FILED COURT OF APPEAI S- 01visibiq if 2015 JUL 2), AM 9: 26 0117[ STATE Vfflrr4GTO I 0 yN T IN THE COURT OF APPEALS OF THE STATE OF WASHINGT ,
DIVISION II
STATE OF WASHINGTON, No. 45614 -1 - II Consolidated With No. 46836 -1 - II Appellant,
UNPUBLISHED OPINION ANSEL W. HOFSTETTER,
t.
In the Matter of the Personal Restraint Petition of.
ANSEL W. HOFSTETTER,
Petitioner.
MAXA, P. J. — The State of Washington appeals from a resentencing hearing in which the
trial court changed Ansel Hofstetter' s sentence of life in prison without the possibility of early
release, imposed when he was a juvenile, to a 40 -year determinate sentence. The resentencing
occurred pursuant to the United States Supreme Court' s holding in Miller v. Alabama that
sentencing a juvenile defendant to imprisonment of life without the possibility of release violated
the Eighth Amendment proscription against cruel and unusual punishment unless the sentencing
court specifically considered the juvenile' s youthfulness before imposing the sentence. 132S.
Ct. 2455, 2460, 183 L. Ed. 2d 407 ( 2012). However, at the time of resentencing the legislature
had not yet amended the sentencing statute to comply with Miller. 45614 -1 - II / 46836 -1 - II
We hold that Hofstetter' s new sentence is invalid because the trial court did not have
statutory authority to impose a determinate sentence. Accordingly, we vacate Hofstetter' s
sentence and remand for resentencing. We also deny Hofstetter' s personal restraint petition
PRP) as moot.
FACTS
In 1992, a jury convicted Hofstetter, a juvenile, of aggravated first degree murder.
Former RCW 10. 95. 030 ( 1981) required, and the trial court imposed, a sentence of life without
the possibility of early release. In 1994, we affirmed Hofstetter' s conviction and sentence. State
v. Hofstetter, 75 Wn. App. 390, 878 P. 2d 474 ( 1994).
After the United States Supreme Court decided Miller,.Hofstetter sought relief in superior
court by means of a motion for relief of judgment, relying on Miller. The State opposed the
motion, arguing that Miller did not apply retroactively and, even if it did, the trial court would
need to. wait for the legislature to amend the sentencing statute: Hofstetter advocated for a
determinate sentence between the mandatory minimum for first degree murder, (20 years) and
life.
Despite the State' s request to take no action, the trial court ruled that Miller applied
retroactivelyi and that Hofstetter should be resentenced. The State requested that the trial court
again impose a sentence of life without the possibility of early release or, alternatively, a
1 The United States Supreme Court has granted certiorari on whether Miller applies retroactively in Montgomery v. Louisiana, 135 S. Ct. 1546, No. 14- 280 ( Mar. 23, 2015). We do not address this issue.
2 45614 -1 - II / 46836 -1 - II
determinate sentence of 50 years or more. The trial court imposed a 40 -year determinate
sentence with a lifetime of community custody.
The State appeals. Hofstetter also filed a PRP, which. we consolidated with this appeal.
ANALYSIS
A. AMENDMENT OF SENTENCING STATUTE
Before the parties filed their appellate briefs, the legislature amended the applicable
sentencing statute, now codified at RCW 10. 95. 030( 3). This legislation is commonly called the
Miller fix." In re Pers. Restraint of McNeil, 181 Wn.2d 582, 586, 334 P. 3d 548 ( 2014). RCW
10. 95. 030( 3)( b) requires the sentencing court to " take into account mitigating factors that.
account for the diminished culpability of youth," restricts life sentences to older juvenile
offenders and then only based on an individualized determination, and requires the court to
impose an indeterminate sentence with at least a 25 -year minimum term if life without the
possibility of parole is not imposed.
The legislature applied its amendment retroactively. Any juvenile who was given a
mandatory sentence of life without the possibility of early release before the Miller.fix became
effective automatically is entitled to resentencing consistent with the new guidelines. Id.; see
also McNeil, 181 Wn.2d at 589.
Our Supreme Court decided in McNeil that the Miller fix did not violate the ex post facto
clauses of the Washington Constitution and the United States Constitution.2 181 Wn.2d at 593.
