Who Gets a Resentencing Hearing?
Until 2020, resentencing hearings were not very common. Today, due to recent changes in Washington state law over the past few years, many individuals can get a resentencing hearing. This document provides a basic summary of the recent changes in Washington law, creating new reasons a person could return to court for a resentencing hearing. This could change, as the law surrounding resentencing hearings is an area of the law that is rapidly changing with several additional cases pending in the courts, bringing new arguments forward to expand who gets relief.
NOTE: Getting a resentencing hearing frequently involves complex legal issues. Having legal counsel is recommended before pursuing any hearing. Any person who cannot retain an attorney should make every effort to seek the appointment of an attorney immediately and, in most cases, before filing any motion or petition for relief in court.
Youth and Young Adults
SOME people who were children under the age of 18 at the time of an offense and prosecuted in adult court and SOME people who were young adults at the time of offense may be able to return to court for resentencing. There are three (3) recent changes applying to this group:
Miller v. Alabama: ALL people who were under 18 at the time of their offense, who were prosecuted in adult court for aggravated first-degree murder, and who were sentenced to mandatory life without parole (LWOP) must return to court for a resentencing hearing.
Houston-Sconiers: SOME people who were under 18 at the time of their offense, who were prosecuted in adult court and sentenced prior to March 2, 2017, may return to court for a resentencing hearing.
Monschke/Bartholomew: ALL people who were young adults, age 18 to 20 at the time of an offense and who were sentenced to life without parole (LWOP) for the crime of aggravated first-degree murder (prosecuted under RCW 10.95) must return to court for a resentencing hearing.
State v. Blake Resentencing
In 2021, the Washington Supreme Court decided State v. Blake, holding that the state law prohibiting simple possession of a controlled substance (PCS) is unconstitutional.
ALL people convicted of possession of a controlled substance (PCS) offense prior to Feb. 21, 2021, can have their prior convictions vacated (removed from their criminal record).
SOME individuals convicted of crimes other than possession of a controlled substance (PCS) may return to court for a resentencing hearing if a PCS conviction prior to Feb. 21, 2021, was included in the calculation of the offender score and standard range.
What remains unclear (for now) is whether a person can get a resentencing hearing pursuant to Blake if the standard range and/or offender score does not change.
“Three Strikes” Reform
In 2019, the Washington Legislature changed the “Three Strikes” law by removing the crime of robbery in the second degree from the list of crimes count toward the “Three Strikes” law. In 2021, the Washington Legislature made this change retroactive. ALL people serving a life without parole sentence (LWOP) based on the three strikes law must return to court for resentencing if one of the strike offenses was a conviction for robbery in the second degree. There are exceptions: if a person still has three strikes after removing all second-degree robberies the question of whether a person can get a resentencing hearing is unsettled. Where a robbery conviction is from another state or jurisdiction, the court must conclude that the robbery is comparable to a Washington second-degree robbery and not another strike offense for a person to get a resentencing hearing.
Prosecutor Initiated Resentencing- “6164” Petitions
In 2020, the Washington Legislature passed a bill called “SB 6164”, creating a new legal procedure that prosecutors could use to bring a person back to court for a resentencing hearing “if the original sentence no longer serves the interests of justice.” Once the prosecutor files a Petition for Resentencing, the trial court has discretion to grant or deny the Petition for Resentencing. If the court grants the Petition for Resentencing, the person will have a resentencing hearing. If the court grants a Petition for Resentencing and orders a resentencing hearing, a defense attorney will be appointed to assist any person who is indigent.
Noncitizens – Padilla Relief
SOME non-citizens who were charged with a crime and who did not receive accurate, complete (or any) advice from their criminal defense attorney about the immigration consequences of a conviction may be able to return to court for a resentencing hearing (or some related relief, such as vacating a conviction and removing it from their criminal record).
