State v. Schwab

¶1

Dale Schwab was convicted of first degree manslaughter and second degree felony murder predicated on assault and/or theft. On direct appeal, the *668Court of Appeals ordered that the manslaughter conviction be vacated on double jeopardy grounds. Then, pursuant to In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002) and In re Personal Restraint of Hinton, 152 Wn.2d 853; 100 P.3d 801 (2004), Schwab’s second degree murder conviction was vacated. The Snohomish County Superior Court subsequently reinstated the previously vacated manslaughter conviction and resentenced Schwab for manslaughter. The Court of Appeals affirmed the reinstatement of the manslaughter conviction. Schwab now argues that a previously vacated conviction cannot be revived and that he should be released.

*668¶2 We conclude that RAP 2.5(c)(2) provides a clear mechanism under which the Court of Appeals had authority to review the vacated manslaughter conviction in light of Andress. The Court of Appeals acted well within its discretion when it determined that justice would be best served by reinstatement of Schwab’s manslaughter conviction. We affirm the Court of Appeals.

I

Facts and Procedural History

¶3 In December 1997, Schwab and his friend Aaron Beymer were homeless and living under an overpass in Everett. On the night of December 22, they encountered Ernest Sena under the overpass. The encounter was initially friendly, but then Sena smacked Beymer’s dog, leading to a fight on the hillside leading down to the railroad tracks. First, Schwab and Sena fought, and then Beymer beat Sena repeatedly in the head with a stick. After Sena was rendered unconscious, Schwab and Beymer took Sena’s money and then returned to the overpass to drink beer. Evidence in the record regarding Schwab’s further participation conflicts; testimony recounting Schwab’s statements to cellmates indicates that Schwab helped to place Sena on the railroad tracks. See State v. Schwab, 98 Wn. App. 179, *669181, 988 P.2d 1045 (1999) (Schwab I). Yet according to Beymer, it was he who eventually decided to kill Sena. Beymer claims that he beat Sena in the head again with a rock and then dragged his body onto the railroad tracks, all while Schwab watched. Beymer then covered Sena with carpet remnants and other debris. Beymer and Schwab watched as a train hit Sena, severing his body. Then Schwab and Beymer left the scene to purchase beer, in part with the money that they took from Sena.

¶4 Beymer pleaded guilty to first degree manslaughter and agreed to testify against Schwab. The State charged Schwab with one count of first degree murder, alleging that Schwab intentionally and with premeditation caused Sena’s death. The State also charged him with one count of second degree felony murder based on the predicate felonies of assault and/or theft. The prosecutor did not request a special verdict form declaring which predicate felony the jury found.

¶5 The jury convicted Schwab of the lesser included crime of first degree manslaughter on the first count and of second degree felony murder as charged on the second count. The trial court sentenced Schwab on both counts: 240 months for the second degree murder and 194 months for the first degree manslaughter, to run concurrently.

¶6 Schwab appealed, arguing that his convictions and sentences for both second degree felony murder and first degree manslaughter violated double jeopardy. He also argued that the trial court erred when it failed to give the jury an instruction on second degree manslaughter. The Court of Appeals agreed that convictions for both second degree felony murder and first degree manslaughter for a single homicide violated double jeopardy. The court affirmed the second degree felony murder conviction but vacated the conviction and sentence for first degree manslaughter. Because it vacated the manslaughter conviction, it did not address Schwab’s challenge regarding the instruction on second degree manslaughter. On remand, the trial court entered an order amending Schwab’s judgment and *670sentence and vacating the first degree manslaughter conviction. The mandate was issued on March 13, 2000.

¶7 Then in 2002, this court decided Andress, 147 Wn.2d 602. Schwab filed a personal restraint petition arguing that his second degree murder conviction was invalid because it was based on second degree felony murder with assault as the predicate felony. The State conceded that Andress applied to Schwab’s second degree murder conviction but argued that once the second degree felony murder conviction was vacated, there would no longer be a double jeopardy problem and the manslaughter conviction could then be reinstated. On January 6, 2005, the Court of Appeals granted Schwab’s personal restraint petition, providing, “[w]e remand this matter to the Snohomish County Superior Court for further lawful proceedings consistent with Andress and Hinton” Clerk’s Papers (CP) at 24.

