9 F.Supp.2d 1331 (1998)
KIDDER, PEABODY & CO., INCORPORATED, Plaintiff,
v.
Robert BRANDT, as trustee, Selma Brandt, as trustee, John H. Gary, Donna L. Gary, Irwin Goldstein, Edmund Lunder, Maureen C. Lunder, James O'Mara, Alice M. O'Mara, and Shirley Schiffman, Defendants.
No. 94-1510-Civ-T-17A.
United States District Court, M.D. Florida, Tampa Division.
June 19, 1998.
Bennett Falk, Keith Olin, Morgan, Lewis & Bockius, Miami, FL, for Plaintiff.
George Franjola, Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, FL, for Defendants.

ORDER
KOVACHEVICH, Chief Judge.
THIS CAUSE is before this Court on remand from the United States Court of Appeals for the Eleventh Circuit, ordering this Court to vacate the judgment of the said District Court's Order on Plaintiff's Motion for Summary Judgment entered on December 31, 1996 (Docket No. 21), the Final Judgment entered on December 31, 1996 (Docket No. 22), and the Order Denying Plaintiff's Motion to Alter or Amend Judgment entered on February 5, 1997 (Docket No. 31).

PROCEDURAL HISTORY
Plaintiff, Kidder, Peabody & Co., Inc., (hereinafter Kidder), a securities broker, sold shares in a limited partnership to the defendants in 1987. As a condition of purchasing securities, each of the defendants agreed to submit any dispute or claim to arbitration governed by the National Association of Securities Dealers' (NASD). In 1994, the defendants filed a seven count arbitration complaint against Kidder alleging, among other things, that Kidder had violated the Racketeer Influenced and Corrupt Organizations Act (RICO), of 18 U.S.C. § 1962.
Kidder brought an action pursuant to 28 U.S.C. § 2201 for a declaratory judgment that certain claims in the arbitration proceeding were ineligible for submission to arbitration pursuant to the parties' contract and § 15 of the NASD Code, and to enjoin the Defendants from proceeding with arbitration of such claims (Docket No. 1).
Kidder filed a Motion for Summary Judgment (Docket No. 21), alleging that the "occurrence or event" which gave rise to the defendants' claims did not occur within six *1332 years of the date defendants filed their arbitration complaint as required by § 15 of the NASD Code. This Court granted Kidder's motion in part and denied it in part, finding that the "occurrence or event" which gave rise to the RICO claim was a "pattern of racketeering activity" which began more than six years before the defendants filed their arbitration complaint, but ceased inside the six year window.
The Court denied Kidder's motion with respect to defendants' RICO claim and entered summary judgment for the defendants, declaring that the RICO claim was eligible for arbitration. Kidder filed a Motion to Alter or Amend the judgment which was also denied, and an appeal followed. The United States Court of Appeals for the Eleventh Circuit vacated and remanded the judgment with instructions.

DISCUSSION
Kidder contends that this Court erroneously interpreted and applied § 15 of the NASD Code. This Court found that the "occurrence or event" giving rise to the defendants' RICO claim was a pattern of racketeering activity, "at least a portion of which allegedly occurred within the § 15 time frame." On the basis of that finding this Court concluded that the defendants' RICO claim was eligible for arbitration.
Kidder argues that under § 15 of the NASD Code, the defendants' RICO claim was not eligible for arbitration unless all of the predicate acts upon which that claim was based occurred within six years of the date defendants filed their arbitration complaint. Specifically, Kidder contends that "Defendants' RICO claim is eligible for arbitration only if each act or fact which forms each of the elements of their RICO claim-including those underlying the pattern element  took place within the six year period preceding the initiation of arbitration." Under Kidder's interpretation of § 15, the defendants' RICO claim was not eligible for arbitration, because some of the predicate acts supporting the claim took place outside the six year window. (Docket No. 21).
The defendants argue that they have multiple RICO claims, each occasioned by an injurious act which took place within the six year window. The defendants assert that it is those acts, not a "pattern of racketeering activity" which is the "occurrence or event" giving rise to their RICO claims.
The Court of Appeals rejected Kidder's interpretation of the "occurrence or event giving rise to claim" language of § 15. (Docket No. 33). Instead the Court of Appeals held that under 15 the "occurrence or event" which "gives rise to the claim" is the last occurrence or event necessary to make the claim viable. A claim is viable when all the elements of that claim can be established such that it could withstand a motion to dismiss for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 33).
In Bivens Gardens Office Bldg., Inc., v. Barnett Bank of Fla., Inc., 906 F.2d 1546 (11th Cir.1990), the court addressed the issue as to when a cause of action begins to accrue in civil RICO actions. In Bevins the plaintiffs filed a law suit against the defendants on five counts, including RICO claims. The defendants moved for a summary judgment on the grounds that the plaintiffs' claims were time barred. See Id. at 1549. The court in Bivens held that with respect to each independent injury to the plaintiff, a civil RICO cause of action begins to accrue as soon as the plaintiff discovers or reasonably should have discovered both the existence and source of his injury and that the injury is part of a pattern. See Id. at 1554-55. In Bivens the record was unclear as to when each plaintiff became aware or reasonably should have become aware of the alleged fraudulent acts perpetrated by the defendants. As such, the appellate court reversed the district court's grant of summary judgment to the defendants and remanded the case for further proceedings. See Id. at 1556.
Applying Bivens to the case at bar the record does not identify precisely the last "occurrence or event" necessary to make the defendants' RICO claim viable or when each defendant, if any, became aware or reasonably should have become aware of the alleged acts perpetrated by the plaintiffs. Because a "pattern of racketeering activity" is, by definition, a composition of multiple distinct "occurrences or events," the court *1333 should determine whether the defendants have proven that Kidder committed acts within the six year window that caused the defendants injury, and if so, whether those injurious acts created independent RICO causes of action. An evidentiary hearing is needed to determine if the facts reveal that the defendants have multiple RICO claims. It should be noted that it is possible that some of the claims will be ineligible for arbitration because they arose outside the six year window, while others may be eligible for arbitration because they arose inside the six year window. Having herein determined that this case requires an evidentiary hearing in order to address the issues raised in the remand order, it is
ORDERED that this cause of action be referred to the assigned Magistrate Judge for all further proceedings and, where appropriate, issuance of a report and recommendation.


                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 12 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

W. GARY OLSON,                                  No.    14-36100

                Plaintiff-Appellant,            D.C. No. 2:13-cv-00782-RSM

 v.
                                                MEMORANDUM*
EDWINA S. UEHARA, in her official and
individual capacities; RICHARD
CORDOVA, in her official and individual
capacities; SHARI SPUNG; UNIVERSITY
OF WASHINGTON, an agency of the State
of Washington; MICHAEL K YOUNG, in
his official and individual capacities; JOHN
DOE, I through IV, fictitious names for
individuals whose true names are currently
unknown, in their official and individual
capacities,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ricardo S. Martinez, Chief Judge, Presiding

                             Submitted June 8, 2017**
                               Seattle, Washington

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.

      W. Gary Olson appeals the district court’s grant of summary judgment on

his claims against the University of Washington and various university employees

(collectively, “the University”). We have jurisdiction under 28 U.S.C. § 1291 and

review de novo the district court’s summary judgment. Ambat v. City & Cty. of

San Francisco, 757 F.3d 1017, 1023 (9th Cir. 2014). We affirm.

      With respect to Olson’s retaliation claim, even if we assume that he

advanced a prima facie showing of retaliation under Wash. Rev. Code § 49.60.210,

Olson has failed to rebut the University’s legitimate, nonretaliatory reason for

taking an adverse employment action against him. See Hollenback v. Shriners

Hosps. for Children, 206 P.3d 337, 343–44 (Wash. Ct. App. 2009). Specifically,

Olson has failed to raise a genuine issue of material fact that the University’s

proffered reason was pretextual or that an improper, retaliatory purpose was a

“substantial factor” motivating the University’s actions. See Scrivener v. Clark

Coll., 334 P.3d 541, 546–47 (Wash. 2014).

      Olson's Fourteenth Amendment claim for deprivation of his liberty interest

without due process also fails. Even assuming that Olson has established that his

asserted harms are sufficient to trigger the procedural protections of the Fourteenth

Amendment, cf. Paul v. Davis, 424 U.S. 693, 711–12 (1976), he received an

adequate pre-deprivation opportunity to clear his name. Cox v. Roskelley, 359 F.3d

                                          2
1105, 1110–12 (9th Cir. 2004).

      Because we uphold the district court’s grant of summary judgment, we need

not address the exclusion of Olson’s damages expert for untimely disclosure under

Federal Rule of Civil Procedure 26(a)(2).

      AFFIRMED.

