State v. Waller

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE FEBRUARY 25, 2021
SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 25, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 98326-7

Petitioner,

v. EN BANC

ANTHONY THOMAS WALLER,

Respondent. Filed: ________________
February 25, 2021

GORDON McCLOUD, J.—Under RAP 2.2(b)(3), the State has a right to

appeal “[a]n order … vacating a judgment.” Does that Rule give the State the right

to appeal a superior court order granting a CrR 7.8(b) motion for relief from

judgment in a long-since final criminal case? Clearly, under the language of RAP

2.2(b)(3), the answer is yes: The State may appeal such “[a]n order arresting or

vacating a judgment.”
State v. Waller (Anthony Thomas), No. 98326-7

In this case, however, the superior court did not clearly state that it was

“arresting or vacating” Anthony Waller’s judgment, or even granting his motion, in

its first order on his CrR 7.8 motion. Instead, it skipped straight ahead to ordering

a resentencing hearing. So this case presents an additional question about the

application of RAP 2.2(b)(3) in this unusual context: Does a series of superior

court orders retaining jurisdiction of a CrR 7.8 motion, scheduling a resentencing

hearing, ordering the prisoner transported for that resentencing hearing, and

clarifying that the first order did indeed grant the CrR 7.8 motion, amount to

granting the motion and “vacating” the old sentence within the meaning of RAP

2.2(b)(3)? We hold that it does and reverse the Court of Appeals.

As the discussion below shows, when a superior court receives a CrR 7.8

motion, it should follow the CrR 7.8(c) procedures. Pursuant to those procedures,

the court should ordinarily hold a show cause hearing before granting relief.

FACTS

In January 1999, when Waller was 21 years old, a man saw him and his

friends breaking into vehicles in Tukwila, Washington. 1 Clerk’s Papers (CP) at 2-

3. Waller chased the man and stabbed him repeatedly in the face and eyes with a

screwdriver. Id. at 3, 32. The man died of his injuries. The following December,

a jury convicted Waller of first degree murder. Id. at 26.

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State v. Waller (Anthony Thomas), No. 98326-7

The trial court found that the “more than 40 stab wounds inflicted with a flat

head screw driver and concentrated [on the victim’s] head and face represent[ed]

deliberate cruelty” justifying an exceptional sentence. Id. at 32-33. The standard

range was 261-347 months, but the trial court imposed an exceptional sentence of

432 months. Id. at 28-29, 32-33. 1 The Court of Appeals affirmed, and the

mandate issued on November 15, 2002. 2 CP at 63; State v. Waller, 107 Wn. App.

1047 (2001), 2001 WL 919349.

Sixteen years later, in March 2018, Waller filed a pro se CrR 7.8 motion in

the superior court, seeking relief from judgment. 2 CP at 37-44. He argued that he

was entitled to resentencing under State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359

(2015),2 because it constituted a retroactive, material change in the law that

exempted his motion from the one-year collateral attack time bar. 2 CP at 39-40;

see RCW 10.73.100(6). He sought the following relief: “grant this motion, vacate

the judgment, and set a resentencing hearing.” 2 CP at 40 (emphasis added). The

State moved to transfer Waller’s motion to the Court of Appeals for consideration

1
Waller’s case predated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004). Accordingly, the trial court found that Waller’s crime showed
deliberate cruelty and justified an exceptional sentence above the standard range. 1 CP at
32-33; see State v. Evans, 154 Wn.2d 438, 448, 114 P.3d 627 (2005) (declining to apply
Blakely retroactively to cases final on direct review).
2
O’Dell holds that youthfulness may constitute a mitigating factor supporting a
sentence below the standard range, even for a person over age 17 whose case is heard in
the superior court. 183 Wn.2d at 698-99.
3
State v. Waller (Anthony Thomas), No. 98326-7

as a personal restraint petition (PRP). Id. at 48; see CrR 7.8(c)(2). On April 17,

the superior court granted the State’s motion; it ruled that Waller’s motion was

“time-barred by RCW 10.73.090” and that CrR 7.8(c)(2) therefore required the

transfer to the Court of Appeals. Id. at 75-76.

Waller, now represented by appointed counsel, moved to reconsider the

transfer in light of the Court of Appeals’ decision in In re Personal Restraint of

Light-Roth3 because that Court of Appeals decision in Light-Roth I validated

Waller’s O’Dell-retroactivity argument. Id. at 77. This time, Waller sought the

following relief: “[R]econsider [the] transfer of Mr. Waller’s properly filed CrR

7.8 motion, retain jurisdiction, and set the matter for a resentencing hearing.” Id. at

82.

