In re Kennedy

• Decision Date: 28 July 2022
• Docket Number: 99748-9
• Parties: IN RE Personal Restraint Petition of Andrew KENNEDY, Petitioner.
• Court: Washington Supreme Court

513 P.3d 769

IN RE Personal Restraint Petition of Andrew KENNEDY, Petitioner.

NO. 99748-9

Supreme Court of Washington.

Argued February 24, 2022

Filed July 28, 2022

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw Morrison St. Ste. 1025, Portland, OR, 97205-3813, for Petitioner.

David Phelan, Cowlitz County Pros. Attorney's Office, 312 Sw 1st Ave. Rm. 105, Kelso, WA, 98626-1799, for Respondent.

Teresa Jeanne Chen, Andrew Yi, Pierce County Pros. Attorney's Office, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 9840 for Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

STEPHENS, J.

¶1 When Andrew Kennedy was 19 years old, he killed his cousin's 11-month-old daughter while she was in his care. Following a bench trial in 2007, the court convicted Kennedy of homicide by abuse and sentenced him to 380 months in confinement. Kennedy's judgment and sentence became final after direct appeal in 2009. In 2019, he filed this personal restraint petition (PRP) seeking to be resentenced based on "[n]ewly discovered evidence." RCW 10.73.100(1). Kennedy argues that advancements in the scientific understanding of adolescent brain development for young adults since his 2007 sentencing would have probably changed the trial court's discretionary sentencing decision by allowing him to argue for a mitigated sentence based on youthfulness. The Court of Appeals dismissed Kennedy's PRP as time barred, concluding that scientific evidence supporting such an argument for young adults Kennedy's age was available at the time of sentencing.

¶2 After we granted Kennedy's motion for discretionary review, he raised a second argument for relief based on the "significant change in the law" exemption to the time bar. RCW 10.73.100(6). He asks us to conclude that the plurality opinion in In re Pers. Restraint of Monschke , 197 Wash.2d 305, 482 P.3d 276 (2021), constitutes a significant and retroactive change in the law that is material to his sentence.

¶3 We affirm the Court of Appeals and hold that Kennedy's PRP meets neither exemption to the time bar. While the declaration of Dr. Laurence Steinberg attached to Kennedy's petition identifies recent research that arguably would have strengthened Kennedy's argument for a mitigated sentence based on youth, he could have made his argument at the time of his sentencing and it does not meet the standard for newly discovered evidence. See In re Pers. Restraint of Light-Roth , 191 Wash.2d 328, 334-38, 422 P.3d 444 (2018). Kennedy also fails to show that he is entitled to relief based on Monschke ’s lead opinion, which concluded that a sentence of mandatory life without parole (LWOP) under RCW 10.95.030 for the crime of aggravated first degree murder was unconstitutional as applied to 19- and 20-year-old defendants. Because Kennedy was neither convicted of aggravated first degree murder nor sentenced to mandatory LWOP, Kennedy does not show that any change in the law reflected in Monschke is material to his sentence. We therefore dismiss Kennedy's PRP as time barred. RCW 10.73.090(1).

FACTS AND PROCEDURAL HISTORY

¶4 In June 2004, Kennedy became the primary caregiver of his cousin's daughter, K.S. K.S. was a 10 month-old infant, and Kennedy was her godfather. In the approximately 2 months she was in his care, Kennedy repeatedly physically abused K.S. Specifically, the trial court found that Kennedy intentionally caused K.S. to stop breathing on multiple occasions; broke her left arm; hit her on her arm, causing bruising; and inflicted multiple head injuries

evidenced by subdural bleeding. Based on the evidence, the trial court found that Kennedy "engaged in a pattern or practice of physically abusing and/or torturing [K.S.]" in the 2 months she was in his care. Resp't’s Br., App. B (findings of facts (FF) XLVI) (Wash. Ct. App. No. 53360-0-II (2019)).

¶5 On August 4, 2004, K.S. died from a head injury

. Kennedy admitted this occurred when he was alone with the child in his bedroom. Kennedy later confessed to his wife and family that K.S.’s death had not been an accident, stating he had " ‘dark thoughts’ " and "he knew he was going to hurt her when he took her into his bedroom on the night of August 1, 2004." Id. at FF XX-XXI. The trial court found Kennedy killed K.S. when he "intentionally swung her head into a stationary object with violent force." Id. at FF XLIII. The trial court further found that Kennedy's killing of K.S. showed an "extreme indifference to the life of [K.S.]." Id . at FF XLV. At the time of her death, K.S. was "362 days old, weighed 23 [pounds], and could not walk." Id . at FF XLVIII.