                                        3


632 N.W.2d 261 (2001)
In re the Marriage of Cynthia M. BRANCH, n/k/a Cynthia M. Martisko, petitioner, Appellant,
v.
Dean K. BRANCH, Respondent.
No. C1-01-166.
Court of Appeals of Minnesota.
August 28, 2001.
*262 Wynn Curtiss, Miller, Steiner & Curtiss, P.A., Hopkins, MN, (for appellant).
Dean K. Branch, Fergus Falls, MN, pro se respondent.
Heard and considered by SHUMAKER, Presiding Judge, AMUNDSON, Judge, and PARKER, Judge.[*]

OPINION
SHUMAKER, Presiding Judge.
Appellant-mother challenges the child support magistrate's calculation of respondent-father's net monthly income for child support purposes. She alleges that the magistrate erroneously interpreted Minn.Stat. § 518.551, subd. 5(b)(viii) (2000), in allowing a reduction of father's income by the amount he was paying in child support arrearages for another child who has reached the age of majority and that the district court erroneously affirmed. In the alternative, appellant argues that deducting amounts currently being paid for another child who has reached the age of majority violates public policy. Because the child support magistrate's interpretation is appropriate and does not violate public policy, and because the district court did not err in affirming the magistrate's order, we affirm.

FACTS
Appellant Cynthia Martisko, formerly Cynthia Branch, and respondent Dean Branch dissolved their marriage in 1997. The dissolution judgment provided that Martisko would have sole physical custody of the parties' child, A.B., and that Branch would be obligated to pay monthly child support of $300.
When Martisko sought an increase in child support, Branch objected, arguing that his income had not increased and that his payment of support arrearages for another child should be deducted in calculating income available for support of A.B. Branch had been obligated to pay support for the other child under a California order. This child was born before A.B. and had reached majority prior to the current proceedings. But Branch remains obligated to pay $200 each month to satisfy arrearages in the California support.[1]
*263 After a hearing, a child support magistrate determined that the California arrearage payments are excluded from Branch's income for purposes of calculating support for A.B. The magistrate relied on statutory law, stating:
Minn.Stat. [§ ] 518.551, subd. 5(b)(viii) does not make a distinction between an order for current support or an order for arrears. An Obligor is to receive a credit for "a child support or maintenance order that is currently being paid."
The magistrate then excluded the California monthly arrearages from Branch's income and ruled that there had been no substantial change in circumstances that would warrant a modification of Branch's child support obligation.
The district court denied Martisko's motion for review of the magistrate's order and affirmed the magistrate's findings of fact and conclusions of law. Martisko appeals.

ISSUE
Under Minn.Stat. § 518.551, subd. 5(b)(viii) (2000), a child support order that is currently being paid is to be excluded when calculating an obligor's net monthly income available for child support. Does the exclusion apply to arrearages that the obligor is currently paying for the support of a child who has reached majority?

ANALYSIS
Appellant Martisko argues that because the child in California has reached majority the California support order no longer exists and Branch is paying a judgment for arrearages. She urges that such payments are not excludable from Branch's income. She also contends that the district court erred in affirming the magistrate's interpretation of Minn.Stat. § 518.551, subd. 5(b)(viii) (2000), because it violates public policy.
The record does not show that the California arrearages have been reduced to judgment or that a child support order automatically becomes a judgment for any arrearages that exist when the child reaches majority. The record supports the conclusion that Branch had been ordered by a California court to pay support for a child, that Branch fell into arrears on that support obligation, that the child reached majority but arrearages remained, and that Branch is currently paying down those arrearages.
Statutory construction is a matter of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Application of a statute to the undisputed facts of a case involves a question of law, and the district court's decision is not binding on this court. Boubelik v. Liberty State Bank, 553 N.W.2d 393, 402 (Minn.1996). Minn.Stat. § 518.551, subd. 5(b)(viii), states that a child support obligor's "[t]otal monthly income [does not include] * * * [a] Child Support * * * Order that is Currently Being Paid." The statute does not distinguish between payments being made when due and payments to satisfy arrearages. It requires only that there be an order for child support and that payments under that order are currently being made. There is no contention here that Branch's California payments are gratuitous; rather, he is paying because a court has ordered him to do so.
There is no contention that the California payments are for anything other than child support, albeit past due. Thus, Branch's California payments fit the plain language of the statute. When the language of a statute is clear on its face and free from ambiguity, no interpretation is *264 necessary, or even permissible. Owens v. Water Gremlin Co., 605 N.W.2d 733, 737 (Minn.2000). In such case, the courts must simply apply the statute to appropriate facts. See Deal v. Northwood Children's Home Soc'y, Inc., 608 N.W.2d 922, 925 (Minn.App.2000) (stating that "[i]n the absence of ambiguity the court must apply the plain language of the statute"), review denied (Minn. June 13, 2000). The magistrate did so.
Martisko also argues that allowing respondent to deduct the $200 violates public policy because it is an egregious result for A.B., who is failing to receive child support that "is rightfully hers." However, Minnesota law provides that the needs of subsequent children do not necessarily take precedence in determining child support obligations. Minn.Stat. § 518.551, subd. 5f (2000); see, e.g., Bock v. Bock, 506 N.W.2d 321, 324 (Minn.App.1993) (stating that although it is appropriate for the district court to consider obligor's burden to support subsequent children, a principle with equal force is that the needs of subsequent children cannot be factored into a guidelines calculation); Hayes v. Hayes, 473 N.W.2d 364, 365-366 (Minn.App.1991) (stating that a district court's discretion in deferring to a later child support obligation is limited by "the long-standing recognition that a child support obligor must favor an established obligation over a subsequently assumed obligation."); Wollschlager v. Wollschlager, 395 N.W.2d 134, 135-36 (Minn.App.1986) (finding that if obligor is not paying the prior child support order, the prior obligation is to be disregarded in determining child support obligation for subsequent children; however, if the obligor is currently paying the prior support, he is entitled to have the amount deducted from his income). Although we are addressing the issue in the context of current payments of child support arrearages, these cases appear to apply to and support the magistrate's interpretation of Minn.Stat. § 518.551, subd. 5(b)(viii), as well as the district court's decision to affirm the magistrate's interpretation. Nothing in these authorities suggests that the consideration of a current obligation for child support arrearages should be treated differently from payments made when due. We, therefore, reject Martisko's public-policy argument.

DECISION
The district court correctly applied Minn.Stat. § 518.551, subd. 5(b)(viii) (2000), and the application of the statute to child support arrearage payments does not violate public policy.
Affirmed.
NOTES
[*]  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1]  A copy of the California order is not included in the record for this appeal. However, both parties agree that the payments being made pursuant to the California order are solely for child support arrearages. Martisko argues that the California order is no longer in effect, but there is no showing that the California arrearages have been forgiven, or that child support arrearages are automatically forgiven once the child reaches majority.


536 U.S. 905
NATIONAL ELECTRICAL MANUFACTURERS ASSN.v.SORRELL, ATTORNEY GENERAL OF VERMONT, ET AL.
No. 01-1489.
Supreme Court of the United States.
June 10, 2002.

1
C. A. 2d Cir. Certiorari denied. Reported below: 272 F. 3d 104.


42 A.3d 291 (2012)
COM.
v.
GRANT.
No. 885 MAL (2011).
Supreme Court of Pennsylvania.
April 5, 2012.
Disposition of Petition for Allowance of Appeal Denied.


