State of Washington v. Hugh Allen Putnam

• Court: Court of Appeals of Washington
• Decided: July 13, 2021
• Docket: 37588-9
• Status: Unpublished

Opinion

FILED JULY 13, 2021 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 37588-9-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION HUGH ALLEN PUTNAM, ) ) Appellant. )

FEARING, J. — Hugh Putnam, pursuant to CrR 7.8(b)(b), seeks early release from

confinement at the Department of Corrections’ (DOC) Coyote Ridge Corrections Center.

Putnam emphasizes his age and medical condition as a basis for release. Although we

sympathize with Putnam’s circumstances, we agree with the superior court that the

judicial branch lacks authority to grant early release. Putnam’s request for relief must be

addressed to the executive branch. We affirm the superior court’s denial of Putnam’s

motion.

FACTS

Appellant Hugh Putnam was born August 2, 1956. Putnam underwent an ostomy

surgery to control ulcerative colitis in 1976 at the age of 19. The surgery resulted in a No. 37588-9-III State v. Putnam

stoma, an opening on the abdomen connected to Putnam’s digestive system to allow

waste to exit the body. The opening requires constant medical attention.

On January 14, 2003, the State of Washington charged Hugh Putnam, then age 46,

with two counts of attempted murder while armed with a firearm for firing his gun at two

boys at a Wenatchee park. The State also charged Putnam with four counts of first

degree assault with a firearm, because Putnam also fired a gun in the direction of a couple

visiting the park.

In 2003, a Chelan County jury found Hugh Putnam guilty of two counts of first

degree assault and two counts of second degree assault. The jury returned special

verdicts for each of the convictions finding that Putnam was armed with a firearm for

each count.

The trial court sentenced Putnam to 414 months. In 2004, this court affirmed the

convictions in an unpublished opinion. This court has since denied two personal restraint

petitions filed by Putnam.

In addition to suffering from ulcerative colitis and maintaining a stoma, Putnam

now suffers from type-1 diabetes, mediastinal adenopathy, high blood pressure, and

chronic obstructive pulmonary disease. In 2009, he suffered a stroke.

On November 20, 2019, then age 63, Hugh Putnam filed a clemency petition in

which he requested that the Washington State Clemency and Pardons Board commute his

sentence and permit him to live the rest of his sentence at home where he could care for

2 No. 37588-9-III State v. Putnam

his own medical needs. In the petition, Putnam emphasized his age and medical

conditions. Months later the COVID-19 pandemic struck Washington State, the United

States, and the world.

PROCEDURE

On April 16, 2020, Hugh Putnam, still 63 years old, filed, with the superior court,

an emergency motion for early release from Coyote Ridge Corrections Center pending

the outcome of his clemency petition before the Clemency and Pardons Board. In the

motion, he emphasized his medical conditions. Putnam contended that, because of the

coronavirus pandemic, he faces a grave risk of death because of those health conditions

and his age. He alleged a violation of his right to equal protection and rights shielding

him from cruel and unusual punishment. Putnam mentioned that the Clemency and

Pardons Board would conduct a hearing in the fall of 2020. He asked, however, that the

superior court grant him release pending his clemency hearing or a medical furlough until

an effective vaccine is developed for COVID-19.

In response to Hugh Putnam’s motion for release, the State of Washington

responded that Hugh Putnam cited no law that authorized the superior court to entertain

his motion for early release based on medical grounds. The State argued that the only

court rule allowing relief from a criminal judgment and sentence, CrR 7.8, did not

authorize granting of Putnam’s motion. The State contended that, after entry of a

judgment and sentence, the sentencing court’s jurisdiction over the offender ends. The

3 No. 37588-9-III State v. Putnam

State also challenged the merits of Putnam’s request for release. After the State’s

response to his motion, Hugh Putnam cited CrR 7.8(b)(2), which addresses newly

discovered evidence, and CrR 7.8(b)(5), which mentions any other reasons justifying

relief, as the authority under which the trial court could grant him early release.

On May 1, 2020, the superior court conducted a hearing on Hugh Putnam’s

motion for early release. The trial court questioned whether it held authority to change a

sentence entered eighteen years earlier. Defense counsel argued that CrR 7.8 bestowed

such authority on the superior court. Defense counsel also informed the court that DOC

was currently considering the potential of an extraordinary medical placement for

Putnam. Otherwise, because of the violent nature of Putnam’s offense, he did not qualify

for any other early release programs adopted by DOC for the pandemic. Defense counsel

informed the court that three staff members at Coyote Ridge Corrections Center recently

tested positive for COVID-19.

During the motion hearing, the State challenged application of the newly

discovered evidence rule, CrR 7.8(b)(2), because the rule applied to evidence related to

the conviction not to pandemics occurring during administration of the sentence.

According to the State, only evidence impacting the guilt or innocence of the offender

qualified as newly discovered evidence under the rule’s subsection. The State also

argued that CrR 7.8(b)(5) was not so broad as to grant the court jurisdiction of a request

4 No. 37588-9-III State v. Putnam

for early release. Instead, according to the State, CrR 7.8(b)(5) only applied to errors or

defects in the trial or sentencing process.

