     FILE···. .
     IN CLERKS OPFICI




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON


In the Matter of the Personal           )
Restraint of                            )      No. 86018-1
                                        )
LOWELL DERAY FINSTAD,                   )      EnBanc
                                        )
                        Petitioner.     )      Filed      MAY 2 8 2013


      GONZALEZ, J .-This case squarely asks whether petitioners collaterally

challenging judgments and sentences based on a failure to follow statutory sentencing

procedures must show that they were prejudiced by the claimed error. In 2007,

Lowell Deray Finstad faced at least seven felony charges. After he was convicted by

a jury on two of the charges, he and the State negotiated a global plea agreement on

the remaining charges. The agreement likely resulted in less prison time for Finstad,

and in exchange, Finstad agreed to dismiss his appeal of his jury convictions. Under

the agreement, most of the sentences would run concurrently. However, the State

indicated it would ask the judge to run a sentence for delivery of a controlled

substance conviction consecutive to the others. It appears that neither the State nor

Finstad nor the court realized that this consecutive sentence would constitute an

exceptional sentence and require special findings. The judge accepted the pleas and
No. 86018-1


largely accepted the State's sentencing recommendation without making any special

findings.

         Finstad did not appeal. Three years later, Finstad filed this personal restraint

petition, contending he received an exceptional sentence that did not comply with the

requirements ofRCW 9.94A.589 and RCW 9.94A.537. He asked this court to order

the sentences be served concurrently. Reply Br. at 9. The State concedes that running

the sentences consecutively resulted in an exceptional sentence, and, since the trial

judge did not make the requisite findings, that the judgments and sentences are not

valid on their faces. However, it contends that under the facts of this case, Finstad is

not entitled to relief because he has not met his burden of showing he was prejudiced

by the particular flaw. We agree and dismiss.

                                            FACTS

         In February 2007, a jury found Finstad guilty of one count of possession of a

controlled substance with intent to deliver (cocaine) and one count of possession of a

controlled substance (methamphetamine). Answer to Mot. for Discr. Review, App. F.

The next month, Judge Wulle sentenced Finstad to 40 months confinement. !d. App.

F at 6. Meanwhile, Finstad was facing two charges of possession of controlled

substances (cocaine and methamphetamine) with intent to deliver stemming from a

June 2006 event; 1 a charge of delivery of a controlled substance stemming from an




1
    Charged under Clark County Superior Court No. 06-1-01137-6.
                                               2
No. 86018-1


October 2006 event; 2 a charge of intimidating a witness stemming from a 2005 event; 3

and a charge of attempted arson committed sometime in 2006. 4 !d. App. A at 12-13;

Apps. H-J. The attempted arson charge carried a potential law enforcement victim

aggravator. !d. App. A at 12. The possession charges carried potential firearms and

school zone enhancements. Suppl. Br. ofResp't, App. A.

       The State proposed a plea agreement under which Finstad would plead guilty to

the pending charges and dismiss his appeal of his February convictions. In return, the

State would not seek any sentencing enhancements. Answer to Mot. for Discr.

Review, App. A at 12-13. On its formal offer, the State spelled out its sentencing

recommendation:

       120 Months in Total Confinement. This 120 months would include the
       40 months on 06-1-01073-6, which was sentenced previously this year,
       40 months on 06-1-01137-6, 40 months on 06-1-02072-3, each
       consecutive to each other. Additionally, the defendant would be
       sentenced to 40 months on 07-1-00611-7 (Witness [I]ntimidation),
       concurrent to all other causes, along with 40 Months on 07-1-0 1996-1
       (Attempted Arson I), concurrent to all other causes.

Id. at 13.

