TTT v. CORALLO

21 NICS App. 17, TTT v. CORALLO (August 2023)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

The Tulalip Tribes, a federally recognized Tribe, Appellant,

Brandon Corallo, Appellee.

NO. TUL-CV-AP-2023-0186 (August 22, 2023)

SYLLABUS*

Trial court modified its original judgment and sentencing order after the time frame for reconsideration and appeal passed and continued to modify prior orders while this matter was on appeal. Court of Appeals ruled that code does not provide authority to a trial court to make such a modification to a judgment and sentencing order long after it issued the original order. The code also does not provide the trial court with jurisdiction to modify orders already on appeal. Court of Appeals reversed the trial court orders relative to this appeal and reinstated appellee’s original sentence.

Before:	Daniel A. Raas, Chief Justice; Daniel A. Brown, Justice; Matthew L.M. Fletcher, Justice.
Appearances:	Markus Surratt, Tulalip Tribes Prosecutor, for Appellant; Gyasi Ross, for Appellee.

OPINION

Brown, J.:¹

INTRODUCTION AND ISSUE

This appeal raises several issues as briefed by the parties, but this Court need only address two to resolve this matter. First, does the trial court have authority under the facts of this case to modify its original judgment and sentencing order once the time frame for reconsideration and/or appeal have long since passed? Second, once this Court has accepted a matter on appeal, is the trial court free to continue modifying its prior order(s), the subject of an

21 NICS App. 17, TTT v. CORALLO (August 2023) p. 18

appeal, without first obtaining this Court permission to do so? We answer both questions in the negative, reversing the trial court’s orders relative to this appeal, and reinstating the Appellee’s original sentence to be carried out in full.

FACTS AND PRIOR PROCEEDINGS

The underlying facts and proceedings are not particularly complex but are set forth to give context to this Court’s final disposition of the matter. Appellee Corallo (“Corallo”) was arrested, charged, and proceeded to trial on seven counts on May 19, 2022. On the third day of trial, a plea agreement was reached between Corallo and the Appellant Tulalip Tribes (“Tulalip Tribes”). The plea agreement was for 730 days of incarceration without good time. The plea was accepted by the trial court and sentencing occurred on May 26, 2022. Accordingly, Corallo’s release date from incarceration was set for January 10, 2024.

Some eight months later on February 6, 2023, Corallo filed a motion for reconsideration with the trial court requesting good time. Record at 148-49. A hearing on that motion was set for February 27, 2023.² At the hearing Corallo alternatively requested an early release to obtain treatment. The Tulalip Tribes objected as did the victims present at the hearing in light of the agreed sentence of 730 days without good time. See Good Time Hearing Recording.

The trial court granted Corallo’s request for early release to obtain treatment to begin March 27, 2023 – a date approximately nine months before the judgment and sentencing order had set for Corallo’s incarceration to end. Record at 76. The Tulalip Tribes sought reconsideration of that order on March 3, 2023. Id. at 113-35. Later that same day, the trial court issued an order setting oral argument on the Tribe’s motion for March 21, 2023, and also modified its February 27, 2023, order to make specific findings. Id. at 104-12.

The trial court’s findings specifically held that the “[Trial] Court clearly has the authority to modify its own sentence.” Id. At the hearing on the Tulalip Tribes’ motion for reconsideration, the trial court denied the motion and reconfirmed that Corallo was to be released as early as the next week. As a result, the Tulalip Tribes requested the trial court stay execution of its order which was denied by the trial court. Id. at 83; Reconsideration Hearing at 1;07:08-01:07:10 (“I’m gonna deny the stay.”).

Later that same day, the Tulalip Tribes filed the instant appeal. On March 23, 2023, this Court placed an administrative stay of the trial court’s orders modifying Corallo’s judgment and sentencing order while it considered the Tulalip Tribes’ Motion to Stay pending appeal. Record at 57-58. On March 24, 2023, the trial court, sua sponte, decided to readdress the Tribes’ motion to reconsider indicating it wanted to fix some issues relative to its March 23rd order. Although not entirely clear, the trial court seemed to want to clarify that is previously “final” order of March 23, 2023, was “no longer final” as of March 24, 2023, after the perfection of the Tulalip Tribes’ appeal before this Court. Id. 28; Withdrawal Hearing 2 at 17:27-17:33.

