Wash. Court of Appeals published opinion — 387844_pub.pdf

Citation: Wash. Court of Appeals published opinion — 387844_pub.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/387844_pub.pdf ↗

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The enforcement of . . . a contract does not depend upon mechanical
divisibility, meaning that offending portions of the covenant can be lined
out and still leave the remainder grammatically meaningful and thus
enforceable. This is the so-called “blue pencil test.” The better test is
whether partial enforcement is possible without injury to the public and
without injustice to the parties.

Wood v. May, 73 Wn.2d 307, 313, 438 P.2d 587 (1968).

A more recent analysis of the doctrine of severability occurred in State v.

Chambers, 176 Wn.2d 573, 580-83, 293 P.3d 1185 (2013), where the court applied

contract principles to a criminal plea agreement. In Chambers, the defendant committed a

series of crimes in February and May 1999. Id. at 577-79. He pleaded guilty to those

crimes. Id. at 577-78. Prior to being sentenced, he committed additional crimes in

November 1999. Id. at 578. As part of a global plea deal, the defendant agreed to a 240-

month sentence for his November crimes to be served consecutive to the yet-to-be

imposed sentence for the earlier crimes. Id. at 578-79. The defendant was sentenced for

the February and May crimes, and later was sentenced for the November crimes. Id. at

579-80.

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 38784-4-III
Elgiadi v. Wash. State Univ.

Years later, a court permitted the defendant to withdraw his guilty plea to the

February crimes. Id. at 580. The withdrawal of that plea resulted in a lower offender

score than that used in the defendant’s sentence for the November crimes. Id. Because

the offender score determines the length of a sentence, the defendant asked to be

resentenced for the November crimes. Id. The trial court refused. Id. We reversed and