IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84109-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER ILANDERS HUTTON,
Appellant.
CHUNG, J. — Christopher Hutton argues the imposition of the victim
penalty assessment (VPA) at his resentencing for murder in the first degree
violates the state and federal constitutions’ protections against excessive fines. 1
At a resentencing, the court may consider any sentencing issues raised,
including the imposition of the VPA. But we need not reach Hutton’s
constitutional claims, as the State concedes Hutton is entitled to remand to strike
the VPA based on statutory amendments that apply to this appeal. Thus, we
remand to the trial court to strike the VPA from Hutton’s judgment and sentence.
FACTS
Christopher Hutton pleaded guilty to murder in the first degree in 2016 and
agreed to a high-end standard-range sentence of 416 months of confinement. At
sentencing, the trial court imposed the agreed sentence and ordered Hutton to
1 CONST. art. I, § 14; U.S. CONST. amend. VIII. No. 84109-2-I/2
pay the then-mandatory $500 VPA. Hutton’s conviction was affirmed on direct
appeal in 2018. 2
In 2021, the Washington Supreme Court held in State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021), that the former simple drug possession statute,
RCW 69.50.4013, was unconstitutional. Hutton had a prior conviction under
RCW 69.50.4013 that was used in calculating his offender score and standard
sentence range; therefore, based on Blake, he successfully moved for
resentencing pursuant to CrR 7.8. Based on a revised offender score of 4, his
standard sentencing range changed from 312-416 to 281-374. During the
resentencing hearing in April 2022, in keeping with the original plea agreement,
the court imposed the high-end of the standard sentence range, 374 months of
confinement. In the new judgment and sentence, the court also re-imposed “all of
the other conditions that were previously imposed,” including the $500 VPA,
except the State noted with regard to the DNA fee, “[i]t has already been
collected and paid.”
Hutton appealed his new sentence. Initially, Hutton filed a brief arguing the
trial court violated the constitutional protections from excessive fines by imposing
the VPA without considering Hutton’s ability to pay. He requested remand to the
trial court to either strike the VPA from the judgment and sentence or to inquire
whether Hutton had the ability to pay the VPA. Subsequently, Hutton moved to
discharge his assigned appellate counsel and proceed pro se. This court granted
the motion and permitted Hutton to file an amended brief of appellant. He did so,
2 State v. Hutton, No. 75548-0-I, (Wash. Ct. App. Jan. 29, 2018) (unpublished)
https://www.courts.wa.gov/opinions/pdf/755480.PDF.
2 No. 84109-2-I/3
again raising the same excessive fines challenge to the VPA. The only
substantive difference between the initial brief and his amended brief was his
additional request that this court “should remand with instructions that the trial
court allow Mr. Hutton to withdraw his plea” or alternatively, “conduct a hearing to
determine the validity of his plea.”
DISCUSSION
Hutton argues the trial court violated the state and federal constitutions’
protections from excessive fines when it imposed the VPA upon him without
considering his indigency status. The State contends that this court should
remand for waiver of the VPA without reaching the merits of the excessive fines
claim.
While the State ultimately concedes that for the sake of judicial economy,
this court should remand to strike the VPA, as a threshold issue, the State
argues the trial court’s resentencing was narrow and limited to the changes
necessitated by the change in offender score, so it improperly reconsidered
portions of Hutton’s judgment and sentence by discussing and re-imposing the
VPA. In support, the State points to In re Pers. Restraint of Adams, which held
that “once the one-year time limit has run, a petitioner may seek relief only for the
defect that renders the judgement not valid on its face. . . . And when that defect
is cured, the entry of a corrected judgment does not trigger a new one-year
window for judgment provisions that were always valid on their face.” 178 Wn.2d
417, 424, 309 P.3d 451 (2013).
3 No. 84109-2-I/4
The Washington Supreme Court recently addressed the same argument
in another appeal of a Blake resentencing in State v. Vasquez, __ Wn.3d __, 560
P.3d 853 (2024). Vasquez argued that at resentencing, the court may consider
any sentencing issues raised, while the State argued Vasquez was entitled to
only a “narrow” or “limited” resentencing correcting his offender score, not a full
resentencing. Id. at 855. The Washington Supreme Court distinguished Adams,
which was a collateral attack to Adams’s convictions, and held that the scope of
resentencing after the grant of a CrR 7.8 motion differs from the scope of
resentencing following a collateral attack. Id. at 856. The decision of the superior
court to grant a CrR 7.8 motion and conduct a resentencing operates “to vacate
the previous sentence and create a new sentence and thus a new appealable
decision.” Id. Likewise, here, upon granting Hutton’s CrR 7.8 motion, the court
vacated the previous sentence, and at resentencing, the court had discretion to
impose a new sentence, including conditions, all of which Hutton could appeal,
including the VPA. Id.
