text:
    STATE of Washington, Petitioner, v. Dean Masao IMOKAWA, Respondent.
    No. 96217-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, January 11, 2019.
    ORDER
   ¶ 1 This case came before the Court on its January 10, 2019, En Banc Conference to consider the petition for review. The Court decided by a majority that the State's petition for review should be granted. The Court decided unanimously that review of the issue raised in the Respondent's answer to the petition for review should be denied.

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the State's petition for review is granted. Review of the issue raised in the Respondent's answer to the petition for review is denied. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


source: Caselaw Access Project

license: Public Domain

text:
    FREEDOM FOUNDATION, Petitioner, v. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 925, Respondent.
    No. 96262-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, January 10, 2019.
    ORDER
   ¶ 1 This case came before the Court on its January 10, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    LOWE'S HOME CENTERS, LLC, Petitioner, v. DEPARTMENT OF REVENUE, State of Washington, Respondent.
    No. 96383-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, February 7, 2019.
    ORDER
   ¶ 1 This case came before the Court on its February 7, 2019, En Banc Conference to consider the petition for review and the Respondent's motion to strike the Petitioner's reply. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review and the motion to strike the Petitioner's reply are both granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court.

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. A.M., Petitioner.
    No. 96354-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, February 7, 2019.
    ORDER
   ¶ 1 This case came before the Court on its February 7, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


author: /s/ Fairhurst, C.J. CHIEF JUSTICE

text:
    STATE of Washington, Respondent, v. Abraham Castorena GONZALEZ, Petitioner.
    No. 96786-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 03, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Alex QUINTANA Jr., Petitioner.
    No. 96785-7
    Supreme Court of Washington.
    April 03, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Michael W. ARNOLD, Petitioner.
    No. 96408-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, February 7, 2019.
    ORDER
   ¶ 1 This case came before the Court on its February 7, 2019, En Banc Conference to consider the petition for review. A majority of the Court voted in favor of the following result:

¶ 2 Now, therefore, it is hereby

¶ 3 ORDERED:

¶ 4 That the petition for review is denied.

For the Court

/s/ Fairhurst, CJ. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Ronald D. BURKE, Respondent.
    No. 96783-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That consideration of the petition for review is stayed pending a final decision in Supreme Court No. 95971-4 - State of Washington v. Theresa Gail Scanlan.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Naziyr YISHMAEL, Petitioner.
    No. 96775-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Emerson Balvino BOLANOS, Petitioner.
    No. 96770-9
    Supreme Court of Washington.
    April 03, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Toni GAMBLE, Petitioner, v. CITY OF SEATTLE, Respondent.
    No. 96767-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Charles PEIFFER, Respondent, v. PRO-CUT CONCRETE CUTTING AND BREAKING, INC., et al., Petitioners.
    No. 96762-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review and the cross-petition for review are both denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Frederick Kenneth HILL III, Petitioner.
    No. 96750-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted on the DNA collection fee issue only. In light of this Court's decision in State of Washington v. David Angel Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), and the 2018 amendment to the legal financial obligations statutes, this case is remanded to the trial court to reconsider the imposition of the requirement to pay the DNA fee.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. David Levice PHILLIPS, Petitioner.
    No. 96779-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied. The State's motion to extend time to file the answer to the petition for review is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. Harold Robert MARQUETTE, Respondent.
    No. 96778-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. John Alan WHITAKER, Petitioner.
    No. 96777-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That consideration of this matter is continued to this Court's May 1, 2019, En Banc Conference. However, if, after additional consideration, the five members of the Department unanimously agree as to the resolution of the matter, an order reflecting such determination will be filed, and the matter will be stricken from the May 1, 2019, En Banc Conference.

/s/ Fairhurst, C.J. CHIEF JUSTICE

For the Court


text:
    IN RE the MARRIAGE OF: Robert P. MCCLESKEY, Respondent, and Kathy A. McClesky, Petitioner.
    No. 96771-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶1 IT IS ORDERED:

¶1 That the petition for review is denied and the Respondent's request for attorney fees for filing an answer to the petition for review is granted. The Respondent is awarded reasonable attorney fees and expenses pursuant to RAP 18.1(j). The amount of the attorney fees and expenses will be determined by the Supreme Court Clerk pursuant to RAP 18.1. Pursuant to RAP 18.1(d), the Respondent should file an affidavit with the Clerk of the Washington State Supreme Court.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jose Pedro LINARES, Petitioner.
    No. 96769-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Windy SCHATZ, Petitioner.
    No. 96768-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. John Martin MALING, Petitioner.
    No. 96763-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    IN RE the DETENTION OF: D. W.
    No. 96761-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Isaias G. RAMOS-RAMIREZ, Petitioner.
    No. 96760-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

IT IS ORDERED:

That consideration of the petition for review is stayed pending a final decision in Supreme Court No. 96313-4 - State of Washington v. Frank A. Wallmuller.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Leslie SPENCER and Tammy S. Blakey, Petitioners, v. BADGLEY MULLINS TURNER, PLLC, et al., Respondents.
    No. 96759-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That both petitions for review are denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    IN RE the DETENTION OF: Joel REIMER
    No. 96748-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Ken V. WU, Petitioner.
    No. 96747-4
    Supreme Court of Washington.
    April 03, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Stephen Palmer DOWDNEY Jr., Petitioner.
    No. 96746-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶ 1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. William ALVAREZ-CALO, Petitioner.
    No. 96743-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied. Counsel for the Petitioner's motion to withdraw as counsel is granted. The Petitioner's pro se omnibus motion is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Charles E. PASCHAL, Petitioner.
    No. 96739-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    OLY-IDA SHOREWOOD HEIGHTS, LLC, et ano., Respondents, v. Andrew L. MAGEE, et ano., Petitioners.
    No. 96734-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied. The Petitioners' other motions are also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    IN RE the DETENTION OF: C.C.
    No. 96732-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 The Petitioner's motion for extension of time to file petition for review is granted. The petition for review is denied. The State's motion to dismiss is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Gail Yvette COLEMAN, Petitioner.
    No. 96727-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶ 1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Kathleen TONNEMACHER, et al., Petitioners, v. Ed MORACHE, et al., Respondents.
    No. 96724-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Scott Lindsay HALFHILL, Petitioner.
    No. 96718-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Kyle J. LIGHT, Petitioner.
    No. 96717-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Tye SHEATS, Petitioner, v. CITY OF EAST WENATCHEE, et al., Respondents.
    No. 96716-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Deshawn Isaiah ANDERSON, Petitioner.
    No. 96712-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, this day of April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶ 2 IT IS ORDERED:

