           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                               DIVISION ONE

In re Personal Restraint of:                     )     No. 77822-6-1
                                                 )
THOMAS WILLIAM SINCLAIR RICHEY,                  )     UNPUBLISHED OPINION
                                                 )
                               Petitioner.       )
                                                 )     FILED: December 2, 2019

        ANDRUS,J. — Thomas William Sinclair Richey asks this court to reverse his

65-year prison sentence, imposed in 1987, because he was only 18 years old

 when he committed the crimes of first degree murder and attempted murder. He

contends that de facto life sentences imposed on 18-year-old offenders are

 unconstitutionally cruel under article 1, section 14 of the Washington Constitution.

 He also argues that RCW 9.94A.730, under which juveniles sentenced to lengthy

 prison terms may request early release, violates equal protection because it

arbitrarily applies only to individuals under the age of 18. Richey, however, cannot

show a significant change in the law to overcome the one-year time bar for a

collateral attack under RCW 10.73.090. We thus dismiss Richey's petition as time-

 barred.

                                             FACTS

       In March 1986, Richey armed himself with a gun and entered a military

electronics store in Tacoma, Washington, with the intent to purchase a television.
No. 77822-6-1/2

While negotiating the purchase with a store clerk, Arlene Rae Koestner, Richey

pulled the gun, led Koestner to the back of the store, demanded to know where the

money was, and after encountering a second store employee, Scott Sanford, shot

both in the head. Koestner died from her injuries. Sanford survived but suffers

from permanent brain damage. Richey was just two months past his 18th birthday.

       The State initially charged Richey with first degree aggravated murder and

first degree attempted murder, and it filed a notice of intent to seek the death

penalty. In 1987, the State agreed not to seek the death penalty in exchange for

Richey's plea to first degree murder and first degree attempted murder. As part of

the plea deal, Richey stipulated to a 65-year exceptional sentence based on two

aggravators: that Richey manifested deliberate cruelty to the victims and that the

standard range sentences for the crimes resulted in a presumptive sentence that

was too lenient given the purpose of the Sentencing Reform Act of 1981.

       On April 23, 1987, the sentencing court accepted the stipulated

recommendation and sentenced Richey to 65 years in prison. Richey did not

timely appeal his sentence.

       Division Two has dismissed at least nine of Richey's personal restraint

petitions filed between 2009 and 2015. In 2007, our Supreme Court accepted

review of one of Richey's personal restraint petitions, where he claimed that his

judgment and sentence were facially invalid because attempted first degree felony

murder was not a crime. In re Pers. Restraint of Richey, 162 Wn.2d 865, 175 P.3d

585 (2008). The Court concluded that while attempted first degree felony murder

is not a crime, Richey pleaded guilty to the alternative crime of attempted first




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degree intentional murder. Id. at 871. It held Richey's judgment and sentence for

that crime to be facially valid. Id. at 872. It dismissed Richey's other claims as

time-barred. Id. at 872-73. The Court denied review of Richey's five subsequent

petitions filed between 2012 and 2013.

       In 2017, Richey filed a petition for a writ of habeas corpus in Snohomish

County Superior Court. That court denied the petition as untimely. Richey

appealed the order directly to our Supreme Court who transferred the case to this

court with instructions to treat Richey's petition as a personal restraint petition.

                                     ANALYSIS

       The State asks the Court to dismiss Richey's current petition as a

successive petition under RCW 10.73.140 and a time-barred petition under

RCW 10.73.090. We conclude this petition is time-barred and decline to address

any other arguments raised by Richey or the State.

       RCW 10.73.090 provides that a collateral attack, such as a personal

restraint petition, may not be filed more than one year after the judgment becomes

final. There are exceptions to this time limitation. Under RCW 10.73.100(6), a

petitioner can overcome the one-year time bar "if he can identify (1) a significant

change in the law, (2) that is material to his conviction or sentence, and (3) that

applies retroactively." In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315, 440

P.3d 978 (2019).

       Richey makes two constitutional arguments:(1)sentencing 18 year-olds to

life without parole or to a de facto life sentence violates article I, § 14 of the

Washington Constitution and (2) RCW 9.94A.730, known as the "Miller-fix" statute,




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violates the equal protection clause because it arbitrarily excludes those who

committed crimes after turning 18. Richey conceded at oral argument that both

arguments raise issues of first impression and that no court has yet adopted the

rulings he seeks here. And Richey argued he was not relying on the "significant

change in the law" exception of RCW 10.73.100(6), despite citing to that statutory

provision in his petition.

