Court, in

State v. White, determined that the DeFillippo rule exception compelled suppression of a

confession following an arrest under Washington’s “stop-and-identify” statute. The court

emphasized that the Court of Appeals, in City of Mountlake Terrace v. Stone, 6 Wn. App.

161, 492 P.2d 226 (1971), had declared an “almost identical” city ordinance as

unconstitutional years before Allen White’s arrest. As a result, the statute was “flagrantly

unconstitutional,” and police should have known it could not serve as the basis for a valid

15 No. 39733-5-III State v. Balles (Dissent)

arrest. According to the Supreme Court in State v. White, for a least four decades,

Washington law enforcement had been expected to know when a statute has been deemed

unconstitutional.

The Washington Supreme Court did not clandestinely release its ruling in State v.

Blake. The bombshell decision garnered immediate headline news in Washington State,

if not the nation. Kip Hill, Washington Supreme Court Rules State Drug Possession Law

Unconstitutional after Challenge by Spokane Woman, SPOKESMAN REVIEW (Spokane,

Wash.) (February 25, 2021, 9:49 PM) https://www.spokesman.com/stories/2021/feb/25/

washington-supreme-court-rules-state-drug-possessi/ [https://perma.cc/TFU9-JFNK];

Mike Carter, Washington Supreme Court Strikes Down Law That Makes Unintentional

Possession of Drugs a Crime, SEATTLE TIMES (February 25, 2021, 8:05 PM)

[https://perma.cc/UZ8Q-YGNR]; Daniel Villarreal, Washington State Supreme Court

Rules Drug Possession Law Unconstitutional in 5-4 Decision, NEWSWEEK (March 13,

2021), https://www.newsweek.com/washington-state-supreme-court-rules-drug-

possession-law-unconstitutional-5-4-decision-1575872 [https://perma.cc/6QLY-Y9PQ].

By February 26, 2021, DOC should have known of the unconstitutionality of

RCW 69.50.4013 and that any community custody conditions arising from a drug

possession conviction were now void. DOC should have alerted all of its officers to this

change in the law. The majority belittles the capabilities of DOC, with its dedicated,

16 No. 39733-5-III State v. Balles (Dissent)

qualified, and able executives and staff, to quickly pivot to new circumstances in order to

comply with Washington Supreme Court directives. The officers, on March 31, 2021,

arrested Kelly Jay Balles and searched his surroundings despite knowing Balles should

have never been convicted of the crime for which he was sentenced to community

custody.

The majority writes that my dissent would place DOC and its field officers in the

untenable position of reviewing every appellate decision and interpreting that decision.

I have already answered this criticism in part. The Blake decision was not just any

appellate decision. The decision ruptured all fault lines under the Evergreen State.

All law enforcement officers knew or should have known of the decision by February 26,

2021.

The Washington State Attorney General’s office maintains a lineup of attorneys

assigned to DOC. These attorneys review Washington Supreme Court and published

Washington Court of Appeals decisions as issued. The Attorney General’s office can

immediately advise the DOC executive of appellate decisions. DOC leadership could, in

turn, immediately direct all of its officers not to execute a warrant based on a conviction

under a void statute. In this instance, DOC leadership should have sent an emergency

alert to its community custody officers to take no further steps to enforce administrative

warrants attended to a conviction for possession of a controlled substance. If DOC

17 No. 39733-5-III State v. Balles (Dissent)

officers needed days to identify those under community custody because of possession

convictions, DOC could have suspended enforcement of warrants until completing the

task. By the time of the Blake decision, DOC had already loitered for three months in

serving Kelly Jay Balles’ warrant, such that serving the warrant held no urgency.

The majority in essence asserts that law enforcement officers need not know the

law. Yet, the majority would not excuse an offender or an accused for failing to know

the law. One of the long-standing and basic principles upon which our legal system

depends is that all sane persons are presumed to know the law and are in law held

responsible for their free and voluntary acts and deeds. State v. Spence, 81 Wn.2d 788,

792, 506 P.2d 293 (1973), rev’d on other grounds, 418 U.S. 405, 94 S. Ct. 2727, 41 L.

