IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87206-1-I Respondent/Cross Appellant, DIVISION ONE v. UNPUBLISHED OPINION THEODORE FRANCIS STEWART,
Appellant/Cross Respondent.
HAZELRIGG, A.C.J. — Theodore Francis Stewart appeals from his 2023
resentencing on his 2006 conviction for murder in the first degree with a deadly
weapon and asserts that the trial court failed to meaningfully consider youthfulness
as a mitigating factor that supported an exceptional sentence below the standard
range. The State cross appeals and claims that the process applied to Stewart’s
case amounted to an untimely collateral attack and Stewart was not eligible for
resentencing. A trial court lacks authority to resentence a defendant absent a
specific legal basis that allows the court to reopen a judgment and exercise its
sentencing discretion anew. 1 An agreement between the parties that resentencing
is appropriate, or a request for resentencing to which there is no objection, does
not eliminate the need for the authority to set aside a final judgment. Because the
trial court here had neither inherent authority nor authority under statute or
decisional law, it erred when it resentenced and amended Stewart’s final judgment
1 State v. Shove, 113 Wn.2d 83, 87-88, 776 P .2d 132 (1989). No. 87206-1-I/2
and sentence (J&S). We reverse the amended J&S and remand for the trial court
to vacate it and reinstate the original 2006 J&S. We dismiss Stewart’s appeal, as
our resolution of the State’s appeal renders his appeal moot.
FACTS
In 2006, a jury convicted Theodore Stewart of murder in the first degree
while armed with a deadly weapon. Stewart, together with an accomplice,
committed the crime in 2001, just days before his 21st birthday. The court imposed
a 384-month (32 year) standard range sentence. Division Three of this court
affirmed Stewart’s conviction on appeal and the mandate terminating review was
issued in 2008. See State v. Stewart, noted at 142 Wn. App. 1040 (2008).
More than a decade later, the Office of Public Defense (OPD) and
Department of Corrections (DOC) identified Stewart as a potential candidate for
resentencing in the wake of changes in the law precipitated by certain Washington
Supreme Court decisions, including In re Personal Restraint of Monschke, 197
Wn.2d 305, 482 P.3d 276 (2021) (plurality opinion), which addressed the
constitutionality of certain mandatory life without possibility of parole sentences. A
Spokane County Superior Court judge appointed counsel for Stewart ex parte.
Appointed counsel filed a notice of appearance in September 2021.
In February 2022, the defense filed a motion to transport Stewart to the
county jail “for resentencing.” In a single conclusory sentence, the motion asserted
that Stewart was “eligible to be resentenced based on the mandatory youthful
offender considerations established” by State v. Houston-Sconiers, 188 Wn.2d 1,
391 P.3d 409 (2017), a case involving discretion in sentencing juvenile defendants,
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and Monschke. Specifically, the defense contended that Monschke extended
Houston-Sconiers’ mandate to consider factors associated with youth when
sentencing individuals up “to 20 years old.”
At a March 25, 2022 status conference, defense counsel confirmed the
request for “possible resentencing” based on Houston-Sconiers and Monschke.
Defense counsel noted that the State did not appear to object and its agreement
to transport would not “preclude any argument the State would like to make later.”
The State agreed on the record that Stewart was entitled to be resentenced. 2 The
same day, the trial court signed an agreed order to transport Stewart for
“disposition/resentencing.” A few days later, the court signed a second order of
transport proposed by the State, adding language requested by the DOC to allow
Stewart’s later return to its custody without further court order.
In August 2022, the parties agreed to a continuance because the defense
expert needed more time to prepare for a youthful offender resentencing. They
agreed to a second continuance a few months later. After a February 2023 status
conference, the court issued a scheduling order that set the briefing schedule for
resentencing.
On March 3, 2023, Stewart filed his sentencing brief. In light of “changes in
caselaw and a greater understanding now of the science of brain development,”
he asked the court to exercise its discretion to impose a sentence below the
standard range. Defense counsel highlighted Stewart’s age at the time of the
crime, difficult upbringing, a traumatic brain injury, and other traumatic events.
