### NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinionsthat are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent courtorders. For example, a court may issue an order makingsubstantive changesto a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (forstyle, grammar,citation,format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions:the Washington Reports 2d and the Washington Appellate Reports. An opinion in theofficial reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of thecourt’s opinion is found in the advance sheets and the bound volumes of theofficial reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports

. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports,see https://www.courts.wa.gov/opinions and the information that is linked there.IN OLIIIICI OI'PICI lll'llliMEcoum81lllllOilWIIWI
... iii
... IIJOftftllllll

... DATE 

### JAN 

## 1 2 2017 

# ·**1MM~~keC9**

# · This opinion was flied for record at 

# R 00

# OJ~ onJ

# 0!'\ 121

# ?JJil 

# cS{g?r--c:;<_ 

# CL-- SUSAN L. CARLSON SUPREME COURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,
v.

GUADALUPE SOLIS-DIAZ, JR., Petitioner. NO. 

### 9 3 2 7 9-4

ENBANC

Filed: 

### JAN 

## 1 2 2017

PER CURIAM-Guadalupe Solis-Diaz Jr. seeks review of a Court of Appeals decision vacating his sentence a second time and remanding for resentencing but declining to disqualify the sentencing judge. 

### State v. Solis-Diaz, 194 Wn. App. 129, 376 P.3d 458 (2016). We grant review and reverse to the extent the Court of Appeals declined to disqualify the sentencingjudge. In 2007, 16-year-old Solis-Diaz

was tried as an adult in connection with a drive-by shooting in Centralia and was convicted ofsix counts offirst degree assault, each with a firearm enhancement; one count ofdrive-by shooting; and one count ofsecond degree unlawful possession ofa firearm. Judge Nelson Hunt imposed a standard range sentence of 1,111 months, or 92.6 years, ofimprisonment. After hisjudgment and sentence was affirmed on directNo. 93279-4 PAGE2 appeal, Solis-Diaz filed a personal restraint petition challenging his sentence. The Court ofAppeals ordered resentencing on the basis that trial counsel was ineffective in failing to obtain a sentencing report and properly inform the trial court that SolisDiaz's case had been automatically declined to adult court as a result ofhis age and the natnre ofthe charges. See RCW 13.04.030(1)(e)(v)(A) (offenders 16 or 17 years old automatically tried in adult court for serious violent offenses). Atresentencing, againbefore Judge Htmt, the State notedrecent changes in the law that allowed thejudge to consider an offender's youth in deciding whether to impose an exceptional downward sentence, and it asked Judge Hunt to conduct an



# . individualized determination of the propriety of an exceptional downward sentence for Solis-Diaz. But ultimately the State urged thejudge to impose the same standard range sentence of 1,111 months. Solis-Diaz requested an exceptional downward sentence of 180 months (15 years). Judge Hunt again imposed a prison sentence of 1,111 months. In doing so, he commented on the Court of Appeals' holding that defense counsel had been ineffective in connection with the original sentencing. He found it insulting for the court to postulate that he would be "so ignorant, lazy, or stupid as to not know or inquire" why a teenage offender was in adult court, and that it was particularly insulting that the court presupposed that he did not "review the file or was so behind in the law not to know

... about the automatic adultjurisdiction" in Washington, and

was even "ludicrous" given thejudge's years practicing as a prosecutor and defense attorney and his work onjuvenilejustice issues. Verbatim Report ofProceedings at 34-35. Judge Htmt defended Solis-Diaz's attorney, opining that the attorney had not been ineffective in failing to obtain a presentence report. And he defended counsel's failure to call Solis-Diaz's friends and family to testify at sentencing, believing that "that sort oftestimony is totally ineffective" and "not a sufficient basis on which toNo. 93279-4 PAGE3
fashion a mitigated sentence in any event." Id. at 36. Judge Hunt opined that the sentence he hadpreviously imposed was "precisely what the Legislature intended" in the circumstances ofthis case and the only result that could withstand legal analysis when considering that there were no substantial and compelling reasons to deviate from the standardrange.Id. at 37. Further, after reviewing the history ofcriminal sentencing in Washington and the circumstances leading to the automatic adultjurisdiction statute, Judge Hunt commented that the legislature clearly intended severe sentencing for older teens who commit serious violent crimes, especiallywhen multiple crimes are committed with a firearm, as occurred here. He said that he hadreviewed the psychologist's report, and thathe hadbeen aware at the original sentencing that he could impose an exceptional downward sentence ifthere were substantial and compellingreasons for doing so. But he expressed his belief that the 1,111-month sentence served penological and legislative goals and deterred others from committing a similar crime. To bolster this point, he observed that there had been many gang-related crimes involving use of firearms in the area, but that "from the day [Solis-Diaz's] sentence was pronounced, there have been no similar crimes in Centralia" and that gang-related violence with firearms had been "virtually eliminated," suggesting the sentence he originally imposed had had deterrent effect. Id. at 43-44. Judge Hunt expressed his view that Solis-Diaz's assaults were not the result of youthful, impetuous recklessness, but rather the evidence showed they were done with premeditation and intent to inflict great bodily harm. Thejudge concluded that he had no legal authority to impose an exceptional downward sentence to mitigate the effect ofthe multiple offensepolicy or
on the basis ofSolis-Diaz's age. He emphasizedthat had defense counselprovidedthe additional information thatthe Court ofAppeals identifiedin its opinion, he wouldnot have imposed a mitigated sentence, noting that he was already aware of thatNo. 93279-4 PAGE4
information and "imposed the sentence I did being fully informed of the legal consequences."Id. at 53. Solis-Diaz appealed, and the Court ofAppeals again vacated the sentence and remanded for resentencing, holding that Judge Hunt erred in not considering an exceptional sentence below the standard range on the basis ofSolis-Diaz's youth and to mitigate the consecutive sentences required under the multiple offense policy. Solis-Diaz, 194 Wn. App. at 132. Itdirected the trial court onresentencing to conduct