On June 7, 2018, the superior court granted Waller’s motion for

reconsideration and vacated its transfer order. Id. at 116. It held that “in light of

[Light-Roth I], it appears that the motion should be granted and a resentencing

hearing should be scheduled.” Id. The superior court then began scheduling the

resentencing hearing and instructed the parties to brief the scope of resentencing.

Id. at 117. The superior court’s order did not explicitly state that it was granting

Waller’s CrR 7.8 motion to vacate Waller’s sentence (though its decisions to

3
200 Wn. App. 149, 401 P.3d 459 (2017) (Light-Roth I), rev’d, 191 Wn.2d
328, 422 P.3d 444 (2018) (Light-Roth II).
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State v. Waller (Anthony Thomas), No. 98326-7

schedule resentencing and order briefing on resentencing certainly suggest that it

did). Id. at 116-17.

Waller filed the requested resentencing briefing and, on June 25, the court

ordered Waller transported from the Department of Corrections’ custody for the

hearing. Id. at 118-23. On June 26, the court clarified that its order on Waller’s

motion for reconsideration, “which implicitly grants a resentencing hearing, was

indeed intended to order a resentencing hearing for the defendant (over the

objection of the State of Washington).” Id. at 124. That clarification order also

stated that the court’s earlier “June 6, 2018 order . . . expressly order[ed] a

resentencing hearing for the defendant.” Id.

Three days later, the State filed a “notice of appeal and/or of discretionary

review” to this court. Id. at 140. The State acknowledged that there was

“currently controversy over whether [it] may appeal orders of this type.” Id.

(citing State v. Garrison, No. 95860-2).4 On July 17, the superior court issued an

order under RAP 7.25 canceling the resentencing hearing and denying a pending

motion to stay as moot. 3 CP at 145-46. In that order, the superior court explicitly

stated that it had granted Waller’s CrR 7.8 motion in its previous orders: “On

Motion for Discretionary Review in Garrison filed on May 14, 2018 and
4

subsequently voluntarily withdrawn on July 20, 2018.
5
RAP 7.2 limits trial court authority “[a]fter review is accepted by the appellate
court.” RAP 7.2(a).
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State v. Waller (Anthony Thomas), No. 98326-7

March 8, 2018, Defendant Anthony Waller filed a Motion for Relief from

Judgment, which the Court ultimately granted.” Id. at 145 (emphasis added)

(footnote omitted). It also stated that “when the State sought review of the Court’s

rulings (granting relief from judgment), the State appealed as a matter of right

under RAP 2.2(b)(3) (Arrest or Vacation of Judgment).” Id. at 146.

We issued our decision in Light-Roth II on August 2 and reversed the Court

of Appeals decision on which the trial court had based its order granting Waller

relief. 191 Wn.2d 328 (holding that O’Dell did not apply retroactively to Light-

Roth).

In April 2019, we transferred the State’s petition for direct review to the

Court of Appeals. In October 2019, after the Court of Appeals heard argument but

before it issued a ruling, the superior court issued an Order Clarifying June 2018

Orders. 5 CP at 163. It stated that our court’s decision in Light-Roth II “was the

basis of” its June 2018 orders and that “[i]n light of the Supreme Court decision

[reversing Light-Roth I], this Court does not intend to hold a resentencing in this

case.” Id. at 164. The superior court further announced that it intended to vacate

its June 2018 orders, but, in “an abundance of caution,” it would not do so until

“appellate review is concluded or ‘the permission of the appellate court [is]

obtained.’” Id. (alteration in original) (quoting RAP 7.2(e)). The appellate court

gave that permission. In January 2020, the superior court vacated its June 2018

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State v. Waller (Anthony Thomas), No. 98326-7

orders. Id. at 166. That left the case transferred to, and pending in, the Court of

Appeals per the superior court’s April 17, no-longer-vacated, transfer order.

The Court of Appeals acknowledged that the case was moot because the trial

court intended to vacate its decision in light of Light-Roth II. State v. Waller, 12

