* State Of Washington, Respondent V. Sheryl Martin, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58728-9-II
Respondent,
v.
ORDER GRANTING MOTION TO
SHERYL JEAN MARTIN, PUBLISH AND PUBLISHING OPINION
Appellant.
Respondent filed a motion to publish this court’s opinion filed on April 2, 2024. After
consideration, the court grants the motion. Accordingly, it is
ORDERED that the final paragraph in the opinion which reads “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports, but will
be filed for public record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is further
ORDERED that the opinion will now be published.
FOR THE COURT
PANEL: Jj. Maxa, Price, Che
MAXA, P.J.
Filed
Washington State
Court of Appeals
Division Two
April 30, 2024
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58728-9-II
Respondent,
v. UNPUBLISHED OPINION
SHERYL JEAN MARTIN,
Appellant.
MAXA, P.J. – Sheryl Martin appeals the trial court’s denial of her motion for resentencing
based on RCW 36.27.130.
RCW 36.27.130(1) states that a prosecutor “may” petition the sentencing court to
resentence an offender if the original sentence no longer advances the interests of justice. If the
prosecutor files a petition, the court has discretion to grant or deny the petition. RCW
36.27.130(2).
Here, Martin requested that the prosecutor petition for resentencing under RCW
36.27.130(1), but the prosecutor declined. Martin argues that procedural due process entitles her
to bring a motion for resentencing pursuant to RCW 36.27.130 if the prosecutor declines.
We conclude that RCW 36.27.130 does not give Martin a liberty interest and so she is not
entitled to procedural due process. Accordingly, we affirm the trial court’s denial of Martin’s
resentencing motion.1
1 Martin also filed a statement of additional grounds (SAG). The SAG includes a letter updating
her achievements and general well-being while in prison. Although Martin’s progress in prison
is laudable, she does not make any argument regarding the updates. Because the SAG claim
Filed
Washington State
Court of Appeals
Division Two
April 2, 2024
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No. 58728-9-II
3
FACTS
In 2010, a jury found Martin guilty of first degree attempted murder – domestic violence.
Martin shot her husband after learning that he was having an affair. The trial court sentenced her
to 240 months of confinement, which included 60 months for a firearm enhancement.
In 2020, Martin wrote a letter to the State, requesting Clark County’s prosecuting
attorney to seek resentencing for her pursuant to his authority under RCW 36.27.130.2 The State
denied Martin’s request, stating that the “statute was primarily enacted to address changes in the
law . . . or changes in prosecution,” and that she was “free to renew a request in the future.”
Martin then filed in the trial court a motion for resentencing pursuant to RCW 36.27.130.
She claimed that the statute created a right to “correct an unjust sentence” and due process
entitled her to a remedy. She asked the court to consider the motion on its merits. The State
filed a response to Martin’s motion, arguing that RCW 36.27.130 did not create a right to be
resentenced. After reviewing briefing and hearing oral argument, the trial court denied Martin’s
motion for resentencing pursuant to RCW 36.27.130.
Martin appeals the trial court’s denial of her resentencing motion.
ANALYSIS
Martin argues that procedural due process entitles her to bring a motion for resentencing
pursuant to RCW 36.27.130. The State argues that RCW 36.27.130 does not create a protected
liberty interest for which an offender is entitled to procedural due process protections. We agree
with the State.
does not “inform the court of the nature and occurrence of alleged errors,” we decline to address
it. RAP 10.10(c).
2 Martin referred to SB 6164 in her letter. SB 6164 was codified as RCW 36.27.130. LAWS OF
2020, ch. 203, § 2.
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No. 58728-9-II
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A. STATUTORY OVERVIEW
RCW 36.27.130(1) states that the “prosecutor of a county in which an offender was
sentenced for a felony offense may petition the sentencing court or the sentencing court's
successor to resentence the offender if the original sentence no longer advances the interests of
justice.”
The sentencing court “may grant or deny” a prosecutor’s petition. RCW 36.27.130(2).
When determining whether to grant or deny the petition,
[t]he court may consider postconviction factors including, but not limited to, the
inmate's disciplinary record and record of rehabilitation while incarcerated;
evidence that reflects whether age, time served, and diminished physical condition,
if any, have reduced the inmate's risk for future violence; and evidence that reflects
changed circumstances since the inmate's original sentencing such that the inmate's
continued incarceration no longer serves the interests of justice.
RCW 36.27.130(3).
B. LEGAL PRINCIPLES
The due process clause in the Fourteenth Amendment of the United States Constitution
provides that “no state shall . . . deprive any person of life, liberty, or property, without due
process of law.” Procedural due process requires an opportunity to be meaningfully heard, but
the minimum requirements depend on what is fair in a given context. State v. Derenoff, 182 Wn.
App. 458, 466, 332 P.3d 1001 (2014).
When determining whether due process is required in a given context, we consider “ ‘(1)
the private interest affected; (2) the risk of erroneous deprivation of that interest through existing
procedures and the probable value, if any, of additional procedural safeguards; and (3) the
governmental interest, including costs and administrative burdens of additional procedures.’ ”
Id. (quoting In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007)).
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No. 58728-9-II
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Offenders do not have a liberty interest in being released before serving their full
maximum sentence. In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 144, 866 P.2d 8 (1994).
However, state statutes can create a due process liberty interest where one otherwise would not
have existed. Id.
“For a state law to create a liberty interest, it must contain ‘substantive predicates’ to the
exercise of discretion and ‘specific directives to the decisionmaker that if the regulations’
substantive predicates are present, a particular outcome must follow.’ ” Id. (quoting Kentucky
Dep’t of Corrections v. Thompson, 490 U.S. 454, 463, 109 S. Ct. 1904, 1910, 104 L. Ed. 2d 506
(1989)). In other words, “laws that dictate particular decisions given particular facts can create
liberty interests, but laws granting a significant degree of discretion cannot.” Cashaw, 123
Wn.2d at 144.
For example, an offender’s ability to be released on parole is not guided by substantive
predicates or specific directives; it concerns the degree to which an offender has become
rehabilitated, and so involves “ ‘subjective appraisals’ and ‘discretionary assessment of a
multiplicity of imponderables.’ ” Id. at 146 (quoting In re Pers. Restraint of Ayers, 105 Wn.2d
161, 165-66, 713 P.2d 88 (1986)). Parole decisions do not contain any consistent set of facts that
mandate a favorable decision for the offender. Cashaw, 123 Wn.2d at 147. A parole board’s
discretion in determining rehabilitation “cannot be reduced to a simple equation under which
predictable outcomes flow from specific factual predicates.” Id. Therefore, the court in Cashaw
held that the parole board’s regulations regarding the procedures to be followed in reaching the
parole decision did not create a liberty interest. Id.
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No. 58728-9-II
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In addition, procedural laws cannot create liberty interests; only substantive laws can. Id.
at 145. “[S]tate regulations that establish only the procedures for official decisionmaking, such
as those creating a particular type of hearing, do not by themselves create liberty interests.” Id.
We review the constitutionality of a statute de novo. State v. Watkins, 191 Wn.2d 530,
535, 423 P.3d 830 (2018). Statutes are presumed to be constitutional, and the challenging party
must prove beyond a reasonable doubt that a statue is unconstitutional. Id.
C. DUE PROCESS ANALYSIS
Martin argues that she is entitled to (1) file a motion for resentencing if the prosecutor
refuses to do so, (2) receive an initial review by the sentencing court to determine whether she
has made a substantial showing that her original sentence no longer advances the interests of
justice, and (3) have the court direct the State to show cause why the motion should not be
granted if a substantial showing has been made.
Martin is confined and so she does not have a liberty interest in being released before
serving her full sentence. See Cashaw, 123 Wn.2d at 144. But she claims that RCW 36.27.130
created a due process liberty interest because she can satisfy one or more of the statutory factors.
However, RCW 36.27.130 does not dictate particular decisions given particular facts, but
instead grants a significant degree of discretion to the prosecutor. A prosecutor “may petition the
sentencing court” if the offender’s original sentence “no longer advances the interests of justice.”
RCW 36.27.130(1) (emphasis added). The statute does not contain any substantive predicates to
the prosecutor’s exercise of discretion in deciding when to petition the court. See Cashaw, 123
Wn.2d at 144.
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No. 58728-9-II
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In addition, at its core, RCW 36.27.130 creates a hearing where the court may consider
whether to resentence an inmate. This makes the statute a procedural law, which cannot create
liberty interests. Cashaw, 123 Wn.2d at 145.
Martin cites to People v. Pillsbury, 69 Cal. App. 5th 776, 284 Cal. Rptr. 3d 824 (2021) to
support her argument that she has a liberty interest. In Pillsbury, a statute – Penal Code section
1170(d) – authorized the Secretary of the Department of Corrections and Rehabilitation to
recommend resentencing at any time and gave the sentencing court jurisdiction to resentence. Id.
at 784. The Secretary sent a letter to the court recommending resentencing pursuant to the
statute, but without notice to the defendant, the court without explanation declined to resentence.
Id. at 783. The court held that section 1170(d) gave defendants a liberty interest entitled to due
process protection because it provided a mechanism for releasing them from custody. Id. at 789-
90. After extensive analysis, the court stated, “Accordingly, we conclude that a defendant for
whom the Secretary has written a section 1170(d) recommendation based on a change in the law
is constitutionally entitled to notice and an opportunity to be heard as a matter of due process.”
Id. at 795.
However, the facts differ here. In Pillsbury, the court held that defendants have due
process rights to notice and a hearing only after the Secretary in the exercise of their discretion
recommended for the trial court to recall and resentence a defendant. Martin is arguing that she
has due process rights to a hearing even though the prosecutor has declined to petition to the
sentencing court. Unlike in Pillsbury, the matter never reached the sentencing court because of
the prosecutor’s exercise of discretion.
Therefore, we hold that RCW 36.27.130 does not give Martin a liberty interest and so she
is not entitled to procedural due process.
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No. 58728-9-II
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CONCLUSION
We affirm the trial court’s denial of Martin’s resentencing motion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
PRICE, J.
CHE, J.
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