                                                                          FILED
                                                                        APRIL 3, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 33794-4-III
                       Respondent,            )
                                              )
       V.                                     )
                                              )
JEREMIAH JAMES GILBERT,                       )         UNPUBLISHED OPINION
                                              )
                       Appellant.             )

       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.

                                          FACTS

       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.




       1
           Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
No. 33794-4-III
State v. Gilbert


       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

                                             2
No. 33794-4-III
State v. Gilbert


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 ofMcNeil, 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




                                             3
No. 33794-4-111
State v. Gilbert


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.




       2
         Mr. Gilbert himself told the court he would not ask for concurrent sentences,
although he would ask the court to "realize that reform is possible if I choose it and I
have chosen such." Report of Proceedings at 18.
       3 See WAC 381-40-150.




                                               4
No. 33794-4-III
State v. Gilbert


                                       ANALYSIS

       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

                                             5
No. 33794-4-III
State v. Gilbert


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




       4
         It is for this reason that our dissenting colleague's discussion of State v. Bassett,
198 Wn. App. 714, 394 P.3d 430 (2017), is inapplicable to this action. Bassett involved
an offender who was 16 and thus subject to a minimum term set by a judge under RCW
10.95.030(3)(a)(ii). This action involves subsection (3)(a)(i) and a mandatory minimum
term of 25 years. Only the Indeterminate Sentence Review Board, not the trial court, is
vested with the discretion to release Mr. Gilbert and others whose crimes were committed
before their 16th birthday. RCW 10.95.030(3)(d)-(i).

                                              6
No. 33794-4-III
State v. Gilbert


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.




       5  It is unclear to us if the trial judge believed the other sentences were even before
the trial court since they were not expressly addressed.


                                              7
No. 33794-4-III
State v. Gilbert


       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 the other offenses at the resentencing. Thus, we conclude

he did not already raise this claim.



       6
         The dissent is unduly harsh on Ramos and fails to recognize that Ramos and
Houston-Sconiers opened the door to mitigation of all youthful offenders still in prison
serving lengthy sentences rather than simply those subject to Miller v. Alabama. The
legislature also authorized reconsideration of lengthy sentences imposed on youthful
offenders not subject to the Miller fix statute. See RCW 9.94A.730.

                                              8
No. 33794-4-III
State v. Gilbert


      Accordingly, the sentence is affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




I CONCUR:



     J;   dLt>w
      Siddoway, J. �           J=




                                            9
                                      No. 33794-4-III

       FEARING, J. (dissenting) — What should the law do with an imprisoned man, who,

at the age of fifteen, murdered two men and nearly murdered a third, who is now age

forty-one and will not commit another crime if released? Should the law expiate the

heinous crimes and satisfy the grieved by continuing to incarcerate the man indefinitely?

The United States Supreme Court recently acknowledged social science and advances in

neurological science when issuing landmark decisions under the cruel and unusual

punishment clause concerning juvenile offender sentencing. A quartet of these decisions

answers our question and compels me to dissent.

       The majority affirms the trial court’s resentencing of Jeremiah Gilbert on the basis

that the trial court complied with the dictates of Washington’s Miller-fix statute, RCW

10.95.030, a statute held unconstitutional by one of this court’s sister divisions. State v.

Bassett, 198 Wn. App. 714, 394 P.3d 430 (2017), review granted, 189 Wn.2d 1008, 402

P.3d 827 (2017). The majority’s holding oversimplifies the issues in Gilbert’s appeal.

Whereas the trial court complied with the procedural dictates of the Miller-fix statute, the

resentencing of Gilbert breached substantive rules of juvenile offender sentencing

announced by the nation’s Supreme Court in Miller v. Alabama, 567 U.S. 460, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012). The trial court impermissibly resentenced a rehabilitated

Gilbert to a de facto life sentence because Gilbert committed odious crimes and without


                                                  1
No. 33794-4-III
State v. Gilbert (dissenting)


the court assessing whether Gilbert’s crimes reflected irreparable corruption or adjudging

whether Gilbert is a rare irretrievably depraved juvenile offender. In turn, the majority’s

reading of the statute to permit resentencing without consideration of the Miller factors

and to permit a de facto life sentence for multiple crimes renders RCW 10.95.030

unconstitutional. Since I disagree with my colleagues, since sentencing courts and

appellate courts repeatedly snub the teachings of Miller, and since this appeal concerns

the compelling topic of juvenile offender punishment, I assert the prerogative of penning

a dissently tome.

       The facts behind every juvenile offender’s life sentence incorporate a heinous

crime and usually depict a senseless horrific murder or murders. Jeremiah Gilbert’s

September 1992 inhumane assassination of two travelers and his merciless, nearly

deadly, assault of a third man presents no exception, although some decisions describe

even more hideous murders. State v. Barbeau, 370 Wis.2d 736, 883 N.W.2d 520 (2016);

State v. Boston, 131 Nev. Adv. Op. 98, 363 P.3d 453 (2015); Conley v. State, 972 N.E.2d

864 (Ind. 2012). Our majority outlines those crimes. In human terms, Gilbert deserves

life without parole, if not a harsher penalty, for his monstrous wrongs. Nevertheless,

although Gilbert did not respect the value of life, the American judicial system does.

American law values rehabilitation and mercy in addition to justice and retribution. This

respect for the dignity of each man and woman and the acknowledgement of a criminal’s

ability to change lie inside the prohibitions found in the cruel and unusual punishment

                                                 2
No. 33794-4-III
State v. Gilbert (dissenting)


clause of both the United States and the Washington Constitutions.

       Jeremiah Gilbert was born on November 27, 1976. Gilbert committed his crimes

in September 1992 at age fifteen. As part of the juvenile court decline procedure, a 1992

psychological evaluation concluded that Gilbert did not plan the murders, but he rather

reacted impulsively to being confronted during his attempted truck theft. The probation

report presented at his decline hearing noted that Gilbert lacked sophistication and

maturity and that he lacked the ability to process information and make decisions as an

adult. The Klickitat County juvenile court administrator then remarked that Gilbert’s

alcohol use influenced his criminal behavior. Still, after a declination hearing, the adult

court assumed jurisdiction over Gilbert with the trial court ruling, contrary to the

undisputed conclusions of experts, that Gilbert’s conduct involved sophistication and

planning.

       In 1993, the adult trial court, after a jury trial, convicted Jeremiah Gilbert of

aggravated first degree murder, first degree murder, second degree assault, first degree

burglary, first degree theft, and first degree robbery. Washington law then mandated a

life sentence without parole for a conviction of aggravated first degree murder no matter

the age of the offender. Former RCW 10.95.030. The trial court sentenced Gilbert, while

sixteen years of age, to a term of life in prison without possibility of parole for the

aggravated first degree murder conviction. The court also sentenced Gilbert to a

consecutive term of twenty-three years and four months, or 280 months, for the first

                                                  3
No. 33794-4-III
State v. Gilbert (dissenting)


degree murder conviction. Although the law does not label any homicide as

nonaggravated first degree murder, I allot the second conviction this appellation to

distinguish the two killings. The sentencing court ordered the sentences on the remaining

four crimes to run concurrent with one another and concurrent with the aggravated

murder conviction sentence. The sentences for the four remaining crimes bear no

relevance to this appeal. Obviously, the 1993 sentence incarcerated Gilbert for his

remaining life and two decades into his death.

       From 1994 to 2006, Jeremiah Gilbert committed twenty-seven infractions while in

prison. One infraction entailed the assault of a corrections officer. He committed a

minor infraction in 2009. The State characterizes Gilbert as being a problem inmate for

twelve years and a “model” citizen for less than ten years. I assume that the State

references Gilbert as a recent “model” citizen partly for contrariness, but still truth lies

behind the characterization. I detail Gilbert’s rehabilitation below.

       In Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012),

the United States Supreme Court invalidated state statutes that mandate a juvenile

sentence of life without parole for any crime. The holding, assuming Miller to apply

retroactively, undermined Jeremiah Gilbert’s sentence of life without parole pursuant to

Washington’s sentencing statute for aggravated first degree murder.

       As a result of Miller v. Alabama, the 2014 Washington State Legislature amended

RCW 10.95.030 and adopted RCW 10.95.035. LAWS OF 2014, ch. 130. RCW 10.95.030

                                                  4
No. 33794-4-III
State v. Gilbert (dissenting)


now reads, in relevant part:

                (1) Except as provided in subsections (2) and (3) of this section, any
        person convicted of the crime of aggravated first degree murder shall be
        sentenced to life imprisonment without possibility of release or parole. . . .
                ....
                (3)(a)(i) Any person convicted of the crime of aggravated first
        degree murder for an offense committed prior to the person’s sixteenth
        birthday shall be sentenced to a maximum term of life imprisonment and a
        minimum term of total confinement of twenty-five years.
                ....
                (c) . . . During the minimum term of total confinement, the person
        shall not be eligible for community custody, earned release time, furlough,
        home detention, partial confinement, work crew, work release, or any other
        form of early release authorized under RCW 9.94A.728, or any other form
        of authorized leave or absence from the correctional facility while not in the
        direct custody of a corrections officer. . . .

Appendix A contains a fuller version of the statute. In turn, RCW 10.95.035 declares, in

part:

                (1) A person, who was sentenced prior to June 1, 2014, under this
        chapter or any prior law, to a term of life without the possibility of parole
        for an offense committed prior to their eighteenth birthday, shall be
        returned to the sentencing court or the sentencing court’s successor for
        sentencing consistent with RCW 10.95.030. Release and supervision of a
        person who receives a minimum term of less than life will be governed by
        RCW 10.95.030.
                (2) The court shall provide an opportunity for victims and survivors
        of victims of any crimes for which the offender has been convicted to
        present a statement personally or by representation.

Other sections of the 2014 Miller-fix statute, RCW 9.94A.540 and RCW 9.94A.730, lack

relevance in this appeal because of the aggravated first degree murder conviction.

        In September 2015, Jeremiah Gilbert’s trial court conducted a resentencing


                                                  5
No. 33794-4-III
State v. Gilbert (dissenting)


hearing in accordance with RCW 10.95.035. By that date, Gilbert had served twenty-

three years in prison and was thirty-eight years of age.

       As part of the resentencing process, the resentencing court appointed Ronald

Roesch to evaluate Jeremiah Gilbert. Ronald Roesch is a Washington licensed

psychologist, who garnered a PhD in clinical psychology from the University of Illinois

in 1977. Roesch serves as a professor of psychology and director of mental health, law,

and policy at Simon Fraser University. He is past president of the American Psychology-

Law Society and the International Association of Forensic Mental Health. He has

published over 140 articles in professional books and journals.

       Ronald Roesch conducted a five-hour interview of Jeremiah Gilbert in prison.

Roesch also reviewed police investigation reports, an interrogation transcript, the

probation officer 1992 declination report, the criminal trial transcript, juvenile detention

facility records, and Department of Corrections’ records. Roesch interviewed corrections

officers and Gilbert’s family members.