Wn. App. 2d 523, 533, 458 P.3d 817 (2020). But it ruled that the “narrow question

of whether the State has the right under RAP 2.2(b)(3) to appeal an order granting

a CrR 7.8(b) motion for relief from judgment requesting a new sentencing hearing”

was an issue of continuing and substantial public interest that would likely evade

review. Id. at 534 (citing State v. Clark, 91 Wn. App. 581, 584, 958 P.2d 1028

(1998)). We agree with the Court of Appeals’ reasoning on the mootness issue and

therefore retain the case for decision despite the fact that it is moot.6

The Court of Appeals then held that under RAP 2.2(b)(3) and CrR 7.8(b),

the State had no right to appeal. Id. at 536-37. It reasoned that the State may

appeal only from “an order vacating a judgment,” but where “the court does not

amend the sentence, the judgment remains in effect.” Id. at 536 (citing RAP

2.2(b)(3); CrR 7.8(b)). It began with the premise that CrR 7.8(b) motions “‘do[]

not affect the finality of the judgment or suspend its operation’” and “[t]he

6
See In re Pers. Restraint of Mattson, 166 Wn.2d 730, 736, 214 P.3d 141 (2009)
(We may “‘retain and decide an appeal which has otherwise become moot when it can be
said that matters of continuing and substantial public interest are involved.’” (quoting
Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972))).
7
State v. Waller (Anthony Thomas), No. 98326-7

uncontroverted record establishe[d] the court did not amend the judgment and

sentence,” and then concluded that the trial court had not vacated the judgment. Id.

at 536-37 (quoting CrR 7.8(b)). The Court of Appeals rejected the argument that

the superior court’s decision “grant[ing] Waller’s CrR 7.8(b)(5) motion” and

scheduling a resentencing hearing vacated the judgment. Id. at 537.

We granted review to decide whether RAP 2.2(b)(3) gives the State the right

to appeal an order granting a CrR 7.8(b) motion. State v. Waller, 195 Wn.2d 1024

(2020). We hold that RAP 2.2(b)(3) does give the State that right. We further hold

that the record in this case shows that the superior court granted Waller’s CrR

7.8(b) motion in this case, so RAP 2.2(b)(3) gives the State the right to appeal that

decision.

ANALYSIS

I. RAP 2.2(B)(3) GIVES THE STATE THE RIGHT TO APPEAL FROM ORDERS
“ARRESTING OR VACATING A JUDGMENT”

When a superior court denies a CrR 7.8 motion to vacate, “the defendant has

a right to direct appeal” under RAP 2.2(a)(10). In re Pers. Restraint of Ruiz-

Sanabria, 184 Wn.2d 632, 638, 362 P.3d 758 (2015) (per curiam) (citing RAP

2.2(a)(10)). And when the superior court grants a CrR 7.8 motion to vacate, the

State has a right to direct appeal under RAP 2.2(b)(3).

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State v. Waller (Anthony Thomas), No. 98326-7

To be sure, we have not previously ruled that RAP 2.2(b)(3) grants the State

this right to appeal. We have, however, worked on that assumption.7 We now

make that assumption an explicit holding. The parties agree that RAP 2.2(b)

controls the State’s right to appeal in criminal cases. RAP 2.2(b) sets out an

exclusive list of orders from which the State may appeal and limits even that list

with the qualifier, “only if the appeal will not place the defendant in double

jeopardy.” RAP 2.2(b).

RAP 2.2(b)(3) is the subsection that allows the State to appeal “[a]n order

arresting or vacating a judgment.” We review interpretation of a court rule de

novo using the rules of statutory construction. State v. McEnroe, 174 Wn.2d 795,

800, 279 P.3d 861 (2012) (citing State v. Osman, 168 Wn.2d 632, 637, 229 P.3d

729 (2010); Wiley v. Rehak, 143 Wn.2d 339, 343, 20 P.3d 404 (2001)). But there’s

just not that much to interpret here. RAP 2.2(b)(3) gives the State the right to

appeal an order “vacating a judgment.” An order granting a CrR 7.8(b) motion to

vacate a judgment vacates that judgment. Hence, the State can appeal such an

order.

As the State points out, we have accepted two recent appeals from trial court
7

decisions granting CrR 7.8 motions. State v. Miller, 185 Wn.2d 111, 371 P.3d 528
(2016); State v. Scott, 190 Wn.2d 586, 416 P.3d 1182 (2018). No party in either of those
cases raised the issue of the State’s right to appeal and neither decision opined on that
issue. Thus, the State’s right to appeal from a trial court order granting a CrR 7.8 motion
remains an open question that we resolve today.
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State v. Waller (Anthony Thomas), No. 98326-7

II. THE TRIAL COURT’S DECISIONS IN THIS CASE “VACATED” THE JUDGMENT

The remaining question in this case is a limited and fact-dependent one: Did

the trial court’s two orders—first, the order that granted Waller’s motion for

reconsideration of its decision to transfer his CrR 7.8 motion to the Court of

Appeals and scheduled a resentencing hearing, and second, the trial court’s order

clarifying its first order—grant Waller’s motion and thus “vacat[e]” his criminal

judgment within the meaning of RAP 2.2(b)(3)? The answer is clear from the

language of that court’s orders and the context in which they were made.

A. WALLER SOUGHT VACATION OF JUDGMENT AND VACATION OF JUDGMENT IS A
STANDARD REMEDY AVAILABLE UNDER CRR 7.8

CrR 7.8 allows parties in a criminal case to move for “relief from [a]

judgment or order.” When the superior court receives a motion under this rule, it

“shall transfer” that motion “to the Court of Appeals for consideration as a [PRP]

unless the court determines that the motion is not barred by RCW 10.73.090 and

either (i) the defendant has made a substantial showing that he or she is entitled to

relief or (ii) resolution of the motion will require a factual hearing.” CrR 7.8(c)(2).

When transferring a motion pursuant to CrR 7.8(c)(2), the court should “expressly

state[] the basis for the transfer.” Ruiz-Sanabria, 184 Wn.2d at 638.

When the trial court “does not transfer the motion to the Court of Appeals, it

shall enter an order fixing a time and place for hearing and directing the adverse

10
State v. Waller (Anthony Thomas), No. 98326-7

party to appear and show cause why the relief asked for should not be granted.”

CrR 7.8(c)(3).

CrR 7.8 itself does not specify what “relief” may be available. It references

“vacation” only once: in the heading for subsection (c) titled “Procedure on

Vacation of Judgment.” But we have held that “[u]nder CrR 7.8(b), a judgment

may be modified or vacated.” State v. Hardesty, 129 Wn.2d 303, 315, 915 P.2d

1080 (1996). CrR 7.8 provides the superior court with “jurisdiction to amend a

judgment to correct an erroneous sentence, where justice requires.” Id. (citing

State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989)). Thus, parties frequently

style CrR 7.8 motions as motions to “vacate” judgment. See, e.g., In re Pers.

Restraint of Bailey, 141 Wn.2d 20, 22, 1 P.3d 1120 (2000); In re Pers. Restraint of

Erhart, 183 Wn.2d 144, 146, 351 P.3d 137 (2015).

Vacation of judgment is exactly what Waller sought in this case. He asked

the superior court to “vacate the judgment, and set a resentencing hearing.” 2 CP at

40. The next question is whether the superior court granted that relief. 8

8
The Court of Appeals relied on the “plain and unambiguous language of CrR
7.8(b)” that “‘[a] motion under section (b) does not affect the finality of the judgment or
suspend its operation.’” Waller, 12 Wn. App. 2d at 536-37 (quoting CrR 7.8(b)). This
language makes clear that the filing of a motion does not affect the finality of a judgment.
But the superior court certainly has authority to affect finality in its ruling on a CrR
7.8(b) motion. Any other interpretation would render CrR 7.8 entirely toothless.
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State v. Waller (Anthony Thomas), No. 98326-7

B. THE SUPERIOR COURT VACATED THE JUDGMENT IN THIS CASE BECAUSE IT
GRANTED A MOTION SEEKING VACATION OF THAT JUDGMENT

In a series of orders on Waller’s CrR 7.8 motion, the superior court vacated

its transfer of Waller’s motion to the Court of Appeals, retained jurisdiction over

that motion, and scheduled a hearing for resentencing—not for argument about

whether it should actually set a resentencing hearing. Later, the court clarified that

it had “ultimately granted” the CrR 7.8 motion. 3 CP at 145. As discussed above,

that was a motion to vacate. This language and context compels us to conclude

that the trial court granted Waller’s CrR 7.8 motion and the relief he had requested

in that motion: vacation of the judgment.

Controlling case law permits no other interpretation of those orders. It

makes clear that the judgment “in a criminal case means sentence” and the

“sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212, 58 S. Ct.

164, 82 L. Ed. 204 (1937). So if a court vacates the sentence, it vacates the

judgment.

We acknowledge that we have also stated that a judgment may not be

“vacated by implication.” Wagner v. N. Life Ins. Co., 70 Wash. 210, 212, 126 P.

434 (1912). But a court need not speak the magic words, “this judgment is

vacated,” either. For example, an appellate court that “reverses a sentence . . .

effectively vacates the judgment,” even if it does not use the word “vacate” in its

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State v. Waller (Anthony Thomas), No. 98326-7

opinion. In re Per. Restraint of Skylstad, 160 Wn.2d 944, 954, 162 P.3d 413

(2007). After the appellate court reversed Skylstad’s sentence “there was no valid

judgment.” Id. Although the appellate court on Skylstad’s direct appeal had not

stated that it “vacated” Skylstad’s sentence, State v. Skylstad,9 until Skylstad had

been resentenced, there was “no judgment for Skylstad to collaterally attack”

because his judgment had been vacated. 160 Wn.2d at 954. Granting a CrR 7.8

motion similarly vacates the old sentence until the defendant can be resentenced.

