Filed
Washington State
Court of Appeals
Division Two
May 17, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46002-5-II
Respondent, PUBLISHED OPINION
v.
GUADALUPE SOLIS-DIAZ,
Appellant.
BJORGEN, C.J — Guadalupe Solis-Diaz, tried and sentenced as an adult for crimes
committed while a juvenile, appeals his sentence of 1,111 months (92.6 years) in prison on six
counts of first degree assault with firearm enhancements, one count of drive-by shooting, and
one count of unlawful possession of a firearm. Solis-Diaz argues, and the State concedes, that
the sentencing court erred by refusing to consider whether application of the multiple offense
policy warranted an exceptional downward sentence. He also argues that the trial court erred by
refusing to consider his youth as a mitigating factor and by imposing a 1,111-month prison term
on a juvenile offender in violation of constitutional prohibitions on cruel and unusual
punishment. Finally, Solis-Diaz asks us to disqualify the sentencing judge from hearing the case
No. 46002-5-II
if we remand for resentencing, arguing that the judge’s statements at the previous sentencing
hearing created the appearance of bias.
We agree with Solis-Diaz that the sentencing court erred by failing to consider an
exceptional sentence below the standard range in mitigation of consecutive sentences imposed
under the multiple offense policy. We also hold that the sentencing court erred by failing to
consider Solis-Diaz’s age as a basis for a sentence below the standard range. Accordingly, we
vacate Solis-Diaz’s sentence and remand for resentencing. On remand, the sentencing court
must conduct a meaningful, individualized inquiry into whether Solis-Diaz’s youth should
mitigate his sentence. Because we remand on other grounds, we do not consider whether Solis-
Diaz’s sentence violates the constitutional prohibitions on cruel and unusual punishment. We
decline to mandate the sentencing judge’s disqualification, but we acknowledge that Solis-Diaz
is free to move for disqualification on remand.
FACTS
Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by
shooting in Centralia. He was charged with six counts of first degree assault, each with a firearm
sentencing enhancement; one count of drive-by shooting; and one count of second degree
unlawful possession of a firearm. He was tried as an adult pursuant to former RCW
13.04.030(1)(e)(v)(A) (2005) and former RCW 9.94A.030(46)(v) (2006). The jury found him
guilty on all counts, and the trial court imposed a standard-range sentence of 1,111 months in
prison. Judge Nelson Hunt presided over the original sentencing.
Solis-Diaz brought a personal restraint petition challenging his sentence in this court. In
an unpublished opinion, we reversed the sentence for ineffective assistance of counsel and
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remanded for resentencing. In re Pers. Restraint of Diaz, 170 Wn. App. 1039, 2012 WL
5348865, *1 (2012). Among the grounds for concluding that Solis-Diaz received ineffective
assistance was his counsel’s failure to properly inform the trial court that Solis-Diaz’s case was
automatically declined to adult court. Id. We did not decide whether a 1,111-month fixed term
sentence violated the federal constitutional prohibition of cruel and unusual punishment or the
state constitutional prohibition of cruel punishment.
Judge Hunt also presided over the resentencing. Solis-Diaz requested an exceptional
downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of
19811 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated
diminished capacity to understand the wrongfulness and consequences of his actions. Judge
Hunt denied the request and again imposed a standard-range sentence of 1,111 months in prison.
In making his ruling, Judge Hunt “ha[d] some comments to make about the finding that
[Solis-Diaz’s counsel at the original sentencing] was ineffective.” Report of Proceedings (RP) at
34. He called the reasoning underlying our holding
an insult to all the trial judges in this state. To postulate that a judge would be so
ignorant, lazy or stupid as to not know or inquire at some point why this 17-year-
old was in adult court is incredible to me.
....
In my case, it’s particularly insulting as [counsel] well understood my
background, which consists of 17 years in prosecution, nine years in private
practice, . . . and at the time three years on the bench.
....
[I]t is simply ludicrous to think that I would not have known what [counsel] meant
when he said the defendant was . . . auto-declined.
1
Chapter 9.94A RCW.
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No. 46002-5-II
RP at 34-35. Judge Hunt then outlined at length his reasons for imposing a sentence at the top of
the standard range:
The sentence is precisely what the Legislature intended and is frankly the only
result which would withstand a legal analysis.
....
I believe the original sentence accurately reflects what the legislative intent for this
situation is, and there are no substantial and compelling reasons to deviate from the
standard range.