       Ronald Roesch noted, in a report to the resentencing court, that Jeremiah Gilbert

transferred to an adult prison at age eighteen. According to Roesch, juveniles commonly

adjust with difficulty to adult prisons as a result of the juvenile’s impulsivity and

impaired ability to reason. According to Roesch, this difficulty in transition explains

Gilbert’s twenty-seven infractions. Gilbert’s assault of a corrections officer in 2006

constituted a turning point in Gilbert’s life. He then began to realize the need to assume

                                                  6
No. 33794-4-III
State v. Gilbert (dissenting)


responsibility for his actions. Visits from his sister and her children aided Gilbert’s

transformation.

       Dr. Ronald Roesch writes in his report to the resentencing court:

               According to Mr. James Forbis, his counselor at Stafford Creek, “I
       think he grew up. He has come a long way. His last infraction was 2009,
       and before that 2006. He is working, taking classes, and is a dog program
       trainer. A lot of inmates look up to him as a role model.” Officer Stella
       Jennings, the Corrections Unit Supervisor at Stafford Creek, confirms that
       Mr. Gilbert has been a model inmate, is respectful of staff and inmates, and
       presents with no behavioral problems.

Clerk’s Paper (CP) at 42. Jeremiah Gilbert has completed numerous classes in prison and

now teaches classes in the release readiness program. Sergeant Patricia McCarty

informed Roesch that Gilbert excels in treating abused dogs and that Gilbert assumed a

leadership role among other inmates. Gilbert’s life without parole sentence disqualifies

him from job training programs inside the prison.

       The Personality Assessment Inventory (PAI) performed by Dr. Ronald Roesch

indicated a lack of any clinical psychopathology in Jeremiah Gilbert. The HCR-20

analysis, an assessment of risk for violence and recidivism, established that Gilbert posed

a “low risk to reoffend.” CP at 45. Roesch’s report quoted from a Washington State

Institute for Public Policy paper that analyzed data on violent juvenile offenders. The

report found:

              . . . through age 25, only 20% of these violent young offenders were
       subsequently sentenced for a violent felony as an adult. Thus, the majority
       of violent youth do not represent a substantial long-term risk of violence.

                                                 7
No. 33794-4-III
State v. Gilbert (dissenting)


       The reasons for this are complex, but from a developmental perspective, it
       is likely due to the fact that adolescents, compared to adults, are more likely
       to respond impulsively, take greater risks, think less about long-term
       consequences of their behavior, and are more likely to be influenced by
       peers.

CP at 45 (footnotes omitted). Dr. Roesch’s report also cited a 2009 study by the

Washington Coalition for the Just Treatment of Youth that concluded:

              . . . recent breakthroughs in brain development research have
       shown that due to anatomical differences in the adolescent brain, youth
       are less able than adults to assess risks, control impulsive behavior, and
       engage in moral reasoning.

CP at 46. Roesch opined that Gilbert, as an immature youth, impulsively committed the

murders. Roesch also concluded that Gilbert has since matured.

       As part of the resentencing procedure, Jeremiah Gilbert submitted letters from

supporters, including a corrections officer at one of Gilbert’s prisons. Gilbert asked that

the resentencing court run the sentences for both murders concurrently, which would

allow Gilbert to apply for parole in two years.

       In a resentencing memorandum, the State asked the trial court to sentence Gilbert

to a maximum term of life imprisonment and a minimum term of twenty-five years for

the aggravated first degree murder conviction, as demanded by Washington’s Miller-fix

statute, and 280 months for the nonaggravated first degree murder conviction. The State

argued that Washington’s Miller-fix statute did not authorize the resentencing court to

reconsider the concurrent or consecutive natures of previous sentences and that RCW


                                                  8
No. 33794-4-III
State v. Gilbert (dissenting)


9.94A.589(1)(b), a portion of the Sentencing Reform Act of 1981, chapter 9.94A RCW,

demanded separate or consecutive sentences for the two murders as serious violent

crimes. The State did not argue in the memorandum that Jeremiah Gilbert’s crimes

showed that, at the time, Gilbert was irreparably corrupt or that Gilbert himself was

irretrievably depraved.

       During the resentencing hearing, Jane Edmonds, a surviving spouse of one of the

two murder victims, eloquently and succinctly commented:

               It’s really difficult to be here today, to stand up here, as I’m sure it is
       for the family of Mr. Gilbert. I know they love their son and want him to
       come home; but Robert and Loren have families that wanted that—who
       wanted them to come home also. They won’t get to do that.
               Families of Mr. Gilbert can go and visit him and talk to him and
       share their lives with him. The last time we got to see Robert and Loren
       was in a coffin. He [Jeremiah Gilbert] didn’t show them any mercy. Please
       don’t show him any mercy. Twenty-five years is not long enough for
       murder.

Report of Proceedings (RP) at 8.

       During the resentencing hearing, Jeff Coats spoke on behalf of Jeremiah Gilbert.

Coats knew Gilbert in prison, Coats vouched for Gilbert’s maturity, and he asked for

leniency for Gilbert. Appendix B contains Jeff Coats’ soliloquy.

       Jeremiah Gilbert addressed the resentencing court:

             I don’t know if I’ll ever have an opportunity again to personally
       express my remorse and—and—and my I’m sorry to the victims; not only
       the—the families of the—the two men that I murdered but the victims I
       made of the people that work in this courtroom and the victims I made of
       my family having to go through all they go through to continue to continue

                                                   9
No. 33794-4-III
State v. Gilbert (dissenting)


       to—to stand by me and support me.
               There’s—and—and I’ve grown into a—a man a lot like my father
       and I’d like to fix things and—and work on them and do a lot of crafts and
       stuff and I’m—I’m dealt the hand that can never be fixed and I’ve got to
       carry that whether I’m inside or out. It’s—that’ll be forever.
               I completely understand the—the victims’ families’ wish of forever.
       I get that. I mean, I’m not going to sit and—and ask for concurrent, not
       consecutive, that’s beyond my means. All I can—all I can ask is that you
       take the time to read the—the letters of support and realize that reform is
       possible if I choose it and I have chosen such. Thank you.

RP at 17-18.

       During the resentencing hearing, the resentencing court asked questions that

suggested that the court believed that, even with a consecutive sentence for the

nonaggravated first degree murder conviction, Gilbert could seek parole in one to two

years. Counsel for both parties may have contributed to this erroneous belief. During the

hearing, the State never contended that Jeremiah Gilbert was irretrievably depraved or

that his crime reflected irreparable corruption. The State never disagreed with the 1992

probation report that noted that Gilbert, when he committed the crimes, lacked

sophistication and maturity and that he lacked the ability to process information and

make decisions as an adult. The State never disputed Ronald Roesch’s conclusions that

Gilbert presented a low risk of reoffending and that Gilbert underwent rehabilitation.

       The resentencing court, at the request of the State and pursuant to RCW 10.95.030

(3)(a)(i), reduced Jeremiah Gilbert’s sentence for aggravated first degree murder from life

without parole to an indeterminate sentence of a maximum of life and a minimum of


                                               10
No. 33794-4-III
State v. Gilbert (dissenting)


twenty-five years. The resentencing court rejected Gilbert’s request to change the 280-

months’ consecutive sentence for nonaggravated first degree murder to a sentence

concurrent with the sentence for the aggravated first degree murder.

       At the conclusion of the resentencing hearing, the trial court declared:

               Well, I’ve read the risk assessment of the defendant and it says many
       good things about the defendant. Mr. Gilbert, you speak very—very well
       and articulately on your own behalf as well and there’s no reason that I
       cannot believe all of those things that you’ve done on your own behalf and
       the behalf of others and it seems likely, given your demeanor and your
       temperament and what I’m hearing now that you’ll continue to do those
       things.
               I’ve given thought to this and poured over what the facts are. I think
       even Mr. Gilbert would agree that this was a heinous crime, that he
       gratuitously and senselessly executed at least one person, he’s admitted to
       that and the question before the Court then on resentencing is whether the
       two hundred and eighty months consecutive to the twenty-five under life
       sentence, minimum, is justice given all of the circumstances in the context
       of everything I know or whether in the context of everything I know, justice
       requires me to agree with Mr. Lanz [defense counsel] and reduce that—I—
       by sentencing concurrently.
               So I am finding right now that I am adopting the State’s position in-
       toto and I am agreeing with their analysis of the law and the statute and I
       am therefore sentencing you to twenty-five years with a life sentence plus
       two hundred and eighty months consecutive. I am disagreeing with your
       position. I wish you the best of luck within the prison system and perhaps
       the parole board will see it your way sometime soon.
               I think the victims have to understand that that’s outside of my
       ambit. If the parole board kicks you out that’s what the parole board does
       and it looks to me, based on what I’ve read, that you stand a pretty good
       possibility of that. So that’s the rule of the Court.

RP at 19-20 (emphasis added). The trial court never mentioned whether it concluded that

Jeremiah Gilbert’s crimes reflected transient immaturity or constituted a rare case of an


                                                11
No. 33794-4-III
State v. Gilbert (dissenting)


irretrievably depraved teenager.

       On appeal, Jeremiah Gilbert contends the resentencing court failed to suitably

apply and consider the Miller factors, particularly the youthfulness and impulsiveness of

Gilbert at age fifteen when he committed the crimes. I agree. I also agree with my

Division Two colleagues to the unconstitutionality of Washington’s Miller-fix statute.

                                   Consecutive Sentences

       The fact that Jeremiah Gilbert committed two murders that led to consecutive

sentences looms large in this appeal. Both the sentencing court and the resentencing

court imposed consecutive sentences for the homicides. On appeal, Gilbert agrees that

the Washington Sentencing Reform Act authorizes the consecutive sentences, but he

argues that the resentencing court should have run the sentences concurrently as an

exceptional downward sentence under Washington law and to satisfy constitutional

sentencing restraints imposed by Miller v. Alabama.

       RCW 9.94A.589, a critical fraction of the Sentencing Reform Act, addresses the

circumstances under which the sentencing court orders consecutive sentences for two or

more pending crimes and concurrent sentences for two or more pending crimes. The

statute declares, in part:

              (1)(a) Except as provided in (b), (c), or (d) of this subsection,
       whenever a person is to be sentenced for two or more current offenses, the
       sentence range for each current offense shall be determined by using all
       other current and prior convictions as if they were prior convictions for the
       purpose of the offender score. . . . Sentences imposed under this subsection

                                               12
No. 33794-4-III
State v. Gilbert (dissenting)


       shall be served concurrently. Consecutive sentences may only be imposed
       under the exceptional sentence provisions of RCW 9.94A.535. . . .
               (b) Whenever a person is convicted of two or more serious violent
       offenses arising from separate and distinct criminal conduct, the standard
       sentence range for the offense with the highest seriousness level under
       RCW 9.94A.515 shall be determined using the offender’s prior convictions
       and other current convictions that are not serious violent offenses in the
       offender score and the standard sentence range for other serious violent
       offenses shall be determined by using an offender score of zero. . . . All
       sentences imposed under this subsection (1)(b) shall be served
       consecutively to each other and concurrently with sentences imposed under
       (a) of this subsection.

