                                                                                                                  FILED
                                                                                                         COURT OF APPEAI S-
                                                                                                               01visibiq if
                                                                                                       2015 JUL 2),         AM 9: 26
                                                                                                                0117[
                                                                                                       STATE            Vfflrr4GTO I
                                                                                                       0 yN
                                                                                                                        T
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT ,

                                                 DIVISION II

 STATE OF WASHINGTON,                                                                   No. 45614 -1 - II
                                                                  Consolidated With No. 46836 -1 - II
                                     Appellant,




                                                                               UNPUBLISHED OPINION
ANSEL W. HOFSTETTER,


                                                      t.



 In the Matter of the
 Personal Restraint Petition of.


 ANSEL W. HOFSTETTER,


                                     Petitioner.




         MAXA, P. J. —     The State of Washington appeals from a resentencing hearing in which the

trial court changed Ansel Hofstetter' s sentence of life in prison without the possibility of early

release, imposed when he was a juvenile, to a 40 -year determinate sentence. The resentencing

occurred pursuant to the United States Supreme Court' s holding in Miller v. Alabama that

sentencing a juvenile defendant to imprisonment of life without the possibility of release violated

the Eighth Amendment proscription against cruel and unusual punishment unless the sentencing

court   specifically   considered   the   juvenile'   s youthfulness     before   imposing   the   sentence.   132S.


Ct. 2455, 2460, 183 L. Ed. 2d 407 ( 2012).                 However, at the time of resentencing the legislature

had   not yet amended     the sentencing     statute       to comply   with   Miller.
45614 -1 - II / 46836 -1 - II



         We hold that Hofstetter' s new sentence is invalid because the trial court did not have


statutory authority to impose a determinate sentence. Accordingly, we vacate Hofstetter' s

sentence and remand for resentencing. We also deny Hofstetter' s personal restraint petition

 PRP) as moot.


                                                   FACTS


         In 1992, a jury convicted Hofstetter, a juvenile, of aggravated first degree murder.

Former RCW 10. 95. 030 ( 1981) required, and the trial court imposed, a sentence of life without


the possibility of early release. In 1994, we affirmed Hofstetter' s conviction and sentence. State

v. Hofstetter, 75 Wn. App. 390, 878 P. 2d 474 ( 1994).

         After the United States Supreme Court decided Miller,.Hofstetter sought relief in superior


court by means of a motion for relief of judgment, relying on Miller. The State opposed the

motion, arguing that Miller did not apply retroactively and, even if it did, the trial court would

need to. wait for the legislature to amend the sentencing statute: Hofstetter advocated for a

determinate sentence between the mandatory minimum for first degree murder, (20 years) and

life.


         Despite the State' s request to take no action, the trial court ruled that Miller applied


retroactivelyi and that Hofstetter should be resentenced. The State requested that the trial court


again impose a sentence of life without the possibility of early release or, alternatively, a




1 The United States Supreme Court has granted certiorari on whether Miller applies retroactively
in Montgomery       v.   Louisiana, 135 S. Ct. 1546, No. 14- 280 ( Mar. 23, 2015).   We do not address
this issue.


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45614 -1 - II / 46836 -1 - II



determinate sentence of 50 years or more. The trial court imposed a 40 -year determinate


sentence with a lifetime of community custody.

          The State appeals. Hofstetter also filed a PRP, which. we consolidated with this appeal.

                                                                ANALYSIS


A.        AMENDMENT OF SENTENCING STATUTE


          Before the parties filed their appellate briefs, the legislature amended the applicable


sentencing       statute, now codified at           RCW 10. 95. 030( 3).          This legislation is commonly called the

    Miller fix." In        re   Pers. Restraint of McNeil, 181 Wn.2d 582, 586, 334 P. 3d 548 ( 2014). RCW


10. 95. 030( 3)( b) requires the sentencing court to " take into account mitigating factors that.

account    for the diminished culpability              of youth,"        restricts life sentences to older juvenile


offenders and then only based on an individualized determination, and requires the court to

impose an indeterminate sentence with at least a 25 -year minimum term if life without the


possibility of parole is not imposed.

          The legislature applied its amendment retroactively. Any juvenile who was given a

mandatory sentence of life without the possibility of early release before the Miller.fix became

effective automatically is entitled to resentencing consistent with the new guidelines. Id.; see

also McNeil, 181 Wn.2d at 589.

           Our Supreme Court decided in McNeil that the Miller fix did not violate the ex post facto

clauses of the Washington Constitution and the United States Constitution.2 181 Wn.2d at 593.



2
    Article I,   section        23   of   the Washington Constitution         provides, "    No bill of attainder, ex post
facto law,       or   law    impairing       the obligations     of contracts shall ever      be   passed."   Article I, section
10,    clause    1    of   the United States Constitution             provides   in   relevant part, " No   State   shall ...   pass

any bill   of attainder, ex post              facto law,   or   law   impairing   the   obligation of contracts."
45614 -1 - II / 46836 -1 - II




B.       SENTENCING WITHOUT STATUTORY AUTHORITY


         The State asks us to remand for resentencing because the trial court lacked statutory

authority to resentence Hofstetter before the legislature enacted the Miller fix. It argues that

fixing legal punishments is a legislative function and that the superior court does not have

authority to impose a sentence not based on statute. We agree, and hold that Hofstetter' s

sentence is unlawful and that a new resentencing hearing is necessary.