Ed. 2d 842 (1974). Law enforcement officers and government officials should abide by

this principle.

The State contends that State v. White does not control. According to the State,

DOC and other officers, in Kelly Jay Balles’ circumstances, complied with a court order

based on a statute found unconstitutional as distinguished from a law enforcement officer

arresting an individual, without a court order based on probable cause. Stated differently,

the DOC officers were not enforcing an unconstitutional statute, but rather, complying

with a court order. According to the State, law enforcement’s actions were one step

removed from a law enforcement officer enforcing a statute in the first instance.

18 No. 39733-5-III State v. Balles (Dissent)

I agree with the State that Kelly Jay Balles’ judgment and sentence demanded that

he submit to community custody supervision, but I disagree that any court order directed

DOC officers to arrest Balles for any violation of community custody. DOC acted

pursuant to an administrative warrant, not a court order, when it entered Balles’ abode.

Regardless, I deem DOC’s distinction without a difference. Washington principles of

law invalidated the 2014 judgment and sentence entered against Balles for possession of

a controlled substance and thus abrogation also removed community custody supervision.

The earlier administrative warrant lacked lawful authority.

In addition to State v. White, Washington decisions resolving convolutions

attended to State v. Blake benefit Kelly Jay Balles. For instance, according to one

decision, the primary corollary from State v. Blake demands that the superior court

reverse or vacate an earlier conviction for possession of a controlled substance under

RCW 69.50.4013. State v. LaBounty, 17 Wn. App. 2d 576, 581, 487 P.3d 221 (2021).

The majority suggests this court, in LaBounty, declared that a conviction under

RCW 69.50.4013 is not automatically vacated or invalidated. Majority at 12, citing State

v. LaBounty, 17 Wn. App. 2d 576, 581 (2021). The opinion has no such language.

The Supreme Court has held that a sentencing court may not consider a prior

conviction based on RCW 69.50.4013 in an offender score regardless of whether the

court already vacated the conviction. State v. Jennings, 199 Wn.2d 53, 67, 502 P.3d 1255

19 No. 39733-5-III State v. Balles (Dissent)

(2022); State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986).

An offender earlier sentenced based on an offender score that included a drug possession

conviction is entitled to resentencing with a lower score. State v. Markovich, 19 Wn.

App. 2d 157, 173, 492 P.3d 206 (2021). These decisions illustrate the need to

retrospectively apply State v. Blake to government action even if the action occurred

before issuance of the Blake decision or before formal vacation of the earlier judgment

and sentence. The sentencing court may not include an earlier foreign state conviction

for simple drug possession in the calculation of an offender score, because some

convictions no longer compare with any valid Washington crime. State v. Markovich,

19 Wn. App. 2d 157, 172, 492 P.3d 206 (2021).

State v. French, 21 Wn. App. 2d 891, 508 P.3d 1036 (2022), best answers our

pending question. In French, this court ruled that the sentencing court should not add

one point to an offender score as a result of Jarvis French committing his current offense

while on community custody. The condition of community custody was imposed on

French pursuant to his sentence for possession of a controlled substance under

RCW 69.50.4013(1). The violation of community custody occurred before issuance of

State v. Blake. This court emphasized that the statutory definition of community custody

clarifies that a term of community custody amounts to a portion or part of the sentence

imposed on an offender. RCW 9.94A.030(5). A period of community custody directly

20 No. 39733-5-III State v. Balles (Dissent)

results from a conviction. Because courts always lacked lawful authority to enter

judgment on a conviction for unlawful possession of a controlled substance, the courts

wanted for lawful authority to impose a sentence pursuant to such a conviction. If the

offender suffered punishment for committing an offense while on community custody,

the court would renew the original constitutional violation. Kelly Jay Balles suffers

continuing punishment under an unconstitutional statute as a result of the execution of the

administrative warrant.

