State v. Solis-DiazState v. Solis-Diaz
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¶1 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 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 Solis-Diaz’s case had been automatically declined to adult court as a result of his age and the nature of the charges. See
¶2 At resentencing, again before Judge Hunt, 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).
¶3 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 Hunt defended Solis-Diaz’s attorney, opining that the attorney had not been ineffective in failing to obtain a presen-tence 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 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.
¶4 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
¶5 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 Solis-Diaz’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.
¶6 Solis-Diaz seeks this court’s review, disputing the refusal of the Court of Appeals to disqualify Judge Hunt. 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;
¶7 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.
¶8 Judge
¶9 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.