In re the Personal Restraint of Heidi Charlene Fero, Respondent.
January night in 2002, Heidi Charlene Fero called emergency
responders seeking help for an injured child. Minutes later,
paramedics arrived and found fifteen-month-old Brynn Ackley
unconscious and limp, with bruising on her face. Brynn's
treating physicians later determined that she had suffered
severe and debilitating injuries consistent with shaken baby
syndrome: retinal hemorrhaging (bleeding in the eyes),
cerebral edema (brain swelling), subdural hematoma (brain
bleeding), a leg fracture, and large bruises on her pelvic
and vaginal areas. 2 Verbatim Report of Proceedings (VRP)
(Mar. 11, 2003) at 183-85, 191; VRP (Mar. 13, 2003) at 13-14.
Fero was charged and convicted of first degree child assault.
In 2014, many years after her judgment became final, she
filed a personal restraint petition contending that the
medical community's evolving understanding of shaken baby
syndrome is newly discovered evidence that would undermine
the expert evidence as to the causes and timing of
Brynn's injuries. We hold that this evidence would not
probably change the result at trial. In re Pers.
Restraint of Brown, 143 Wn.2d 431, 453, 21 P.3d 687
(2001). We therefore dismiss Fero's petition.
January 7, 2002, Fero was babysitting Brynn and her
four-year-old brother, Kaed, as she had occasionally done
since August 2002. At around 2:00 p.m. that day, Brynn and
Kaed were dropped off at Fero's home by their mother,
Breanne Franck. Fero's then-boyfriend, Dustin Goodwin,
watched Kaed and Brynn as well as Fero's children, Rachel
and Derrick. Fero returned home around 3:00 p.m. and Goodwin
left for work. For the rest of the night Fero was alone
caring for the four children.
7:45 p.m., Fero called Jason Ackley, Brynn and Kaed's
father. She reported that Kaed had pushed his sister's
head into a wall and Brynn could not walk on one leg. Fero
asked how best to discipline Kaed. A few hours later, Fero
called her mother, panicked because Brynn was unresponsive.
Fero's mother instructed her to call 911 immediately.
paramedics arrived, they found Brynn "limp, like a rag
doll" with obvious bruises on her face and chest, and
blood in her mouth. 1 VRP (Mar. 11, 2003) at 39-41. Fero
explained to the emergency responders that she had not
personally witnessed Brynn's injuries and her daughter
told her Kaed had swung Brynn into the wall "like a
baseball bat." Id. at 40. While in transport to
the hospital, paramedics observed Brynn's facial bruising
hospital, multiple physicians examined and treated Brynn. One
emergency room doctor reviewed her CAT (computed axial
tomography) scan, which showed severe brain injury caused by
a blood clot, bleeding, and swelling; another physician
discovered hemorrhaging in both her eyes and another found
she had a displaced fracture of her left tibia, bruising on
her pelvis, and laceration on her vagina. Brynn underwent
emergency surgery to remove the blood clot and a piece of
bone from her skull to allow her brain to swell. Later,
Brynn's therapists predicted that as a result of her
trauma, she would likely never live without the need of a
was charged with first degree child assault. At trial, the
defense argued that Kaed caused Brynn's injuries. Fero
testified that Kaed was difficult to care for and was often
aggressive toward his sister. Kaed's father echoed this
characterization, clarifying that while Kaed sometimes pushed
and pinched Brynn, he never injured her and described the
behavior as "hard" playing. Id. at 126-30,
Fero's then-boyfriend, testified that on January 7, 2002,
Brynn's mother had carried the infant into the house in
her car seat-an unusual occurrence according to Goodwin
because normally the child was brought in first, her mother
then returning to the car to retrieve the car seat
separately. Goodwin also asserted that during his brief time
watching the children until Fero returned from work, Brynn
appeared upset, refused to play, and cried whenever her leg
Goodwin, Breanne Frank testified she saw no bruises or
injuries to the child when she brought her to Fero's
apartment. Frank stated that her daughter had no trouble
walking and that she carried Brynn into the home as usual,
retrieving the car seat after. Regarding her son, Frank
admitted that she had heard about Kaed pinching his sister
and had seen him kick and jump on her. She acknowledged Kaed
could be mean to his sister, but Frank thought it was only
sibling rivalry that caused slight bruises and never injured
testified to the timeline of Brynn's injuries and
remarked on the little girl's behavior while at
Fero's home. She explained that Brynn was
"distant" and remained sitting wherever Fero set
her instead of following Fero around as she had in the past,
5 A VRP (Mar. 17, 2003) at 75. Fero also stated she gave
Brynn a bath that evening, noticing a large bruise on the
child's pelvis which "disturbed" her.