       Instead, Richey argued that under Teague v. Lane, 489 U.S. 288, 109 S.

Ct. 1060, 103 L. Ed. 2d 334 (1989), we can reach the merits of his arguments,

regardless of the statutory time limitation on collateral attacks. He contended that

under In re Personal Restraint of Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015), the

Teague "new rule" analysis is different than the "significant change in the law"

analysis under RCW 10.73.100(6). But Tsai does not support the argument that

Teague provides an alternative basis for overcoming the time bar of

RCW 10.73.090.

       In Tsai, two men, Jagana and Tsai, filed personal restraint petitions arguing

they received ineffective assistance of counsel when they entered guilty pleas

because they were not adequately advised of the immigration consequences of

their pleas, in violation of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176

L. Ed. 2d 284 (2010), and State v. Sandoval, 171 Wn.2d 163, 249 P.3d 1015

(2011). 183 Wn.2d at 97-98. Our Supreme Court addressed two separate issues

in Tsai: (1) whether Padilla announced a "new rule" that was inapplicable to

matters on collateral review under Teague and (2) whether Padilla represented a

"significant change in the law" under RCW 10.73.100(6). Tsai, at 99.




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       In general, when a court decision establishes a "new rule," that decision

applies only to cases on direct review or cases that are not yet final.

In re Pers. Restraint of Haqhighi, 178 Wn.2d 435, 443, 309 P.3d 459 (2013); Tsai,

183 Wn.2d at 100. Under Teague, a new rule will apply retroactively to cases on

collateral review in only two situations: when the decision establishes a substantive

rule that places certain behavior "beyond the power of the criminal law-making

authority to proscribe" or when the decision establishes a "watershed rule[] of

criminal procedure" that is "implicit in the concept of ordered liberty." 489 U.S. at

311.

       In Tsai, our Supreme Court noted that there is substantial overlap between

"new rules" under Teague and "significant changes" in state law under

RCW 10.73.100(6), but they are two separate inquiries. Tsai, 183 Wn.2d at 103.

While courts use the Teaque analysis to determine whether a constitutional rule

applies retroactively, "we have never imported league's definition of a new rule

into our analysis of whether there has been a significant change in the law." Id. at

104.

       The Tsai court decided that Padilla was not a "new rule" under Teague but

was instead a straightforward application of the ineffective assistance of counsel

test articulated by the United States Supreme Court in Strickland v. Washington.1

Tsai, 183 Wn.2d at 103. But it also held that Padilla represented a significant

change in the law under RCW 10.73.100(6): "Padilla superseded the theory

underlying [all prior reported decisions]—that anything short of an affirmative



       1 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).


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misrepresentation by counsel of the plea's deportation consequences could not

support the plea's withdrawal. This was a significant change in Washington law."

Id. at 107 (internal quotation marks omitted)(quoting Sandoval, 171 Wn.2d at 170

n.1). Because Padilla was a significant change in the law but not a new rule under

Teague, our Supreme Court concluded that Jagana's personal restraint petition

was not time-barred and that he could benefit from the change in the law on

collateral review. Tsai's petition, however, was found to be an impermissible

successive petition under RAP 16.4(d), so he was not permitted to proceed. Id. at

108. Nothing in Tsai suggests that Teague provides an independent basis for

avoiding the one-year time bar of ROW 10.73.090.

       Richey also relied on In re Personal Restraint of Colbert, 186 Wn.2d 614,

380 P.3d 504 (2016). In that case, our Supreme Court held that its prior decision

in State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014), was a significant change

in the law on the burden of proof in rape cases, but that W.R. was a new rule that

did not apply retroactively to Colbert under Teague. Colbert, 186 Wn.2d at 619,

625-26. As a result, the court dismissed Colbert's petition as time-barred. Id. at

626-27.

      In both Tsai and Colbert, there was a prior decision that the court evaluated

to determine if it represented a significant change in the law within

RCW 10.73.100(6). Only after the petitioner made a showing of a significant legal

change did the court then evaluate whether the change applied retroactively under

Teague.




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No. 77822-6-1/7

      Based on Richey's concession at oral argument that his petition is not based

on a significant change in the law, his petition is beyond the time limits of

RCW 10.73.090, and he fails to meet any time bar exception set out in

RCW 10.73.100. We deny Richey's petition.




WE CONCUR:



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