Appeal from Superior Court of Yakima County. Docket No: 92-1-01486-1. Date first document (petition, etc) was filed in Court of Appeals: 11/29/95.
PER CURIAM Floyd R. Winegar seeks relief from personal restraint imposed following his Alford *fn1 plea to third degree assault (sexual motivation). This court affirmed the conviction on appeal, and the Supreme Court denied Mr. Winegar's petition for review. See State v. F.R.W., 78 Wash. App. 1072 (Unpublished Opinion No. 13472-5-III (filed Aug. 8, 1995)), review denied, 129 Wash. 2d 1001 (1996). He contends for the first time in this petition that the facts of the charged offense do not constitute third degree assault as that offense was defined in 1985, the date he allegedly committed the act in question. Indeed, third degree assault (sexual motivation) was not described as a crime in 1985.
The facts pertinent to Mr. Winegar's petition are as follows: In 1992, the State charged Mr. Winegar with first degree incest, occurring between 1977 and 1986. In 1993, it filed an amended information charging second degree statutory rape, occurring during September 1985. As part of a plea bargain, the State amended the charge a second time. The new information charged Mr. Winegar with third degree assault, RCW 9A.36.031(1)(f), occurring during September 1985. It alleged Mr. Winegar, "with criminal negligence, did cause bodily harm to a female victim, . . . accompanied by substantial pain that extends for a period sufficient to cause considerable suffering[.]" Mr. Winegar entered an Alford plea to this last charge. In exchange, the State agreed not to recommend an exceptional sentence.
Third degree assault (sexual motivation), as defined in RCW 9A.36.031(1)(f), became law in 1988. Third degree assault was previously defined in RCW 9A.36.030. That section was repealed in 1986. It did not include the acts which Mr. Winegar admitted when he pleaded guilty. *fn2 Both the United States Constitution and the Washington State Constitution prohibit ex post facto legislation. U.S. Const. art. I, sec. 9; Wash. Const. art. I, sec. 23. A law constitutes ex post facto legislation if it "changes the legal rules to permit . . . different testimony to convict the offender than was required when the crime was committed." State v. Edwards, 104 Wash. 2d 63, 71, 701 P.2d 508 (1985) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798)). Here, Mr. Winegar pleaded guilty to an offense which was not chargeable as third degree assault when he committed it. The application of RCW 9A.36.031(1)(f) to Mr. Winegar permitted his conviction for third degree assault on evidence different than what was required when Mr. Winegar allegedly committed the offense in 1985. As such, it violated the ex post facto prohibitions of the state and federal constitutions.
The personal restraint petition is granted, and Mr. Winegar's conviction for third degree assault is vacated.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for ...