Opinion
33703-1-III
09-27-2016
STATE OF WASHINGTON, Respondent, v. ROBERT LEE YATES, JR., Appellant.
UNPUBLISHED OPINION
Pennell, J.
Robert Yates has filed a successive collateral attack of sentences imposed on him for first degree murder. The procedural posture of this case divests us of jurisdiction. Nevertheless, because Mr. Yates's claims are potentially meritorious, the matter is transferred to the Supreme Court for further review.
FACTS
In 2000, Mr. Yates pleaded guilty in Spokane County Superior Court to 13 counts of first degree murder and one count of attempted first degree murder. He received a sentence of 4, 900 months (just over 408 years). At issue in this case are the sentences for two counts of first degree murder as charged in counts I and II. (See App. Br. at 3-4) Those crimes occurred in 1975, prior to the Sentencing Reform Act of 1981, chapter 9.94A RCW. In re Pers. Restraint of Yates, 180 Wn.2d 33, 36, 321 P.3d 1195 (2014). The sentencing court listed the sentences for counts I and II each as 20 years. The sentences for all counts are to be served consecutively.
In 2002, Mr. Yates was convicted of two counts of aggravated first degree murder in Pierce County Superior Court and sentenced to death. In re Pers. Restraint of Yates, 180 Wn.2d 33, 35-36, 321 P.3d 1195 (2014).
In 2012, Mr. Yates filed a personal restraint petition (PRP) in the Washington Supreme Court. He argued his judgment and sentence was facially invalid because the 20-year sentences for counts I and II exceeded the sentencing court's legal authority under the law, which required indeterminate life sentences (with a minimum of 20 years) for those counts. Finding the authority for determining Mr. Yates's maximum sentence rested with the Indeterminate Sentencing Review Board and not with the sentencing court, the Supreme Court agreed with Mr. Yates, holding his judgment and sentence to be facially invalid. Yates, 180 Wn.2d at 39. However, the Yates court noted Mr. Yates did not seek resentencing; rather, he sought to withdraw his allegedly involuntary guilty plea. Id. at 39; id. at 51 (McCloud, J., concurring). By alleging misinformation rendered his plea involuntary, Mr. Yates had to show actual and substantial prejudice. Id. at 40-41 (majority opinion). Because there was no practical effect resulting from the error"Mr. Yates agreed to a sentence of 408 years when he should have been sentenced to a minimum of 408 years with a potential expansion to a life sentence"the court dismissed Mr. Yates's petition. Id. at 41-42.
Following that dismissal, Mr. Yates filed a CrR 7.8(b) motion to vacate judgment and for resentencing on counts I and II, again contending the judgment and sentence to be facially invalid because of the 20-year determinate sentences. Relying on In re Pers. Restraint of Smalls, 182 Wn.App. 381, 335 P.3d 949 (2014), the superior court dismissed Mr. Yates's motion, reasoning he had not demonstrated any actual prejudice. Mr. Yates appeals.
ANALYSIS
Mr. Yates contends his judgment and sentence is facially invalid, thus necessitating resentencing. Mr. Yates's legal claim has merit. While the sentencing court only had authority to impose a 20-year minimum sentence for counts I and II, it instead imposed a 20-year determinate, or maximum, sentence. Yates, 180 Wn.2d at 39. The authority for determining the maximum sentence rests with the Indeterminate Sentencing Review Board. Id. (citing RCW 9.95.011(1)). The law does not allow the sentencing court to set a determinate sentence as the sentencing court did here. Id. As such, Mr. Yates's sentences on counts I and II were outside of the court's statutory authority. Id.
Mr. Yates also filed a statement of additional grounds (SAG) in which he alleges sentencing mistakes were made in part because of the number of people in the courtroom on the day of sentencing and the "highly emotionally supercharged climate." SAG at 3. Mr. Yates's counsel adequately addressed the need for resentencing due to sentencing mistakes. Additional review of Mr. Yates's SAG concerns is unwarranted. See RAP 10.10(a).
Unlike what was true in the context of Mr. Yates's prior petition, the success of the current collateral attack does not depend on demonstrating prejudice in the practical sense. See id. at 50-51 (McCloud, J., concurring). An illegal sentence is a fundamental defect that results in a complete miscarriage of justice. See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 876-77, 50 P.3d 618 (2002). No further analysis of harm is required for relief. Id. To the extent the decision of Smalls, 182 Wn.App. 381, suggests otherwise, it is dicta.
The State's primary response to Mr. Yates is that his collateral attack must be dismissed as successive. While we agree it is successive, dismissal is not required. Criminal Rule 7.8(b) expressly states the motion is subject to RCW 10.73.140, and because the Supreme Court is not bound by RCW 10.73.140's restriction on successive petitions, the proper response from this court is to transfer Mr. Yates's petition to the Supreme Court for further review. In re Pers. Restraint of Johnson, 131 Wn.2d 558, 563-67, 933 P.2d 1019 (1997) (if a collateral attack might have merit yet is successive, it must be transferred to the Supreme Court).
Alternatively, the State argues Mr. Yates's CrR 7.8(b) motion constitutes an abuse of the writ. This argument can be made to the Supreme Court.As for the State's contention that Mr. Yates's motion was frivolous, the Supreme Court did find the judgment and sentence facially invalid. The Supreme Court has approved of allowing petitioners to seek resentencing following dismissal of a PRP where the petitioner sought a different remedy than resentencing. See In re Pers. Restraint of Snively, 180 Wn.2d 28, 32 n.2, 320 P.3d 1107 (2014). As such, it would be difficult to characterize Mr. Yates's motion as frivolous.
CONCLUSION
Based on the foregoing, this matter is transferred to the Supreme Court for appropriate action.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR Lawrence-Berrey, A.C.J., Siddoway, J.