Id. at 77. Fero dressed Brynn and put her in the
playpen downstairs where Kaed and Rachel were watching
television. Fero then took her son, Derrick, upstairs. While
bathing Derrick, Fero's daughter reported that Kaed was
hurting Brynn; Fero checked downstairs and saw Kaed on the
couch and Brynn in her crib. Fero went back upstairs to tend
to her son. Soon Rachel returned to her mother's side
saying that Kaed was once more hurting his sister by banging
Brynn's head against the wall.
Fero saw Kaed scramble out of Brynn's crib; the little
girl was on her hands and knees, "shaking and trembling
more than [Fero had] seen a child do before."
Id. at 82. Fero picked her up and saw a small amount
of blood in her mouth. She asked Kaed what he had done and he
responded that he was a Power Ranger. After comforting Brynn,
Fero said the infant closed her eyes, relaxed, and appeared
to fall asleep.
then put Brynn on the futon and called Ackley at about 7:45
p.m. Both Fero and Ackley testified that she told him about
Brynn's inability to walk on one leg and seeing Kaed push
Brynn's head into a wall. But Fero did not mention any
bleeding or bruising, according to Brynn's father;
moreover, Ackley testified that Brynn was running around with
no trouble and had no bruises when he left for work that day.
Goodwin's testimony largely agreed with this version of
events, adding that Fero had told him about the bruises and
bleeding in Brynn's mouth.
calling Ackley, Fero proceeded to clean the house, checking
on the children intermittently. At approximately 9:45 p.m.,
Fero noticed Brynn's eyes were lidded and that something
was not "right." Id. at 88. When her
attempts to wake Brynn were unsuccessful, Fero called her
mother and then 911.
arrived at Fero's home after Brynn was taken to the
hospital. Fero provided a written statement explaining how
Kaed jumped out of the crib and that Fero saw blood in
Brynn's mouth; she also stated that she checked on Brynn
"in a few minutes" after putting her on the futon
and found she was unresponsive. Id. at 102-03. Fero
testified that she did not remember writing the statement or
telling an officer that five minutes had passed from when she
put Brynn on the futon and when she noticed Brynn's eyes
were half open. Further, Fero admitted to telling the 911
operator that Kaed was '"chasing [his]
sister'" and that when she came downstairs, she saw
Kaed bash Brynn's head into a wall. Id. at
98-99. Fero said she was too upset to think clearly and so
could not remember saying these things to the investigators.
and Rachel also testified at trial. Six-year-old Rachel
stated that Brynn was injured when Kaed "push[ed] her
into the wall" and hit her with toys. Id. at
43. She testified that when she saw this, she went upstairs
to tell Fero, who checked on the children downstairs. Rachel
remembered telling the police officer that Kaed hit Brynn
with toys, and that no one had instructed her to say it.
Rachel also told police that Brynn was running around playing
the day she was injured.
Kaed testified that he heard Brynn crying upstairs the night
she was hurt. Kaed stated that he went upstairs and saw Fero
giving a bath to Brynn and another child. He also said that
Fero took Brynn downstairs and laid her on the couch. Later,
according to Kaed, Fero yelled at him because she believed he
did something to the little girl. Kaed testified that he had
been in the crib at Fero's home but not on the day Brynn
was injured and he denied doing "anything at Heidi's
to her." 1 VRP (Mar. 12, 2003) at 12.
police officers that investigated the incident also
testified. Officer Scott Telford testified that Fero
recounted the events of the evening to him, which echo her
testimony at trial. Notably, Fero told the officer that Brynn
was crying in her crib with blood in her mouth. Officer
Telford was unable to find blood or stains in the area.
