State v. Gilbert, 33794-4-III

CourtCourt of Appeals of Washington
Docket NumberNo. 33794-4-III,33794-4-III
Decision Date03 April 2018


No. 33794-4-III


April 3, 2018


KORSMO, J. — Jeremiah Gilbert appeals from the resentencing accorded him under the Miller fix,1 RCW 10.95.035. Since the trial court complied with the dictates of the statute, we affirm.


At age 15, Mr. Gilbert murdered two men and attempted to murder a third. The crimes occurred after he and a young companion had run away from their homes in Buckley and journeyed on foot to the area of Goldendale in Klickitat County. Chancing upon a Ford Bronco belonging to Farrell Harris, who was hunting in a nearby canyon, the two broke into the vehicle and attempted to steal it.

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Harris returned from the woods and ran to halt the vehicle theft. Gilbert shouldered a rifle and fired at the man. Harris retreated to the woods and Gilbert kept shooting to keep him at bay. Harris ended up witnessing the ensuing killings.

Robert Gresham drove up on his motorcycle and stopped to see if there was a problem with the Bronco. Gilbert shot Mr. Gresham twice in the shoulder. He then walked up to the seriously wounded man, who was lying on the ground, and killed him with a shot to the head. Before the two youths managed to get the Bronco started, Mr. Loren Evans drove up in his truck. Mr. Harris saw Gilbert level his rifle and shoot. A single shot shattered the windshield and struck Mr. Evans in the head, instantly killing him.

The two young men then put their belongings in the truck, took Mr. Evans' body out, and drove off in the truck after first disabling the Bronco. Mr. Harris then came out of the woods and drove Mr. Gresham's motorcycle to alert authorities. The two young men were soon apprehended.

The juvenile court declined jurisdiction of Mr. Gilbert. The prosecutor then charged him in adult court with six offenses. A jury convicted him as charged. Included among the convictions was first degree murder of Mr. Gresham, first degree murder of Mr. Evans with aggravated circumstances, and second degree assault of Mr. Harris. The court sentenced Mr. Gilbert, as required, to a term of life in prison without possibility of parole for the aggravated murder conviction, and a consecutive term of 280 months for

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the murder of Mr. Gresham. Because the murder of Mr. Gresham was required to be served consecutive to the life sentence for murdering Mr. Evans, it was scored with an offender score of zero and resulted in a standard range of 240 to 320 months. The other offenses, fully scored, were served concurrently to the first degree murder count.

Gilbert appealed to this court, which affirmed the convictions and judgment in an unpublished opinion noted at 83 Wn. App. 1039 (1996). After the release of Miller, Mr. Gilbert filed a personal restraint petition (PRP) in the Washington Supreme Court seeking resentencing. Upon the release of In re Personal Restraint of McNeil, 181 Wn.2d 582, 334 P.3d 548 (2014), the PRP was transferred to this court and assigned cause no. 32895-3-III. The parties then stipulated to dismissal of the PRP in order that Mr. Gilbert could be resentenced in accordance with the statutory response to the Miller decision. See Comm'r's Ruling (Wash. Ct. App. Mar. 4, 2015) (dismissing PRP).

The trial court conducted a resentencing hearing on September 21, 2015. Defense counsel presented an evaluation of Mr. Gilbert from Ronald Roesch, PhD, who had conducted a five hour interview of Mr. Gilbert in prison and opined that the murders were impulsive acts committed by an immature youth who now had finally matured. Defense counsel also argued that because the Miller fix resulted in an indeterminate sentence for

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the aggravated murder conviction, the first degree murder count had to be resentenced (with an offender score of 8) to run concurrently to the aggravated murder count.2

The trial court recognized Mr. Gilbert's progress in prison and voiced the belief that he might soon be released on the indeterminate sentence because of his maturation.3 The court imposed a minimum term of 25 years and set the maximum sentence at life. However, believing that concurrent sentences totaling 25 years was insufficient for the multiple murders, the court directed that the aggravated murder conviction continue to run consecutively to the first degree murder. The court rejected the defense position and did not resentence on the other five counts.

Mr. Gilbert timely appealed to this court, which stayed the appeal pending the outcome of State v. Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017). After the release of the opinion in Ramos, we directed the parties to file additional briefing addressing the impact of that opinion, if any, on this case. After those briefs were received, a panel considered the matter without argument.