2 The prosecutor later explained that he “erroneously” believed at the time that Monschke
applied to “all youthful offenders.”
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Stewart’s attorney also suggested that Stewart was influenced to commit the crime
by his codefendant who was the “primary instigator” and “more culpable.” The
defense pointed to “affirmative steps toward rehabilitation” during Stewart’s 18
years of incarceration. Stewart also relied on a forensic evaluation wherein the
evaluator concluded there were “several areas in which Mr. Stewart’s youthfulness
and impaired brain functionality at the time of the index crime would have had a
substantial impact on his behavior regarding index events.”
Then, for the first time, the State took the position that Stewart’s request for
resentencing was, in essence, an untimely collateral attack on his J&S. The State
argued that neither Houston-Sconiers nor Monschke affected Stewart’s sentence
because he was not a juvenile defendant, convicted of aggravated murder, or
sentenced to life without the possibility of parole. The State urged the trial court to
transfer the matter to the court of appeals for consideration as a personal restraint
petition (PRP), as required by CrR 7.8(c)(2) (postconviction motion filed in superior
court must be transferred to court of appeals unless it is both timely filed and
petitioner makes a substantial showing of entitlement to relief). In reply, Stewart
claimed the State’s objection to resentencing was untimely, a violation of the trial
court’s order that required a substantive sentencing memorandum, and an
improper attempt to relitigate the March 2022 order of transport, which implicitly
determined Stewart’s eligibility for resentencing.
When the parties appeared before the court on April 14, 2023, the
previously scheduled resentencing date, the State maintained its position that the
trial court had no authority to conduct a resentencing and was required to transfer
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the matter. Stewart likewise continued to argue that the question of his eligibility
for resentencing was not properly before the court. Defense counsel claimed the
State waived any objection by failing to seek review or reconsideration of the order
of transport and failing to raise any objection in the months that followed when
Stewart was awaiting resentencing. The State responded that there had been no
prior, logical opportunity to object in the absence of a formal motion for
resentencing and no court had ruled on Stewart’s entitlement to resentencing.
The trial court reviewed the procedural posture, noting that the orders of
transport were agreed orders that identified resentencing as the reason for the
transport. The court ruled that any objection to resentencing was waived because
the State did not seek review or reconsideration of any prior order and raised no
objection to the purpose of the hearing—resentencing—until its response to the
defense sentencing brief.
The court proceeded to resentence Stewart. In accordance with its briefing,
the defense urged the court to impose a new sentence of approximately 22 years,
based on Stewart’s particular circumstances and in consideration of factors
associated with his youth, such as “immaturity, impetuosity, failure to appreciate
risk and consequences.” The State declined to make a sentencing
recommendation.
The court expressly acknowledged its consideration of the arguments and
materials submitted by the defense and specifically discussed the forensic
evaluation. The court also acknowledged its discretion and consideration of
Stewart’s youthfulness at the time of the crime. Nevertheless, the court found no
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“mitigating factors to justify any type of exceptional sentence below the standard
range,” observing that Stewart was almost 21 years old at the time of the crime,
the admitted facts did not suggest a crime of impulse, and Stewart committed
additional crimes after the murder and before his arrest. Accordingly, the court
declined to alter the length of the sentence.
The State filed a motion to reconsider. In addition to restating its previous
objections, the State pointed out that while the court indicated that it would impose
a new J&S, it had not vacated the original 2006 J&S. The trial court denied the
motion to reconsider, but also entered an order stating that the 2023 J&S included
a “scrivener’s error” because it omitted language to indicate that the new judgment
was “amended.” The court authorized the clerk to withdraw the 2023 J&S from the
file so the court could add handwritten notations that both the J&S and warrant of
commitment were “amended.”
Both Stewart and the State timely appealed the 2023 amended J&S. 3 The
case was transferred to this division for resolution.
ANALYSIS
Relying primarily on cases involving the sentencing of juveniles, see, e.g.,
Miller v. Alabama, 567 U.S. 460, 470, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)
(mandatory life without parole sentences for juvenile defendants violate the Eighth
Amendment to the United States Constitution), State v. Haag, 198 Wn.2d 309,
325, 495 P.3d 241 (2021) (court erred by focusing on retributive, over mitigating,
3 Stewart did not file a brief in response to the State’s appeal or a reply to the portion of
the State’s brief responding to his appeal.