Detective Scott Smith testified that Fero told him the crib
had been situated against the wall on the night of the
incident but was later moved. He examined and photographed
the crib and markings in the carpet. He determined that it
had not been moved. Detective Smith also collected as
evidence two plastic toys he was told may have caused
Steve Norton testified that he interviewed Fero the night
Brynn was injured. Fero reported to him that she checked on
the children downstairs twice that night, the second time
seeing Kaed jump out of the crib. Detective Norton stated
that Fero told him only five minutes passed from when she
picked Brynn up and when she noticed the girl had fallen
unconscious and called 911. Norton also testified that Fero
said she had not given Brynn a bath and the infant had not
been upstairs that day. Fero told him she had seen some red
marks on Brynn's stomach and that Fero's daughter saw
Kaed jump on and hit Brynn.
Norton interviewed Kaed and his father, Ackley, on the night
of January 7, 2002. Ackley reported that Kaed was rough with
Brynn, pushing and pinching her, and needed to be watched to
prevent him from hurting his sister. Norton testified that
Kaed was "hyperkinetic" during the interview and
seemed to admit to causing Brynn's bleeding from her
mouth. 2 VRP (Mar. 12, 2003) at 212-13. Kaed told the
detective he made the blood come out, then said the
"temperature just push[ed] it out, " and
"[d]reams push it out." Id.
daughter, Rachel, was interviewed on January 8, 2002.
Detective Norton testified that Rachel was focused, with a
good attention span. The girl told Norton that Kaed banged
Brynn's head into the wall, hit her with plastic toys,
and shook Brynn's high chair when she was in it.
State presented medical testimony from six expert witness
about the cause of Brynn's injuries. These witnesses,
all physicians who treated Brynn, explained that the little
girl suffered severe brain injury caused by a blood clot,
bleeding, and swelling. The head trauma, bruising, and leg
fracture were caused by severe shaking and "repetitive
force, " the type of force a boy of Kaed's size and
strength could not inflict. 1 VRP (Mar. 12, 2003) at 63-64.
One physician agreed it was possible that the pelvic bruising
could be the result of a four-year-old jumping on Brynn, the
facial bruises could be inflicted by hitting her with a
plastic toy, and that such a blow could cause a subdural
hematoma. But the doctor also stated that it was unlikely a
plastic toy could cause a local brain injury such as
Brynn's. Kaed could not inflict the
"constellation" of injuries Brynn suffered. 2 VRP
(Mar. 11, 2003) at 200.
medical experts described shaken baby syndrome. When the
brain is shaken, the veins in the brain break and start to
bleed, and a collection of blood forms in what is called a
"subdural hematoma." 1 VRP (Mar. 12, 2003) at 84.
Brynn had multiple hematomas and swelling in her brain,
indicating severe trauma. Physicians found no external head
injuries, such as a skull fracture, "goose egg, "
or scalp bleeding, which would be present if Brynn had been
struck by a blow to her head; her doctors concluded that she
had been severely shaken. Id. at 90-92.
addition, the trauma to Brynn's brain could not have been
caused by repeated blows to her face because "[t]he
amount of force necessary to produce a brain injury of this
magnitude... would destroy the face, there wouldn't be
just bruises and swelling, there would be destruction of all
the bones of the face." VRP (Mar. 13, 2003) at 34. The
medical experts also testified that Brynn's injuries
could not be caused by a fall, being pushed into a wall, or
being hit with a plastic toy.
Brynn's leg injury, two physicians stated that it was a
recent "displaced" or "pulled apart"
oblique fracture of the left tibia. Id. at 13-14.
Both doctors explained that in order to cause an oblique
fracture such as this, a person would have to "twist the
leg violently." Id. at 16. The physician who
examined Brynn's X-rays stated he saw no indication that
Brynn's bones were fragile, and, though agreeing a
fracture could be sustained in a fall or by accident, medical
experts stated that it would be very unlikely that Kaed had
the strength to fracture Brynn's leg in this manner. A
child suffering from a displaced fracture would not walk on
the leg because it would be extremely painful.
medical experts also testified Brynn would likely have fallen
unconscious at some point on the night of January 7, 2002.