[T]he legislative intent is clear, and under the Sentencing Reform Act, punishment
and accountability are the primary foci of sentencing, and serious violent offenses
will be punished severely, particularly if there are multiple counts. Older teenagers
will be treated as adults. And, finally, if you commit serious violent offenses while
armed with a firearm, you’ll receive a severe sentence.
One of the purposes of sentencing is the message that is sent to others
contemplating a similar offense.
....
I don’t know where the people live who made the claim that assaults in
Lewis County have remained relatively steady, but for those of us who do live here,
we know this. There had been many similar incidents of gang-related violence in
Centralia with the use of firearms. From the day this sentence was pronounced,
there have been no similar crimes in Centralia. Gang-related violence with firearms
ha[ve] been virtually eliminated from Centralia.
RP at 37-44.
Judge Hunt rejected Solis-Diaz’s request to impose an exceptional sentence below the
standard range. He explained that under an earlier, now reversed, decision of Division Three of
our court, State v. Graham (Graham I), 178 Wn. App. 580, 314 P.3d 1148 (2013), rev’d, 181
Wn.2d 878 (2014), he had no authority to impose an exceptional downward sentence on multiple
offense policy grounds because Solis-Diaz’s convictions were for serious violent offenses, as
defined in the SRA. He similarly stated that he believed State v. Ha’mim, 132 Wn.2d 834, 847,
940 P.2d 633 (1997), and State v. Scott, 72 Wn. App. 207, 219, 866 P.2d 1258 (1993), aff’d sub
nom., State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995), prohibited him from considering
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No. 46002-5-II
Solis-Diaz’s youth as an indicator of diminished capacity.
Solis-Diaz appeals his sentence.
ANALYSIS
I. CONSIDERATION OF MITIGATING FACTORS: MULTIPLE OFFENSE POLICY
Solis-Diaz argues that the sentencing court erred by failing to consider as a mitigating
factor the excessive nature of the standard range sentence produced by application of the SRA’s
multiple offense policy in this case. The State concedes that the sentencing court erred in
refusing to consider this matter and we accept the concession.
We review a sentencing court’s decision to deny an exceptional sentence to determine
whether it failed to exercise discretion or abused its discretion by ruling on an impermissible
basis. State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). Where the sentencing court
fails to exercise its discretion because it incorrectly believes it is not authorized to do so, it
abuses its discretion. State v. O’Dell, 183 Wn.2d 680, 696-97, 358 P.3d 359 (2015); see also
State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (noting that a sentencing court
abuses its discretion by categorically refusing to consider an authorized and requested
exceptional sentence).
Under the SRA, a sentencing court must generally sentence a defendant within the
standard range. State v. Graham (Graham II), 181 Wn.2d 878, 882, 337 P.3d 319 (2014).
Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious
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No. 46002-5-II
violent offenses are to be served consecutively. RCW 9.94A.589(1)(b).2 However, “[t]he court
may impose an exceptional sentence below the standard range if it finds that mitigating
circumstances are established by a preponderance of the evidence.” RCW 9.94A.535(1).3 One
such mitigating circumstance exists if “[t]he operation of the multiple offense policy of RCW
9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of
this chapter, as expressed in RCW 9.94A.010.” RCW 9.94A.535(1)(g).4 When the resulting set
of consecutive sentences is so clearly excessive under the circumstances that it provides
“‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the
sentencing court may grant that exceptional sentence. Graham II, 181 Wn.2d at 885 (quoting
RCW 9.94A.535).
The sentencing court in this case declined to consider an exceptional sentence below the
standard range because it believed that the SRA’s multiple offense policy could not be the basis
for mitigation of resulting consecutive sentences. It based its belief on Division Three’s opinion
in Graham I. In that case, the court held that operation of the multiple offense policy to serious
violent offenses was not a proper basis for an exceptional sentence. 178 Wn. App. at 590.
However, after Solis-Diaz’s resentencing our Supreme Court reversed the decision in
Graham I and clarified that “a sentencing judge may invoke .535(1)(g) to impose exceptional
sentences both for multiple violent and nonviolent offenses scored under .589(1)(a) and for
multiple serious violent offenses under .589(1)(b).” Graham II, 181 Wn.2d at 885. Therefore,
2
RCW 9.94A.589 was amended in 2015. This amendment did not affect subsection (1)(b).
3
RCW 9.94A.535 was amended in 2015. This amendment did not affect subsection (1).