The superior court agreed with the State and denied Hugh Putnam’s motion for

early release because the clemency board, not the court, possessed the authority to grant

the release. The superior court also reasoned that CrR 7.8(b)(5) does not apply because

COVID-19 and Putnam’s state of health are not “‘any other reason justifying relief from

the judgment.’” Clerk’s Papers at 403.

LAW AND ANALYSIS

On appeal, Hugh Putnam, now age 64, and amici curiae sketch, in their respective

briefs, the danger of the COVID-19 pandemic and its impact on inmates nationally, in

Washington State, and Coyote Ridge Detention Center, Putnam’s locus of incarceration.

The literature presented emphasizes the danger to older inmates and those with

preexisting ailments. We readily agree with the literature presented by Putnam and amici

and assume the danger from the pandemic continues despite the development of

vaccinations. Nevertheless, we conclude that the judicial branch lacks authority to

release one on medical or epidemiology grounds. One Washington statute removes from

the sentencing court the ability to grant community custody or early release for an

offender. No court rule grants such authority. Putnam must present his cause to the

executive branch of Washington State government.

5 No. 37588-9-III State v. Putnam

RCW 9.94A.728 controls Hugh Putnam’s appeal. The statute declares, in part:

(1) No person serving a sentence imposed pursuant to this chapter and committed to the custody of the department [of corrections] shall leave the confines of the correctional facility or be released prior to the expiration of the sentence except as follows: .... (c)(i) The secretary may authorize an extraordinary medical placement for an offender when all of the following conditions exist: (A) The offender has a medical condition that is serious and is expected to require costly care or treatment; (B) The offender poses a low risk to the community because he or she is currently physically incapacitated due to age or the medical condition or is expected to be so at the time of release; and (C) It is expected that granting the extraordinary medical placement will result in a cost savings to the state.

Note that the statute only authorizes the secretary of DOC to grant a medical release.

On April 15, 2020, as a result of the pandemic and based on his emergency

powers, Washington Governor Jay Inslee allowed for the early release of offenders who

did not commit a violent offense. Proclamation by Governor Jay Inslee, No. 20-50

(Wash. Apr. 15, 2020), https://www.governor.wa.gov/sites/default/files/proclamations/

20-50%20-%20COVID-19%20Reducing%20Prison%20Population.pdf, related to the

COVID-19 State of Emergency. Putnam committed a violent offense.

Before the superior court, Hugh Putnam, despite RCW 9.94A.728, argued that

CrR 7.8(b) (2) and (5) authorized the superior court to grant him early release due to the

combination of COVID-19, his age, and his medical conditions. This rule declares in

pertinent part:

6 No. 37588-9-III State v. Putnam

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons: .... (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5; .... (5) Any other reason justifying relief from the operation of the judgment.

(Boldface omitted.) On appeal, Putnam advances only subsection (5). He contends that

trial courts retain the power to revisit sentences imposed on medically vulnerable

individuals due to the unforeseen circumstance of a worldwide pandemic. The State

responds that a trial court may grant relief under subsection (5) only when a judgment is

invalid or the imposed sentence may not be executed as conceived by the court. We

agree with the State.

On entry of a final judgment and sentence of imprisonment for longer than one

year, legal authority over the accused passes by operation of law to DOC and the

Washington State Clemency and Pardons Board, and those agencies of the executive

branch bear full responsibility for executing the judgment and sentence or granting parole

pursuant to statutes. State v. Hale, 94 Wn. App. 46, 54, 971 P.3d 88 (1999); January v.

Porter, 75 Wn.2d 768, 773-74, 453 P.2d 876 (1969). The Washington State Supreme

Court has emphasized this transfer of jurisdiction. Under Washington’s system of

punishment, the judicial process does not extend to the granting or denial of parole.

7 No. 37588-9-III State v. Putnam

January v. Porter, 75 Wn.2d 768, 773. The judiciary’s functions ends with either a

verdict of acquittal or the final entry of a judgment and sentence. January v. Porter, 75

Wn.2d at 773. The courts have long recognized this division of power. January v.

Porter, 75 Wn.2d at 774.

Notwithstanding this transfer of jurisdiction from the judicial to the executive

branch, final judgments in both criminal and civil cases may be vacated or altered by the

sentencing court in those limited circumstances when the interests of justice most

urgently require. State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989) (citing RCW

9.94A.150, RCW 9.94A.260, CrR 7.8(b), CR 60(b)). Nevertheless, relief under CrR

7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the

CrR 7.8. State v. Smith, 159 Wn. App. 694, 700, 247 P.3d 775 (2011). An extraordinary

circumstance includes “fundamental and substantial irregularities in the court’s

proceedings or irregularities extraneous to the court’s action.” State v. Smith, 159 Wn.

App. at 700.