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factors at resentencing hearing), Stewart argues in briefing that the trial court failed
to “meaningfully consider” his request for an exceptional mitigated sentence based
on youthful features or adequately explain its reasoning.
Meanwhile, the State’s cross appeal raises the arguments it made in the
trial court: the judge lacked authority to conduct a resentencing and Stewart’s
request for resentencing was, in effect, an untimely and successive collateral
attack, which the trial court was required to transfer under CrR 7.8(c)(2). As to the
merits of Stewart’s appeal, the State contends that since the trial court appreciated
its discretion and did not categorically refuse to consider an exceptional sentence
on untenable grounds, Stewart’s standard range sentence is not subject to appeal.
I. Trial Court Lacked Authority to Conduct Resentencing
Before we address the particular facts, we review the general principles of
finality that govern our analysis. As our Supreme Court recently observed, “[w]e
have long held that outside of a direct appeal or timely collateral attack,” sentences
under the Sentencing Reform Act of 1981 (SRA), 4 “‘may be modified only if they
meet the requirements of the SRA provisions relating directly to the modification
of sentences.’” State v. Hubbard, 1 Wn.3d 439, 445, 527 P.3d 1152 (2023)
(quoting State v. Shove, 113 Wn.2d 83, 89, 776 P.2d 132 (1989)). Shove, the
“leading case” governing the modification of SRA sentences, is instructive. Id. at
448. Shove was sentenced to one year of “partial confinement at a work release
center.” Shove, 113 Wn.2d at 85. After five months, Shove petitioned the court to
modify her sentence based on concerns that she would be unable to meet her
4 Ch. 9.94A RCW.
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financial obligations if not “immediately released.” Id. In particular, a corrections
officer expressed concern about Shove’s ability to maintain the “demanding
schedule” that allowed her to pay the fees required to participate in work release,
and noted that removal from the program would likely result in the “collapse” of her
family-run business and inability to pay restitution. Id. The trial court amended the
original J&S and imposed an “exceptional” suspended sentence of 10 years, with
10 years of probation. Id.
Reversing the order modifying Shove’s sentence, the Supreme Court
explained that determinate sentences are “ascertained at the time of sentencing,”
and not generally “subject to later change.” Id. at 86. Because the “SRA permits
modifications of sentences only in specific, carefully delineated circumstances,”
none of which were present in Shove’s case, the trial court lacked authority to
amend the J&S. Id. The court held that inherent authority to vacate or alter a final
criminal or civil judgment exists “only in those limited circumstances where the
interests of justice most urgently require.” Id. at 88. In so holding, the court
explicitly rejected “[t]he claim that the power to set a sentence carries with it the
power later to modify that sentence” because such a claim “ignores the importance
of finality in rendered judgments.” Id. The court additionally emphasized that
“[m]odification of a judgment is not appropriate merely because it appears, wholly
in retrospect, that a different decision might have been preferable.” Id.
Whether a trial court has exceeded its statutory authority under the SRA is
an issue of law, which we review de novo. State v. Hale, 94 Wn. App. 46, 54, 971
P.2d 88 (1999). A trial court may exercise discretion in sentencing only where the
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SRA authorizes discretion. Shove, 113 Wn.2d at 89 n.3. “When a trial court
exceeds its sentencing authority under the SRA, it commits reversible error.” Hale,
94 Wn. App. at 53.
Turning to the specifics of this case, neither Houston-Sconiers nor
Monschke authorized the court to set aside the judgment and impose a new
sentence. The holding of Houston-Sconiers is expressly limited to juveniles. 188
Wn.2d at 21 (“[S]entencing courts must have complete discretion to consider
mitigating circumstances associated with the youth of any juvenile defendant.”)