21 NICS App. 17, TTT v. CORALLO (August 2023) p. 19

At this March 24, 2023, hearing the trial court stated it was vacating its previous order on reconsideration and did so by order that same day, including that the “final order on reconsideration could change drastically.” Id. at 52-56. Three days later, on March 27, 2023, the trial court issued a 23-page order again modifying its previous orders in this respect. Id. at 28-50. The 42 findings of fact were made ex parte and without giving the Tulalip Tribes an opportunity to be heard and ordered: “appellate clerk is hereby directed to supplemental [sic] the appellate record and provide a copy of this order to the Court of Appeals.” Id. at 50. As a result, the Tulalip Tribes filed a timely Supplemental Notice of Appeal on March 28, 2023, to incorporate those orders of the trial court dated March 24 and March 27, respectively.

STANDARD OF REVIEW

Whether we review the trial court’s decisions in this matter under a de novo³ or abuse of discretion⁴ standard, the result is the same as this Court finds the trial court lacked the authority to modify Corallo’s final judgment and sentence order some nine months after it was imposed and further finds that the trial court was without authority to modify and then continue to modify its appealed order without first seeking relief to do so from this Court after this Court had exercised jurisdiction over the appeal by issuing the administrative stay order.

DISCUSSION

A. Modifying Judgment and Sentence Order Beyond the Dates Provided for Either Reconsideration and/or Appeal

We turn first to the trial court’s modifying the original judgment and sentence order some nine months after entry. While this Court agrees that equities are part of every decision of the trial court inasmuch as the Tulalip Tribal Court is a “healing court,” such equity is done in the first instance and was ostensibly taken into account by the trial court in its original orders. Such equities do not extend past the specific time parameters provided by the Tulalip Code under its provisions related to appeal and/or reconsideration⁵ unless specifically contemplated and spelled out in the original judgment and sentencing order in that case. As such, it was error to attempt to modify the finality of that prior decision some nine months later. There must be finality for all involved, including not only the defendant but also the Tulalip Tribes and the victims in such criminal proceedings.

21 NICS App. 17, TTT v. CORALLO (August 2023) p. 20

Although not binding precedent, the Court is persuaded by the Washington Supreme Court’s recent decision in State v. Hubbard, 1 Wn.3d 439 (2023). The Hubbard Court was faced with a lengthy sentence for rape of a child and essentially a lifetime no-contact order with minors. Upon his release from prison some 15 years later, the defendant sought unsupervised contract with his children and future grandchildren. The trial court granted the relief sought over the state’s objection, the state appealed, and the Washington Court of Appeals affirmed. On appeal to the Washington Supreme Court, however, the high court reversed finding that, absent statutory or specific court rule granting a trial court the authority exercised, “a trial court does not have inherent or statutory authority to modify court-imposed community custody conditions … based on a change in factual circumstances after sentencing.” Id. at 446.

Much like the arguments made by Corallo in this appeal, the Washington Supreme Court was not moved:

We recognize that factual circumstances may change after a person is sentenced to a lifelong term of community custody and that such changes may merit a modification of those conditions. But those concerns, with some foresight, can be addressed by the sentencing judge at the time the terms of the condition are drafted. Nothing prohibits a trial court from drafting its court-imposed community custody conditions in a manner that explicitly allows for future modifications by the DOC or ISRB based on changed factual circumstances. As this case shows, absent a carefully written condition or a grant of express statutory authority by the legislature, there is no avenue for relief once a sentence becomes final.

Id. at 452. As admitted during oral argument, there are times when trial judges place such revision opportunities into the original judgment and sentencing orders.⁶ Failing that here and failing any “express statutory authority” by the Tribe in its governing code to the contrary, the finality of the trial court’s judgment and sentencing order of Corallo is just that … final once the time for reconsideration and/or appeal has passed.

B. The Trial Court’s Continued Exercise of Jurisdiction - Specifically to Issues On Appeal

Next, we turn to the trial court’s continued exercise of jurisdiction over this matter in the form of issued order (clarifying or otherwise dated March 24th and March 27th) relative to its March 22, 2023 Order modifying Corallo’s Judgment and Sentencing Order and providing for his early release for treatment. The Court’s administrative stay on March 23, 2023, was a clear and unambiguous indication by this Court that it had accepted the appeal by the Tulalip Tribes and thus divested the trial court from further authority in this matter relative to the appealed order(s).

