                                                                    CMTO^APPEALSOJVI
                                                                     STATE OF WASHINGTON
                                                                    20UMARIO AM 9:37

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

IN THE MATTER OF THE                             No. 69387-5-1
PERSONAL RESTRAINT OF:



THOMAS J. PAULSON,                               UNPUBLISHED OPINION

                     Petitioner.                 FILED: March 10,2014


       PER CURIAM —Thomas Paulson filed this personal restraint petition challenging

his convictions for possession of a controlled substance and unlawful possession of

payment instruments in Snohomish County Superior Court Cause No. 06-1-02565-7.

Because, as the State concedes, Paulson is entitled to relief by the retroactive

application of Arizona v. Gant. 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009),

we grant Paulson's petition and remand to the superior court for suppression of the

evidence obtained from the warrantless search of Paulson's vehicle.

       On December 30, 2005, Mountlake Terrace Police Officer Scott King pulled over a

vehicle because its license tabs had expired. Thomas Paulson was driving the vehicle but

was not the registered owner. After Paulson identified himself, Officer King discovered

that Paulson was driving with a suspended license and arrested him. Officer King secured

Paulson in his patrol car and proceeded to search the passenger compartment of the

vehicle incident to arrest. The search revealed cocaine, heroin, and stolen financial

instruments.
No. 69387-5-1/2


       Paulson timely appealed his conviction by a jury of possession of a controlled

substance and unlawful possession of payment instruments, arguing that the deputy

prosecutor committed misconduct and that the sentencing court exceeded its authority by

ordering him to participate in a mental health evaluation and treatment as a condition of

community custody. This court affirmed Paulson's convictions in an unpublished opinion,

State v. Paulson, No. 60917-3-1, issued on February 23, 2009.

       On April 23, 2009, the United States Supreme Court issued its decision in Gant,

which set forth the circumstances in which law enforcement may, under the Fourth

Amendment, conduct a warrantless search of a vehicle incident to an arrest. Following

Gant, such a search is lawful "only if the arrestee is within reaching distance of the

passenger compartment at the time of the search or it is reasonable to believe the

vehicle contains evidence of the offense of arrest."1 Gant, 556 U.S. at 351.

       Paulson filed a petition for review to the Washington Supreme Court, which was

denied on September 9, 2009. This court entered the mandate terminating Paulson's

direct appeal on October 23, 2009.

       On or about September 25, 2012, Paulson filed a motion in the superior court

seeking to vacate his convictions, claiming that the search of his vehicle was unlawful

under Gant. The superior court transferred the matter to this court for consideration as

a personal restraint petition.2 CrR 7.8(c)(2).


       1The Washington Supreme Court further limited this authority in State v. Snapp,
174 Wn.2d 177, 275 P.3d 289 (2012), holding the "vehicle containing evidence of the
crime of arrest" exception to be unconstitutional under article I, section 7 of the
Washington State Constitution.
      2This is Paulson's second personal restraint petition. On December 28, 2008,
Paulson filed his first personal restraint petition, No. 62720-1, in which he argued that
No. 69387-5-1/3


      On July 24, 2013, this court remanded Paulson's petition to the superior court for

a reference hearing in order to determine whether the search incident to arrest was

lawful pursuant to Gant, and, if not, whether the search was lawful under any other

exception to the warrant requirement. The superior court entered the following findings

of fact and conclusions of law:

                                   FINDINGS OF FACT

       1.     Montlake [sic] Terrace Police Officer Scott King was on duty on
              Dec. 30, 2005, when he encountered the defendant driving a
              vehicle at 2 a.m. northbound on Hwy 99 with expired tabs. 1 Trial
              RP 31-32.


       2.     Officer King stopped the vehicle for expired tabs. 1 Trial RP 32.

       3.     The vehicle was not registered to the defendant. 1 Trial RP 67.

       4.     Prior to the stop, Officer King did not see the defendant making any
              furtive movements. 1 Trial RP 61-62, 76.

