FILED 

SEPTEMBER 20, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division Ill 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

In the Matter of the Postsentence Review ) 

of ) 

) 

ANITAJ. RADY. ) 

) 

No. 33816-9-111 

UNPUBLISHED OPINION 

SIDDOWAY, J. -The Department of Corrections petitions for postsentence review 

of the sentence imposed on Anita 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 

remand the case with directions to correct the sentence and to permit Ms. 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 

of theft of a firearm and unlawful possession of a firearm in the second degree. In 

accordance with her plea agreement with the State, the judgment and sentence provides 

that all sentences run concurrently except for the two sentences for theft of a firearm, 

which run consecutively. 

The Department determined in August 2015 that the sentence violated RCW 

9.94A.589(l)(c)'s requirement that consecutive sentences be imposed for each conviction 

for unlawful possession of a firearm in the first or second degree and for each theft of a 
No. 33816-9-III 

In re Postsentence Review of Rady 

firearm conviction. It sought to have the Garfield County prosecutor request amendment 

of the 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 of the plea could be a finding of illegality and court-ordered 

correction, and her plea was therefore involuntary, creating a manifest injustice. She asks 

us to remand the matter to the superior court to allow her to withdraw her guilty plea. 

The State responds that it did not seek to correct the 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 purport to be an exceptional sentence, it argues that the 

form of the judgment and sentence is not fatal because it is apparent that an exceptional 

sentence is what the parties and the court intended. 

ANALYSIS 

Under RCW 9.94A.585(7), the Department may petition for review of a sentence 

committing an offender to the custody or jurisdiction of the Department. "The review 

shall be limited to errors of law." Id. 

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No. 33816-9-111 

In re Postsentence Review of Rady 

All parties agree that under RCW 9.94A.589(l)(c) sentences for theft of a firearm 

and unlawful possession of a firearm must run consecutively. Yet Ms. Rady's sentence 

provides that her terms of confinement for unlawful possession of a 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 of fact justifying a departure from the standard range. Id. Although such 

findings are lacking here, the State argues that their absence is not fatal, citing In re Pers. 

Restraint of Finstad, 177 Wn.2d 501,301 P.3d 450 (2013). 

Finstad was a collateral attack on four judgments and sentences entered as the 

result of a plea agreement, which illegally imposed consecutive sentences for two counts 

required by statute to be served concurrently. The petitioner argued that the judgments 

and sentences were facially invalid and sought an order requiring them to be corrected to 

reduce his period of total confinement. The Supreme Court agreed they were illegal, 

thereby entitling Mr. Finstad to review under RCW 10.73.090, but held that overcoming 

that procedural bar to collateral relief "by itself, does not entitle a petitioner to relief. A 

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No. 33816-9-111 

In re Postsentence Review of Rady 

petitioner must also meet the substantive common law requirements articulated in [ In re 

Pers. Restraint o!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. Finstad was required to establish he had suffered 

from a complete miscarriage of justice and show actual and substantial prejudice flowing 

from that error. Id. Looking beyond the four comers of the judgments and sentences, the 

court held that Mr. Finstad could not show that holding him to his plea agreement would 

result in actual and substantial prejudice. Id. at 509. 

The Department's right to review of Ms. Rady's sentence is not subject to the 

same standard. Rather, our review is "limited to errors of law." RCW 9.94A.585(7). 

Finstad is inapposite. 

Turning to Ms. Rady's requested relief, it is undisputed she was misinformed as to 

a direct consequence of her plea, rendering her plea invalid. Barber, 170 Wn.2d at 858 

(citing State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003)). "Where the parties 

have agreed to a sentence that is contrary to law, the defendant may elect to withdraw 

[her] plea." Id. at 873. 

We remand to the Grant County Superior Court, directing it to correct the sentence 

and to permit Ms. Rady to withdraw her plea of guilty to the eight counts charged in 

cause no. 15-1-00002-4 should she elect to do so. 

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No. 33816-9-111 

In re Postsentence Review of Rady 

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. 

?zcllow~.}-- siddoway, J. 

WE CONCUR: 

Pennell, J. 

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