                                                                                                 F ` LED
                                                                                        COURT OF APPEALS
                                                                                           DIV[ SIOW TT

                                                                                     20115 JUL 28 AN 8: 26

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    IN THE COURT OF APPEALS OF THE STATE OF WASHY


                                           DIVISION II


 STATE OF WASHINGTON,                                                  No. 46247 -8 -II


                                 Respondent,                    UNPUBLISHED OPINION


          SIA




 RANDY COY HENDERSON,


                                 Appellant.


         BJORGEN, A.C. J. —   Randy. Henderson appeals from the denial of his CrR 7. 8( b) motion

for relief from his conviction for aggravated first degree murder. In 1996, he was convicted of


aggravated first degree murder and first degree felony murder. In 2000, -we affirmed his

convictions and denied his personal restraint petition. After a number of other postconviction


proceedings, on January 10, 2014, the Washington State Supreme Court issued the following

order:



                 Department II of the Court, composed of Chief Justice Madsen and
         Justices Owens, J. M. Johnson, Wiggins and Gordon McCloud, considered this
         matter at its January 7, 2014 Motion Calendar. The personal restraint petition
         challenges Mr. Henderson' s convictions for aggravated first degree murder and
         felony first degree murder of the same victim. The State has correctly conceded
         that the Petitioner' s two murder convictions based on the same act violate double
         jeopardy principles, and that therefore the Petitioner is entitled to vacation of the
         lesser of the two convictions. Accordingly, the Department unanimously agreed
         that the following order be entered.
                 IT IS SO ORDERED:
No. 46247 -8 -II



                      The personal restraint petition is granted and the case is remanded to the
         trial court with directions to vacate the Petitioner' s felony murder conviction.
Clerk' s Papers ( CP) at 63.


         On January 24 and 31, 2014, Henderson filed pro se motions for relief from judgment,

under   CrR 7. 8( b),    and   for   a new   trial,   under   CrR 7. 5.    In those motions, Henderson argued that


public trial violations had occurred during his trial and that disparity of his sentence with that of

his co -participants violates equal protection.


         The trial court did not issue a written ruling on Henderson' s CrR 7. 5 and 7. 8( b) motions.

It ruled orally as follows:

                      And that that lapse of time [ 13 years since Henderson' s judgment was
         final] that this is time barred          and   it is simply      not --   not timely under the rules and
         I' m   not   going to ...    allow -- so under        that, the Court --
                                                                       I am finding that it is not
         timely and that under the court rules, that 7. 5, 7. 8, that there is absolutely no basis
         in which I could find that it would be reasonable to now reopen this case.


Report of Proceedings ( Apr. 24, 2014) at 10- 11.


         The trial court entered the following order modifying the judgment and sentence:

                 Per the decision of the Supreme Court of Washington dated January 8,
         2014, the defendant' s Felony Murder Conviction in paragraph 2. 1 of the judgment
         and sentence filed March 26, 1996 is now vacated, all other provision[ s] of this
         judgment and sentence shall remain in full force and effect.


CP at 132.


         Henderson argues, and the State concedes, that the trial court erred by denying his CrR

7. 8( b) motion as untimely, rather than transferring that petition to us to be considered as a

personal restraint petition, as CrR 7. 8( c) directs. State v. Smith, 144 Wn. App. 860, 863, 184

P. 3d 666 ( 2008).       We accept the concession and remand to the trial court with instructions to


vacate the ruling denying the CrR 7. 8( b) motion and to transfer that motion to us to be




                                                                  2
No. 46247 -8 -II



considered as a personal restraint petition. In light of resolution of his appeal, we need not


address Henderson' s statement of additional grounds.


        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 in accordance with RCW


2. 06. 040, it is so ordered.

                                                            M




                                                     T;   oRr .
                                                                  N1,

                                                                        A. C.   1
 We concur:




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