RCW 9.94A.589 (emphasis added). Under RCW 9.94A.030(46)(a)(i), a “serious violent

offense” is a subcategory of violent offenses and includes murder in the first degree.

       Jeremiah Gilbert characterizes the 280-months’ sentence for nonaggravated first

degree murder as a mandatory minimum sentence. According to Gilbert, he lacks

eligibility for parole until the end of the two hundred and eighty month term, which does

not begin to run until the expiration of the twenty-five year minimum sentence for

aggravated first degree murder. Therefore, according to Gilbert, he may not seek parole

from the indeterminate sentence review board until 2037, when he will be sixty years old.

The State will have then incarcerated him for forty-five years. The State concedes that

Gilbert will reach at least the age of sixty before the review board will even consider

parole. Of course, the indeterminate sentence review board could deny parole even at the

age of sixty.

       Jeremiah Gilbert frames his solo assignment of error as: the resentencing court


                                                13
No. 33794-4-III
State v. Gilbert (dissenting)


failed to appropriately apply the Miller factors at the resentencing hearing resulting in a

sentence that constitutes a de facto life sentence. This assignment raises two discrete

questions. First, did Gilbert’s resentencing constitute a de facto life sentence? Second,

did the trial court fail to appropriately apply the Miller factors? I will address these,

along with other legal questions, not necessarily in such order. The answers to both

questions, based on the federal constitution’s cruel and unusual punishment clause and

the Washington Constitution’s cruel and unusual punishment clause, is yes. The answers

begin with a review of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d

407 (2012).

                                     Miller v. Alabama

       The Eighth Amendment to the United States Constitution reads: “Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” (Emphasis added.) The Eighth Amendment applies to the states through the

Fourteenth Amendment. Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 161 L.

Ed. 2d 1 (2005).

       The framers of the Bill of Rights principally intended the Eighth Amendment to

preclude barbaric or torturous methods of punishment. Harmelin v. Michigan, 501 U.S.

957, 979, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (opinion of Scalia, J.). Later, the

United States Supreme Court extended the reach of the Eighth Amendment to grossly

disproportionate sentences based on the nature of the offense or the characteristics of the

                                                 14
No. 33794-4-III
State v. Gilbert (dissenting)


offender. Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793

(1910). A sentence disproportionate to the crime or undeserving of the offender

constitutes cruel and unusual punishment. In other variations of Eighth Amendment

jurisprudence, the Court has elongated the coverage of the cruel and unusual punishment

clause to circumstances when punishment may be imposed in an arbitrary and

unpredictable fashion. Kennedy v. Louisiana, 554 U.S. 407, 436, 128 S. Ct. 2641, 171 L.

Ed. 2d 525 (2008). Finally, the Court has also determined a punishment to be cruel and

unusual when the sentence serves no penological purpose. Graham v. Florida, 560 U.S.

48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 571

(2005). Stated differently, a sanction is beyond the State’s authority to inflict if it makes

no measurable contribution to acceptable penal goals. Weems v. United States, 217 U.S.

at 367. Lengthy sentences for juvenile offenders implicate the last three purposes served

by the cruel and unusual punishment clause.

       The issue on appeal concerns the resentencing of Jeremiah Gilbert for crimes

Gilbert perpetuated when fifteen years old. The United States’ history of the treatment of

juvenile offenders resembles a swinging pendulum. During colonial days and well into

the 19th century, the legal system treated children as young as seven as adults subject to

adult punishments, including the death penalty. CHILDHOOD, YOUTH, AND SOCIAL

WORK IN TRANSFORMATION: IMPLICATIONS FOR POLICY AND PRACTICE (Lynn M.

Nybell, Jeffrey J. Shook & Janet L. Finn eds. 2009). Changing demographic, social and

                                                 15
No. 33794-4-III
State v. Gilbert (dissenting)


economic conditions created a trend, by the mid-1800s, to seek reform, rather than

punishment, for juvenile offenders. In 1899, Illinois formed the first juvenile court based

on the underlying assumption that minors were more amenable to rehabilitation than

adult criminals. ELIZABETH J. CLAPP, MOTHERS OF ALL CHILDREN: WOMEN REFORMERS

AND THE RISE OF JUVENILE COURTS IN PROGRESSIVE ERA AMERICA 19            (1998). Rising

crime rates and academics’ and the media’s creation of the phantom juvenile super-

predator swung the pendulum in the 1980s toward harsher punishment and prosecuting

youth in adult court for violent crimes. JEFFREY BUTTS & JEREMY TRAVIS, URBAN

INSTITUTE JUSTICE POLICY CENTER, THE RISE AND FALL OF AMERICAN YOUTH

VIOLENCE: 1980 to 2000 (2002). Advances in social science and physiological science

now oscillate the pendulum again.

       The United States Supreme Court has declared that children are “constitutionally

different” from adults for purposes of sentencing. Miller v. Alabama, 567 U.S. 460, 471,

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). One could read this declaration to refer to

children’s mental, physical, and emotional compositions differing from the rational,

somatic, and psychic makeup of adults, but the Court likely intended to state that children

differ from adults under the United States Constitution. Both statements are accurate.

       According to the United States Supreme Court, the penal system should treat

offenders under the age of eighteen differently. Children’s lack of maturity and

underdeveloped sense of responsibility lead to recklessness, impulsivity, and heedless

                                                16
No. 33794-4-III
State v. Gilbert (dissenting)


risk taking. Miller v. Alabama, 567 U.S. at 471. Children are also more vulnerable to

negative influence and outside pressure from family and peers, have limited control over

their environments, and lack the ability to extricate themselves from horrific, crime-

producing settings. Miller v. Alabama, 567 U.S. at 471. Because a child’s character is

not as well formed as an adult’s, the child’s traits are less fixed, and his actions are less

likely to be evidence of irretrievable depravity. Miller v. Alabama, 567 U.S. at 471.

Commonsense, parental knowledge, physical science, and social science confirm these

observations. Miller v. Alabama, 567 U.S. at 472 n.5. Only a relatively small proportion

of adolescents who engage in illegal activity develop entrenched patterns of problem

behavior. Roper v. Simmons, 543 U.S. at 570 (2005). Adolescent brains are not yet fully

mature in regions and systems related to higher order executive functions such as impulse

control, planning, and risk avoidance. Miller v. Alabama, 567 U.S. at 475 n.5. All of

these features are crime specific. Miller v. Alabama, 567 U.S. at 473. Youth is more

than a chronological fact, it is a time of immaturity, irresponsibility, impetuousness, and

recklessness. Roper v. Simmons, 543 U.S. at 569.

       Immaturity does not end at age eighteen. The parts of the brain involved in

behavioral control continue to develop well into a person’s 20s. State v. O’Dell, 183

Wn.2d 680, 692 n.5, 358 P.3d 359 (2015). The dorsal lateral prefontal cortex, important

for controlling impulses, is among the latest brain regions to mature without reaching

adult dimensions until the early twenties. State v. O’Dell, 183 Wn.2d at 692 n.5.

                                                  17
No. 33794-4-III
State v. Gilbert (dissenting)


       The distinctive attributes of youth diminish the penological justifications for

imposing the harshest sentences on juvenile offenders, even when they commit terrible

crimes. Miller v. Alabama, 567 U.S. at 472. Deterrence supplies a flawed rationale for

punishment because of juveniles’ impulsivity and inability to consider the consequences

of their actions. Miller v. Alabama, 567 U.S. at 472. Jeremiah Gilbert initially received a

sentence of life without parole. Retribution’s focus on blameworthiness does not justify a

life without parole sentence because juveniles have severely diminished moral

culpability. Miller v. Alabama, 567 U.S. at 472. Incapacitation fails to justify a long

sentence because adolescent development diminishes the likelihood that an offender

forever will be a danger to society. Miller v. Alabama, 567 U.S. at 472-73. In other

words, incorrigibility is inconsistent with youth. Graham v. Florida, 560 U.S. 48, 72-73,

130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Finally, rehabilitation does not justify a life

without parole sentence because such a sentence precludes hope for a child’s ultimate

rehabilitation. Miller v. Alabama, 567 U.S. at 473. At least with respect to life without

parole for juvenile nonhomicide offenders, if not for homicide offenders, none of the

goals of penal sanctions that have been recognized as legitimate—retribution, deterrence,

incapacitation, and rehabilitation—provides an adequate justification. Graham v.

Florida, 560 U.S. at 71.

       In 1993, Jeremiah Gilbert’s sentencing court ordered him to serve a lifetime

sentence without parole in addition to another 280 months’ incarceration. The United

                                                18
No. 33794-4-III
State v. Gilbert (dissenting)


States Supreme Court has since issued four important decisions concerning juvenile

offender sentencing: Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 161 L. Ed.

2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010);

Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); and

Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). Roper

held capital punishment impermissible under the cruel and unusual punishment clause for

offenders who commit crimes before the age of eighteen. Although Roper concerned the

death penalty, its teaching regarding juvenile offenders extends to life without parole.

       In Graham v. Florida, the high Court held a lifetime sentence for a youth

convicted of a nonhomicidal crime to be unconstitutional because of characteristics of

youth, among other reasons. Although Graham involves crimes other than homicide, its

doctrine and other cases involving long sentences for nonhomicide crimes extends to

juvenile offenders who commit murder. For youth, life without parole presents an

especially harsh punishment because the juvenile will almost inevitably serve more years

and a greater percentage of his life in prison than an adult offender. Graham likened life

without parole sentences to the death penalty for juveniles. The Graham Court observed:

                [A] categorical rule [barring life without parole sentences] gives all
       juvenile nonhomicide offenders a chance to demonstrate maturity and
       reform. The juvenile should not be deprived of the opportunity to achieve
       maturity of judgment and self-recognition of human worth and potential.
       . . . Life in prison without the possibility of parole gives no chance for
       fulfillment outside prison walls, no chance for reconciliation with society,
       no hope. Maturity can lead to that considered reflection which is the

                                                 19
No. 33794-4-III
State v. Gilbert (dissenting)


       foundation for remorse, renewal, and rehabilitation. A young person who
       knows that he or she has no chance to leave prison before life’s end has
       little incentive to become a responsible individual. In some prisons,
       moreover, the system itself becomes complicit in the lack of development.
        . . . A categorical rule against life without parole for juvenile nonhomicide
       offenders avoids the perverse consequence in which the lack of maturity
       that led to an offender’s crime is reinforced by the prison term.

