State v. Bailon Wences

Opinion

This opinion was filed for record FTTE IN CLERKt OFFICE at B/CO QilU onl4^ > •UPRBE(XHjm;am OFwuHMeroN OATS'KOV 3 0 201? nAA lAUAk^, SUSAN L CARLSON GmsFjusncE SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

NO. 93605-6 Respondent,

V. EN BANC

MARCO BAILON WENCES,

Filed V 3 0 21 Petitioner.

STEPHENS, J.—^In State v. Williams-Walker, 167 Wn.2d 889, 899-900, 225

P.3d 913 (2010), this court held that article I, sections 21 and 22 of the Washington

State Constitution prohibit a sentencing court from imposing a firearm enhancement

based on a deadly weapon special verdict finding. We subsequently recognized that

Williams-Walker announced a new rule ofcriminal procedure, applicable to all cases

pending at the time it was decided. In re Pers. Restraint ofEastmond, 173 Wn.2d

632, 634, 272 P.3d 188 (2012). Our holding in Eastmond adhered to the long

standing principle that "[a] new rule for the conduct of criminal prosecutions is to

be applied... to all cases, state or federal, pending on direct review or not yet final. State V. Wences(Marco Bailon), 93605-6

In rePers. Restraint ofSt. Pierre, 118 Wn.2d 321, 326, 823 P.2d492(1992)(citing

Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)).

The question in this case is whether the rule in Williams-Walker applies to

appellate review of Marco Wences's 2015 sentence. The obvious answer to this

question—^yes—is obscured by the fact that Wences's sentence was imposed for a

conviction dating back to 2005. Concluding that Wences "should not benefit from

changes in the law that apply to him solely because he absconded and delayed his

sentencing," the Court of Appeals affirmed the superior court's decision to impose

a firearm enhancement based on prQ-Williams-Walker law. State v. Wences, No.

73333-8-1, slip op. at 7 (Wash. Ct. App. July 25, 2016) (unpublished),

https://www.courts.wa.gov/opinions/pdf/733338.pdf. We hold that this result is

impermissible under settled law. We reverse the Court of Appeals and remand to

the superior court for resentencing consistent with Williams-Walker.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Following a search of Wences's car in 2003, the State charged him with

possession ofa controlled substance(methamphetamine) with intent to manufacture

or deliver. The State also alleged that Wences was armed with a firearm during the

commission ofthe crime. A jury convicted Wences of all charges in 2005. The trial

court instructed the jury that a firearm is a deadly weapon, and the jury answered

-2- State V. Wences(Marco Bailon), 93605-6

yes to a special verdict form that asked whether Wences was "armed with a deadly

weapon at the time ofthe commission ofthe crime." Clerk's Papers(CP)at 30.

Wences did not appear for a scheduled sentencing hearing in 2005. Starting

around that time, our law on firearm and deadly weapon enhancements was

evolving. See State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005)(Recuenco

I), rev'd and remanded on other grounds, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed.

2d 466 (2006) {Recuenco II), on remand, 163 Wn.2d 428, 180 P.3d 1276 (2008)

{Recuenco III); Williams-Walker, 167 Wn.2d 889. Our cases considered the import

of two earlier United States Supreme Court decisions interpreting the Sixth

. Amendment right to a jury trial under the United States Constitution. U.S. Const,

amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury."). In those decisions, the Supreme

Court held "Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S.

466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The '"statutory maximum'"

in this context is "the maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant.'''' Blakely v.

Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

-3- State V. Wences (Marco Bailon), 93605-6

Building on these Supreme Court decisions, this court recognized that "[i]n

Washington there are two types of deadly weapon sentence enhancements: firearm

sentence enhancements and deadly-weapon-other-than-a-firearm sentence

enhancements." Eastmond, 173 Wn.2d at 635; see also RCW 9.94A.533(3),(4). In

two cases, we specifically addressed whether a sentencing court can constitutionally

impose a firearm enhancement where the jury's special verdict finding authorizes

only a deadly weapon enhancement. Reciienco I, 154 Wn.2d at 158-59; Williams-

Walker, 167 Wn.2d at 892.

In Recuenco I, this court held that "[wjithout an explicit firearm finding by

the jury, [a] court's imposition of a firearm sentence enhancement violate[s] [a

defendant's constitutional right to a]jury trial." 154 Wn.2d at 162; WASH. Const.

art. I, § 21 ("The right oftrial byjury shall remain inviolate."); Wash.Const, art. I,

§ 22("In criminal prosecutions the accused shall have the right... to have a speedy

public trial by an impartial jury."). Next, in Williams-Walker, this court held that

"[a] sentence enhancement must not only be alleged, it also must be authorized by

the jury in the form of a special verdict.'''' 167 Wn.2d at 900 (emphasis added).