2 Article I, section 23 of the Washington Constitution provides, " No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed." Article I, section 10, clause 1 of the United States Constitution provides in relevant part, " No State shall ... pass
any bill of attainder, ex post facto law, or law impairing the obligation of contracts." 45614 -1 - II / 46836 -1 - II
B. SENTENCING WITHOUT STATUTORY AUTHORITY
The State asks us to remand for resentencing because the trial court lacked statutory
authority to resentence Hofstetter before the legislature enacted the Miller fix. It argues that
fixing legal punishments is a legislative function and that the superior court does not have
authority to impose a sentence not based on statute. We agree, and hold that Hofstetter' s
sentence is unlawful and that a new resentencing hearing is necessary.
1. Invalid Sentence
In State v. Guzman Nunez, our Supreme Court reiterated the longstanding constitutional
principle that fixing penalties and punishments for criminal offenses is a legislative function.
174 Wn.2d 707, 711, 285 P. 3d 21 ( 2012); see also State v. Ammons, 105 Wn. 2d 175, 180, 718
P. 2d 796 ( 1986); State v. Mulcare, 189 Wash. 625, 628, 66 P. 2d 360 ( 1937). A sentence that is
beyond the trial court' s statutory authority is an invalid sentence. In re Pers. Restraint of Coats,
173 Wn.2d 123, 136, 267 P. 3d 324 ( 2011); State v. Smissaert, 103 Wn.2d 636, 639, 694 P. 2d
654 ( 1985).
Here, at the time of resentencing; the sentencing statute only gave.the trial court authority
to impose a life sentence. Former RCW 10. 95. 030. Although Miller rendered that statute
unconstitutional, the trial court had no statutory basis for imposing a different sentence. Further,
once the legislature enacted the Miller fix to define the level of punishment for juveniles
convicted of aggravated first degree murder, the trial court' s new sentence was inconsistent with
its statutory authority. After the Miller fix, the trial court could only impose an indeterminate
sentence with at least a 25 -year minimum sentence. RCW 10. 95. 030( 3). There is not and never
S 45614 -1 - II / 46836 -1 - II
has been statutory authority to impose a 40 -year determinate sentence for aggravated first degree
murder.
Because the trial court had no statutory authority to impose Hofstetter' s new sentence, it
is invalid and must be corrected. See In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 510 n.9,
301 P.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED COURT OF APPEAI S- 01visibiq if 2015 JUL 2), AM 9: 26 0117[ STATE Vfflrr4GTO I 0 yN T IN THE COURT OF APPEALS OF THE STATE OF WASHINGT ,
DIVISION II
STATE OF WASHINGTON, No. 45614 -1 - II Consolidated With No. 46836 -1 - II Appellant,
UNPUBLISHED OPINION ANSEL W. HOFSTETTER,
t.
In the Matter of the Personal Restraint Petition of.
ANSEL W. HOFSTETTER,
Petitioner.
MAXA, P. J. — The State of Washington appeals from a resentencing hearing in which the
trial court changed Ansel Hofstetter' s sentence of life in prison without the possibility of early
release, imposed when he was a juvenile, to a 40 -year determinate sentence. The resentencing
occurred pursuant to the United States Supreme Court' s holding in Miller v. Alabama that
sentencing a juvenile defendant to imprisonment of life without the possibility of release violated
the Eighth Amendment proscription against cruel and unusual punishment unless the sentencing
court specifically considered the juvenile' s youthfulness before imposing the sentence. 132S.
Ct. 2455, 2460, 183 L. Ed. 2d 407 ( 2012). However, at the time of resentencing the legislature
had not yet amended the sentencing statute to comply with Miller. 45614 -1 - II / 46836 -1 - II
We hold that Hofstetter' s new sentence is invalid because the trial court did not have
statutory authority to impose a determinate sentence. Accordingly, we vacate Hofstetter' s
sentence and remand for resentencing. We also deny Hofstetter' s personal restraint petition
PRP) as moot.
FACTS
In 1992, a jury convicted Hofstetter, a juvenile, of aggravated first degree murder.