560 U.S. at 79. The Graham court quoted Naovarath v. State, 105 Nev. 525, 526, 779

P.2d 944 (1989):

              “[This sentence] means denial of hope; it means that good behavior
       and character improvement are immaterial; it means that whatever the
       future might hold in store for the mind and spirit of [the convict], he will
       remain in prison for the rest of his days.”

(Some alterations in original.)

       Graham noted that corrections facilities often deny defendants serving life without

parole with access to vocational training and other rehabilitative services that are

available to other inmates. For juvenile offenders, who are most in need of and receptive

to rehabilitation, the absence of rehabilitative opportunities or treatment makes the

disproportionality of the sentence all the more evident. Graham v. Florida, 560 U.S. at

74. The Washington Department of Corrections has denied Jeremiah Gilbert job training

programs.

       During the same week that it issued its historic ruling on Obamacare, the United

States Supreme Court partially extended its ruling in Graham v. Florida to offenders who

committed homicide, in the then unnoticed decision of Miller v. Alabama, 567 U.S. 460


                                                 20
No. 33794-4-III
State v. Gilbert (dissenting)


(2012). In Miller, the Court struck down state laws mandating life without parole

sentences for juveniles found guilty of even aggravated first degree murder. The Court

strongly inferred, if not held, that no juvenile could receive a lifetime sentence for any

crime unless the sentencing court finds the juvenile to be a “rare juvenile offender whose

crime reflects irreparable corruption.” Miller v. Alabama, 567 U.S. at 479-80. Because

of the constitutional nature of children, including teenagers, the Miller Court mandated

that a sentencer follow a process that incorporates consideration of the offender’s

chronological age and its hallmark features and other mitigating features before imposing

life without parole. The attended characteristics include: chronological age, immaturity,

impetuosity, failure to appreciate risks and consequences, the surrounding family and

home environment, the circumstances of the homicide offense, including the extent of the

offender’s participation in the conduct and any pressures from friends or family affecting

him, the inability to deal with police officers and prosecutors, incapacity to assist an

attorney in his or her defense, and the possibility of rehabilitation. Miller v. Alabama,

567 U.S. at 477. The Court noted that the appropriate occasion for sentencing a juvenile

homicide offender to life without parole will be “uncommon.” Miller v. Alabama, 567

U.S. at 479.

       The majority decision, in Miller v. Alabama, as do all decisions invalidating a

punishment under the cruel and unusual punishment clause, drew fervent dissents. Chief

Justice Roberts, in dissent, argued that a decent society protects the innocent from

                                                 21
No. 33794-4-III
State v. Gilbert (dissenting)


violence. A mature society may determine that safety requires removing those guilty of

the most heinous murders from its midst, both as protection for its other members and as

a concrete expression of its standards of decency. Legislators, not judges, should

determine standards of decency and punishment. Roberts noted that, by the 1980s, public

outcry against repeat offenders, broad disaffection with the rehabilitative model, and

other factors led legislatures to reduce or eliminate the possibility of parole, imposing

longer sentences in order to punish criminals and prevent them from committing more

crimes.

       Courts that declare legislative sentencing schemes unconstitutional, including the

Miller Court, face ardent criticism. Critics assert that legislatures, not courts, hold the

prerogative to determine the fairness, morality, and justness of criminal punishment.

Decriers lament that five judges, who in 2012 personally objected to life without parole,

outlawed the practice despite most states, including Washington State, permitting the

punishment. According to critics, the subjective values of judges should not control state

sentencing schemes.

       As previously written, before Miller, Washington imposed a mandatory sentence

of life without parole for aggravated first degree murder regardless of the offender’s age.

Former RCW 10.95.030 (1993). In response to Miller, the 2014 legislature amended

RCW 10.95.030 with purported Miller-provisions. We call the statute the Miller-fix

statute. This opinion previously quoted some of the relevant subsections of the statute.

                                                 22
No. 33794-4-III
State v. Gilbert (dissenting)


For one convicted of aggravated first degree murder for a homicide committed before age

sixteen, the offender receives a maximum term of life imprisonment and a minimum term

of total confinement of twenty-five years. One-half year before expiration of the

minimum term, the Department of Corrections shall review the current status of the

offender and report to the indeterminate sentence review board. The board shall release

and place the offender on community custody if the board determines the offender

unlikely to reoffend. If the board does not release the offender, the board establishes

another minimum term not to exceed an additional five years.

       After Washington’s Miller-fix statute, the nation’s high Court, in Montgomery v.

Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), readdressed the

subject of life without parole sentences for juvenile homicide offenders. Montgomery

held that Miller applied retroactively to offenders who were juveniles when they

committed their crimes. Against contentions that the Miller ruling only imposed a

procedure for resentencing, the Court announced that Miller established a substantive rule

that juveniles, whose crimes reflect “only transient immaturity” and who have since

matured, will not be forced to serve a life without parole sentence. Montgomery v.

Louisiana, 136 S. Ct. at 736. The Court wrote:

              The [Miller] hearing does not replace but rather gives effect to
       Miller’s substantive holding that life without parole is an excessive
       sentence for children whose crimes reflect transient immaturity.

136 S. Ct. at 735. Conversely, the Eighth Amendment mandates parole eligibility for

                                                 23
No. 33794-4-III
State v. Gilbert (dissenting)


juvenile murderers whose crimes reflect only transient immaturity. Life without parole is

constitutional only for “the rarest of juvenile offenders, those whose crimes reflect

permanent incorrigibility.” Montgomery, 136 S. Ct. at 734. The opportunity for release

will be afforded to those who demonstrate the truth of Miller’s central intuition that

children who commit even heinous crimes are capable of change. The Court qualified its

ruling by declaring that Miller did not require a finding of fact regarding a child’s

irreparable corruption before a juvenile could be sentenced to life without parole.

       Courts lower than the United States Supreme Court would benefit by reading State

v. Veal, 298 Ga. 691, 784 S.E.2d 403 (2016). Before Montgomery, the Georgia Supreme

Court viewed Miller as imposing only a procedure. In Veal, the Georgia Supreme Court

finally took Miller seriously because of Montgomery’s holding that Miller impresses the

substantive requirement that the sentencing court determine the irretrievably depraved

nature, or lack thereof, of the offender.

       Since Miller, state courts have issued a downpour of decisions and federal courts

have published a drizzle of opinions centering on sentencing of juvenile homicide

offenders. The majority of decisions utilizes sundry sophistry and employs rickety

rationalizations to ignore the letter and spirit of Miller and other Supreme Court decisions

in order to effectuate life in prison for juvenile offenders. Courts adopt a narrow, literal

interpretation of Miller rather than following the spirit of Miller. Appendix C

nonexhaustively lists tactics and arguments used to avoid Miller and Montgomery.

                                                 24
No. 33794-4-III
State v. Gilbert (dissenting)


       Language in the United States Supreme Court rulings of Miller and Montgomery

begs many questions. In turn, rulings in the two landmark decisions construct practical,

procedural, forensic, and substantive, if not theological, complexities and complications.

Some courts seize on these complications to avoid Miller’s and Montgomery’s doctrine.

Reviewing the anomalies arising from Miller and Montgomery permits a clearer analysis

of the issues presented in Jeremiah Gilbert’s appeal. Discussing the intricacies of the two

decisions also constructs a platform for an examination of this court’s recent Bassett

decision.

       Miller and Montgomery repeatedly reference a life without parole sentence and

presumably distinguish this sentence from a life with the possibility of parole sentence.

One wonders about the application of Miller if a state lacks a parole system, but a state

sentencing court sentences the juvenile offender to a life sentence. Presumably, the

Supreme Court would require this sentencing court to review the Miller factors before

sentencing the offender to a life sentence, but then the offender lacks the ability for

release from prison during his lifetime even if he achieves complete rehabilitation.

       Miller and Montgomery bar mandatory life without parole sentences. The

decisions do not expressly preclude discretionary life without parole sentences.

Presumably, some facts must exist before a sentencing court may impose, on a

discretionary basis, a sentence of life without parole. Otherwise all discretionary

sentences could become in effect mandatory. As one state court noted, Miller’s

                                                 25
No. 33794-4-III
State v. Gilbert (dissenting)


reasoning extends beyond mandatory sentencing schemes. Casiano v. Commissioner of

Correction, 317 Conn. 52, 115 A.3d 1031, 1037 (2015). An offender receives the same

sentence regardless of whether a statute mandates a life without parole sentence or the

judge imposes his or her own life without parole sentence. Presumably the facts that

must exist, before a discretionary life without parole sentence, is a character flaw in the

juvenile offender or a crime that reflects a character blemish.

       In Appendix D, I list various terms employed by Miller, Montgomery, and other

decisions when marking the only type of juvenile offender subject to life imprisonment.

For purposes now, I mention that United States Supreme Court opinions permit a state

court to impose a life sentence without parole on only “the rare juvenile offender whose

crime reflects irreparable corruption.” Montgomery v. Louisiana, ___ U.S. ___, 136 S.

Ct. at 734 (2016); Miller v. Alabama, 567 U.S. at 480 (2012); Roper v. Simmons, 543

U.S. at 573 (2005) (emphasis added). The term “corruption” fits ill in the setting of

juvenile offenders. The word “corruption” generally denotes someone in power willing

to act dishonestly in return for money or personal gain or for continued power.

According to the legal dictionary, “corruption” constitutes a form of dishonest or

unethical conduct by a person entrusted with a position of authority, often to acquire

personal benefit. LEGAL DICTIONARY, https://legaldictionary.net/corruption/ (last visited

Mar. 23, 2018). Juvenile offenders lack a position of authority or power and often do not

kill for personal gain. Juvenile murders often lack a motivation of dishonesty.

                                                 26
No. 33794-4-III
State v. Gilbert (dissenting)


       Montgomery and Miller also employ the phrases “permanent incorrigibility” and

“irretrievable depravity.” Montgomery v. Louisiana, 136 S. Ct. at 733-35 (2016); Miller

v. Alabama, 567 U.S. at 471, 473, 490 (2012). Graham v. Florida, 560 U.S. at 75 (2010)

introduced the word “irredeemable.”

       The Court’s phraseology begs the questions: How does a sentencing court measure

irreparable corruption, permanent incorrigibility, irretrievable depravity, or

irredeemability when deciding whether a juvenile offender qualifies for a life without

parole sentence? Judges would readily agree that some historical examples, such as

Adolph Hitler, Jeffrey Dahmer, Osama bin Laden, and Charles Manson deserve this

appellation. Yet Hitler and bin Laden committed no crimes as a youth, and Manson

perpetuated only petty crimes as a youth. Dahmer killed his first victim at age eighteen,

but committed no previous crimes. Dylan Klebod was seventeen at the time of the

Columbine Massacre. Eric Harris was age eighteen. Klebold and Harris, unlike Jeremiah

Gilbert, planned their murders days in advance and armed themselves with weapons and

ammunition to kill scores. Gilbert in a moment of panic grabbed a rifle that his

companion pilfered from the companion’s father in order to shoot deer. Gilbert does not

parallel historic examples of irretrievable depravity.

