In re Monschke

• Decision Date: 11 March 2021
• Docket Number: NO. 96773-3,NO. 96772-5 (consolidated with),96772-5 (consolidated with)
• Citation: 482 P.3d 276
• Parties: In the MATTER OF the Personal Restraint of Kurtis William MONSCHKE, Petitioner. In the Matter of the Personal Restraint of Dwayne Earl Bartholomew, Petitioner.
• Court: Washington Supreme Court

482 P.3d 276

In the MATTER OF the Personal Restraint of Kurtis William MONSCHKE, Petitioner.

In the Matter of the Personal Restraint of Dwayne Earl Bartholomew, Petitioner.

NO. 96772-5 (consolidated with)

NO. 96773-3

Supreme Court of Washington.

Argued: May 14, 2020

Filed: March 11, 2021

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw Morrison St. Ste. 1025, Portland, OR, 97205-3813, Timothy Kent Ford, Attorney at Law, 705 2nd Ave. Ste. 1500, Seattle, WA, 98104-1796, for Petitioner(s).

Kristie Barham, Pierce County Pros. Attorney's Office, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, Teresa Jeanne Chen, Pierce County Pros. Attorney's Office, 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2102, for Respondent(s).

GORDON McCLOUD, J.

¶ 1 Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole—a mandatory, nondiscretionary sentence under Washington's aggravated murder statute. RCW 10.95.030. Bartholomew was 20 years old; Monschke was 19. Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves. Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing,¹ which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

¶ 2 Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood. For some purposes, we defer to the legislature's decisions as to who constitutes an "adult." But when it comes to mandatory LWOP sentences, Miller ’s constitutional guarantee of an individualized sentence—one that considers the mitigating qualities of youth—must apply to defendants at least as old as these defendants were at the time of their crimes. Miller v. Alabama , 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing.

FACTS

¶ 3 Juries convicted both petitioners of aggravated first degree murder, Bartholomew in 1981 and Monschke in 2003.

¶ 4 Bartholomew told his brother that he intended to rob a laundromat and " ‘leave no witnesses.’ " State v. Bartholomew , 98 Wash.2d 173, 177-78, 654 P.2d 1170 (1982), vacated , 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983), adhered to on remand , 101 Wash.2d 631, 683 P.2d 1079 (1984). He took $237 from the cash drawer and fatally shot an attendant in the course of the robbery. Id. at 178, 654 P.2d 1170. He was 20 years old.

¶ 5 A jury initially sentenced Bartholomew to death. Id. at 179, 654 P.2d 1170. But we vacated his death sentence, and then, on remand, a jury sentenced him to LWOP, instead. Id. at 216, 654 P.2d 1170 ; Bartholomew , 101 Wash.2d at 648, 683 P.2d 1079 ; State v. Bartholomew , 104 Wash.2d 844, 710 P.2d 196 (1985) ; see Wood v. Bartholomew , 516 U.S. 1, 4, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995).

¶ 6 Monschke and his friends associated themselves with the white supremacist group "Volksfront." State v. Monschke , 133 Wash. App. 313, 333, 135 P.3d 966 (2006). In March 2003, the group purchased baseball bats with the goal of helping a member earn "red [shoe]laces"—a symbol "that the wearer had assaulted a member of a minority group." Id. at 323, 135 P.3d 966 (alteration in original). Separated from Monschke, two members of this group located and savagely beat a homeless man with the bats, rocks, and steel-toed boots. Id. They then fetched Monschke, who struck the man 10 to 15 times with a bat while his friends continued to kick the man's head. Id. at 323-24, 135 P.3d 966. Monschke pondered whether " ‘God gives us little brownie points for this.’ " Id. at 324, 135 P.3d 966. The man died in the hospital after 20 days on life support. Id. at 320, 135 P.3d 966. Monschke was 19 years old.

¶ 7 Monschke received a mandatory LWOP sentence. Id. at 328, 135 P.3d 966.

¶ 8 Both sentences were mandatory for these young men. RCW 10.95.030 provides that any person who is convicted of aggravated murder and not sentenced to death² "shall be sentenced to life imprisonment without possibility of release or parole."

¶ 9 The petitioners initially filed their PRPs in the Court of Appeals. They claimed that mandatory LWOP is unconstitutionally cruel when applied to youthful defendants like themselves. They argued that developments in neuroscience have rendered a bright line at age 18 arbitrary and that defendants age 21 and younger should receive the benefit of the same constitutional protections that this court and the United States Supreme Court have recognized for juveniles. The Court of Appeals transferred both petitions to this court without ruling on the merits, pursuant to RAP 16.5.³ We consolidated the two petitions and now grant both.