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Mr. Gilbert contends that the trial court did not comply with the dictates of Miller when it imposed a consecutive sentence. Since the trial judge complied with the requirements of the Miller fix, Mr. Gilbert's argument essentially would require this court to overturn the statute. However, his argument already has been rejected by the Washington Supreme Court.

Miller forbids mandatory life sentences for crimes committed while a juvenile and directs that "'individualized consideration'" be given to those offenders, taking into account the differences between youths and adults "'and how those differences counsel against irrevocably sentencing them to a lifetime in prison.'" McNeil, 181 Wn.2d at 588 (quoting Miller, 132 S. Ct. at 2469-2470). Thus, mandatory life sentences imposed for offenses committed prior to the offender's 18th birthday were unconstitutional under the Eighth Amendment.

In response, the legislature enacted RCW 10.95.030(3) to govern the sentencing of anyone who was to be sentenced in adult court for an aggravated first degree murder committed before their 18th birthday. The legislature also enacted RCW 10.95.035 to address the situation of those who previously had been sentenced to life in prison without the possibility of parole for crimes committed prior to their 18th birthday. That provision entitles each defendant to a resentencing in accordance with RCW 10.95.030. RCW 10.95.035(1). Under either circumstance, the trial court is required to impose an

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indeterminate sentence that includes a minimum term of at least 25 years in prison and a maximum sentence of life in prison. RCW 10.95.030(3)(a)(i), (ii). For those who committed their crimes before age 16, the minimum term of 25 years is mandatory. RCW 10.95.030(3)(a)(i). For crimes committed between the offender's 16th and 18th birthday, the trial court is required to consider the diminished culpability of youth, in accordance with Miller v. Alabama, before imposing a minimum term. RCW 10.95.030(3)(b).4 These statutes do not address other offenses sentenced under the Sentencing Reform Act of 1981, chapter 9.94A RCW.

Our court upheld the constitutionality of these Miller fix provisions in McNeil. There the defendants brought PRPs challenging their life sentences after Miller was issued. While the PRPs were pending, the legislature enacted its statutory response. 181 Wn.2d at 585-586. Denying a motion to dismiss the petitions, the court concluded that the statute created an entitlement to relief from pre-Miller sentences. Id. at 589-590. The Miller fix remedied the unlawfulness of the existing sentences, thus requiring that the

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PRPs be denied due to the existence of other remedies. Id. at 590. The court also rejected the claim that the Miller fix constituted an ex post facto violation. Id. at 590-593.

Here, the trial court did exactly what the statute required for someone such as Mr. Gilbert who committed aggravated murder before his 16th birthday—it set the minimum term at 25 years and the maximum sentence at life in prison. RCW 10.95.030(3)(a)(i). The statute does not require the reordering of other sentences from consecutive to concurrent. Indeed, it does not appear that reconsideration of the other sentences is even part of a Miller fix resentencing.5

Accordingly, we hold that the only issues presented by an appeal from a Miller fix resentencing are those related to the aggravated murder sentence(s) addressed by that statute. Thus, the ordering of sentences would normally not be at issue in an appeal unless there were multiple aggravated murders that were being resentenced. How a revised sentence is ordered with respect to other sentences that are not being reviewed by the trial court is not within the scope of the Miller fix since that issue was previously decided at the original sentencing and is not within the scope of the statutory fix.

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However, that does not leave defendants facing a Miller fix resentencing without any remedy. Our Supreme Court recognizes that a Miller problem is presented when an offender faces a term of years that amounts to a de facto life sentence. Ramos, 187 Wn.2d at 437-440. The court also recently has recognized that Miller requires that all juvenile offenders sentenced in adult court must be able to seek exceptional sentences based on their immaturity at the time of the commission of the crime. State v. Houston-Sconiers, 188 Wn.2d 1, 18-21, 391 P.3d 409 (2017).6 An offender is thus free to use that rationale to seek an exceptional sentence concerning the other counts or the ordering of the sentences in conjunction with a Miller fix resentencing.

With respect to Mr. Gilbert, whose resentencing occurred before the release of the Houston-Sconiers opinion and whose sentence will not be final until the mandate issues in this appeal, he is free to seek timely collateral relief by presenting a youthfulness mitigating factor argument. While he raised a related argument when seeking a concurrent sentence, he did not have Houston-Sconiers available to him and was unable to get the trial court to consider...

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