       On November 14, 2007, Finstad pleaded guilty to the remaining charges under

four separate cause numbers. Id. Apps. A-D. Judge Wulle accepted Finstad's guilty

pleas and largely accepted the State's sentencing recommendation, though he

sentenced Finstad to only 36 months on the attempted arson charge. Id. Apps. D, F-I,


2
  Charged under Clark County Superior Court No. 06-1-02072-3.
3
  Charged under Clark County Superior Court No. 07-1-00611-7.
4
  Charged under Clark County Superior Court No. 07-1-01996-1.
                                             3
No. 86018-1


K. While each individual sentence was within the standard range, Judge Wulle

sentenced Finstad to consecutive sentences on the charges of possession with intent to

deliver and the charge of delivery of a controlled substance. I d. In none of the four

separate judgments and sentences issued that day did Judge Wulle make a specific

finding that an exceptional sentence was appropriate under RCW 9.94A.589. Id.

      Three years later, Finstad filed this personal restraint petition, contending the

judgments and sentences were invalid on their faces because they did not show that

the trial judge made the findings required by RCW 9.94A.589 before running

sentences consecutively and because the State had not filed a notice of an intent to

seek an exceptional sentence as required by RCW 9.94A.537(1). 5 He did not move to

withdraw his guilty plea, which would have been untimely and could have put him at

risk of the State seeking the sentencing enhancements it had abandoned. The Court of

Appeals effectively treated his petitions as a motion to withdraw his plea on only

some of the charges in a "'package deal'" and dismissed. Order Dismissing Pet. at 2

(No. 41877-1-II) (citing State v. Ermels, 156 Wn.2d 528,540-41, 131 P.3d 299

(2006)). We granted review.

                                         ANALYSIS

       Initially, we note the State concedes that the judgments and sentences at issue

are not valid on their faces because they do not show that the trial court complied with


5
 Finstad does not renew his RCW 9.94A.537 challenge before this court, and we do not reach it.
He also now seeks resentencing rather than the nunc pro tunc order correcting the judgment and
sentence he originally sought.
                                              4
No. 86018-1


RCW 9.94A.589 before sentencing Finstad to consecutive sentences. It also concedes

that Finstad has overcome the time bar set forth in RCW 10.73.090 ("No petition or

motion for collateral attack on a judgment and sentence in a criminal case may be

filed more than 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.'}

As the parties are not meaningfully adverse on these questions, we accept the State's

concessiOns.

      However, while Finstad has overcome the time bar on review, more is required

before a court will order relief from a settled judgment. "Relief by way of a collateral

challenge to a conviction is extraordinary, and the petitioner must meet a high

standard before this court will disturb an otherwise settled judgment." In re Pers.

Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011) (citing In re Pers.

Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)). Typically, this

means a petitioner must show either that he or she was actually and substantially

prejudiced by constitutional error or that his or her trial suffered from a fundamental

defect of a nonconstitutional nature that inherently resulted in a complete miscarriage

of justice. In re Pers. Restraint ofElmore, 162 Wn.2d 236,251, 172 P.3d 335 (2007);

Cook, 114 Wn.2d at 810-12.

       Finstad does not specifically attempt to meet this standard. Instead, he

contends that because the judgments and sentences lack the finding required by RCW

9.94A.535, they were entered without authority oflaw, and thus, he contends, he is

                                            5
No. 86018-1


entitled to relief. As the State concedes, the sentencing process did not comply with

the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. RCW

9.94A.589(1)(a) provides:

      Except as provided in (b) or (c) of this subsection, whenever a person is
      to be sentenced for two or more current offenses, the sentence range for
      each current offense shall be determined by using all other current and
      prior convictions as if they were prior convictions for the purpose of the
      offender score . . . . Consecutive sentences may only be imposed under
      the exceptional sentence provisions ofRCW 9.94A.535.

Under RCW 9.94A.535:

      The court may impose a sentence outside the standard sentence range for
      an offense if it finds, considering the purpose of this chapter, that there
      are substantial and compelling reasons justifying an exceptional
      sentence. Facts supporting aggravated sentences, other than the fact of a
      prior conviction, shall be determined pursuant to the provisions ofRCW
      9.94A.537J6J
             Whenever a sentence outside the standard sentence range is
      imposed, the court shall set forth the reasons for its decision in written
      findings of fact and conclusions of law.

       While the SRA does not formally define "current offense," the term is

defined functionally as convictions entered or sentenced on the same day.