4
RCW 9.94A.535 was amended in 2015. This amendment did not affect subsection (1)(g).
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No. 46002-5-II
even though the sentencing court based its decision not to exercise discretion on controlling case
law at the time of sentencing, the fact that our Supreme Court reversed that case law and clarified
the underlying statutory provisions rendered unlawful the basis for the sentencing court’s
decision. Therefore, we must vacate Solis-Diaz’s sentence and remand for resentencing. See
O’Dell, 183 Wn.2d at 697; In re Pers. Restraint of Greening, 141 Wn.2d 687, 694, 9 P.3d 206
(2000). At the new sentencing, the trial court can consider whether Solis-Diaz’s sentence was
clearly excessive due to operation of the multiple offense policy.
II. YOUTH AS A MITIGATING FACTOR
Our Supreme Court’s recent decision in O’Dell provides a separate reason why the trial
court erred in failing to consider an exceptional sentence downward. Like Graham II, O’Dell
issued after the resentencing of Soliz-Diaz. O’Dell was convicted of rape committed just after
his 18th birthday. At sentencing, the trial court ruled that it could not consider O’Dell’s age as a
mitigating circumstance under Ha’mim, 132 Wn.2d 834, and imposed a standard range sentence
of 95 months. O’Dell, 183 Wn.2d at 683.
The Supreme Court disagreed, holding that
in light of what we know today about adolescents’ cognitive and emotional
development, we conclude that youth may, in fact, “relate to [a defendant’s] crime,”
[Ha’mim, 132 Wn.2d at 847] (quoting RCW 9.94A.340); that it is far more likely
to diminish a defendant’s culpability than this court implied in Ha’mim; and that
youth can, therefore, amount to a substantial and compelling factor, in particular
cases, justifying a sentence below the standard range.
O’Dell, 183 Wn.2d at 695-96. In its analysis, the court disapproved of Scott, 72 Wn. App. at
219, an opinion from Division One of our court indicating that youthful incapacity extends only
to “common teenage vice[s],” but also affirmed that youth alone does not per se indicate such
incapacity. Id.; see also Ha’mim, 132 Wn.2d at 847. The Supreme Court concluded that the trial
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court abused its discretion by improperly declining to exercise that discretion to consider
O’Dell’s youth. O’Dell, 183 Wn.2d at 697. The court accordingly remanded for a new
sentencing hearing, directing the trial court to consider whether youth diminished O’Dell’s
culpability. Id.
The same logic and policy that led the Supreme Court to require the consideration of the
youth of a young adult offender would apply with magnified force to require the same of Solis-
Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court
here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor
in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in
refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result:
reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully
consider whether youth diminished his culpability. O’Dell, 183 Wn.2d at 697.
III. THE NATURE OF THE INQUIRY ON RESENTENCING
We conclude above that the sentencing court erred in two ways: by failing to consider
whether Solis-Diaz’s sentence was clearly excessive due to operation of the multiple offense
policy and by failing to meaningfully consider whether youth diminished his culpability under
O’Dell. Our Supreme Court’s analysis in O’Dell informs how the sentencing court is to consider
Solis-Diaz’s youth in making these evaluations.
The court in O’Dell recognized that youth might be relevant to one of the mitigating
factors listed in current RCW 9.94A.535: an impairment of the defendant’s “[]capacity to
appreciate the wrongfulness of his conduct or [to] conform [his or her] conduct to the
requirements of the law.” 183 Wn.2d at 697. O’Dell acknowledged that the United States
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Supreme Court has identified several different effects of youth on the capacity and culpability of
juvenile offenders, arising in the context of constitutional prohibitions against cruel and unusual
punishment. Id.; see also Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d
407 (2012); Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010);
Roper v. Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Recognition of
these effects stemmed from developments in the fields of psychology and neuroscience showing
“‘fundamental differences between juvenile and adult minds’—for example, in ‘parts of the brain
involved in behavior control.”’ Miller, 132 S. Ct. at 2464 (quoting Graham, 530 U.S. at 89-90).
The Court noted that these differences may lead to impulsive decision making, Roper, 543 U.S.
at 569, may decrease a juvenile’s ability to resist harmful influences and conform to the
requirements of the law, id. at 571, and may make it more likely that a juvenile offender will
reform his life, Miller, 132 S. Ct. at 2465. Our Supreme Court in O’Dell stated that the studies
underlying Miller, Roper and Graham “establish a clear connection between youth and
decreased moral culpability for criminal conduct.” 183 Wn.2d at 695.
