### FILED SEPTEMBER 20, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter ofthe Postsentence Review ) of ) ) ANITAJ. RADY. ) ) No. 33816-9-111 UNPUBLISHED OPINION SIDDOWAY, J. -TheDepartment ofCorrections petitions for postsentence review ofthe sentence imposed onAnita Rady in 

### State v. Rady, Garfield County Superior Court
cause no. 15-1-00002-4, which it contends violates RCW 9.94A.589(1)(c). We agree and remandthe case with directions to correctthe sentence and to permitMs. Rady to withdraw her guilty plea should she elect to do so. FACTS AND PROCEDURAL BACKGROUND In July 2015, Anita Rady pleaded guilty to eight crimes, including two counts each oftheft ofa firearm and unlawful possession ofa firearm in the second degree. In accordance with herplea agreementwith the State, thejudgment and sentenceprovides that all sentences run concurrently except for the two sentences for theft ofa firearm, which run consecutively. The Department determined in August 2015 thatthe sentence violated RCW 9.94A.589(l)(c)'s requirementthat consecutive sentences be imposed for each conviction for unlawful possession ofa firearm in the first or second degree and for each theft ofaNo. 33816-9-III In re Postsentence Review of Rady
firearm conviction. It soughtto have the Garfield County prosecutor request amendment ofthe sentence. When its efforts proved unsuccessful, it filed a petition with this court for review pursuant to RCW 9.94A.585(7). Ms. Rady's response to the petition agrees that her sentence is illegal. She argues that its illegality was overlooked by the parties and the court, she was not informed that a direct consequence oftheplea could be a finding ofillegality and court-ordered correction, and herpleawas therefore involuntary, creating a manifest injustice. She asks
us to remand the matterto the superior courtto allow her to withdraw her guilty plea. The State responds that it did not seek to correctthe sentence because had it done so, Ms. Rady would have grounds for withdrawing her guilty plea. It argues that a sentencing court may depart from a statutory requirement that sentences be served consecutively by imposing an exceptional sentence. While conceding that Ms. Rady's judgment and sentence does not purportto be an exceptional sentence, it argues that the form ofthejudgment and sentence is not fatal because it is apparent that an exceptional sentence is whatthe parties and the court intended. ANALYSIS Under RCW 9.94A.585(7), the Department may petition for review ofa sentence committing an offenderto the custody orjurisdiction ofthe Department. "The review shall be limited to errors oflaw." Id.

2No. 33816-9-111 In re Postsentence Review of Rady
All parties agree that under RCW 9.94A.589(l)(c) sentences for theft ofa firearm and unlawful possession ofa firearm must run consecutively. Yet Ms. Rady's sentence provides that herterms ofconfinement for unlawful possession ofa firearm shall be served concurrently with those for other counts. The sentence, being contrary to law, cannot be enforced. State v. Barber, 170 Wn.2d 854, 870, 248 P.3d 494 (2011). A sentencing court may depart from RCW 9.94A.589(l)(c)'s requirements for consecutive sentencing by imposing an exceptional sentence. RCW 9.94A.535 ("A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences
are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section."). In imposing an exceptional sentence, the court must make findings offactjustifying a departure from the standard range. Id. Although such findings are lacking here, the State argues that their absence is not fatal, citingIn re Pers. Restraint of Finstad, 177 Wn.2d 501,301 P.3d 450 (2013). Finstadwas a collateral attack on fourjudgments and sentences entered as the result ofa plea agreement, which illegally imposed consecutive sentences for two counts required by statute to be served concurrently. The petitioner argued that thejudgments and sentences were facially invalid and sought an orderrequiring them to be corrected to reduce his period oftotal confinement. The Supreme Court agreed they were illegal, thereby entitling Mr. Finstad to review under RCW 10.73.090, but held that overcoming thatprocedural bar to collateral relief"by itself, does not entitle a petitionerto relief. A 3No. 33816-9-111 In re Postsentence Review of Rady petitionermust also meetthe substantive common law requirements articulated in [ In re Pers. Restrainto!J Cook, 114 Wn.2d [802, 810-12, 792 P.2d 506 (1990)]." Finstad, 177 Wn.2d at 508. Because a trial court's failure to make findings supporting an exceptional sentence is nonconstitutional error, Mr. Finstadwas required to establish he had suffered from a complete miscarriage of justice and show actual and substantial prejudice flowing from that error. Id. Lookingbeyondthe four comers ofthejudgments and sentences, the court held thatMr. Finstad could not showthatholding himto his plea agreement would result in actual and substantial prejudice. Id. at 509. The Department's right to review ofMs. Rady's sentence is not subjectto the
same standard. Rather, ourreview is "limitedto errors oflaw." RCW 9.94A.585(7). Finstad is inapposite. Turningto Ms. Rady's requested relief, it is undisputed she was misinformed as to
a direct consequence ofherplea, rendering herplea invalid. Barber, 170 Wn.2d at 858 (citingState v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003)). "Wherethe parties have agreed to a sentence that is contrary to law, the defendant may electto withdraw [her] plea." Id. at 873. We remandto the Grant County Superior Court, directing it to correct the sentence and to permit Ms. Rady to withdrawherplea ofguilty to the eight counts charged in
cause no. 15-1-00002-4 should she electto do so.

4No. 33816-9-111 In re Postsentence Review of Rady
A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# ?zcllow~.}-- siddoway, 

### J. WE CONCUR:

Pennell, J.



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