154 Wn.2d 262, In re Pers. Restraint of Markel

[Nos. 75459-4; 75537-0. En Banc.]

Argued November 10, 2004. Decided May 5, 2005.

In the Matter of the Personal Restraint of ERIC MARKEL , Petitioner . In the Matter of the Personal Restraint of LEADEE MARKEL , Petitioner .

[1] Personal Restraint - Scope - Issue Not Raised on Appeal - In General. A personal restraint petitioner raising a new issue must show that he or she was actually and substantially prejudiced by constitutional error or that a nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice.

[2] Personal Restraint - Multiple Petitions - Statutory Limitation - Effect on Supreme Court. The RCW 10.73.140 procedural bar to successive personal restraint petitions does not apply to the Supreme Court.

[3] Personal Restraint - Multiple Petitions - New Issues - Good Cause - Necessity. The Supreme Court may consider a successive personal restraint petition that is similar to a prior petition if "good cause" is shown.

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[4] Criminal Law - New Principle of Law - Retroactivity - Cases Already Final. A new rule of criminal procedure will not be applied retroactively to cases on collateral review unless (1) the new rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe or (2) the new rule requires the observance of procedures implicit in the concept of ordered liberty. Under this test, retroactive effect is given to only a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding; the new rule must be one without which the likelihood of an accurate conviction is seriously diminished. For purposes of the test, a "new rule" is one that breaks new ground or that was not dictated by precedent existing at the time the petitioner's conviction became final.

[5] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial Statement - New Rule - Retroactivity - Cases on Collateral Review. The decision in Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) that hearsay testimony relating a testimonial statement made by an unavailable declarant may be admitted in a criminal trial only if the defendant had a prior opportunity to cross-examine the declarant, although constituting a new rule of criminal procedure, does not apply retroactively to cases on collateral review.

[6] Criminal Law - Punishment - Sentence - Criminal History - "Same Criminal Conduct" - Determination - By Jury - Necessity. Where a jury determines that a defendant committed multiple separate counts of the same offense against the same victim but does not consider or decide exactly when each count was committed, the trial court's sentencing for the separate counts does not entail an implicit "factual determination" that the separate counts do not constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.525 (5)(a) in violation of the Sixth Amendment right to have a jury make the determination upon proof beyond a reasonable doubt. A "same criminal conduct" finding under RCW 9.94A.525 (5)(a) operates only to decrease an otherwise applicable sentencing range and is an exception to the default rule that all convictions must count separately.

SANDERS and C. JOHNSON , JJ., dissent by separate opinion; J.M. JOHNSON , J., did not participate in the disposition of this case.Nature of Action: Co-offenders who were each convicted of four counts of first degree rape of a child sought relief from personal restraint on claims that hearsay testimony of out-of-court statements made by the child victim who did not testify at trial violated their constitutional right to

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confront adverse witnesses under a recent United States Supreme Court ruling that hearsay testimony relating a testimonial statement made by an unavailable declarant may be admitted in a criminal trial only if the defendant had a prior opportunity to cross-examine the declarant. The petitioners also claimed that the trial court's sentencing for all four counts involved an implicit finding that the counts did not constitute the same criminal conduct for sentencing purposes in violation of their Sixth Amendment right to have a jury make such a finding upon proof beyond a reasonable doubt.

Supreme Court: Holding that the new rule concerning the confrontation rights of criminal defendants does not apply retroactively to cases on collateral review and that the Sixth Amendment jury trial right was not implicated by the trial court's sentencing of the petitioners, the court denies the petitions.

Rodney Reinbold , for petitioners.

Karl F. Sloan , Prosecuting Attorney for Okanogan County, and Jennifer R. Richardson , Deputy, for respondent.

Sheryl G. McCloud , James E. Lobsenz , Rita J. Griffith , and Jeffrey L. Fisher on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.

Pamela B. Loginsky on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.

