State v. Schwab
State v. Schwab
Opinion of the Court
¶1 In 1997, Dale Schwab was convicted of first degree manslaughter and second degree felony murder arising out of the same homicide. In 2000, we vacated his manslaughter conviction on double jeopardy grounds. In 2005, we granted Schwab’s personal restraint petition (PRP) vacating his felony murder conviction in light of In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), superseded by statute, RCW 9A.36.021(1)(a), as recognized in State v. Gamble, 154 Wn.2d 457, 114 P.3d 646 (2005), and In re Personal Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004), which held that felony murder charges could not be based on assault as the predicate crime. On remand, the trial court entered an order reinstating his original manslaughter conviction.
¶2 Schwab challenges that order on the ground that the law of the case doctrine and double jeopardy prohibit the trial court from reinstating a previously-vacated conviction. He asserts that the trial court lacked authority to reinstate a conviction which has been vacated by an appellate court. He also asks the court to deny the State’s motion to recall the mandate we issued in 2000 because the motion is untimely, the original mandate was not in error at the time the decision was made, and relitigating these issues contravenes the strong public policy favoring finality of judgments.
¶3 When we remanded Schwab’s PRP for “further lawful proceedings consistent with Andress and Hinton,” we authorized the trial court to act in any lawful manner necessary to resolve any remaining issues in Schwab’s case on remand. Schwab’s manslaughter and felony murder convictions were inextricably linked. Thus, when his felony murder conviction became invalid after Andress, our direction
¶4 Accordingly, we need not recall the mandate issued in 2000. But if it were necessary, we hold that RAP 12.9(b) permits us to do so to correct the inadvertent mistake that arose after the decisions in Andress and Hinton and RAP 12.3(d) empowers us to change our earlier double jeopardy decision under RAP 2.5(c)(2) when the interests of justice so require.
¶5 We affirm the trial court’s order reinstating Schwab’s manslaughter conviction.
FACTS
1997 Conviction
¶6 On December 22, 1997, Dale Schwab and Aaron Beymer assaulted Ernest Sena, took the money from Sena’s pockets, and placed his unconscious body on nearby railroad tracks, covered with carpet and debris.
1999 Direct Appeal
¶7 In State v. Schwab, we held that Schwab’s convictions for both second degree felony murder and first degree man
2003 Personal Restraint Petition
¶8 In 2002, the Washington Supreme Court decided Andress, which held that second degree felony murder predicated on assault, as defined in former RCW 9A.36.021(l)(a) (1997), was not a crime.
¶9 In 2004, the Washington Supreme Court decided Hinton, holding that Andress applied retroactively.
¶10 On February 24, 2005, the Snohomish County Superior Court again heard Schwab’s case on remand. At this hearing, the State asked the court to reimpose sentence for first degree manslaughter, arguing that we had authorized it on remand to act in any “lawful” manner consistent with Andress and Hinton. At the hearing, the court rejected the State’s reliance on State v. Ward, 125 Wn. App. 138, 104 P.3d 61 (2005), as support for its motion to reinstate Schwab’s manslaughter conviction, ordered the prosecutor to obtain direction from the Court of Appeals, and scheduled a hearing.
¶11 On April 14, the State informed the trial court it had filed a motion to recall the mandate
It seems to me I have an obligation, if I can, to exercise my authority to take any action that I’m allowed to in the interest of justice. In my view, justice is people being held accountable for what they have committed. In this case, Mr. Schwab could*641 not have committed a murder in the second degree, felony murder. Mr. Schwab did commit, apparently, based on the jury’s finding, a manslaughter. Manslaughter was taken away because, at the time that decision was made, his felony murder conviction was legitimate.
It has now been determined his felony murder conviction is not legitimate and has been vacated, leaving me in the position of believing the right thing to do, what I have been, in my view, directed by the Court of Appeals to do, and the honest and just thing to do, is to reinstate the manslaughter conviction and impose sentence thereon; and I am prepared to do so.