RCW 9.94A.525(1) ("Convictions entered or sentenced on the same date as the

conviction for which the offender score is being computed shall be deemed

6
 RCW 9.94A.537 was enacted in the wake of Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004), see LAWS OF 2005, ch. 68 § 4, and was amended in response to
our opinion in State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007), see LAWS OF 2007, ch.
205. It establishes several procedural requirements before the State may seek an aggravated
sentence based on facts that must be found by a jury beyond a reasonable doubt or admitted by
the defendant. RCW 9.94A.537(3), (6). It does not apply to sentence calculations not based on
aggravating factors that must be found beyond a reasonable doubt or admitted by the defendant.
While Finstad contended that his sentence violated RCW 9.94A.537 in his original petition, he
does not renew that argument and we do not reach it.
                                               6
No. 86018-1


'other current offenses."') Generally, sentences on current offenses are

presumed to be served concurrently, rather than consecutively. RCW

9.94A.589(1)(a). In contrast, nothing in the SRA suggests that sentences issued

on different days would not be presumptively served consecutively.

       In Coats, we recognized that our case law had not been entirely consistent on

whether mere invalidity, standing alone, was sufficient to justify relief. Coats, 173

Wn.2d at 142-43 (citing cases). Coats did not give us an opportunity to decide the

issue. But this case does. As the chief justice observed in Coats, RCW 10.73.090

presents "a procedural bar, not a substantive bar." !d. at 145 (Madsen, C.J.,

concurring) (emphasis omitted). As such, overcoming it, by itself, does not entitle a

petitioner to relief. A petitioner must also meet the substantive common law

requirements articulated in Cook, 114 Wn.2d at 810-12.

       In this case, the trial court's failure to make the finding appears to us to be

nonconstitutional error. Accordingly, Finstad would be entitled to relief only if he

establishes he has suffered from a complete miscarriage of justice. Elmore, 162

Wn.2d at 251. But even assuming that this error was of constitutional magnitude

under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004 ), Finstad still must show actual and substantial prejudice flowing from that

error. 7 In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994)


7
 Finstad does not contend at this court that his sentence violated Blakely, likely because it is well
established that Blakely, like Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000) before it, does not apply to questions of consecutive sentencing. See State v.
                                                  7
No.   86018~1



(citing Cook, 114 Wn.2d at 810); cf Coats, 173 Wn.2d at 142. Any error here could

have been avoided by simply scheduling the entry of the pleas for two successive

days. Actual and substantial prejudice is made of sterner stuff.

        An examination of the charging documents and documents attached to the

defendant's statement on plea of guilty also persuades us that Finstad did not suffer

actual and substantial prejudice (let alone complete miscarriage of justice) from the

claimed error. Finstad was not only facing five felony charges, he was facing

considerable sentencing enhancements. The original information charging two counts

of possession with intent to deliver a controlled substance alleged that Finstad was

armed with a 9 mm Beretta pistol, a .38 caliber Smith & Wesson revolver, and a .22

caliber pistol, within 1000 feet of a school zone. Suppl. Br. ofResp't, App. A. If

Finstad had gone to trial, the State intended to seek a law enforcement victim

aggravator enhancement on the attempted arson charge. !d.; Answer to Mot. for

Discr. Review, App. A at 12. The State dropped the sentencing enhancements in

return for Finstad pleading guilty and dismissing his pending appeal of earlier

convictions. Finstad had notice that the State would seek consecutive sentences.



Vance, 168 Wn.2d 754, 762,230 P.3d 1055 (2010) (citing Oregon v. Ice, 555 U.S. 160, 129 S.
Ct. 711, 172 L. Ed. 2d 51 7 (2009)). Therefore, we respectfully disagree with our learned
colleague in dissent that Blakely is implicated in this case or that we should raise the matter
where counsel declined to. While it is not before us, we note the sentence in this case is simply
not the type of sentence the Blakely Court was concerned about: one based on facts not admitted
by the defendant or found by a jury beyond a reasonable doubt. See State v. Evans, 154 Wn.2d
438, 442, 114 P.3d 627 (2005) (citing Blakely, 542 U.S. 296). However, given that the statutes
at issue in this case implemented Blakely, we err on the side of caution and apply the
constitutional standard.
                                                8
No. 86018-1


Under these facts, we respectfully disagree with our dissenting colleagues that Finstad

has shown actual and substantial prejudice. Certainly, if we fix our eyes on the four

corners of the four judgments and sentences it might appear so. But when we widen

our gaze to include the documents associated with the plea agreement, any apparent

prejudice evaporates.

