Opinion
No. 31499-1-II
Filed: April 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County. Docket No. 99-1-00276-8. Judgment or order under review. Date filed: 02/04/2004. Judge signing: Hon. John F. Nichols.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 18005 SE 44th Way, Vancouver, WA 98683-7402.
More than 30 months after we affirmed his convictions, Eugene Peck moved to modify his sentence under CrR 7.8(b). The trial court denied his motion and he appeals, claiming that he timely petitioned given the `significant change of law' in State v. Holt, 119 Wn. App. 712, 82 P.3d 688 (2004). We affirm.
Facts
A jury convicted Peck of first degree unlawful firearm possession and unlawful manufacture of a controlled substance (methamphetamine). It also found special firearm and school zone enhancements on the controlled substance conviction. The trial court imposed a standard range sentence.
Peck appealed. In a ruling affirming judgment, our commissioner affirmed his convictions on February 22, 2001. The ruling became the final decision terminating review on May 30, 2001, and we mandated the case on June 4, 2001.
On December 29, 2003, Peck filed a pro se motion for modification of his sentence under CrR 7.8(b), arguing that the judgment was facially invalid and not time barred. He appeals from the trial court's denial of his motion.
Analysis
Peck contends that the trial court erred when it denied his motion because Holt brought about a `significant change of law.' Appellant's Br. at 1. He asserts that because the trial court did not instruct the jury that it must find a nexus between the firearm and the crime, his sentence enhancement must be vacated and the matter remanded for resentencing.
Peck argues that he is entitled to relief under CrR 7.8(b), which provides:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time and for reasons (1) and (2) not more than 1 year after the judgment, order, or proceeding was entered or taken, and is further subject to RCW 10.73.090, .100, .130, and.140. A motion under section (b) does not affect the finality of the judgment or suspend its operation.
CrR 7.8(b).
In turn, CrR 7.8(b) refers us to RCW 10.73.090, the statute governing collateral attacks on criminal judgments. It provides, in relevant part:
(1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
. . . .
(3) For purposes of this section, a judgment becomes final on the last of the following dates:
. . . .
(b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction.
CrR 7.8(b) also references RCW 10.73.100, which notes exceptions to the one year time limit:
Additionally, CrR 7.8(b) refers to RCW 10.73.130 and .140. These provisions do not apply to our analysis and we do not discuss them further.
The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:
. . . .
(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal . . . proceeding . . . and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
When we mandated the case to the superior court on June 4, 2001, under RCW 10.73.090(3)(b), the judgment became final on that date. Peck filed his motion for modification of sentence on December 29, 2003, approximately 30 months after it became final. Thus, Peck's collateral attack was time barred after June 4, 2002, unless the terms of RCW 10.73.100 apply.
Under RCW 10.73.100, then, Peck must identify a significant change in the law that has retroactive application. He points our attention to Holt.
In Holt, we held that `as an element of the firearm enhancement, the nexus requirement must be set forth in the jury instructions.' 119 Wn. App. at 728. Jury instructions that do not set forth the nexus requirement `essentially relieve the State of the burden of proving the nexus beyond a reasonable doubt.' Holt, 119 Wn. App. at 728.
But our Supreme Court recently came to a different conclusion in State v. Willis, ___ Wn.2d ___, 103 P.3d 1213 (2005). Although the court did not explicitly overrule Holt, it held that `[e]xpress `nexus' language is not required' in the jury instructions. Willis, 103 P.3d at 1217. Rather, the instructions are sufficient if they `inform the jury that it must find a relationship between the defendant, the crime, and the deadly weapon.' Willis, 103 P.3d at 1217.
Here, Peck premised his argument on Holt. But Holt no longer controls. Thus, we do not examine whether Holt constitutes a `significant change of law' or whether it applies retroactively.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, P.J. and ARMSTRONG, J., Concur.