State v. Rogers

• Citation: 487 P.3d 177,17 Wash.App.2d 466
• Decision Date: 17 May 2021
• Docket Number: No. 80404-9-I,80404-9-I
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Appellant, v. Michael J. ROGERS, Respondent.

17 Wash.App.2d 466

487 P.3d 177

STATE of Washington, Appellant,

v.Michael J. ROGERS, Respondent.

No. 80404-9-I

Court of Appeals of Washington, Division 1.

FILED May 17, 2021

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Appellant.

Nielsen Koch PLLC, Attorney at Law, Casey Grannis, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Respondent.

PUBLISHED OPINION

Dwyer, J. ¶1 The State appeals from a sentence imposed upon a juvenile, Michael Rogers, following his conviction in superior court of murder in the first degree. The State contends that the 106 month sentence imposed upon Rogers was too lenient and was, therefore, unlawful. Rogers responds that when youth is established as a mitigating factor and the sentencing court has imposed an exceptional sentence below the standard range, the length of the sentence cannot be questioned on appeal.

¶2 Because the Eighth Amendment to the United States Constitution and article I, section 14 of our state constitution require that superior court judges possess broad discretion when sentencing juveniles who have been convicted in adult court, we conclude that the exceptional sentence provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, are no longer applicable once a judge has determined that youth has been established as a mitigating circumstance. However, recognizing that standardless and unreviewable sentencing could both allow arbitrary and biased decision-making and run afoul of our state constitution's guarantee of a defendant's right to an appeal, such decisions must be capable of being entertained on appellate review. Accordingly, we review the sentencing court's decision as we would review a sentence imposed prior to the effective date of the SRA. Applying such a standard, we affirm.

I

¶3 On February 13, 2016, 14-year old Diante Pellum and 16-year-old Michael Rogers planned to rob marijuana from 16-year-old Wesley Gennings when Gennings met up with them to sell them marijuana. Several weeks earlier, Rogers had attended a New Year's Eve party at Gennings’ home and had seen a realistic looking BB gun in Gennings’ bedroom. This left Rogers with the impression that Gennings carried a gun. At some point on the evening of February 13, Michael Stewart, Pellum's cousin, and Stewart's girlfriend, Stephanie Blanc, dropped Rogers and Pellum off at Pellum's house.

¶4 Later that evening, Janelle Massingill heard a gunshot coming from a parked car in the parking lot of a Taco Bell. Massingill saw Rogers leave the front seat of the car and Pellum leave the back seat.¹ Rogers opened the driver's door, looked inside the vehicle, and shut the door. To Massingill, Rogers appeared "shocked" and "panicked." Pellum appeared nonchalant. The two teenagers walked away from the car.

¶5 Massingill called the police, who discovered Gennings’ body slumped over in the front seat of the car. The cause of death was a gunshot wound to the back right side of his head. Pellum's fingerprint was found on the car seat headrest post.

¶6 Shortly after Gennings was shot, Stewart received a telephone call. Blanc and Stewart drove to pick up Pellum and Rogers from an apartment building near the Taco Bell. As they passed the Taco Bell, Rogers expressed that he would have liked to have removed Gennings’ car, but that he did not know how to drive a stick-shift vehicle. Rogers instructed Blanc to drive to a body of water. Blanc drove to Fisher's Pond, and Rogers got out of the car and crossed the street toward the pond. After he returned to the car, Blanc drove Rogers and Pellum to Pellum's home. Neither Gennings’ cell phone nor the murder weapon were ever found.

¶7 Rogers and Pellum were each charged with murder in the first degree predicated on robbery.² Pellum and Rogers were tried together. The State's theory of the case was that Pellum was the shooter. The jury convicted both Pellum and Rogers.

¶8 At sentencing, Rogers requested that the court impose an exceptional sentence below the standard range of 321-407 months. He urged a sentence of 84 months. In support of this request, Rogers argued that his youthfulness and developmental immaturity mitigated his capacity to appreciate the wrongfulness of his conduct. He presented evidence that, in addition to being immature at the time of the crime because he was a juvenile, he was developmentally immature for his age. A psychological evaluation concluded that severe, untreated attention deficit hyperactivity disorder (ADHD), as well as adverse childhood experiences, rendered Rogers significantly immature, even compared to his peers. The psychologist expressed the opinion that Rogers was unable to appreciate the risks and consequences of his actions and was easily influenced by his peers.