¶ 3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Joel Micheal KREBS, Petitioner.
    No. 96711-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    John DOE, et al., Respondents, v. Donna ZINK, Petitioners.
    No. 96707-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. A.S., Respondent.
    No. 96705-9
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Maria ESPINDOLA, Respondent, v. APPLE KING, A LIMITED LIABILITY COMPANY, Petitioner.
    No. 96696-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 03, 2019
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied. Review of the issues raised in the Respondent's answer to the petition for review is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    JP MORGAN CHASE BANK, Respondent, v. HUY-YING CHEN, et al., Petitioners.
    No. 96608-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied. The Petitioners' motion to disqualify Respondent's counsel and strike the answer to the petition for review is denied. The Petitioners' motion for extension of time to file the reply is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. James Robert VINES, Petitioner.
    No. 96525-1
    Supreme Court of Washington.
    April 03, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 The Petitioner's motion for extension of time to file the petition for review is granted. The petition for review is denied. The Petitioner's motion to supplement the record is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Marriage of Jessica BODGE, Petitioner, v. Brian BODGE, Respondent.
    No. 96682-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 03, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 The Petitioner's motion for extension of time to file a petition for review is denied and therefore the petition for review is dismissed as untimely. The Respondent's requests for attorney fees and for sanctions are also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Fred CANTRELL Jr., et ux., Respondents, v. Samuel VALDEZ, Petitioner.
    No. 96514-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered this matter at its April 2, 2019, Motion Calendar and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the Petitioner's motion to modify the Deputy Clerk's ruling is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Erica C. MAGALLON ALVAREZ, Petitioner.
    No. 96697-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Carlos HERNANDEZ II, Petitioner.
    No. 96691-5
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    SAFE ACQUISITION, et al., Petitioners, v. GF PROTECTION INC., Respondent.
    No. 96603-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied. The Respondent's request for attorney fees is also denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Stacey Angelo KINCHEN, Petitioner.
    No. 96524-2
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 The Petitioner's motion for extension of time to file a petition for review is denied and therefore the petition for review is dismissed as untimely.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    FIRST STUDENT, INC., Petitioner, v. State of Wa DEPT OF REVENUE, Respondent.
    No. 96694-0
    Supreme Court of Washington.
    DATED at Olympia, Washington, this day of April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Carlos HERNANDEZ II, Petitioner.
    No. 96690-7
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Jose MENDEZ, Petitioner.
    No. 96689-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Petitioner, v. GROCERY MANUFACTURERS ASSOCIATION, Respondent.
    No. 96604-4
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That both petitions for review are granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Derrick L. BARRETT, Petitioner.
    No. 96594-3
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    In the MATTER OF the GUARDIANSHIP OF: Judith Diane HOLCOMB
    No. 96535-8
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 03, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied. The motion to strike contained in the Petitioner's Reply to Amicus Curiae's Answer is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Shelly ARNDT, Petitioner.
    No. 95396-1
    Supreme Court of Washington.
    April 03, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is granted. Any party may serve and file a supplemental brief within 30 days of the date of this order, see RAP 13.7(d).

For the Court

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    STATE of Washington, Respondent, v. Delbert Harold BENSON, Petitioner.
    No. 96701-6
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 3, 2019.
    ORDER
   ¶1 Department I of the Court, composed of Chief Justice Fairhurst and Justices Johnson, Owens, Wiggins and Gordon McCloud, considered the petition for review at its April 2, 2019, Motion Calendar. The Department unanimously agreed that in light of 2018 amendments to the statutes governing legal financial obligations and this court's decision in State of Washington v. David Angel Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), the trial court may not require an indigent defendant to pay discretionary legal financial obligations, including the $200 criminal filing fee, jury demand fee, and witness costs. In addition, RCW 43.43.7541 precludes the imposition of the DNA collection fee if the defendant's DNA has already been collected in connection with a prior conviction. The Department therefore unanimously agreed that the petition for review should be granted as to the issue of legal financial obligations. The Department also unanimously agreed that the petition for review raises no other issue that merits this court's consideration.

¶2 IT IS ORDERED:

¶3 That the petition for review is granted on the legal financial obligations issue only. The case is remanded to the trial court to strike the criminal filing fee, jury demand fee, and witness costs, and to reconsider the imposition of the requirement to pay the DNA collection fee.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


text:
    Mark OLLA, Petitioner, v. Robert H. WAGNER, et al., Respondents.
    No. 96623-1
    Supreme Court of Washington.
    DATED at Olympia, Washington, April 03, 2019
    ORDER
   ¶1 Department II of the Court, composed of Chief Justice Fairhurst and Justices Madsen, Stephens, González and Yu, considered at its April 2, 2019, Motion Calendar whether review should be granted pursuant to RAP 13.4(b) and unanimously agreed that the following order be entered.

¶2 IT IS ORDERED:

¶3 That the petition for review is denied.

For the Court

/s/ Fairhurst, C.J. CHIEF JUSTICE


author: Fairhurst, C.J.