50 Cal.2d 345 (1958)
Estate of HERBERT EDWARD LAW, Deceased. WELLS FARGO BANK (a Corporation), as Executor, etc., Appellant,
v.
ROBERT C. KIRKWOOD, as State Controller, etc., Respondent.
S. F. No. 19672.
Supreme Court of California. In Bank.
May 23, 1958.
 Pillsbury, Madison & Sutro, Harold I. Boucher, W. J. McFarland, Claude H. Hogan, Jr., Willis D. Hannawalt and Arthur L. Content for Appellant.
 Robert C. Harris, Donald B. Falconer, Heller, Ehrman, White & McAuliffe, Jannin & Morgan and Roos, Jennings & Haid as Amici Curiae on behalf of Appellant.
 James W. Hickey, Chief Inheritance Tax Attorney, Joseph D. Lear and Charles J. Barry, Assistant Chief Inheritance Tax Attorneys, and Milton D. Harris, Assistant Inheritance Tax Attorney, for Respondent.
 TRAYNOR, J.
 The executor of the estate of Herbert E. Law appeals from the orders of the trial court overruling its objections and fixing the marital exemption under section 13805 of the Revenue and Taxation Code at the amount computed by the Controller.
 Decedent died testate on June 18, 1952. He left over half his estate to his wife, provided a legacy for an adopted daughter, *349 and left the residue in trust for other beneficiaries. [1] The will provided that inheritance and estate taxes should be paid "out of my residuary estate in the same manner as an expense of administration" and should not be apportioned, prorated, or charged against any of the devisees, legatees, or beneficiaries. This provision precluded proration of the federal estate tax under sections 970 to 977 of the Probate Code. The market value of decedent's estate, which consisted solely of separate property, was $2,961,436.71. [2] The computations of the marital exemption contended for by the parties are as follows:
 Tabular Material Omitted
 The difference in the computations arises from the fact that the Controller subtracts all allowable deductions, including the federal estate tax ($418,901.13), from the market value of the entire estate and takes half the remainder as the marital exemption, whereas the executor subtracts only deductions other than the federal estate tax from the market value of the entire estate before taking half as the marital exemption. The executor's computation increases the marital exemption as computed by the Controller by half the federal estate tax. The Legislature has the power to prescribe either computation. (Stebbins v. Riley, 268 U.S. 137, 144-145 [45 S.Ct. 424, 69 L.Ed. 884, 44 A.L.R. 1454]; Estate of Watkinson, 191 Cal. 591, 596 [217 P. 1073].) The question is: What computation has it prescribed?
 [3] The answer depends upon the proper construction to be given section 13805 of the Revenue and Taxation Code. The pertinent part of that section provides:
 "Property equal in amount to the clear market value of one-half of the decedent's separate property shall, if transferred *350 to the spouse of the deceased, be exempt from the tax imposed by this part. ..."
 The marital exemption under this section, like the federal marital deduction (26 U.S.C.A.,  2056), is limited to the lesser of two amounts, the amount "transferred to the spouse" and the amount of the "clear market value of one-half of the decedent's separate property." The issue here concerns the second limitation, for the amount thereof under either the executor's or the controller's computation is less than the amount transferred to the spouse.
 [4] The controlling words in this limitation, "clear market value," are governed by the definitions in sections 13311 and 13312, for section 13302 provides: "Except where the context otherwise requires, the definitions given in this chapter govern the construction of this part." "This part" consists of part 8 entitled "Inheritance Tax" and includes sections 13301 through 14901. Section 13311 provides: " 'Market value,' in respect to property included in any transfer, means the market value of the property as of the date of the transferor's death, whether or not the transfer was made during the life time of the transferor." Section 13312 provides: " 'Clear market value' means the market value of any property included in any transfer, less any deductions allowable by this part." It is obvious at the outset that had the Legislature intended that no deductions should be subtracted, it would simply have used the words "market value" instead of "clear market value." It remains therefore to determine what the allowable deductions are and from what they should be deducted.
 The allowable deductions are set forth in sections 13981 to 13990 and include such items as expenses of administration, debts, expenses of funeral and last illness, attorney's fees, and federal estate tax ( 13989). Since the federal estate tax is an allowable deduction, the Controller contends that in conformity with section 13312 it must be subtracted from the market value of decedent's separate property to ascertain the clear market value thereof and that half the amount so ascertained is "the clear market value of one-half of the decedent's separate property."  [fn. 1]*351
 The executor contends that the Controller's computation involves an unauthorized transposition of the words of the statute from "the clear market value of one-half of the decedent's separate property" to "one-half of the clear market value of the decedent's separate property."  [fn. 2] The executor's theory apparently is that the section as worded requires taking half the market value of decedent's separate property before subtracting the allowable deductions therefrom to arrive at the clear market value thereof under section 13312. The executor then contends, citing 18 Administrative Code, sections 837, 848, and 849, that clear market value has meaning only with respect to particular distributees and that deductions are allowable, not to the estate of a decedent, but only to particular distributees; that since the only beneficiary concerned with the marital exemption is the wife, the allowable deductions to be subtracted in arriving at the marital exemption must be the wife's allowable deductions; and that since the wife in this case is not charged with payment of any federal estate tax because the decedent directed that it should be paid out of the residue and none of the residue went to the wife, she is not allowed any deduction therefor ( 13981) and accordingly none of the federal estate tax should be subtracted from half the market value of decedent's separate property in arriving at the marital exemption.
 [5] Section 13805 cannot reasonably be construed to support the executor's contention. In the first place it is immaterial whether the allowable deductions are taken from the total market value of decedent's separate property or from half the market value thereof so long as half the total deductions (the pro rata share thereof) are subtracted from each half of the market value of decedent's separate property to arrive at the clear market value of each half. To arrive at the clear market value of each half there is no more reason to subtract all the deductions from any one half than there is to subtract all of them from the other half. The two halves of any figure are necessarily equal. Therefore, since the clear *352 market value of either half of the decedent's separate property cannot be greater or less than the clear market value of the other half, the allowable deductions must be prorated equally to each half.
 [6] In the second place, section 13805 cannot reasonably be construed as providing that the allowable deductions to be subtracted in arriving at the marital exemption must be the surviving spouse's allowable deductions. That section reads, "Property equal in amount to the clear market value of one-half of the decedent's separate property shall, if transferred to the spouse of the deceased, be exempt from the tax imposed by this part. ..." The words "equal in amount" clearly show that the relationship between the "Property" that "shall ... be exempt" and "the clear market value of one-half of the decedent's separate property" is purely quantitative and that it is immaterial whether the property exempted is community property or separate property or whether the separate property or any part thereof does or does not pass to the surviving spouse. The Controller parses the pertinent sentence in section 13805 to demonstrate the validity of this conclusion: The subject of the sentence is "Property." Stripped of its modifying clauses it reads, "Property ... shall ... be exempt from the tax imposed by this part." The first clause, "equal in amount to the clear market value of one-half of the decedent's separate property," modifies "Property" solely as to amount. The words, "equal in amount," establish a purely quantitative limitation. The second clause, "if transferred to the spouse of the deceased," is qualitative and modifies the subject, "Property," and not the object of the first clause, "decedent's separate property." Under any interpretation permissible by simple rules of grammar, the exemption extends to any type of property passing to the spouse, the amount to be limited to the clear market value of one-half of the decedent's separate property.
 [7] Since the second limitation on the marital exemption is a purely quantitative one and it is immaterial whether or not the surviving spouse receives separate property, it necessarily follows that it is likewise immaterial what deductions may be allowed with respect to property the surviving spouse actually receives. There is no more reason for assuming that the deductions to be taken in determining the clear market value of one- half of the decedent's separate property are the deductions allowable to the surviving spouse than that they *353 are the deductions allowable to other distributees.  [fn. 3] The underlying premise of the executor's contention, stated in various ways in his briefs and the briefs of amici curiae, is that the second limitation on the marital exemption is measured by the clear market value of one-half of the decedent's separate property passing to the wife. If this premise were valid it would compel the disallowance of the marital exemption in many cases where none of the decedent's separate property passes to the surviving spouse. Thus, if the wife is to receive the decedent's share of the community property, there would be no marital exemption even though there was separate property in the estate passing to other distributees. Such a result would increase the tax burden of many surviving spouses in plain disregard of the statutory purpose to grant the marital exemption regardless of what type of property actually passes to the surviving spouse.
 If, as the executor contends, the phrase "allowable deductions" has meaning only with respect to specific distributees so far as the federal estate tax deduction is concerned, it would have the same meaning so far as other deductions, such as administration expenses, are concerned. (Compare the wording of sections 13983, 13986, 13987, and 13988 with that of section 13989.) Thus, in the present case, since all expenses were paid from the residue, no deduction therefor would be allowed to the wife and none would be subtracted from the market value of half of decedent's separate property. The executor, however, does not contend that allowable deductions other than the federal estate tax should not be deducted in computing the marital exemption; indeed, it includes these other deductions in its own computation. *354
 [8] In the third place the executor's contention that the words "clear market value" have meaning only with respect to specific distributees is without merit. Section 13312, as noted previously, states: " 'Clear market value' means the market value of any property included in any transfer, less any deductions allowable by this part." Note that this definition uses the phrase "any property included in any transfer." Transfer is defined in section 13304: " 'Transfer' includes the passage of any property, or any interest therein or income therefrom, in possession or enjoyment, present or future, in trust or otherwise." The sections that provide for deductions ( 13981-13990) state that the particular expenses "are deductible from the appraised value of property included in any transfer subject to this part made by the decedent." It is apparent that none of these sections support the theory that "clear market value" has meaning only with respect to specific distributees. [9] Nor do the sections of the Administrative Code (18 Cal. Admin. Code,  837, 848, 849), cited by the executor, support such a theory. They merely provide that the inheritance tax is ordinarily measured by the clear market value of the distributive share of a decedent's estate to which a particular transferee is entitled and provide for such computation. In each section the word "ordinarily" is used. Under these sections the clear market value of the entire estate would be determined and the tax computed with respect to each distributee's share of the net estate where the testator directed that all expenses, including federal estate tax, were to be paid from the estate and not prorated or charged to any of the beneficiaries. In such a case, no deduction would be allowed to each distributee since the deductions would be allowed in determining the net estate (clear market value of the estate). In fact, that result occurred in the present case, for the federal estate tax was paid from the residue and, in accordance with the decedent's will, was not charged or prorated against the individual beneficiaries, and accordingly, they were not allowed a deduction therefor. Thus, the clear market value of the property in the residue was determined and the state tax computed on each beneficiary's share of the net residue. If the executor's theory that deductions are allowable only with respect to specific distributees were correct, the Controller improperly allowed a deduction for federal estate tax against the market value of property in the residue, for there are 18 beneficiaries of that residue under the will. No deduction can be allowed to *355 each beneficiary, for to do so would require that the expense be proratably charged to each beneficiary and a deduction allowed to each contrary to the terms of the will. The statutes do not require such a result and both reason and justice dictate otherwise. [10] Thus, when a testator directs that an expense is not to be charged to the individual beneficiaries but is to be charged against a part of the estate, the deduction for that expense should be allowed against that part and the tax on the beneficiaries of that part should simply be computed on their net share thereof. [11] The Legislature's use of the phrase "clear market value" in section 13805 plainly demonstrates that that phrase has meaning with respect to a certain part of the estate for it requires that the clear market value be taken of one-half of decedent's separate property, which, as demonstrated previously, need not pass to a single distributee, i.e. the wife, but may actually pass to various distributees.
