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November 28, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57948-1-II
Appellant,
v. PUBLISHED OPINION
DWAYNE EARL BARTHOLOMEW,
Respondent.
PRICE, J. — Forty years after his conviction for aggravated first degree murder under
chapter 10.95 RCW, Dwayne E. Bartholomew’s sentence of life in prison without the possibility
of release was declared unconstitutional. Bartholomew was resentenced to life in prison with the
possibility of release, but at the urging of the parties, the sentencing court did not set a minimum
term of confinement.
Shortly thereafter, the Indeterminate Sentence Review Board (ISRB) sent a letter
requesting that the sentencing court fix a minimum term for Bartholomew’s confinement pursuant
to RCW 9.95.011. Following the ISRB letter, Bartholomew moved under CrR 7.8(a) for the
sentencing court to fix a minimum term, asserting that failing to do so initially was a clerical error.
The sentencing court granted Bartholomew’s motion and fixed a minimum term of 380 months in
confinement with credit for time served.
The State appeals, arguing that fixing a minimum term was outside of the relief available
under CrR 7.8(a). The State also argues that fixing a minimum term for Bartholomew’s conviction For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 57948-1-II
under chapter 10.95 RCW is not authorized until the legislature amends the sentencing laws. We
hold that the sentencing court’s order exceeded the relief available under CrR 7.8(a) and reverse.
FACTS
I. BACKGROUND
In 1981, when he was 20 years old, Bartholomew fatally shot an employee of a laundromat
during a robbery. Bartholomew was convicted of aggravated first degree murder under
10.95 RCW, and in accordance with the sentencing statute specific to that crime, RCW 10.95.030,
he was sentenced to the mandatory sentence of life in prison without the possibility of release.
In 2021, our Supreme Court reversed Bartholomew’s sentence. In re Pers. Restraint of
Monschke, 197 Wn.2d 305, 329, 482 P.3d 276 (2021). The Supreme Court determined that
mandatory sentences of life in prison without the possibility of release were unconstitutional for
defendants under 21 years old who were convicted of aggravated first degree murder. Id. at 325-
26. The Supreme Court reasoned that there was no meaningful neurological difference between
many 17-year-olds and 19- to 20-year-olds and explained that “sentencing courts must have
discretion to take the mitigating qualities of youth . . . into account for defendants younger and
older than 18.” Id. at 326. The Supreme Court vacated Bartholomew’s sentence and remanded
his case for resentencing with the consideration of whether mitigating qualities of youth applied
to him. Id. at 329.
II. BARTHOLOMEW’S RESENTENCING
A. SENTENCING COURT’S INITIAL DECISION
In January 2022, at his resentencing, Bartholomew argued the Supreme Court’s decision
in Monschke should be construed as extending the exceptions for defendants under 18 years old
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
included in former RCW 10.95.030 (2015) to defendants under 21 years old. Former RCW
10.95.030 generally requires life imprisonment without the possibility of release and, therefore, no
minimum term of confinement:
Except as provided in subsections (2) and (3) of this section, any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole.
Former RCW 10.95.030(1). But the statute also includes exceptions for youthful offenders. For
example, offenders between the ages of 16 and 18 are entitled to receive a minimum term:
Any person convicted of the crime of aggravated first degree murder for an offense committed when the person is at least sixteen years old but less than eighteen years old shall be sentenced to a maximum term of life imprisonment and a minimum term of total confinement of no less than twenty-five years. A minimum term of life may be imposed, in which case the person will be ineligible for parole or early release.
Former RCW 10.95.030(3)(a)(ii).
Bartholomew primarily argued that, following Monschke, the language of the statute meant
that, because he was over 18, the sentencing court could recommend a minimum term of
confinement to the ISRB, but could not require a minimum term. Alternatively, Bartholomew
argued that Monschke should be construed as extending the exception for offenders between the
ages of 16 and 18 to those under the age of 21. At that point, the State agreed with Bartholomew’s
alternative argument and urged the sentencing court to resentence Bartholomew under the
exception for those offenders between 16 and 18 in former RCW 10.95.030(3)(a)(ii).
