In re Pers. Restraint of Mays

• Docket Number: 84700-7-I
• Decision Date: 31 July 2023
• Parties: In the Matter of the Personal Restraint of AUSTIN LEE MAYS, Petitioner.
• Court: Washington Court of Appeals

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In the Matter of the Personal Restraint of AUSTIN LEE MAYS, Petitioner.

No. 84700-7-I

Court of Appeals of Washington, Division 1

July 31, 2023

UNPUBLISHED OPINION

Coburn, J.

Austin Lee Mays^[1] brings this personal restraint petition (PRP) arguing that he is entitled to resentencing under State v. Houston Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), because his crimes were committed when he was 15 years old and argues the trial court did not consider his youth at sentencing. We disagree and dismiss the petition.

FACTS

In the spring of 2004, Mays, then 15 years old, attempted to convince his friend to help him rob and burglarize the home of his mother's friend, Larry Kloes. His friend declined the invitation when Mays suggested that they may have to kill Kloes. Mays then asked another friend to join him in the robbery who also declined when Mays raised the possibility of killing Kloes.

In May 2004, Mays and a friend broke into Kloes' home, but did not harm Kloes. Later that month, Mays again raised the idea of burglarizing Kloes' home with two other friends 16-year-old Jeremy Boone and 18-year-old Perry Rothermel. The other boys did not know Kloes or where he lived before Mays' suggestion. Mays again explained that they may have to kill Kloes in order to complete the robbery, but neither opposed this plan. The three decided to execute the robbery in June.

A few weeks later the three met at Rothermel's house, armed with golf clubs and a baseball bat, then Mays drove them to Kloes' house, despite not having a driver's license. When they arrived at Kloes' house, they found that the garage door was open, the lights were on, and the radio was "blasting." Mays went into the house and found Kloes asleep in his second-floor bedroom. Boone knocked on the front door to lure Kloes to the first floor of the house where Mays and Rothermel were waiting. Rothermel hit Kloes in the head with a baseball bat to incapacitate him. Kloes was able to get off the floor and escape to his bedroom and Mays told Rothermel to "get up there and finish him off." Rothermel complied, followed Kloes back to the bedroom and delivered several more blows to Kloes' head leaving blood spatter on the bedroom ceiling. Kloes was severely injured but alive while the boys gathered the items they intended to steal.

The boys then discussed killing Kloes, which Boone agreed to do because both Rothermel and Mays claimed to have shot someone previously while Boone had not. Mays fashioned a rudimentary silencer out of a plastic bottle and electrical tape over the barrel of the gun. Mays instructed Boone to shoot Kloes in the head three times as Kloes was laid out on the sofa. Rothermel covered Kloes' face with a pillow and Boone fired, but the gun jammed. Mays then removed the silencer, cleared the jam, replaced the silencer, and handed the gun back to Boone. Rothermel and Boone resumed their positions and Boone fired three shots into Kloes' head, killing him. The medical examiner concluded that Kloes died of multiple gunshot wounds to the head and found both bullet fragments and pieces of plastic consistent with the makeshift silencer in Kloes' brain.

The next day, Boone learned that Kloes had been found dead and an investigation had begun. Boone turned himself into police and confessed to the crime. Rothermel and Mays were arrested days later. The court found that Mays had largely acted as the leader of the group in planning and committing the crime, noting that Rothermel asked to speak to Mays three times after being arrested and advised of his rights.

Mays was charged with murder, assault, robbery, and burglary in the first degree and all but burglary as armed with a firearm. The defense presented, and the court considered, evidence of Mays' family circumstances, history of abuse and neglect, and maturity, including a forensic psychologist's report and testimony at the decline hearing. Mays presented expert testimony of psychologist, Dr. Delton Young, who opined that testing indicated Mays "will show quick impulsive reactions, little thought may be given to consequences because of his own impulsivity and immaturity." Dr. Young also explained that Mays had a lower than average IQ for his age, but was able to communicate well and may have appeared to be smarter than he actually was because he had to develop strong interpersonal skills to cope with his childhood. The court declined juvenile jurisdiction over Mays and transferred the case for prosecution of Mays as an adult.