(emphasis added); see also State v. Mandefero, 14 Wn. App. 2d 825, 831-32, 473
P.3d 1239 (2020) (Houston-Sconiers does not apply to individuals who were over
18 at time of offense). Monschke was likewise limited to those convicted and
sentenced for aggravated murder in the first degree who were facing mandatory
sentences of life without the possibility of parole. See In re Pers. Restraint of
Kennedy, 200 Wn.2d 1, 24, 513 P.3d 769 (2022) (Monschke immaterial because
defendant was not convicted of aggravated murder or sentenced to mandatory life
without parole).
It is undisputed that Stewart was not a juvenile at the time of the murder
and was not convicted of aggravated murder or subject to a mandatory sentence
of life without the possibility of parole. As such neither Houston-Sconiers nor
Monschke is material to Stewart’s sentence and any claim for collateral relief
based on those decisions is time barred. See RCW 10.73.100(7) (petitioner may
overcome one-year time bar if there has been a substantial change in the law that
is material and applies retroactively); In re Pers. Restraint of Ali, 196 Wn.2d 220,
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234-35, 474 P.3d 507 (2020) (change in law material if it “would affect a materially
determinative issue”). Because Stewart was a youthful, non-juvenile defendant,
the sentencing court had discretion but was not required to consider youth as a
mitigating factor, and there has been no substantial, retroactive change with
respect to the law that applied at Stewart’s 2006 sentencing. See State v. O’Dell,
183 Wn.2d 680, 696, 358 P.3d 359 (2015); In re Pers. Restraint of Light-Roth, 191
Wn.2d 328, 338, 422 P.3d 444 (2018).
When it determined that it had authority to resentence Stewart, the trial court
did not address Monschke or Houston-Sconiers, much less conclude that those
decisions implicated the constitutionality of Stewart’s sentence. In fact, neither the
court nor any party referenced a statutory basis that authorized resentencing. Cf.
In re Postsentence Rev. of Cage, 181 Wn. App. 588, 594, 326 P.3d 805 (2014)
(DOC, not trial court, had express statutory authority to grant furlough). Instead,
the court ruled that the order of transport, entered on the parties’ stipulation and
without legal analysis, conclusively determined eligibility for resentencing. Further,
the court declined to revisit that issue because the State did not seek review or
otherwise challenge the transport order. The trial court also relied on the fact that
despite prior opportunities to do so, the State failed to lodge a timely objection and
thereby waived its challenge to the court’s authority to resentence Stewart.
However, none of these reasons supplied a legal basis to resentence
Stewart and “amend” his final J&S. In the “Facts” section of his February 17, 2022
motion to transfer, defense counsel boldly asserted, “Stewart is eligible to be
resentenced based on the mandatory youthful offender considerations established
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in State v. Houston-Sconiers, 391 P.3d 409 (Wash. 2017) and In Re Matter of
Monschke, 197 Wn.2nd 305 (2021).” The court does not appear to ever have
addressed that this statement is not a fact, or even a true conclusion of law as it
was not reached by a judge, but merely the basis on which the motion to transport
was premised. Again, the record suggests that the determination of Stewart’s
possible eligibility for resentencing was made by OPD and DOC. While the order
granting the motion to transport Stewart characterized the purpose of the transfer
as “disposition/resentencing,” it did not include any findings or identify authority to
set aside Stewart’s 2006 judgment. Notably, the parties’ agreement to transport
expressly did not preclude the State from raising “any argument” at a later time.
Even if the March 2022 order of transport was an implicit ruling that Monschke
required resentencing, there is no reason the trial court was unable to reconsider
that ruling after subsequent caselaw clarified the scope of Monschke’s holding.
While it appears that the parties initially agreed that resentencing was
appropriate, there is nothing in Shove or other cases involving authority to modify
final SRA sentences to suggest that a stipulation, waiver, or even a party’s invited
error eliminates the need for a specific legal basis to disturb or alter a final J&S.
This is why, for instance, it was not relevant in Shove that a corrections officer
supported the defendant’s request to adjust her sentence. 113 Wn.2d at 85. It
also explains why the Supreme Court was not persuaded in Hubbard by the State’s
assertion that postjudgment modification of court-imposed conditions of custody
based on changed circumstances was apparently “‘routine around the State.’” 1
Wn.3d at 446.