Given the severity of her injuries, multiple physicians
stated that typically Brynn would have lost consciousness
almost immediately after being shaken and would probably not
have been consolable. Another doctor said it could take five
minutes to two hours for signs of unconsciousness to
manifest. Only one physician appears to have stated Brynn
would have had no "lucid interval" after sustaining
her injuries. Id. at 43. While unconscious, Brynn
could have appeared to be sleeping and she may not have
closed her eyes.
was found guilty of first degree child assault. The court
imposed an exceptional sentence, finding Brynn was
particularly vulnerable due to her youth and that Fero had
breached her duty to protect the little girl. Fero was
sentenced to 15 years. She appealed and the court held the
15-year exceptional sentence violated Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 403
(2004). State v. Fero, 125 Wn.App. 84, 102, 104 P.3d
49 (2005). On remand, Fero was resentenced to 10 years. On
May 6, 2014, Fero filed this personal restraint petition. She
was released from prison in July 2014. In re Pers.
Restraint of Fero, 192 Wn.App. 138, 148, 367 P.3d 588
Court of Appeals issued a published decision on January 5,
2016, granting Fero's petition and remanding for a new
trial. Id. at 142. The State filed a motion for
reconsideration on January 25, 2016. The Court of Appeals
denied the motion on March 3, 2016. Less than thirty days
later, on April 1, 2016, the State petitioned for review. The
petition was redesignated as a motion for discretionary
review,  which we granted. In re Pers.
Restraint of Fero, 187 Wn.2d 1024, 390 P.3d 356 (2017).
Timeliness of the State's Motion for Discretionary Review
and the State agree that a party has 30 days to file a motion
for discretionary review with this court. As previously
stated, the State filed for review on April 1, 2016. Fero
contends the motion is untimely because it was not filed
within 30 days of the Court of Appeals' January 5
decision granting her personal restraint petition.
Conversely, the State argues its motion was timely because
the 30-day filing deadline began with the Court of
Appeals' March 3 decision denying its motion for
reconsideration. Thus, the threshold question in this case is
what "decision" under RAP 13.5(a) initiates the
30-day filing deadline for discretionary review with this
court. We agree with the State.
personal restraint petition is "decided by the Court of
Appeals on the merits, the decision is subject to review by
the Supreme Court only by a motion for discretionary review .
. . [as] provided in rule 13.5A." RAP 16.14(c).
Additionally, a party may seek review of the decision to
grant or deny a personal restraint petition by filing a
motion for reconsideration. RAP 12.4(a). A pleading is
considered timely filed if it is timely filed in any division
of the Court of Appeals or in the Supreme Court. RAP 18.23.
procedure governing a motion for discretionary review is
specified in RAP 13.5(a) and (c). RAP 13.5A(c). RAP 13.5(a)
A party seeking review by the Supreme Court of an
interlocutory decision of the Court of Appeals must file a
motion for discretionary review in the Supreme Court and a
copy in the Court of Appeals within 30 days after the
decision is filed.
obviously, the emphasized phrase provides a period of 30 days
in which to file a motion for review and a date from which to
begin counting "the decision." But, the rule's
language alone does not define what type of
"decision" begins the filing deadline. Because this
term is not defined within RAP 13.5(a), we look to the
context, related rules, and rule-making scheme as a whole to
determine its meaning. State v. Stump, 185 Wn.2d
454, 460, 374 P.3d 89 (2016) (citing State v.
Conover, 183 Wn.2d 706, 711, 355 P.3d 1093 (2015)).
Fero would direct us to RAP 13.5A for guidance. This rule
governs motions for discretionary review of decisions
dismissing or deciding personal restraint petitions. RAP
13.5A(a)(1). Thus, because this rule is triggered when a
party files for review of a decision deciding a personal
restraint petition as the State did here, the undefined
"decision" of RAP 13.5(a) must relate to the
original January 5 Court of Appeals opinion.
argument would be persuasive if our analysis ended here.
However, just as we look to the related provision RAP 13.5A
in order to decipher and carry out the drafter's intent,
we must also consult the rules in their entirety.