¶8 On remand, the State argued that the trial court should resentence Schwab for his previously vacated manslaughter conviction because double jeopardy no longer barred punishment for that crime. Schwab argued that he should be released from prison because both of his convictions had been invalidated. The trial judge declined to make a decision on the day of argument and asked the State to get clarification from the Court of Appeals as to what was within the trial court’s power on remand.

¶9 On March 14, 2005, the State filed a motion to recall the mandate on the manslaughter conviction in the Court of Appeals. Then on April 14, 2005, the trial court decided that it could resentence Schwab under the manslaughter conviction. The trial court compared Schwab’s situation to that presented in State v. Ward, 125 Wn. App. 138, 104 P.3d 61 (2005), concluded that the language in the Court of Appeals order authorized revival of the manslaughter conviction, and reasoned:

It seems to me I have an obligation, if I can, to exercise my authority to take any action that I’m allowed to in the interest of justice. In my view, justice is people being held accountable for what they have committed. In this case, Mr. Schwab could *671not have committed a murder in the second degree, felony murder. Mr. Schwab did commit, apparently, based on the jury’s finding, a manslaughter. Manslaughter was taken away because, at the time that decision was made, his felony murder conviction was legitimate.

It has now been determined his felony murder conviction is not legitimate and has been vacated, leaving me in the position of believing the right thing to do, what I have been, in my view, directed by the Court of Appeals to do, and the honest and just thing to do, is to reinstate the manslaughter conviction and impose sentence thereon; and I am prepared to do so.

Report of Proceedings (RP) (Apr. 14, 2005) at 13-14. After a new sentencing hearing, the trial court sentenced Schwab to 194 months for the reinstated manslaughter conviction. Schwab appealed, and the Court of Appeals affirmed the trial court’s reinstatement of the manslaughter conviction and the resentencing, holding that reinstatement was not barred by double jeopardy or the law of the case doctrine. State v. Schwab, 134 Wn. App. 635, 637-38, 141 P.3d 658 (2006) (Schwab II). The Court of Appeals also concluded that it could have recalled the mandate, had it been necessary to do so. Id. at 647.

II

Analysis

¶10 We review questions of law, including the interpretation of court rules, de novo. City of College Place v. Staudenmaier, 110 Wn. App. 841, 845, 43 P.3d 43 (2002). A mandate is “the written notification by the clerk of the appellate court to the trial court and to the parties of an appellate court decision terminating review.” RAP 12.5(a). Generally, the Court of Appeals loses the power to change or modify a decision upon issuance of a mandate. RAP 12.2. But there are two exceptions provided under the Rules of Appellate Procedure. Upon issuance of a mandate, the appellate court’s action or decision becomes effective and *672binding on the parties and “governs all subsequent proceedings in the action in any court, unless otherwise directed upon recall of the mandate as provided in rule 12.9, and except as provided in rule 2.5(c)(2).” RAP 12.2 (emphasis added). RAP 12.7(d) recognizes that an appellate court “retains the power to change a decision as provided in rule 2.5(c)(2).”

fll Law of the Case. RAP 2.5(c)(2) restricts application of the law of the case doctrine. The law of the case doctrine provides that once there is an appellate court ruling, its holding must be followed in all of the subsequent stages of the same litigation. Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992). We have recognized that the doctrine “seeks to promote finality and efficiency in the judicial process,” Roberson, 156 Wn.2d at 41, but RAP 2.5(c)(2) provides that if a case returns to an appellate court following a remand,

[t]he appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court’s opinion of the law at the time of the later review.

Because the rule uses the term “may,” application of RAP 2.5(c)(2)’s exception to the law of the case doctrine has been characterized as discretionary, rather than mandatory. Roberson, 156 Wn.2d at 42.

¶12 The Roberson court acknowledged that RAP 2.5(c)(2) codified at least two historically recognized exceptions to the law of the case doctrine. Roberson, 156 Wn.2d at 42. First, the appellate court may reconsider a prior decision in the same case where that decision is “clearly erroneous,... the erroneous decision would work a manifest injustice to one party,” and no corresponding injustice would result to the other party if the erroneous holding were set aside. Id.; Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988). Second, the language allowing consideration of I *673the law at the time of the later review allows a prior appellate holding in the same case to be reconsidered where there has been an intervening change in the law. Roberson, 156 Wn.2d at 42.