¶1 OWENS , J. - Petitioners Eric and Leadee Markel (Markels) seek reversal of their convictions under Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), resentencing under Blakely v. Washington , __ U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and

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appointment of counsel at public expense. In March 1991, the Markels were each convicted by a jury on four counts of first degree rape of a child of their then five-year-old daughter, Ricki Markel. Ricki was ruled incompetent to testify at trial, and her account of the Markels' conduct was related to the jury under the child hearsay exception by multiple witnesses. The Markels were sentenced to the minimum term within the applicable sentencing range of 210-280 months on each count, to be served concurrently, and both are currently serving that sentence. Because Crawford does not apply retroactively to cases on collateral review, and because the Markels' sentencing does not raise a Blakely issue, their personal restraint petitions must be dismissed.

FACTS

A. Background

¶2 The Markels were charged either directly or as accomplices with first degree rape of a child in the following manner:

Count I: Digital penetration of the mother by the child on or about November 24, 1990; father accomplice.

Count II: Penile penetration by the father on or about November 24, 1990; mother accomplice.

Count III: Digital penetration of the child by the father between September 1 and November 24, 1990; mother accomplice.

Count IV: Digital penetration of the child by a parent between September 1 and November 24, 1990; other parent an accomplice.

Count V: Contact by the child's mouth with the mother's vagina between September 1 and November 24, 1990; father accomplice.

Excerpt of Record (ER) at 129-32, Third Am. Information; ER at 133-34, Additional Bill of Particulars.

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¶3 In a pretrial hearing, Ricki was declared incompetent to testify at trial because of her age. The court went on to rule that the child hearsay exception was applicable as to testimony of five witnesses: (1) Leola Houtz, Ricki's grandmother, (2) Keith Houtz, Ricki's grandfather, (3) Arlen Johnson, the nurse practitioner who first examined Ricki, (4) Suzanne Craig, a Department of Social and Health Services social worker, and (5) Officer Joe Somday of the Omak Police Department, who recorded an interview with Ricki. Each of these witnesses related to the jury various statements made by Ricki concerning the sexual abuse allegations. In March 1991, the jury found both Leadee and Eric Markel guilty of counts I, II, IV, and V, based largely on the hearsay testimony, with some corroborating medical evidence. The Markels' four first degree rape of a child convictions resulted in an offender score of 9 with a seriousness level of 11. Consequently, the applicable sentencing range was 210-280 months, out of which the Markels each received 210 months.

B. Procedural History

¶4 After their trials, the Markels undertook a direct appeal to Division Three of the Court of Appeals, which affirmed the convictions. State v. E.D.M. and State v. L.M.M. , noted at 70 Wn. App. 1064 (1993). This court entered an order denying the Markels' petition for review on February 2, 1994. 123 Wn.2d 1009, 869 P.2d 1084 (1994). In 1995, the Markels filed personal restraint petitions in Division Three of the Court of Appeals challenging the use of child hearsay under the then-applicable confrontation clause requirements articulated in Ohio v. Roberts , 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Those petitions were dismissed by the Court of Appeals, and this court again denied review. Finally, the Markels filed petitions for writs of habeas corpus in United States District Court for the Eastern District of Washington, again challenging, inter alia, the admission of the child hearsay statements under Ohio v. Roberts . The Markels' habeas

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corpus petitions were dismissed by the district court, and the United States Court of Appeals for the Ninth Circuit affirmed on August 1, 2000. Markel v. Walter , noted at 232 F.3d 895 (9th Cir. 2000) (unpublished).

ISSUES

¶5 1. Does Crawford apply retroactively to cases on collateral review that have been deemed "final" for purposes of direct review?

¶6 2. Are Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely implicated where the trial court sentenced the Markels to the low end of the applicable range, but the jury verdict did not specify the exact dates of the conduct constituting the basis for each count?

¶7 3. Do Apprendi and Blakely apply retroactively to cases on collateral review that have been deemed "final" for purposes of direct review?