Stump, 185 Wn.2d at 460 (citing Dep 't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43
P.3d 4 (2002)). In doing so, RAP 1.2(a) is of critical
importance. This rule governs our interpretation of the Rules
of Appellate Procedure and explains:
These rules will be liberally interpreted to promote justice
and facilitate the decision of cases on the merits. Cases and
issues will not be determined on the basis of compliance or
noncompliance with these rules except in compelling
circumstances where justice demands.
RAP 1.2(c) provides that "[t]he appellate court may
waive or alter the provisions of any of these rules in order
to serve the ends of justice, subject to the restrictions in
rule 18.8(b) and (c)." In light of RAP 1.2(a)'s
directive to construe our rules "liberally" and not
to dismiss a case solely on the basis of
"noncompliance" with these rules, Fero's
reading of RAP 13.5(a)'s "decision" is
unnecessarily rigid. Concluding that the January 5 decision
begins the 30-day filing deadline would not "facilitate
the decision of cases on the merits" as this case would
be dismissed without regard for the significant underlying
issues ably argued by both Fero and the State. Such a summary
dismissal would not be in keeping with RAP 1.2(a).
as the State points out, Fero's interpretation of RAP
13.5(a) would require a party to file a motion for
discretionary review very likely before the Court of Appeals
issued its decision on reconsideration. Pet'r's Reply
to Answer at 4. Not only would Fero's case be pending in
two courts at once, had the Court of Appeals granted the
motion for reconsideration, the State may not have sought
further review. Requiring multiple motions in multiple courts
before an opinion that may decide the case is issued is
inefficient for those seeking appellate review, as well as
for the court. To construe RAP 13.5(a) in this way is
unnecessary and risks signaling to parties that form matters
more than substance.
we conclude that the "decision" initiating the
30-day filing period under RAP 13.5(a) is the order on
reconsideration. Here, the Court of Appeals denied
reconsideration on March 3, 2016 and the State filed for
review with this court less than 30 days later on April 1,
2016. The State complied with RAP 13.5(a), and its motion for
discretionary review was timely.
Newly Discovered Scientific Evidence
contends that the scientific community's advancements in
understanding shaken baby syndrome constitute newly
discovered evidence that undermines the State's theory of
the case and entitles her to a new trial. The State contends
this evidence is not newly discovered because it would not
probably change the result at trial. We agree with the State
and dismiss the petition.
Standard of Review
challenges her postrelease restrictions through a personal
restraint petition. As this court has noted, personal
restraint petitions are the modern version of the writs of
old, most notably the "Great Writ" of habeas
corpus. In re Pers. Restraint of Coats, 173 Wn.2d
123, 128, 267 P.3d 324 (2011); Toliver v. Olsen, 109
Wn.2d 607, 608, 746 P.2d 809 (1987). Our review of these
petitions is constrained, and relief gained through
collateral challenges is "extraordinary." In re
Coats, 173 Wn.2d at 132 (citing In re Pers.
Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506
(1990)). A personal restraint petition, like its ancestor the
Great Writ, is not granted "as a matter of course."
See In re Frederick, 149 U.S. 70, 75, 13 S.Ct. 793,
37 L.Ed. 653 (1893). The bar facing a petitioner is high, and
overcoming it is necessary before this court will disturb a
settled judgment. In re Coats, 173 Wn.2d at 132.
right to collateral review by a personal restraint petition
requires the petitioner to make a heightened showing of
prejudice. In re Cook, 114 Wn.2d at 810 (citing
In re Pers. Restraint of Haverty, 101 Wn.2d 498,
504, 681 P.2d 835 (1984)). A personal restraint petitioner
must state "with particularity facts which, if proven,
would entitle him [or her] to relief." In re Pers.
Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086
(1992). "Bald assertions and conclusory
allegations" alone are insufficient. Id.; RAP
filed her personal restraint petition more than one year
after her judgment became final, RCW 10.73.090(1), thus the
petition is untimely unless she raises only grounds for
relief exempt from the one-year limit under RCW 10.73.100.
