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In re Personal Restraint of Fero

Supreme Court of Washington, En Banc

February 1, 2018

In re the Personal Restraint of Heidi Charlene Fero, Respondent.

          GONZALEZ, J.

         On a 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.


         On 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.

         Around 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.

         When 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 grow rapidly.

         At the 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 caregiver.

         Fero 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.[1] 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, 144.

         Goodwin, 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 was touched.

         Unlike 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 Brynn.

         Fero 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.

         Downstairs, 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.

         Fero 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.

         After 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.

         Police 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.

         Kaed 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.

         Five-year-old 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.[2]

         The 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 Brynn's injuries.

         Detective 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.

         Detective 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.

         Fero's 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.

         The State presented medical testimony from six expert witness about the cause of Brynn's injuries.[3] 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.

         The 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.

         In 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.

         Regarding 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.

         The 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.

         Fero 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 (2016).

         The 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, [4] which we granted. In re Pers. Restraint of Fero, 187 Wn.2d 1024, 390 P.3d 356 (2017).


         I. Timeliness of the State's Motion for Discretionary Review

         Fero 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.

         If a 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.

         The procedure governing a motion for discretionary review is specified in RAP 13.5(a) and (c). RAP 13.5A(c). RAP 13.5(a) states:

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.

(Emphasis added.)

         Most 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)).

         Presumably, 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.

         This 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).

         Moreover, 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.[5]

         Thus, 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.

         II. Newly Discovered Scientific Evidence

         Fero 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.

         A. Standard of Review

         Fero 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.

         The 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 16.7(a)(2)(i).

         Fero 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).

         The 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.

         B. Supporting Declarations

         Fero 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.[6] Both physicians focused on changes in the medical understanding of shaken baby syndrome and infant head injuries since Fero's trial.

         In his 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.

         Dr. 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. Restraint Pet.).

         Dr. 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.

         C. Merits of the Petition

         Fero 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.

         The 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 ...

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