 The executor contends that its computation is supported by Estate of Cushing, 113 Cal.App.2d 319, 332-334 [248 P.2d 482]. That case held that in computing the "one-half of the community property which belongs and goes to the surviving wife, pursuant to Section 201 of the Probate Code" free of inheritance tax under section 13551 of the Revenue and Taxation Code, the federal estate tax should not be subtracted with respect to post-1927 community property, i.e., community property acquired after the enactment of section 161a of the Civil Code. The court in that case also held, however, that as to pre-1927 community property, the allowable deduction for federal estate tax should be subtracted in computing the wife's one-half that is free from inheritance tax, citing Estate of Atwell, 85 Cal.App.2d 454, 457-458 [193 P.2d 519], which in turn cited and relied upon Estate of Coffee, 19 Cal.2d 248, 252-253 [120 P.2d 661].
 In support of its contention the executor urges that part of the basis for the holding in Estate of Cushing is that since there was no federal estate tax on post-1927 community property, such property did not contribute to the federal tax, and, therefore, the federal estate tax was not subtracted in determining the wife's share free of inheritance tax. Because of the federal marital deduction, the executor concludes that the same is true of the separate property in this case. The contention is without merit, for the federal marital deduction was allowed with respect to the pre-1927 community property in the Cushing case just as it was allowed with respect to the *356 separate property in this case. The executor does not deny that for federal estate tax purposes, pre-1927 community property is treated in the same manner as separate property and that a federal marital deduction is allowed with respect thereto.
 The basis of the Cushing decision is stated on page 334 (113 Cal.App.2d) as follows:
 "It follows from what has been said that the California statutes indicate that the widow's one-half of the post-1927 community property, since it is not part of the 'gross estate' of the husband and is not liable for the federal estate tax, should not be charged, directly or indirectly, with any portion of the federal estate tax. This reasoning does not apply to pre-1927 community property, and, as to it, Estate of Atwell is controlling." That reasoning does not apply to the decedent's separate property just as it does not apply to pre-1927 community property, for both are treated alike for federal estate tax purposes and both are part of the decedent's "gross estate." Consequently, Estate of Cushing supports the Controller's and not the executor's contentions.
 The executor contends that section 13805 is modeled after the federal marital deduction and that to subtract federal taxes in computing the state marital exemption is to reach a result contrary to that reached under the federal statute. (26 U.S.C.A.,  2056.) The state statute provides for the subtraction of allowable deductions by the use of the words "clear market value" just as the federal statute provides for their subtraction by the use of the words "adjusted gross estate," i.e., the gross estate less deductions allowed by sections 2053 and 2054. (26 U.S.C.A.,  2056.) The difference is that the federal statute does not allow any deduction for federal estate tax or for state inheritance tax,  [fn. 4] whereas the state does allow a deduction for federal estate tax. If the federal statutes (26 U.S.C.A.,  2053-2054) provided for a deduction of either federal estate tax or state inheritance tax, such deductions would be made in determining the "adjusted gross estate" and would therefore enter into the computation of the federal marital deduction. [12] Since the state statute does provide for the deduction of the federal estate tax in determining "clear market value," it must therefore enter into the computation of the state marital exemption, for that exemption is governed by the controlling words "clear market *357 value" whose meaning is made to depend on allowable deductions. [13] Moreover, the state provisions were not intended to have the same consequences as the federal provisions, for the state provides for a marital exemption rather than a deduction. (Compare also the terminable interest rule in 26 U.S.C.A.,  2056 with Rev. & Tax. Code,  13805.) The difference is that the federal deduction comes off the top of the tax brackets (26 U.S.C.A.,  2001, 2051), whereas the state marital exemption comes off the bottom, i.e., the tax is computed on the remainder of the property at the same rates that would have been applicable had the exemption not been allowed. (Rev. & Tax. Code,  13403; cf.  13989 as amended in 1957.)
 [14] The executor contends that the Legislature intended substantial equality in the tax treatment of separate property and post-1927 community property and that such equality requires the exclusion of the federal estate tax from the allowable deductions in computing the marital exemption. The extent of such equality, however, must be determined by the statute. It is clear that full equality was not intended, for as mentioned above, section 13805 provides for an exemption rather than an exclusion and section 13312 compels the consideration of federal estate tax as an allowable deduction.
 [15] The executor contends that the Controller's interpretation of section 13805 conflicts with the policy expressed in the proration provisions. (Prob. Code,  970-977.) The proration provisions provide, when applicable, that the federal estate tax shall be equitably prorated against those beneficiaries whose shares contributed to the creation of such tax. Section 13805, however, is concerned with the computation of the marital exemption for state inheritance tax and is not concerned with which shares shall be charged with the payment of the federal estate tax. Thus, when the proration provisions apply, only those beneficiaries whose shares contributed to the creation of the federal estate tax will be charged with the payment thereof. The proration provisions do not establish a policy that there shall be no state inheritance tax on any property qualifying for the federal marital deduction. This conclusion is obvious not only from the nature of those provisions but from the fact that the proration provisions were enacted (1943) five years before the federal marital deduction provision was enacted (1948) and seven years before the state marital exemption provision was enacted (1950). *358
 Finally, amici curiae contend that the Controller's interpretation of section 13805 is absurd because the identity of other legatees may affect the amount of the marital exemption. Examples are set forth in their brief to demonstrate this alleged absurdity by showing that when there are bequests to charities, the federal estate tax will be lower and the second limitation on the marital exemption will be higher. There is nothing absurd about this result, for it necessarily follows from the deduction allowed for the federal estate tax that the higher that tax is, the lower will be the net taxable estate subject to the state inheritance tax. Thus, if the estate consisted of separate property valued at $15,000,000 and the only charge against it is a federal estate tax of $6,000,000, the net taxable estate subject to the state inheritance tax would be only $9,000,000, because a deduction is allowed for the federal estate tax just as deductions are allowed for administration expenses. Thus anything that reduces or augments the federal estate tax, whether it be the allowance or disallowance of exemptions, exclusions, charitable or other deductions, will reduce or augment the clear market value of the decedent's separate property. Moreover, the same result occurs with respect to pre-1927 community property under Estate of Atwell and Estate of Cushing, and would occur as well under the executor's theory when the wife's share is charged with the payment of all or a percentage of the federal estate tax.
 The orders are affirmed.
 Gibson, C.J., Shenk, J., Carter, J., and Spence, J., concurred.
 SCHAUER, J.,
 Dissenting.
 The statute which, by its express terms, should govern this case is section 13805 of the Revenue and Taxation Code. That section declares that "Property equal in amount to the clear market value of one-half of the decedent's separate property shall, if transferred to the spouse of the deceased, be exempt from the tax imposed by this part ..." (Italics added.) I find nothing unclear in the language chosen by the Legislature.
 The computations of the executor are obedient to the statute. But the Controller, with the approval of a majority of this court, in effect amends the statute by changing the base of the exemption from the "clear market value of one-half of the decedent's separate property" to one-half of the value of such portion of the decedent's separate property as may *359 remain after the federal estate tax shall have been deducted from the value of the estate.
 This act, if regarded as legislative, obviously is in derogation of section 1 of article III of the California Constitution. If justification is sought on the theory that it is "judicial construction" it is equally indefensible, for the construction brings a result contrary to the interest of the taxpayer in violation of the oft reiterated principle that tax statutes are to be strictly construed in favor of the taxpayer and against the state. (County of Los Angeles v. Jones (1939), 13 Cal.2d 554, 561 [2] [90 P.2d 802], and authorities there cited; Whitmore v. Brown (1929), 207 Cal. 473, 483 [279 P. 447].)
 The suggestion of the majority that the executor's theory could work adversely to the taxpayer in a totally different situation is not persuasive; it ignores the specificity of the situation which is before the court and assumes that in the different situation as well as in this one the court will construe the applicable statutes in favor of the state and against the taxpayer. I would follow the contrary rule and give to the taxpayer the benefit of the doubt in any case wherein the legislative language was uncertain enough to admit of construction.
 It follows that the order from which the executor appeals should be reversed.
 McComb, J., concurred.
NOTES
[fn. 1]  1. If both community property and separate property were included in the estate, only a pro rata share of allowable deductions would be subtracted by the Controller from the separate property to obtain the "clear market value" thereof. Since the entire estate herein consists of separate property, no prorating of allowable deductions between separate and community property is called for.
[fn. 2]  2. As stated in the brief of amici curiae, the executor's case stands or falls on the proposition that "the clear market value of one-half of the decedent's separate property" means something different from "one-half of the clear market value of the decedent's separate property." The Controller contends that the result would be the same in either case; that "the clear market value of one-half of the decedent's separate property" means the same thing as "one-half of the clear market value of the decedent's separate property."
[fn. 3]  3. Assume that the decedent's taxable estate consists of community property (decedent's share) of a market value of $200,000 and separate property of a market value of $100,000; that the allowable deductions, including federal estate tax, total $60,000; that the will provides that the community property goes to decedent's wife, and one-half the separate property goes to son John and the other half to daughter Mary; and that the will also provides that two-thirds of the expenses and death taxes are to be paid from the wife's share and one-sixth of such expenses is to be paid from each half of the separate property. Thus $40,000 will be deductible by the wife and $10,000 will be deductible by each of the children. It is readily apparent that neither the wife's share ($200,000 of community property) nor the allowable deductions with respect thereto ($40,000) bear any logical relationship to "the clear market value of one-half of the decedent's separate property." It would be more reasonable to assume that the "clear market value of one- half of the decedent's separate property" was the half going to son John or to daughter Mary less his or her allowable deductions.
[fn. 4]  4. A limited credit is allowed, however, for state inheritance tax under 26 U.S.C.A.,  2011.


