In re Domingo-Cornelio

• Decision Date: 17 September 2020
• Docket Number: No. 97205-2,97205-2
• Citation: 196 Wash.2d 255,474 P.3d 524
• Parties: In the MATTER OF the Personal Restraint of: Endy DOMINGO-CORNELIO, Petitioner.
• Court: Washington Supreme Court

196 Wash.2d 255

474 P.3d 524

In the MATTER OF the Personal Restraint of: Endy DOMINGO-CORNELIO, Petitioner.

No. 97205-2

Supreme Court of Washington.

Filed: September 17, 2020

Emily Marie Gause, Gause Law Offices, PLLC, 130 Andover Park E, Suite 300, Tukwila, WA 98188-2990, for Petitioner.

Kristie Barham, Teresa Jeanne Chen, Pierce County Prosecuting Attorney's Office, 930 Tacoma Avenue S, Room 946, Tacoma, WA 98402-2171, for Respondent.

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

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 SW Morrison Street, Suite 1025, Portland, OR 97205-3813, for Amici Curiae Center for Children & Youth Justice and Washington Association of Criminal Defense Attorneys.

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

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

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 1900 B, Philadelphia, PA 19103, for Amicus Curiae Juvenile Law Center.

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

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

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 differences between children's and adults’ culpability matter on a constitutional level in criminal sentencing. State v. Ramos , 187 Wash.2d 420, 428, 387 P.3d 650 (2017). In Houston-Sconiers , we held that the Eighth Amendment to the United States Constitution requires courts to consider the mitigating circumstances of youth when sentencing juveniles adjudicated as adults and must have absolute discretion to impose anything less than the standard adult sentence based on youth. 188 Wash.2d at 19, 391 P.3d 409. In this case and its companion case, In re Personal Restraint of Ali , No. 97205-2, 196 Wash.2d 220, 474 P.3d 507 (Wash. Sept. 17, 2020), https:/www.courts.wa.gov/opinions/, we consider whether Houston-Sconiers constitutes a significant and material change in the law that requires retroactive application on collateral review. As in Ali , we hold that it does.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

¶ 2 In 2014, Endy Domingo-Cornelio was convicted by a jury of one count of first degree rape of a child and three counts of child molestation. The crimes took place over a two-year span when Domingo-Cornelio was between 15-17 years old,¹ but because of delayed reporting, he was not investigated or charged until several years later, when he was 20 years old. Domingo-Cornelio was convicted and sentenced as an adult.

¶ 3 Under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, Domingo-Cornelio faced a sentence between 240 and 318 months. At sentencing, the State recommended the maximum adult standard range of 318 months, followed by 36 months of community custody. In its recommendation, the State acknowledged that Domingo-Cornelio was under 18 at the time of the crimes to explain why an indeterminate sentence would not apply and why it was seeking 36 months of community custody instead of lifetime community custody.

¶ 4 Domingo-Cornelio's defense counsel requested 240 months, the low end of the standard range. Defense counsel also mentioned that Domingo-Cornelio was under 18 at the time of the crimes but did not argue that there were any mitigating factors due to his youth and did not request an exceptional sentence:

My client has a lot of family support, Your Honor. He was a juvenile when these incidents took place. I would like the Court to consider the fact that my client did not take the witness stand at this trial. He sat through the trial. He heard what was testified to.

The standard range starts out at 20 years, Your Honor, 240 months. Now, I don't know what benefit to either my client's psychological or psychosexual health or to society or to the victim and their family it would do to give him more than the low end. 20 years, Your Honor. He is barely 20 himself. 20 years is a very long time in prison, and yes, the standard range goes above that quite a bit, but I would ask the Court to consider that the victim seems to be progressing through school right on time, on course. I believe she has been able to move on with her life after these acts, and I am glad that she has, and I hope that she has a decent—better than decent, a good life.

I think that society, in general, does not demand acts that a teenager did, which weren't reported for four or five years, should result in more than 20 years in prison, and I'm asking that the Court consider all of the facts here, the lack of information from the family of the victim in the Presentence Investigation, and consider that Endy Domingo[-]Cornelio will be in prison for a minimum for 240 months, and that is long enough, Your Honor.