"Disregard of... the special verdicts violates [a] defendant['s] right[] to a jury trial

under article I, sections 21 and 22 [of the Washington Constitution]." Id. at 899-

900. In sum, by 2010 it was clear under Washington law that, "[wjhen the jury is

-4- State V. Wences(Marco Bailon), 93605-6

instructed on a specific enhancement and makes its finding, the sentencing judge is

bound by the jury's finding." Id. at 899.

In 2015, Wences appeared pursuant to a warrant for his arrest and the court

set a sentencing hearing on his 2005 conviction. Per the State's recommendation,

the court sentenced Wences to 100 months of confinement, including a 64-month

standard range base sentence and a 36-month firearm enhancement. The State noted

that its recommendation was "a lengthier recommendation than would have been

made had [Wences] not failed to appear [at his sentencing hearing in 2005].

Verbatim Tr. ofProceedings on Appeal(VTP)(Mar. 23, 2015) at 3.

Wences appealed his sentence, arguing that because the jury verdict

authorized only a deadly weapon enhancement, the sentencing court violated his

constitutional right to ajury trial when it imposed the lengthier firearm enhancement.

Br. of Appellant at 21-22 (relying on Williams-Walker, 167 Wn.2d at 897). The

State countered that thejury instructions, read together with the special verdict form,

authorized the firearm enhancement. See Br. of Resp't at 14-17. Division One of

the Court of Appeals upheld Wences's sentence on grounds raised sua sponte.

Wences, slip op. at 6-8. That court stated:

While Wences' judgment and sentence was not final until 2015, it would have been final prior to both Recuenco and Williams-Walker but for Wences' flight and the consequent 11-year delay of his sentencing. A defendant

-5- State V. Wences(Marco Bailon), 93605-6

should not benefit from changes in the law that apply to him solely because he absconded and delayed his sentencing.

Id. at 7.1

Wences filed a petition for review in this eourt, which we granted. State v.

Wences, 187 Wn.2d 1016, 388 P.3d 761 (2017). He challenges only the lawfulness

of his enhanced sentence. Pet. for Review at 14.

ANALYSIS

We must decide whether the rule in Williams-Walker applies to appellate

review of Wences's sentence. But for the fact that Wences was convicted in 2005,

this would be a straightforward case because the judgment and sentence under

review were entered in 2015, five years after the decision in Williams-Walker} See,

1 The Court of Appeals did not call for additional briefing from the parties on the question of whether Wences's flight precluded him from benefiting from Williams-Walker. ^ The Court of Appeals acknowledged that Wences's "judgment and sentence was not fmal until 2015." Wences, slip op. at 7. It looked to the law in 2005 on the premise that Wences's case "would have been final prior to both Recuenco and Williams-Walker but for [his] flight and the consequent 11-year delay of his sentencing." Id. While this result was a possibility, it was by no means certain. The relevant law was evolving quickly at the time of Wences's original sentencing hearing in 2005. Wences's case could have been stayed pending Recuenco I, which this court decided only six days after Wences's anticipated sentencing date. See, e.g.. State v. Bainard, 148 Wn. App. 93, 100-01, 111, 199 P.3d 460 (2009) (appeals court stayed case pending Recuenco I and subsequently applied Recuenco III on appeal); see also Mot. for New Trial Sentencing (Apr. 8, 2005) at 2(Wences's counsel moved to continue sentencing for two weeks). Even had Wences's case not been stayed, he may have brought a successful ineffective assistance of counsel claim on that basis. See, e.g.. In re Pers. Restraint ofNetherton, 111 Wn.2d 798, 801-03, 306 P.3d 918 (2013) (finding prejudice supported vacating the defendant's fneaim

-6- State V. Wences(Marco Bailon), 93605-6

e.g., State v. Taylor, 150 Wn.2d 599, 601, 80 P.3d 605 (2003) ("In a criminal

proceeding, a final judgment 'ends the litigation, leaving nothing for the court to do

but execute the judgment.'"(intemal quotation marks omitted)(quoting In re Det.

ofPetersen, 138 Wn.2d 70, 88, 980 P.2d 1204(1999))); see also State v. Siglea, 196

Wash. 283, 286, 82 P.2d 583 (1938)("In a criminal case, it is the sentence that

constitutes the judgment against the accused, and, hence, there can be no judgment

against him until sentence is pronounced."). Given that "the rule announced in

Williams-Walker is a new rule" ofcriminal procedure,Eastmond, 173 Wn.2d at 634,

settled precedent required the Court of Appeals to consider Wences's challenge to

his sentence in light of Williams-Walker.