In State v. French, the State asserted that, even if a statute is void, a judgment

entered pursuant to the statute is not void, but only erroneous. According to the State,

until the accused overturned the judgment, the State may impose sanctions for violations

of the judgment, including violations of community custody terms. The State analogized

to treatment of erroneously entered contempt orders, which one must obey until

successfully challenging the order’s validity. This court found no parallel between an

erroneously entered contempt order and penalties imposed because of the violation of an

unconstitutional statute.

Because of this court’s decisions in State v. Moses and Personal Restraint of

Pleasant, I recognize the possibility that DOC officers may have held probable cause to

arrest Kelly Jay Balles on March 31 if State v. Blake did not become final or did not gain

21 No. 39733-5-III State v. Balles (Dissent)

authoritative status until after March 31. Thus, I must adjudge the date on which State v.

Blake became binding precedent.

Proceedings continued before the Washington Supreme Court in State v. Blake

after the February 25, 2021 decision and even after the March 31 capture of Kelly Jay

Balles. Proceedings continued until the Supreme Court issued its mandate on April 21,

2021. I explore whether the Blake ruling bound the DOC officers only with the issuance

of the mandate. I juxtapose the nature of the principle of stare decisis with the process of

an appellate court issuing a mandate.

RAP 12.5 controls issuance of a mandate by the Supreme Court:

(c) When Mandate Issued by Supreme Court. (1) The clerk of the Supreme Court issues the mandate for a Supreme Court decision terminating review upon stipulation of the parties that no motion for reconsideration will be filed. (2) In the absence of such a stipulation, except in a case in which the penalty of death is to be imposed, the clerk issues the mandate twenty days after the decision is filed, unless (i) a motion for reconsideration has been earlier filed, or (ii) the decision is a ruling of the commissioner or clerk and a motion to modify the ruling has been earlier filed. If a motion for reconsideration is timely filed and denied, the clerk will issue the mandate upon filing the order denying the motion for reconsideration.

In Obert v. Environmental Research & Development Corp., 112 Wn.2d 323, 340-

41, 771 P.2d 340 (1989), the trial court ruled that a limited partnership properly

succeeded a corporation. Following a Court of Appeals decision dissolving the limited

partnership, litigants moved for an order of stay and authority for the limited partnership

22 No. 39733-5-III State v. Balles (Dissent)

to continue on behalf of the corporation pursuant to the trial court decision reversed by

the Court of Appeals. The Court of Appeals granted the motion. The Supreme Court

ruled that the limited partnership could have acted even without the Court of Appeals

ruling on the motion. The Supreme Court held that, until the Court of Appeals issues its

mandate pursuant to RAP 12.5, a decision of the Court of Appeals does not take effect.

RAP 12.2.

A “mandate” is the official notice of action of the appellate court, directed to the

court below, advising that court of the action taken by the appellate court, and directing

the lower court to have the appellate court’s judgment duly recognized, obeyed, and

executed. Dye v. Diamante, 2017 Ark. 37, 509 S.W.3d 643, 645-46 (2017); Ketcher v.

Ketcher, 198 So. 3d 1061 (Fla. Dist. Ct. App. 2016); Min v. H&S Crane Sales, Inc.,

472 S.W.3d 773 (Tex. Ct. App. 2015). An appellate court retains control over an appeal

until it issues a mandate and the decision is not final until a mandate is issued.

Charpentier v. Ortco Contractors, 480 F.3d 710 (5th Cir. 2007).

But the mandate only applies to the parties. A mandate is a different creature from

the stare decisis effect of the published opinion. Martin v. Singletary, 965 F.2d 944, 945

n.1 (11th Cir. 1992).

In People v. Trice, 75 Cal. App. 3d 984, 143 Cal. Rptr. 730 (1977), the People

denied that a California Supreme Court ruling declaring a jury instruction

23 No. 39733-5-III State v. Balles (Dissent)

unconstitutional to lack immediate effect in part because its application would require

automatic reversal of dozens of cases on appeal, wherein the trial court delivered the

instruction. The People argued this point even in the face of a portion of the Supreme

Court decision reading: “the rule we here announce shall apply to the instant matter and

to all cases not yet final as of the date of this decision.” People v. Gainer, 19 Cal. 3d

835, 853, 566 P.2d 997, 139 Cal. Rptr. 861 (1977). The People deemed the court’s

announcement dicta. The California intermediate court reasoned that deciding whether

the Supreme Court decision excerpt constituted dicta was irrelevant. The Court of

Appeals needed to abide by all Supreme Court decisions regardless when announced.

