In re Marshall

• Decision Date: 24 September 2019
• Docket Number: No. 49302-1-II,49302-1-II
• Citation: 10 Wash.App.2d 626,455 P.3d 1163
• Parties: IN RE the Personal Restraint of: Jarrell Maurice MARSHALL, Petitioner.
• Court: Washington Court of Appeals

10 Wash.App.2d 626

455 P.3d 1163

IN RE the Personal Restraint of: Jarrell Maurice MARSHALL, Petitioner.

No. 49302-1-II

Court of Appeals of Washington, Division 2.

Filed September 24, 2019

PUBLISHED OPINION

Maxa, C.J. ¶1 In this personal restraint petition (PRP), Jarrell Marshall seeks freedom from restraint imposed by the sentence following his 2007 guilty plea for one count of second degree murder and two counts of first degree robbery. Marshall committed these crimes when he was 16 years old, but he was sentenced in adult court. He asserts that the sentencing court erred in failing to consider the mitigating qualities of his youth when he was sentenced.

¶2 Marshall argues that even though his PRP was filed more than one year after his conviction became final, his PRP is not time barred under RCW 10.73.100(6) because State v. Houston-Sconiers , 188 Wash.2d 1, 391 P.3d 409 (2017), represented a significant change in the law that was material to his sentence and that must be applied retroactively. Our Supreme Court in Houston-Sconiers stated that the Eighth Amendment requires sentencing courts to consider mitigating qualities of youth when sentencing juvenile offenders. Id. at 21, 23, 391 P.3d 409.

¶3 We hold that Marshall’s PRP claim was untimely. Although the directive in Houston-Sconiers that sentencing courts must consider the mitigating qualities of youth when sentencing juvenile offenders represented a significant change in the law that is material to Marshall’s sentence, it stated a procedural rule that does not apply retroactively. Accordingly, we deny Marshall’s PRP.¹

FACTS

¶4 In 2007, Marshall pleaded guilty to second degree murder and to two counts of first degree robbery after he was part of a group who killed one person and robbed two others. He was 16 years old when he committed the crimes.

¶5 The standard range sentence was 165-265 months for the murder charge and 51-68 months for the robbery charges. The State and defense counsel made a joint recommendation of a 165 month sentence on the murder charge. The court instead sentenced Marshall to 189 months on the murder charge and 51 months on the robbery charges to run concurrently. Marshall did not file a direct appeal.

¶6 In 2016, Marshall filed a PRP based on various grounds. Following subsequent developments in the law, he ultimately focused on an argument that the sentencing court violated the Eighth Amendment and Houston-Sconiers by failing to consider the mitigating qualities of youth when imposing a sentence above the joint recommendation.

¶7 We ordered a reference hearing to determine what had happened at the 2007 sentencing hearing. The trial court concluded that the sentencing court did not consider Marshall’s youthful qualities as required under Houston-Sconiers and that Marshall suffered actual prejudice as the result of that constitutional error. The State has challenged both findings.

ANALYSIS

¶8 Marshall argues that the RCW 10.73.100(6) exception to the one-year time bar for PRPs applies because Houston-Sconiers resulted in a significant change in the law by requiring sentencing courts to consider mitigating qualities of youth when sentencing juvenile offenders, which was not required under prior law.² Our Supreme Court recently declined to address this issue. In re Pers. Restraint of Meippen , 193 Wash.2d 310, 317-18, 440 P.3d 978 (2019). We hold that although Houston-Sconiers constituted a significant change in the law that was material to his sentence, that case stated a procedural rule that cannot be applied retroactively. Therefore, we hold that the RCW 10.73.100(6) exception to the PRP time bar does not apply and that Marshall’s PRP is untimely.

A. TIMELINESS OF PRPS

¶9 Under RCW 10.73.090(1), a petitioner generally must file a PRP within one year after a trial court judgment becomes final. A judgment is final on the date it is filed with the clerk of the trial court. RCW 10.73.090(3)(a). Here, Marshall’s judgment and sentence became final in 2007. But he did not file his PRP until 2016. ¶10 RCW 10.73.100 lists six exceptions to the one-year limit. The exception potentially applicable here is RCW 10.73.100(6), which states that the time bar does not apply if

[t]here has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

In other words, an exception exists when (1) there has been a "significant change in the law," (2) the change is "material to the ... sentence," and (3) "sufficient reasons exist to require retroactive application." RCW 10.73.100(6) ; see In re Pers. Restraint of Colbert , 186 Wash.2d 614, 619, 380 P.3d 504 (2016).