As noted, "[a] new rule for the conduct of criminal prosecutions is to be

applied retroactively to all cases, state or federal, pending on direct review or not yet

final." St. Pierre, 118 Wn.2d at 326 (citing Griffith, 479 U.S. at 328).^ Simply

stated, "[A]ll new rules .. . must be applied to all cases subject to direct review at

the time the rule is announced." Id. at 325-26; see id. at 324-26 (describing the

enhancement because had counsel moved to stay pending Recuenco III, the court likely would have decided the case in light ofRecuenco 111 to the defendant's benefit). ^ Although St. Pierre, Griffith, and Eastmond concemed retroactive application of a new mle, they also set "out current prospective application analysis in Washington." State V. Hanson, 151 Wn.2d 783, 789, 91 P.3d 888 (2004). "As stated in St. Pierre, the mle based on those cases is that a new mle prospectively applies to cases not yet finalized." Id. at 790.

-7- State V. Wences(Marco Bailon), 93605-6

evolution of the Supreme Court's retroactivity analysis, which this court has

"attempted from the outset to stay in step with"). "The critical issue in applying the

current retroactivity analysis is whether the case was final when the new rule was

announced." Id. at 327. "'[FJinaT for the purposes of retroactivity analysis . . .

'mean[s]a case in which ajudgment ofconviction has been rendered,the availability

ofappeal exhausted, and the time for a petition for certiorari elapsed or a petition for

certiorari finally denied.'" Id.(quoting Griffith, 479 U.S. at 321 n.6).

Applying new law that arises during the pendency ofa direct appeal, appellate

courts regularly reverse sentences that would have been valid under former law and

remand for resentencing. See, e.g., State v. Hanson, 151 Wn.2d 783, 791, 91 P.3d

888 (2004) (vacating the defendant's sentence and remanding for further

proceedings because the defendant's case was not final when the new rule was

announced); see also State v. McNeal, 142 Wn. App. 777, 786-87, 787 n.l3, 175

P.3d 1139(2008)(holding Blakely applies on remand when the defendant's sentence

is vacated on appeal and resentencing on remand constitutes a new sentencing

proceeding). Butsee State v. Rowland, 174 Wn.2d 150,155-56,272 P.3d 242(2012)

(holding Blakely does not apply on remand when the trial court does not disturb

factual findings or increase the defendant's sentence).

-8- State V. Wences(Marco Bailon), 93605-6

Our precedent makes clear that we "prefer the bright line established by St.

Pierre.'" Hanson, 151 Wn.2d at 791. While we may sjnnpathize with the desire of

the lower court and the dissent to find an exception for Wences's particular situation,

given his decision to abscond, creating an exception for this unusual case comes at

too high a cost to established principles of finality and standards for applying new

rules of criminal procedure to cases on direct appeal."^ Because we have previously

recognized that the "State may pursue [separate,] additional charges for the act of

fleeing," we reject introducing a punishment paradigm into our analysis. State v.

French, 157 Wn.2d 593, 602, 141 P.3d 54 (2006); see also Ortega-Rodriguez v.

United States, 507 U.S. 234, 247, 113 S. Ct. 1199, 122 L. Ed. 2d 581 (1993)("flight

is a separate offense punishable" by the trial court). At any rate, the State

acknowledges that it has accounted for Wences's flight insofar as the State's

sentencing recommendation was"a lengthier recommendation than would have been

The dissent's analogy to cases that dismissed appeals as abandoned misses the mark. See dissent at 2-3. The parties agree that Wences did not knowingly waive or abandon his appeal. More importantly, there is no justification for a court to impose an unlawful, indeed unconstitutional, sentence. See Williams-Walker, 167 Wn.2d at 899-900 (noting constitutional requirement that sentence enhancements follow jury's special verdict). The imposition of a sentence that conforms to the law can hardly be characterized as an unwarranted "benefit" to a defendant. Despite the dissent's protestations to the contrary, what it seeks is simply punishment for Wences's act of absconding.

-9- State V. Wences(Marco Bailon), 93605-6

made had [Wences] not failed to appear [at his sentencing hearing in 2005]." VTP

(Mar. 23, 2015) at 3.