text:
    STATE of Washington, Respondent, v. Jeremiah James GILBERT, Petitioner.
    No. 95814-9
    Supreme Court of Washington.
    Argued January 22, 2019 Filed April 04, 2019
    Dennis W. Morgan, Attorney at Law, P.O. Box 1019, Republic, WA 99166-1019, for Petitioner.
    David Quesnel, Klickitat County Prosecuting Attorney's, 205 S. Columbus Avenue, Room 106, Goldendale, WA 98620-9054, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondents.
    Nancy Lynn Talner, Attorney at Law, Vanessa Torres Hernandez, ACLU of Washington, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, for Amicus Curiae (American Civil Liberties Union of Washington).
    Melissa R. Lee, Jessica Levin, Robert S. Chang, Lorraine K. Bannai, Seattle University School of Law, 901 12th Avenue, Korematsu Center For Law & Equality, Seattle, WA 98122-4411, for Amicus Curiae (Fred T. Korematsu Center for Law and Equality).
    Rita Joan Griffith, Attorney at Law, 4616 25th Avenue NE, PMB 453, Seattle, WA 98105-4523, Gregory Charles Link, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-1683, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).
    Hillary Ann Behrman, Cindy Arends Elsberry, Washington Defender Association, 110 Prefontaine Place S, Suite 610, Seattle, WA 98104-2626, for Amicus Curiae (Washington Defender Association).
    JOHNSON, J
    ¶1 This case concerns the scope of discretion a judge has in resentencing pursuant to RCW 10.95.035. In 1992, when Jeremiah Gilbert was a juvenile, he was charged and convicted of aggravated murder, premeditated murder, and multiple other crimes. He was sentenced to life without parole for the aggravated murder along with a consecutive sentence for the premeditated murder, as required under the laws in effect at that time. When RCW 10.95.035 was enacted, Gilbert became entitled to a new sentencing hearing. During his resentencing, Gilbert argued that the judge should restructure his two sentences such that they would run concurrently. However, the judge ruled that he lacked statutory authority to address anything other than Gilbert's sentence for aggravated murder and imposed a sentence of 25 years to life, leaving intact the consecutive sentence of 280 months for the premeditated murder conviction. The Court of Appeals affirmed. We reverse and remand for resentencing.
    FACTS
    ¶2 When Gilbert was 15, he murdered two men and attempted to murder a third. He and a companion had run away from home, journeying on foot to Klickitat County, where they attempted to steal a Ford Bronco owned by Farrell Harris. Harris, who was hunting nearby, returned and tried to halt the theft; however, Gilbert opened fire on him with a rifle. Harris was able to retreat to the woods where he found cover. Robert Gresham came upon the scene on a motorcycle shortly after and stopped. Gilbert shot Gresham twice in the shoulder and then proceeded to shoot him in the head, killing Gresham. Another person, Loren Evans, approached the scene in his truck, and Gilbert shot him in the head through the windshield, instantly killing him. The two young men disabled the Bronco they had been trying to steal and left in Evans's truck. Harris was able to drive Gresham's motorcycle to a nearby home, and he alerted law enforcement, who were able to apprehend Gilbert and his companion soon after.
    ¶3 The State charged Gilbert in adult court with six offenses: first degree murder of Gresham, aggravated first degree murder of Evans, second degree assault, first degree burglary, first degree theft, and first degree robbery. The jury convicted him on all charges and Gilbert was sentenced to life in prison without parole for the aggravated first degree murder conviction along with a consecutive sentence of 280 months for first degree murder. The sentences for the remaining four convictions were to run concurrent with the aggravated murder sentence.
    ¶4 Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Washington amended RCW 10.95.030 and enacted RCW 10.95.035, eliminating mandatory sentences of life without parole for juvenile offenders and requiring resentencing for those who had previously received such sentences. In accordance with the new and amended statutes, the trial court held a resentencing hearing for Gilbert on September 21, 2015. Defense counsel argued for the court to go beyond merely adjusting Gilbert's sentence of life without parole and to restructure his first degree murder sentence such that it would run concurrently. However, the judge rejected this argument, holding that he lacked the authority to do anything other than adjust the sentence for aggravated murder. The court imposed a sentence of 25 years to life for aggravated murder and left intact the 280 month consecutive sentence for first degree murder. Gilbert appealed, and the Court of Appeals affirmed his sentence. State v. Gilbert, No. 33794-4-III (Wash. Ct. App. Apr. 3, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/337944_unp.pdf. ¶5 Gilbert petitioned this court, and we granted review. State v. Gilbert, 191 Wash.2d 1012, 426 P.3d 735 (2018).
    ISSUE
    ¶6 Whether a judge performing a resentencing pursuant to RCW 10.95.035 has discretion to impose an exceptional downward sentence.
    ANALYSIS
    ¶7 In 2005, the United States Supreme Court decided Roper v. Simmons, in which it held, "The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Then, in 2010, the Court held that the United States Constitution also forbids the imposition of life without parole on a juvenile offender who did not commit homicide. Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Finally, in 2012, the Court decided Miller, in which it expanded on Graham, holding it unconstitutional to require a life without parole sentence on a juvenile offender for any crime. The Court did not completely foreclose life sentences for juvenile offenders, but it held that at the very least, courts must have the opportunity to consider mitigating circumstances of youth before imposing a life without parole sentence. Miller , 567 U.S. 460, 132 S.Ct. 2455.
    ¶8 The Washington Legislature responded to Miller by enacting Second Substitute Senate Bill 5064, 63d Leg., Reg.
    Sess. (Wash. 2014) (SSSB 5064). The bill amended RCW 10.95.030, the sentencing statute for aggravated first degree murder, to eliminate mandatory life sentences for juvenile offenders and, instead, establish mandatory minimum sentences of at least 25 years with a maximum sentence of life in prison. The bill also created RCW 10.95.035, which required resentencing for any juvenile offender sentenced to life without parole prior to passage of SSSB 5064. The statute requires resentencing of these offenders to be performed consistent with the amended RCW 10.95.030. Finally, the bill enacted RCW 9.94A.730, which allows most juvenile offenders to petition for release once they have served 20 years in prison.
    ¶9 Under RCW 10.95.035, Gilbert was entitled to a resentencing hearing. At the resentencing hearing, defense counsel argued that aside from adjusting his aggravated murder sentence, the court should restructure Gilbert's sentences such that they would run concurrently. The State argued that the only issue before the court was adjusting the minimum term for Gilbert's aggravated murder conviction because the statute "did not include authority ... that allows the court to reconsider the concurrent/consecutive nature of the sentences." Clerk's Papers at 29. The State also asserted that even if the court revisited the issue of consecutive or concurrent sentences, RCW 9.94A.589 required consecutive sentences because Gilbert's crimes involved two or more serious violent offenses arising from separate and distinct criminal conduct. The court adopted the State's argument in toto, agreeing with its analysis of the law and the statute. Report of Proceedings at 20.
    ¶10 Gilbert argued to the Court of Appeals that the resentencing judge erred in this determination and that the judge did have discretion to consider an exceptional downward sentence. The Court of Appeals rejected this argument and affirmed his sentence. The court held that reconsideration of the other sentences is not part of RCW 10.95.035 and that the only issues presented in the resentencing were those related to the aggravated murder sentence. The court recognized that our recent holding in State v. Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017), may entitle Gilbert to consideration of an exceptional sentence; however, it held that such relief would be available to him only through a timely personal restraint petition. Gilbert, No. 33794-4-III, slip op. at 8. This conclusion mischaracterizes Houston-Sconiers and misreads the statutory resentencing requirements under RCW 10.95.035 and .030.
    ¶11 In Houston-Sconiers, we recognized the discretion a judge possesses during juvenile sentencing when, similar to Gilbert's case, mandatory firearm enhancements were required by statute to be served consecutively. In that case, during sentencing the judge expressed frustration at being unable to impose an exceptional downward sentence to avoid consecutive sentences. We disagreed with the judge's conclusion that he lacked such discretion and reversed, remanding for resentencing and holding that sentencing courts must account for the mitigating qualities of youth and have absolute discretion to consider an exceptional downward sentence in light of such mitigating factors. We held that sentencing courts possess this discretion to consider downward sentences for juvenile offenders regardless of any sentencing provision to the contrary. Houston-Sconiers, 188 Wash.2d at 21, 391 P.3d 409.
    ¶12 Although Houston-Sconiers did not involve a resentencing under RCW 10.95.035, it did address and resolve the discretion judges have in sentencing for crimes committed by juveniles and, important to the issue here, the discretion to consider exceptional sentencing even where statutes would otherwise limit it. Our opinion in that case cannot be read as confined to the firearm enhancement statutes as it went so far as to question any statute that acts to limit consideration of the mitigating factors of youth during sentencing.
    Nor can it be read as confined to, or excluding, certain types of sentencing hearings as we held that the courts have discretion to impose downward sentences "regardless of how the juvenile got there." Houston-Sconiers, 188 Wash.2d at 9, 391 P.3d 409.
    ¶13 Thus, even if the resentencing court here was correct in its conclusion that RCW 10.95.035, on its face, limits the scope of a resentencing hearing to merely adjusting aggravated murder sentences-it was, nevertheless, required to consider Gilbert's youth as a mitigating factor and had discretion to impose a downward sentence. RCW 10.95.035 cannot act to limit that discretion.
    ¶14 We also recognized that the court must consider the mitigating circumstances related to the defendant's youth, including, but not limited to, the juvenile's immaturity, impetuosity, and failure to appreciate risks and consequences-the nature of the juvenile's surrounding environment and family circumstances, the extent of the juvenile's participation in the crime, the way familial and peer pressures may have affected him or her, how youth impacted any legal defense, and any factors suggesting that the juvenile might be successfully rehabilitated. Houston-Sconiers, 188 Wash.2d at 23, 391 P.3d 409 (quoting and citing Miller, 567 U.S. at 477, 132 S.Ct. 2455.)
    ¶15 The sentencing court should consider these circumstances, the convictions at issue, the standard sentencing ranges, and any other relevant factors-and should then determine whether to impose an exceptional sentence, taking care to thoroughly explain its reasoning. "While formal written findings of fact and conclusions of law are not strictly required, they are always preferable to ensure that the relevant considerations have been made and to facilitate appellate review." State v. Ramos, 187 Wash.2d 420, 444, 387 P.3d 650, cert. denied, --- U.S. ----, 138 S. Ct. 467, 199 L.Ed.2d 355 (2017). If, after considering such factors, the trial court does find an exceptional sentence is warranted, it may adjust the standard sentence to provide for a reduced term of years, for concurrent rather than consecutive sentences, or for both.
    ¶16 Because the judge presiding over Gilbert's resentencing believed he did not have discretion to consider anything other than an adjustment to the aggravated murder sentence, he did not consider whether the mitigating factors of Gilbert's youth might warrant an exceptional sentence. We hold this to be error. Gilbert was entitled at his resentencing to consideration of an exceptional sentence in light of the potential mitigating factors of youth. Therefore, we reverse and remand for resentencing.
    WE CONCUR:

      Gilbert challenged his resentencing in a direct appeal to the Court of Appeals and then to this court. Because the State did not raise the issue of whether a direct appeal is the proper method for challenging the resentencing, we do not address it. See RCW 10.95.035(3).

      We requested supplemental briefing on the applicability of RCW 9.94A.730 to Gilbert's sentence. Both parties seem to agree the statute does not apply, so we do not address it.

      In Ramos, we confronted the issue of what procedures are required before sentencing a juvenile offender to a sentence that is the functional equivalent of life without parole. The trial court that sentenced Ramos followed procedures closely mirroring those we have outlined here and in Houston-Sconiers, and we held this to be adequate to uphold the sentence imposed by the court. Ramos, 187 Wash.2d at 450-53, 387 P.3d 650.

      Gilbert also sought relief on claims that he faces an unconstitutional de facto life sentence and that his sentence constitutes an equal protection violation. Because we reverse and remand for resentencing, we do not reach these claims.

   Fairhurst, C.J.

Madsen, J.

Owens, J.

Wiggins, J.

Stephens, J.

González, J.

Gordon McCloud, J.

Yu, J.


author: Korsmo, J.

text:
    STATE of Washington, Respondent, v. Scott Alexis CASIMIRO, Appellant.
    No. 35680-9-III
    Court of Appeals of Washington, Division 3.
    FILED APRIL 2, 2019
    Susan Marie Gasch, Gasch Law Office, Po Box 30339, Spokane, WA, 99223-3005, for Appellant.
    Shawn P. Sant, Franklin County Prosecutor's Office, 1016 N 4th Ave., Pasco, WA, 99301-3706, Teresa Jeanne Chen, Attorney at Law, Po Box 4242, Pasco, WA, 99302-4242, for Respondent.
    PUBLISHED OPINION
   Korsmo, J.

¶1 Scott Casimiro appeals various sentencing conditions imposed following his guilty plea to second degree child rape. We primarily affirm, although we remand for the trial court to modify three conditions.

FACTS

¶2 Mr. Casimiro entered his plea and sought a special sexual offender sentencing alternative sentence (SSOSA). An evaluation was obtained and a presentence interview (PSI) was conducted by the Department of Corrections. The PSI documented a history of drug and alcohol abuse by Mr. Casimiro.

¶3 The trial court declined to impose the SSOSA sentence and imposed an indeterminate sentence pursuant to RCW 9.94A.507, followed by community custody for the rest of his life. Clerk's Papers (CP) at 56-57. Part of that sentence includes 28 conditions of community custody found in Appendix F to the judgment. CP at 65-67. When asked if he objected to any conditions found in Appendix F, defense counsel took a moment to review the appendix, indicated he was familiar with the conditions, and advised the court that "we are not objecting to these." Report of Proceedings at 15.

¶4 Mr. Casimiro then timely appealed to this court. A panel considered his appeal without hearing argument.

ANALYSIS

¶5 This appeal raises numerous challenges to the conditions of community custody, the time for reporting upon release, and one of his financial obligations. We address the arguments in that order.

Community Custody Conditions

¶6 Mr. Casimiro takes a scattershot approach, arguing that 11 of the conditions are either not crime-related or are vague, despite telling the trial judge that he had no objection to those conditions. Given the circumstances, we will take limited review of his arguments.

¶7 Appellate review normally does not extend to arguments not raised in the trial court. RAP 2.5(a). Courts, however, have discretionary authority to consider issues of manifest constitutional error that were not raised in the trial court, provided that an adequate record exists to consider the claim. RAP 2.5(a)(3) ; State v. McFarland , 127 Wash.2d 322, 333, 899 P.2d 1251 (1995). Washington courts also will consider some sentencing errors that are raised for the first time on appeal, including some claims challenging conditions of community custody. State v. Bahl , 164 Wash.2d 739, 744, 193 P.3d 678 (2008). But, courts need not consider claims of constitutional error that were invited or waived. E.g. , State v. Studd , 137 Wn.2d 533, 545-49, 973 P.2d 1049 (1999) (invited error); State v. Mierz , 127 Wash.2d 460, 468, 901 P.2d 286 (1995) (waived).

¶8 Whether a sentence condition is related to the circumstances of a crime is an inherently factual question. Given Mr. Casimiro's agreement to the conditions, there was no reason for the trial court or the parties to explain the relationship between the crime and the subsequent conditions. For that reason, we decline to consider Mr. Casimiro's arguments that some conditions are not crime-related. He had the opportunity to raise that contention in the trial court and, instead, agreed to the conditions.

¶9 We will, however, consider contentions that solely present questions of law. Bahl , 164 Wash.2d at 744, 193 P.3d 678. Some of the conditions Mr. Casimiro challenges also have been the subject of recent litigation. Accordingly, we will summarily address several of the challenged conditions; those not addressed are affirmed without discussion.

¶10 The bulk of Mr. Casimiro's remaining legal challenges involve vagueness concerns for several of the community custody conditions. A provision is unconstitutionally vague if either a reasonable person would not understand what conduct is prohibited or if it lacks ascertainable standards that prevent arbitrary enforcement. Bahl , 164 Wash.2d at 752-53, 193 P.3d 678.

¶11 The parties agree that condition 19, limiting Mr. Casimiro from frequenting places that cater to children, is invalid. We recently discussed this condition in State v. Johnson , 4 Wash. App. 2d 352, 421 P.3d 969 (2018). We remand for the court to reconsider this condition in light of Johnson .

¶12 Mr. Casimiro challenges conditions 20 and 21 that prohibit him from possessing sexually explicit material and frequenting X-rated movies or adult book stores. These conditions are valid. State v. Nguyen , 191 Wash.2d 671, 679-81, 425 P.3d 847 (2018).

¶13 The next challenge is to condition 13, a provision that prohibits Mr. Casimiro from owning or possessing dangerous weapons such as hunting knives or a bow and arrow. Mr. Casimiro may well have had a strong crime-relatedness challenge to this provision, based on what little of the record is before us. Nonetheless, his vagueness challenge is the only issue before us and we do not believe the term "dangerous weapon" is vague given the illustrative list provided. Cf. , Johnson , 4 Wash. App. 2d at 360, 421 P.3d 969 (illustrative list of conditions provided sufficient guidance to ascertain meaning).

¶14 Condition 5 prohibits possession of "paraphernalia for the use of controlled substances." This condition is not vague. A condition prohibiting possession of "paraphernalia" was found vague in Bahl because it did not reference controlled substances. 164 Wash.2d at 752, 193 P.3d 678. Unlike that condition, this provision does qualify paraphernalia by defining it in terms of use for controlled substances. As phrased, this condition satisfies Bahl .

¶15 Condition 22 requires Mr. Casimiro to notify the corrections officer and sex offender treatment therapist "of any romantic or sexual relationship" in order to assure no children might be endangered. The term "romantic" was questioned in Nguyen . 191 Wash.2d at 682-83, 425 P.3d 847. We agree that the term is "highly subjective" and problematic. Id . at 683, 425 P.3d 847. We remand with directions to strike "romantic" from this condition, and suggest that the court consider whether to substitute "dating relationship" instead. Id . at 681-83, 425 P.3d 847.

¶16 Mr. Casimiro also challenges conditions 26 and 27 that require he notify employers and landlords about his sexual criminal history. These conditions are authorized by RCW 9.94A.703(2)(b) and (3)(d), and, therefore, are within the power of the trial court to order.

¶17 The final provision we consider is a vagueness challenge to condition 23 that requires Mr. Casimiro to obtain approval from his corrections officer before engaging in volunteer, church, and travel activities. While we believe that a reasonable person would understand this provision, it does not provide the corrections department ascertainable standards to guide its enforcement of the provision. Presumably, the court was concerned about the defendant's access to children similar to the thrust of condition 19. We thus reverse condition 23 without prejudice to the trial court's ability to substitute a similar provision that advises the department of the permissible scope of its oversight in this area.

¶18 In sum, we remand conditions 19, 22, and 23 for further consideration in light of this opinion. The remaining conditions are affirmed.

Notification Provision

¶19 Mr. Casimiro also challenges the sentence notification provision advising him to report to the county sheriff within 24 hours of his release from custody. CP at 59. He correctly notes that the statute gives him 72 hours to report to the sheriff, but only 24 hours to report to the department of corrections upon his release. RCW 9A.44.130(4)(a).

¶20 We question how this provision harms Mr. Casimiro since no charges could be filed except in compliance with the statute and this notification provision imposes no obligation on him. Nonetheless, since we are remanding for other reasons, the last sentence of section 1 of paragraph 5.6 should be modified to reflect that reporting to the sheriff need only occur with 72 hours, while reporting to the corrections department must occur within 24 hours.

Financial Concerns

¶21 Lastly, Mr. Casimiro challenges the imposition of the filing fee against him in light of his indigency and requests that we not impose appeal costs.

¶22 A decision released after the sentencing in this case determined that statutory changes to legal financial obligation assessments apply retroactively to cases on appeal. State v. Ramirez, 191 Wash.2d 732,735, 426 P.3d 714 (2018). As a result, indigent offenders need not pay the criminal filing fee. Since Mr. Casimiro is indigent, we direct that the trial court strike that assessment.

¶23 He also asks that we disallow costs on appeal due to his indigency. By the terms of RAP 14.2 and our General Order of February 19,2019, we leave that issue to our commissioner in the event that the State seeks costs in this court.

¶24 Remanded for further consideration in accordance with this opinion.

WE CONCUR:

Siddoway, J.

Lawrence-Berrey, C.J.

      He also asks that a scrivener's error in the footer section of the judgment and sentence that identifies a different person as the offender be corrected. We trust the court will correct this problem on remand.

      Determining whether a relationship exists between the crime and the condition "will always be subjective, and such issues have traditionally been left to the discretion of the sentencing judge." State v. Parramore , 53 Wash. App. 527, 530, 768 P.2d 530 (1989). Thus, we review sentencing conditions for abuse of discretion. State v. Riley , 121 Wash.2d 22, 37, 846 P.2d 1365 (1993).

      The PSI also is not part of our record, which is a further reason we decline to consider the factually based challenges.


author: Lawrence-Berrey, C.J. Korsmo, J. (concurring) Siddoway, J. (concurring in part and dissenting in part)

text:
    U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, on Behalf OF the HOLDERS OF ADJUSTABLE RATE MORTGAGE TRUST 2007-2 Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2007-2, Respondent, v. Angela UKPOMA, Appellant,
    State of Washington, Department of Social and Health Services, Financial Services Administration ; Boeing Employees Credit Union; Kubesh's Site Mixed Concrete, Inc. ; Carrie Suriano; Colville Valley Concrete Corporation ; Rampart MMW; Norstar Heating & Cooling; Island Property Investments; Unknown Occupants of the Subject Real Property; All Other Unknown Persons or Parties Claiming Any Right, Title, Estate, Lien, or Interest in the Real Estate Described in the Complaint Herein, Defendants.
    No. 35791-1-III
    Court of Appeals of Washington, Division 3.
    FILED APRIL 2, 2019
    PUBLISHED OPINION
   Lawrence-Berrey, C.J.

¶1 Angela Ukpoma defaulted on her home installment loan. U.S. Bank National Association's (U.S. Bank's) agent sent Ms. Ukpoma a notice that her loan balance was accelerated and the entire amount was immediately due and payable. The notice contradictorily stated she could reinstate the loan if she paid the delinquent payments plus various charges 11 or more days before an unscheduled trustee's sale. No such sale ever occurred. For various reasons, U.S. Bank did not bring this judicial foreclosure action until more than eight years after its agent sent its notice.

¶2 We are asked to decide whether the agent's notice was sufficiently clear and unequivocal so as to constitute an acceleration of the installment loan. A majority of this panel concludes that the agent's notice was unclear and did not accelerate the loan.

¶3 We also discuss whether initiating a nonjudicial foreclosure tolls the statute of limitations for commencing a judicial foreclosure action. This author believes there is no tolling but a majority of this panel believes otherwise. We publish this opinion to encourage further debate of this important issue.

¶4 We unanimously conclude that U.S. Bank can judicially foreclose its deed of trust, and we affirm the trial court.

FACTS

¶5 In December 2006, Angela Ukpoma executed a promissory note for the purchase of her home. The note, secured by a deed of trust, required her to pay monthly installments for 30 years. U.S. Bank is the note holder and assignee of the deed of trust.

¶6 Ms. Ukpoma failed to make a scheduled payment on October 1, 2007, and has failed to make any further payments. On or about February 1, 2008, Quality Loan Service Corporation (QLS) sent Ms. Ukpoma a notice of default. The notice provides in relevant part:

You are hereby notified that [U.S. Bank] has elected to accelerate the loan described herein, and has declared the entire balance of $ 252,000.00, plus accrued costs, immediately due and payable. NOTWITHSTANDING SAID ACCELERATION, YOU HAVE THE RIGHT TO REINSTATE THE LOAN BY PAYING THE DELINQUENT PAYMENTS, LATE CHARGES, COSTS AND FEES ON OR BEFORE THE ELEVENTH (11TH) DAY BEFORE THE DATE OF THE TRUSTEE'S SALE ....[ ]

Clerk's Papers (CP) at 307. In the notice, QLS identified itself as "Agent for U.S. Bank ..., the Beneficiary." CP at 307.

¶7 QLS did not initiate a trustee's sale until its notice of trustee's sale dated November 7, 2008. The notice set forth the delinquent balance. The cure amount showed that the loan had not been accelerated. QLS discontinued the first sale.

¶8 QLS subsequently initiated and discontinued multiple other trustee's sales. The initiation dates are June 18, 2009, February 23, 2010, May 14, 2010, June 11, 2010, August 22, 2011, and March 13, 2014. Similar to the initial notice of trustee's sale, these notices set forth the delinquent balance and cure amounts. All of the notices showed that the loan had not been accelerated.

¶9 Ms. Ukpoma also filed for bankruptcy protection in 2008 and again in late 2010. The bankruptcy stays shielded Ms. Ukpoma's property for approximately one year.

¶10 On May 13, 2016, U.S. Bank filed the present action to judicially foreclosure its deed of trust. U.S. Bank moved for summary judgment. Ms. Ukpoma responded that the February 1, 2008 default notice accelerated the installment loan so that the action was barred by RCW 4.16.040, the six-year statute of limitations.

¶11 The trial court concluded that QLS's notice was ineffective to accelerate the installment loan. It alternatively concluded that the statute of limitations had not run because the bankruptcies combined with the nonjudicial foreclosures sufficiently tolled the statute. Given these conclusions, the trial court granted U.S. Bank's motion for summary judgment.

¶12 Ms. Ukpoma appeals.

ANALYSIS

A. DE NOVO REVIEW OF SUMMARY JUDGMENT

¶13 We review summary judgment rulings de novo and engage in the same inquiry as the trial court. Int'l Marine Underwriters v. ABCD Marine, LLC, 179 Wash.2d 274, 281, 313 P.3d 395 (2013). A motion for summary judgment is properly granted where there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) ; Ruvalcaba v. Kwang Ho Baek, 175 Wash.2d 1, 6, 282 P.3d 1083 (2012) (quoting Michak v. Transnation Title Ins. Co., 148 Wash.2d 788, 794-95, 64 P.3d 22 (2003) ).

B. THE FORECLOSURE ACTION WAS PROPER BECAUSE SOME INSTALLMENT PAYMENTS REMAINED DUE AND CONTINUED TO ACCRUE

¶14 RCW 4.16.040(1) provides that an "action upon a contract in writing, or liability express or implied arising out of a written agreement" shall be commenced within six years. This provision governs the statute of limitations for actions on promissory notes and deeds of trust. Westar Funding, Inc. v. Sorrels, 157 Wash. App. 777, 784-85, 239 P.3d 1109 (2010). For an installment note, " 'the statute of limitations runs against each installment from the time it becomes due.' " 4518 S. 256th, LLC v. Karen L. Gibbon, P.S., 195 Wash. App. 423, 434, 382 P.3d 1 (2016) (quoting Herzog v. Herzog, 23 Wash.2d 382, 388, 161 P.2d 142 (1945) ).

¶15 However, if the installment note is accelerated, "the entire remaining balance becomes due and the statute of limitations is triggered for all installments that had not previously become due." 4518 S. 256th, 195 Wash. App. at 434-35, 382 P.3d 1. Ms. Ukpoma argues that QLS's February 2008 notice accelerated the installment note. We disagree.

¶16 Acceleration of an installment note must be made in a clear and unequivocal manner that effectively apprises the maker that the holder has exercised his right to accelerate the installment debt. Weinberg v. Naher, 51 Wash. 591, 594, 99 P. 736 (1909) ; 4518 S. 256th, 195 Wash. App. at 435, 382 P.3d 1 ; Glassmaker v. Ricard, 23 Wash. App. 35, 38, 593 P.2d 179 (1979). The question before us is whether to construe the February 2008 notice as a clear and unequivocal acceleration of the installment note. We decline to do so.

¶17 The February 2008 notice was unclear. It declared the full amount immediately due and payable. But it then contradicted itself by advising Ms. Ukpoma that she could reinstate the loan by paying the delinquent payments plus various charges 11 or more days before an unscheduled trustee's sale. Nine months later, when QLS first initiated the trustee's sale, the notice showed that the note had not been accelerated. It unequivocally permitted Ms. Ukpoma to reinstate her loan by paying the delinquent payments, plus late charges, costs, and fees. All subsequent notices showed that the note had not been accelerated. To construe the February 2008 notice as a clear and unequivocal acceleration of the installment note would provide a windfall to Ms. Ukpoma, who never lost her right to reinstate the loan by simply paying the delinquent payments, plus late charges, costs, and fees.