       The terms irreparable corruption, permanent incorrigibility, irretrievable depravity

and irredeemability pose more as theological, than penological, concepts and connote an

aura of unforgivable or irreversible sinfulness. In a nation with a majority of Christians

                                                 27
No. 33794-4-III
State v. Gilbert (dissenting)


that believe in salvation and grace for even the worst of sinners, one questions whether

American society and American law should deem anyone irretrievably depraved or

irredeemable.

       Forensic psychiatrist Michael Welner, M.D., seeks to find a consensus among the

citizenry as to what constitutes “depravity” in order to minimize the arbitrariness of how

courts determine the worst of crimes. The study will develop a “depravity standard,” and

one can participate in Welner’s survey through the World Wide Web. Michael Welner,

The Depravity Standard, https://depravitystandard.org/ (last visited Mar. 23, 2018), will

promote the standard for use in the American judicial system. Notably Welner excludes

from participation, in his survey, those under the age of eighteen.

       Miller and Montgomery distinguished between juvenile offenders whose crimes

reflect “unfortunate yet transient immaturity” and “the rare juvenile offenders whose

crimes reflect irreparable corruption.” Miller, 567 U.S. at 479-80; Montgomery, 136

S. Ct. at 734. This language suggests a bright dividing line between two classes of

juvenile offenders. The language may generate two mutually exclusive categories of

offenders. Nevertheless, the court system may encounter a rare juvenile offender who

straddles the line between the two classifications and even one or more offenders who

meander back and forth across the line of demarcation.

       The Supreme Court’s promoting of two hermetic categories of juvenile offenders

introduces another intricacy from Miller and Montgomery. One wonders how a

                                                28
No. 33794-4-III
State v. Gilbert (dissenting)


sentencing judge can render a trustworthy determination of whether a juvenile offender’s

crime signifies immaturity or signals permanent incorrigibility. An informed sentencing

decision could require days of testimony and days of thought, and courts lack time for

long sentencing hearings.

       A decision as to whether a crime reflects “unfortunate yet transient immaturity” or

the rare occasion of “irreparable corruption” commands review of psychological

evidence. Nevertheless, even expert psychologists encounter difficulty in differentiating

between the juvenile offender whose crime reflects unfortunate yet transient immaturity

and the rare juvenile offender whose crime reflects irreparable corruption. Graham v.

Florida, 560 U.S. at 68 (2010). A rule even forbids psychiatrists from diagnosing any

patient under eighteen as having antisocial personality disorder, a disorder also referred

to as psychopathy or sociopathy, and which is characterized by callousness, cynicism,

and contempt for the feelings, rights, and suffering of others. American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR 701-06

(4th ed. text rev. 2000), cited in Roper v. Simmons, 543 U.S. at 572-74 (2005). The

Miller Court offered the difficulty encountered even by experts as a reason why life

without parole will be uncommon. Miller v. Alabama, 567 U.S. at 479 (2012). Lower

courts ignore this passage from Miller and instead employ the difficulty in order to render

de facto life sentences for heinous crimes.

       Note that the language in Miller and Montgomery does not target immature

                                                29
No. 33794-4-III
State v. Gilbert (dissenting)


offenders or irretrievably depraved offenders. The high Court decisions instead refer to

juvenile offenders “whose crimes reflect transient immaturity” and juveniles whose

“crimes reflect irretrievable corruption.” Miller, 567 U.S. at 479-80; Montgomery, 136

S. Ct. at 734. Accordingly, the sentencing court focuses on the nature of the crime, not

the character of the offender. Nevertheless, crimes are not immature. Youth are

immature. Transgressions are not irretrievably depraved. People are depraved.

       The Miller Court directed sentencing courts to weigh factors when sentencing a

juvenile offender. Those factors include the chronological age of the offender at the time

of the crime, the juvenile’s immaturity, the offender’s impetuosity, the juvenile’s failure

to appreciate risks and consequences, the juvenile offender’s surrounding family and

home environment, the circumstances of the homicide offense, including the extent of the

offender’s participation in the conduct and any pressures from friends or family affecting

him, the offender’s inability to deal with police officers and prosecutors, the juvenile’s

incapacity to assist an attorney in his or her defense, and the juvenile offender’s

possibility of rehabilitation. Miller, 567 U.S. at 477. Some of these factors entail the

circumstances of the crime. Most of these factors emphasize the characteristics of the

offender, not the crime. Thus, a court’s review of the Miller factors entails more a review

of the person than the wrongful conduct.

       The Miller and Montgomery holdings imply that the trial court must render the

individualized determination of irreparable corruption, taking into account the prospect of

                                                 30
No. 33794-4-III
State v. Gilbert (dissenting)


rehabilitation, at the time of the sentencing. Newton v. State, 83 N.E.3d 726, 744 (Ind.

Ct. App. 2017). The Supreme Court in Miller declared that the Eighth Amendment

requires sentencing courts to exercise their discretion at the time of sentencing itself,

regardless of what opportunities for discretionary release may occur in the future. Miller

v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2468-72 (2012); State v. Houston-Sconiers,

188 Wn.2d 1, 20, 391 P.3d 409 (2017). In State v. Ramos, 187 Wn.2d 420, 387 P.3d 650

(2017), our Supreme Court ruled that the resentencing court must primarily look at the

traits of the offender at the time of the crime. Under these principles, the sentencing

court will render its decision while the juvenile has yet to mature, except for resentencing

hearings for offenders sentenced before Miller. If the sentencing court judges the case on

the characteristics of the offender, not merely the characteristics of the crime, the court

will receive no evidence of the offender’s rehabilitation or lack thereof. Since science

informs us that a juvenile’s brain does not fully form and the teenager’s reasoning skills

do not fully develop until his twenties, a court will encounter difficulty in assessing

“irretrievable depravity” at the time of sentencing.

       Graham demands that the state afford a juvenile offender serving a life sentence or

its functional equivalent to “some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.” Graham v. Florida, 560 U.S. 48, 75 (2010);

State v. Scott, 196 Wn. App. 961, 966, 385 P.3d 783 (2016), review granted, 188 Wn.2d

1001, 393 P.3d 362 (2017); State v. Rivera, 177 Conn. App. 242, 172 A.3d 260, 265

                                                 31
No. 33794-4-III
State v. Gilbert (dissenting)


(2017). A demonstration of maturation and rehabilitation comes years after sentencing.

Assessing, at the time of initial sentencing, whether the offender should receive life

without parole, conflicts with this principle. For this reason, some resentencing courts

permit introduction of the offender’s postconviction conduct in prison. State v. Ramos,

187 Wn.2d 420, 449, 387 P.3d 650 (2017). Under this context, one wonders about the

constitutionality of my previous hypothetical situation when a state lacks a parole system

and the juvenile offender receives a life sentence.

       To repeat, Graham and Miller do not require that the state guarantee freedom to a

juvenile offender, but require the State to afford a juvenile offender serving a life

sentence or its functional equivalent “to some meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.” Miller v. Alabama, 567 U.S. at 479

(2012); Graham v. Florida, 560 U.S. at 75 (2010). Note use of the word “opportunity.”

A state conceivably could continually afford a juvenile offender an opportunity to obtain

release, but always deny that opportunity even if the offender shows rehabilitation. This

anomaly appears acceptable to the State and the majority in Jeremiah Gilbert’s appeal.

Hopefully, however, the implication of the rulings requires the State to release the

offender before he reaches old age, if he demonstrates maturity or rehabilitation.

Otherwise, the State fails to grant a meaningful opportunity. Presumably Montgomery

ruled that Miller imposed a substantive rule for this reason.

       Miller and Montgomery failed to address which party carries the burden of proving

                                                 32
No. 33794-4-III
State v. Gilbert (dissenting)


either passing puerility or irreparable corruption. In State v. Ramos, 187 Wn.2d at 445-46

(2017), our state high court answered this question by imposing the burden on the

offender. The court reasoned that, pursuant to the Washington Sentencing Reform Act,

the offender carries the burden of proving justification for an exceptional sentence below

the standard range. This reasoning fails to note that a sentencing court’s Miller review

arises from a constitutional imperative, not from a state sentencing act.   In so ruling, the

Ramos court relied on a Pennsylvania decision, Commonwealth v. Sanchez, 614 Pa. 1, 66-

77, 36 A.3d 24 (2011). The Ramos court did not have available a more recent

Pennsylvania decision, Commonwealth v. Batts, ___ Pa. ___, 163 A.3d 410 (2017).

       The Pennsylvania Supreme Court, in Commonwealth v. Batts, held that a faithful

application of Miller and Montgomery requires the creation of a presumption against

sentencing a juvenile offender to life without possibility of parole. 163 A.3d at 447. To

rebut the presumption, the Commonwealth maintains the burden to prove, beyond a

reasonable doubt, the permanent incorrigibility of and inability for rehabilitation of the

juvenile offender. This burden stems from the notion that the life sentence may be

imposed only on the rarest of juvenile offenders and only in exceptional circumstances.

The Pennsylvania court concluded that expert testimony would not be required to rebut

the presumption against permanent incorrigibility beyond a reasonable doubt, but noted

that, given the presumption against life without parole and the Commonwealth’s burden

beyond a reasonable doubt to rebut the presumption, the Commonwealth may deem

                                                33
No. 33794-4-III
State v. Gilbert (dissenting)


expert testimony necessary. The State of Washington presented no testimony to establish

irreparable corruption or irretrievable depravity of Jeremiah Gilbert, let alone expert

testimony.

       In line with the Pennsylvania high court, the Iowa Supreme Court observed that, if

a life sentence without parole could ever be imposed on a juvenile offender, the state

possessed the burden to show that an individual offender manifested “irreparable

corruption.” State v. Sweet, 879 N.W.2d 811, 833 (Iowa 2016). In making such a

determination, findings of such irreparable corruption should be rare and uncommon.

       The Washington Supreme Court, in State v. Ramos, 187 Wn.2d 420 (2017), also

ignored the principle that one who relies on an exception to a general rule bears the

burden of proving that the case falls within the exception. 29 AM. JUR. 2d Evidence §

176 (2017); Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U.S. 1, 10, 27 S.

Ct. 407, 51 L. Ed. 681 (1907); Fennell v. Ferreira, 133 N.J. Super. 63, 67-68, 335 A.2d

84 (Law Div.1975); In re St. Lawrence Corp., 248 B.R. 734, 740-41 (D.N.J. 2000);

Clubb v. Hetzel, 165 Kan. 594, 198 P.2d 142, 147 (1948). Miller and Montgomery

preach that the juvenile offender subject to a life sentence should be rare. Miller posits a

central intuition—that children who commit even heinous crimes are capable of change.

Montgomery v. Louisiana, 136 S. Ct. at 736 (2016). If a party contends otherwise or

argues the presence of rare circumstances, that party should carry the burden of proof.

