Restraint of Schwab, 141 Wn. App. 85, 92, 167 P.3d 1225 (2007) (deeming petition
timely where record contained no evidence showing that the court notified defendant of
the time limit).
Retroactivity of Jones
Carney argues he is entitled to dismissal of the 1982 conviction and acquittal by
reason of insanity and the order of commitment, as well as the 2011 order revoking
conditional release, because Jones applies retroactively. Carney asserts Jones is
retroactive under the decision in Teaaue v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060,
103 L. Ed. 2d 334 (1989). Whether Jones is retroactive is a question of law we review
de novo. State v. Schenck, 169 Wn. App. 633, 642, 281 P.3d 321 (2012).
In Jones, the Washington Supreme Court overruled State v. Smith, 88 Wn.2d
639, 564 P.2d 1154 (1977). Jones, 99 Wn.2d at 744. In Smith, the court held the trial
court did not err by imposing the defense of not guilty by reason of insanity over the
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objection of a defendant. Smith, 88 Wn.2d at 643. The court followed the approach in
Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965), in concluding that "[i]t would
clearly be unconstitutional to permit the conviction of a defendant who was legally
insane at the time of the commission of the crime." Smith, 88 Wn.2d at 643. The court
states that the imposition of a plea of not guilty by reason of insanity did not prejudice
the defendant because the jury had to first determine whether the defendant committed
the charged crime. Smith, 88 Wn.2d at 645 ("before [the jury] could find defendant not
guilty by reason of insanity, the jury first had to find that he committed the act charged").