7 Verbatim Report of Proceedings (Sept. 25, 2014) (VRP) at 731-32. In addition to the presentence investigation report mentioned in the excerpt above, the sentencing judge considered several letters written in support of Domingo-Cornelio.

¶ 5 The court sentenced Domingo-Cornelio to the low end of 240 months of incarceration and 36 months of community custody supervision upon release. The sentencing judge said that she had read the letters from friends and family and imposed this sentence "considering all of the information before the Court," but she made no mention of Domingo-Cornelio's youth in her ruling. 7 VRP at 733.

B. Procedural History

¶ 6 Domingo-Cornelio appealed unsuccessfully, and we denied discretionary review on August 31, 2016. We decided Houston-Sconiers on March 2, 2017, after Domingo-Cornelio's judgment and sentence became final. Domingo-Cornelio filed his personal restraint petition (PRP) in the Court of Appeals on August 30, 2017.

¶ 7 In his PRP, Domingo-Cornelio argued ineffective assistance of counsel and significant changes in the law relating to juvenile sentencing. The Court of Appeals retained the PRP for consideration on the merits but ultimately denied relief. Domingo-Cornelio , No. 50818-4-II, slip op. at 1, 2019 WL 1093435. Relevant here, the Court of Appeals held that Houston-Sconiers did not constitute a significant change in the law because it did not overturn a prior appellate decision that was determinative of a material issue. Id. at 34, 391 P.3d 409. The court did not address materiality or retroactivity.

¶ 8 We granted review only on the issue of the applicability and effect of Houston-Sconiers . We also set a companion case, Ali , 196 Wash.2d at 229, 474 P.3d 507, for consideration.

II. ANALYSIS

¶ 9 Domingo-Cornelio filed his PRP within one year after his judgment and sentence became final, so his PRP is timely. RCW 10.73.090. The court will grant appropriate relief if his restraint is unlawful for one or more reasons specified under RAP 16.4(c). RAP 16.4(a). Under RAP 16.4(c)(4), continued restraint is unlawful if "[t]here has been a significant change in the law, whether substantive or procedural, which is material to the ... sentence, ... and sufficient reasons exist to require retroactive application of the changed legal standard."

A. Unlawful Restraint

¶ 10 In Houston-Sconiers , we held that when sentencing juveniles in adult court, "courts must consider mitigating qualities of youth" and "must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements."² 188 Wash.2d at 21, 391 P.3d 409. Although there are several factual and procedural differences between Domingo-Cornelio's case and the companion case, Ali , we conclude that Houston-Sconiers constitutes a significant change in the law material to both cases and that it requires retroactive application.³

1. Significant Change in the Law

¶ 11 Houston-Sconiers represents a significant change in the law. Ali , 196 Wash.2d at 233–35, 474 P.3d 507. " ‘One test to determine whether an [intervening case] represents a significant change in the law is whether the defendant could have argued this issue before publication of the decision.’ " State v. Miller , 185 Wash.2d 111, 115, 371 P.3d 528 (2016) (alteration in original) (internal quotation marks omitted) (quoting In re Pers. Restraint of Lavery , 154 Wash.2d 249, 258-59, 111 P.3d 837 (2005) ).⁴ Here, even if Domingo-Cornelio's sentencing court had discretion to impose a lower sentence prior to Houston-Sconiers , Domingo-Cornelio could not have argued that it must consider his youth before imposing a standard range sentence. Domingo-Cornelio could have, and did, argue for a low end standard range sentence based, in part, on his youth. However, he could not have argued that the sentencing court must consider mitigating factors relating to his youth in light of its absolute discretion to impose any lesser sentence. Therefore, Houston-Sconiers constitutes a significant change in the law.⁵

2. Materiality

¶ 12 Houston-Sconiers is material to Domingo-Cornelio's case. Domingo-Cornelio was sentenced to a standard adult range under the SRA for crimes he committed as a child, one of the types of sentences that required the...