ANALYSIS

I. BECAUSE THE PETITIONS CLAIM THE AGGRAVATED MURDER STATUTE IS UNCONSTITUTIONAL AS APPLIED , THEY ARE EXEMPT FROM THE ONE - YEAR TIME BAR

¶ 10 Both petitioners’ sentences became final long ago, and petitioners are generally barred from filing a PRP "more than one year after the judgment becomes final." RCW 10.73.090(1). But six enumerated exceptions temper this one-year time bar. RCW 10.73.100. One of these exceptions allows petitioners to file a PRP without any deadline if the "statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct." RCW 10.73.100(2). This exception is important because convictions under unconstitutional statutes "are as no conviction at all and invalidate the prisoner's sentence." In re Pers. Restraint of Runyan , 121 Wash.2d 432, 445, 853 P.2d 424 (1993).

¶ 11 Each petitioner challenges the constitutionality of RCW 10.95.030, the aggravated murder statute, as applied to him. They do so for the same reason: the statute required mandatory LWOP, while the Washington State Constitution requires the court to exercise discretion at sentencing due to their age. If they are correct that the aggravated murder statute is unconstitutional as applied, then the time bar presents no obstacle to their petitions.⁴ RCW 10.73.100(2).

¶ 12 The dissent would draw a distinction between "convictions" and "sentences" and restrict the unconstitutional statute time bar exception to only unconstitutional "convictions." Dissent at 291. But we need not decide today whether RCW 10.73.100(2) provides a time bar exception for other unconstitutional sentencing statutes; in this case, the petitioners challenge not a regular sentencing statute but the aggravated murder statute. The aggravated murder statute is different than other sentencing statutes—it requires the State to charge and the jury (or other trier of fact) to find the defendant "guilty" of that very same aggravated murder charge. In other words, petitioners’ challenge to the constitutionality of the aggravated murder statute, which criminalizes premeditated first degree murder as aggravated murder in certain circumstances, is a challenge to the criminal statute that they were "convicted of violating." RCW 10.95.030 ; 10.73.100.⁵

¶ 13 To be sure, petitioners challenge the section of the aggravated murder statute that requires LWOP for all convictions, RCW 10.95.030, and not the section that defines aggravated murder and lists aggravating circumstances, RCW 10.95.020. See State v. Goldberg , 149 Wash.2d 888, 894, 72 P.3d 1083 (2003), overruled on other grounds by State v. Guzman Nuñez , 174 Wash.2d 707, 713, 285 P.3d 21 (2012) (" RCW 10.95.020 defines the aggravating circumstances that make premeditated murder first degree murder punishable under that chapter rather than under the Sentencing Reform Act of 1981, chapter 9.94A RCW."). But they challenge the constitutionality of the aggravated murder statute nonetheless—the statute they were each "convicted of violating," in the words of RCW 10.73.100(2).

¶ 14 That statutory exception to the one-year time bar thus clearly applies here. We therefore need not address the concurrence's point that RCW 10.73.100(6) ’s exception to the time bar applies here, also.

II. THE AGGRAVATED MURDER STATUTE IS UNCONSTITUTIONAL AS APPLIED TO YOUTHFUL DEFENDANTS BECAUSE IT DENIES TRIAL JUDGES DISCRETION TO CONSIDER THE MITIGATING QUALITIES OF YOUTH

¶ 15 Article I, section 14 of the Washington Constitution prohibits "cruel punishment."⁶ It does not prohibit mandatory (or discretionary) LWOP sentences for all aggravated murder defendants. State v. Hughes , 106 Wash.2d 176, 202, 721 P.2d 902 (1986) ; State v. Grisby , 97 Wash.2d 493, 497-98, 647 P.2d 6 (1982). But it does prohibit LWOP sentences for "juvenile offenders." State v. Bassett , 192 Wash.2d 67, 90, 428 P.3d 343 (2018). That state constitutional bar against "cruel punishment," like the Eighth Amendment bar against "cruel and unusual punishments," also forbids mandatory LWOP sentences for juvenile offenders. Miller , 567 U.S. at 479, 132 S.Ct. 2455. It further requires courts to exercise "complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant," even when faced with mandatory statutory language. State v. Houston-Sconiers , 188 Wash.2d 1, 21, 391 P.3d 409 (2017).

¶ 16 These petitioners argue that the protection against mandatory LWOP for juveniles should extend to them because they were essentially juveniles in all but name at the time of their crimes. As the discussion below shows, we agree.

¶ 17 Preliminarily, though, we need to clarify why we take this approach, rather than the "categorical" approach that the dissent advances. Dissent at 291–92 (citing Bassett , 192 Wash.2d at 85-86...