       In light of the imperatives of Miller and Montgomery, Washington’s Miller-fix

                                                34
No. 33794-4-III
State v. Gilbert (dissenting)


statute, RCW 10.95.030, also raises difficult, if not unresolvable, questions. In fairness to

the Washington State Legislature, any legislative body will encounter difficulty in

constructing comprehensive rules to comply with the United States Supreme Court

rulings. To repeat, the statute reads, in relevant part:

               (3)(a)(i) Any person convicted of the crime of aggravated first
       degree murder for an offense committed prior to the person’s sixteenth
       birthday shall be sentenced to a maximum term of life imprisonment and a
       minimum term of total confinement of twenty-five years.
               (ii) Any person convicted of the crime of aggravated first degree
       murder for an offense committed when the person is at least sixteen years
       old but less than eighteen years old shall be sentenced to a maximum term
       of life imprisonment and a minimum term of total confinement of no less
       than twenty-five years. A minimum term of life may be imposed, in which
       case the person will be ineligible for parole or early release.
               (b) In setting a minimum term, the court must take into account
       mitigating factors that account for the diminished culpability of youth as
       provided in Miller v. Alabama, 132 S. Ct. 2455 (2012) including, but not
       limited to, the age of the individual, the youth’s childhood and life
       experience, the degree of responsibility the youth was capable of
       exercising, and the youth’s chances of becoming rehabilitated.

RCW 10.95.030. Note that, if the offender committed the murder at age sixteen or

seventeen, the sentencing court may impose a minimum term greater than twenty-five

years, in which event the court must consider the Miller factors in weighing the number

of years to impose. If the offender committed the murder below age sixteen, as did

Jeremiah Gilbert, the statute compels the sentencing court to impose a minimum term of

confinement of twenty-five years. In this instance, the sentencing court never ponders

the Miller factors. Miller expressly only applied to life sentences. Nevertheless, such a


                                                  35
No. 33794-4-III
State v. Gilbert (dissenting)


mandatory minimum that ignores Miller factors may raise constitutional concerns.

       According to Montgomery, Miller contains a substantive rule. Presumably the rule

demands release of a juvenile offender after a date that the offender achieves

rehabilitation. But no one knows when. Perhaps the cruel and unusual punishment

clause demands that some juvenile homicide offenders already rehabilitated be released

within twenty-five years of imprisonment. If so, Washington’s Miller-fix statute violates

the constitution.

       Under RCW 10.95.030, the sentencing court does not impose a definite sentence.

Instead, the court imposes a minimum and maximum sentence with opposite ends that

could vary in decades. Nevertheless, Miller constraints may demand that the sentencing

court impose a more definite sentence if the court does not find the juvenile offender

irreparably corrupt. Otherwise, the juvenile offender may remain incarcerated beyond his

or her rehabilitation. A legislative fix may need to offer term-of-years-sentencing options

for trial courts and provide for subsequent judicial review of lengthy sentences as

afforded by the Florida Legislature. Horsley v. State, 160 So.3d 393, 407 (Fla. 2015).

       The Miller-fix statute looks at circumstances at the end of the minimum term. In

State v. Lyle, 854 N.W.2d 378 (Iowa 2014), the Supreme Court of Iowa determined that a

statute mandating a sentence of incarceration in a prison for juvenile offenders with no

opportunity for parole until a minimum period of time has been served is unconstitutional

under article I, section 17 of the Iowa Constitution.

                                                36
No. 33794-4-III
State v. Gilbert (dissenting)


       In this vein, RCW 10.95.030(f) declares, in part:

               No later than one hundred eighty days prior to the expiration of the
       person’s minimum term, the department of corrections shall conduct, and
       the offender shall participate in, an examination of the person,
       incorporating methodologies that are recognized by experts in the
       prediction of dangerousness, and including a prediction of the probability
       that the person will engage in future criminal behavior if released on
       conditions to be set by the board. The board may consider a person’s
       failure to participate in an evaluation under this subsection in determining
       whether to release the person. The board shall order the person released,
       under such affirmative and other conditions as the board determines
       appropriate, unless the board determines by a preponderance of the
       evidence that, despite such conditions, it is more likely than not that the
       person will commit new criminal law violations if released. . . .

Under subsection (f), the Washington Miller-fix statute assumes that the indeterminate

sentence review board will determine whether to release the offender. Miller and

Montgomery assume that a court, not a board, will determine the sentence of the offender

at the time of sentencing, not years or decades later. The statute does not address whether

the board must assign counsel to the offender and whether the board must conduct an

evidentiary hearing. The statute provides for no judicial review of the board’s decision,

and, assuming the statute implies judicial review, does not mention the standard of

review a court should utilize.

       Under RCW 10.95.030(f), the board must order the juvenile offender released

unless the board determines by a preponderance of the evidence that the offender will

likely commit new criminal law violations if released. One questions if the constitution

demands that the State carry the burden of proof of new violations beyond a reasonable

                                                37
No. 33794-4-III
State v. Gilbert (dissenting)


doubt. The statutory subsection references “criminal law violations” without limiting the

nature or seriousness of the qualifying crimes. A juvenile offender should not remain

incarcerated because of a likelihood of committing a petty crime if released. Finally, one

wonders if proving that the offender will likely commit a crime comports with the

constitutional requirement that the offender should be released unless found irretrievably

depraved or irredeemable.

       Another problem inherent in Washington’s Miller-fix statute is its reliance on the

possibility of parole as the complying mechanism to the Miller ruling. The United States

Supreme Court, in Montgomery v. Louisiana, 136 S. Ct. at 736 (2016), wrote that a state

may remedy a Miller violation by permitting juvenile offenders to be considered for

parole, rather than resentencing them. Nevertheless, a juvenile offender might

successfully argue that the vagary of parole falls short of constitutional muster at least at

the initial sentencing. Along these lines, even if Jeremiah Gilbert could seek early release

or parole after the running of the twenty-five-year minimum sentence for aggravated first

degree murder and during the running of the twenty-three years and four months for

nonaggravated first degree murder, the legality of which both parties deny, the possibility

of release would not cure the sentence. The State raised this argument in State v.

Ronquillo, 190 Wn. App. 765, 361 P.3d 779 (2015) and contended that the Miller-fix

statute’s remedy of release after twenty-five years corrected any error in the sentence.

We disagreed that the possibility of early release rendered the sentence constitutional.

                                                 38
No. 33794-4-III
State v. Gilbert (dissenting)


       The United States Supreme Court in Miller declared that the Eighth Amendment

requires sentencing courts to exercise their discretion at the time of sentencing itself,

regardless of what opportunities for discretionary release may occur in the future. Miller

v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2468-72, 183 L. Ed. 2d 407 (2012); Graham

v. Florida, 560 U.S. 48, 69-70, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State v.

Houston-Sconiers, 188 Wn.2d 1, 20, 391 P.3d 409 (2017). Parole and gain time

generally do not satisfy the requirements of Graham and Miller, because neither avenue

of early release is adequately based on a juvenile’s demonstration of maturity and

rehabilitation. Johnson v. State, 215 So.3d 1237, 1237 (Fla. 2017). Parole does not

necessarily entail an individualized consideration of the juvenile offender’s status at the

time of the murder. Atwell v. State, 197 So.2d 1040, 1041 (Fla. 2016). One federal court

noted that a state commission rarely granted petitions under one of the state’s early

release programs because of the heinous nature of the crime. LeBlanc v. Mathena, 841

F.3d 256, 274 (4th Cir. 2016) (Virginia’s Criminal Sentencing Commission’s application

of the state geriatric lease program), rev’d on other grounds Virginia v. LeBlanc, ___

U.S. ___, 137 S. Ct. 1726, 198 L. Ed. 2d 186 (2017). The Iowa Supreme Court, in State

v. Lyle, 854 N.W.2d 378 (Iowa 2014), declared unconstitutional, under its state’s cruel

and unusual punishment clause, a statute mandating a sentence of incarceration in a

prison for juvenile offenders with no opportunity for parole until a minimum period of

time. Mandatory minimum sentences are too punitive for what we know about juveniles.

                                                 39
No. 33794-4-III
State v. Gilbert (dissenting)


State v. Lyle, 854 N.W.2d at 400. Miller implies that sentencing courts must always

consider the diminished capacity of juvenile offenders such that juvenile offenders should

never be sentenced to mandatory minimums.

       I now turn to some specific questions raised by this appeal. I previously

mentioned a critical feature of this appeal—that being the resentencing court reimposing

of a 280-month sentence for nonaggravated first degree murder consecutive to the

sentence for aggravated first degree murder. The majority writes that RCW

10.95.030(3)(a)(i) does not require the reordering of other sentences from consecutive to

concurrent. According to the majority, reconsideration of sentences for crimes other than

aggravated first degree murder is not even part of a Miller-fix resentencing. If one

logically extended the majority’s ruling, Miller and Montgomery do not preclude the

nonaggravated first degree murder conviction from carrying any sentence perhaps other

than life, and the two decisions do not prohibit the running of two sentences

consecutively beyond the life expectancy of the offender. This ruling by the majority

effectively holds that Jeremiah Gilbert’s youth holds no relevance to combined

sentencing. The sentencing court could impose aggregate consecutive sentences of

infinity without violating Miller. The State advocates this ruling of the majority.

       State v. Ronquillo, 190 Wn. App. 765, 361 P.3d 779 (2015) thwarts the majority’s

position. Brian Ronquillo, at the age of sixteen in 1994, killed one and injured another

during a gang-motivated drive-by shooting. The jury convicted Ronquillo of first degree

                                                40
No. 33794-4-III
State v. Gilbert (dissenting)


murder, two counts of attempted first degree murder, and one count of second degree

assault while armed with a firearm. The sentencing court imposed consecutive sentences.

After Miller, the resentencing court refused to run sentences concurrently. The

consecutive sentences for the violent crimes led to a term exceeding fifty years. On

appeal, the State emphasized that Ronquillo was serving four separate sentences for

crimes against four different victims, not a single lengthy sentence for a single

conviction. According to the State, the Eighth Amendment did not implicate separate

sentences for separate crimes. We disagreed. This court reversed and remanded for

resentencing because the resentencing court erroneously concluded it lacked a legal basis

for an exceptional sentence.

       The Washington Supreme Court also rejected the majority’s ruling that Jeremiah

Gilbert’s multiple crimes render the Miller principles inapplicable. In State v. Ramos,

187 Wn.2d 420 (2017), the state high court extended Miller to juveniles sentenced for

multiple homicides. The court explained:

               Miller’s reasoning clearly shows that it applies to any juvenile
       homicide offender who might be sentenced to die in prison without a
       meaningful opportunity to gain early release based on demonstrated
       rehabilitation. . . .
               . . . [N]othing about Miller suggests its individualized sentencing
       requirement is limited to single homicides because “the distinctive
       attributes of youth diminish the penological justifications for imposing the
       harshest sentences on juvenile offenders, even when they commit terrible
       crimes.” Miller, 132 S. Ct. at 2465 (emphasis added). . . .