¶11 The issue here is whether Houston-Sconiers satisfied all three requirements of RCW 10.73.100(6).

B. O’DELL AND HOUSTON-SCONIERS

¶12 Over the last 15 years, courts increasingly have considered the impact of age on juvenile defendants’ culpability. In a series of opinions, the United States Supreme Court held that the Eighth Amendment prohibited sentencing juveniles to death, Roper v. Simmons , 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) ; sentencing juveniles to life sentences without the possibility of parole in non-homicide cases, Graham v. Florida , 560 U.S. 48, 81-82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) ; and mandatory sentencing of juveniles to life without parole in all cases.

Miller v. Alabama , 567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The Court in Montgomery v. Louisiana held that Miller stated a substantive rule that must be applied retroactively. ––– U.S. ––––, 136 S. Ct. 718, 732-36, 193 L. Ed. 2d 599 (2016).

¶13 Relying on that line of cases, our Supreme Court addressed consideration of an offender’s youth in State v. O’Dell , 183 Wash.2d 680, 358 P.3d 359 (2015). In that case, the defendant was convicted of second degree rape of a child, committed 10 days after his 18th birthday. Id. at 683-84, 358 P.3d 359. At sentencing, the defendant requested an exceptional sentence below the standard range. Id. at 685, 358 P.3d 359. He argued that he was still in high school, that he would have received a significantly lower sentence in the juvenile system, and that research showed that juveniles are more susceptible to negative influences and impulsive behavior. Id. The trial court acknowledged the argument but ruled that it could not consider age as a mitigating circumstance. Id. at 685-86, 358 P.3d 359.

¶14 The Supreme Court noted that research showed "a clear connection between youth and decreased moral culpability for criminal conduct." Id. at 695, 358 P.3d 359. That connection may relate to the crime and diminish the defendant’s culpability, even if it is not a "per se mitigating factor automatically entitling every youthful defendant to an exceptional sentence." Id. at 695, 358 P.3d 359. Accordingly, the court held that trial courts "must be allowed to consider youth as a mitigating factor" in sentencing a youthful defendant. Id. at 696, 358 P.3d 359.

¶15 Our Supreme Court applied similar principles under the Eighth Amendment in Houston-Sconiers , 188 Wn.2d 1, 391 P.3d 409. In Houston-Sconiers , the defendants were juveniles who had carried a gun while stealing candy from Halloween trick-or-treaters. Id. at 9-11, 391 P.3d 409. They both were convicted of multiple counts of robbery plus multiple firearm sentence enhancements. Id. at 12, 391 P.3d 409. The trial court imposed no incarceration on the underlying crimes but believed that the law compelled the imposition of mandatory consecutive sentences for the firearm enhancements. Id. at 12-13, 391 P.3d 409. The Supreme Court noted that the trial court had no opportunity to exercise discretion regarding the appropriateness of the sentence enhancements. Id. at 8, 391 P.3d 409.

¶16 The Supreme Court stated that the trial court was required to consider a juvenile defendant’s youth in sentencing, even for statutorily mandated sentences. Id. at 8-9, 21, 391 P.3d 409. The court stated that to comply with the Eighth Amendment, courts must address the differences between children and adults by exercising "discretion to consider the mitigating qualities of youth." Id. at 19, 391 P.3d 409. The court concluded,

[W]e hold that sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system, regardless of whether the juvenile is there following a decline hearing or not. To the extent our state statutes have been interpreted to bar such discretion with regard to juveniles, they are overruled. Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA^{[3 ]} range and/or sentence enhancements.

Id. at 21, 391 P.3d 409 (emphasis added).

¶17 Relying on Miller , the court also provided guidance to trial courts on how to exercise their discretion in juvenile sentencing. Houston-Sconiers , 188 Wash.2d at 23, 391 P.3d 409. The court emphasized that the sentencing court "must consider" the following factors:

1. "[M]itigating circumstances related to the defendant’s youth – including age and its ‘hallmark features,’ such as the juvenile’s ‘immaturity, impetuosity, and failure to appreciate risks and consequences.’ " Id. (quoting Miller , 567 U.S. at 477, 132 S.Ct. 2455 ).

2. "[F]actors like the nature of the juvenile’s surrounding environment and family circumstances, the extent of the juvenile’s participation in the crime, and ‘the way...