¶12 On April 29, 2005, the Snohomish County Superior Court sentenced Schwab to 194 months, the high end of the standard sentencing range for first degree manslaughter. On June 27, 2005, this court entered an order consolidating Schwab’s appeal of his manslaughter judgment and sentence with the State’s motion to recall the mandate.
DISCUSSION
Reinstatement of Vacated Conviction
¶13 Schwab argues double jeopardy and the law of the case doctrine prohibit a court from reinstating his vacated conviction and prevent a lower court from reexamining issues which have been decided by a reviewing court. He also challenges the authority on which the State relies on the ground that the cases do not involve a trial court’s decision to reinstate a conviction an appellate court has previously vacated.
¶14 The State argues that reinstating Schwab’s manslaughter conviction simply restored him to the same position in which he would have been had no error occurred in the first place. It asserts double jeopardy merely protected
¶15 The State relies primarily on three cases to support its position, State v. Ward,
¶16 In Byrd, the Court of Appeals for the District of Columbia authorized the lower court to decide which conviction to vacate on remand to cure a multiple punish
¶17 In 2000, we ordered the lower court to vacate Schwab’s valid manslaughter conviction on double jeopardy grounds, and on remand the lower court complied with this order.
¶19 Nor is the law of the case doctrine implicated under these circumstances. The law of the case is a doctrine derived from the common law and RAP 2.5(c)(2) and is intended to promote finality and efficiency.
[t]he appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court’s opinion of the law at the time of the later review.
¶20 Schwab argues the trial court lacked authority to reinstate his manslaughter conviction. Superior courts must strictly comply with directives from an appellate court which leave no discretion to the lower court.
¶21 On April 20, 2005, the State filed a motion to recall the mandate, asserting RAP 12.9(b) permits the court to recall its mandate to correct an “inadvertent mistake.”
¶22 Schwab contends this court cannot change or modify its decision in his 2000 appeal because RAP 12.9 does not allow us to recall the mandate if the decision was correct when entered and not induced by fraud. He argues the State’s motion is neither timely because of the six year lapse between his original appeal nor “reasonable” under RAP 12.9(c) or RCW 10.73.090. He asserts the law of the case doctrine prevents us from reconsidering questions decided by a different panel on the same case. Finally, he urges us to deny the State’s motion because the public policy in favor of finality outweighs the competing policy of reaching the merits in every case, even where there are extraordinary circumstances.
¶23 In its motion, the State argues that the court correctly decided State v. Schwab at the time it was entered but the unforeseen holdings oí Andress and Hinton resulted in an inadvertent mistake. It also asserts that its motion is timely because there was no basis for the motion until February 25, 2005, when we issued our certificate of finality vacating Schwab’s felony murder conviction. At oral argument, the State apparently abandoned its motion to recall the mandate, arguing that the trial court had the authority to reinstate Schwab’s conviction and that recalling the mandate is unnecessary.
¶24 Under RAP 12.7(a), the Court of Appeals generally loses its power to change or modify its decision once it has issued a mandate, but RAP 12.9(c) permits us to recall our mandate within a “reasonable time” if necessary to correct an inadvertent mistake or remedy a fraud. And, as we said earlier, RAP 12.7(d) also allows us to change a decision when RAP 2.5(c)(2) applies.
f 25 Because we hold that the trial court had authority to reinstate Schwab’s manslaughter conviction, we need not
¶26 Nor is the State’s motion untimely because the Supreme Court’s decision in Andress was not foreseeable by any court or party involved in this case. While several years have lapsed, the State brought its motion in a timely manner under the circumstances by filing it immediately after we granted Schwab’s personal restraint petition and vacated the second degree felony murder conviction based on Andress and Hinton.
¶27 Under Hinton, the ruling in Andress applies retroactively, and our original ruling in Schwab’s 2000 direct appeal is now in error. Reinstating Schwab’s manslaughter conviction is necessary in order to assure that his crime does not go unpunished.
¶28 We affirm.
Review granted at 160 Wn.2d 1017 (2007).