Though on appeal Hutton may raise a constitutional challenge to the
imposition of the VPA, we need not reach the issue, as we can resolve the issue
on another basis. See Stout v. Felix, 198 Wn.2d 180, 184, 493 P.3d 1170 (2021)
(“We will not reach a constitutional issue ‘unless absolutely necessary to the
determination of the case.’ ”) (quoting State v. Hall, 95 Wn.2d 536, 539, 627 P.2d
101 (1981)). After Hutton’s resentencing, the Legislature removed the mandatory
VPA for indigent defendants. LAWS OF 2023, ch. 449, § 1 (effective July 1, 2023),
codified at RCW 7.68.035(4), (5). This amendment, which prohibits the
4 No. 84109-2-I/5
imposition of the VPA on indigent defendants, applies to pending appeals. State
v. Schultz, 31 Wn. App. 2d 235, 254-55, 548 P.3d 559 (2024); State v. Ellis, 27
Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). The State concedes remand to strike
the VPA is appropriate. We accept the concession. Because the court found
Hutton to be indigent, we remand to strike the VPA from Hutton’s judgment and
sentence.
In his amended brief, filed pro se, Hutton also appears to challenge his
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84109-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER ILANDERS HUTTON,
Appellant.
CHUNG, J. — Christopher Hutton argues the imposition of the victim
penalty assessment (VPA) at his resentencing for murder in the first degree
violates the state and federal constitutions’ protections against excessive fines. 1
At a resentencing, the court may consider any sentencing issues raised,
including the imposition of the VPA. But we need not reach Hutton’s
constitutional claims, as the State concedes Hutton is entitled to remand to strike
the VPA based on statutory amendments that apply to this appeal. Thus, we
remand to the trial court to strike the VPA from Hutton’s judgment and sentence.
FACTS
Christopher Hutton pleaded guilty to murder in the first degree in 2016 and
agreed to a high-end standard-range sentence of 416 months of confinement. At
sentencing, the trial court imposed the agreed sentence and ordered Hutton to
1 CONST. art. I, § 14; U.S. CONST. amend. VIII. No. 84109-2-I/2
pay the then-mandatory $500 VPA. Hutton’s conviction was affirmed on direct
appeal in 2018. 2
In 2021, the Washington Supreme Court held in State v. Blake, 197 Wn.2d
170, 481 P.3d 521 (2021), that the former simple drug possession statute,
RCW 69.50.4013, was unconstitutional. Hutton had a prior conviction under
RCW 69.50.4013 that was used in calculating his offender score and standard
sentence range; therefore, based on Blake, he successfully moved for
resentencing pursuant to CrR 7.8. Based on a revised offender score of 4, his
standard sentencing range changed from 312-416 to 281-374. During the
resentencing hearing in April 2022, in keeping with the original plea agreement,
the court imposed the high-end of the standard sentence range, 374 months of
confinement. In the new judgment and sentence, the court also re-imposed “all of
the other conditions that were previously imposed,” including the $500 VPA,
except the State noted with regard to the DNA fee, “[i]t has already been
collected and paid.”
Hutton appealed his new sentence. Initially, Hutton filed a brief arguing the
trial court violated the constitutional protections from excessive fines by imposing
the VPA without considering Hutton’s ability to pay. He requested remand to the
trial court to either strike the VPA from the judgment and sentence or to inquire
whether Hutton had the ability to pay the VPA. Subsequently, Hutton moved to
discharge his assigned appellate counsel and proceed pro se. This court granted
the motion and permitted Hutton to file an amended brief of appellant. He did so,
2 State v. Hutton, No. 75548-0-I, (Wash. Ct. App. Jan. 29, 2018) (unpublished)
https://www.courts.wa.gov/opinions/pdf/755480.PDF.
2 No. 84109-2-I/3
again raising the same excessive fines challenge to the VPA. The only
substantive difference between the initial brief and his amended brief was his
additional request that this court “should remand with instructions that the trial
court allow Mr. Hutton to withdraw his plea” or alternatively, “conduct a hearing to
determine the validity of his plea.”
DISCUSSION
Hutton argues the trial court violated the state and federal constitutions’
protections from excessive fines when it imposed the VPA upon him without
considering his indigency status. The State contends that this court should
remand for waiver of the VPA without reaching the merits of the excessive fines
claim.
