State v. Waller

197 Wash.2d 218

481 P.3d 515

STATE of Washington, Petitioner,

v.Anthony Thomas WALLER, Respondent.

NO. 98326-7

Supreme Court of Washington.

Argued: October 27, 2020

Filed: February 25, 2021

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Petitioner.

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Respondent.

GORDON McCLOUD, J.

¶1 Under RAP 2.2(b)(3), the State has a right to appeal "[a]n order ... vacating a judgment." Does that Rule give the State the right to appeal a superior court order granting a CrR 7.8(b) motion for relief from judgment in a long-since final criminal case? Clearly, under the language of RAP 2.2(b)(3), the answer is yes: The State may appeal such "[a]n order arresting or vacating a judgment."

¶2 In this case, however, the superior court did not clearly state that it was "arresting or vacating" Anthony Waller's judgment, or even granting his motion, in its first order on his CrR 7.8 motion. Instead, it skipped straight ahead to ordering a resentencing hearing. So this case presents an additional question about the application of RAP 2.2(b)(3) in this unusual context: Does a series of superior court orders retaining jurisdiction of a CrR 7.8 motion, scheduling a resentencing hearing, ordering the prisoner transported for that resentencing hearing, and clarifying that the first order did indeed grant the CrR 7.8 motion, amount to granting the motion and "vacating" the old sentence within the meaning of RAP 2.2(b)(3) ? We hold that it does and reverse the Court of Appeals.

¶3 As the discussion below shows, when a superior court receives a CrR 7.8 motion, it should follow the CrR 7.8(c) procedures. Pursuant to those procedures, the court should ordinarily hold a show cause hearing before granting relief.

FACTS

¶4 In January 1999, when Waller was 21 years old, a man saw him and his friends breaking into vehicles in Tukwila, Washington. 1 Clerk's Papers (CP) at 2-3. Waller chased the man and stabbed him repeatedly in the face and eyes with a screwdriver. Id. at 3, 32. The man died of his injuries. The following December, a jury convicted Waller of first degree murder. Id. at 26.

¶5 The trial court found that the "more than 40 stab wounds inflicted with a flat head screw driver and concentrated [on the victim's] head and face represent[ed] deliberate cruelty" justifying an exceptional sentence. Id. at 32-33. The standard range was 261-347 months, but the trial court imposed an exceptional sentence of 432 months. Id. at 28-29, 32-33.¹ The Court of Appeals affirmed, and the mandate issued on November 15, 2002. 2 CP at 63; State v. Waller , 107 Wash. App. 1047, 2001 WL 919349 (2001).

¶6 Sixteen years later, in March 2018, Waller filed a pro se CrR 7.8 motion in the superior court, seeking relief from judgment. 2 CP at 37-44. He argued that he was entitled to resentencing under State v. O'Dell , 183 Wash.2d 680, 358 P.3d 359 (2015),² because it constituted a retroactive, material change in the law that exempted his motion from the one-year collateral attack time bar. 2 CP at 39-40; see RCW 10.73.100(6). He sought the following relief: "grant this motion, vacate the judgment , and set a resentencing hearing." 2 CP at 40 (emphasis added). The State moved to transfer Waller's motion to the Court of Appeals for consideration as a personal restraint petition (PRP). Id. at 48; see CrR 7.8(c)(2). On April 17, the superior court granted the State's motion; it ruled that Waller's motion was "time-barred by RCW 10.73.090" and that CrR 7.8(c)(2) therefore required the transfer to the Court of Appeals. Id. at 75-76.

¶7 Waller, now represented by appointed counsel, moved to reconsider the transfer in light of the Court of Appeals' decision in In re Personal Restraint of Light-Roth³ because that Court of Appeals decision in Light-Roth I validated Waller's O'Dell -retroactivity argument. Id. at 77. This time, Waller sought the following relief: "[R]econsider [the] transfer of Mr. Waller's properly filed CrR 7.8 motion, retain jurisdiction, and set the matter for a resentencing hearing." Id. at 82.

¶8 On June 7, 2018, the superior court granted Waller's motion for reconsideration and vacated its transfer order. Id. at 116. It held that "in light of [ Light-Roth I ], it appears that the motion should be granted and a resentencing hearing should be scheduled." Id. The superior court then began scheduling the resentencing hearing and instructed the parties to brief the scope of resentencing. Id. at 117. The superior court's order did not explicitly state that it was granting Waller's CrR 7.8 motion to vacate Waller's sentence (though its decisions to schedule resentencing and order briefing on resentencing certainly suggest that it did). Id. at 116-17.