Mays agreed to a stipulated bench trial. During discussions on what the parties had stipulated to regarding sentence, the court reminded the parties that it is not bound to any agreement related to sentencing and that the court's "discretion may be totally eliminated if there is a certain minimum sentence that I must impose." The parties agreed and clarified that they were simply calculating the absolute minimum sentence based on statutory requirements would be a total of 40 years if the court found Mays guilty of murder in the first degree, assault in the first degree when committed with the intent to kill somebody, plus three class A firearm enhancements that must be run consecutively. In the stipulation, defense agreed to not challenge any sentence of 50 years or less and the State agreed to not challenge any sentence 40 years or more. The parties stipulated to the affidavit of probable cause, testimony and exhibits presented at the decline hearing, and the conclusions of the trial court as the evidence considered in the stipulated bench trial. The court found Mays guilty as charged on all counts.

In his sentencing memorandum, Mays argued that the court should impose the low end of the sentencing range of 40 years. Mays argued that his immaturity and failure to appreciate the risks and consequences of the crime weighed in favor of a sentence on the low end of the standard range. Mays explained that he had been raised by a mother who was addicted to methamphetamine and left him alone to care for his profoundly disabled sister for days at a time. Mays stated that he was largely responsible for the care of his sister, who was unable to care for herself, required assistance with feeding and hygiene, and used a wheelchair. Mays also discussed the "series" of romantic partners his mother brought into his life, several of whom were abusive toward both Mays and his mother. In addition, Mays explained that he had been moved around to different caretakers in different homes and states before moving back in with his mother to a small house on Kloes' property his mother had escaped to after ending an abusive relationship.

At the sentencing hearing, Mays' attorney noted that he had turned 17 just days before the hearing. Mays also asked the court to look at the crime itself and the planning to support his assertion that he had failed to appreciate the risks and consequences due to his young age at the time of the crime. Mays argued that the group acted on circumstances as they arose and that the plan had a "fantasy-land quality" and "displays a childish and immature thinking process that is hard to believe that these boys were as old as they were." Mays' believed that there was a "million dollars" at Kloes' house and that the three would "split [the money] up and take the car and the guns and go to California." Mays argued "that's about as much of a plan as there was. No thought at all to the ramifications of any of this. Nothing. No thought which is grounded in any sort of reality." Mays argued that the group had given no thought to what would happen if Kloes discovered the missing items and theoretical million dollars, if the crime were reported to police, or whether someone would investigate if Kloes was killed. Mays also noted that he was the youngest of the group, arguing that he was unlikely to be a true mastermind of the crime.

In issuing its ruling, the trial court noted that it had presided over Mays' decline hearing and stipulated trial and was familiar with the facts of the case. The court explained that it must consider

Who is more responsible, the minor, who for most things in this state is considered to be not mature, not sophisticated, not responsible enough that he or she may not vote, may not enter into binding contracts, may not do many things that adults can do; is that person more culpable for acts that he or she does than an adult who is presumed to be, by the laws of this state and most other states at a certain age . . . presumed to be more mature, more sophisticated and more responsible.

Regarding the crime, the trial court stated "unfortunately, that's the way a lot of young people nowadays act about life, so little value or so little reality to them of the finality of death."

The court explained that its decision in imposing different sentences did not rest on the culpability of each defendant but on the differences between their criminal histories and actions before and after the crime, noting

The question put to me by [the State]: Would we be here if Austin Mays said to these other two people, Let's not shoot him. I suspect that we would not be here. But I also believe in free will and responsibility, and I know if Mr. Boone or Mr. Rothermel said, you know, this is a dumb idea, I'm not going to do it, we wouldn't be here. So I don't see the separation for the reasons stated by the State.

In reading what occurred those fateful hours on June 26, the Court

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