While the State ultimately concedes that for the sake of judicial economy,
this court should remand to strike the VPA, as a threshold issue, the State
argues the trial court’s resentencing was narrow and limited to the changes
necessitated by the change in offender score, so it improperly reconsidered
portions of Hutton’s judgment and sentence by discussing and re-imposing the
VPA. In support, the State points to In re Pers. Restraint of Adams, which held
that “once the one-year time limit has run, a petitioner may seek relief only for the
defect that renders the judgement not valid on its face. . . . And when that defect
is cured, the entry of a corrected judgment does not trigger a new one-year
window for judgment provisions that were always valid on their face.” 178 Wn.2d
417, 424, 309 P.3d 451 (2013).
3 No. 84109-2-I/4
The Washington Supreme Court recently addressed the same argument
in another appeal of a Blake resentencing in State v. Vasquez, __ Wn.3d __, 560
P.3d 853 (2024). Vasquez argued that at resentencing, the court may consider
any sentencing issues raised, while the State argued Vasquez was entitled to
only a “narrow” or “limited” resentencing correcting his offender score, not a full
resentencing. Id. at 855. The Washington Supreme Court distinguished Adams,
which was a collateral attack to Adams’s convictions, and held that the scope of
resentencing after the grant of a CrR 7.8 motion differs from the scope of
resentencing following a collateral attack. Id. at 856. The decision of the superior
court to grant a CrR 7.8 motion and conduct a resentencing operates “to vacate
the previous sentence and create a new sentence and thus a new appealable
decision.” Id. Likewise, here, upon granting Hutton’s CrR 7.8 motion, the court
vacated the previous sentence, and at resentencing, the court had discretion to
impose a new sentence, including conditions, all of which Hutton could appeal,
including the VPA. Id.
Though on appeal Hutton may raise a constitutional challenge to the
imposition of the VPA, we need not reach the issue, as we can resolve the issue
on another basis. See Stout v. Felix, 198 Wn.2d 180, 184, 493 P.3d 1170 (2021)
(“We will not reach a constitutional issue ‘unless absolutely necessary to the
determination of the case.’ ”) (quoting State v. Hall, 95 Wn.2d 536, 539, 627 P.2d
101 (1981)). After Hutton’s resentencing, the Legislature removed the mandatory
VPA for indigent defendants. LAWS OF 2023, ch. 449, § 1 (effective July 1, 2023),
codified at RCW 7.68.035(4), (5). This amendment, which prohibits the
4 No. 84109-2-I/5
imposition of the VPA on indigent defendants, applies to pending appeals. State
v. Schultz, 31 Wn. App. 2d 235, 254-55, 548 P.3d 559 (2024); State v. Ellis, 27
Wn. App. 2d 1, 16, 530 P.3d 1048 (2023). The State concedes remand to strike
the VPA is appropriate. We accept the concession. Because the court found
Hutton to be indigent, we remand to strike the VPA from Hutton’s judgment and
sentence.
In his amended brief, filed pro se, Hutton also appears to challenge his
guilty plea. He challenged the voluntariness of his plea on direct appeal, and we
held his guilty plea was not involuntary, as the court misinformed him about only
a collateral consequence of his plea and it properly informed him of the statutory
maximum in addition to the maximum applicable term. State v. Hutton, No.
75548-0-I, slip op. at 1 (Wash. Ct. App. Jan. 29, 2018) (unpublished)
https://www.courts.wa.gov/opinions/pdf/755480.PDF. Subsequent to the decision
on direct appeal, in January 2019, Hutton filed a CrR 4.2 motion to withdraw his
guilty plea. According to his resentencing memorandum, he decided not to
pursue the motion and agreed to proceed to resentencing.
In this appeal, Hutton’s only mention of his guilty plea is in the conclusion
to his amended brief, where he requests remand to allow him either to withdraw
his plea or with instructions to the trial court to “conduct a hearing to determine
the validity of his plea.” However, Hutton’s amended brief contains no
assignment of error, argument, or authority related to withdrawing his guilty plea.
“ ‘Passing treatment of an issue or lack of reasoned argument is insufficient to
merit judicial consideration.’ ” See Samra v. Singh, 15 Wn. App. 2d 823, 836, 479
5 No. 84109-2-I/6
P.3d 713 (2020) (quoting Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413
(1996)). Accordingly, we decline to address any challenge to Hutton’s guilty plea.
CONCLUSION
We remand to strike the VPA from Hutton’s judgment and sentence.
WE CONCUR: