### FILED SEPTEMBER 27, 

### 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 STATE OF WASHINGTON, Respondent,


### v. ROBERTLEE YATES, 

### JR., Appellant. ) 

### ) ) ) ) ) ) ) ) 

### No. 33703-1-111

UNPUBLISHED OPINION

PENNELL, 

### J. -RobertYates has filed a successive collateral attack ofsentences imposed onhim for first degree murder. Theproceduralposture ofthis case divests us of jurisdiction. Nevertheless, becauseMr. Yates's claims are potentially meritorious, the matter is transferred to the Supreme Court for further review. 

### FACTS In 2000, Mr. Yates pleaded guilty in Spokane County Superior Courtto 13 counts offirst degree murder and one count ofattempted first degree murder. Hereceived a sentence of4,900 months Gust over408 years). 1 

### Atissue in this case are the sentences

1

### In 2002, Mr. Yates was convicted oftwo counts ofaggravated first degree murder inPierce County Superior Court and sentencedto death. 

### In re Pers. Restraintof Yates, 180 Wn.2d 33, 35-36, 321 P.3d 1195 (2014).No. 33703-1-111 

### State v. Yates
for two counts offirst degree murder as charged in counts I and II. 

### (See App. Br. at 3-4) Those crimes occurred in 1975, priorto the Sentencing Reform Act of 1981, chapter 9.94A RCW. 

### In re Pers. Restraint of Yates, 180 Wn.2d 33, 36, 321 P.3d 1195 (2014). The sentencing court listed the sentences for counts I and II each as 20 years. The sentences for all counts are to be served consecutively. In 2012, Mr. Yates filed apersonal restraint petition (PRP) in the Washington Supreme Court. He argued hisjudgment and sentence was facially invalidbecause the 20-year sentences for counts I and II exceededthe sentencing court's legal authority underthe law, whichrequired indeterminate life sentences (with a minimum of20 years) for those counts. Finding the authority for determining Mr. Yates's maximum sentence rested with the Indeterminate Sentencing ReviewBoard and not with the sentencing court, the Supreme Court agreed with Mr. Yates, holding hisjudgment and sentence to be facially invalid. 

### Yates, 180 Wn.2d at 39. However, the 

### Yates court notedMr. Yates did not seek resentencing; rather, he soughtto withdraw his allegedly involuntary guilty plea. 

### Id. at 39; 

### id. at 51 (McCloud, J., concurring). By alleging misinformation rendered his plea involuntary, Mr. Yates had to show actual and substantial prejudice. 

### Id. at 40-41 (majority opinion). Because there was no practical effect resulting from the error-Mr. Yates agreed to a sentence of408 years when he should have been sentencedto a
2No. 33703-1-III 

### State v. 

### Yates
minimum of408 years with a potential expansion to a life sentence-the court dismissed Mr. Yates'spetition. 

### Id. at 41-42. Following that dismissal, Mr. Yates filed a CrR7.8(b) motionto vacatejudgment and for resentencing on counts I and II, again contendingthejudgment and sentence to be facially invalid because ofthe 20-year determinate sentences. Relying on

### In re Pers. Restraint of Smalls, 182 Wn. App. 381,335 P.3d 949 (2014), the superior court dismissed Mr. Yates's motion, reasoning he had not demonstrated any actual prejudice. Mr. Yates appeals. ANALYSIS Mr. Yates contends hisjudgment and sentence is facially invalid, thus necessitating resentencing. 2 Mr. Yates's legal claim has merit. While the sentencing court only had authority to impose a 20-yearminimum sentence for counts I and II, it instead imposed a 20-year determinate, ormaximum, sentence. 

### Yates, 180 Wn.2d at 39. The authority for determining the maximum sentence rests with the Indeterminate

2Mr. Yates also filed a statement ofadditional grounds (SAG) in which he alleges sentencing mistakes were made in partbecause ofthe number ofpeople in the courtroom on the day ofsentencing and the "highly emotionally supercharged climate." SAG at 3. Mr. Yates's counsel adequately addressed the need for resentencing due to sentencing mistakes. Additional review ofMr. Yates's SAG concerns is unwarranted. 

### See RAP 10.lO(a). 3No. 33703-1-III 

### State v. Yates Sentencing Review Board. 

### Id. (citing RCW 9.95.011(1)). The law does not allow the sentencing courtto set a determinate sentence as the sentencing court did here. 

### Id. As such, Mr. Yates's sentences on counts I and II were outside ofthe court's statutory authority. 

### Id. Unlike what was true in the context ofMr. Yates'spriorpetition, the success ofthe current collateral attack does not depend on demonstratingprejudice in the practical
sense. 

### See id. at 50-51 (McCloud, J., concurring). An illegal sentence is a fundamental defect that results in a complete miscarriage of justice. 

### See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 876-77, 50 P.3d 618 (2002). No further analysis ofharm is required for relief. 

### Id. To the extentthe decision of

### Smalls, 182 Wn. App. 381, suggests otherwise, it is dicta. The State'sprimary response to Mr. Yates is that his collateral attack mustbe dismissed as successive. While we agree it is successive, dismissal is notrequired. Criminal Rule 7.8(b) expressly states the motion is subjectto RCW 10.73.140, and because the Supreme Court is not bound by RCW 10.73.140's restriction on successive petitions, the proper response from this court is to transferMr. Yates'spetition to the Supreme Court for further review. 

### In re Pers. Restraint of Johnson, 131 Wn.2d 558, 563- 67, 933 P.2d 1019 (1997) (ifa collateral attack might have merit yet is successive, it must
4No. 33703-1-III 

### State v. Yates
be transferred to the Supreme Court).3 CONCLUSION Based onthe foregoing, this matter is transferred to the Supreme Court for appropriate action. A majority ofthe panel has determinedthis opinion will notbeprinted inthe Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Pennell, J. WE CONCUR:


## j

3 Alternatively, the State argues Mr. Yates's CrR7.8(b) motion constitutes an abuse ofthe writ. This argument canbe made to the Supreme Court. As for the State's contention that Mr. Yates's motion was frivolous, the Supreme Court did find thejudgment and sentence facially invalid. The Supreme Courthas approved ofallowingpetitioners to seekresentencing following dismissal ofa PRP where the petitioner sought a differentremedy than resentencing. 

### See In re Pers. Restraint of Snively, 180 Wn.2d 28, 32 n.2, 320 P.3d 1107 (2014). As such, it wouldbe difficult to characterize Mr. Yates's motion as frivolous. 

### 5