187 Wn.2d at 438 (emphasis added).

                                                41
No. 33794-4-III
State v. Gilbert (dissenting)


       The Ramos ruling follows the prevailing view in America. The majority of other

jurisdictions have held that, at some point without uniform agreement as to when,

aggregate sentences and parole ineligibility for juvenile offenders constitutes cruel and

unusual punishment. Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017); McKinley v.

Butler, 809 F.3d 908, 909-11 (7th Cir. 2016); Moore v. Biter, 725 F.3d 1184 (9th Cir.

2013); State v. Zuber, 227 N.J. 422, 152 A.3d 197, 203, 215 (2017); Willbanks v.

Department of Corrections, 522 S.W.3d 238, 244-45 (Mo. 2017); State v. Moore, 149

Ohio St. 3d 557, 76 N.E.3d 1127 (Ohio 2016), petition for cert. filed, No. 16-1167 (Mar.

22 2017); State v. Boston, 131 Nev. Adv. Op. 98, 363 P.3d 453 (2015); Bear Cloud v.

State, 334 P.3d 132, 136, 141-42 (Wyo. 2014); People v. Caballero, 55 Cal. 4th 262, 282

P.3d 291 (2012). Terrance Graham’s unconstitutional sentence resulted from multiple

crimes. Graham v. Florida, 560 U.S. 48 (2010). To be consistent with the underlying

principles and logic of Roper, Graham, Miller, and Montgomery, the characteristics of

youth and the prospects for rehabilitation must be evaluated before a juvenile offender is

condemned to a lifetime in prison, no matter whether the juvenile committed one offense

or multiple offenses. State v. Zuber, 152 A.3d at 212. The force and logic of Miller’s

concerns apply broadly and particularly to multiple offenses during a single criminal

episode. State v. Zuber, 152 A.3d at 212. As the Indiana Supreme Court wrote, the court

should “focus on the forest—the aggregate sentence—rather than the trees—consecutive

or concurrent, number of counts, or length of the sentence on any individual count.”

                                                42
No. 33794-4-III
State v. Gilbert (dissenting)


Brown v. State, 10 N.E.3d at 8 (Ind. 2014). Whether the sentence results from a discrete

offense or multiple offenses, the fact remains that a juvenile, with diminished moral

culpability, committed the one or several offenses. State v. Moore, 149 Ohio St. 3d 557,

76 N.E.3d 1127, 1142 (Ohio 2016).

       Jeremiah Gilbert’s resentencing court may have deemed it held authority to

modify Gilbert’s sentence only to the extent the original sentence imposed life without

parole for the aggravated first degree murder. In other words, the trial court may have

concluded it lacked power to modify the 280-months’ concurrent sentence for

nonaggravated first degree murder. State v. Ramos held otherwise.

       In Washington, even if the offender is eighteen years to some unidentified age in

his or her twenties, the sentencing court must consider the youth of the offender

regardless of the standard range imposed by the Sentencing Reform Act. State v. O’Dell,

183 Wn.2d 680, 692 n.5, 358 P.3d 359 (2015). In such circumstances, the age of the

offender can support an exceptional sentence below the standard range applicable to an

adult felony defendant. State v. O’Dell, 183 Wn.2d at 698-99. Under Ramos and

Ronquillo, this rule applies regardless of the number of crimes.

       Most recently, in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017),

our Supreme Court addressed Miller’s applicability to juvenile defendants who received

lengthy mandatory sentences attributable to firearm sentencing enhancements and

thereby lacked the possibility of early release. The high court held that the Eighth

                                                43
No. 33794-4-III
State v. Gilbert (dissenting)


Amendment and Miller require that sentencing courts hold absolute discretion to depart

as far as desired below the otherwise applicable Sentencing Reform Act ranges and

sentencing enhancements when sentencing juveniles in adult court, regardless of how the

juvenile arrived in court.

       The majority refuses to apply the teaching of State v. Houston-Sconiers. The

majority writes that Jeremiah Gilbert never raised an argument based on Houston-

Sconiers before the resentencing court, while the majority observes the obvious that the

Supreme Court issued Houston-Sconiers after Gilbert’s resentencing hearing.

Nevertheless, Gilbert raised, with the superior court, an issue embedded in Houston-

Sconiers—that Miller requires the resentencing court to consider a sentence below the

standard range no matter the number of crimes in order to effectuate the Miller factors.

Ronquillo directly addressed this question. When an argument relates to the issues

addressed in the superior court, we may exercise our discretion to consider newly-

articulated theories for the first time on appeal. Cave Properties v. City of Bainbridge

Island, 199 Wn. App. 651, 662, 401 P.3d 327 (2017). Also, an appellate court possesses

inherent authority to consider issues that the parties have not raised if doing so is

necessary to a proper decision. Falk v. Keene Corp., 113 Wn.2d 645, 659, 782 P.2d 974

(1989). If this court deemed further briefing necessary to dispose of questions arising

from Houston-Sconiers, we could have requested additional briefing. RAP 12.1(b). The

majority’s directions to Jeremiah Gilbert to file a personal restraint petition thwarts

                                                 44
No. 33794-4-III
State v. Gilbert (dissenting)


judicial economy and will enable the State to erect new barriers on the basis of personal

restraint petition rules.

       The parties agree that Jeremiah Gilbert will be sixty years old before he first might

be released from the two consecutive sentences. Although the indeterminate sentence

review board might not grant parole even at age sixty, Gilbert’s punishment does not now

necessarily equate to an actual life sentence. This court must still ask if the length of the

sentence survives the constitutional strictures imposed by Miller and Montgomery. This

question embraces the concept of a de facto life sentence.

       No case has struck down a juvenile sentence as cruel and unusual when the

perpetrator still has substantial life expectancy left at the time of eligibility for parole.

People v. Lozano, 16 Cal. App. 5th 1286, 1291, 225 Cal. Rptr. 104 (2017). Nevertheless,

most courts that have considered the issue agree that a lengthy term of years for a

juvenile offender will become a de facto life sentence at some point. Casiano v.

Commissioner of Corrections, 317 Conn. 52, 115 A.3d 1031, 1044 (2015). The United

States Supreme Court viewed the concept of “life” in Miller and Graham more broadly

than biological survival and implicitly endorsed the notion that an individual is

effectively incarcerated for life if he will have no opportunity to truly reenter society or

have any meaningful life outside of prison. Casiano v. Commissioner of Corrections,

115 A.3d at 1047. The Supreme Court’s Miller decision intended to allow juvenile

offenders the opportunity to live a part of their lives in society, not simply to leave prison

                                                   45
No. 33794-4-III
State v. Gilbert (dissenting)


in order to die. State v. Moore, 149 Ohio St. 3d 557, 76 N.E.3d 1127, 1137 (Ohio 2016).

       Washington follows the majority view. In State v. Ramos, 187 Wn.2d 420 (2017),

our high court wrote:

                [Similarly,] we also reject the notion that Miller applies only to
       literal, not de facto, life-without-parole sentences. Holding otherwise
       would effectively prohibit the sentencing court from considering the
       specific nature of the crimes and the individual’s culpability before
       sentencing a juvenile homicide offender to die in prison, in direct
       contradiction to Miller. Whether that sentence is for a single crime or an
       aggregated sentence for multiple crimes, we cannot ignore that the practical
       result is the same.

State v. Ramos, 187 Wn.2d at 438-39.

       In Steilman v. Michael, OP 16-0328, 2017 WL 6348119, at *5 (Mont. Dec. 13,

2017), the State of Montana argued against the existence of a de facto life sentence for

purposes of Miller review. The State noted that no standard existed to determine how

long a term of years must be before it becomes the equivalent of life imprisonment and

that any term of years could be equivalent to life without parole if the offender dies while

incarcerated. The Montana court rejected the argument as irrelevant.

       A ruling that the cruel and unusual punishment clause bans a de facto life

imprisonment for a rehabilitated juvenile offender does not end the inquiry. I must

determine if the possibility of release at the earliest age sixty constitutes a de facto life

sentence. Based on a consensus of other decisions, I conclude Gilbert’s minimum forty-

five-year sentence, with the first opportunity for release at age sixty, to be an


                                                  46
No. 33794-4-III
State v. Gilbert (dissenting)


impermissible de facto life sentence.

       In People v. Hoy, 2017 IL App.(1st) 142596, ___ N.E.3d ___ (2017), the court

refused to vacate a sentence for fifty-two years’ imprisonment for first degree murder

when the offender would be age sixty-eight at the end of the term. The Illinois court did

not consider the sentence to be one for life. Connecticut courts deem a one-hundred-year

sentence to be a de facto life sentence, but not a thirty-one year term of incarceration.

State v. Riley, 315 Conn. 637, 655-57, 110 A.3d 1205 (2015) (one hundred years); State

v. Logan, 160 Conn. App. 282, 291-93, 125 A.3d 581 (2015) (thirty-one years).

       In State v. Ronquillo, 190 Wn. App. 765, 361 P.3d 779 (2015), this court deemed a

sentence that ran until the juvenile offender reached age sixty-eight to constitute a de

facto life sentence. According to this court, the sentence impermissibly assessed Brian

Ronquillo as virtually irredeemable. In State v. Null, 836 N.W.2d 41 (Iowa 2013), the

midwestern court did not regard the juvenile’s potential future release in his or her late

sixties, after a half century of incarceration, sufficient to escape the rationales of Graham

or Miller. In Sam v. State, 401 P.3d 834 (Wyo. 2017), the Wyoming high court ruled that

a sentence imposed on Phillip Sam of a minimum fifty-two years with possible release at

age seventy constituted a de facto life sentence. In Bear Cloud v. State, 2014 WY 113,

334 P.3d 132 (2014), the same western court adjudged a sentence of a minimum of forty-

five years, with possible release at age sixty-one, as the functional equivalent of life

without parole. In State v. Williams-Bey, 167 Conn. App. 744, 144 A.3d 467 (2016), the

                                                 47
No. 33794-4-III
State v. Gilbert (dissenting)


court remanded for a new hearing a sentence that would not release a juvenile offender of

murder until age fifty-two.

       Court decisions fail to mention that incarceration decreases one’s life expectancy.

Michael Massoglia & William Alex Pridemore, Incarceration and Health, 41 ANN. REV.

SOC. 291 (2015). According to a study conducted by Vanderbilt University and data

from New York, for every year spent behind bars, overall life expectancy decreases two

years. American Journal of Public Health, January 7, 2013; Nick Straley, Miller’s

Promise: Re-Evaluating Extreme Criminal Sentences for Children, 89 WASH. L. REV.

963, 986 n.142 (2014). This evidence suggests that a juvenile offender sentenced to a

fifty-year term of imprisonment may never experience freedom. Casiano v.

Commissioner of Corrections, 317 Conn. 52, 115 A.3d 1031, 1046 (2015).