The limited number of decisions in which a Washington court has granted relief

under CrR 7.8(b)(5) involve either a defect with the judgment and sentence or an

inconsistency or inability for the sentence to be served as conceived by the sentencing

court. State v. Klump, 80 Wn. App. 391, 909 P.2d 317 (1996); State v. Smith, 159 Wn.

App. 694, 247 P.3d 775 (2011). In State v. Klump, the superior court imposed a valid

sentence on Ronald Max Klump, which sentence referred to a previously imposed federal

8 No. 37588-9-III State v. Putnam

sentence. The federal sentence was later reversed. Klump sought relief under

CrR 7.8(b)(5) from his state sentence, and this court granted the relief because the federal

sentence, to which the state sentence referred, was later invalidated. The state sentence

therefore became invalid on its face.

In State v. Smith, 159 Wn. App. 694 (2011), the sentencing court sentenced four

offenders to nine months’ of partial confinement. The county of incarceration then

eliminated its partial confinement program due to budget restraints. The original

sentencing judge concluded that this change in confinement policy constituted an

extraordinary circumstance under CrR 7.8(b)(5). On resentencing, the court shortened

the sentences to six months, which shortening led to the immediate release of the

offenders. This court affirmed because of the unforeseeable circumstance of loss of

county funds for partial confinement at the time of the initial sentencing. The sentencing

judge emphasized that the alternatives to incarceration served an important role in the

sentences he imposed. This court observed that the availability of partial confinement

served as a fundamental underpinning of the judge’s sentencing decision and the change

in county policy undermined the sentencing court’s objective.

In State v. Smith, this court, in dicta, mentioned that the Sentencing Reform Act of

1981 (SRA), ch. 9.94A RCW, did not permit the judicial branch to release an offender

before the expiration of his or her sentence pursuant to RCW 9.94A.728. This court

wrote that, while the effect of the four offenders’ resentencing by the superior court

9 No. 37588-9-III State v. Putnam

included early release, such result constituted an indirect impact of the resentencing and

did not serve as the resentencing court’s basis for the modification. Instead, the

resentencing court imposed a sentence that the court would have initially imposed had the

court known of the subsequent termination of the partial confinement programs. This

court reasoned that, although the SRA prohibits early release by the judicial branch, that

prohibition did not prevent a judge from correcting a sentence based on unforeseen

circumstances.

Hugh Putnam contends that CrR 7.8(b)(5) does not limit relief to a defect in the

underlying conviction or sentence, nor is the rule limited to a sentence that cannot be

executed as conceived. Instead, the resentencing court may, according to Putnam, grant

relief on extraordinary circumstances extraneous to the court’s action that did not exist at

the time of entry of the judgment and sentence. Putnam relies on State v. Cortez, 73 Wn.

App. 838, 871 P.2d 660 (1994).

In State v. Cortez, the trial court granted Jose Cortez’s motion to vacate his

judgment and sentence for possession of a controlled substance. At the time Cortez filed

the motion, he faced deportation proceedings and could not gain relief from deportation

due to his conviction. On appeal, the State argued that the trial court erred in granting the

motion because relief under CrR 7.8(b)(5) was limited to a legal defect relating to the

underlying conviction. The State contended that no legal defect existed, and, therefore,

relief from the operation of the judgment could not be granted. This court agreed that no

10 No. 37588-9-III State v. Putnam

legal defect existed but clarified that, even had one existed, it would constitute an

“irregularity” or “mistake” within the meaning of CrR 7.8(b)(1) rather than an

“extraordinary circumstance” under CrR 7.8(b)(5). State v. Cortez, 73 Wn. App. at 841.

This court then addressed CrR 7.8(b)(5) and ruled that no alleged extraordinary

circumstances existed because the circumstances on which Cortez sought vacation, the

potential for deportation, existed at the time of the sentencing.

Hugh Putnam emphasizes State v. Cortez’s mention of conditions existing at the

time of sentencing and then highlights that his sentencing court never expected or

considered the circumstances of a pandemic wreaking havoc in the prison system and

threating the life of one of Putnam’s age and medical condition. Nevertheless, Putnam

fails to show an exceptional circumstance that undermines his specific sentence and

judgment as opposed to extraordinary circumstances that impact Washington’s

administration of justice and punishment system as a whole. All offenders under DOC

incarceration face threats due to the coronavirus and some of the offenders are as old as

Putnam and have medical conditions that render them susceptible to the pandemic.

In State v. Klump, the sentence could not be completed because of its invalidity.

In State v. Smith, the sentence could not be effectuated because the county terminated the

partial confinement program. Hugh Putnam’s judgment and sentence remains valid, and

DOC may still administer the sentence.

11 No. 37588-9-III State v. Putnam

CONCLUSION

We affirm the superior court’s denial of Hugh Putnam’s CrR 7.8 motion for early

release from incarceration.

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.

_________________________________ Fearing, J.

WE CONCUR:

______________________________ Lawrence-Berrey, J.

______________________________ Pennell, C.J.