       Simply put, it appears to us that Finstad seeks to use a mutual mistake about the

process required under the SRA to circumvent both the time limit on what amounts to

a motion to withdraw a guilty plea and the principle that a global plea agreement is a

contract and a petitioner cannot seek to invalidate only a portion of it. See CrR 4.2(f);

Ermels, 156 Wn.2d at 540-41. 8 But even ifthis were a timely motion, a court will

allow a petitioner to withdraw a guilty plea only if it appears "necessary to correct a

manifest injustice." CrR 4.2(f). Finstad has made no such showing. While the

sentence violated procedural requirements of the SRA, it was within the trial court's

power to issue. RCW 9.94A.535. Given these facts, we find that Finstad has failed to

show the requisite prejudice required for relief. 9



8
  Given our resolution, we do not reach whether relief would violate the principles set forth in
Ermels, 156 Wn.2d 528.
9
  The dissent contends that our resolution is inconsistent with the principle "that criminal
defendants may not agree to punishment in excess of what the legislature has provided for in the
SRA." Dissent at 6 (citing State v. Barber, 170 Wn.2d 854, 870-71,248 P.3d 494 (2011); In re
Pers. Restraint of Goodwin, 146 Wn.2d 861, 871, 50 P.3d 618 (2002); In re Pers. Restraint of
Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991); In re Pers. Restraint ofGardner, 94 Wn.2d 504,
507, 617 P.2d 1001 (1980); In re Pers. Restraint of Carle, 93 Wn.2d 31, 33-34, 604 P.2d 1293
(1980)). The principle is, largely speaking, sound, but conflates the trial court's substantive
power to sentence (limited to those sentences authorized by law) with the trial court's duty to
follow the statutory procedures. When the trial court imposes a sentence that is too long, or
                                               9
No. 86018-1


       Our resolution today is consistent with our most recent word on the subject,

State v. Chambers, 176 Wn.2d 573, 293 PJd 1185 (2013). In July 1999, Chambers

pleaded guilty to charges relating to drug manufacturing in February and May of the

same year. Id. at 577-78. That November, before he was sentenced, Chambers stole a

car, killed a pedestrian, and committed other crimes. !d. at 578. Represented by able

counsel, Chambers agreed to plead guilty to the November charges in return for the

State not bringing a felony murder charge and not seeking a gun enhancement on the

drug manufacturing charge. !d. at 578-79. The State sought, and Chambers agreed to,

a 240 month sentence on the November crimes, which amounted to an exceptional

sentence. !d. at 579. The trial judge accepted the plea and the sentencing

recommendation and sentenced accordingly, without making the findings required by

RCW 9.94A.589. We found that the judgment and sentence was invalid on its face

but that Chambers failed to demonstrate the requisite level of prejudice required for

relief. Chambers, 176 Wn.2d 583-87. Chambers, like Finstad, "received the precise

sentence he stipulated to in the plea agreement." Id. at 586. "The failure of the trial

contains unlawful conditions, this court will regularly correct that sentence, whether challenged
directly or collaterally. All the cases cited above demonstrate that principle. See Barber, 170
Wn.2d at 874 (petitioner not entitled to specific performance of an illegal term in a plea
agreement); Goodwin, 146 Wn.2d at 876-77 (imposition of a sentence predicated on a
miscalculated offender score unlawful regardless of petitioner's earlier acquiescence); Moore,
116 Wn.2d at 3 8-39 (pre-SRA sentence of life without possibility of parole not authorized by
relevant statutes); Gardner, 94 Wn.2d at 506 (fine in excess of twice the defendant's gain or the
victim's loss not authorized by relevant statute); Carle, 93 Wn.2d at 33-34 (imposition offirearm
enhancement unlawful under controlling case law and statutes). By contrast, when the trial court
imposes a lawful sentence but commits some legal error along the way, collateral relief is
available only when the petitioner demonstrates he or she has suffered the requisite harm. See,
e.g., Coats, 173 Wn.2d at 144. Finstad has not done so.