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 8, 2016

          STATE OF TENNESSEE v. CANDACE RENEE BENNETT

                Appeal from the Criminal Court for Davidson County
                    No. 2011-D-2978       Seth Norman, Judge

              No. M2016-00287-CCA-R3-CD – Filed December 12, 2016

The Defendant, Candace Renee Bennett, pleaded guilty to attempted aggravated child
neglect in exchange for an agreed eight-year sentence. The trial court ordered that the
Defendant serve her sentence on probation and that her sentence run concurrently with a
sentence in another case. The Defendant filed a motion pursuant to Tennessee Rule of
Criminal Procedure 36.1 contending that her sentence was illegal. She asked to withdraw
her guilty plea and have the charges dismissed. The trial court denied her motion. On
appeal, the Defendant contends that her sentence is illegal because it is not authorized by,
and directly contravenes the criminal responsibility statute. After review, we affirm the
trial court’s judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ALAN E. GLENN, J., joined.

Chelsea Nicholson, Nashville, Tennessee, for the appellant, Candace Renee Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm, Catrin
Novak Miller and Brian Holmgren, Assistant District Attorneys General, for the appellee,
State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from injuries sustained by a child placed in a hot bathtub, which
occurred between July 29, 2011, and August 2, 2011. On October 21, 2011, a Davidson
County grand jury indicted the Defendant for one count of aggravated child neglect and
four counts of being an accessory after the fact in aid of Jarico Levon Huey and Suzanne
Ruth Wiley, both of whom were alleged to have committed felonies.

       The Defendant filed a motion to dismiss the indictment. In the motion, the
Defendant’s attorney asserted that there had been a hearing on a motion to reduce bond,
and that the following were undisputed facts:

             At the time of the indictment, the Defendant was on probation for
      unrelated cases in Division II, Criminal Court. A probation violation
      warrant was filed on January 6, 2012. This indictment and case was the
      sole basis for the violation. A hearing was held on February 16, 2012. At
      the hearing the lead detective for this case, Detective John Grubbs, testified.
      The Court made an Order with specific findings of fact regarding the
      violation. . . . Based on the testimony offered at these hearings and specific
      finding of fact made by the Honorable Judge J. Randall Wyatt, Jr., the
      Defendant offers the following undisputed facts in support of this Motion:

             Detective John Grubbs is the lead detective on this case. He is with
      the Youth Services Department with the Metro Nashville Police
      Department. He was assigned to this case to investigate allegations of a
      victim’s burn injuries. He was contacted on August 2, 2011 by Vanderbilt
      Hospital in regards to the victim. He testified that the victim in this case,
      [M.D.]1, who was roughly one year and seven months old at the time, had
      sustained second degree and third degree burns while in the car of her
      mother, Suzanne Wiley, and her mother’s boyfriend, Jarico Huey.
      Detective Grubbs could not say when the injury occurred, but based on his
      investigation, he believed the injury occurred on July 29, 2011. The
      statements of Suzanne Wiley and Jarico Huey indicate that the baby’s
      injuries occurred while she was severely burned in the bathtub. The
      Defendant . . . was not present when this occurred.

             The baby was burned in the bathtub at the mother, Suzanne Wiley’s
      apartment located [in] . . . Nashville, TN . . . where the mother resided with
      the baby. Jarico Huey, the mother’s boyfriend, resided [on] . . . 1st Avenue
      South, Nashville, TN . . . [with] the Defendant . . . and codefendants: Doris
      Buford, Donald Higgins, and Karen Higgins Huey. Doris Buford is Jarico
      Huey’s grandmother. Donald Higgins is Jarico Huey’s brother, and was at
      the time, the Defendant’s boyfriend. Karen Higgins Huey is Jarico Huey’s
      mother. The Defendant was renting a room in this house from Doris

      1
          It is the policy of this Court to refer to minor victims by their initials only.
                                                    2
      Buford, which she shared with Donald Higgins. All the persons who
      resided in this house located [on] 1st Avenue South are indicated in Counts
      5-9 for aggravated child neglect and accessory after the fact.

              At some point, the mother, Suzanne Wiley, brought the baby to this
      residence located [on] . . . 1st Avenue South. Detective Grubbs is unsure
      when. At the probation violation hearing, he stated that it could have been
      the next day. Detective Grubbs testified that the Defendant . . . only saw
      this baby once after the baby was burned. He cannot say which day during
      the 5 days of the indictment [the Defendant] saw the baby. In her
      statement, [the Defendant] indicated that she saw the baby once when she
      and her boyfriend, codefendant Donald Higgins, spent the night with Ms.
      Wiley at her apartment where she and the baby lived. Detective Grubbs
      testified that the Defendant told the mother on this occasion to take [the]
      baby to the hospital at least once. Detective Grubbs stated in her statement
      that on this date, she applied ointment and saline solution to the baby’s
      injury.

              Based on this one incident, the Defendant is charged with aggravated
      child neglect and four (4) counts of accessory after the fact. The Defendant
      is not the child’s mother, not the child’s caretaker or baby-sitter, and not the
      child’s relative. The Defendant was not present at the apartment when the
      baby’s injuries were inflicted. On August 2, 2011, when the mother took
      the baby to the hospital, the Defendant was not present.

The State responded to the Defendant’s motion contending that the charges should not be
dismissed.

      The trial court filed an order granting in part and denying in part the Defendant’s
motion. The trial court found:

            Ms. Wiley’s eighteen-month-old daughter was severely burned when
      Mr. Huey placed the child in a hot bath. While visiting Mr. Huey and Ms.
      Wiley, the Defendant observed and helped treat the victim’s wounds. She
      apparently advised the couple to seek medical attention for the child at the
      emergency room and recommended other types of treatment as well. Ms.
      Wiley’s mother eventually convinced her to take the child to the hospital,
      where the child was treated for second and third degree burns.

            The Defendant . . . argues that the State must first show that the
      Defendant owed a legal duty to the Victim in order to prove neglect. . . .
                                             3
       The State counters that the [law upon which the Defendant relies to support
       her contention] was misapplied and should therefore not control. Initially,
       it should be noted that the statutory provisions for the offense of child
       neglect include neither a definition for the term nor is there any mention of
       what particular degree of relationship must exist between the victim and the
       defendant before a duty arises.

              ....

               In the opinion of the Court, it appears . . . [a] jury may conclude that
       a relationship existed between the Defendant [who was a nurse’s assistant
       by trade] and the Victim wherein the former owed a duty to protect and
       care for the former. Therefore, the Defendant’s Motion to Dismiss is
       respectfully denied with regard to the charge of aggravated child neglect.

