                                                        GOAT     AFPEALS
                                                         STATE OF r!ASHI:t.r7'_':'
                                                         21111 DEC     Ai; sD: 12


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE
STATE OF WASHINGTON,                     )       No. 76807-7-1
                                         )
                     Respondent,         )
                                         )
         v.                              )
                                         )
ANDREW RICHWINE,                         )       UNPUBLISHED OPINION
                                         )
                     Appellant.          )       FILED: December 18, 2017
                                         )
       PER CURIAM. Andrew Richwine appeals the denial of his motion to

vacate the sentence imposed following his guilty plea to vehicular homicide. He

contends, and the State concedes, that he is entitled to resentencing before a

different judge for three reasons.

       First, the parties agree that the sentencing judge erred in conducting

independent research without notifying the parties or providing them an

opportunity to respond. The record indicates that the court, on its own, reviewed

information regarding average sentences for the offense and a newspaper article

about distracted driving statistics. The court disclosed this information to the

parties at sentencing. The parties cite various authorities in support of their claim

that the court should have notified them of its "investigations" and provided them

an opportunity to respond. See, e.q., RCW 9.94A.500(1)(information relied on

by the court "shall be part of the record"); ER 201(e)(requiring an opportunity to

be heard whenever the court takes judicial notice).
No. 76807-7-1/2

       Second, the parties agree that the judge appeared to base her sentence in

part on her perception that people of Richwine's race and socioeconomic status

generally receive more generous sentence recommendations. In her oral

decision, which the judge incorporated by reference in her written decision, the

judge stated in part:

       Even with people who are first offenders such as yourself
       Mr. Richwine, I often get people who have zero felony history.
       They too have zero offender score and yet the State always asks
       that I imprison them. That I take them away from their families.
       That I make it difficult for them to be productive and cooperative
       members of our society. And it does not escape the Court's
       attention that often those individuals do not look anything like you.
       They do not have the resources you have financially, nor do they
       have the resources you have as a family. Nor do they share the
       color of your skin.[1]

Although the judge later characterized this portion of her oral ruling as "dicta" and

articulated appropriate reasons for her sentence, we accept the State's

concession that the court's apparent consideration of Richwine's race and

socioeconomic status requires reversal and resentencing before a different

judge. Buck v. Davis, 137 S. Ct. 759, 778, 197 L. Ed. 2d 1 (2017)("Relying on

race to impose a criminal sanction 'poisons public confidence' in the judicial

process" and "injures not just the defendant, but 'the law as an institution,... the

community at large, and ... the democratic ideal reflected in the processes of

our courts.")(alterations in original)(quoting Davis v. Ayala, 135 S. Ct. 2187,

2208, 192 L. Ed. 2d 323(2015); Rose v. Mitchell, 443 U.S. 545, 556, 99 S. Ct.

2993, 61 L. Ed. 2d 739(1979)); State v. Osman, 126 Wn. App. 575, 580, 108


       1 Report of Proceedings (Apr. 7, 2017) at 32-33.

                                          2
No. 76807-7-1/3

P.3d 1287(2005)("Factors such as race, nationality, or wealth 'must not enter

into the selection of the appropriate sentence."(quoting State v. Roberts, 77

Wn.App. 678,683, 894 P.2d 1340 (1995)); cf. In re Marriage of Black, 188 Wn.2d

114,392 P.3d 1041 (2017)(court's consideration of sexual orientation in

fashioning parenting plan showed improper bias requiring reversal); City of

Seattle v. Clewis, 159 Wn. App. 842, 851, 247 P.3d 449(2011)(the appearance

of bias requires resentencing before a different judge).

      Third, the parties agree that the judge mischaracterized the nature of the

sentence recommendations she had seen in similar cases in her court. They

contend the judge's view "that Richwine was given special treatment in relation to

those previous cases is simply unsupported." Respondent's Br. at 8.

       Because we conclude that the court's consideration of race and

socioeconomic status by itself requires reversal, we need not decide whether to

accept the State's other concessions of error.

       The sentence is reversed and remanded for resentencing before a

different judge.

                            FOR THE COURT:




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