       FILE
       IN CLERICS OFFICE
1U1REM1! COURT, STATE OF WASHINGTON




~~
       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  In the Matter of the Personal Restraint of                    NO. 8 3 9 2 5-5
                                                      (consolidated with No. 84035-1)
  LORRAINE K. NETHERTON,

                              Petitioner.
                                                                   ENBANC


                                                       Filed:     rJUL 1 8 2013


                 PER CURIAM-Lorraine Netherton was convicted of second degree

  murder. The trial court erroneously imposed a firearm sentence enhancement based on

  the jury's "deadly weapon" finding. Because one or more of her appellate counsel

   misapprehended who was representing Netherton at a critical stage of her direct

   appeal, Netherton lost the opportunity to obtain reversal of the firearm enhancement

   under State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008) (Recuenco III), and

   State v. Williams-Walker, 167 Wn.2d 889, 901-02, 225 P.3d 913 (2010). We reverse
   the Court of Appeals on the basis of ineffective assistance of appellate counsel and

   remand to the trial court for resentencing.

                                             FACTS

                  In 1993, a jury convicted Netherton of second degree murder, additionally

   finding by special verdict that Netherton was armed with a "deadly weapon" when she
No. 83925-5                                                                       PAGE2



committed the crime. The trial court imposed a firearm sentence enhancement based

on that finding.
           Netherton's direct appeal was extended for many years due to the changing
legal landscape concerning sentence enhancements. The Court of Appeals initially

reversed the firearm enhancement in light of State v. Recuenco, 154 Wn.2d 156, 110
P.3d 188 (2005) (Recuenco I), where we held that imposing a firearm enhancement

based on a deadly weapon verdict constituted reversible error. State v. Netherton,

noted at 131 Wn. App. 1030 (2006). We granted the State's petition for review and

remanded to the Court of Appeals for reconsideration in light of Washington v.

Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Recuenco II),

which partly reversed Recuenco I and remanded to this court to determine whether the
error was harmless under state law. State v. Netherton, 158 Wn.2d 1006 (2006).

           On remand, the Court of Appeals did not stay Netherton's appeal pending

this court's decision on remand in Recuenco. The court also did not ask for

supplemental briefing on Recuenco II. Furthermore, Netherton's counsel in the Court

of Appeals and her counsel in this court apparently did not confer on the status of
Netherton's appeal in light of the ongoing Recuenco litigation, evidently because one

or both of them thought they were no longer working on the case.

              The Court of Appeals ultimately reversed its original decision in
Netherton's case in light of Recuenco II, holding that imposition of a firearm

enhancement based on the jury's deadly weapon finding was harmless error. State v.
Netherton, noted at 136 Wn. App. 1021 (2006). Netherton did not file a petition for

review, and the Court of Appeals issued its mandate in February 2007.

              In January 2008, Netherton filed a timely personal restraint petition in the
Court of Appeals, reasserting her challenge to the firearm enhancement and arguing
No. 83925-5                                                                       PAGE3



among other things that appellate counsel was ineffective in not briefing the issues

then pending before this court in the Recuenco case and in failing to advise her to file

a petition for review. This court issued its final decision in Recuenco three months

later, holding that imposition of a firearm enhancement when only a deadly weapon

has been charged and found by the jury can never be harmless. Recuenco III, 163

Wn.2d428.

           The Court of Appeals ultimately dismissed Netherton's personal restraint

petition as frivolous, holding that the firearm enhancement was sustainable despite

Recuenco III and that therefore appellate counsel was not ineffective. Netherton, with

the assistance of new counsel, then filed the current motion for discretionary review in

this court. 1 While Netherton's motion was pending, this court elaborated on the

principles announced in Recuenco III, holding that imposition of a firearm

enhancement based on a jury's deadly weapon finding is reversible even when the

State alleged a firearm enhancement in the information and the jury was instructed on

the use of a firearm. Williams-Walker, 167 Wn.2d at 901-02.

           We granted Netherton's motion for discretionary review only on the issue

of whether appellate counsel was ineffective with respect to the firearm enhancement

and referred the matter to the superior court for an evidentiary hearing. The superior

court appointed counsel to represent Netherton, and after the hearing, the court

entered findings of fact and relayed them to this court.




       1
        Netherton also filed a motion for discretionary review of a Court of Appeals order
denying her motion to have a panel of judges review her personal restraint petition. Mot.
for Discretionary Review, In re Pers. Restraint of Netherton, No. 84035-1 (Dec. 4, 2009).
Th~t motion for discretionary review was consolidated under this motion for discretionary
review.
No. 83925-5                                                                      PAGE4



                                     ANALYSIS

          To prevail on a claim of ineffective assistance of appellate counsel,

Netherton must demonstrate the merit of any legal issue appellate counsel raised

inadequately or failed to raise and also show she was prejudiced. In re Pers. Restraint

of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). Netherton's challenge to her

firearm enhancement would have been meritorious under Recuenco III, 163 Wn.2d

428, and Williams-Walker, 167 Wn.2d 889, had the issue been preserved before her

judgment became final in 2007. It was not. The Court of Appeals did not stay her

appeal pending Recuenco III, and counsel did not move for a stay or urge Netherton to

file a petition for review after the Court of Appeals affirmed the firearm enhancement.

Thus, Netherton can no longer rely directly on Recuenco III and Williams-Walker

because both decisions were issued after her judgment and sentence became final, and

neither is retroactively applicable to previously final judgments. In re Pers. Restraint

of Eastmond, 173 Wn.2d 632, 272 P.3d 188 (2012); In re Pers. Restraint of Jackson,

175 Wn.2d 155, 161,283 P.3d 1089 (2012).

          The superior court on referral from this court found that the failure to

preserve the firearm enhancement issue for further appellate review was primarily

caused by a misunderstanding as to who represented Netherton after this court

remanded the case to the Court of Appeals. That misunderstanding effectively left

Netherton unrepresented in the Court of Appeals. If experienced counsel was actively

working on the appeal at that stage, Netherton would have moved for a stay in the

Court of Appeals pending Recuenco III, which the Court of Appeals likely would

have granted. And had the appeal been stayed, the Court of Appeals likely would have

decided the case in light of Recuenco III to Netherton's benefit.
No. 83925-5                                                                     PAGES



           But even if the Court of Appeals would not have reversed the firearm

enhancement under Recuenco III, we are confident Netherton would have sought

review of the decision in this court. Because Netherton's petition for review would

have coincided with our consideration of Williams- Walker, we likely would have

stayed Netherton's case pending that decision, and under that decision, she would

have been entitled to relief. In these unusual circumstances, Netherton has

demonstrated that she was prejudiced by appellate counsel's failure to assist her in

preserving the firearm enhancement issue pending Recuenco III and Williams- ·walker.

           The Court of Appeals is reversed and the case is remanded to the trial court

with directions to vacate the firearm enhancement and resentence Netherton in

accordance with this opinion. 2




       2
         Netherton is indigent. Her motion for appointment of counsel in this court is
granted by separate order. RAP 16.15(h); RAP 15.4.