The sentencing court agreed with the State’s proposal and orally ruled that it would apply
the exception for Bartholomew’s resentencing.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
B. STATE’S MOTION FOR RECONSIDERATION
Four months later, the State reversed its position. The State moved for reconsideration,
arguing that the exception for offenders between 16 and 18 years of age could not be extended to
those under 21. The State contended that although the Supreme Court’s opinion in Monschke
made Bartholomew’s mandatory life sentence unconstitutional, the sentencing court had no
authority under the current sentencing statutes to fix any sort of minimum term.
The State explained that it believed the sentencing court could only impose two possible
sentences:
“[L]ife imprisonment without possibility of release or parole” pursuant to [former] RCW 10.95.030(1)[.]
Clerk’s Papers (CP) at 781 (first alteration in original). Or, if Bartholomew’s culpability was
affected by the mitigating qualities of youth, then the State contended the statute would be
modified by the Monschke decision as:
“[L]ife imprisonment without possibility of release or parole” pursuant to RCW 10.95.030(1). In re Pers. Restraint of Monschke, 197 Wn.2d 305 (2021), and Laws of 1981, ch. 138, § 22 (severability clause).
CP at 781 (alterations in original). But because former RCW 10.95.030 did not expressly address
the setting of a minimum term for offenders over the age of 18, the State argued that no minimum
term could be set without an amendment from the legislature.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
In response, Bartholomew agreed that former RCW 10.95.030(1) applied, but argued that
even if the sentencing court did not set a minimum term, the ISRB, under a different statute, would
be able to release him.1
Without expressly addressing whether a minimum term was necessary, the sentencing
court agreed that former RCW 10.95.030(1) applied and heard arguments from the parties about
the role of Bartholomew’s youth at the time of his crimes, ultimately determining that
Bartholomew “was subject to the mitigating qualities of youth . . . .” CP at 850. Thus, on August
10, 2022, the sentencing court entered a judgement and sentence that imposed a life sentence with
the possibility of release. As before, the sentencing court did not mention any consideration of a
minimum term.
C. BARTHOLOMEW’S CRR 7.8(a) MOTION
About a month after Bartholomew’s new sentence was entered, the ISRB sent the
sentencing court a letter requesting a minimum term for Bartholomew’s sentence. The ISRB’s
letter cited RCW 9.95.011, which generally requires the sentencing court to set a minimum term
during sentencing for convictions before 1984. The statute provides,
When the court commits a convicted person to the department of corrections on or after July 1, 1986, for an offense committed before July 1, 1984, the court shall, at the time of sentencing or revocation of probation, fix the minimum term. The term so fixed shall not exceed the maximum sentence provided by law for the offense of which the person is convicted.
1 Bartholomew referenced RCW 9.95.115, which provides, “The indeterminate sentence review board is hereby granted authority to parole any person sentenced to the custody of the department of corrections, under a mandatory life sentence for a crime committed before July 1, 1984, except those persons sentenced to life without the possibility of parole. No such person shall be granted parole unless the person has been continuously confined therein for a period of twenty consecutive years less earned good time[.]”
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
RCW 9.95.011(1).
The State responded to the ISRB’s letter, explaining its position that RCW 9.95.011 did
not apply to aggravated first degree murder under chapter 10.95 RCW. The State reasoned that
RCW 9.95.011 was a general statute and did not apply because a more specific statute, former
RCW 10.95.030, governed sentencing for aggravated first degree murder. The State reiterated the
point it made earlier to the sentencing court that there was no authority to impose a minimum term
without a legislative fix.
A few weeks later, Bartholomew filed a motion with the sentencing court to set a minimum
term. The motion exclusively relied on CrR 7.8(a), which allows the sentencing court to correct
“clerical mistakes” “arising from oversight or omission” of the court. CrR 7.8(a). Bartholomew
characterized the lack of a minimum term as a clerical error. Adopting the ISRB’s position,
Bartholomew argued that the more general sentencing statute, RCW 9.95.011, applied and asked
the court to impose a minimum term of 360 months.
The State objected. The State argued that Bartholomew’s motion exceeded the relief
permitted by CrR 7.8(a) because setting a minimum term would not be correcting a clerical error.
And the State repeated its position that even if the motion could be considered, the sentencing
court had no authority to set a minimum term without a legislative fix.