¶13 As an initial matter, Schwab argues that the current case is the same case as Schwab I for purposes of the law of the case doctrine, but it is technically not the “same case” for purposes of application of RAP 2.5(c)(2), the exception to the law of the case doctrine. Yet both Schwab I and Schwab II arose out of the same trial, convictions, and judgment. It seems illogical to apply the general rule (the law of the case doctrine), but then decline to apply the exception to the rule (RAP 2.5(c)(2)), when both were designed to apply to “the same litigation,” Roberson, 156 Wn.2d at 41, or the “same case.” RAP 2.5(c). If the law of the case doctrine applies, we must also consider the rule-based limitation on the application of that doctrine.1

¶14 Here, Schwab argues that the law of the case doctrine prevents this court or the Court of Appeals from reinstating the manslaughter conviction because that conviction was conclusively deemed to violate double jeopardy in Schwab I, 98 Wn. App. at 188.2 The Court of Appeals exercised its discretion, reviewed the continued validity of Schwab I, and concluded that its holding in that case was no longer correct in light of Andress. Schwab II, 134 Wn. App. at 645. We agree. In Hinton, we reasoned that convictions for second degree felony murder were facially invalid because they were based on a nonexistent crime. Hinton, 152 Wn.2d at 857. We therefore recognize that the Schwab

*674I court clearly erred when it assumed that Schwab’s second degree felony murder conviction was valid. Id. Thus, the exception to the law of the case doctrine contained in RAP 2.5(c)(2) provides an avenue for revisiting the Schwab I result.

¶15 Application of RAP 2.5(c)(2) is ultimately discretionary, and the Court of Appeals seems to have acted well within its discretion when it determined that, in these circumstances, reinstatement of the manslaughter conviction best serves the interest of justice. See, e.g., United States v. Tateo, 377 U.S. 463, 466, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964) (considering, in the context of a double jeopardy case, society’s interest in holding the guilty accountable for their crimes). Under the Court of Appeals’ reasoning in this case, Schwab will serve a total of 194 months for his complicity in the death of Sena, but if the manslaughter conviction were not reinstated, it seems he would be released. In sum, our rules of appellate procedure clearly provide a mechanism through which the result of Schwab I can be reevaluated, and the Court of Appeals acted well within its discretion when it determined that the revival of the manslaughter conviction would serve the interest of justice.

¶16 State v. Womac. Schwab relies on our recent decision in State v. Womac, 160 Wn.2d 643, 651, 160 P.3d 40 (2007), for the proposition that a conviction previously vacated because of double jeopardy cannot be reinstated after the remaining conviction has been overturned. In Womac, the Court of Appeals held that double jeopardy was violated when the trial court entered a judgment declaring Womac guilty of homicide by abuse, second degree felony murder, and first degree assault of a child. Id. at 647. The Court of | Appeals directed the trial court to “ ‘conditionally dismiss’ ” the felony murder and assault counts, “allowing for rein-1 statement should [the homicide by abuse conviction] later be reversed, vacated, or otherwise set aside.” Id. at 649 (quoting State v. Womac, 130 Wn. App. 450, 460, 123 P.3d 528 (2005)). We held that the convictions violating double *675jeopardy could uot be conditionally dismissed but must be vacated. Id. Allowing automatic revival of a duplicate conviction after double jeopardy had required dismissal of that conviction improperly allowed the state “multiple bites at the apple.” Id. at 651. Because a defendant faces punitive consequences for convictions even if he is not sentenced under those convictions, “[c]ourts may not . . . enter multiple convictions for the same offense without offending double jeopardy.” Id. at 658. A court has no authority to hold a currently invalid conviction “ ‘in abeyance for a later time.’ ” Id. at 659 (quoting 7 Verbatim Report of Proceedings at 1074). Thus, we directed the trial court to vacate the convictions for second degree felony murder and first degree assault of a child, the lesser convictions. Id. at 660.