Former RCW 10. 95. 030 ( 1981) required, and the trial court imposed, a sentence of life without
the possibility of early release. In 1994, we affirmed Hofstetter' s conviction and sentence. State
v. Hofstetter, 75 Wn. App. 390, 878 P. 2d 474 ( 1994).
After the United States Supreme Court decided Miller,.Hofstetter sought relief in superior
court by means of a motion for relief of judgment, relying on Miller. The State opposed the
motion, arguing that Miller did not apply retroactively and, even if it did, the trial court would
need to. wait for the legislature to amend the sentencing statute: Hofstetter advocated for a
determinate sentence between the mandatory minimum for first degree murder, (20 years) and
life.
Despite the State' s request to take no action, the trial court ruled that Miller applied
retroactivelyi and that Hofstetter should be resentenced. The State requested that the trial court
again impose a sentence of life without the possibility of early release or, alternatively, a
1 The United States Supreme Court has granted certiorari on whether Miller applies retroactively in Montgomery v. Louisiana, 135 S. Ct. 1546, No. 14- 280 ( Mar. 23, 2015). We do not address this issue.
2 45614 -1 - II / 46836 -1 - II
determinate sentence of 50 years or more. The trial court imposed a 40 -year determinate
sentence with a lifetime of community custody.
The State appeals. Hofstetter also filed a PRP, which. we consolidated with this appeal.
ANALYSIS
A. AMENDMENT OF SENTENCING STATUTE
Before the parties filed their appellate briefs, the legislature amended the applicable
sentencing statute, now codified at RCW 10. 95. 030( 3). This legislation is commonly called the
Miller fix." In re Pers. Restraint of McNeil, 181 Wn.2d 582, 586, 334 P. 3d 548 ( 2014). RCW
10. 95. 030( 3)( b) requires the sentencing court to " take into account mitigating factors that.
account for the diminished culpability of youth," restricts life sentences to older juvenile
offenders and then only based on an individualized determination, and requires the court to
impose an indeterminate sentence with at least a 25 -year minimum term if life without the
possibility of parole is not imposed.
The legislature applied its amendment retroactively. Any juvenile who was given a
mandatory sentence of life without the possibility of early release before the Miller.fix became
effective automatically is entitled to resentencing consistent with the new guidelines. Id.; see
also McNeil, 181 Wn.2d at 589.
Our Supreme Court decided in McNeil that the Miller fix did not violate the ex post facto
clauses of the Washington Constitution and the United States Constitution.2 181 Wn.2d at 593.
2 Article I, section 23 of the Washington Constitution provides, " No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed." Article I, section 10, clause 1 of the United States Constitution provides in relevant part, " No State shall ... pass
any bill of attainder, ex post facto law, or law impairing the obligation of contracts." 45614 -1 - II / 46836 -1 - II
B. SENTENCING WITHOUT STATUTORY AUTHORITY
The State asks us to remand for resentencing because the trial court lacked statutory
authority to resentence Hofstetter before the legislature enacted the Miller fix. It argues that
fixing legal punishments is a legislative function and that the superior court does not have
authority to impose a sentence not based on statute. We agree, and hold that Hofstetter' s
sentence is unlawful and that a new resentencing hearing is necessary.
1. Invalid Sentence
In State v. Guzman Nunez, our Supreme Court reiterated the longstanding constitutional
principle that fixing penalties and punishments for criminal offenses is a legislative function.
174 Wn.2d 707, 711, 285 P. 3d 21 ( 2012); see also State v. Ammons, 105 Wn. 2d 175, 180, 718
P. 2d 796 ( 1986); State v. Mulcare, 189 Wash. 625, 628, 66 P. 2d 360 ( 1937). A sentence that is
beyond the trial court' s statutory authority is an invalid sentence. In re Pers. Restraint of Coats,
173 Wn.2d 123, 136, 267 P. 3d 324 ( 2011); State v. Smissaert, 103 Wn.2d 636, 639, 694 P. 2d
654 ( 1985).