                                               10
No. 86018-1


judge to check the exceptional sentence box and enter a finding of fact does not

require resentencing when the sentence was requested by the defendant." Id. at 587

(citing In re Pers. Restraint ofBreedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999)).

The Chambers principle applies here.

                                      CONCLUSION

       Under the facts of this case, Finstad has not shown that he suffered actual and

substantial prejudice from the trial judge's failure to make the specific findings

required by the SRA before entering consecutive sentences on current offenses.

Accordingly, we affirm the Court of Appeals on slightly different grounds and dismiss

this petition.




                                            11
No. 86018-1




WE CONCUR:




              12
In re Pers. Restraint of Finstad, No. 86018-1




                                        No. 86018-1

       WIGGINS, J. (dissenting)-The exceptional sentence imposed on Lowell

Deray Finstad was not supported by factual findings or the defendant's stipulation as

required by the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, and by

Blakely   v.   Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004 ),

and Apprendi      v.   New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000). This error resulted in the imposition of 40 months of incarceration that the

trial court was not authorized to impose. Because he shows that more than three

years of his sentence suffers from statutory and constitutional infirmity, Finstad

demonstrates the sufficient prejudice to support his personal restraint petition (PRP).

Rather than speculate as to the lawful sentence the trial court would or could have

imposed had it understood the requirements for imposing an exceptional sentence, I

would grant Finstad's PRP and remand this matter to the trial court to impose a

lawful sentence as our precedent requires. I dissent.

                                       DISCUSSION

       This case is not about whether personal restraint petitioners who are

unlawfully sentenced "must show that they were prejudiced by the claimed error."

Majority at 1. Our case law makes clear that they must. This case is about whether

imposing sentences in excess of what is authorized by law results in prejudice that
No. 86018-1 (Wiggins, J., dissenting)


entitles a petitioner to relief in the form of receiving a legal sentence. Our case law

makes clear that it does.

       I agree with the majority that overcoming the procedural bar does not, in and

of itself, entitle a petitioner to relief. /d. at 6. I also agree that petitioners must

demonstrate prejudice for relief to be available. /d. at 7. However, the majority

overlooks that while we approach these procedural and substantive prongs of

analysis separately, "of course they may turn on the same facts in a particular case."

In re Pers. Restraint of Coats, 173 Wn.2d 123, 138 n.9, 267 P.3d 324 (2011).

       This is just such a case. The unlawful sentence imposed on Finstad not only

enables him to overcome the procedural bar but also demonstrates that he was

prejudiced. Here, the sentencing court imposed an exceptional sentence on Finstad

that it was not authorized to impose under the SRA or the United States

Constitution. This sentence resulted in the prejudicial imposition of 40 additional

months' incarceration. Because Finstad overcomes both the procedural and

substantive bars, he is entitled to relief. We should grant his PRP and remand this

matter to the trial court so that it may impose a lawful sentence on Finstad.

  I.   The exceptional sentence imposed by the trial court violated the SRA and the
       United States Constitution thereby prejudicing Finstad

       There is no dispute in this case that the trial court exceeded its authority by

running sentences for current offenses consecutively.          RCW 9.94A.589(1 )(a)

("Sentences imposed under this subsection shall be served concurrently."). If the

trial judge had followed the SRA, the only way he could have imposed consecutive




                                           2
No. 86018-1 (Wiggins, J., dissenting)


sentences     was    by    following    the    provisions    of   RCW      9.94A.535.      RCW

9.94A.589(1 )(a).

