What Does "Shall Not Be Given Retroactive Application" Mean?

Last July the Court issued State v. Perry which changed the standards employed by Idaho appellate courts in analyzing trial errors for fundamental error and harmless error. The new standards make it more difficult to prevail on appeal without an objection below. See SCOIDBlog for Thursday, July 22, 2010: State v. Perry -- Restatement of Appellate Standards of Review.

There was a small silver lining in the opinion. It appeared that the new rules would be given prospective application only. I say "appeared" because the Court said "[t]his restatement shall not be given retroactive application," but then applied the new standards to Perry's case. This left me wondering: Is Perry retroactive or not? That question bothered Mr. Perry so much that he filed a petition for rehearing.

Today we found out the Court is going to apply the rule retroactively, notwithstanding its statement above, at least until the petition for rehearing in Perry is decided.

In State v. Longest, the appellant argued that the State had breached the plea agreement. Unfortunately, trial counsel had not objected at the time of the breach. Undeterred, Mr. Longest argued that it could be considered for the first time on appeal under the pre-Perry fundamental error doctrine. The Court, however, applied the new Perry standard and stated that "Longest's claim of error does not pass muster under Idaho's fundamental error doctrine and will not be reviewed for the first time on appeal."

So, if Perry applies to cases tried before Perry was decided, what does the Court mean when it says that Perry shall not be given retroactive application? Does it mean that Perry does not apply to cases where a post-conviction petition has been filed? I don't think so. How could a new rule of appellate review apply to a post-conviction case pending in the trial court? Moreover, Perry is unfavorable to defendants/appellants so why would a post-conviction petitioner seek retroactive application? To my mind, the Court's statement in Perry cannot be squared with its application of the new rules in these cases.

I'm hoping that the Court grants Mr. Perry's petition for rehearing and makes it clear that Perry does not apply to cases decided in the district court prior to the issuance of that opinion.


To read State v. Longest: http://www.isc.idaho.gov/opinions/Longest%20opinion.pdf
To read State v. Perry: http://www.isc.idaho.gov/opinions/Perry.pdf