¶6 The State charged Kennedy with first degree murder and homicide by abuse, and further charged three aggravating factors: (1) that Kennedy knew or should have known K.S. was a particularly vulnerable victim, (2) that Kennedy used a position of trust or confidence, and (3) that Kennedy showed an egregious lack of remorse. State v. Kennedy , noted at 150 Wash. App. 1040, 2009 WL 1610171, at *1 (2009) (citing RCW 9.94A.535(3)(b), (n), (q) ). Kennedy waived his right to a jury and proceeded to a bench trial. Id. at *1-2.

¶7 The trial court found him guilty of second degree murder and homicide by abuse, later dismissing the second degree murder conviction due to double jeopardy concerns. The court also found the evidence supported two of the aggravating factors: (1) that Kennedy knew or should have known that K.S. was a particularly vulnerable victim given that she was an infant and could not walk and (2) that Kennedy abused a position of trust or confidence in committing the crime.

¶8 Kennedy's standard sentencing range was 240 to 320 months, but the court considered an exceptional upward sentence based on its findings on two of the aggravating factors. The State recommended an exceptional sentence of 480 months. The prosecutor read a letter to the court from Kennedy's ex-wife stating that the severity of Kennedy's abuse of K.S. intensified as it continued and that Kennedy admitted abusing K.S. because he enjoyed it and "wanted to do it." 17 Verbatim Report of Proceedings (VRP) at 1645. A number of Kennedy's family members spoke in favor of a lower sentence, claiming that Kennedy was innocent, that he loved and cared for K.S., and that he never would have hurt her. In his allocution, Kennedy described K.S. as "a light in my life" and stated, "I've never hit anyone in my life and I will stand very firmly with my not guilty and I refuse to go down without a fight for something I did not do." 17 VRP at 1667.

¶9 Kennedy's counsel argued that Kennedy's youth supported a sentence at the low end of the standard range. Although counsel did not argue for an exceptional mitigated sentence, he spoke of the impact a long sentence would have on a young person like Kennedy:

The other thing to think about with respect to sentencing, I believe to a large degree is Mr. Kennedy's age. At the time this occurred, he is in his early twenties. He is still in the same ball park and we look at the reasons for sentencing. ...

....

The question then becomes is he going to get out sometime when he is in his forties or is he going to be pushing sixty when he gets out. And, I think it is important to think about the person that we are going to be releasing from our correctional facility in the future, years from now. If someone has to think and ponder and think about the condition they are going to be in physically, mentally. What they are going to have left in terms of friends and family that are still alive at the age of sixty when you are still in your twenties that seems bleak. You are picturing something that you really can't even put your head around at that age. And it can become—it can become disparaging .... And, it is going to release someone out at that point without really anything much to look forward to and not really any real reason to educate themselves, to rehabilitate themselves, to do the things that they can do while serving their time to improve themselves and step out and say, "I still have half a life left. I still can make something of myself. I can be a productive member of society. I can find a relationship and I can move on with my life.

The penalty that he suffers is going to be significant whether he serves twenty years or forty years but if he gets out after twenty years of serving time, as he walks out of this courtroom, as he goes to Shelton, as he is processed through, he sees a light at the end of the tunnel. There is a reason for him to keep his hope alive, to keep his faith alive, to keep everything that he has with respect to the church and his family intact, maintain relationships and continue to be a healthy individual and try to come out with some sense of ability to pick up pieces and take the half of a life that he has left and make the right decisions to do the things that he needs to do, to pay taxes, to be a productive member o[f] society and presumably a member of his church again. And, I fear that a sentence akin to what the prosecutor is asking for his going to strip him of that, strip his family of that and when there is a release some years from now, the consequences of that doubling of his sentence could be so devastating to him at this point that it doesn't allow him or anyone else the opportunity to recover from that situation and move on. So on behalf of Mr. Kennedy ..., we are asking that the Court impose the low end of the standard range which again is a significant amount of time.

17 VRP at 1663, 1665-67. At the conclusion of the hearing, the court imposed an exceptional upward sentence of 380 months of confinement.

¶10 Kennedy appealed, arguing primarily that his waiver of the right to a jury trial was invalid because the trial court did not advise him he was waiving a jury on the aggravating circumstances. The Court of Appeals rejected Kennedy's arguments and affirmed his judgment and sentence. Kennedy , 2009 WL 1610171 at *3. His judgment and sentence became final in...