       RCW 9.94A.535 allows a trial court to impose "a sentence outside the

standard sentence range for an offense if it finds ... that there are substantial and

compelling reasons justifying an exceptional sentence." In addition, RCW 9.94A.535

requires the court to "set forth the reasons for its decision in written findings of fact

and conclusions of law." No written findings of fact and conclusions of law were

entered by the trial judge in this case. The trial judge did not find-nor did the parties

advise the judge that he needed to find-substantial and compelling reasons that

justified an exceptional sentence.

       In order to demonstrate nonconstitutional prejudice, a personal restraint

petitioner must show "a fundamental defect of a nonconstitutional nature that

inherently resulted in a complete miscarriage of justice." Coats, 173 Wn.2d at 132.

The trial court in this case failed to follow the law. This failure resulted in a set of

consecutive 40-month sentences that should have run concurrently. It should go

without saying that 40 more months in prison-imposed without authorization-is a

fundamental defect that results in a complete miscarriage of justice.

       In addition to the prejudicial SRA violation, Finstad's sentence clearly runs

afoul of the constitutional rules laid down by the United States Supreme Court in

Apprendi, 530 U.S. 466, and Blakely, 542 U.S. 296. 1 In Apprendi, the Supreme


1
  The majority believes we should not address the constitutional violation in this case because
"Finstad does not contend at this court that his sentence violated Blakely." Majority at 7 n.7.
Finstad's pro se PRP does not specifically raise Blakely but instead attacks the provisions of the
SRA that implemented Blakely's requirements. See PRP at 9. Ironically, these same Blakely-
implementing statutes prompt the majority to "err on the side of caution and apply the

                                                3
No. 86018-1 (Wiggins, J., dissenting)


Court recognized that facts that increase the penalty for a crime "beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable    doubt."    530    U.S.    at 490.     The   Court determined that           it was

unconstitutional to remove '"the assessment of facts that increase the prescribed

range of penalties to which a criminal defendant is exposed"' and that it was "'clear

that such facts must be established by proof beyond a reasonable doubt."' /d.

(quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S. Ct. 1215, 143 L. Ed.

2d (1999) (Stevens, J., concurring)). In Blakely, the Supreme Court indicated that a

defendant could waive Apprendi rights but clarified, "When a defendant pleads

guilty, the State is free to seek judicial sentence enhancements so long as the

defendant either stipulates to the relevant facts or consents to judicial factfinding."

Blakely, 542 U.S. at 310 (emphasis added).

       In making this constitutional inquiry, it is irrelevant that the findings required

under the SRA are sentencing factors rather than traditional elements of the offense.

Under Apprendi, when a sentence enhancement is used "to describe an increase

beyond the maximum authorized statutory sentence, it is the functional equivalent of

an element of a greater offense." 530 U.S. at 494 n.19. Because the SRA requires

written findings to impose any sentence outside the standard range sentence, RCW

9.94A.535, these findings plainly fall within Apprendi's purview and must accordingly

be made beyond a reasonable doubt. Apprendi, 530 U.S. at 490.


constitutional standard" of review. Majority at 7 n.?. In any event, Finstad did raise the
unconstitutional nature of his sentence below by referring to Blakely's and Apprendi's
requirements that defendants stipulate to relevant facts or consent to judicial fact-finding before
a sentencing court may impose an exceptional sentence, Reply Br. of Finstad at 5-6, and I thus
believe that our review of the issue is merited.

                                                4
No. 86018-1 (Wiggins, J., dissenting)


        The majority takes issue with this constitutional analysis, contending that,

based on Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009), and

State   v.   Vance, 168 Wn.2d 754, 762, 230 P.3d 1055 (201 0), "it is well established

that Blakely, like Apprendi . .. before it, does not apply to questions of consecutive

sentencing." Majority at 7 n. 7. But Ice considered only "the scope of the Sixth

Amendment's jury-trial guarantee, as construed in Apprendi." 555 U.S. at 163. Ice

held that the Oregon legislature could assign a judge, rather than a jury, as a finder

of fact when seeking to impose consecutive sentences without violating the Sixth

Amendment. /d. at 168-69. Nowhere in Ice did the United States Supreme Court

abrogate Apprendi's clear Fifth Amendment requirement that facts supporting a

sentence enhancement be found-either by judge or by jury-beyond a reasonable

doubt. The trial judge in Ice made findings under Oregon law sufficient to impose

consecutive sentences. /d. at 165-66. In Vance too, we held that "[u]nder Ice, a

sentencing judge ... may find facts to support consecutive sentences," 168 Wn.2d

at 762 (emphasis added), and concluded that because the trial judge engaged in the

appropriate fact finding, he did not err, id. at 762-63. Therefore, even after Vance

and Ice, for a trial court to constitutionally impose a sentence beyond the statutory

maximum, either the jury or the judge must engage in fact-finding to support such a

sentence.

