In re Personal Restraint of Young

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The Court of Appeals of Washington, Division OneFeb 14, 2005
125 Wn. App. 1041 (Wash. Ct. App. 2005)

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No. 52744-4-I

Filed: February 14, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No. 94-1-05906-4. Judgment or order under review. Date filed: 01/01/1800.

Counsel for Petitioner(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.

Counsel for Respondent(s), James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

Joseph Young filed this personal restraint petition challenging the judgment and sentence entered on his conviction of second degree felony murder in King County No. 94-1-05906-4 SEA. Young argues that his conviction of second degree felony murder should be vacated because second degree assault was the predicate felony.

In In re Personal Restraint of Andress, 147 Wn.2d 602, 604, 56 P.3d 981 (2002), our Supreme Court held that, under former RCW 9A.32.050 (1976), second degree assault may not serve as the predicate crime to convict a defendant of second degree felony murder. In In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), the Supreme Court clarified that, if assault was the predicate felony, Andress applies to anyone convicted of second degree felony murder under former RCW 9A.32.050. The court reasoned that, because the `construction of former RCW 9A.32.050 in Andress determined what the statute meant since 1976,' the former felony murder statute did not establish a crime based upon second degree assault. The State concedes Andress and Hinton `are significant changes in the law that are material to Young's conviction' and that the case should be remanded to the sentencing court for further proceedings. We accept the concession of error.

We are bound by the decisions of the Washington Supreme Court. State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997); State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227, 39 A.L.R.4th 975 (1984).

The personal restraint petition is remanded to the King County Superior Court for further proceedings consistent with Andress and Hinton.