State v. Ronquillo, 71723–5–I.

• Decision Date: 26 October 2015
• Docket Number: No. 71723–5–I.,71723–5–I.
• Citation: 361 P.3d 779,190 Wash.App. 765
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Brian Keith RONQUILLO, Appellant.

190 Wash.App. 765

361 P.3d 779

STATE of Washington, Respondent,

v.Brian Keith RONQUILLO, Appellant.

No. 71723–5–I.

Court of Appeals of Washington, Division 1.

Oct. 26, 2015.

Stacy Kinzer, Law Office of Stacy Kinzer, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Deborah A. Dwyer, King Co. Pros. Ofc./Appellate Unit, Seattle, WA, for Respondent.

Opinion

BECKER, J.

¶ 1 At issue is a sentence of 51.3 years imposed for murder and other violent crimes the offender committed in a gang-motivated drive-by shooting when he was 16 years old. We reverse and remand for resentencing because the trial court erroneously concluded there was no legal basis for an exceptional sentence. This is a de facto life sentence governed by Miller v. Alabama.¹Under our sentencing statutes and Miller,the diminished culpability of youth may serve as a mitigating factor. The court may also consider whether running three sentences consecutively produced a total sentence that is clearly excessive.

FACTS

¶ 2 This case arises from the resentencing of appellant Brian Ronquillo for crimes he committed in 1994. Ronquillo was 16 years old at the time. Riding in a car with other gang members, he fired at least six shots at a group of students who were standing in front of Ballard High School. He missed two intended targets, but one of his shots killed innocent bystander Melissa Fernandes. Another student was injured by a bullet fragment.

¶ 3 Ronquillo was initially charged in juvenile court. The State initiated decline proceedings. The court determined that Ronquillo would be tried as an adult, concluding that his “maturity and sophistication weighed heavily in favor of decline” and the juvenile corrections system, which could not keep him past age 21, would not have sufficient time to rehabilitate him if he were convicted. State v. Ronquillo,noted at 89 Wash.App. 1037, 1998 WL 87641, at *3, review denied,136 Wash.2d 1018, 966 P.2d 1277 (1998).²

¶ 4 Ronquillo was tried with two codefendants. Ronquillo,1998 WL 87641, at *1 n. 1. A jury convicted him on four counts: one count of first degree murder, two counts of attempted first degree murder, and one count of second degree assault while armed with a firearm. The trial judge sentenced Ronquillo to the bottom of the standard range for each count. This produced a sentence of 621 months: 261 months for the murder and 180 months for each of the attempted murders, all to be served consecutively, with a concurrent sentence of 45 months for the assault. The consecutive aspect of the sentence was an application of what is known as the multiple offense policy. Sentences must run consecutively rather than concurrently when a person “ is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct.” RCW 9.94A.589(1)(b), former RCW 9.94A.400 (1)(b) (2001).

¶ 5 Ronquillo's defense counsel Anthony Savage had argued that such a long sentence for a teenager was “morally wrong and legally unnecessary.” He asked the court to impose an exceptional sentence by running the sentences concurrently. Savage argued that the operation of the multiple offense policy “results in a presumptive sentence that is clearly excessive.” The request for a concurrent sentence was rejected, and Ronquillo was sentenced to 51.75 years in prison.

¶ 6 This court affirmed Ronquillo's conviction on direct appeal. Ronquillo,noted at 89 Wash.App. 1037. Three years later, Ronquillo returned to this court with a personal restraint petition claiming, among other things, that the trial court erred by concluding it was required to impose consecutive sentences. Ronquillo's petition was denied. Pers. Restraint of Ronquillo v. State,noted at 109 Wash.App. 1025, 2001 WL 1516938, at *8.

¶ 7 In 2012, this court held that the statute setting forth the multiple offense policy, RCW 9.94A.589(1)(b), is ambiguous where two or more serious violent offenses arguably have the same seriousness level. State v. Breaux,167 Wash.App. 166, 273 P.3d 447 (2012). Because this holding applied to Ronquillo's sentence, he again sought relief from his sentence on the ground that it was based on an incorrect calculation of his offender score. The State conceded, and this court agreed, that Ronquillo was entitled to a remand for resentencing. In re Pers. Restraint of Ronquillo,noted at 176 Wash.App. 1011, 2013 WL 4607710, at *2.