Applying the rule of Williams-Walker to the facts of this case, we hold that

the jury's special verdict finding authorized only a deadly weapon enhancement, not

a firearm enhancement. See 167 Wn.2d at 899-900; see also CP at 30 Qhiry finding

that Wences was armed with a "deadly weapon"). Former RCW 9.94A.510(4)(b)

(2001), recodified as RCW 9.94A.533(4)(b), authorized a one-year deadly weapon

sentence enhancement if the defendant was armed with a deadly weapon during the

commission of a class B felony or a crime with a statutory maximum sentence of 10

years.^ This stands in contrast to former RCW 9.94A.510(3)(b)(2001), recodified

as RCW 9.94A.533(3)(b), which authorized a three-year firearm sentence

enhancement if the defendant was armed with a firearm during the commission of

^ In evaluating Wences's sentence, we consider the enhancement statutes in effect in 2003 when he committed the underlying offense. CP at 86. This is in accordance with the statutory "savings clause," which provides. Whenever any criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act. RCW 10.01.040. Subject to constitutional constraints, this provision "generally requires that crimes be prosecuted under the law in effect at the time they were committed." State v. Pillatos, 159 Wn.2d 459, 472, 150 P.3d 1130 (2007);.yee also State v. Ross, 152 Wn.2d 220, 227, 241,95 P.3d 1225(2004)(affirming the sentencing court's application of a statute that was in effect when the defendant committed the offense).

-10- State V. Wences(Marco Bailon), 93605-6

such a crime. Possession of methamphetamine with intent to deliver or manufacture

carried a statutory maximum of 10 years at the time Wences committed that crime.

Former RCW 69.50.401(a)(l)(ii) (1998). Consistent with Williams-Walker, the

sentencing court was thus authorized to impose only a one-year deadly weapon

sentence enhancement, rather than a three-year firearm sentence enhancement.

CONCLUSION

A new rule ofcriminal procedure applies to all cases pending on direct review

at the time the rule is announced. This workable, bright line standard contains no

exception for absconding defendants. Applying the standard here requires

evaluating Wences's challenge to his sentence in light of Williams-Walker, a new

rule announced before his 2015 judgment and sentence. Under Williams-Walker,

the jury's special verdict finding authorized only a deadly weapon enhancement, not

the firearm enhancement imposed. We accordingly reverse the Court of Appeals

and remand to the superior court for resentencing consistent with Williams-Walker.

-11- State V. Wences(Marco Bailon), 93605-6

WE CONCUR:

I\aAAj^ .

'yVjacUMi ut

-12- State V. Wences

No.93605-6

OWENS,J.(dissenting) — A jury convicted Marco Wences of possession of

methamphetamine with intent to manufacture or deliver and possession of a deadly

weapon. Rather than return to court for his sentencing hearing, Wences fled for

nearly a decade. During the intervening years in which Wences evaded his

sentencing, this court established a new criminal procedure rule for firearm and

deadly weapon enhancements. State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d

913 (2010). The majority's decision to apply this rule to Wences' case, over nine

years after he should have been sentenced, allows him to benefit from his flight. The

majority ignores over 100 years of precedent treating absconding defendants

differently from other criminal defendants. Because this decision departs from this

important precedent and fashions a new rule essentially rewarding defendants who

flee after conviction, I respectfully dissent. State V. Wences, No. 93605-6 Owens, J., Dissenting

The majority applies the general rule of finality in spite ofthis case's unique circumstances. The doctrine of finality provides that new rules for criminal

prosecutions should be applied to all state and federal cases "pending on direct review or not yet final." In re Pers. Restraint ofSt. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492(1992). However, this court has the authority and worthy cause to create an

exception for defendants who abscond after conviction to avoid sentencing. If a case is not yet final solely because the defendant has fled and thus delayed court proceedings, it should not be regarded as "pending" in the normal sense. As opposed to regular minor court delays, such a case is put on hold because ofthe defendant's contempt ofthe legal system. The United States Supreme Court, when reviewing a case of a defendant who fled after appealing, aptly explained that"no court is bound

to submit" to "contempt of its authority." Allen v. State ofGeorgia, 166 U.S. 138,

141, 17 S. Ct. 525,41 L. Ed. 949(1897). It is not in the interest of Washington courts

to apply the general rule offinality to cases intentionally put on hold by absconding defendants. Instead, defendants who flee should be sentenced under the law at the

time ofthe scheduled sentencing hearing rather than the law at whatever time they

return to the court's jurisdiction.