The effects of youth on capacity and culpability are part of a multifaceted whole. In
juveniles “‘[a] lack of maturity and an underdeveloped sense of responsibility . . . often result in
impetuous and ill-considered actions and decisions.’” Roper, 543 U.S. at 569 (quoting Johnson
v. Texas, 509 U.S. 530, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)). Similarly, “juveniles are
more vulnerable or susceptible to negative influences and outside pressures, including peer
pressure.” Id.; see also Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 101 L. Ed.
2d 702 (1988) (“Inexperience, less education, and less intelligence make the teenager less able to
evaluate the consequences of his or her conduct while at the same time he or she is much more
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apt to be motivated by mere emotion or peer pressure than is an adult.”). Further, juveniles
exhibit “vulnerability and comparative lack of control over their immediate surroundings” and
therefore have “a greater claim than adults to be forgiven for failing to escape negative
influences.” Roper, 543 U.S. at 570. The “character of a juvenile is not as well formed as that of
an adult,” so “it is less supportable to conclude that even a heinous crime committed by a
juvenile is evidence of irretrievably depraved character.” Id. These scientific findings and their
endorsement by the high courts of both the United States and Washington compel the same
conclusion: a sentencing court’s evaluation of a particular juvenile offender’s circumstances
must at least extend to an individualized assessment of each of these potential effects of youth.
In short, a sentencing court must take into account the observations underlying Miller,
Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of
responsibility, increased impetuousness, increased susceptibility to outside pressures, including
peer pressure, and a greater claim to forgiveness and time for amendment of life. O’Dell, 183
Wn 2d at 695-96. Against this background, the sentencing court must consider whether youth
diminished Soliz-Diaz’s culpability and make an individualized determination whether his
“capacity to appreciate the wrongfulness of his conduct or [to] conform that conduct to the
requirements of the law” was meaningfully impaired. O’Dell, 183 Wn.2d at 696.5
A sentencing court’s inquiry into the individual circumstances of a particular juvenile
offender should take into account that offender’s level of sophistication and maturity. See
5
We do not reach the extent of the trial court’s duty if the defendant fails to present needed
evidence.
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O’Dell, 183 Wn.2d at 697. Evidence suggesting that the offender thought and acted like a
juvenile may indicate that the offender’s culpability was less than that necessary to justify
imposition of a standard range sentence. See id. Similarly, evidence that the offender exhibits
growing maturity and would benefit from an opportunity to rehabilitate his life may indicate that
a lesser sentence will better accomplish the State’s penological goals. See id.
Consistently with O’Dell, we direct the sentencing court in this case to fully and
meaningfully consider Solis-Diaz’s individual circumstances and determine whether his youth at
the time he committed the offenses diminished his capacity and culpability. If the court
determines that his youth did so diminish his capacity and culpability, it must consider whether
an exceptional sentence below the standard range is justified based on youth. O’Dell, 183 Wn.2d
at 696.
IV. DISQUALIFICATION OF JUDGE HUNT
Solis-Diaz argues that Judge Hunt should be disqualified from presiding over the
resentencing proceedings. We decline to disqualify Judge Hunt, although Solis-Diaz is free to
move for disqualification on remand.
Under the federal and state constitutions, a criminal defendant has the right to be tried
and sentenced by an impartial court. U.S. CONST., amends. VI, XIV; WASH. CONST. art. I, § 22.
Even the appearance of partiality can be grounds for disqualification of a judge. State v.
Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). “Under the appearance of fairness doctrine,
a judicial proceeding is valid only if a reasonably prudent, disinterested observer would conclude
that the parties received a fair, impartial and neutral hearing.” Id. To establish grounds for
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No. 46002-5-II
disqualification under the doctrine, a party must show actual or potential bias. Id. at 187-88;
State v. Lundy, 176 Wn. App. 96, 109, 308 P.3d 755 (2013).
However, the appearance of fairness doctrine generally is not grounds for preemptive
disqualification of a judge by a remanding appeals court. State v. McEnroe, 181 Wn.2d 375,
386, 333 P.3d 402, remanded, 2014 WL 10102380 (Wash. 2014). A party usually must move
before the trial court to disqualify the judge to which its case has been assigned, so the judge is
allowed the first opportunity to consider recusal and the parties can develop an adequate record
on the issue of disqualification. Id. at 387. Reassignment by a remanding court is proper only
where
the trial judge will exercise discretion on remand regarding the very issue that
triggered the appeal and has already been exposed to prohibited information,
expressed an opinion as to the merits, or otherwise prejudged the issue.