¶8 4. Are the Markels entitled to the appointment of counsel at public expense?

STANDARD OF REVIEW

[1-3]¶9 On collateral review, a petitioner raising a new issue must show that he or she was actually and substantially prejudiced by constitutional error or that a nonconstitutional error occurred constituting a fundamental defect that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Lord , 123 Wn.2d 296 , 303, 868 P.2d 835 (1994). The bar on successive petitions under RCW 10.73.140 does not apply to the state Supreme Court. In re Pers. Restraint of Johnson , 131 Wn.2d 558 , 566, 933 P.2d 1019 (1997). However, where the second petition is similar to the first, "good cause" must be shown. Id . at 564-66.

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ANALYSIS

A. Crawford 's Retroactivity

¶10 Historically, we have attempted to maintain congruence in our retroactivity analysis with the standards articulated by the United States Supreme Court.«1» See In re Pers. Restraint of Sauve , 103 Wn.2d 322 , 328, 692 P.2d 818 (1985) (holding that the balancing test established by the United States Supreme Court was still appropriate to determine the retroactivity or nonretroactivity of a new decision); In re Pers. Restraint of St. Pierre , 118 Wn.2d 321 , 324-26, 823 P.2d 492 (1992) (stating that "we have attempted from the outset to stay in step with the federal retroactivity analysis," and discussing a recent change in the federal retroactivity analysis); In re Pers. Restraint of Benn , 134 Wn.2d 868 , 940, 952 P.2d 116 (1998) (citing the federal analysis discussed by this court in St. Pierre as the current retroactivity analysis in Washington State). Cf . State v. Hanson , 151 Wn.2d 783 , 789, 91 P.3d 888 (2004) (stating that St. Pierre sets out the current prospective application analysis in Washington, which is derived from the two United States Supreme Court retroactivity analysis cases cited in St. Pierre ).

[4]¶11 The current incarnation of our retroactivity analysis was first summarized in St. Pierre as follows:

1. 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, with no exception for cases in which the new rule constitutes a clear break from the past.

2. A new rule will not be given retroactive application to cases on collateral review except where either: (a) the new rule places certain kinds of primary, private individual conduct

«1»While we have long looked to the federal retroactivity analysis for guidance, our use of this analysis does not necessarily define the full scope of RCW 10.73.100 (6). We do not foreclose the possibility that there may be a case where a petitioner would not be entitled to relief under the federal analysis as it exists today, or as it may develop, but where sufficient reason would exist to depart from that analysis. This is not that case.

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beyond the power of the state to proscribe, or (b) the rule requires the observance of procedures implicit in the concept of ordered liberty.

118 Wn.2d at 326 (citing Griffith v. Kentucky , 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); Teague v. Lane , 489 U.S. 288, 311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)). In this case, part one of the analysis is inapplicable because the Markels long ago exhausted direct review and their cases are now final. Part two, subsection (a), is also inapplicable because Crawford did not announce a new rule of substantive law but, rather, articulated a change in the procedures required under the Sixth Amendment's confrontation clause. Thus, the question presented is whether Crawford is a "new rule" of procedure "implicit in the concept of ordered liberty" under the so-called Teague analysis.

¶12 The United States Supreme Court has recently described the Teague analysis as "giv[ing] retroactive effect to only a small set of ' "watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceeding.' " Schriro v. Summerlin , __ U.S. __, 124 S. Ct. 2519, 2523, 159 L. Ed. 2d 442 (2004) (quoting Saffle v. Parks , 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990) (quoting Teague , 489 U.S. at 311)). Further, "the rule must be one 'without which the likelihood of an accurate conviction is seriously diminished.' " Id . (quoting Teague , 489 U.S. at 313). Finally, the Court has noted that "[t]his class of rules is extremely narrow, and 'it is unlikely that any . . . "ha[s] yet to emerge." ' "«2» Id . (alteration in original) (quoting Tyler v. Cain , 533 U.S. 656, 667 n.7, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001) (quoting

