State v. Bassett

• Decision Date: 25 April 2017
• Docket Number: No. 47251-1-II,47251-1-II
• Citation: 394 P.3d 430,198 Wash.App. 714
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Brian M. BASSETT, Appellant.

198 Wash.App. 714

394 P.3d 430

STATE of Washington, Respondent,

v.Brian M. BASSETT, Appellant.

No. 47251-1-II

Court of Appeals of Washington, Division 2.

April 25, 2017

Eric William Lindell, Lindell Law Offices, PLLC, P.O. Box 379, Redmond, WA, 98073-0379, for Appellant.

Katherine Lee Svoboda, Grays Harbor Co. Pros. Offfice, 102 W. Broadway Ave., Rm. 102, Montesano, WA, 98563-3621, for Respondent.

Johanson, J.¶1 In 1996, a jury found Brian M. Bassett guilty of three counts of aggravated first degree murder committed when he was 16 years old. The trial court imposed three "life without parole" sentences. In 2015, after a Miller¹ hearing, the resentencing court again imposed three life without parole sentences. Bassett appeals his new sentence and successfully argues that a provision of the Miller -fix statute, RCW 10.95.030(3)(a)(ii),² violates our State's constitutional prohibition against cruel punishment. In the published portion of this opinion, we waive procedural defects and treat Bassett's claim as a personal restraint petition (PRP). We hold that under a categorical bar analysis, the statutory Miller -fix provision that allows 16- to 18-year-old offenders convicted of aggravated first degree murder to be sentenced to life without parole or early release violates article I, section 14 of the state constitution prohibiting cruel punishment. In the unpublished portion, we reject Bassett's remaining arguments. Because Bassett shows that grounds exist to challenge the legality of his restraint, we reverse Bassett's sentence and remand for resentencing in accordance with this opinion.

FACTS

I. BACKGROUND FACTS AND PROCEDURE

¶2 In 1995, 16-year-old Bassett, who had been " ‘kicked out’ " of his home by his parents, Wendy and Michael Bassett,³ stole a rifle and placed a soda bottle over the gun barrel as a " ‘silencer.’ " State v. McDonald , 138 Wash.2d 680, 683, 981 P.2d 443 (1999) ; State v. Bassett , noted at 94 Wash.App. 1017, 1999 WL 100872, at *3.⁴ Several days later, Bassett broke into his parents' home and shot them multiple times. Bassett , 1999 WL 100872, at *1. Meanwhile, 17-year-old Nicholaus McDonald disabled the Bassetts' phone line so that they could not call for help and waited outside. Bassett , 1999 WL 100872, at *1 ; McDonald , 138 Wash.2d at 683, 981 P.2d 443. McDonald then entered the home and shot Michael, who was still breathing after Basset had shot him, in the head. McDonald , 138 Wash.2d at 684, 981 P.2d 443. Basset's five-year-old brother, Austin Bassett, witnessed the shootings; Bassett or McDonald then drowned Austin in a bathtub. McDonald , 138 Wash.2d at 683-84, 981 P.2d 443.⁵ McDonald hid Austin's and Michael's bodies away from the home. McDonald , 138 Wash.2d at 684, 981 P.2d 443. McDonald and Bassett hid Wendy's body in the Bassetts' pump house, and McDonald cleaned the home. McDonald , 138 Wash.2d at 684-85, 981 P.2d 443.¶3 McDonald turned himself in to the police the next day and implicated himself and Bassett in the killings. McDonald , 138 Wash.2d at 683, 981 P.2d 443 ; Bassett , 1999 WL 100872, at *1. The State charged Bassett with three counts of aggravated first degree murder. At trial, the State introduced Bassett's statement to the police that he and McDonald had tried to kill Bassett's parents twice before the crimes, but their attempts were foiled. Bassett , 1999 WL 100872, at *1. A jury convicted Bassett of three counts of aggravated first degree murder, and the trial court sentenced Bassett to three consecutive terms of life without the possibility of parole. Former RCW 10.95.030(1) (1993).

II. RESENTENCING MITIGATION EVIDENCE AND HEARING

¶4 In 2015, Bassett, who was then 35 years old, appeared for resentencing under RCW 10.95.030(3) (the Miller -fix statute) and .035(1).⁶ Bassett argued that the Miller -fix statute was unconstitutional under Miller and requested that he be resentenced to three 25-year concurrent sentences for each crime and allowed earned early release credit. In support of these arguments, Bassett offered mitigation information including evidence of rehabilitation and submitted over 100 pages of supporting documentation.

¶5 The mitigation evidence documented Bassett's home life, high school education, and general lack of a criminal history. The mitigation evidence also included evidence of Bassett's rehabilitation during imprisonment, including his participation in various workshops and counseling programs, educational achievements including attaining honor roll in community college and various trade certifications, marriage, infraction-free prison record since 2003, and mentorship of other inmates. Eighteen inmates and six noninmates wrote letters that supported mitigation of Bassett's sentence, including a letter that noted Bassett was a teacher's assistant in a prison community college program.

