Dale E. Schardt v. Alice Payne

We must decide in this matter the novel question whether a Washington state prisoner may challenge the'validity of his sentence retroactively on the ground that the trial .court based its sentencing decision on facts that were not found to be true by a jury in -violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296 , 124 S.Ct, 2531 , 159 L.Ed.2d 403 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication. We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.

I

Mr. Schardt was charged,with one count of rape of a child in the first degree, a class A felony under Washington law. The accusatory pleading alleges' that Mr. Schardt had sexual intercourse with a child who was less than twelve years old from April 1, 1996 to April 22, 1997, a period of more than a year.

At trial, B.E. (“the victim”) testified that Mr. Schardt committed numerous acts upon her person that come within Washington’s definition of the term “sexual intercourse.” She stated that this conduct began…