«2»As amicus curiae Washington Association of Prosecuting Attorneys correctly states, the United States Supreme Court has yet to hold that any rule falls within the "watershed rules of criminal procedure" exception described in Teague . See United States v. Mandanici , 205 F.3d 519, 529 (2d Cir. 2000) (taking note that "[b]eginning with the rule at issue in Teague , the Court has measured at least eleven new rules, or proposed new rules, of criminal procedure against the criteria for the second exception and, in every case, has refused to apply the rule at issue retroactively"); see also United States v. Sanchez-Cervantes , 282 F.3d 664, 669 n.23 (9th Cir. 2002).

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Sawyer v. Smith , 497 U.S. 227, 243, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990))). It is with these principles in mind that we evaluate the possible retroactive application of Crawford .

[5]¶13 Amicus curiae Washington Association of Criminal Defense Lawyers (WACDL) first raises the possibility that the Teague analysis does not apply because Crawford is not a "new rule." This argument is unavailing. A "new rule" is one that "breaks new ground" or "was not dictated by precedent existing at the time the defendant's conviction became final." Teague , 489 U.S. at 301. The testimony the Markels now argue was erroneous under Crawford was held admissible under Ohio v. Roberts on multiple occasions.«3»The State concedes, without specifying, that some of that testimony would now be inadmissible under Crawford . Thus, while the reasoning in Crawford relied upon the historical underpinnings of the confrontation clause, the rule itself is a departure from previous United States Supreme Court precedent. Additionally, as WACDL states elsewhere in its amicus brief, the Crawford Court "explicitly overturn[ed] its own prior decision of 24 years before in Ohio v. Roberts " and Crawford is an "upheaval[ ] in confrontation clause law." WACDL Br. at 11. As defined in the Teague analysis, Crawford articulated a new rule of criminal procedure.

¶14 Although the question of whether Crawford applies retroactively has yet to be addressed in our appellate courts, several federal courts and appellate courts in other states have done so under the Teague analysis discussed above. With only two apparent exceptions, all of these courts have concluded that Crawford does not apply retroactively to cases on collateral review. See Mungo v. Duncan , 393 F.3d 327, 334-36 (2d Cir. 2004); Dorchy v. Jones , 398 F.3d 783, 788 (6th Cir. 2005); Murillo v. Frank , 402 F.3d

«3»The trial court conducted a pretrial hearing on the admissibility of the child hearsay, and the confrontation clause challenge was litigated under the Ohio v. Roberts standard in both a previous personal restraint petition and a habeas corpus petition in federal court that was ultimately heard by the Ninth Circuit Court of Appeals.

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786, (7th Cir. 2005); Evans v. Luebbers , 371 F.3d 438, 444 (8th Cir. 2004); Brown v. Uphoff , 381 F.3d 1219, 1227 (10th Cir. 2004); Haymon v. New York , 332 F. Supp. 2d 550, 557 (W.D.N.Y. 2004); People v. Edwards , 101 P.3d 1118 (Colo. Ct. App. 2004). But see Bockting v. Bayer , 399 F.3d 1010, 1021-24 (9th Cir. 2005) (stating that Crawford is a watershed rule of criminal procedure with concurrence agreeing in principle, but arguing that Crawford is not a "new rule" of criminal procedure); Richardson v. Newland , 342 F. Supp. 2d 900, 923-25 (E.D. Cal. 2004) (opining that Crawford is not a "new rule" of criminal procedure for purposes of the Teague retroactivity analysis, but concluding that the defendant's habeas corpus petition should be granted because his confrontation clause rights were violated even under Ohio v. Roberts ).«4»

