In re Ali

• Decision Date: 17 September 2020
• Docket Number: No. 95578-6,95578-6
• Citation: 474 P.3d 507,196 Wash.2d 220
• Parties: In the MATTER OF the Personal Restraint of: Said Omer ALI, Petitioner.
• Court: Washington Supreme Court

196 Wash.2d 220

474 P.3d 507

In the MATTER OF the Personal Restraint of: Said Omer ALI, Petitioner.

No. 95578-6

Supreme Court of Washington.

Argued February 13, 2020

Filed September 17, 2020

Corey Evan Parker, The Appellate Law Firm, 300 Lenora St., Ste. 900, Seattle, WA, 98121, for Petitioner.

Amy R. Meckling, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2390, for Respondent.

Nicholas Brian Allen, Attorney at Law, 101 Yesler Way Ste. 300, Seattle, WA, 98104-2528, for Amicus Curiae Columbia Legal Services.

James Dold, Suzanne La Pierre, Human Rights for Kids, P.O. Box 5960, Washington, DC, 20016, for Amicus Curiae Human Rights for Kids.

Marsha L. Levick, Riya Saha Shah, Juvenile Law Center, 1800 Jfk Boulevard, Suite 1900b, Philadelphia, PA, 19103, for Amicus Curiae Juvenile Law Center.

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw Morrison St. Ste. 1025, Portland, OR, 97205-3813, Cindy Arends Elsberry, Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae Washington Defender Association.

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw Morrison St. Ste. 1025, Portland, OR, 97205-3813, for Amicus Curiae Washington Association of Criminal Defense Lawyers.

Melissa R. Lee, Jessica Levin, Seattle University School of Law, 901 12th Ave., Korematsu Center For Law & Equality, Robert S. Chang, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amicus Curiae Fred T. Korematsu Center for Law and Equality.

Kendrick Washington, Antoinette M. Davis, ACLU-WA, P.O. Box 2728, Seattle, WA, 98111, for Amicus Curiae American Civil Liberties Union of Washington.

Sara Anne Zier, TeamChild, 715 Tacoma Ave. S., Tacoma, WA, 98402-2206, Hong Jiang, Attorney at Law, 1225 S. Weller St. Ste. 420, Seattle, WA, 98144-1906, for Amicus Curiae TeamChild.

MONTOYA-LEWIS, J

¶ 1 " ‘Children are different.’ " State v. Houston-Sconiers , 188 Wash.2d 1, 8, 391 P.3d 409 (2017) (quoting Miller v. Alabama , 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ). The Eighth Amendment to the United States Constitution requires our criminal justice system to address this difference when punishing children. Central to this requirement is that courts must take into account the differences between children and adults in criminal sentencing. State v. Ramos , 187 Wash.2d 420, 428, 387 P.3d 650 (2017). Children's ability to assess risk and make judgments varies distinctly from that of adults because the brain is not fully mature before adulthood. Miller , 567 U.S. at 471-72, 132 S.Ct. 2455. Differences in brain development mean that children possess lessened culpability, poorer judgment, and greater capacity for change than adults. Id. In order to comply with the Eighth Amendment, courts must consider the mitigating qualities of youth and have discretion to impose a proportional punishment based on those qualities. Houston-Sconiers , 188 Wash.2d at 19, 391 P.3d 409. In Houston-Sconiers , we recognized these Eighth Amendment requirements and held that "[t]rial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable [Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW] range and/or sentence enhancements." Id. at 21, 391 P.3d 409.

¶ 2 In this case and its companion, In re Personal Restraint of Domingo-Cornelio , No. 97205-2, slip op., 2020 WL 6128068 (Wash. Sept. 17, 2020), https://www.courts.wa.gov/opinions/, we consider whether the dual requirements of Houston-Sconiers apply retroactively on collateral review. We hold that Houston-Sconiers constitutes a significant and material change in the law that requires retroactive application. Further, we hold that Ali has established actual and substantial prejudice, and we remand to superior court for resentencing consistent with Houston-Sconiers .

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

¶ 3 In 2008, Said Omer Ali was arrested for his involvement in a series of robberies. Each of the crimes involved a group of male perpetrators, and four victims identified Ali as one of the assailants. A jury found Ali guilty of five counts of robbery in the first degree, two counts of attempted robbery in the first degree, and one count of assault in the first degree. Two of the robbery counts and the assault count carried a deadly weapon enhancement. Ali was 16 years old at the time of the crimes, but he was charged and tried in adult court.¹

¶ 4 Under the SRA, Ali faced a sentence between 240 and 318 months for the substantive charges, plus 24 months each for 3 weapon enhancements. Because the weapon enhancements must run consecutively under the SRA, the standard sentence range was 312 to 390 months. RCW 9.94A.533(4)(e).