¶18 We therefore hold that QLS's February 2008 notice did not accelerate the installment note. And because the note never accelerated, the six-year statute of limitations has not run on all of the installment payments. We conclude that the trial court did not err in granting U.S. Bank's motion for summary judgment.

C. THIS AUTHOR BELIEVES THAT INITIATING NONJUDICIAL FORECLOSURE DOES NOT TOLL THE STATUTE OF LIMITATIONS

¶19 Because the installment note was never accelerated, we need not address whether commencement of the various nonjudicial foreclosures tolled the statute of limitations. But because the secondary opinion addresses this issue, this author wishes to respond.

¶20 This author believes that Bingham v. Lechner, 111 Wash. App. 118, 45 P.3d 562 (2002) should be overruled. The Bingham court writes, "The trial court found, and the parties agree, that commencement of a nonjudicial foreclosure tolls the statute of limitations." Id. at 127, 45 P.3d 562. The Bingham court never questioned or analyzed this issue. In fact, nothing in the nonjudicial foreclosure statute, RCW 61.24.030, mentions tolling. This is impliedly acknowledged by the secondary opinion's reliance on RCW 4.16.230 instead of RCW 61.24.030.

¶21 RCW 4.16.230 provides in relevant part: "When the commencement of an action is stayed by injunction or a statutory prohibition, the time of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action." 11 U.S.C. § 362 automatically stays all proceedings against a debtor, including the action here, a judicial foreclosure action. Apart from this, the secondary opinion does not cite any statute that stays a judicial foreclosure action.

¶22 RCW 61.24.030(4), cited in the secondary opinion, is certainly not such a statute. RCW 61.24.030 provides in relevant part: "It shall be requisite to a trustee's sale ... (4) [t]hat no action commenced by the beneficiary of the deed of trust is now pending to seek satisfaction of [the secured debt]." (Emphasis added). A trustee's sale is a nonjudicial foreclosure. RCW 61.24.005(17).

¶23 RCW 61.24.030(4) thus prevents a deed of trust beneficiary from commencing a nonjudicial foreclosure if a judicial foreclosure action is pending. It does not operate in reverse-to prevent a deed of trust beneficiary from commencing a judicial foreclosure action if a nonjudicial foreclosure is pending. Because RCW 61.24.030(4) did not stay the commencement of this judicial foreclosure action, RCW 4.16.230 did not toll the statute of limitations.

¶24 Affirmed.

I CONCUR:

Korsmo, J.

Korsmo, J. (concurring)

¶25 I agree with the lead opinion that the notice of acceleration was ambiguous and that the behavior of the parties demonstrates that the note was never accelerated. I also agree with the concurrence that if the note had been accelerated, the numerous bankruptcy filings and nonjudicial foreclosure proceedings tolled the statute of limitations.

¶26 With these observations, I join both opinions.

Siddoway, J. (concurring in part and dissenting in part)

¶27 I agree with the lead opinion that we should affirm the dismissal of Angela Ukpoma's complaint. Because I disagree with the lead opinion's reason for affirming, I write separately.

¶28 The notice of default that Quality Loan Service Corporation (QLS), as trustee, sent to Ms. Ukpoma on February 1, 2008, is not ambiguous. It could hardly be more clear, stating, "[T]he beneficiary has elected to accelerate the loan described herein" and "[the beneficiary] has declared the entire principal balance of $ 252,000.00, plus accrued costs, immediately due and payable." Clerk's Papers (CP) at 307. "NOTWITHSTANDING SAID ACCELERATION" reinforces the fact of acceleration, even if it is followed by an offer of terms on which Ms. Ukpoma could reinstate the loan. Id. Ms. Ukpoma never reinstated the loan. The unambiguous acceleration stands.

¶29 The lead opinion acknowledges that it finds ambiguity sua sponte. It does so in a matter that was decided on summary judgment. Three declarations were offered in support of summary judgment by U.S. Bank National Association on behalf of the beneficiary mortgage trust (the Trust), and none of the three assert that the Trust did not elect to accelerate the obligation in 2008. For all we know, the reason the Trust later offered lesser cure amounts was the result of loss mitigation and mediation requirements enacted beginning in 2009.

¶30 The Trust argues that it was entitled to summary judgment on different grounds (reason enough not to speculate about ambiguity). It argues first, that the acceleration language in QLS's notice of default was ineffective. Its second argument is that as a result of tolling, its judicial foreclosure action was not time barred when commenced on May 13, 2016.

¶31 The first ground is unpersuasive. The Trust does not deny that in 2008 it "elected to accelerate the loan described [in QLS's notice of default]" and "declared the entire principal balance of $ 252,000.00, plus accrued costs, immediately due and payable," as asserted by QLS's notice. CP at 307. For summary judgment purposes, we assume that it did. But it argues that QLS's notice of default failed to comply with Ms. Ukpoma's deed of trust in two respects: first, it was issued by QLS, not the Trust; and second, it did not provide Ms. Ukpoma with notice and an opportunity to cure prior to acceleration.

¶32 If the Trust elected to accelerate and declare the entire loan balance due without providing the required form of notice, then the promisee -Ms. Ukpoma-could elect whether to claim a breach or waive it. E.g., Colo. Structures, Inc. v. Ins. Co. of W ., 161 Wash.2d 577, 588-89, 167 P.3d 1125 (2007) (plurality opinion). But the Trust provides no authority that a party can use its own breach as the basis for a defense. As Washington appellate courts frequently say, when an appellant cites no authority in support of a proposition, we may assume that counsel, after diligent search, found none. State v. Young, 89 Wash.2d 613, 625, 574 P.2d 1171 (1978).

¶33 The Trust cites an opinion of this court for the proposition that "[w]hether a lender has elected to accelerate a loan must be determined based on the language of the deed of trust." Resp't's Answering Br. at 6 (citing 4518 S. 256th, LLC , v. Karen L. Gibbon, P.S., 195 Wash. App. 423, 441-42, 382 P.3d 1 (2016) ). But that is not what the case holds.

¶34 In 4518 S. 256th , unlike this case, the beneficiary declared a default in an effort to collect only past due installments. 195 Wash. App. at 428-29, 382 P.3d 1. "Nothing in th[e]

notice of default to the borrowers stated that the lender chose to declare the unpaid balance of the loan due and payable" and the notice identified the amount required to cure the default as $ 15,255.56, at a time when the unpaid principal balance of the loan was $ 255,932.00. Id. at 429, 382 P.3d 1. Not long thereafter, the original successor trustee under the deed of trust recorded a notice of trustee's sale. Id. "Nothing in th[e] notice of trustee's sale to the borrowers stated that the lender chose to declare the unpaid balance of the loan due and payable." Id. at 430, 382 P.3d 1. The scheduled foreclosure sale never occurred.