This Court’s jurisdiction is created under TTC 2.20.010. Its ability and jurisdiction to hear this matter arose under TTC 2.20.020(2) once the trial court issues an appealable order, which includes a final judgment or order by the trial court. TTC 2.20.020(2)(a). Our decision here to confirm the trial court’s lack of jurisdiction to modify orders already on appeal to this

21 NICS App. 17, TTT v. CORALLO (August 2023) p. 21

Court and is consistent with most jurisdictions, including those that specifically provide limited instances where the trial court may still act while an order or judgment is on appeal. The Federal Rules of Appellate Procedure and Washington State Rules of Appellate Procedure both support this position. See FRAP 12 and 12.1; RAP 7.2.⁷

Without any authority found in the Tribes’ Code allowing for such continued assertion of jurisdiction by the trial court once an appeal has been commenced (and certainly once this Court acts on that appeal), it was error for the trial court to continue issuing orders, modifying or otherwise, the order already squarely at issue on appeal. Had the trial court (or a party) requested approval from this Court to allow such further proceedings, the explanation for such proceedings, and the expected potential modification or additional rulings that might have come from the trial court to further clarify the issues before the Court or to complete the record, such approval might have been forthcoming. However, having not sought such pre-approval from this Court, the trial court’s orders are void and have no effect.

As to both issues decided by this Court today, if the Tulalip Board of Directors believe that trial courts should have unfettered flexibility in changing or modifying sentences after the currently-proscribed time frames contained within the Tulalip Code or that trial courts can and should have the ability to continue issuing or modifying orders related to those matters once they are on appeal, then that Board can and should seek to implement such changes to the Tulalip Code in accordance with such policies as it deems appropriate.

CONCLUSION

The trial court’s orders, all of them, relative to Corallo’s Judgment and Sentence after its original entry dated May 26, 2022, are reversed. Appellee Corallo will serve the remainder of his sentence until said release date as provided therein (January 10, 2024) and shall then report to the Tulalip Tribes’ probation department in conformity to that judgment and sentencing order upon his release from incarceration.

The Court Clerk is directed to provide a copy of this Opinion to the Tulalip Tribes’ Prosecutor and counsel for Appellee Corallo, as well as the Tribal Court Judge previously ruling on the matter below.⁸

The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

Raas, C.J. and Fletcher, A.J. concur and join in this opinion.

The trial court, as a result of the substantial passing of time, treated the motion as a request to modify Corallo’s sentence. Record at 146.

A conclusion of law by the trial court shall be reviewed de novo. TTC 2.20.090(4). See also Williams v. Madison, 6 NICS App. 205, 206 (Tulalip Tribal Ct. App. 2004) (“[W]hen the Trial Judge had no occasion to evaluate the credibility of witnesses, then we do not give the Trial Court’s decision any weight, since we can make an independent evaluation of the record[.]”).

Various opinions in considering untimely procedural filings have opined and ruled based on the abuse of discretion standard of review. See, e.g., Hoopa Valley Housing Authority v. Doolittle, 7 NICS App. 45, 49 (Hoopa Valley Ct. App. 2005) (ruling that trial court abused its discretion by granting reconsideration six months after final judgment); Hoopa Valley Housing Authority v. Davis-Reed, 8 NICS App. 8, 13-14 (Hoopa Valley Ct. App. 2007) (ruling that trial court abused its discretion by setting aside default judgment after the provided time line to do so).

TTC 2.25.130 (10-day time limit for filing a motion for reconsideration); TTC 2.20.030 (20 day limit for appealing a sentence).

See, e.g., Williams v. TTT, 21 NICS 1, 2 (Tulalip Tribal Ct. of Appeal) (2023) as an example of such a sentence.

As persuasive authority, the Court looks to State v. Edwards, 23 Wn. App.2d 118, 121-22 (2022) (where an order is entered in violation of RAP 7.2, the order is voidable).

The panel notes that Corallo has filed a Petition for Habeas Corpus which will considered separately and is not the subject of this appeal or decision.