¶ 5 At sentencing, the State recommended imprisonment for 390 months, which was the high end of the standard range for adults and included the three mandatory consecutive weapon enhancements. The State argued that youth was not a factor that would justify an exceptional sentence, citing State v. Ha'mim , 82 Wash. App. 139, 916 P.2d 971 (1996), aff'd , 132 Wash.2d 834, 940 P.2d 633 (1997), overruled in part by State v. O'Dell , 183 Wash.2d 680, 696, 358 P.3d 359 (2015).

¶ 6 Defense counsel requested an exceptional sentence of 10 years (120 months), which was below the standard range, and argued that the presumptive range was "grossly excessive in light of the SRA purposes and that the Court does have legal and factual basis to impose something exceptional below that." 13 Verbatim Report of Proceedings (Mar. 27. 2009) (VRP) at 1419-20, 1423. The defense maintained that the mitigating factors listed in the SRA were nonexclusive and that the court should consider Ali's age and background. Ali was only 17 years old at sentencing, and the State recommended a sentence of 32.5 years. Defense counsel argued that Ali was "a young adolescent" who "endured extreme turmoil in his young life" and that "[v]ery little will be gained by crushing his hope and spirit by sending him away for two lifetimes." 13 VRP at 1420-23.

¶ 7 Ali presented mitigating testimony regarding his youthfulness and difficult childhood. Dozens of members of his community submitted letters to the court requesting leniency in his sentencing. Four people also spoke on his behalf at the sentencing hearing, describing Ali as young and inexperienced but capable of reform. One community member explained that Ali "has dealt with gang dealing and peer pressure." 13 VRP at 1426. Another described him as "a young boy who is a victim for his whole life, back at home and here" because Ali was born in the midst of a civil war, grew up in refugee camps, and was placed in high school instead of middle school when he arrived in the United States at age 13. 13 VRP at 1429. A family friend asked the court to

look this young boy on a keen eye, give him another chance to rebuild his life, become an active citizen again. And I am sure he will thrive and grow up with dignity and respect with others and to himself. To conclude my statement, as a father, a parent, and a humanitarian, our children make mistakes. And he's one of those.

13 VRP at 1428.

¶ 8 After hearing the statements from the community members on Ali's behalf, the sentencing judge explained,

Well, it's very clear that Mr. Ali has wonderful community and family support. These are individuals of great stature in the community and it is clear that he has a lot of folks looking out for him. But I can't simply look at the popular support, I have to look at the law. And the question is what does the law require me to impose and is there any justification under the law for imposing a sentence below the standard range. And I cannot find that there is any legal justification that would allow that. So I find that the law requires me to impose a sentence within the standard range.

13 VRP at 1431-32. The court imposed a total sentence of 312 months: the lowest possible sentence within the standard range with the mandatory enhancements. The low end of the standard range for each charge would run concurrently, and the mandatory deadly weapon enhancements would run consecutively. The sentencing judge acknowledged that 312 months "is a huge sentence for someone of your age. And I'm very mindful of that. But the law does not allow me to depart from it simply because of your age." 13 VRP at 1432. The court also made a point "to note, for the record that the sentence that was imposed was the lowest sentence that I legally felt I had the option of imposing in this case. I recognize Mr. Ali's young age and that is primarily the reason why that was imposed." 13 VRP at 1436.

B. Procedural History

¶ 9 Ali appealed unsuccessfully, and his judgment and sentence became final in 2011. Ali filed this personal restraint petition (PRP) in the Court of Appeals in 2017, asserting that his continued restraint is unlawful under RAP 16.4(c)(2). He argues that even though it was filed more than a year after his judgment and sentence became final, his petition is timely under RCW 10.73.100(6) ’s exception to the time bar: there has been a significant change in substantive law that is material to his sentence and sufficient reasons exist to require retroactive application of the changed legal standard. He argues that Houston-Sconiers provides a basis both to overcome the time bar and to entitle him to relief.

¶ 10 The Court of Appeals transferred his petition to this court as a successive petition that raises new grounds for relief. We set Ali's petition for full consideration on the merits and also granted review of a companion case, Domingo-Cornelio , slip op. at 4.

II. ANALYSIS

¶ 11 Ali was sentenced as an adult for crimes he committed as a child. He seeks collateral review of that sentence. He filed this PRP more than one year after his judgment and sentence became final, so the petition is untimely unless it is based solely on a...