Since 1902, this court has recognized that absconding defendants warrant

exceptional treatment in the course of criminal adjudication. See State v. Handy,27 Wash. 469, 470-71,67 P. 1094(1902)(appeal dismissed because defendant fled the State V. Wences,tio. 93605-6 Owens, J., Dissenting

jurisdiction); State v. Mosely, 84 Wn.2d 608,610, 528 P.2d 986(1974)(appeal dismissed because defendant absconded prior to appellate oral argument); State v.

Johnson, 105 Wn.2d 92, 97-98, 711 P.2d 1017(1986)(appeal dismissed because

defendant failed to appear at probation revocation hearing). The majority ignores this

court's long-standing aversion to applying customary rules to absconding defendants.

The majority insists that St. Pierre created a bright line standard for new rules of

criminal procedure containing no exception for absconding defendants. Yet, this is

the first case in this court that has demanded the exception. Based on a century of

cases consistently creating procedural exceptions for absconding defendants, there is

strong precedent to impose an exception in this case.

In addition to supporting precedent, there are two important policy grounds for

creating an exception for absconding defendants. First, defendants should not benefit

from absconding and evading sentencing. By sentencing Wences under the law at the

time of his 2005 conviction, the trial court appropriately refused to afford him the

benefit of legal developments established years after his scheduled sentencing. The

majority labels this a punishment paradigm. This characterization is incorrect. It

cannot be considered a punishment to follow the legal standards in place at the time

Wences should have been sentenced had he abided by the court-ordered timeline.

Rather, it is a refusal to confer a benefit for absconding. By failing to create an State V. Wences, No. 93605-6 Owens, J., Dissenting

exception and allowing Wences to be sentenced under the law at the time ofthe 2015

sentencing hearing, the majority essentially rewards him for evading justice.

Second, the State is unfairly prejudiced by the majority's holding. The special

verdict rule pronounced in Williams-Walker came in 2010,five years after Wences'

trial. The State should not be expected to predict the development of criminal

procedural law years down the road in order to properly secure a conviction and

appropriate sentence. Here,the new rule of criminal procedure reduces the weapon

enhancement from three years to one. However, the consequences of a different rule

could be much more drastic, for example, overturning a conviction completely. The

majority's decision to apply legal rules developed years after Wences' conviction

establishes an impossible standard for the State.

The majority's decision forces the trial court to submit to Wences' contempt of

its authority by rewarding him for absconding and imposes substantial uncertainty and

costs on the State. I respectfully dissent. State V. Wences, No. 93605-6 Owens, J., Dissenting State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

No. 93605-6

YU,J.(concurring in dissent)—I concur in the concerns raised by the

dissent. I would also affirm the Court of Appeals decision to uphold petitioner

Marco Bailon Wences' sentence because the new rule of criminal procedure

announced in State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010), does

not apply to this case. The majority, however, believes that binding precedent

requires it to reach the opposite conclusion. I write separately to further explain

why that belief is unfounded and to support the dissent's justified indignation at the

majority's resolution of this case. I therefore respectfully concur in the dissent.

I agree with the majority that this case does not require us to reconsider the

rules for prospective and retrospective application of new rules of criminal

procedure that this court adopted in In re Personal Restraint ofSt. Pierre, 118

Wn.2d 321, 823 P.2d 492(1992), which we have applied in numerous cases over

the years. Majority at 7(quoting St. Pierre, 118 Wn. 2d at 326 (citing Griffith v.

Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987))); e.g.. In re State V. Wences,'Ho. 93605-6 (Yu, J., concurring in dissent)

Pers. Restraint ofGentry, 179 Wn.2d 614, 627, 316 P.3d 1020 (2014); In rePers.

Restraint ofHaghighi, 178 Wn.2d 435, 441, 309 P.3d 459(2013);In re Pers.

Restraint ofEastmond, 173 Wn.2d 632, 640, 272 P.3d 188 (2012); In re Pers.

Restraint ofMarket, 154 Wn.2d 262, 268-69, 111 P.3d 249(2005).

However,this case does require us to apply those established rules to a novel

situation presented by unusual facts. Thus, the question of whether Williams-

Walker applies to Wences' sentence is a matter of first impression whose outcome,

by definition, cannot be controlled by binding precedent. Instead, we must look to

precedent that is not directly on point, but nevertheless relevant.

I agree with the majority that the St. Pierre line of cases is relevant here.

See majority at 7-8. I further agree that Wences' appeal was not "final" in any

sense of that word when Williams-Walker was decided. Id. at 6. In fact, his appeal

was not even ripe yet because Wences absconded after his conviction, delaying his

sentencing for over a decade. Id. at 2.