¶15 Without addressing the validity or existence of the cases holding that Crawford is not to be applied retroactively under Teague , the Markels and WACDL argue that Crawford is a "watershed rule of criminal procedure." In doing so, they eschew discussion of the retroactive application of Crawford itself and, instead, rely on three cases where a change in the confrontation clause analysis was applied retroactively. Two of the cases, Roberts v. Russell , 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968), and Berger v. California , 393 U.S. 314, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969), are per curiam decisions decided by the United States Supreme Court under a retroactivity doctrine later superseded by Teague . In deciding the outcome of a habeas corpus petition, the Roberts Court applied the rule that the admission of a defendant's extrajudicial confession implicating a codefendant violates the right to cross-exami

«4»We respectfully disagree with the lead opinion and concurrence in Bockting to the extent the Ninth Circuit's analysis differs from our own. Additionally, we note that the dissent's characterization of Bockting as "more than persuasive" is simply incorrect. See Dissent at 277-78. We have never held that an opinion from the Ninth Circuit is more or less persuasive than, for example, the Second, Sixth, Seventh, Eighth, or Tenth Circuits - all of which have taken a position contrary to Bockting . Finally, the availability of a renewed habeas corpus petition is not only unknown, as we cannot foresee whether en banc review by the Ninth Circuit or review by the United States Supreme Court is forthcoming, but it is also irrelevant for the purposes of developing our own retroactivity jurisprudence.

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nation under the confrontation clause retroactively. 392 U.S. at 294. In contrast, Berger was not a case before the Court on collateral review and would not, therefore, be subject to the Teague analysis if decided today. 393 U.S. 314. The Berger Court held that a new rule, stating that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the state made a good faith effort to secure the witness' presence, applied retroactively. Id . at 314-15.

¶16 Both Roberts and Berger applied the retroactivity doctrine established in Linkletter v. Walker , 381 U.S. 618, 639, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) (stating that rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial are applied retroactively), which was discussed and superseded by the analysis established in Teague . See St. Pierre , 118 Wn.2d at 324 -26 (describing the evolution of the federal retroactivity doctrine from Linkletter to Teague ). Because Roberts and Berger were not subject to the strict limitations on retroactivity that apply to cases on collateral review after Teague , they provide little or no persuasive analogy to Crawford .

¶17 WACDL's third source of authority for its argument that Crawford is a "watershed rule of criminal procedure" is Graham v. Hoke , 946 F.2d 982 (2d Cir. 1991), cert. denied , 502 U.S. 1039 (1992). In Graham , the Second Circuit evaluated the retroactivity of a confrontation clause case decided by the United States Supreme Court, which held that a defendant's confession may not be admissible against a codefendant in a joint trial even if the codefendant has separately confessed. 946 F.2d at 993. Graham applied the rule retroactively to a case on collateral review as a watershed rule of criminal procedure under Teague . Id . Despite the retroactive application of the rule, the Graham court went on to ultimately dismiss the habeas corpus petition on harmless error grounds. Id . at 997. In essence, we are asked to ignore the multitude of state and federal courts that have explicitly held that Crawford does not apply retroactively to

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cases on collateral review under Teague and instead hold that Crawford does apply retroactively because it has some similarity to the Second Circuit's decision in Graham , relating to the use of out of court confessions by codefendants. We decline the invitation to disregard several cases directly on point in favor of a tenuously analogous case that was decided well before the Teague analysis was fully developed.«5»

¶18 In sum, we agree with the overwhelming majority of courts holding that Crawford did not announce a "watershed rule[ ] of criminal procedure" . . . " 'without which the likelihood of an accurate conviction is seriously diminished' " under the Teague analysis. Schriro , 124 S. Ct. at 2523 (quoting Teague , 489 U.S. at 311, 313). Instead, Crawford is plainly seen as a new definition of the confrontation clause requirements, intended to more accurately reflect the constitutional framers' intent. Where before, under Ohio v. Roberts , the confrontation clause required only "adequate indicia of reliability" for the admission of all hearsay evidence, 448 U.S. at 66, a defendant's right of confrontation now requires the unavailability of the witness and a prior opportunity for cross-examination if "testimonial" hearsay evidence is at issue. Crawford , 124 S. Ct. at 1374. Criminal defendants who were denied Crawford 's procedural requirements by reason of timing were not dispossessed of all meaningful opportunity to challenge the admission of the testimony. The Markels themselves, for example, challenged the child hearsay testimony under the Ohio v. Roberts standard at trial, in their first personal restraint petition, and in a federal habeas corpus petition.