Here, at the time of resentencing; the sentencing statute only gave.the trial court authority
to impose a life sentence. Former RCW 10. 95. 030. Although Miller rendered that statute
unconstitutional, the trial court had no statutory basis for imposing a different sentence. Further,
once the legislature enacted the Miller fix to define the level of punishment for juveniles
convicted of aggravated first degree murder, the trial court' s new sentence was inconsistent with
its statutory authority. After the Miller fix, the trial court could only impose an indeterminate
sentence with at least a 25 -year minimum sentence. RCW 10. 95. 030( 3). There is not and never
S 45614 -1 - II / 46836 -1 - II
has been statutory authority to impose a 40 -year determinate sentence for aggravated first degree
murder.
Because the trial court had no statutory authority to impose Hofstetter' s new sentence, it
is invalid and must be corrected. See In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 510 n.9,
301 P. 3d 450 ( 2013). Therefore, we hold that Hofstetter' s sentence must be vacated.
2. Timeliness of Appeal
Hofstetter argues, without discussion or citation of authority, that the State' s appeal is
untimely because it was filed more than 30 days after he claims the trial court vacated the
judgment on September 30, 2013. However, on September 30 the trial court did not vacate
Hofstetter' s existing sentence, but simply issued a written decision applying Miller retroactively.
In any event, a final judgment —including the sentence - is a prerequisite to a direct appeal in a
criminal case. In re Pers. Restraint ofSkylstad, 160 Wn.2d 944, 949- 50, 162 P. 3d 413 ( 2007).
Here, the trial court did not enter its judgment and sentence until October 18, 2013, The State' s
notice of appeal was filed within 30 days of the judgment and sentence.
We hold that the State' s appeal was not untimely.
3. No Invited Error
Hofstetter argues that the invited error doctrine prevents the State from complaining that
the trial court imposed a determinate sentence when it proposed such a sentence below. We
disagree.
The invited error doctrine prohibits a party from setting up an error at trial and then
challenging that error on appeal. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P. 3d
810 ( 2014). Here, the State repeatedly asked the trial court to. delay resentencing Hofstetter until
5 45614 -1 - II / 46836 -1 - II
the legislature amended the sentencing statute. However, the trial court decided that further
delay implicated Hofstetter' s speedy sentencing right and that resentencing was necessary before
the legislature acted. The State supported a determinate sentence only after the trial court
decided to go forward with resentencing.
This was not invited error. The trial court had ruled against the State and the State had no
choice but to offer a sentencing recommendation. Therefore, we hold that the State is not
precluded from challenging the imposed sentence.
4. Sentencing Authority Before Amendment
Hofstetter argues that a trial court should have authority to correct a sentence based on an
unconstitutional statute if the legislature has not yet acted to fix the statute. Otherwise, if the
legislature never acted, a person subject to such a.sentence would never have a remedy.
However, our Supreme Court consistently has held that a trial court does not have the
authority to adopt a different sentencing procedure when the statutory procedure has been found
unconstitutional. State v. Davis, 163 Wn.2d 606, 610- 11, 184 P. 3d 639 ( 2008); State v. Pillatos,
159 Wn.2d 459, 469- 70, 150 P. 3d 1130 ( 2007). We hold that the same rule applies when a
sentencing statute has been declared unconstitutional.
We hold that because the trial court had no statutory authority for its new sentence, the
sentence must be vacated and the case must be remanded for a new resentencing. hearing.
C. PERSONAL RESTRAINT PETITION
In his PRP, Hofstetter argues that the trial court erred in imposing a lifetime of
community custody placement because such a condition makes his sentence an exceptional
sentence unsupported by any factual findings. We need not address this issue because our 45614 -1 - II / 46836 -1 - II
remand for resentencing renders this issue moot. In re Interest ofRebecca K., 101 Wn. App.
309, 313, 2 P. 3d 501 ( 2000).
Hofstetter also argues that the Department of Corrections ( DOC) is denying him earned
early release time. This issue too may be rendered moot by our decision. In addition, DOC has
responded that it is not denying Hofstetter early release but that its computer system was unable
to make such calculations. DOC avers that it has remedied the problem. There is no remedy this
court can provide at this time, making this issue moot. In re Pers. Restraint ofHuffman, 34 Wn.
App. 570, 572, 662 P. 2d 408 ( 1983).
We vacate Hofstetter' s sentence, remand for a new resentencing hearing, and deny
Hofstetter' s PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
MAXA, P. J.J.
We concur:
Lr, J.
SUTTON,SUTTON, J.J.