The sentencing court granted the CrR 7.8(a) motion and set a minimum term, citing the
authority in RCW 9.95.011(1). The superior court said that fixing a minimum term was necessary
to give effect to Bartholomew’s sentence and characterized its initial failure to fix a minimum term
as an “oversight.” CP at 872. The sentencing court set Bartholomew’s minimum term as 380
months with credit for time served.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
The State appeals.
ANALYSIS
The State’s appeal implicates two separate but related issues: (1) whether a CrR 7.8(a)
motion was a proper vehicle for the sentencing court to add a minimum term to Bartholomew’s
judgment and sentence, and (2) if so, whether the sentencing court was authorized to set a
I. FAILURE TO SET A MINIMUM TERM WAS NOT A CLERICAL ERROR
The State argues that the sentencing court erred by granting Bartholomew’s CrR 7.8(a)
motion. The State asserts the setting of a minimum term was a substantive change, not a clerical
error. Bartholomew responds that the sentencing court’s initial failure to fix a minimum term was
an oversight that warranted correction under CrR 7.8(a). According to Bartholomew, the
sentencing court’s order fixing a minimum term gave effect to its intent to provide for the
possibility of release. We agree with the State.
CrR 7.8(a) allows the trial court to correct judgments when errors within resulted from an
oversight or omission. The rule specifically states,
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
CrR 7.8(a). “Clerical errors are those that do not embody the trial court’s intention as expressed
in the trial record.” State v. Morales, 196 Wn. App. 106, 117, 383 P.3d 539 (2016), review denied,
187 Wn.2d 1015 (2017). “These errors allow for amended judgments to correct language that did
not correctly convey the court’s intention or ‘supply language that was inadvertently omitted from
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the original judgment.’ ” Id. (quoting Presidential Estates Apt. Assocs. v. Barrett, 129 Wn.2d 320,
326, 917 P.2d 100 (1996)). “Errors that are not clerical are characterized as judicial errors, and
trial courts may not amend a judgment under CrR 7.8 for judicial errors.” Id. at 118.
Here, there is no question the sentencing court expressly sentenced Bartholomew to life
with the possibility of release. Both the State and Bartholomew agreed that, after Monschke, such
a sentence was appropriate. But the parties did not agree that a minimum term could be set, with
the State arguing that no minimum term was authorized. Notably, following these arguments, the
sentencing court did not mention setting a minimum term or cite to any authority that would enable
it to set a minimum term.
It was only after the ISRB letter requesting a minimum term that Bartholomew moved for
the sentencing court to fix a minimum term, arguing that the failure to do so was a clerical error.
The sentencing court agreed with Bartholomew, fixed a minimum term, and characterized its
failure to fix a minimum term earlier as an “oversight.” CP at 872.
But the sentencing court minimized the significance of its alteration. In the face of strongly
divergent arguments from the State and Bartholomew, the sentencing court’s silence about a
minimum term shows it did not intend to fix one when it entered the judgment and sentence.
Whether that decision was based on its belief that it did not have authority to fix a minimum
sentence or that it was unnecessary, nothing in the record demonstrates that the failure to fix a
minimum term was a mere oversight. It was a substantive addition.
In fact, the sentencing court’s decision to switch its statutory basis as authority to fix a
minimum term can be seen as an admission that it needed a wholly different statutory foundation
for its decision. Regardless of whether the sentencing court’s newly adopted authority of RCW
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
9.95.011(1) for imposing a minimum term is correct or not, the acknowledgment that it needed to
rely on different legal authorities shows this was a judicial error or mistake, not a clerical error
under CrR 7.8(a).2 Thus, the relief requested in Bartholomew’s motion exceeded the scope of CrR
7.8(a) and the sentencing court erred by granting it. Because we reverse the sentencing court’s
CrR 7.8(a) order, we do not further address the sentencing court’s authority to impose a minimum
term.
CONCLUSION
We reverse the sentencing court’s CrR 7.8(a) order. Bartholomew’s judgment and
sentence, entered August 10, 2022, stands.
PRICE, J. I concur:
LEE, J.