B. The Markels' Sentencing under Apprendi and Blakely

[6]¶19 The United States Supreme Court's recent holding in Blakely dictates that "the 'statutory maximum' . . . is the maximum sentence a judge may impose solely on the

«5»Additionally, as noted above, the Second Circuit has now explicitly ruled that Crawford does not apply retroactively to cases on collateral review under the Teague doctrine. See Mungo , 393 F.3d at 336.

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basis of the facts reflected in the jury verdict or admitted by the defendant ." 124 S. Ct. at 2537. This holding clarified Apprendi , which stated that "[o]ther 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." 530 U.S. at 490.

¶20 The Markels argue that their cases should be remanded for resentencing because the trial judge made "factual determinations" properly within the province of the jury under Apprendi and Blakely . Counts I and II of the third amended information allege acts constituting first degree rape of a child, both occurring on or about November 24, 1990. ER at 129-30. Counts IV and V allege acts occurring between September 1, 1990, and November 24, 1990, without alleging specific dates. The Markels suggest vaguely that the jury did not consider or decide exactly when the crimes were committed and, therefore, when the judge sentenced them for separate counts, he was making a factual determination that each count did not involve the same criminal conduct. This, the Markels reason, was an unconstitutional deprivation of their right to have a jury determine facts that increased their penalty because the four separate convictions resulted in the application an offender score of 9 at sentencing.

¶21 We first look to RCW 9.94A.525 (5)(a), which states in relevant part as follows:

In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except: (i) Prior offenses which were found, under RCW 9.94A.589 (1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score.

Under this sentencing scheme, a "same criminal conduct" finding is an exception to the default rule that all convictions must count separately. Such a finding can operate only to decrease the otherwise applicable sentencing range. The jury determined that the Markels were guilty of four

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separate counts, and no aggravating factors were considered by the judge. Accordingly, Apprendi and Blakely are not implicated under the facts of the Markels' cases because the "same criminal conduct" finding could only have lowered their applicable sentencing range and, therefore, the Markels are not entitled to resentencing.«6»

C. Appointment of Counsel

¶22 The Markels request the appointment of their attorney, Rodney Reinbold, at public expense, as well as a waiver of the filing fees and record reproduction costs. While we compliment Mr. Reinbold for his pro bono efforts on this difficult and important case, the request for appointment of counsel and waiver of fees is denied.

CONCLUSION

¶23 The stringent showing required to obtain the retroactive application of a new procedural rule, embodied in the Teague analysis, favors finality of judgment. The mere possibility that the outcome of a trial or hearing may have been impacted by the new procedural rule in Crawford does not lead inexorably to the necessity for a retroactive application of that rule. While the right of confrontation is a fundamental guaranty in the Sixth Amendment, pre- Crawford criminal cases, including those of the Markels, were adjudicated under the relatively well-developed "adequate indicia of reliability" standard dating back 24 years to Ohio v. Roberts . Accordingly, we hold that the new procedural rules for the admission of testimonial hearsay, as articulated in Crawford , do not apply retroactively to cases on collateral review. Further, we hold that Apprendi and Blakely are not implicated by the facts of the Markels' sentencing because a "same criminal conduct" finding could only lower the applicable range. The personal restraint

«6»Notably, the Markels' argument that the four counts constitute the same criminal conduct was rejected in their direct appeal and first personal restraint petition. ER at 178B-79.

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petitions of Eric and Leadee Markel are dismissed, and the request for appointment of counsel and waiver of fees and costs is denied.

ALEXANDER, C.J.; MADSEN, BRIDGE, CHAMBERS, and FAIRHURST, JJ.; and IRELAND, J. Pro Tem., concur.

¶24 SANDERS , J. (dissenting) - The majority holds that a United States Supreme Court case which overrules 24 years of precedent fundamentally altering the standards for admission of hearsay evidence under the confrontation clause of the United States Constitution is not a new rule which requires the observance of procedures implicit in the concept of ordered liberty.«7»I disagree.

¶25 Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), marked a complete reversal of the confrontation clause standards articulated in Ohio v. Roberts , 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Before Crawford , the confrontation clause was thought to permit hearsay evidence where there were "adequate 'indicia of reliability,' " which could be "inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Roberts , 448 U.S. at 66. But after Crawford , testimonial statements of absent witnesses are inadmissible unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford , 124 S. Ct. at 1374. I therefore conclude this is a " 'watershed rule[ ] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding," and " 'without which the likelihood of an accurate conviction is seriously diminished.' " Schriro v. Summerlin , ___ U.S. ___, 124 S. Ct. 2519, 2523, 159 L. Ed. 2d 442 (2004) (quoting Saffle v. Parks , 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990)). Further, the new rule " 'alter[ed] our understanding of the bedrock procedural elements ' essential to the fairness of [the] proceeding" and thus must be applied retroactively. Sawyer v. Smith ,

«7» See In re Pers. Restraint of St. Pierre , 118 Wn.2d 321 , 326, 823 P.2d 492 (1992).

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497 U.S. 227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990) (quoting Teague v. Lane , 489 U.S. 288, 311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)).

¶26 While I acknowledge the majority cites a significant number of cases that have reached a different conclusion, these cases are not binding precedent and were wrongly decided. If Crawford was not a "watershed" case, I do not know what is.

¶27 Further, while the majority cites many cases that essentially quote the "magic words" of Teague and Schriro , dismissing retroactivity claims with little further analysis, the majority rejects cases that provide in-depth retroactivity analysis and persuasive reasoning . Three courts that have comprehensively analyzed the retroactivity of United States Supreme Court decisions regarding the confrontation clause have concluded that such decisions apply retroactively.

¶28 Most recently, the Ninth Circuit concluded that Crawford applies retroactively in Bockting v. Bayer , 399 F.3d 1010 (9th Cir. 2005). Bockting resulted in three opinions and provides the best explication of the Crawford retroactivity issue yet published. The majority opinion noted "[t]he Supreme Court has repeatedly and without deviation held that the purpose of the Confrontation Clause is to promote accuracy." Bockting , 399 F.3d at 1017. "[T]he heart of the Court's concerns in Crawford was the reliability of admitted evidence. Where admitted evidence is unreliable, the accuracy of convictions is seriously undermined. . . . [The rule in Crawford ] is an 'absolute pre-requisite to fundamental fairness.' " Id . at 1018-19 (quoting Sawyer v. Smith , 497 U.S. 227, 244, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990)).

¶29 The Bockting majority further noted that "the [Supreme] Court describes the right of confrontation as a 'bedrock procedural guarantee.' " Id . at 1020. The concluding paragraph merits extensive quotation:

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The Court has found repeatedly that the purpose of the Confrontation Clause is to promote accuracy, and thus Crawford rejected the Roberts framework as reflective of "a fundamental failure on our part to interpret the Constitution in a way that secures its intended constraint on judicial discretion." Viewing these holdings together leads to the conclusion that the Crawford rule is one without which the likelihood of accurate conviction is seriously diminished.

Id . at 1021 (citations omitted) (quoting Crawford , 124 S. Ct. at 1373).

¶30 While "the Ninth Circuit's interpretation of federal constitutional law is persuasive authority," State v. Hanna , 123 Wn.2d 704 , 718, 871 P.2d 135 (1994), in this case it is more than persuasive. In the Ninth Circuit "[o]nce a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court." Hart v. Massanari , 266 F.3d 1155, 1171 (9th Cir. 2001). The majority opinion in Bockting is binding on all federal district courts and all subsequent appellate panels until overruled en banc or until the United States Supreme Court decides the issue. Given the Ninth Circuit has now resolved the exact same issue contrary to the majority opinion, Markel will merely file a habeas petition and receive his relief in federal court. See , e.g ., State v. Hanna , 123 Wn.2d 704 , 871 P.2d 135 (1994), habeas granted sub nom. Hanna v. Riveland , 87 F.3d 1034 (9th Cir. 1996).

¶31 A similar exhaustive analysis of Crawford 's retroactivity was performed by New York State trial court judge Marcy L. Kahn. Justice Kahn ultimately held:

As noted, the Supreme Court held in Crawford itself, and the New York Court of Appeals has held in Eastman , that the right to confront witnesses is a "bedrock rule" of criminal procedure. ( Crawford v. Washington , 124 S. Ct. at 1359; People v. Eastman , 85 N.Y.2d 265, 275[, 648 N.E.2d 459, 624 N.Y.S.2d 83 (1995)]). Further, the violation of a defendant's right to cross-examine a witness who has made a testimonial statement against him or her, according to Crawford , calls into question

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the reliability of the testimony admitted at trial. This concern implicates the fundamental fairness of the trial, may have a significant effect on the integrity of the fact-finding process, and could compromise the jury's determination of a defendant's guilt, as long-standing Supreme Court precedent has shown. Accordingly, applying Teague 's teachings, this court finds that the rule announced in Crawford is a "watershed" rule of Criminal Procedure, and thus applies to cases on collateral review.

People v. Watson , 5 Misc. 3d 1013(A), 2004 N.Y. Slip Op. 51364(U), 2004 WL 2567124, at *7, 2004 N.Y. Misc. LEXIS 2133 (2004).«8»

¶32 Finally, Graham v. Hoke , 946 F.2d 982 (2d Cir. 1991), examined the United States Supreme Court's reversal of its precedent regarding the confrontation clause. While the issue differed slightly,«9»the factors the Second Circuit found relevant to determine whether the new rule should be applied retroactively are very similar to the circumstances in Crawford . The United States Supreme Court's reversal of a landmark precedent concerning the " 'bedrock procedural element' . . . [of] the right of confrontation; a right which the Supreme Court long ago referred to as being '[o]ne of the fundamental guarantees of life and liberty' "«10»required the Graham court to find the rule should be applied retroactively. Given that Crawford (1) dealt with a very similar procedural rule concerning (2) the same bedrock confrontation principle and (3) overruling a landmark prior precedent, thus fundamentally changing our understanding of the requirements of the bedrock principle embodied in the confrontation clause, I can only conclude that the Graham court's extensive analysis is right on

«8»The New York Court of Appeals is the highest appellate court in the State of New York.

«9» Graham examined the United States Supreme Court's overruling of Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), by Cruz v. New York , 481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987). Cruz overruled Bruton on the issue of whether admitting interlocking confessions in a joint trial violated the confrontation clause.

«10» Graham , 946 F.2d at 994 (quoting Kirby v. United States , 174 U.S. 47, 55, 19 S. Ct. 574, 577, 43 L. Ed. 890 (1899)).

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target, and that Crawford must be applied retroactively. Collectively, Bockting , Watson , and Graham present the best reasoned and most persuasive analysis on whether Crawford should apply retroactively, and I would simply follow these courts' learned example.

¶33 If Crawford applied, the Markels would clearly be entitled to a new trial. The testimony of Officer Somday and Suzanne Craig constituted testimonial hearsay because Ricki's statements were obtained by police interrogation, as defined in Crawford . 124 S. Ct. at 1365. Ricki was unavailable, having been ruled incompetent to testify because of her age, and there was no opportunity for prior cross-examination as required by Crawford . Id. at 1374.

¶34 I dissent.

C. JOHNSON, J., concurs with SANDERS, J.