¶6 Dr. Jeffrey Hansen, who had counseled Bassett in 1995, testified at the resentencing hearing. Dr. Hansen reported that around 1995, Bassett ran away from home sometimes to hurt his mother, was still trying to establish his identity, had average cognitive ability, had suffered a self-induced alcohol overdose at age 15, had ongoing relational issues with his parents and felt hopeless, and had an adjustment disorder resulting in poor emotional behavioral responses to stress. Dr. Hansen further testified that Bassett faced the stressors of homelessness, joblessness, and possibly having had an unwanted sexual relationship with McDonald.

¶7 Bassett stated that when he entered prison as a juvenile, he first thought of how much trouble he would be in when his parents learned that he was in prison because the reality of his crimes "didn't click." Report of Proceedings (RP) (Jan. 30, 2015) at 80. Three weeks after the murders, Bassett had written, "I wish I hadn't done anything because now I think of all the good times that my dad and me had. Before I was just thinking about all of the things they did to piss me off." Clerk's Papers (CP) at 294. Bassett expressed remorse at resentencing and explained the challenges that he faced as a homeless youth at 16.

¶8 The State did not rebut Bassett's evidence; rather, the State argued that compared to the severity of Bassett's crimes, the mitigation evidence did not show that Bassett should be considered for parole or early release. The State opposed a reduction in Bassett's sentence and argued that Bassett's crimes were premeditated, calculated acts and that no evidence demonstrated an acceptable explanation or excuse for the crimes.

III. RESENTENCING COURT'S CONCLUSIONS

¶9 The resentencing court acknowledged that it had a duty to consider the Miller factors and not to make a decision based upon the horrific circumstances of the crime alone. Further, the resentencing court noted that it had to assess Bassett's degree of responsibility and whether Bassett's crimes were the result of immaturity, impulsiveness, and emotion stimuli that caused Bassett to "snap." RP (Jan. 30, 2015) at 85.

¶10 The resentencing court concluded that Bassett's two previous attempts to commit the crimes and his stealing a gun in advance, fashioning a silencer, and cutting the phone lines evinced that Bassett had not acted from emotion or impulse. Bassett appreciated his actions' risks and consequences because he "did several things to try to reduce his risk" and fled after the crimes. RP (Jan. 30, 2015) at 89. The resentencing court noted Bassett's strained relationship with his family, which it determined was by Bassett's choice, and found no evidence of abuse or neglect. Further, Bassett's homelessness meant that he was potentially more responsible and in control of his behaviors than other 16-year-olds. In the resentencing court's view, teenage homelessness "cause[s] 15 and 16-year-olds to grow up pretty quickly" and to "gain a level of maturity much quicker than kids who are not in that situation." RP (Jan. 30, 2015) at 88-89.

¶11 When the resentencing court considered the Miller factors, it concluded that Bassett's infraction-free record did not carry "much weight in terms of assessing the likelihood that he can be rehabilitated or has been." RP (Jan. 30, 2015) at 90. Bassett's educational endeavors and trade certificates were "less evidence of rehabilitation and more evidence that [Bassett was] simply doing things to make his time in prison more tolerable" and to pass the time, and Bassett's marriage was "certainly not evidence of rehabilitation." RP (Jan. 30, 2015) at 91.

¶12 The resentencing court found that the evidence about the crimes' commission outweighed the mitigating nature of Bassett's adolescence. In doing so, the resentencing court concluded that Bassett's crimes "were the result of a cold and calculated and very well planned goal of eliminating his family from his life. And I don't believe that any amount of time in prison is going to ever result in his being rehabilitated such that he could safely return to any community." RP (Jan. 30, 2015) at 93. The resentencing court imposed three consecutive life without parole sentences. Bassett appeals.

ANALYSIS

I. BASSETT'S CLAIMS ARE NOT PROCEDURALLY BARRED

¶13 As an initial matter, the State argues that a PRP, not a direct appeal, was the proper method for Bassett to seek review of his resentencing. The State acknowledges that we may waive this procedural defect to reach the merits of Bassett's claims but argues that Bassett's claims must meet the PRP standards of RAP 16.4. We agree.

¶14 The legislature provided for certain juveniles sentenced to life without release or parole before June 1, 2014 to be resentenced consistently with RCW 10.95.030. RCW 10.95.035. RCW 10.95.030(3)(b) requires a court setting a minimum term for a 16- to 18-year-old offender who committed aggravated first degree murder to take into account "mitigating factors that account for the diminished culpability of youth as provided in Miller ." "The court's order setting a minimum term is subject to review to the same extent as...