¶9 Rogers also presented a mitigation report, which detailed challenging aspects of Rogers’ upbringing, such as a lack of familial support, instability, and his witnessing frequent incidents of domestic violence, and explained how those experiences likely impacted him. In addition, Rogers argued that his limited role in the murder justified a lower sentence because the justifications for the felony murder rule are less compelling when applied to juveniles. Finally, Rogers presented evidence of his rehabilitation during his incarceration, including his earning a general equivalency diploma with a 4.0 grade point average during his last two semesters.

¶10 The State opposed the grant of an exceptional sentence below the standard range, arguing that Rogers had not established sufficient mitigating circumstances. It requested the imposition of a low-end standard range sentence.

¶11 The trial court entered written findings that Rogers was significantly immature because of his age and ADHD, and that he had demonstrated the capacity for rehabilitation. The trial court concluded that Rogers’ youthfulness and developmental immaturity warranted the imposition of a sentence below the standard range, and pronounced a sentence of 106 months of incarceration.

¶12 The State appeals.

II

¶13 The State contends that the sentence imposed by the trial court was too lenient to be lawful, in that it was not consistent with the goals of the SRA.³ In advancing this assertion, the State acknowledges that youth can constitute a statutory mitigating factor insomuch as it can affect a person's capacity to appreciate wrongfulness and ability to conform conduct to the law. The State concedes that trial courts have discretion to impose exceptional sentences below the standard range based on youth as a mitigating factor. However, the State avers, trial courts may only impose an exceptional sentence within the confines of the SRA's "departures from the guidelines" provision, RCW 9.94A.535, with the exception that a court cannot be required to impose on a child a life or de facto life sentence.

¶14 Rogers counters that pursuant to State v. Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017), sentencing courts have absolute discretion to sentence juveniles below the standard range and, therefore, the decision as to the length of a sentence cannot be reviewed on appeal.

¶15 Thus, as an initial matter, we must determine what obligations, if any, the SRA imposes on superior courts when sentencing juveniles who were tried as adults.

A

¶16 Our Supreme Court has announced that the SRA allows a sentencing court to impose an exceptional sentence below the standard range when a defendant's youthfulness significantly impairs that defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law. State v. O'Dell, 183 Wash.2d 680, 698-99, 358 P.3d 359 (2015) ; RCW 9.94A.535(1)(e). But youth is not a per se mitigating factor, even for juvenile defendants. State v. Ramos, 187 Wash.2d 420, 434, 387 P.3d 650 (2017). The SRA provision that governs departures from the guidelines places the burden of proving that substantial and compelling reasons justify imposing an exceptional sentence on the defendant. RCW 9.94A.535. Neither the state constitution nor the Eighth Amendment prohibit assigning the burden in this manner. State v. Gregg, 196 Wash.2d 473, 478, 474 P.3d 539 (2020) ; Ramos, 187 Wash.2d at 433, 387 P.3d 650 ; accord Jones v. Mississippi, ––– U.S. ––––, ––––, 141 S.Ct. 1307, ––– L.Ed.2d –––– (2021), https://www.supremecourt.gov/opinions/20pdf/18-1259_8njq.pdf.

¶17 However, the SRA does not alone govern the ways in which sentencing courts may exercise discretion in order to properly account for a defendant's youth. Our Supreme Court has explained that the Eighth Amendment requires 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 range and/or sentence enhancements.

Houston-Sconiers, 188 Wash.2d at 21, 391 P.3d 409 (footnote omitted).⁴

¶18 Accordingly, a sentencing court could not be required to impose on 16-and 17-year-old defendants firearm enhancement penalties that would otherwise be mandatory under the SRA. Houston-Sconiers, 188 Wash.2d at 25-26, 391 P.3d 409 ("The mandatory nature of these enhancements violates the Eighth Amendment protections discussed above."). The Houston-Sconiers court also affirmed that because youth can be a statutory mitigating factor under the SRA, an exceptional sentence of zero months on the substantive offenses was not "technically illegal" as...