FILED
JULY 13, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37588-9-III
Respondent, )
)
v. )
) UNPUBLISHED OPINION
HUGH ALLEN PUTNAM, )
)
Appellant. )
FEARING, J. — Hugh Putnam, pursuant to CrR 7.8(b)(b), seeks early release from
confinement at the Department of Corrections’ (DOC) Coyote Ridge Corrections Center.
Putnam emphasizes his age and medical condition as a basis for release. Although we
sympathize with Putnam’s circumstances, we agree with the superior court that the
judicial branch lacks authority to grant early release. Putnam’s request for relief must be
addressed to the executive branch. We affirm the superior court’s denial of Putnam’s
motion.
FACTS
Appellant Hugh Putnam was born August 2, 1956. Putnam underwent an ostomy
surgery to control ulcerative colitis in 1976 at the age of 19. The surgery resulted in a
No. 37588-9-III
State v. Putnam
stoma, an opening on the abdomen connected to Putnam’s digestive system to allow
waste to exit the body. The opening requires constant medical attention.
On January 14, 2003, the State of Washington charged Hugh Putnam, then age 46,
with two counts of attempted murder while armed with a firearm for firing his gun at two
boys at a Wenatchee park. The State also charged Putnam with four counts of first
degree assault with a firearm, because Putnam also fired a gun in the direction of a couple
visiting the park.
In 2003, a Chelan County jury found Hugh Putnam guilty of two counts of first
degree assault and two counts of second degree assault. The jury returned special
verdicts for each of the convictions finding that Putnam was armed with a firearm for
each count.
The trial court sentenced Putnam to 414 months. In 2004, this court affirmed the
convictions in an unpublished opinion. This court has since denied two personal restraint
petitions filed by Putnam.
In addition to suffering from ulcerative colitis and maintaining a stoma, Putnam
now suffers from type-1 diabetes, mediastinal adenopathy, high blood pressure, and
chronic obstructive pulmonary disease. In 2009, he suffered a stroke.
On November 20, 2019, then age 63, Hugh Putnam filed a clemency petition in
which he requested that the Washington State Clemency and Pardons Board commute his
sentence and permit him to live the rest of his sentence at home where he could care for
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State v. Putnam
his own medical needs. In the petition, Putnam emphasized his age and medical
conditions. Months later the COVID-19 pandemic struck Washington State, the United
States, and the world.
PROCEDURE
On April 16, 2020, Hugh Putnam, still 63 years old, filed, with the superior court,
an emergency motion for early release from Coyote Ridge Corrections Center pending
the outcome of his clemency petition before the Clemency and Pardons Board. In the
motion, he emphasized his medical conditions. Putnam contended that, because of the
coronavirus pandemic, he faces a grave risk of death because of those health conditions
and his age. He alleged a violation of his right to equal protection and rights shielding
him from cruel and unusual punishment. Putnam mentioned that the Clemency and
Pardons Board would conduct a hearing in the fall of 2020. He asked, however, that the
superior court grant him release pending his clemency hearing or a medical furlough until
an effective vaccine is developed for COVID-19.
In response to Hugh Putnam’s motion for release, the State of Washington
responded that Hugh Putnam cited no law that authorized the superior court to entertain
his motion for early release based on medical grounds. The State argued that the only
court rule allowing relief from a criminal judgment and sentence, CrR 7.8, did not
authorize granting of Putnam’s motion. The State contended that, after entry of a
judgment and sentence, the sentencing court’s jurisdiction over the offender ends. The
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State v. Putnam
State also challenged the merits of Putnam’s request for release. After the State’s
response to his motion, Hugh Putnam cited CrR 7.8(b)(2), which addresses newly
discovered evidence, and CrR 7.8(b)(5), which mentions any other reasons justifying
relief, as the authority under which the trial court could grant him early release.
On May 1, 2020, the superior court conducted a hearing on Hugh Putnam’s
motion for early release. The trial court questioned whether it held authority to change a
sentence entered eighteen years earlier. Defense counsel argued that CrR 7.8 bestowed
such authority on the superior court. Defense counsel also informed the court that DOC
was currently considering the potential of an extraordinary medical placement for
Putnam. Otherwise, because of the violent nature of Putnam’s offense, he did not qualify
for any other early release programs adopted by DOC for the pandemic. Defense counsel
informed the court that three staff members at Coyote Ridge Corrections Center recently
tested positive for COVID-19.
During the motion hearing, the State challenged application of the newly
discovered evidence rule, CrR 7.8(b)(2), because the rule applied to evidence related to
the conviction not to pandemics occurring during administration of the sentence.
According to the State, only evidence impacting the guilt or innocence of the offender
qualified as newly discovered evidence under the rule’s subsection. The State also
argued that CrR 7.8(b)(5) was not so broad as to grant the court jurisdiction of a request
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for early release. Instead, according to the State, CrR 7.8(b)(5) only applied to errors or
defects in the trial or sentencing process.