¶9 Waller filed the requested resentencing briefing and, on June 25, the court ordered Waller transported from the Department of Corrections' custody for the hearing. Id. at 118-23. On June 26, the court clarified that its order on Waller's motion for reconsideration, "which implicitly grants a resentencing hearing, was indeed intended to order a resentencing hearing for the defendant (over the objection of the State of Washington)." Id. at 124. That clarification order also stated that the court's earlier "June 6, 2018 order ... expressly order[ed] a resentencing hearing for the defendant." Id.

¶10 Three days later, the State filed a "notice of appeal and/or of discretionary review" to this court. Id. at 140. The State acknowledged that there was "currently controversy over whether [it] may appeal orders of this type." Id. (citing State v. Garrison , No. 95860-2).⁴ On July 17, the superior court issued an order under RAP 7.2⁵ canceling the resentencing hearing and denying a pending motion to stay as moot. 3 CP at 145-46. In that order, the superior court explicitly stated that it had granted Waller's CrR 7.8 motion in its previous orders: "On March 8, 2018, Defendant Anthony Waller filed a Motion for Relief from Judgment, which the Court ultimately granted ." Id. at 145 (emphasis added) (footnote omitted). It also stated that "when the State sought review of the Court's rulings (granting relief from judgment), the State appealed as a matter of right under RAP 2.2(b)(3) (Arrest or Vacation of Judgment)." Id. at 146.

¶11 We issued our decision in Light-Roth II on August 2 and reversed the Court of Appeals decision on which the trial court had based its order granting Waller relief. 191 Wash.2d 328, 422 P.3d 444 (holding that O'Dell did not apply retroactively to Light-Roth).

¶12 In April 2019, we transferred the State's petition for direct review to the Court of Appeals. In October 2019, after the Court of Appeals heard argument but before it issued a ruling, the superior court issued an Order Clarifying June 2018 Orders. 5 CP at 163. It stated that our court's decision in Light-Roth II "was the basis of" its June 2018 orders and that "[i]n light of the Supreme Court decision [reversing Light-Roth I ], this Court does not intend to hold a resentencing in this case." Id. at 164. The superior court further announced that it intended to vacate its June 2018 orders, but, in "an abundance of caution," it would not do so until "appellate review is concluded or ‘the permission of the appellate court [is] obtained.’ " Id. (alteration in original) (quoting RAP 7.2(e) ). The appellate court gave that permission. In January 2020, the superior court vacated its June 2018 orders. Id. at 166. That left the case transferred to, and pending in, the Court of Appeals per the superior court's April 17, no-longer-vacated, transfer order.

¶13 The Court of Appeals acknowledged that the case was moot because the trial court intended to vacate its decision in light of Light-Roth II. State v. Waller , 12 Wash. App. 2d 523, 533, 458 P.3d 817 (2020). But it ruled that the "narrow question of whether the State has the right under RAP 2.2(b)(3) to appeal an order granting a CrR 7.8(b) motion for relief from judgment requesting a new sentencing hearing" was an issue of continuing and substantial public interest that would likely evade review. Id. at 534, 458 P.3d 817 (citing State v. Clark , 91 Wash. App. 581, 584, 958 P.2d 1028 (1998) ). We agree with the Court of Appeals' reasoning on the mootness issue and therefore retain the case for decision despite the fact that it is moot.⁶

¶14 The Court of Appeals then held that under RAP 2.2(b)(3) and CrR 7.8(b), the State had no right to appeal. Id. at 536-37, 458 P.3d 817. It reasoned that the State may appeal only from "an order vacating a judgment," but where "the court does not amend the sentence, the judgment remains in effect." Id. at 536, 458 P.3d 817 (citing RAP 2.2(b)(3) ; CrR 7.8(b) ). It began with the premise that CrR 7.8(b) motions " ‘do[ ] not affect the finality of the judgment or suspend its operation’ " and "[t]he uncontroverted record establishe[d] the court did not amend the judgment and sentence," and then concluded that the trial court had not vacated the judgment. Id. at 536-37, 458 P.3d 817 (quoting CrR 7.8(b) ). The Court of Appeals rejected the argument that the superior court's decision "grant[ing] Waller's CrR 7.8(b)(5) motion" and scheduling a resentencing hearing vacated the judgment. Id. at 537, 458 P.3d 817.

¶15 We granted review to decide whether RAP 2.2(b)(3) gives the State the right to appeal an order granting a CrR 7.8(b) motion. State v. Waller , 195 Wash.2d 1024, 466 P.3d 774 (2020). We hold that RAP 2.2(b)(3) does give the State that right. We further hold that the record in this case shows that the superior court granted Waller's CrR 7.8(b) motion in this case, so RAP 2.2(b)(3) gives the State the right to appeal that decision.

ANALYSIS

I. RAP 2.2(B)(3) GIVES THE STATE THE RIGHT TO APPEAL FROM ORDERS ...