         In this case, Finstad waived his right to a jury by pleading guilty. At

sentencing, there was no fact-finding by the judge that supported the imposition of

consecutive exceptional sentences beyond a reasonable doubt as constitutionally




                                             5
No. 86018-1 (Wiggins, J., dissenting)


required by Apprendi. Finstad's sentence was thus plain error under the United

States Constitution.

       In cases of constitutional error, we have required personal restraint petitioners

to show that "they were actually and substantially prejudiced." Coats, 173 Wn.2d at

132. As discussed, the imposition of an exceptional sentence in this case plainly

violates what the United States Supreme Court has constitutionally required when it

comes to employing sentence enhancements. Accordingly, there is little question

that the exceptional sentence imposed here, which resulted in 40 additional months

of prison time for Finstad, constitutes actual and substantial prejudice.

       The majority, however, engages in a post hoc rationalization to conclude that

there was no prejudice in this case, claiming that "[a]ny error here could have been

avoided by simply scheduling the entry of the pleas for two successive days. Actual

and substantial prejudice is made of sterner stuff." Majority at 7 (emphasis added).

All trial court errors could have been avoided by following appropriate procedures;

the point is that appropriate procedures were not followed. As for "sterner stuff,"

most people would consider an illegally imposed 40 months in prison to be "stern

stuff." Serving an illegally imposed 40 months in prison is ipso facto prejudicial.

       The majority also suggests that Finstad was not prejudiced because he had

notice of the consecutive sentences and that the State's plea offer dropped the

sentencing enhancements it could have sought in return for Finstad's guilty plea.

Majority at 7-8. However, we have consistently held that criminal defendants may

not agree to punishment in excess of what the legislature has provided for in the

SRA. State v. Barber, 170 Wn.2d 854, 870-71, 248 P.3d 494 (2011); In re Pers.

                                            6
No. 86018-1 (Wiggins, J., dissenting)


Restraint of Goodwin, 146 Wn.2d 861, 871, 50 P.3d 618 (2002); In re Pers. Restraint

of Moore, 116 Wn.2d 30, 38, 803 P.2d 300 (1991); In re Pers. Restraint of Gardner,

94 Wn.2d 504, 507, 617 P.2d 1001 (1980); In re Pers. Restraint of Carle, 93 Wn.2d

31, 33-34, 604 P.2d 1293 (1980). If the majority wishes to depart from cases that

disallow a plea agreement to alter the trial court's legislatively granted sentencing

authority, it should overrule them. 2

          The trial court might conceivably have entered appropriate findings to justify

this extraordinary sentence, but possibilities in an alternative universe do not

alleviate the prejudice Finstad demonstrates from the sentence he actually

received-Finstad must serve 40 unauthorized extra months in an actual prison.

would require the trial court to impose a lawful sentence in the first instance.

    II.   The appropriate remedy is remand for imposition of a correct sentence

          On collateral review, when a legally erroneous sentence has been imposed,

we have consistently remanded the case to the trial court for the imposition of a

lawful sentence. See In re Pers. Restraint of Beito, 167 Wn.2d 497, 507-08, 220

P.3d 489 (2009) (holding that exceptional sentence imposed in violation of Blakely

required remand to impose a lawful sentence); In re Pers. Restraint of Tobin, 165