See In re Pers. Restraint of Adams, 178 Wn.2d 417,
422, 309 P.3d 451 (2013). Newly discovered evidence is a
potentially exempt ground for relief. RCW 10.73.100(1); RAP
16.4(c)(3); In re Pers. Restraint of Lord, 123 Wn.2d
296, 319-20, 868 P.2d 835 (1994).
court reviews a claim of newly discovered evidence raised by
a personal restraint petition under the same test as newly
discovered evidence asserted in a new trial motion. State
v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981). To
prevail on a claim of newly discovered evidence, a personal
restraint petitioner must show evidence that (1) will
probably change the result of the trial, (2) was discovered
since the trial, (3) could not have been discovered before
trial by the exercise of due diligence, (4) is material, and
(5) is not merely cumulative or impeaching. Id. If
any of these factors is missing, the petitioner is not
entitled to relief. Id.
submitted declarations from Drs. Patrick Barnes and Janice
Ophoven in support of her petition. Dr. Ophoven, a pediatric
forensic pathologist, and Dr. Barnes, a pediatric
neuroradiologist, specialize in shaken baby syndrome and
pediatric head trauma. Both physicians focused on changes in the
medical understanding of shaken baby syndrome and infant head
injuries since Fero's trial.
declaration, Dr. Barnes explains that alternative
explanations for symptoms once associated with shaken baby
syndrome have expanded to include accidental and natural
causes. Since 2003, members of the scientific community now
question whether the brain swelling and bleeding in the eyes
and brain are definitive signs of shaken baby syndrome. In
the 1990s, doctors routinely testified that the force
necessary to cause hemorrhaging in children was equivalent to
the force from a high speed car accident or fall from
multistory building. Dr. Barnes asserts that "several
literature reviews" have shown no scientific basis for
this testimony. Barnes Decl. at 5 (included as an exhibit in
Opening Br. in Supp. of Pers. Restraint Pet.). He also states
that researchers have recognized that children who suffer
trauma can remain lucid (conscious) for up to three days or
more after injury. Dr. Barnes concludes, "[I]t is
impossible to tell... in the medical record when Brynn was
injured, and there is a significant chance that she was
injured before she arrived at Ms. Fero's home."
Id. at 26-27.
Barnes states in his declaration that the medical community
once universally accepted that victims of shaken baby
syndrome would fall unconsciousness immediately after injury.
Since Fero's trial, it is now generally accepted that
short and accidental falls can cause injuries like
Brynn's and children can be lucid and "appear
symptom-free" for up to three days. Ophoven Decl. at 4
(included as an exhibit in Opening Br. of Supp. of Pers.
Ophoven concludes that Brynn suffered a traumatic brain
injury but could not determine whether the injury was
accidental or nonaccidental or whether an adult or child
caused it. The doctor also explains that the timing of
Brynn's injuries could not be exactly determined but that
"[i]t is more likely [she] suffered her injuries between
12 and 24 hours before" arriving at the hospital.
Id. at 3.
Merits of the Petition
contends that the result of her trial would probably be
different because the medical community's current
understanding of pediatric head trauma contradicts the
medical testimony offered at trial on which she was
convicted. Fero focuses on two advancements in shaken baby
syndrome research, arguing scientists now recognize that (1)
a child does not immediately fall unconscious after suffering
a traumatic brain injury and (2) many causes other than
severe shaking can inflict injuries such as those Brynn
suffered. Fero argues that had this evidence been presented
to the jury, the State could not have proved Brynn was
injured in Fero's care and Fero injured the little girl.
declarations from Dr. Barnes and Dr. Ophoven state that
children can remain lucid for up to three days postinjury.
This, Fero argues, undermines the State because it presented
medical evidence of unconsciousness occurring
'"immediately"' after injury.
Resp't's Suppl. Br. at 5-6. But Fero characterizes
the State's evidence in a light most favorable to her.
See, e.g., id. ("The State's trial experts
testified that it would have been impossible for
Brynn to remain lucid for more than a few minutes after
suffering her injuries." (emphasis added)). Reviewing
the medical testimony as a whole demonstrates that the trial
experts described the general shaken baby syndrome case in
which "typically a patient loses consciousness
right away, " 1 VRP (Mar. 12, 2003) at 97 (emphasis
added), and that there would "\p\robably not" be a
lucid interval between injury and onset of symptoms. VRP
(Mar. 13, 2003) at 43 (emphasis added). The ...