a meaningful, individualized inquiry into whether either factor should mitigate SolisDiaz's sentence in light ofrecent case law. Id.; see State v. O'Dell, 183 Wn.2d 680, 358 P.3d 359 (2015) (youth as factor); State v. Graham, 181 Wn.2d 878, 337 P.3d 319 (2014) (multiple offense policy as factor). But the court declined Solis-Diaz's request to disqualify Judge Hunt from presiding overresentencing, noting that he could move to disqualifythejudgeonremand. Solis-Diaz, 194Wn. App. at 132. Solis-Diaz seeks this court's review, disputing the refusal ofthe Court of Appeals to disqualify Judge Htmt. Under the state and federal constitutions, a criminal defendant has the right to be tried and sentenced by an impartial court. U.S. CONST. amends. VI, XIV; WASI-L CONST. art. I, § 22. Pursuant to the appearance offairness doctrine, ajudicial proceeding is valid ifa reasonably prudent, disinterested observer would conclude thatthe parties received a fair, impartial, and neutral hearing. State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). The law requires more than an impartialjudge; it requires that thejudge also appear to be impartial. Id. The party asserting a violation of the appearance of fairness must show a judge's actual or potential bias. Id. at 187-88. The test for determining whether thejudge'simpartiality mightreasonablybequestioned is an objectivetest that assumes areasonable observer knows and understands all the relevant facts. Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995).No. 93279-4 PAGES 

### Generally, aparty seeking a newjudge files amotion for recusal in the trial court, which allows the challenged judge to evaluate the grounds for recusal and permits the parties to develop a record adequate to determine whether the judge's impartiality might reasonably be questioned. State v. McEnroe, 

### 181 Wn.2d 375, 386, 333 P.3d 402 (2014). But aparty may seek reassignment for the first time on appeal, which is usually done 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. 

### at 387 (footnotes omitted). The remedy ofreassignment on appeal is available only in limited circumstances; even where a trial judge has expressed a strong opinion as to the matter appealed, reassignment is generally not available as an appellate remedy ifan appellate opinion offers sufficient guidance to effectively limit trial court discretion on remand. Id. 

### Erroneous rulings generally are properly grounds for appeal, not for recusal. Id. 

### at 388. But where review offacts in the record shows the judge's impartiality might reasonably be questioned, the appellate court should remand the matterto anotherjudge. See Sherman, 

### 128 Wn.2d at206. Judge Htmt has extensive experience as a prosecutor and defense counsel and specific experience injuvenilejustice. The record reflects both his knowledge of Washington law relating to sentencing generally and his knowledge of exceptional sentences for juveniles. But the record also reflects Judge Hunt's frustration and unhappiness at the Court ofAppeals requiring him to address anew whether SolisDiaz should be considered for an exceptional downward sentence on the basis ofhis age or the multiple offense policy. The judge's remarks at the first resentencing strongly suggest that, regardless of the information presented in mitigation, he is committed to the original standard range sentence of 1,111 months. Concern about whether on remand Judge Hunt could exercise discretion and consider mitigatingNo. 93279-4 PAGE6
evidence with an open mind is heightened by thejudge's statement that the length of the sentence he imposed has had a deterrent effect on incidents ofgang-related gun violence in Centralia. These facts indicate Judge Hunt's impartiality might reasonably be questioned due to concerns about his ability to neutrally consider possible mitigating evidence that Solis-Diaz may present. In sum, Judge Hunt will be asked to exercise discretion on remand regarding the propriety of a sentence he has twice imposed, and the record reflects that he not only has strong opinions on sentencing generally and juvenile sentencing in particular, but also suggests he has already reached a firm conclusion about the propriety ofa mitigated sentence in this case and may not be amenable to considering mitigating evidence with an open mind. These

arepreciselycircumstancesthatjustifyremand ofthe matter to anotherjudge. We reverse the Court of Appeals to the extent it declined to disqualify Judge Hunt from presiding over Solis-Diaz's resentencing and remand to the superior courtto holdresentencing proceedingsbefore a differentjudge.