However, we are applying precedent, not interpreting statutes. That is an

important difference for which the majority does not account. We always strive to

interpret statutes in a manner that is consistent with legislative intent. Columbia

Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 432, 395 P.3d 1031

(2017). We assume that the legislature intends for courts to apply the plain

meaning of its statutes whenever possible, so long as doing so does not produce State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

absurd results. Id. at 443. When we are mistaken in our assumptions or

interpretations, the legislature may revise its statutory language in response to our

opinion. Cornelius v. Dep't ofEcology, 182 Wn.2d 574, 589-90, 344 P.3d 199

(2015). Indeed, if there were a statute that provided for the "mandatory application

of new rules of criminal procedure to all defendants whose appeals are not yet

final," without any further elaboration, I might be compelled reach the same result

as the majority in this case. However, there is no such statute. Instead, we are

applying the opinions of this court.

"By necessity,judicial opinions focus on the case, facts, and parties at hand,

and any opinion reflects that focus." Washburn v. City ofFederal Way, 178 Wn.2d

732, 751-52, 310 P.3d 1275 (2013). Therefore, when we apply relevant precedent

to novel and distinguishable facts, we must take note ofthe specific issues that

were considered and decided in that precedent. Only then should we decide

whether and how our precedent helps in resolving the question presented.

The question presented here was most certainly not before the court in any

of our prior cases. It is therefore no solution to say, as the majority does, that

because St. Pierre refers to defendants whose appeals are not yet final, any

defendant whose appeal is not yet final for any reason must be given the benefit of

intervening new rules of criminal procedure. Majority at 7(quoting St. Pierre, 118

Wn.2d at 326). Instead, because no case based on St. Pierre has decided the State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

question presented here, we should consider the reasoning and purposes underlying

St. Pierre and related cases, and resolve this case in a way that reflects those

considerations.

As St. Pierre itself states, application of new rules of criminal procedure,

even in cases that are not yet final on direct appeal, is not an independent

constitutional right. 118 Wn.2d at 325 (citing Linkletter v. Walker, 381 U.S. 618,

629, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), abrogated in part on other grounds

by Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334(1989)). The

rules regarding prospective and retroactive application of new rules to pending

cases have been adopted and developed by the courts, not for the mere sake of

having such rules, but to support the constitutional right to equal protection ofthe

law. See, e.g., Griffith, 479 U.S. at 327-28; United States v. Johnson, 457 U.S.

537, 555 n.l6, 102 S. Ct. 2579, 73 L. Ed. 2d 202(1982).

Because there is no independent constitutional right to prospective or

retroactive application of new criminal procedural rules, we should apply general

doctrines on that subject to novel factual scenarios (like the one presented here) in

a pragmatic way that advances the underlying "principle oftreating similarly

situated defendants the same." Griffith, 479 U.S. at 323; see State v. French, 157

Wn.2d 593, 601-02, 141 P.3d 54(2006)("[BJecause there is no federal

constitutional right to appeal, federal courts may rely on utilitarian and pragmatic State V. Wences,'No. 93605-6 (Yu, J., concurring in dissent)

concepts such as mootness and disrespect to the judiciary to justify using the

fugitive disentitlement doctrine."). Applying Williams-Walker to Wences'

sentence plainly does not do so. Wences is not similarly situated to the vast

majority of criminal defendants whose appeals are not yet final when new rules of

criminal procedure are announced.

First, the most obvious difference is that most defendants do not delay their

own proceedings by willfully absconding for over a decade. Instead, unlike

Wences, most defendants remain in the jurisdiction, and many use proper legal

channels to challenge their convictions or sentences by pursuing appeals with

reasonable diligence in a timely manner. Fundamental fairness supports applying

new rules of criminal procedure to such defendants; the primary reason their

appeals are not yet final when the new rule is announced is that they have

exercised their rights to actively engage in the justice system.

Meanwhile, the only reason Wences' appeal was not yet final when

Williams-Walker was announced is that he intentionally and without justification

removed himselffrom the reach ofthe justice system.' He cannot possibly be

viewed as similarly situated to the vast majority of defendants who do not abscond.

'The majority suggests a number of hypothetical scenarios under which Wences' appeal might not have been final when Williams-Walker was decided even if he had not absconded. Majority at 6-1 n.2. I do not question that such scenarios could occur. However, Wences did abscond, and I cannot understand why the only person who delayed the proceedings without justification should he the only person who benefits from the doubts raised by that delay. State V. Wences,'S\o. 93605-6 (Yu, J., concurring in dissent)

Second, on a national level, Wences is not even similarly situated to the

majority of defendants who do abscond between conviction and sentencing

because most jurisdictions have means to address such situations that Washington

does not. Therefore, in most jurisdictions, there would not even be a possibility

that an absconding defendant like Wences could benefit from new rules of criminal

procedure that were adopted during his voluntary flight from justice.