Id. (footnotes omitted).
According to Solis-Diaz,
Judge Hunt’s extremely intemperate remarks at the sentencing hearing demonstrate
that he would reasonably be expected upon remand to have substantial difficulty in
putting out of his mind his previously expressed views or findings determined to be
erroneous.
Br. of Appellant at 39. Solis-Diaz argues that Judge Hunt’s remarks indicated a general refusal
to accept the mandate of this court. However, none of Judge Hunt’s comments indicated that he
would not accept or follow our mandate following this appeal. Instead, his comments expressed
personal umbrage toward this court for its reasoning in ordering the previous resentencing.
Whether or not these comments were inappropriate, we do not hold that they require
disqualification on remand.
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Judge Hunt also stated that “[t]rial courts are not to impose their own feelings on the
standard range sentences, as that is what the Legislature has determined they shall be.” RP at 51.
This view could reflect a general bias toward rejecting exceptional downward sentences. Judge
Hunt further stated that
[t]his sentence was exactly what the Legislature intended for crimes such as this.
I would not have given a mitigated sentence had I known about the information that
[was not presented at the original sentencing]. . . . I already knew it, and I imposed
the sentence I did being fully informed of the legal consequences of doing so.
RP at 53. Read in isolation, these comments seem to indicate that Judge Hunt prejudged Solis-
Diaz and determined that his convictions invariably warrant his lengthy sentence.
However, read in context, Judge Hunt seems to have been ruling that the governing case
law at the time prevented him from considering the mitigating factors now at issue on appeal.
He stated, for example, that “[i]n my opinion, the suggested options [for mitigation] are either
unlawful or legally insufficient,” RP at 48, and that “[n]one of the suggested mitigating factors
recommended by the defense are legally sufficient,” RP at 53. Judge Hunt, however, has not had
an opportunity to analyze whether Solis-Diaz should receive an exceptional sentence in light of
O’Dell or this opinion. Without a stronger showing of bias on the issues to be addressed on
remand, we will not mandate disqualification.
As we discussed above, the sentencing court on remand must exercise its discretion
regarding the possibility of an exceptional downward sentence based on mitigating factors that
include the application of the multiple offense policy and consideration of Solis-Diaz’s age and
attendant levels of capacity and culpability. If Solis-Diaz believes that Judge Hunt cannot
impartially follow our instructions and perform an individualized inquiry into the effects of
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Solis-Diaz’s youth, he may move for disqualification before the sentencing court. We express no
opinion as to whether Judge Hunt is disqualified on that basis.
CONCLUSION
We conclude that the sentencing court erred in failing to consider whether the operation
of the SRA’s multiple offense policy and Solis-Diaz’s youth at the time he committed the crimes
should mitigate his standard range sentence and warrant an exceptional downward sentence.
Therefore, we vacate Solis-Diaz’s sentence and remand for resentencing proceedings consistent
with this opinion. We decline to disqualify Judge Hunt from making this inquiry, but note that
Solis-Diaz may move for disqualification before the sentencing court.
BJORGEN, C.J.
I concur:
MAXA. J.
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Melnick, J. (concurrence) — Because the law has changed since the trial court sentenced
Guadalupe Solis-Diaz, I concur that his sentence must be reversed and the matter should be
remanded for a new sentencing hearing. I write solely to express my disagreement with the
majority’s opinion mandating what the sentencing court must consider on remand. The “Nature
of the Inquiry on Resentencing” section exceeds the scope of what we have to decide, and
anticipates the evidence the parties will present to the sentencing court. Majority at 8-11. The
majority improperly establishes the sentencing court’s scope on remand. First, the parties did not
brief this issue, and we should not consider it. RAP 12.1(a). Second, because the resentencing
has not occurred, the issue is not before us. If the parties do not present all of the evidence the
majority opinion orders the sentencing court to consider, it cannot comply. Third, if the sentencing
court fails to comply with applicable law, Solis-Diaz will once again have the right to appeal.
Lastly, I have faith that the trial court will follow the law and properly consider all of the relevant
evidence the parties present. And I also have faith that the parties will effectively present all of
the evidence they believe will assist the court in resentencing Solis-Diaz.
Melnick, J.
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