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In the absence of authority to conduct a resentencing and amend the final
judgment, under the SRA or any other law, the trial court committed reversible
error.
II. Defense Motion to Transfer Was Untimely Collateral Attack
Additionally, as the State observes, when Stewart sought to change the
terms of his 2006 sentence, he was presenting a collateral attack on that J&S. See
RCW 10.73.090(2) (“[A]ny form of postconviction relief other than a direct appeal”
is a “‘collateral attack.’”). Collateral challenges must be brought within “one year
after the judgment becomes final if the judgment and sentence is valid on its face
and was rendered by a court of competent jurisdiction,” unless the challenge is
solely based on a statutory exception to the time bar set forth in RCW 10.73.100.
RCW 10.73.090(1); In re Pers. Restraint of Coats, 173 Wn.2d 123, 131, 267 P.3d
324 (2011). As noted, CrR 7.8(c)(2) requires a collateral challenge filed in superior
court to be transferred to the court of appeals unless it is both timely filed and the
petitioner makes a substantial showing of entitlement to relief.
Because the trial court failed to properly follow these procedures, the State
proposes in briefing that we apply the “usual” and judicially efficient remedy of
converting Stewart’s direct appeal to a PRP, and dismissing it as successive and
untimely. See State v. Smith, 144 Wn. App. 860, 863-64, 184 P.3d 666 (2008)
(discussing trial court’s improper dismissal of a CrR 7.8 motion). 5 The State also
5 This court declined to convert the appeal to a PRP in Smith because doing so would
subject the petitioner to the successive petition rule without allowing him to choose whether he wanted to pursue a PRP. 144 Wn. App. at 864. This concern is not present here because Stewart has already previously filed several PRPs and is already subject to the successive petition rule. See Nos. 28247-3-III, 29262-2-III, 30941-0-III, and 32682-9-III.
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recognizes that we may achieve the same result by remanding to the superior court
with instructions to transfer the collateral attack to this court. See In re Pers.
Restraint of Ruiz-Sanabria, 184 Wn.2d 632, 642, 362 P.3d 758 (2015) (remanding
where unclear whether superior court engaged in proper analysis under CrR
7.8(c)(2)).
However, it is not clear that converting a direct appeal to a PRP is the
“usual” or correct remedy where the parties appeal from an amended J&S, not
from an order erroneously resolving a specific postconviction motion. The State
identifies no cases, and we are unaware of any, in which this court has converted
a timely direct appeal from a J&S to a PRP, or remanded for the trial court to
transfer such an appeal. As the State acknowledges, neither of these suggested
forms of relief will, as a practical matter, address the 2023 amended J&S, entered
without authority, that is currently in place of the effectively vacated original 2006
J&S. See State v. McWhorter, 2 Wn.3d 324, 327, 535 P.3d 880 (2023) (“By the
act of ordering a complete resentencing hearing at which the superior court would
exercise its sentencing discretion anew, the court effectively vacated the original
judgment and sentence.”).
While we agree that the request for resentencing should have been treated
as an untimely collateral attack and transferred to this court as a PRP, we conclude
that the appropriate remedy in these circumstances is to reverse the 2023 J&S,
and direct the superior court to vacate it and reinstate the original 2006 judgment.
See State v. Molnar, 198 Wn.2d 500, 511-12, 497 P.3d 858 (2021) (noting
“exceptional” and “unique” circumstances, Supreme Court addressed merits and
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reinstated superior court’s order, after trial court improperly denied motion for
resentencing instead of transferring matter as untimely collateral attack and this
court reversed).
Because we reverse the 2023 amended J&S based on the arguments
advanced by the State, Stewart’s appellate arguments directed at that judgment
are moot and we decline to reach them. See State v. Booker, 22 Wn. App. 2d 80,
83, 509 P.3d 854 (2022) (explaining issue is moot “if we can no longer provide
effective relief for the claimed legal error” and appeals raising “only moot issues”
are generally dismissed). Stewart’s appeal is dismissed as moot.
Reversed and remanded.
WE CONCUR:
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