¶35 When a new successor trustee served a notice of trustee's sale more than six years later, the owners of the encumbered property filed their own suit to restrain the sale and quiet title. Id. They argued that collection of the entire obligation, not just the more-than-six-year-old installments, was time barred, because the first notices of default and of trustee's sale operated as an acceleration. Given no hint in those notices that the beneficiary intended to accelerate the loan balance, the property owners tried to rely, instead, on language in the deed of trust. They argued that the court should construe the deed of trust as providing that the beneficiary could only invoke the power of sale by accelerating the loan, so its notice of trustee sale implicitly operated as an election to accelerate. Id. at 441-42, 382 P.3d 1. Their argument was unsuccessful.

¶36 Contrary to the Trust's argument, the decision in 4518 S. 256th does not focus on provisions of the deed of trust; it emphasizes the intention of the beneficiary that is communicated to the borrower following a default: "To accelerate the maturity of a promissory note, '[s]ome affirmative action is required, some action by which the holder of the note makes known to the payors that he intends to declare the whole debt due.' " Id. at 435, 382 P.3d 1 (alteration in original) (internal quotation marks omitted) (quoting Glassmaker v. Ricard , 23 Wash. App. 35, 37, 593 P.2d 179 (1979) ). " '[Acceleration [of the maturity of the debt] must be made in a clear and unequivocal manner which effectively apprises the maker that the holder has exercised his right to accelerate the payment date.' " Id. (alterations in original) (quoting Glassmaker , 23 Wash. App. at 38, 593 P.2d 179 ). The Trust cannot rely on its failure to comply with its obligations under the deed of trust to avoid the plain acceleration language in QLS's notice of default.

¶37 The second ground for dismissal relied on by the Trust is rejected by the lead opinion but provides a legitimate basis on which to affirm the judgment in the Trust's favor. The Trust demonstrated that when tolling is taken into consideration, the Trust's commencement of its judicial foreclosure action was timely.

¶38 During the period after the notice of acceleration was sent and the foreclosure action was commenced, Ms. Ukpoma filed four bankruptcy actions. The automatic stay provided by the bankruptcy code, 11 U.S.C. § 362(a)(3), is a statutory prohibition that tolls the statute of limitations. Merceri v. Deutsche Bank AG, 2 Wash. App. 2d 143, 408 P.3d 1140, review denied , 190 Wash.2d 1027, 421 P.3d 457 (2018) (applying RCW 4.16.230 ).

¶39 Also during the period before the Trust filed suit, it commenced nonjudicial foreclosure proceedings seven times by serving notices of trustee's sales. By statute, a beneficiary who wishes to foreclose nonjudicially may not rely on the grantor's default to pursue an action seeking satisfaction of an obligation secured by the deed of trust. RCW 61.24.030(4). Generally, it may not obtain a deficiency judgment against a borrower. RCW 61.24.100(1). These provisions are mirrored by a judicial foreclosure provision, RCW 61.12.120, which prohibits concurrent actions. And see RCW 61.24.100(2) (providing that before initiating nonjudicial foreclosure and after discontinuing it, other action against a person liable on the secured obligation can be pursued).

¶40 The shortest time frame for the nonjudicial foreclosure process, absent any complications or postponements, is 190 days. RCW 61.24.040(12). A trustee may continue the sale for a period or periods not exceeding a total of 120 days. RCW 61.24.040(10). The statute outlining the requisites to a trustee's sale provides that mortgage servicers and beneficiaries may discontinue any foreclosure action initiated under the "Deeds of Trust Act," chapter 61.24 RCW, in favor of other allowed methods for pursuit of foreclosure of the security interest or deed of trust security interest. RCW 61.24.030(12).

¶41 In Bingham v. Lechner , 111 Wash. App. 118, 131, 45 P.3d 562 (2002), this court affirmed the trial court's determination that the institution of a nonjudicial foreclosure proceeding tolls the statute of limitations to the date scheduled for foreclosure or, given the trustee's right to continue the sale for a period or periods not exceeding 120 days, to the date 120 days thereafter. While the author of the lead opinion in this case declines to follow Bingham , I find the decision consistent with RCW 4.16.230, which provides for tolling "[w]hen the commencement of an action is stayed by ... statutory prohibition."

¶42 The Deeds of Trust Act "furthers three basic objectives: an efficient and inexpensive nonjudicial foreclosure process, adequate opportunity to prevent wrongful foreclosure, and promotion of the stability of land titles." Cedar W. Owners Ass'n v. Nationstar Mortg., LLC , 7 Wash.App.2d 473, 485, 434 P.3d 554 (2019), https://www.courts.wa.gov/opinions/pdf/768123.pdf (citing Cox v. Helenius , 103 Wash.2d 383, 387, 693 P.2d 683 (1985) ). Given the Act's protections for borrowers, the nonjudicial foreclosure procedure is time consuming. A beneficiary who is pursuing nonjudicial foreclosure is taking action. Because the beneficiary is prohibited by RCW 61.24.030(4) from suing on its note while it is taking nonjudicial foreclosure action, RCW 4.16.230 applies. I would affirm the trial court on that basis.

I CONCUR:

Korsmo, J.

      By statute, the borrower has a right to reinstate the loan by paying the delinquent payments, late charges, costs, and fees at any time 11 days or more before the trustee's sale. See part V of the statutory form for "Notice of Trustee's Sale" contained in RCW 61.24.040(2)(d) ; see also part V of the form in former RCW 61.24.040(1)(f) (2008).

      Specifically, the Adjustable Rate Mortgage Trust 2007-2 Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2007-2.

      Beginning in 2009, the legislature responded to a wave of residential foreclosures with a series of amendments to the "Deeds of Trust Act," chapter 61.24 RCW, that added additional protections and prerequisites to foreclosures of deeds of trust recorded against certain types of "residential real property," which is a defined term in the Act. 2 WASH. STATE BAR ASS'N, WASHINGTON REAL PROPERTY DESKBOOK SERIES: REAL ESTATE ESSENTIALS § 21.11(2) at 21-31 (4th ed. 2014). In the case of certain noncommercial loans secured by owner-occupied residential property, the foreclosure process can be delayed by loss mitigation and mediation requirements or by a senior beneficiary's obligation to respond to a short sale offer. Id. at § 21.11(3)-(5) at 21-31 to -36.

      While the Trust now argues that only it could issue the notice of default, its complaint seeking judicial foreclosure relied on a notice of default that had been issued by its servicer, whom it averred, "stands in the shoes of the Lender under the Deed of Trust." CP at 94. Its complaint characterized the servicer's notice as "satisfy[ying] each of the requirements [for effective notice of acceleration]." Id. at 93-94.

      Ms. Ukpoma does not challenge the Trust's demonstration that when tolling for the bankruptcy and nonjudicial foreclosure proceedings are taken into effect, the action below was not time barred.