The superior court agreed with the State and denied Hugh Putnam’s motion for
early release because the clemency board, not the court, possessed the authority to grant
the release. The superior court also reasoned that CrR 7.8(b)(5) does not apply because
COVID-19 and Putnam’s state of health are not “‘any other reason justifying relief from
the judgment.’” Clerk’s Papers at 403.
LAW AND ANALYSIS
On appeal, Hugh Putnam, now age 64, and amici curiae sketch, in their respective
briefs, the danger of the COVID-19 pandemic and its impact on inmates nationally, in
Washington State, and Coyote Ridge Detention Center, Putnam’s locus of incarceration.
The literature presented emphasizes the danger to older inmates and those with
preexisting ailments. We readily agree with the literature presented by Putnam and amici
and assume the danger from the pandemic continues despite the development of
vaccinations. Nevertheless, we conclude that the judicial branch lacks authority to
release one on medical or epidemiology grounds. One Washington statute removes from
the sentencing court the ability to grant community custody or early release for an
offender. No court rule grants such authority. Putnam must present his cause to the
executive branch of Washington State government.
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RCW 9.94A.728 controls Hugh Putnam’s appeal. The statute declares, in part:
(1) No person serving a sentence imposed pursuant to this chapter
and committed to the custody of the department [of corrections] shall leave
the confines of the correctional facility or be released prior to the expiration
of the sentence except as follows:
....
(c)(i) The secretary may authorize an extraordinary medical
placement for an offender when all of the following conditions exist:
(A) The offender has a medical condition that is serious and is
expected to require costly care or treatment;
(B) The offender poses a low risk to the community because he or
she is currently physically incapacitated due to age or the medical condition
or is expected to be so at the time of release; and
(C) It is expected that granting the extraordinary medical placement
will result in a cost savings to the state.
Note that the statute only authorizes the secretary of DOC to grant a medical release.
On April 15, 2020, as a result of the pandemic and based on his emergency
powers, Washington Governor Jay Inslee allowed for the early release of offenders who
did not commit a violent offense. Proclamation by Governor Jay Inslee, No. 20-50
(Wash. Apr. 15, 2020), https://www.governor.wa.gov/sites/default/files/proclamations/
20-50%20-%20COVID-19%20Reducing%20Prison%20Population.pdf, related to the
COVID-19 State of Emergency. Putnam committed a violent offense.
Before the superior court, Hugh Putnam, despite RCW 9.94A.728, argued that
CrR 7.8(b) (2) and (5) authorized the superior court to grant him early release due to the
combination of COVID-19, his age, and his medical conditions. This rule declares in
pertinent part:
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State v. Putnam
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud; etc. On motion and upon such terms as are just, the court
may relieve a party from a final judgment, order, or proceeding for the
following reasons:
....
(2) Newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under rule 7.5;
....
(5) Any other reason justifying relief from the operation of the
judgment.
(Boldface omitted.) On appeal, Putnam advances only subsection (5). He contends that
trial courts retain the power to revisit sentences imposed on medically vulnerable
individuals due to the unforeseen circumstance of a worldwide pandemic. The State
responds that a trial court may grant relief under subsection (5) only when a judgment is
invalid or the imposed sentence may not be executed as conceived by the court. We
agree with the State.
On entry of a final judgment and sentence of imprisonment for longer than one
year, legal authority over the accused passes by operation of law to DOC and the
Washington State Clemency and Pardons Board, and those agencies of the executive
branch bear full responsibility for executing the judgment and sentence or granting parole
pursuant to statutes. State v. Hale, 94 Wn. App. 46, 54, 971 P.3d 88 (1999); January v.
Porter, 75 Wn.2d 768, 773-74, 453 P.2d 876 (1969). The Washington State Supreme
Court has emphasized this transfer of jurisdiction. Under Washington’s system of
punishment, the judicial process does not extend to the granting or denial of parole.
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January v. Porter, 75 Wn.2d 768, 773. The judiciary’s functions ends with either a
verdict of acquittal or the final entry of a judgment and sentence. January v. Porter, 75
Wn.2d at 773. The courts have long recognized this division of power. January v.
Porter, 75 Wn.2d at 774.
Notwithstanding this transfer of jurisdiction from the judicial to the executive
branch, final judgments in both criminal and civil cases may be vacated or altered by the
sentencing court in those limited circumstances when the interests of justice most
urgently require. State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132 (1989) (citing RCW
9.94A.150, RCW 9.94A.260, CrR 7.8(b), CR 60(b)). Nevertheless, relief under CrR
7.8(b)(5) is limited to extraordinary circumstances not covered by any other section of the
CrR 7.8. State v. Smith, 159 Wn. App. 694, 700, 247 P.3d 775 (2011). An extraordinary
circumstance includes “fundamental and substantial irregularities in the court’s
proceedings or irregularities extraneous to the court’s action.” State v. Smith, 159 Wn.