State v. Schwab, 98 Wn. App. 179, 181, 988 P.2d 1045 (1999).
98 Wn. App. 179, 180, 988 P.2d 1045 (1999).
Andress, 147 Wn.2d at 604.
Hinton, 152 Wn.2d 853.
On December 6, 2004, the court sent a letter to the Snohomish County Prosecutor’s Office to inquire whether the prosecutor’s office would be filing a formal response to the petition. The State did not file a formal response, but the prosecutor responded by letter to the commissioner, stating:
The murder conviction was based on felony murder, with a predicate of second degree assault. Consequently, the State concedes that this conviction*640 should be vacated pursuant to Andress and Hinton. Once this is accomplished, there will no longer be any double jeopardy bar to punishment for first degree manslaughter, so that conviction should be reinstated.
There may also be issues concerning whether any additional charges can be filed against the defendant. I assume that these issues will be open for the trial court to resolve on remand.
State v. Schwab, No. 43255-9-1 (Wash. Ct. App. Mar. 13, 2000).
Schwab told the court it had three options: (1) release him because his conviction had been vacated, (2) “overrule” the Court of Appeals decision and resentence him based on the original first degree manslaughter conviction, or (3) continue the case and permit the State to seek redress in the Court of Appeals.
A certificate of finality was entered for Schwab’s personal restraint petition on February 25, 2005.
Order Granting Consolidation, State v. Schwab, No. 56206-1-I, consolidated with No. 43255-9-I (Wash. Ct. App. June 27, 2005).
State v. Johnston, 100 Wn. App. 126, 137, 996 P.2d 629, review denied, 141 Wn.2d 1030 (2000); State v. Knutson, 88 Wn. App. 677, 680, 946 P.2d 789 (1997).
500 A.2d 1376 (D.C. 1985), adhered to in part on reh’g en banc, 510 A.2d 1035 (D.C. 1986).
698 N.E.2d 325 (Ind. Ct. App. 1998).
Ward, 125 Wn. App. at 142.
Byrd., 500 A.2d at 1389 (holding “we would take the view that we should decline to mandate which of appellant’s first-degree murder convictions must be vacated, but leave it to the trial court on remand to cure the multiple punishment problem, so that it may implement its original sentencing plan”).
Id. at 1389 n.16.
Taflinger, 698 N.E.2d at 328.
Schwab, 98 Wn. App. at 190.
See Ward, 125 Wn. App. at 147.
State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005) (“The State may bring (and a jury may consider) multiple charges arising from the same criminal conduct in a single proceeding.” (citing State v. Michielli, 132 Wn.2d 229, 238-39, 937 P.2d 587 (1997))).
Id.at 770-71 (“Courts may not, however, enter multiple convictions for the same offense without offending double jeopardy.” (citing State v. Vladovic, 99 Wn.2d 413, 422, 662 P.2d 853 (1983))).
Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005).
Id. (citing Black’s Law Dictionary 1336-37 (8th ed. 2004)); see also In re Estate of Black, 153 Wn.2d 152, 170, 102 P.3d 796 (2004).
Roberson, 156 Wn.2d at 42 (concluding that law of case did not preclude trial court from reconsidering whether plaintiff had a cause of action when there has been an intervening United States Supreme Court decision (citing Crane Co. v. Am. Standard, Inc., 603 F.2d 244, 249 (2d Cir. 1979))).
Harp v. Am. Sur. Co. of N.Y., 50 Wn.2d 365, 368, 311 P.2d 988 (1957).
See RAP 12.2.
Schwab also argues that if his manslaughter conviction is reinstated, all issues concerning this conviction that were unaddressed in the 2000 appeal are revived. We need not address this issue because Schwab may file an appeal from his manslaughter conviction now that it has been reinstated.
See RAP 2.5(c)(2).
This is consistent with one of the goals of the Sentencing Reform Act of 1981, chapter 9.94A ROW, which is to “[pjromote respect for the law by providing punishment which is just.” ROW 9.94A.010(2).
RAP 2.5(c)(2).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.