         1.    Invalid Sentence


         In State v. Guzman Nunez, our Supreme Court reiterated the longstanding constitutional

principle that fixing penalties and punishments for criminal offenses is a legislative function.

174 Wn.2d 707, 711, 285 P. 3d 21 ( 2012); see also State v. Ammons, 105 Wn. 2d 175, 180, 718


P. 2d 796 ( 1986); State     v.   Mulcare, 189 Wash. 625, 628, 66 P. 2d 360 ( 1937). A sentence that is


beyond the trial court' s statutory authority is an invalid sentence. In re Pers. Restraint of Coats,

173 Wn.2d 123, 136, 267 P. 3d 324 ( 2011); State v. Smissaert, 103 Wn.2d 636, 639, 694 P. 2d


654 ( 1985).


         Here, at the time of resentencing; the sentencing statute only gave.the trial court authority

to impose a life sentence. Former RCW 10. 95. 030. Although Miller rendered that statute


unconstitutional, the trial court had no statutory basis for imposing a different sentence. Further,

once the legislature enacted the Miller fix to define the level of punishment for juveniles


convicted of aggravated first degree murder, the trial court' s new sentence was inconsistent with


its statutory authority. After the Miller fix, the trial court could only impose an indeterminate

sentence with at     least   a   25 -year   minimum sentence.   RCW 10. 95. 030( 3).   There is not and never




                                                          S
45614 -1 - II / 46836 -1 - II




has been statutory authority to impose a 40 -year determinate sentence for aggravated first degree

murder.




         Because the trial court had no statutory authority to impose Hofstetter' s new sentence, it

is invalid and must be corrected. See In re Pers. Restraint ofFinstad, 177 Wn.2d 501, 510 n.9,

301 P. 3d 450 ( 2013).         Therefore, we hold that Hofstetter' s sentence must be vacated.


         2.     Timeliness of Appeal


         Hofstetter argues, without discussion or citation of authority, that the State' s appeal is

untimely because it was filed more than 30 days after he claims the trial court vacated the

judgment       on   September 30, 2013. However, on September 30 the trial court did not vacate


Hofstetter' s existing sentence, but simply issued a written decision applying Miller retroactively.

In any   event, a     final judgment —including the           sentence -   is a prerequisite to a direct appeal in a


criminal case. In re Pers. Restraint ofSkylstad, 160 Wn.2d 944, 949- 50, 162 P. 3d 413 ( 2007).

Here, the trial      court   did   not enter   its judgment   and sentence until   October 18, 2013, The State' s


notice of appeal was filed within 30 days of the judgment and sentence.


         We hold that the State' s appeal was not untimely.

          3.        No Invited Error


         Hofstetter argues that the invited error doctrine prevents the State from complaining that

the trial court imposed a determinate sentence when it proposed such a sentence below. We

disagree.


          The invited error doctrine prohibits a party from setting up an error at trial and then

challenging that error on appeal. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 119, 340 P. 3d

810 ( 2014).        Here, the State repeatedly asked the trial court to. delay resentencing Hofstetter until



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45614 -1 - II / 46836 -1 - II




the legislature amended the sentencing statute. However, the trial court decided that further

delay implicated Hofstetter' s speedy sentencing right and that resentencing was necessary before

the legislature acted. The State supported a determinate sentence only after the trial court

decided to go forward with resentencing.

         This was not invited error. The trial court had ruled against the State and the State had no


choice but to offer a sentencing recommendation. Therefore, we hold that the State is not

precluded from challenging the imposed sentence.

         4.    Sentencing Authority Before Amendment

         Hofstetter argues that a trial court should have authority to correct a sentence based on an

unconstitutional statute if the legislature has not yet acted to fix the statute. Otherwise, if the


legislature never acted, a person subject to such a.sentence would never have a remedy.

         However, our Supreme Court consistently has held that a trial court does not have the

authority to adopt a different sentencing procedure when the statutory procedure has been found

unconstitutional.     State     v.   Davis, 163 Wn.2d 606, 610- 11, 184 P. 3d 639 ( 2008); State v. Pillatos,


159 Wn.2d 459, 469- 70, 150 P. 3d 1130 ( 2007). We hold that the same rule applies when a


sentencing statute has been declared unconstitutional.

         We hold that because the trial court had no statutory authority for its new sentence, the

sentence must be vacated and the case must be remanded for a new resentencing. hearing.

C.       PERSONAL RESTRAINT PETITION


         In his PRP, Hofstetter argues that the trial court erred in imposing a lifetime of

community custody placement because such a condition makes his sentence an exceptional

sentence unsupported       by        any factual findings. We   need not address   this   issue because   our
45614 -1 - II / 46836 -1 - II




remand for resentencing renders this issue moot. In re Interest ofRebecca K., 101 Wn. App.

309, 313, 2 P. 3d 501 ( 2000).


          Hofstetter also argues that the Department of Corrections ( DOC) is denying him earned

early release time. This issue too may be rendered moot by our decision. In addition, DOC has

responded that it is not denying Hofstetter early release but that its computer system was unable

to make such calculations. DOC avers that it has remedied the problem. There is no remedy this

court can provide at this time, making this issue moot. In re Pers. Restraint ofHuffman, 34 Wn.

App. 570, 572, 662 P. 2d 408 ( 1983).

          We vacate Hofstetter' s sentence, remand for a new resentencing hearing, and deny

Hofstetter' s PRP.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                          MAXA, P. J.J.




We concur:




 Lr,     J.




 SUTTON,SUTTON, J.J.




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