¶17 It is important to note that the Court of Appeals in Schwab I did exactly what we determined was required in Womac: it vacated the lesser conviction where convictions for both first degree manslaughter and second degree felony murder violated double jeopardy. Schwab I, 98 Wn. App. at 190. The Womac court denounced the idea of a lurking conviction that can be magically revived after reversal of the remaining conviction. Womac, 160 Wn.2d at 651. Yet in Womac, we did not consider a case in the procedural posture presented here, nor did the Womac court specifically consider the impact of RAP 2.5(c)(2) in this procedural setting.

¶18 The Womac court’s concern that the State will have a second “bite at the apple” is firmly grounded in its double jeopardy concerns. Womac, 160 Wn.2d at 651 (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957) (describing the basis for double jeopardy protection in Anglo-American jurisprudence)). Double jeopardy protects against multiple punishments for the same offense as well as subsequent prosecution for the same offense after acquittal or after conviction. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). But because Schwab successfully challenged both his conviction for first degree manslaughter and his conviction for second degree felony murder, and neither reversal *676involved insufficiency of the evidence, double jeopardy does not prevent another conviction for manslaughter, State v. Ramos, 163 Wn.2d 654, 184 P.3d 1256 (2008), nor should it prevent reinstatement of the manslaughter conviction, so long as our court rules are satisfied. See United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978); State v. Ervin, 158 Wn.2d 746, 758, 147 P.3d 567 (2006). Schwab currently has no conviction terminating jeopardy. Cf. Ervin, 158 Wn.2d at 758. The reinstatement of Schwab’s manslaughter conviction simply does not raise a double jeopardy concern.

¶19 In Folsom, this court included in its analysis of RAP 2.5(c)(2) consideration of whether “ ‘corresponding injustice would result to the other party if the erroneous decision should be set aside.’ ” Folsom, 111 Wn.2d at 264 (quoting Greene v. Rothschild, 68 Wn.2d 1, 10, 414 P.2d 1013 (1966)). It is in this context that we consider this question of fairness to the defendant, by determining whether reinstatement of the manslaughter conviction would result in an injustice to Schwab. Balancing the interests of justice in this case, we conclude that reinstatement of Schwab’s manslaughter conviction avoids injustice, rather than creating it. Reinstatement of the manslaughter conviction means that Schwab will be held accountable for his complicity in Sena’s murder; otherwise he would enjoy a windfall. The Court of Appeals in this case returned Schwab to the same position he would have been in had there been no Andress error. See Ward, 125 Wn. App. at 146 (allowing alternative conviction for manslaughter to be applied after reversal of felony murder conviction, based in part on the fact that otherwise Ward would enjoy a substantial windfall).3

¶20 The plain language of RAP 2.5(c)(2) indicates that only an appellate court can revisit an earlier appellate decision in the same case. While the Court of Appeals *677reasoned that its remand for further lawful proceedings consistent with Andress and Hinton gave the trial court the power to revisit Schwab I and reinstate the manslaughter conviction, the Court of Appeals does not explain how the trial court would have authority to invoke RAP 2.5(c)(2). Schwab II, 134 Wn. App. at 645. Only an appellate court could revisit Schwab I and, under the court rules, only the Court of Appeals could exercise discretion under RAP 2.5(c)(2).4 Even so, the Court of Appeals properly invoked RAP 2.5(c)(2) to reconsider the propriety oí Schwab I. In the practical interest of judicial economy, it does not make sense to require another remand to the trial court for another resentencing.

¶21 Recall of the Mandate. The Court of Appeals in its published opinion opined that it could have alternatively granted the State’s motion to recall the mandate. Schwab II, 134 Wn. App. at 646-47. As the Court of Appeals also recognized, it was unnecessary to resolve that issue. Id. We decline to do so here.

Ill

Conclusion

¶22 We conclude that RAP 2.5(c)(2) provides a clear mechanism under which the Court of Appeals had authority to revisit the propriety of Schwab I in light of Andress and Hinton. Andress and Hinton revealed that Schwab I was incorrect because the remedy in Schwab I depended upon a conviction for a nonexistent crime. The Court of Appeals acted within its discretion when it approved the reinstate*678ment of Schwab’s manslaughter conviction pursuant to RAP 2.5(c)(2). We therefore affirm the Court of Appeals.

Alexander, C.J., and C. Johnson, Madsen, Chambers, and Owens, JJ., concur.