        The trial court went on to dismiss the charges against the Defendant of accessory
after the fact. It stated:

              The Defendant did not provide Mr. Huey and Ms. Wiley any aid in
       avoiding arrest, trial, conviction or punishment. Rather, since she was a
       nurse’s assistant by trade, her help was requested in administering
       treatment for the victim’s wounds. The indictment does not contend that
       the Defendant harbored, concealed or warned the principal of impending
       apprehension or discovery.

              Considering the aforementioned undisputed facts, in conjunction
       with the pertinent statutory provisions, the Court is of the opinion that the
       indictment on counts five through nine in this matter need not be
       determined by a jury. Therefore, the Defendant’s Motion to Dismiss is
       hereby granted with respect to counts six through nine.

       On September 12, 2012, after the trial court’s ruling on the Defendant’s motion to
dismiss, the Defendant entered a plea of guilty to the lesser-included offense of attempted
aggravated child neglect in exchange for a sentence of eight years, to be served at 45%.
The parties agreed to allow the trial court to determine the manner of service of the
sentence and the extent to which it ran concurrently with or consecutively to another case
in which she had been convicted and sentenced. The trial court’s judgment, entered
September 19, 2012, reflects that the trial court sentenced the Defendant to eight years of
probation. The judgment does not reference the Defendant’s other sentence.

                                              4
       The Defendant’s boyfriend at the time, Mr. Higgins, proceeded to trial on his
charges. A jury convicted him of aggravated neglect. Mr. Higgins appealed, and, on July
27, 2015, this Court held that the evidence presented by the State was insufficient to
sustain Mr. Higgins’s conviction. We concluded that there was no relationship between
Mr. Higgins and the victim that gave rise to a legal duty to seek medical treatment for the
victim. State v. Donald W. Higgins, III, No. M2014-01171-R3-CD, 2015 WL 4515122,
at *5 (Tenn. Crim. App., at Nashville, July 27, 2015), no Tenn. R. App. P. 11 application
filed.

       On October 12, 2015, the Defendant filed a motion to correct an illegal sentence
pursuant to Tennessee Rule of Criminal Procedure 36.1(a). The Defendant contended
that her sentence was illegal based upon this Court’s ruling in Higgins. She asserted that,
because Mr. Higgins had no legal duty to the victim she also had no legal duty to the
victim, and she never should have been indicted. This, she asserted, resulted in her
sentence being illegal and in contravention to statute. The Defendant asked the trial court
to allow her to withdraw her plea.

       The State responded that Tennessee Rule of Criminal Procedure 36.1 did not apply
to this sentence and that the Defendant had not presented a colorable claim that her
sentence was illegal. The State asserted that the Defendant was raising the sufficiency of
the evidence supporting her conviction, which was not a proper ground for a Rule 36.1
claim.

       On January 28, 2016, the trial court issued an order denying the Defendant’s Rule
36.1 motion. The trial court noted that four of the Defendant’s five co-defendants had
pleaded guilty and that only Mr. Higgins had proceeded to trial, where a jury convicted
him. The trial court acknowledged that this Court had found that there was insufficient
evidence to sustain Mr. Higgins’s conviction and that, based upon this, the Defendant had
asserted that there was no legal basis upon which her indictment could stand. The trial
court then found:

             Tenn. R. Crim. P. 36.1 permits a party to seek correction of an
      illegal sentence by filing a motion claiming the sentence is either
      unauthorized or contravenes applicable statutes at any time. Thus, similar
      to post-conviction relief, if [a] Petitioner not only makes a colorable claim
      warranting a hearing, but also succeeds on the merits of his claim, all
      charges are reinstated – including any that were dismissed as part of the
      plea negotiations – and the case starts anew with the original charges (not
      the lesser included offenses to which Petitioner pled). The parties may
      reach a different settlement agreement complying with all sentencing
      requirements, the State may dismiss the charges, or, should the State
                                            5
      decline to extend a plea offer or the defendant reject any offers extended,
      the case would proceed to trial on the original charges set forth in the
      indictment.

              Before this Court may grant [the Defendant] a hearing to determine
      if there was an illegal sentencing provision that was material to her plea,
      this Court must determine whether [the Defendant] has met her burden of
      establishing a colorable claim. If the facts were as [the Defendant] stated in
      her petitioner she would nevertheless have failed to meet the burden
      because the sentence is not void. . . .

             [The Defendant] fails to assert a claim that her sentence is illegal.
      [The Defendant] instead asserts that there is no legal basis to her
      conviction. Without reaching any conclusions on [the Defendant’s]
      assertions, this Court must find that Rule 36.1 does not provide a remedy
      even if [the Defendant’s] assertion[s] were correct. The sentence of eight
      years of probation for the charge of attempted aggravated child neglect is a
      legal sentence authorized by [statute].

It is from this judgment that the Defendant now appeals.

                                      II. Analysis

      On appeal, the Defendant contends that her sentence is illegal because, based on
Higgins, the evidence is insufficient to sustain her conviction. The State counters that
Rule 36.1 contemplates only the challenging of an illegal sentence, not an underlying
conviction. We agree with the State.

      Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:

      (a) Either the defendant or the state may, at any time, seek the correction of
      an illegal sentence by filing a motion to correct an illegal sentence in the
      trial court in which the judgment of conviction was entered. For purposes
      of this rule, an illegal sentence is one that is not authorized by the
      applicable statutes or that directly contravenes an applicable statute.

      (b) Notice of any motion filed pursuant to this rule shall be promptly
      provided to the adverse party. If the motion states a colorable claim that the
      sentence is illegal, and if the defendant is indigent and is not already
      represented by counsel, the trial court shall appoint counsel to represent the
      defendant. The adverse party shall have thirty days within which to file a
                                            6
       written response to the motion, after which the court shall hold a hearing on
       the motion, unless all parties waive the hearing.

Tenn. R. Crim. P. 36.1(a), (b) (2014).

       A “colorable claim” within the language of Rule 36.1 is defined as “a claim that, if
taken as true and viewed in a light most favorable to the moving party, would entitle the
moving party to relief under Rule 36.1.” State v. Brown, 479 S.W.3d 200, 213 (Tenn.
2015) (citing State v. Wooden, 478 S.W.3d 585, 595-96 (Tenn. 2015)).

        As stated, an “illegal sentence,” as defined by this statute, is one that is “not
authorized by the applicable statutes or that directly contravenes the applicable statute.”
The Defendant does not argue, and we see no basis for concluding, that her sentence is
illegal. Her argument is based upon the fact that she would like this Court to revisit
whether she had a legal duty to the victim, based upon our conclusion in Higgins that her
boyfriend did not have a legal duty to the victim. The Defendant chose to enter a plea of
guilty, and Rule 36.1 does not provide her an avenue for withdrawing that guilty plea.
This is not a proper ground for a Rule 36.1 claim, and she is not entitled to relief.

                                     III. Conclusion

      Based on the foregoing reasoning and authorities, we affirm the trial court’s
judgment.

                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE

                                            7


                                                                            FILED
                                                                         JUNE 14, 2016
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

MICHAEL A. BOISE,                             )
                                              )         No. 33202-1-111
                     Appellant,               )
                                              )
       V.                                     )
                                              )
EMPLOYMENT SECURITY                           )         UNPUBLISHED OPINION
DEPARTMENT OF THE STATE OF                    )
WASHINGTON,                                   )
                                              )
                     Respondent.              )

       SIDDOWAY, J. -One circumstance in which an employee who voluntarily quits a

job may still receive unemployment benefits is where the employee's usual work is

changed to work that violates the individual's religious convictions or sincere moral

beliefs. RCW 50.20.050(2)(b )(x). Michael Boise resigned from a sales position shortly

after being hired, ostensibly because of such a work change. Benefits were denied him

by the state employment security department and, on appeal, by its commissioner.

       His first petition for judicial review resulted in a superior court order remanding

the administrative decision to the commissioner's review office "to issue a decision after

employing a subjective analysis of whether a change in the conditions of employment

violated a sincerely held moral belief of the petitioner." Clerk's Papers (CP) at 131. In

isolation, the directive was ambiguous, because at least one fact essential to Mr. Boise's
No. 33202-1-III
Boise v. Emp 't Security

entitlement-that there had been a change in his usual work-is an objective, not

subjective, determination. On remand, the commissioner found that Mr. Boise's usual

work had not changed, an order that the superior court then affirmed. Mr. Boise

complains both decisions were contrary to an implicit finding by the superior court,

initially, and that there had been a change in his usual work.

       The superior court did not engage in fact finding. Its directive did not perfectly

express its intent, but it is clear from its order as a whole that the court recognized that

the commissioner would objectively analyze whether there had been a change in Mr.