       5.     Upon obtaining biographical data from the defendant and running
              this information through dispatch, dispatch "gave [Officer King]
              reason" to arrest the defendant.131 1 Trial RP 32-33.

       6.     Officer King arrested the defendant. 1 Trial RP 33.

       7.     Officer King placed the defendant in his patrol car and then searched
              the passenger compartment of the vehicle incident to arrest. 1 Trial
              RP 39, 52.

       8.     The search of the passenger compartment yielded controlled
              substances, access devices, and stolen financial instruments. 1 Trial
              RP 39-46, 52, 62, 64-65.




the deputy prosecutor committed misconduct, defense counsel was constitutionally
ineffective for failing to make certain objections, and that he was entitled to a new trial
based on newly discovered evidence. This court stayed Paulson's petition pending his
direct appeal and subsequently dismissed it as frivolous on February 24, 2010.
       3(Footnote omitted.)
No. 69387-5-1/4

                             CONCLUSIONS OF LAW

      1.     Officer King's stop of the vehicle for expired tabs was lawful.

      2.     The arrest of the defendant was lawful....

      3.     Pursuant to Arizona v. Gant. 556 U.S. 332, 129 S. Ct. 1710, 173 L.
             Ed. 2d 485 (2009) and its progeny (including State v. Valdez. 167
             Wn.2d 761, 777, 224 P.3d 751 (2009) and
             State v. Patton, 167 Wn.2d 379, 394-95, 219 P.3d 651 (2009)), the
             2005 warrantless search of the passenger compartment of the
             vehicle incident to arrest would not be lawful if conducted today.
             There was no reasonable basis under these facts to believe the
             defendant posed a safety risk, or that the vehicle would contain
             evidence of the crime of arrest.

      4.     The Court finds under these facts that there was no other exception
             to the warrant requirement to furnish a lawful basis for the search of
             the vehicle.

      Generally, personal restraint petitions must be filed within one year after the

judgment and sentence becomes final. RCW 10.73.090. However, the one-year time

limit does not apply when:

      [fjhere has been a significant change in the law, whether substantive or
      procedural, which is material to the conviction, sentence, or other order
      entered in a criminal or civil proceeding instituted by the state or local
      government, and either the legislature has expressly provided that the
      change in the law is to be applied retroactively, or a court, in interpreting a
      change in the law that lacks express legislative intent regarding retroactive
      application, determines that sufficient reasons exist to require retroactive
      application of the changed legal standard.

RCW 10.73.100(6).

      As the State concedes, RCW 10.73.090 does not bar Paulson's petition despite

the fact that it was filed nearly three years after his judgment and sentence became

final. First, as discussed above, Gant constitutes a significant change in the law.

Second, Gant is material to Paulson's conviction because Paulson's conviction was

based entirely on items found during a search of his vehicle incident to his arrest.
No. 69387-5-1/5


Finally, Gant applies retroactively to Paulson's conviction because the mandate did not

issue and Paulson's conviction did not become final until after Gant was decided. See

State v. Robinson, 171 Wn.2d 292, 303, 253 P.3d 84 (2011); In re Grasso. 151 Wn.2d

1, 12, 84 P.3d 859 (2004).

       To prevail on a personal restraint petition, Paulson bears the burden of

demonstrating either an error of constitutional magnitude that gives rise to actual prejudice

or a nonconstitutional error that inherently results in a "complete miscarriage of justice." In

re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). It is clear that

Paulson was prejudiced by the admission of evidence obtained from the warrantless

search of his vehicle. The State concedes that the warrantless search of Paulson's

vehicle would not be lawful ifconducted today and that there was no other exception to

the warrant requirement to furnish a lawful basis for the search of the vehicle.

Accordingly, we grant Paulson's petition, reverse his convictions, and remand to the

superior court for suppression of the unlawfully obtained evidence.

                                            FOR THE COURT:
