RULING DENYING REVIEW
¶ 1 George Wilson was convicted of first degree felony murder as an accomplice. The accomplice liability instruction informed the jury that a person is an accomplice to a crime if, with knowledge that his actions will “promote or facilitate the commission of a crime,” he solicits, commands, encourages, or asks another person to commit the crime or he aids or agrees to aid another in planning or committing “a crime.” Division Two of the Court of Appeals affirmed the judgment and sentence on direct appeal, issuing its mandate in January 2001. In December 2001, Mr. Wilson, acting pro se, filed a motion in superior court under CrR 7.8, asserting that the accomplice liability instruction was erroneous under State v. Cronin, 142 Wash.2d 568, 14 P.3d 752 (2000), and State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000). In February 2002 the superior court ordered the motion transferred to the Court of Appeals for consideration as a personal restraint petition. For unknown reasons the petition was lost in the court system until 2009, when Mr. Wilson sought to reinstate it. This court ultimately remanded the matter to Division One of the Court of Appeals to determine whether Mr. Wilson had abandoned his original petition, and if not, to address the petition on the merits. The Court of Appeals issued a published decision holding that Mr. Wilson had not abandoned his petition and that he was entitled to a new trial due to ineffective assistance of counsel in relation to Cronin and Roberts. See In re Pers. Restraint of Wilson, 169 Wash.App. 379, 279 P.3d 990 (2012). The State now seeks this court's discretionary review. RAP 16.14(c) ; RAP 13.5A(a)(l ).
The principal, Cecil Davis, was convicted of aggravated first degree murder and sentenced to death.
¶ 2 The State argues as a threshold matter that Mr. Wilson's collateral challenge is untimely because he failed to file his motion in the superior court within one year after the judgment and sentence was entered, as required by CrR 7.8(b). But the one-year limit on filing after entry of the judgment applies only when a motion for relief is based on CrR 7.8(b)(1) (mistake, inadvertence, surprise, excusable neglect or irregularity) or (2) (newly discovered evidence). Mr. Wilson relied on neither subsection in his motion for relief from the judgment. He was therefore required to file his motion “within a reasonable time,” subject to the one-year limit on collateral attack under RCW 10.73.090(1). CrR 7.8(b). His collateral challenge was timely under that statute because he filed it within one year after his judgment and sentence became final on appeal.
The State's argument that Mr. Wilson is not retroactively entitled to benefit from Cronin and Roberts is meritless under these circumstances. Both decisions were issued before Mr. Wilson's judgment and sentence became final in January 2001. See In re Pers. Restraint of Domingo, 155 Wash.2d 356, 365–69, 119 P.3d 816 (2005) (Cronin and Roberts not retroactively applicable to previously final judgments).
¶ 3 The State further contends that even if Mr. Wilson's petition was timely, the Court of Appeals erred in determining that Mr. Wilson did not abandon it. But as the Court of Appeals correctly observed, the failure to act on Mr. Wilson's petition was solely the result of administrative error in the courts. Mr. Wilson fully complied with the timely filing requirements. There is no rule requiring him to take any specific actions without direction from the court. And no court asked him to comply with any further filing requirements. Mr. Wilson was transferred to a prison in Wyoming around the time the trial court transferred his CrR 7.8 motion, and apparently he has remained there since. There is some indication that Mr. Wilson has difficulty receiving information in that facility. Mr. Wilson asserts without documentary support that he inquired about his 2001 petition but received no effective response. But as the Court of Appeals noted, Mr. Wilson's
assertions in that regard are irrelevant in light of the court system's administrative errors. The Court of Appeals properly determined that Mr. Wilson did not abandon his petition.
¶ 4 The State next argues that Mr. Wilson's claim that trial counsel was ineffective as to the Cronin and Roberts issue is untimely because he only recently raised this issue. Ordinarily, an appellate court will not consider a ground for relief that is not exempt from the time limit when the claim is first raised in an amended or supplemental petition filed more than one year after the judgment and sentence became final. In re Pers. Restraint of Benn, 134 Wash.2d 868, 938–39, 952 P.2d 116 (1998). And a claim of ineffective assistance of counsel is not an exempt ground for relief. In re Pers. Restraint of Stoudmire, 141 Wash.2d 342, 349, 5 P.3d 1240 (2000). But though Mr. Wilson did not explicitly assert ineffective assistance of counsel in his original pro se petition, his assertion that the defense proposed an erroneous instruction under Roberts and Cronin clearly established a basis for an ineffective assistance claim so as to avoid the invited error doctrine. State v. Kyllo, 166 Wash.2d 856, 861, 215 P.3d 177 (2009) (invited error doctrine does not preclude review of instructional error resulting from ineffective assistance of counsel); State v. Gentry, 125 Wash.2d 570, 646, 888 P.2d 1105 (1995) (this court will review invited instructional error in connection with a claim of ineffective assistance of counsel). Mr. Wilson's original petition sufficiently implicated the issue of counsel's effectiveness to permit Mr. Wilson's current attorney to reframe the issue more explicitly. See In re Pers. Restraint of Martinez, 171 Wash.2d 354, 361 n. 2, 256 P.3d 277 (2011) (court considered pro se respondent's nonexempt instructional error claim as exempt insufficient evidence claim).
The State proposed the same instruction.
¶ 5 The State further asserts Mr. Wilson's ineffectiveness claim is improperly successive because the Court of Appeals rejected such a claim on direct appeal. Mr. Wilson then argued that defense counsel was ineffective in failing to object to (and requesting) an instruction informing the jury that the death penalty was not at issue at trial. The Court of Appeals rejected this argument on the merits. But the Cronin and Roberts instructional issue was not raised on direct appeal, and it is sufficiently distinct factually and legally to merit consideration in the context of a new ineffective assistance claim. See In re Pers. Restraint of Gentry, 137 Wash.2d 378, 388–89, 972 P.2d 1250 (1999) ; In re Pers. Restraint of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986). The Court of Appeals thus properly considered Mr. Wilson's petition on the merits.
¶ 6 As to the merits of the ineffectiveness claim, Mr. Wilson must show that counsel's performance fell below an objective standard of reasonableness in light of all the circumstances, and that in the absence of counsel's deficient performance there is a reasonable probability that the result of the proceeding would have been different. In re Pers. Restraint of Crace, 174 Wash.2d 835, 840, 280 P.3d 1102 (2012) ; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is not shown by matters that go to trial strategy or tactics. State v. Hendrickson, 129 Wash.2d 61, 77–78, 917 P.2d 563 (1996).
¶ 7 The Court of Appeals held that Mr. Wilson met both prongs of the ineffectiveness test and thus was entitled to a new trial. Here, the State does not address the merits of this issue, but the court's decision is sustainable. Mr. Wilson's felony murder charge was based on principles of accomplice liability as to three alternative felonies: first or second degree robbery, first or second degree rape, and first degree burglary. Accomplice liability attaches if the defendant acts with knowledge that he is promoting or facilitating commission of “the” charged crime. RCW 9A.08.020 ; Cronin, 142 Wash.2d at 579, 14 P.3d 752. It is error to instruct the jury, as was done here, that accomplice liability attaches if the defendant knows that the principle only intends to commit “a” crime. Id.; see also Roberts, 142 Wash.2d at 513, 14 P.3d 713. As indicated, defense counsel (as well as the State) proposed the erroneous instruction, which was
based on a flawed pattern instruction. Counsel was deficient in not ascertaining that the pattern instruction was inconsistent with the accomplice liability statute.
Kyllo,
166 Wash.2d at 865–69,
215 P.3d 177.
¶ 8 As for prejudice, the instructional error relieved the State of its burden of proving Mr. Wilson's knowing participation in “the” charged predicate felonies (as well as the murder itself). Cronin, 142 Wash.2d at 580–82, 14 P.3d 752. There was no forensic evidence tying Mr. Wilson to the murder. An acquaintance testified that Mr. Wilson accompanied the principal murderer, Cecil Davis, to the victim's house. Mr. Wilson returned a few minutes later, looking scared and confused, claiming that he turned back after Mr. Davis broke down the door and started attacking the victim. Mr. Wilson told another witness that he never entered the house where the victim was raped and killed. Mr. Wilson's principle theory was that he intended only to steal from the victim, not commit the more serious charged predicate felonies. But that theory was foreclosed by the State's argument (based on the erroneous accomplice liability instruction) that Mr. Wilson was guilty if he intended to participate in “a” crime, the now-discredited “in for a penny, in for a pound” argument. Cronin, 142 Wash.2d at 577, 14 P.3d 752. In light of the relatively weak evidence against Mr. Wilson, counsel's failure to recognize the flaw in the accomplice liability instruction created a reasonable likelihood that the jury convicted Mr. Wilson under the wrong standard.
¶ 9 In sum, the State fails to demonstrate the existence of any issues meriting review under RAP 13.4(b).
¶ 10 The motion for discretionary review is denied.
Mr. Wilson's motion to strike the State's reply is denied as moot.
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