For instance, in the federal system and many states, a willfully absconding

defendant may be sentenced in absentia. E.g., Fed. R. Crim.P. 43(c)(1)(B),(2);

State V. Anderson, 929 P.2d 1107, 1112(Utah 1996); State v. Braun, 253 Kan. 141,

145, 853 P.2d 686(1993)(voluntarily absent defendant may be sentenced in

absentia if there are "extraordinary circumstances" and "an injustice would occur

by requiring his presence"); Capuzzo v. State, 596 So. 2d 438, 440(Fla. 1992);

Williams v. State, 526 N.E.2d 1179, 1180 (Ind. 1988); People v. Corley, 67 N.Y.2d

105, 109-10, 491 N.E.2d 1090, 500 N.Y.S.2d 633 (1986); State v. Fettis, 136 Ariz.

58, 59, 664 P.2d 208(1983)(voluntarily absent defendant may be sentenced in

absentia "in extraordinary circumstances"); Byrd v. Ricketts, 233 Ga. 779, 780, 213

S.E.2d 610(1975); Flowers v. State, 608 So. 2d 764, 766 (Ala. Crim. App. 1992);

I also note that the majority's assertion that its bright-line rule is necessary to provide certainty in sentencing is misleading. Id. at 9. Applying the law as it existed when an absconding defendant was scheduled to be sentenced is also a bright-line rule that can be applied with certainty. It is uncertain only if one gives Wences the benefit of the doubt he personally created by absconding. See id. at 10-11.

6 State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

Christopher Hall, Annotation, Voluntary Absence ofAccused When Sentence Is

Pronounced, 59 A.L.R. 5th 135 (1998). When a defendant is sentenced in

absentia, the law at the time sentencing was scheduled to take place (in this case,

the law prior to Williams-Walker) is applied from the outset, eliminating any

possible confusion on appeal.

Washington courts have not considered whether a defendant who was

:present at trial can be sentenced in absentia if he or she absconds. However, our

case law regarding trials in absentia explicitly require that the defendant be

allowed to explain his or her absence from trial prior to sentencing, suggesting that

while trial in absentia may be allowed in Washington, sentencing in absentia is not.

State V. Garza, 150 Wn.2d 360, 367, 77 P.3d 347.(2003); CrR 3.4(a)("The

defendant shall be present... at the imposition of sentence, except as otherwise

provided by these rules."),(b)("The defendant's voluntary absence after the trial

has commenced in his or her presence shall not prevent continuing the trial to and

including the return ofthe verdict."(emphasis added)).

Moreover, in the federal system and many states, courts may (or, in some

jurisdictions, must, see, e.g.. Redden v. State, 418 A.2d 996,997(Del. 1980)),

dismiss a defendant's appeal pursuant to the fugitive disentitlement doctrine if

(1)the defendant absconds without justification and (2)the delay causes prejudice

to the justice system or to the State. While the rule varies slightly across State V. Wences,'No. 93605-6 (Yu, J., concumng in dissent)

jurisdictions, these two prongs underpin the doctrine nationwide. See Ortega-

Rodriguez V. United States, 507 U.S. 234, 239-40, 113 S. C. 1199, 122 L. Ed. 2d

581 (1993); United States v. Sudthisa-Ard, 17 F.3d 1205, 1206-08 (9th Cir. 1994);

United States v. Persico, 853 F.2d 134, 138(2d Cir. 1988); United States v.

Puzzanghera, 820 F.2d 25, 27(1st Cir. 1987); State v. Brabham, 301 Conn. 376,

377, 21 A.3d 800(2011); Hires v. State, 2002-CT-00059-SCT, 882 So. 2d 225,

; 227-28 (Miss. 2004); State v. Bell, 2000 ND 58, 608 N.W.2d 232, 235-36; State v.

Troupe, 891 S.W.2d 808, 811 (Mo. 1995); State v. Patten, 134 N.H. 319, 321, 591

A.2d 1329 (1991); Reid v. Commonwealth, 57 Va. App. 42, 50-52, 698 S.E.2d 269

(2010); Polanski v. Superior Court, 180 Cal. App. 4th 507, 531-33, 102 Cal. Rptr.