Boise's usual work and subjectively analyze only whether the change violated his sincere

moral belief. For that reason, and because the commissioner's ultimate order making the

required findings is supported by substantial evidence, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Cleary Building Corporation (Cleary) is in the business of selling and constructing

manufactured buildings. It hired Michael Boise as a commissioned salesperson on

February 1, 2013, at a standard base salary of $580 per week. He signed two documents

on the date of hire: a six-page employment agreement and a six-page pay plan.

Collectively, they disclosed he was expected to meet a $516,000 annual sales target on a

regular basis and that his weekly salary could be reduced if, after 60 days, he failed to

meet the target. They also disclosed that in cases where he arranged subcontract work to

be performed in connection with a building sale, he must increase the actual cost of the

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No. 33202-1-III
Boise v. Emp 't Security

subcontract by a 12 percent minimum markup and, if he increased the actual cost by

larger markups (up to 16 percent), he could earn additional "incentive" pay. CP at 86.

Mr. Boise claims that although he signed the pay plan on the day he was hired, he did not

read it and was provided with a copy of only the signature page. It was the pay plan that

disclosed the detail about compensation and compensation reduction.

       After being hired and signing the two documents, Mr. Boise was sent to

Wisconsin for two weeks of training. He claims it was there that he first learned about

the potential for salary reduction and the subcontractor markup practice. At the end of

two weeks' training, Mr. Boise notified his branch manager that he was quitting because

he could not afford a reduction in the base salary. When he returned the company car the

following Monday, the branch manager asked him ifhe wanted to stay and work through

the wage issues. Mr. Boise told his manager that it would not work, because he was not

going to be able to add money to subcontracts. In his notice of termination, Mr. Boise

marked that he was leaving for "family issues." CP at 75.

       Mr. Boise then applied to the Washington State Department of Employment

Security (department) for unemployment benefits. On the voluntary quit statement he

was required to complete, he stated his main reason for quitting was, "Cleary did not

disclose I would lose salary amount if I did not have over $48,000 in sales per month."

CP at 61. He wrote that the reasons he gave his employer for quitting were "[p ]ersonal-

reasons, my concern I would lose salary." Id. Asked if he quit due to a "[r]eduction in

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No. 33202-1-III
Boise v. Emp 't Security

pay and/or fringe benefits," Mr. Boise marked "Yes." CP at 64. 1 Asked ifhe quit due to

a "[c]hange in customary job duties which was against [his] religious or moral beliefs,"

Mr. Boise marked "No," and did not answer the question "[h]ow did the change violate

your beliefs?" CP at 65. Asked about any work changes (in the event the employee's

usual work had changed since the time of hire) Mr. Boise wrote "none." Id. Asked if

other work factors made it necessary for him to quit, Mr. Boise wrote that Cleary had

given him a filthy work car and would not reimburse him for having it cleaned. Nowhere

on the form did Mr. Boise state he quit due to moral objections.

       After the department denied Mr. Boise's claim for unemployment benefits, he

contested the determination, requesting a hearing. At the hearing before an

administrative law judge (ALJ), Mr. Boise testified he did not receive the first five pages

of the pay plan until sometime during his training in Wisconsin, which began on

February 4. He stated he was uncomfortable with marking up subcontractor bids without

disclosing the markup to the customer, that Cleary's markup practice was not consistent

with his previous experience in the industry, and that he found it morally objectionable.

Cleary's witness disagreed with Mr. Boise's claim that its markup practice was atypical,

testifying it "is a pretty standard business practice for a general contractor to mark up,

       1
        Earlier in the proceedings, Mr. Boise contended he was eligible for
unemployment benefits because his "usual compensation was reduced by twenty-five
percent or more," as provided by RCW 50.20.050(2)(v). He has abandoned that
argument.

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No. 33202-1-III
Boise v. Emp 't Security

um, the cost or the bids if [sic] their subcontractors." CP at 39. The ALJ affirmed the

department's determination, finding that Mr. Boise quit because he was "unhappy with

the pay plan." CP at 55, 99-100.

       Mr. Boise petitioned for review. Review was delegated by the commissioner to

review judge Susan Buckles. She affirmed the ALJ's decision. Addressing Mr. Boise's

contention that he had moral objections to Cleary's markup practice, she stated, "we are

persuaded that this is a normal practice in the industry, and that claimant's objections are

misplaced." CP at 111.

       Mr. Boise petitioned for judicial review. In findings of fact, conclusions of law,

and an order, the superior court remanded the case to the commissioner's review office.

It concluded that the commissioner's finding of fact that "Mr. Boise acknowledged" that

the billing practice to which he objected was common was not supported by substantial

evidence; that in discounting Mr. Boise's sincere moral belief because the markup

practice was customary, the commissioner erroneously applied an objective standard; and

that the commissioner "also erred in not making a finding of fact on whether or not there

was a change in the usual work, as required by RCW 50.20.050." CP at 130-31. It

concluded its remand order with the directive that the commissioner's review office was

"to issue a decision after employing a subjective analysis of whether a change in the

conditions of employment violated a sincerely held moral belief of the petitioner." CP at

131 (emphasis added).

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No. 33202-1-111
Boise v. Emp 't Security

       The department filed a motion for reconsideration, challenging the superior court's

requirement of a subjective analysis. 2 The superior court's letter response denied the

motion, but stated:

       The application ofRCW 50.20.050(2)(b) requires the examination of three
       matters: Does the employee have a sincere moral belief? Have work duties
       changed to where continued employment would offend the employee's
       sincere moral belief? Was the change in work duties [and] that employee's
       sincere moral belief the reason for termination of the employment
       relationship? The Court agrees that the second and third questions must be
       analyzed objectively . ... The first question, however, must involve a
       subjective analysis.

CP at 127 (emphasis added).

       On remand, review judge Annette Womac did not adopt all the findings of fact

contained in the ALJ's initial order. She made some new findings. In a new conclusion

of law, she affirmed the denial of benefits, reasoning that, as more fully set forth in her

findings, neither Mr. Boise's duties nor conditions of work changed:

       The terms of the employer's subcontract incentive program were clearly set
       forth in the Payment Plan referenced in the Employment Agreement.
       Although the claimant chose not to read the Plan before signing the
       Agreement, he nonetheless was apprised of the employer's practice because
       he signed a document that explicitly referenced the markup of subcontract
       bids.

CP at 136-37. She also concluded that despite having read the payment plan on about the

       2
         The department represents in its appeal brief that it moved for reconsideration on
the issue of whether a subjective standard should be used when determining whether a
moral belief is sincerely held. Br. of Resp 't at 6 n.1. The motion is not in our record.

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No. 33202-1-111
Boise v. Emp 't Security

second day of training, Mr. Boise did not quit until nearly two weeks thereafter, but

instead continued to participate in a training program at his employer's expense,

something she found "not consistent with an individual whose sincere moral beliefs,

viewed subjectively, have been violated." CP at 137.

       Mr. Boise again petitioned for judicial review. He argued that by referring only

the subjective issue of his sincere moral belief to the commissioner's review office, the

superior court implicitly found that a change in usual work had occurred, and that the

review judge's conclusion to the contrary violated the remand order.

       Judicial review was assigned to a different superior court department than had

heard the first petition for review. It affirmed the commissioner's decision. Mr. Boise

appeals.

                                       ANALYSIS

       The Washington Administrative Procedure Act (APA), chapter 34.05 RCW,

governs judicial review of employment benefit decisions by the commissioner of the

employment security department. Verizon Nw., Inc., v. Emp 't Sec. Dep 't, 164 Wn.2d

909,915, 194 P.3d 255 (2008). "In reviewing administrative action, this court sits in the

same position as the superior court, applying the standards of the [ ]APA directly to the

record before the agency." Tapper v. Emp 't Sec. Dep 't, 122 Wn.2d 397, 402, 858 P.2d

494 (1993). We review the decision of the commissioner, not the underlying decision of

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No. 33202-1-III
Boise v. Emp 't Security

the ALJ or the decision of the superior court. Verizon, 164 Wn.2d at 915; Markam

Group, Inc., P.S. v. Emp 't Sec. Dep 't, 148 Wn. App. 555, 560, 200 P.3d 748 (2009).

       A threshold problem with Mr. Boise's assignments of error is that they are

couched in terms of trial court error. See Br. of Appellant at 1. Reframed as agency

error-which is all that we review-they are, in substance, that ( 1) the commissioner

improperly made new findings of fact exceeding the scope of the superior court's remand

order; (2) the commissioner failed to undertake further fact finding into whether Mr.

Boise subjectively held a sincere moral belief; and (3) the trial court erred in affirming

the commissioner's decision. Elsewhere, Mr. Boise argues that four of the

commissioner's findings are not supported by substantial evidence. Id. at 9-10.

       We first address Mr. Boise's first and second assignments of error, which

challenge the commissioner's interpretation or application of the law. We then tum to

Mr. Boise's challenge to the sufficiency of evidence to support the four findings,

including whether Mr. Boise has demonstrated substantial prejudice from any

unsupported finding. Our resolution of those challenges will necessarily resolve Mr.