¶ 8 The correct calculation of Ronquillo's offender score under Breauxwould reduce his standard range sentence by only 5.25 months if everything else that went into the determination of the sentence remained the same. But the trial court had discretion to reconsider the sentence as a whole. State v. Graham,178 Wash.App. 580, 586, 314 P.3d 1148 (2013), reversed on other grounds, State v. Graham,181 Wash.2d 878, 337 P.3d 319 (2014). Ronquillo renewed his request for an exceptional sentence, and the court exercised its discretion to hear his argument. Ronquillo requested that his sentence be reduced to 320 months.

¶ 9 Ronquillo presented two alternative grounds for an exceptional sentence. First, he argued that youth alone can be a mitigating factor. As he recognized, this argument was not readily reconcilable with Washington statutes that govern the sentencing of persons convicted of felonies. Generally, a trial court must impose a sentence within the standard range. State v. Law,154 Wash.2d 85, 94, 110 P.3d 717 (2005). The court has discretion to depart from the standard range either upward or downward. But this discretion may be exercised only if: (1) the asserted aggravating or mitigating factor is not one necessarily considered by the legislature in establishing the standard sentence range, and (2) it is sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Law,154 Wash.2d at 95, 110 P.3d 717. A factor is sufficiently substantial and compelling to justify departure only if it relates “directly to the crime or the defendant's culpability for the crime committed.” Law,154 Wash.2d at 95, 110 P.3d 717. At the time of Ronquillo's resentencing, a defendant's youthfulness was not, by itself, a mitigating factor that could justify a downward departure. Law,154 Wash.2d at 97–98, 110 P.3d 717; State v. Ha'mim,132 Wash.2d 834, 847, 940 P.2d 633 (1997).

¶ 10 In recent years, the law governing the sentencing of juveniles has been significantly informed and in some respects unequivocally altered by the Eighth Amendment jurisprudence of the United States Supreme Court. Ronquillo asserted that his sentence of more than 51 years, “a near-life sentence,” could not be reconciled with the reasoning of Miller v. Alabama,––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and its predecessors, Roper v. Simmons,543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida,560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In Roperand Graham v. Florida,the Court “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty.” Miller,132 S.Ct. at 2463. The first two of these cases held that children may not be subjected to capital punishment, and children who have committed nonhomicide offenses may not be subjected to life without the possibility of parole. Miller,132 S.Ct. at 2463–64. The third case, Miller,holds that “mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.” Miller,132 S.Ct. at 2464. Miller“does not categorically bar a penalty for a class of offenders or type of crime,” but it does mandate that “a sentencer follow a certain process—considering an offender's youth and attendant circumstances—before imposing a particular penalty.” Miller,132 S.Ct. at 2471.

¶ 11 Roperand Graham v. Floridaestablished that juvenile offenders “are constitutionally different from adults for purposes of sentencing.” Miller,132 S.Ct. at 2464. The constitutional difference arises from a juvenile's lack of maturity, underdeveloped sense of responsibility, greater vulnerability to negative outside influences, including peer pressure, and the less fixed nature of the juvenile's character traits. Miller,132 S.Ct. at 2464. Because juveniles have diminished culpability and greater prospects for reform, they are less deserving of the most severe punishments. Miller,132 S.Ct. at 2464.

¶ 12 With Milleras a backdrop, Ronquillo argued that his youth at the time of the crime should be considered as a mitigating factor that would permit a departure from the strict application of the adult sentencing statutes. Ronquillo's sentencing memorandum described stressors in his family and school background that may have contributed to his gang involvement. It was accompanied by evidence that he has matured and made significant progress in rehabilitating himself through education and employment while in prison.

¶ 13 As an alternative ground for a reduced sentence, Ronquillo invoked the statute that permits a downward departure from the standard range if “the operation of the multiple offense policy of RCW 9.94A.589results in a presumptive sentence that is clearly excessive.” RCW 9.94A.535(1)(g).

¶ 14 At resentencing on March 21, 2014, the court concluded that Millerhad no application in Ronquillo's case. In Miller,the two petitioners were convicted of murder and sentenced to a mandatory term of life without parole. The Supreme Court held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller,132 S.Ct. at 2469. Because Ronquillo was not facing a mandatory term of life without parole, the court concluded Millerdid not supply a constitutional basis compelling consideration of Ronquillo's youth as a mitigating factor. Accordingly, the court looked only to Washington's sentencing statutes and determined that under Lawand Ha'mim,age alone cannot be a lawful mitigating factor...