2 At oral argument, counsel for Bartholomew suggested that we could consider his motion as having been pled under CrR 7.8(b) if we concluded that the order amending the judgment and sentence in this case did not correct a clerical error as contemplated by CrR 7.8(a). Wash. Court of Appeals oral argument, State v. Bartholomew, No. 57948-1-II (Sept. 11, 2023), at 17 min., 35 sec. through 17 min., 50 sec. (on file with court). But we are neither permitted to raise an unpleaded claim sua sponte nor consider an entirely new theory for relief of which the opposing party has had no notice or opportunity to rebut. See Dalton M, LLC v. N. Cascade Tr. Servs., Inc., ___ Wn. App. 2d ___, 534 P.3d 339 (2023); RAP 12.1.
But even if Bartholomew had brought a CrR 7.8(b) motion, we agree with the concurrence that relief would not have been appropriate because chapter 9.95 RCW does not apply to sentences for aggravated first degree murder.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
CRUSER, A.C.J. (concurring) — I concur with the majority that Bartholomew was not
entitled to relief under CrR 7.8(a). In my view, Bartholomew would also not have been entitled to
relief under CrR 7.8(b) even if he had sought relief under that provision.
In this case Bartholomew argued, and the trial court agreed, that RCW 9.95.011 allowed
the court to set a minimum term of confinement after which Bartholomew would become eligible
for parole. I disagree. Because Bartholomew was convicted of aggravated first degree murder
under RCW 10.95.020, his sentencing is exclusively governed by RCW 10.95.030. RCW
10.95.030 is, as the State notes, a specific sentencing statute that is “complete and specific, leaving
no room for the application of general sentencing statutes.” Br. of Appellant at 24. This is unlike
ordinary first degree murder, which is prescribed in RCW 9A.32.030 and sentenced under the
Sentencing Reform Act of 1981 (ch. 9.94A RCW).
Pursuant to 10.95.030(1) and the legislature’s severance provision relating to chapter 10.95
RCW,3 the only sentence the trial court had the authority to impose in this case was life in prison
with the possibility of parole—which is the sentence the trial court imposed in the August 15, 2022
order on resentencing. Unfortunately, here, the Indeterminate Sentence Review Board (ISRB) has
taken the position that it cannot execute the sentence of the court in the absence of the setting of a
minimum term. But the plain language of Bartholomew’s sentence makes him eligible for parole
without the precondition of a minimum term. If the ISRB believed it could not execute this
3 Pursuant to LAWS OF 1981, ch. 138, § 22, “If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.”
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
sentence, then the proper procedure would have been for it to file a petition for post-sentence
review under RCW 9.94A.585(7) and RAP 16.18(a).
Additionally, it is critical that the legislature enact a statutory provision covering offenders
such as Bartholomew who committed aggravated first degree murder while they were 18, 19, or
20 years old, and for whom the trial court has determined that their crime was marked by the
youthful offender’s “ ‘immaturity, impetuosity, and failure to appreciate risks and consequences’ ”
of their crime. State v. Rogers, 17 Wn. App. 2d 466, 474, 487 P.3d 177 (2021) (internal quotation
marks omitted) (quoting, inter alia, Miller v. Alabama, 567 U.S. 460, 477, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012)). RCW 10.95.030 currently addresses only those offenders convicted of
aggravated first degree murder who were either under the age of 16 when they committed their
crime (RCW 10.95.030(2)(a)(i)), or who were at least 16 but under the age of 18 when they
committed their crime (RCW 10.95.030(2)(a)(ii)). The offenders convicted of aggravated first
degree murder who were 18, 19, or 20 at the time of their crime are not addressed by the statute.4
4 Although I agree with the State that it is incumbent on the legislature to act, and that principles rooted in separation of powers prevents us from rewriting sentencing statutes, I am not prepared to agree with the State’s assertion that the only way an offender such as Bartholomew can obtain relief is to institute civil legal action against the ISRB or the legislature, and that the judiciary is powerless to act in the face of restraint that may be unconstitutional. Pursuant to RAP 16.4(c)(6) and (7), the court may grant relief to a personal restraint petitioner who demonstrates that the conditions or manner of the restraint are in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or that other grounds exist to challenge the legality of the petitioner’s restraint. Bartholomew, it must be noted, did not seek relief in this case pursuant to RAP 16.4.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
As we near the third anniversary of our supreme court’s decision in In re Personal Restraint of
Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021), it is long overdue for the legislature to address
this situation.
CRUSER, A.C.J.