App. at 700.
The limited number of decisions in which a Washington court has granted relief
under CrR 7.8(b)(5) involve either a defect with the judgment and sentence or an
inconsistency or inability for the sentence to be served as conceived by the sentencing
court. State v. Klump, 80 Wn. App. 391, 909 P.2d 317 (1996); State v. Smith, 159 Wn.
App. 694, 247 P.3d 775 (2011). In State v. Klump, the superior court imposed a valid
sentence on Ronald Max Klump, which sentence referred to a previously imposed federal
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sentence. The federal sentence was later reversed. Klump sought relief under
CrR 7.8(b)(5) from his state sentence, and this court granted the relief because the federal
sentence, to which the state sentence referred, was later invalidated. The state sentence
therefore became invalid on its face.
In State v. Smith, 159 Wn. App. 694 (2011), the sentencing court sentenced four
offenders to nine months’ of partial confinement. The county of incarceration then
eliminated its partial confinement program due to budget restraints. The original
sentencing judge concluded that this change in confinement policy constituted an
extraordinary circumstance under CrR 7.8(b)(5). On resentencing, the court shortened
the sentences to six months, which shortening led to the immediate release of the
offenders. This court affirmed because of the unforeseeable circumstance of loss of
county funds for partial confinement at the time of the initial sentencing. The sentencing
judge emphasized that the alternatives to incarceration served an important role in the
sentences he imposed. This court observed that the availability of partial confinement
served as a fundamental underpinning of the judge’s sentencing decision and the change
in county policy undermined the sentencing court’s objective.
In State v. Smith, this court, in dicta, mentioned that the Sentencing Reform Act of
1981 (SRA), ch. 9.94A RCW, did not permit the judicial branch to release an offender
before the expiration of his or her sentence pursuant to RCW 9.94A.728. This court
wrote that, while the effect of the four offenders’ resentencing by the superior court
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included early release, such result constituted an indirect impact of the resentencing and
did not serve as the resentencing court’s basis for the modification. Instead, the
resentencing court imposed a sentence that the court would have initially imposed had the
court known of the subsequent termination of the partial confinement programs. This
court reasoned that, although the SRA prohibits early release by the judicial branch, that
prohibition did not prevent a judge from correcting a sentence based on unforeseen
circumstances.
Hugh Putnam contends that CrR 7.8(b)(5) does not limit relief to a defect in the
underlying conviction or sentence, nor is the rule limited to a sentence that cannot be
executed as conceived. Instead, the resentencing court may, according to Putnam, grant
relief on extraordinary circumstances extraneous to the court’s action that did not exist at
the time of entry of the judgment and sentence. Putnam relies on State v. Cortez, 73 Wn.
App. 838, 871 P.2d 660 (1994).
In State v. Cortez, the trial court granted Jose Cortez’s motion to vacate his
judgment and sentence for possession of a controlled substance. At the time Cortez filed
the motion, he faced deportation proceedings and could not gain relief from deportation
due to his conviction. On appeal, the State argued that the trial court erred in granting the
motion because relief under CrR 7.8(b)(5) was limited to a legal defect relating to the
underlying conviction. The State contended that no legal defect existed, and, therefore,
relief from the operation of the judgment could not be granted. This court agreed that no
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legal defect existed but clarified that, even had one existed, it would constitute an
“irregularity” or “mistake” within the meaning of CrR 7.8(b)(1) rather than an
“extraordinary circumstance” under CrR 7.8(b)(5). State v. Cortez, 73 Wn. App. at 841.
This court then addressed CrR 7.8(b)(5) and ruled that no alleged extraordinary
circumstances existed because the circumstances on which Cortez sought vacation, the
potential for deportation, existed at the time of the sentencing.
Hugh Putnam emphasizes State v. Cortez’s mention of conditions existing at the
time of sentencing and then highlights that his sentencing court never expected or
considered the circumstances of a pandemic wreaking havoc in the prison system and
threating the life of one of Putnam’s age and medical condition. Nevertheless, Putnam
fails to show an exceptional circumstance that undermines his specific sentence and
judgment as opposed to extraordinary circumstances that impact Washington’s
administration of justice and punishment system as a whole. All offenders under DOC
incarceration face threats due to the coronavirus and some of the offenders are as old as
Putnam and have medical conditions that render them susceptible to the pandemic.
In State v. Klump, the sentence could not be completed because of its invalidity.
In State v. Smith, the sentence could not be effectuated because the county terminated the
partial confinement program. Hugh Putnam’s judgment and sentence remains valid, and
DOC may still administer the sentence.
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CONCLUSION
We affirm the superior court’s denial of Hugh Putnam’s CrR 7.8 motion for early
release from incarceration.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Pennell, C.J.
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