Waller suggests that a different decision limits this aspect of Skylstad: State

v. Kilgore, 167 Wn.2d 28, 216 P.3d 393 (2009). In Kilgore, this court ruled that if

an appellate court reverses some convictions but affirms others, and the trial court

“exercises no discretion on remand,” then the “‘portion of the judgment and

sentence that was correct and valid at the time it was pronounced’ is unaffected.”

Id. at 37 (citing State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993), and

quoting In re Pers. Restraint of Carle, 93 Wn.2d 31, 34, 604 P.2d 1293 (1980)).

Thus, reversal of some counts may not always “vacate” the entire judgment. But

Kilgore explicitly recognized that “[u]ntil the trial court exercised its independent

judgment by imposing a new judgment and sentence, Skylstad had no sentence,

effectively vacating the judgment.” Id. at 36 n.5 (emphasis added) (citing Skylstad,

9
118 Wn. App. 1062 (2003), 2003 WL 22293605.
13
State v. Waller (Anthony Thomas), No. 98326-7

160 Wn.2d at 954). This case is more like Skylstad than Kilgore: the superior

court would have exercised “independent judgment” at Waller’s new sentencing

hearing; hence, until it did so, Waller, like Skylstad, had “no sentence.” Id. His

sentence had been vacated.

The superior court’s orders confirm this. After entry of its initial orders

transferring the case to the Court of Appeals, the superior court granted Waller’s

motion for reconsideration and took the case back. Its order granting

reconsideration stated that it “intended to order a resentencing hearing”—

something it could not do unless it had vacated Waller’s existing sentence. 2 CP at

124. The superior court later clarified that it had, in a previous order, “ultimately

granted” Waller’s CrR 7.8 motion to vacate. 3 CP at 145.

The confusion over whether the superior court really granted Waller’s

motion to vacate might have arisen because the superior court did not follow CrR

7.8(c)(3)’s directive to schedule a show cause hearing on Waller’s motion before

granting it. Holding such a hearing and issuing a decision after the opportunity to

consider arguments made at that hearing may have provided additional clarity

about whether the superior court was, indeed, granting the CrR 7.8 motion to

vacate. But the intent and effect of the trial court’s orders was nevertheless clear:

the trial court intended to, and did, grant Waller’s CrR 7.8 motion to vacate.

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State v. Waller (Anthony Thomas), No. 98326-7

We interpret the superior court’s order as having granted Waller’s CrR 7.8

motion and having “vacated” Waller’s sentence. Accordingly, RAP 2.2(b)(3)

gives the State the right to appeal that order without waiting for the resentencing

hearing.

III. CRR 7.8(C) REQUIRES THE SUPERIOR COURT TO HOLD A SHOW CAUSE
HEARING AND RULE ON THE PENDING CRR 7.8 MOTION BEFORE PROCEEDING
TO RESENTENCING

CrR 7.8(c)(2) spells out when the superior court should transfer a CrR 7.8

motion to the Court of Appeals for consideration as a PRP and when the superior

court should retain such a motion for decision instead. See Ruiz-Sanabria, 184

Wn.2d at 636-38. If the superior court “does not transfer the motion to the Court

of Appeals, it shall enter an order fixing a time and place for hearing and directing

the adverse party to appear and show cause why the relief asked for should not be

granted.” CrR 7.8(c)(3). But after vacating its own transfer order in this case, the

superior court skipped the show cause hearing and immediately ordered a

resentencing hearing. An order coming out of that show cause hearing might have

more clearly stated whether or not “the relief asked for” in the CrR 7.8 motion was

granted—and, thus, whether the judgment had been vacated.

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CONCLUSION

A trial court’s order granting a CrR 7.8(b) motion to vacate a judgment and

sentence and setting a resentencing hearing vacates that judgment and sentence.

Accordingly, the State may appeal such an order under RAP 2.2(b)(3).

We therefore reverse the Court of Appeals. We note that in January 2020,

after receiving permission from the Court of Appeals, the superior court vacated its

June 2018 orders that had vacated its decision to transfer Waller’s motion to the

Court of Appeals for consideration as a PRP. 5 CP at 166. Thus, per the superior

court’s revitalized transfer order, 2 CP at 75-76, we remand to the Court of

Appeals for further proceedings consistent with this opinion.

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WE CONCUR:

17