Directly on point is In re Zermeno-Gomez, 868 F.3d 1048 (9th Cir. 2017). On

May 31, 2017, the Ninth Circuit held, in United States v. Sanchez-Gomez, 859 F.3d 649,

661 (9th Cir. 2017), that before placing a defendant in shackles, the district court must

render an individualized decision that a compelling government purpose would be served

and that shackles are the least restrictive means for maintaining security and order. Two

weeks later, the court granted the government’s motion to stay the mandate, so the

government could seek full en banc review or file a petition for a writ of certiorari.

Citing the stay of the mandate, several judges within the District of Arizona found that

Sanchez-Gomez was not binding on them and accordingly denied defendants’ requests to

be unshackled. The petitioners in Zermeno-Gomez were three defendants whose requests

24 No. 39733-5-III State v. Balles (Dissent)

to be unshackled were denied based on the stayed mandate. On June 26, 2017,

petitioners filed a petition for a writ of mandamus asking that the Ninth Circuit order the

District Court for the District of Arizona to comply with the decision in Sanchez-Gomez.

The Ninth Circuit granted the relief. The court held that a published decision of an

appellate court is binding on lower courts within the circuit, notwithstanding a stay of the

mandate. A published decision constitutes binding authority that must be followed unless

and until overruled by a body competent to do so. A stay of the mandate does not destroy

the finality of an appellate court’s judgment.

The stay of a mandate in a case on appeal merely delays return of jurisdiction to

the district court to carry out the reviewing court’s judgment in that case. Martin v.

Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992). The stay in no way affects the duty of

all courts to immediately apply the precedent established by the decision. Martin v.

Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992).

I conclude that the Blake decision gained stare decisis eminence throughout the

Evergreen State realm on February 25, 2021. Adherence to its ruling declaring

RCW 69.50.4013 unconstitutional was then mandatory on all Washington appellate

courts, trial courts, and government officials. State v. Gore, 101 Wn.2d 481, 487, 681

P.2d 227 (1984). On February 25, DOC officers could no longer arrest Kelly Jay Balles

or search his belongings stashed in a private residence.

25 No. 39733-5-III State v. Balles (Dissent)

The State seeks to be a benefactor of the accused by arguing that delayed

enforcement of State v. Blake and this court’s endorsement of the March 31 search

advantages other accused. The State contends that a defendant benefits by a rule that

demands a court order to invalidate a conviction and sentence for possession of a

controlled substance post-Blake. According to the State, an accused may have pleaded

guilty to possession of a controlled substance, in exchange for the prosecution not

proceeding with charges for possession with intent to manufacture or deliver. If State v.

Blake automatically negated the conviction, the State might then proceed to pursue a

possession with intent to manufacture or deliver charge. Thus, the offender may seek to

keep the possession conviction of record. We question whether the law would allow the

State to pursue other charges with the vacation of a possession conviction. Nevertheless,

in the great majority of circumstances, the accused benefits from immediate negation of

the conviction. Raising the possibility of detriment to a limited number of offenders fails

to defeat the law’s demand that State v. Blake be immediately obeyed.

If DOC had executed the administrative warrant for the arrest of Kelly Balles

before February 25, 2021, I might not, based on State v. Moses and Personal Restraint of

Pleasant, seek to affirm the suppression of Kelly Jay Balles’ seized methamphetamine,

marijuana, and drug paraphernalia. That question can remain for another day.

Nevertheless, DOC executed the warrant after the Blake decision negated the warrant’s

26 No. 39733-5-III State v. Balles (Dissent)

authority. DOC needed no administrative time to recognize the invalidity of anyone's

community custody supervision stemming from a conviction for possession of a

controlled substance conviction. DOC could have and should have immediately obeyed

the Blake ruling as to those under supervision.

I dissent.

.:1-~.:r: Fearing, J.)

I