3d 696 (2009); James L. Buchwalter, Annotation, Effect ofEscape by, or Fugitive

Status of State Criminal Defendant on Availability ofAppeal or Other Post-

Verdict or Post-Conviction Relief—State Cases, 105 A.L.R. 5th 529(2003); Brian

L. Porto, Annotation, Application ofFugitive Disentitlement Doctrine in Federal

Criminal Cases, 179 A.L.R. Fed. 291 (2002). Again, we do not have this option in

Washington. French, 157 Wn.2d at 602-03.

However, any jurist with the option to either sentence Wences in absentia or

dismiss his Williams-Walker claim on appeal (that is, most jurists in the country)

would almost certainly do so given the circumstances presented. It is clearly

undisputed that Wences absconded without justification, and as the dissent ably State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

points out, the justice system has suffered prejudice because of Wences' 11-year

flight from justice, and will continue to do so when the majority's holding in this

case is applied to future absconding defendants. Dissent at 4.

I also note that the long delay in sentencing in this case, for which Wences

was solely responsible, was clearly prejudicial to the State. The jury is no longer

available to make the necessary finding to impose a firearm enhancement on a

: properly worded special verdict form.^ And in this case, it cannot reasonably be

denied that the jury would have done so, given that it found Wences was armed

with a deadly weapon and the only deadly weapon that was ever mentioned in this

case was a firearm. Verbatim Report ofProceedings (Feb. 22, 2005)at 34, 70-71.

Thus, in most jurisdictions, a reasonable court presented with an absconding

defendant like Wences would likely either sentence him in absentia without the

benefit of Williams-Walker or dismiss the Williams-Walker claim on appeal. A

Washington court has neither option.

These unusual features of Washington law and Wences' 11-year flight from

justice clearly show that Wences is not similarly situated to the vast majority of

defendants whose appeals are not yet final when new rules of criminal procedure

are announced. The equal protection justification for applying the new rule

^ I disagree with the majority's suggestion that the State should have foreseen and complied with a new rule of criminal procedure that would not be announced until five years after Wences absconded. See majority at 3-5. State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

announced in Williams-Walker thus disappears under the circumstances presented.

See Griffith, 479 U.S. at 327-28.

The dissent clearly explains the absurd results and perverse incentives

created by the majority opinion, concerns with which even the majority opinion

purports to "sympathize." Majority at 9; dissent at 3. And because prospective

and retroactive application of new rules of criminal procedure to pending cases is

; not an independent constitutional right, we should not apply it in cases likeThis

one, where there is no justification for doing so and it produces obvious injustice.

Therefore, Williams-Walker does not apply to Wences' case. We should affirm the

Court of Appeals.

Finally, I must note that it appears the majority would reach the same

conclusion if the intervening change in law were harmful to the defendant, as

nothing in its analysis suggests a reasoned way to distinguish such a case.

However, applying the new rule of criminal procedure under those circumstances

would impose the punitive approach that the majority claims to reject.

By way of illustration, suppose a defendant is in hiding outside of

Washington, having absconded after his or her conviction but before sentencing. If

Williams-Walker is overruled while the defendant is in hiding, the defendant would

not be allowed to raise a Williams-Walker claim on appeal after he or she is finally

apprehended and sentenced because "'a new rule for the conduct of criminal

10 State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)

prosecutions is to be applied ... to all cases, state or federal, pending on direct

review or not yet final.'" Majority at 1-2 (alteration in original)(quoting St.

Pierre, 118 Wn.2d at 326). Therefore, if the trial court were to impose a firearm

enhancement on the basis of a deadly weapon special verdict, the defendant would

have no recourse because such an enhancement would comply with the law at the

time of sentencing, even though it was prohibited by the law at the time of

conviction. This means that the sentencing delay caused by the defendant's flight

from justice would directly result in a longer sentence.

The majority purports to reject any such "punishment paradigm," majority at

9, but, as the above example illustrates, the majority's reasoning clearly allows for

it. Meanwhile, as pointed out by the dissent, refusing to apply Williams-Walker in

this case is not a punishment at all, but merely a refusal to reward Wences for

absconding. Dissent at 1.

We do not apply new rules of criminal procedure to pending cases for the

mere sake of doing so. We do so to promote equal protection ofthe laws. Giving

Wences the benefit of Williams-Walker directly undermines equal protection

because Wences is not similarly situated to the vast majority of defendants whose

appeals are not yet final when new rules of criminal procedure are armounced

11 State V. Wences,'No. 93605-6 (Yu, J., concurring in dissent)

because Wences willfully absconded for 11 years. I would therefore affirm the

Court of Appeals and respectfully concur in the dissent.

12 State V. Wences, No. 93605-6 (Yu, J., concurring in dissent)