Boise's third, catchall assignment of error.

                           I.   Challenged procedure following remand

       The AP A authorizes courts to grant relief from an agency order in an adjudicative

proceeding in nine enumerated instances, two of which are that the agency has

"erroneously interpreted or applied the law," and that it "has not decided all issues

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No. 33202-1-III
Boise v. Emp 't Security

requiring resolution by the agency." RCW 34.05.570(3)(d), (f). Pursuant to this

authority, the superior court initially remanded the commissioner's decision for

additional agency decision making.

       Mr. Boise challenges the commissioner's action following the remand, arguing it

exceeded the scope of the remand order by finding that Mr. Boise's usual work had not

changed, and it should have, but failed to engage in further fact finding as to Mr. Boise's

sincere moral belief. He also suggests, without citation to authority, that "[b]ecause a

remand is unlikely to remedy this error, based on the prior actions of the Commissioner,"

we should reverse and order the department to provide Mr. Boise with unemployment

benefits. Br. of Appellant at 7.

       We reject the premise that the commissioner exceeded the scope of the remand

order. We have already recognized that the superior court's order was imperfectly

phrased when it directed the commissioner to "employ a subjective analysis" of some

matters that require objective analysis. But when the court's order is read as a whole, it is

clear the court intended for the commissioner to address the overlooked factual issue of

whether Mr. Boise's usual work had changed.

       First, the court's third conclusion of law states that the department "also erred in

not making a finding of fact on whether or not there was a change in the usual work, as

required by RCW 50.20.050." CP at 131. Second, it directed the commissioner's review

office to "issue a decision after employing a subjective analysis of whether f! change in

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No. 33202-1-III
Boise v. Emp 't Security

the conditions of employment violated a sincerely held moral belief of the petitioner." Id.

(emphasis added). If it had already been established that conditions of employment had

changed, the superior court's order would have called for an analysis of whether "the

change in the conditions of employment violated a sincerely held moral belief." 3 Any

confusion should have been dispelled by the court's statement, in denying the

department's motion for reconsideration, that whether "work duties changed to where

continued employment would offend the employee's sincere moral belief' and whether

that change and resulting offense was "the reason for termination of the employment

relationship" must be analyzed objectively. CP at 127.

       By making a finding of fact that Mr. Boise's work duties had not changed, then,

the commissioner did not erroneously interpret or misapply the law.

       Mr. Boise argues the agency also committed error by failing to take additional

evidence on the issue of the subjective sincerity of his moral belief. When a court grants

relief from an agency order because the agency failed to decide all the issues requiring

resolution, the relief may be in the form of a remand for further proceedings. RCW

34.05.570(t); RCW 34.05.574(1). Mr. Boise argues that Suquamish Tribe v. Central

Puget Sound Growth Management Hearings Board, 156 Wn. App. 743,778,235 P.3d

       3 The authority of the superior court under the AP A includes reviewing whether
substantial evidence supports the agency's findings of fact, but does not include making
its own findings of fact.

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No. 33202-1-III
Boise v. Emp 't Security

812 (2010) holds that "further proceedings" mean further fact finding proceedings.

       In Suquamish Tribe, the court remanded for further factual proceedings because

the record was not complete enough to conduct the proper analysis. 156 Wn. App. at

769, 777-78. The court never stated that further fact finding proceedings were always

required where an agency failed to decide an issue, and common sense suggests the

existing agency record might sometimes be sufficient. Washington Public Employees

Association v. Community College District 9, 31 Wn. App. 203,213,642 P.2d 1248

(1982) illustrates as much. In that case, after finding that the administrative agency had

applied the wrong legal standard, the court remanded the matter for "additional

proceedings," stating: "A new hearing will not be required. The [Higher Education

Personnel] Board need only evaluate the testimony and evidence received at the previous

hearings in light of the legal standard we have set forth in this opinion." Id. at 213-14.

       In this case no further fact finding was needed, because the record contained the

written agreements identifying the objectionable terms of Mr. Boise's incentive

compensation, which he had signed on the first day of his employment. In fact, Mr.

Boise has never contended that Cleary's terms and policies changed, but only that he did

not learn about them until the second week of employment.

       Mr. Boise had also testified to his objections, moral belief, and the actions he took

based on his objections and moral belief. "Issu[ing] a decision after employing a

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No. 33202-1-111
Boise v. Emp 't Security

subjective analysis," as ordered by the court, did not require taking further evidence. CP

at 131.

                 II. Only one of the commissioner's challenged findings lacks
              substantial support in the record, and Mr. Boise fails to demonstrate
                                     any resulting prejudice

          Mr. Boise argues that the four findings of fact by the commissioner were not

supported by substantial evidence. A court shall grant relief from an agency order in an

adjudicative proceeding if it determines the agency's order is not supported by evidence

that is substantial when viewed in light of the whole record, but only if the person

seeking judicial relief has been substantially prejudiced by the lack of evidentiary

support. RCW 34.05.570(3)(e), (l)(d).

          Substantial evidence supports three of the four findings challenged by Mr. Boise.

But even if none of the four was supported by substantial evidence, the lack of

evidentiary support would not be prejudicial because a critical fact remains: no change in

Mr. Boise's usual work occurred. For his voluntary quit not to disqualify him from

benefits, that is an essential element of the exemption on which he relies.

          We nonetheless briefly address the sufficiency of the evidence to support three of

the four findings that he challenges: 4 the findings that (1) Mr. Boise quit because of a

disagreement with pay; (2) he continued working for Cleary for two weeks with

          4
        The department concedes that evidence in the record does not support the
challenged finding that Mr. Boise was reimbursed for cleaning his company car.

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No. 33202-1-III
Boise v. Emp 't Security

knowledge of the subcontract incentive plan; and (3) markups are common in the

construction industry. Br. of Appellant at 9-11.

       Review of the commissioner's findings of fact is for substantial evidence in light

of the whole record. RCW 34.05.570(3)(e); Smith v. Emp't Sec. Dep't, 155 Wn. App. 24,

32, 226 P.3d 263 (2010). Evidence is substantial if it would "'persuade a fair-minded

person of the truth or correctness of the order.'" King County v. Cent. Puget Sound

Growth Mgmt. Hrg's. Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000) (quoting Callecod v.

Wash. State Patrol, 84 Wn. App. 663,673,929 P.2d 510 (1997). Because the substantial

evidence standard is deferential, the evidence is viewed "' in the light most favorable to

the party that prevailed in the highest forum exercising fact-finding authority.'"

Affordable Cabs, Inc. v. Emp 't Sec. Dep 't, 124 Wn. App. 361, 367, 101 P .3d 440 (2004)

(quoting Schofield v. Spokane County, 96 Wn. App. 581, 586-87, 980 P .2d 277 (1999) ).

We will not substitute our judgment for the commissioner's with regard to witness

credibility or the weight of evidence. Id.

       Disagreement with pay. Mr. Boise testified at length that he quit because he was

afraid of having his salary reduced if he failed to make $48,000 per month in sales. He

told his branch manager he was quitting because he could not "afford to lose that [pay]."

CP at 29. On his voluntary quit statement, he wrote that loss of salary, and "[r]eduction

in pay and/or fringe benefits" were his reasons for quitting. CP at 64. The commissioner

                                             13
No. 33202-1-111
Boise v. Emp 't Security

also found he quit over dissatisfaction with Cleary's subcontract incentive program, but

findings that he had more than one reason for quitting are not contradictory.

       Continued work. The commissioner found that even if Mr. Boise did not read the

payment plan when it was first presented to him, he "nonetheless was apprised of the

employer's practice because he signed a document that explicitly referenced the markup."

CP at 137. The exhibits support the finding. Mr. Boise testified in some instances to

having seen the pay plan "the second week" of training and in other instances "the second

day" of training. CP at 43, 45 ("second or third day"). Given his inconsistent statements,

and viewing the evidence in the light most favorable to the department, substantial

evidence supports the finding.

       Industry markup practice. The commissioner found that it is "common in the

construction industry" to mark up subcontractor bids. CP at 134-35. Cleary's witness,

John Schinderle, testified to that effect, explaining the markup was part of the company's

cost structure. While the commissioner acknowledged that Mr. Boise disputed Cleary's

evidence of industry practice, she was not persuaded that Mr. Boise had refuted Cleary's

evidence. We do not substitute our judgment for that of the agency fact finder on issues

of credibility and weight of the evidence.

       Substantial evidence supports three of the four challenged findings and Mr. Boise

fails to demonstrate substantial prejudice from any shortfall in evidentiary support.

       Affirmed.

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No. 33202-1-111
Boise v. Emp 't Security

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                     2/_d,,t;w~, ~-
                                                  Siddoway, J.

WE CONCUR:

                                             15