Wn.2d 172, 176, 196 P.3d 670 (2008) ("[T]he proper remedy is remand for correction
2
   The majority states that this dissent's reading of these cases conflates the trial court's
substantive power to sentence with its duty to follow statutory procedures. Majority at 9 n.9. The
majority calls the sentence imposed here a "lawful sentence" because, even though the trial
judge failed to follow the SRA, the trial judge could have done so. /d. The majority's distinction is
an artificial one, as trial courts derive their substantive power to sentence only by following the
sentencing procedures that the legislature has established. Indeed, the legislature's power to fix
the penalties and punishments for crimes is '""plenary and subject only to constitutional
provisions."'" State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004) (quoting State v. Thorne,
 129 Wn.2d 736, 767, 921 P.2d 514 (1996) (quoting State v. Mulcare, 189 Wash. 625, 628, 66
 P.2d 360 (1937))). Thus, the trial court's failure to follow the required sentencing statutes must
 necessarily result in a sentence that is unlawful.

                                                 7
No. 86018-1 (Wiggins, J., dissenting)


of the [sentencing] error."); In re Postsentence Review of Leach, 161 Wn.2d 180,

188, 163 P.3d 782 (2007) (holding that where portion of sentence is not authorized

by statute, it "must be excised from [the] otherwise valid sentence"); In re Pers.

Restraint of West, 154 Wn.2d 204, 215, 110 P.3d 1122 (2005) (holding trial court

exceeding sentencing authority required reversal of the erroneous portion of the

sentence imposed); Goodwin, 146 Wn.2d at 873-74 (requiring relief from an unlawful

sentence in the form of resentencing within trial court's lawful authority); In re Pers.

Restraint of Breedlove, 138 Wn.2d 298, 310, 313, 979 P.2d 417 (1999) (holding that

the sentencing court must enter findings of fact and conclusions of law explaining

reasons for the sentence and remanding for the entry of such findings and

conclusions). According to these cases, the appropriate remedy here is to remand

Finstad's case to the trial court to impose a lawful sentence. On remand, the trial

court is free to impose an exceptional consecutive sentence by engaging in the fact-

finding that the SRA and United States Supreme Court precedent require, if

appropriate. But this court should not substitute speculations and post hoc

rationalizations for the imposition of a sentence that actually complies with the SRA

and the United States Constitution.

       Recently, in State v. Chambers, 176 Wn.2d 573, 293 P.3d 1185 (2013), I

dissented on similar grounds. 3 In Chambers, the majority acknowledged that the trial

court failed to follow the SRA in imposing an exceptional sentence, but nonetheless

held that he could not demonstrate prejudice because the trial court could have

3
  Chambers, who committed his crimes before the publication of Apprendi and Blakely, raised a
statutory question under the SRA, but not a constitutional issue. Chambers, 176 Wn.2d at 577-
78 (noting various crimes occurring in 1999).

                                             8
No. 86018-1 (Wiggins, J., dissenting)


imposed the sentence anyway and because Chambers agreed to the sentence

imposed in his plea agreement. 176 Wn.2d at 586-87. In Chambers, I disagreed with

the majority's post hoc endorsement of or acquiescence in the trial courts' erroneous

application of the law. This case presents the same disagreement. The legislature,

rather than this court, determines the manner in which trial courts must sentence

defendants. This court should not permit clear violations of the legislative sentencing

mandate-especially those that result in unauthorized imprisonment-to continue to

go unchecked in our lower courts. Other than making the untenable assertion that

additional imprisonment imposed in violation of the SRA is not prejudicial in the

context of PRPs, neither the Finstad nor the Chambers majority offers any

convincing or reasoned explanation for endorsing trial court sentencing errors.

                                        CONCLUSION

       Finstad, along with other criminal defendants, is entitled to receive a lawful

sentence for his crimes whether or not he agrees to serve an unlawful sentence and

whether or not the sentencing court could have legally imposed the sentence in

question. Finstad's sentence was unlawful and resulted in an additional 40 months

imprisonment. This is plainly prejudicial and entitles Finstad to relief. I would remand

this matter to the trial court with instructions to impose a sentence on Finstad that is

authorized by law.




                                            9
No. 86018-1 (Wiggins , J ., d'1ssentmg)
                                    .


       I dissent.




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