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IN OLIIIICI OI'PICI 

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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 sentencing judge. In 2007, 16-year-old Solis-Diaz 

was tried as an adult in connection with a drive-by shooting in Centralia and was 

convicted of six counts of first degree assault, each with a firearm enhancement; one 

count of drive-by shooting; and one count of second degree unlawful possession of a 

firearm. Judge Nelson Hunt imposed a standard range sentence of 1,111 months, or 

92.6 years, of imprisonment. After his judgment and sentence was affirmed on direct 

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No. 93279-4 PAGE2 

appeal, Solis-Diaz filed a personal restraint petition challenging his sentence. The 

Court of Appeals 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 of his age and 

the natnre of the 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). 

At resentencing, again before Judge Htmt, the State noted recent changes in 

the law that allowed the judge 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 the judge 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 adult jurisdiction" in Washington, and 

was even "ludicrous" given the judge's years practicing as a prosecutor and defense 

attorney and his work on juvenile justice issues. Verbatim Report of Proceedings 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 of testimony is totally ineffective" and "not a sufficient basis on which to 

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No. 93279-4 PAGE3 

fashion a mitigated sentence in any event." Id. at 36. Judge Hunt opined that the 

sentence he had previously imposed was "precisely what the Legislature intended" in 

the circumstances of this case and the only result that could withstand legal analysis 

when considering that there were no substantial and compelling reasons to deviate 

from the standard range.Id. at 37. 

Further, after reviewing the history of criminal sentencing in Washington 

and the circumstances leading to the automatic adult jurisdiction statute, Judge Hunt 

commented that the legislature clearly intended severe sentencing for older teens who 

commit serious violent crimes, especially when multiple crimes are committed with a 

firearm, as occurred here. He said that he had reviewed the psychologist's report, and 

that he had been aware at the original sentencing that he could impose an exceptional 

downward sentence if there were substantial and compelling reasons 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. The judge concluded that he had no legal authority to impose an 

exceptional downward sentence to mitigate the effect of the multiple offense policy or 

on the basis of Solis-Diaz's age. He emphasized that had defense counsel provided the 

additional information that the Court of Appeals identified in its opinion, he would not 

have imposed a mitigated sentence, noting that he was already aware of that 

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No. 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 of Appeals 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 of Solis-Diaz's youth and 

to mitigate the consecutive sentences required under the multiple offense policy. 

Solis-Diaz, 194 Wn. App. at 132. It directed the trial court on resentencing to conduct 

a meaningful, individualized inquiry into whether either factor should mitigate SolisDiaz's sentence in light of recent 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 over resentencing, noting that he could move 

to disqualify the judge on remand. Solis-Diaz, 194 Wn. App. at 132. 

Solis-Diaz seeks this court's review, disputing the refusal of the 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 of fairness 

doctrine, a judicial proceeding is valid if a reasonably prudent, disinterested observer 

would conclude that the 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 

impartial judge; it requires that the judge 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 the judge's impartiality 

might reasonably be questioned is an objective test that assumes a reasonable observer 

knows and understands all the relevant facts. Sherman v. State, 128 Wn.2d 164, 206, 

905 P.2d 355 (1995). 

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No. 93279-4 PAGES 

Generally, a party seeking a new judge files a motion 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 a party 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 of reassignment 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 if an 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 of facts in the record shows 

the judge's impartiality might reasonably be questioned, the appellate court should 

remand the matter to another judge. See Sherman, 128 Wn.2d at 206. 

Judge Htmt has extensive experience as a prosecutor and defense counsel 

and specific experience in juvenile justice. 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 of Appeals requiring him to address anew whether SolisDiaz should be considered for an exceptional downward sentence on the basis of his 

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 mitigating 

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No. 93279-4 PAGE6 

evidence with an open mind is heightened by the judge's statement that the length of 

the sentence he imposed has had a deterrent effect on incidents of gang-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 of a mitigated sentence in this case and 

may not be amenable to considering mitigating evidence with an open mind. These 

are precisely circumstances that justify remand of the matter to another judge. 

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 

court to hold resentencing proceedings before a different judge. 

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