       In this appeal, the State also argues that Miller only prohibits a mandatory

sentence for life without parole. The State further contends that Miller only demands that

the sentencing court follow a process. The State implies that Miller only requires a

hearing and created no substantive law to follow at the conclusion of the hearing. Our

majority similarly continues to treat Miller as merely a process to follow and ignores the

substantive requirements of Miller and Montgomery. Contrary to the State and the

majority, Miller requires more than a procedural checkmark before imposing a sentence

that would deny the juvenile offender a realistic opportunity of release in the offender’s

lifetime. Budder v. Addison, 851 F.3d 1047, 1055-56 (10th Cir. 2017); Sam v. State, 401

                                                48
No. 33794-4-III
State v. Gilbert (dissenting)


P.3d 834, 860 (Wyo. 2017). To repeat:

              The [Miller] hearing does not replace but rather gives effect to
       Miller’s substantive holding that life without parole is an excessive
       sentence for children whose crimes reflect transient immaturity.

Montgomery v. Louisiana, 136 S. Ct. at 736 (2016).

       Under Montgomery, Jeremiah Gilbert’s resentencing court’s reviewing of records,

entertaining of argument, and issuing a ruling does not satisfy constitutional strictures. If

Jeremiah Gilbert’s crime reflected transient immaturity or if Gilbert has been

rehabilitated, the resentencing court must seriously consider releasing him, if not actually

release him, now that he has served twenty-five years.

       Regardless of whether we judge the crime at the time of its commission or we

judge the person of Jeremiah Gilbert at the time of resentencing, Gilbert deserves a

lighter sentence. The heinous nature of Gilbert’s crimes does not necessarily equate to

the crimes reflecting irreparable corruption. All evidence before the court pointed to

Jeremiah Gilbert being a typical juvenile offender at the time of the murders. His running

away from home reflected immaturity. The probation report at the time of the declination

hearing concluded that Gilbert, like other immature teenagers, panicked when the hunter

returned and confronted him for attempting to steal his truck. The murders resulted from

the continuing panic. The 1992 report also noted that Gilbert lacked sophistication and

maturity and that he lacked the ability to process information and make decisions as an

adult. Gilbert’s slaying of his first murder victim as the victim lay helpless is particularly

                                                 49
No. 33794-4-III
State v. Gilbert (dissenting)


gruesome, but also reflected panic by Gilbert. Dr. Ronald Roesch, appointed by the court

for the resentencing hearing, agrees with the 1992 report.

       No testimony before the resentencing court established that the crimes reflected

irretrievable depravity or irretrievable corruption. No testimony established that

Jeremiah Gilbert was irredeemable in 1992 or in 2016. Gilbert is not one of the rarest of

juvenile offenders. The only testimony as to Jeremiah Gilbert’s presentation today is that

of rehabilitation. Assuming Jeremiah Gilbert carried the burden of proof as to his

transient immaturity at the time of the crimes or his rehabilitation at the time of the

resentencing hearing, Gilbert met this burden by the undisputed evidence. Assuming the

State carried the burden of proving irretrievably depravity, the State presented no

evidence to meet the standard.

       The required Miller hearing is not an ordinary sentencing proceeding. State v.

Ramos, 187 Wn.2d at 443 (2017). Miller establishes an affirmative requirement that

courts fully explore the impact of the defendant’s juvenility on the sentence rendered.

State v. Ramos, 187 Wn.2d at 443; Aiken v. Byars, 410 S.C. 534, 543, 765 S.E.2d 572

(2014). Therefore, a court conducting a Miller hearing must do far more than simply

recite the differences between juveniles and adults and make conclusory statements that

the offender has not shown an exceptional downward sentence is justified. State v.

Ramos, 187 Wn.2d 187 at 443. The sentencing court must thoroughly explain its

reasoning, specifically considering the differences between juveniles and adults identified

                                                 50
No. 33794-4-III
State v. Gilbert (dissenting)


by the Miller Court and how those differences apply to the case presented. State v.

Ramos, 187 Wn.2d at 444. While formal written findings of fact and conclusions of law

are not strictly required, they are always preferable to ensure that the relevant

considerations have been made and to facilitate appellate review. State v. Ramos, 187

Wn.2d at 444.

       One state court has held that the sentencing court must enter a specific finding of

permanent incorrigibility before imposing a sentence of life without parole. State v. Veal,

298 Ga. 691, 784 S.E.2d 403, 412 (2016). Another court has directed sentencing courts

to make findings as to why it deviated from the general rule that juvenile offenders must

be treated differently. State v. Null, 836 N.W.2d 41, 75 (Iowa 2013). In Crawford v.

Pearson, 2017 WL 3783637, ___ F.Supp.3d ___, (E.D. Va. 2017), the federal district

court granted the prisoner’s habeas corpus petition because the sentencing court failed to

find the prisoner to be incorrigible or to pose a threat such that a life sentence without

parole was justified.

       The State contends that the resentencing court must have considered Jeremiah

Gilbert’s youth before resentencing since the court mentioned it read Ronald Roesch’s

report. I disagree. The resentencing court may have read the report, but it never reflected

on the report’s implications. In its ruling, the resentencing court focused on the viability

of the consecutive sentences and the heinous nature of the crime. Nevertheless, Miller

posits a central intuition—that children who commit even heinous crimes are capable of

                                                 51
No. 33794-4-III
State v. Gilbert (dissenting)


change. Montgomery v. Louisiana, 136 S. Ct. at 736 (2016). Miller applied its own

principles to a botched robbery that turned into a killing. Miller v. Alabama, 567 U.S. at

473 (2012).

       Jeremiah Gilbert’s meditation about killing before he fired his fatal shots does not

merit a de facto life sentence. A finding that the juvenile offender committed murder

deliberately and with premeditation means little when determining whether the crime

resulted from transient immaturity. Commonwealth v. Batts, 163 A.3d at 437. Such a

finding would require an imposition of life without parole on any juvenile offender

convicted of first degree murder.

       In its ruling, the resentencing court declared that it accepted the State’s argument

in total. The State’s argument was that because of the nature of the crimes and the

multiplicity of the crimes Jeremiah Gilbert deserved life without parole. The State took

the position that youth was immaterial. The State never asserted that Gilbert was

irretrievably depraved. To the contrary, the State reluctantly agreed that Gilbert has

performed well in prison during the last nine years. The State submitted no evidence that

Gilbert was not rehabilitated.

       Even if the resentencing court considered the Miller factors before resentencing

Jeremiah Gilbert, the resentence fails constitutional muster. The resentencing court

would have thereby followed the Miller procedure, but failed to implement the

substantive holding of Miller v. Alabama. The undisputed evidence established Jeremiah

                                                52
No. 33794-4-III
State v. Gilbert (dissenting)


Gilbert’s crimes reflected transient immaturity and that Gilbert is rehabilitated. This

undisputed evidence demands release of Gilbert from incarceration before age sixty. The

United States Supreme Court has not devoted pages of discussion of the attributes of

youth for naught. If Jeremiah Gilbert can receive a de facto life sentence, then any

juvenile convicted of aggravated first degree murder may face a life sentence and Miller

becomes void.

       In the absence of the sentencing court reaching a conclusion, supported by

competent evidence, that the defendant will forever be incorrigible, without any hope for

rehabilitation, a life-without-parole sentence imposed on a juvenile is illegal, as it is

beyond the court’s power to impose. Commonwealth v. Batts, 163 A.3d 410, 435 (Pa.

2017); Commonwealth v. Coia, 2017 PA Super. 250, 168 A.3d 219 (Pa. Super. Ct. 2017).

For this reason, an appeals court should review de novo whether a juvenile offender is

eligible for life without parole. Commonwealth v. Batts, 163 A.3d at 435. By case law

extension, this rule applies to de facto life sentences.

       On appeal, the State argues that Jeremiah Gilbert can prevail on his claim of cruel

and unusual punishment only by establishing the Fain factors. The State also implies that

Gilbert carries the burden of establishing the Fain factors to gain an earlier release. In

State v. Fain, 94 Wn.2d 387, 392-93, 617 P.2d 720 (1980), the Washington Supreme

Court announced four factors when determining if a sentence violates the Washington

constitutional prohibition against cruel and unusual punishment. The State fails to

                                                  53
No. 33794-4-III
State v. Gilbert (dissenting)


recognize that the Fain factors lack relevance based on Miller. Under Miller, the critical,

if not only, question is whether the offender is irretrievably depraved.

       The State continues to forward State v. Cornejo, 130 Wn.2d 553, 569-70, 925 P.2d

964 (1996) for the proposition that juveniles are not less blameworthy because they are

just as capable of making reasoned decisions. The Washington Supreme Court decided

Cornejo years before Graham, Miller, and Montgomery. The state Supreme Court issued

the opinion before the publishing of scientific literature concerning the mental and

emotional immaturity of youth and young adults.

       I recognize that some of my analysis conflicts with the Washington Supreme

Court’s decision in State v. Ramos, 187 Wn.2d 420 (2017). Nevertheless, I am bound by

United States Supreme Court decisions, not Washington Supreme Court decisions, with

regard to federal constitutional questions. Chesapeake & Ohio Railway Co. v. Martin,

283 U.S. 209, 221, 51 S. Ct. 453, 75 L. Ed. 983 (1931).

                                     Bassett and Sweet

       This dissenting opinion has previously identified incongruities in the Miller and

Montgomery decisions. Because of these anomalies within the important setting of

juvenile punishment, two state courts have declared any life without parole sentence for a

juvenile offender does not meet muster under the states’ respective constitutions. State v.

Bassett, 198 Wn. App. 714, 394 P.3d 430 (2017); State v. Sweet, 879 N.W.2d 811, 835

(Iowa 2016). Presumably these rulings would apply to de facto life sentence or a life

                                                54
No. 33794-4-III
State v. Gilbert (dissenting)


sentence with uncertain parole. Under these holdings, the resentencing court need not

even consider the transient immaturity or irreparable corruption of the juvenile offender

before rejecting a life sentence. Based on this premise, this court, in Bassett, held

Washington’s Miller-fix statute to be unconstitutional.

       State v. Bassett addressed an offender who committed his murder at age sixteen.

Therefore, the decision addressed the constitutionality of RCW 10.95.030(3)(a)(ii).

Jeremiah Gilbert’s appeal entails RCW 10.95.030(3)(a)(i), not (ii). Nevertheless, the

same reasoning behind the unconstitutionality of the statute implicates both subsections

of the statute.

       Division Two of this court issued State v. Bassett. The majority ignores the

decision. Because of the Bassett decision’s recent issuance, the parties never addressed

Bassett, and this panel never asked the parties to address the decision.

       The Bassett court based its decision on article I, section 14 of the Washington

State Constitution, not the federal constitution’s Eighth Amendment. The Washington

provision reads similarly to the Eighth Amendment and declares: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” State constitutional protections may be more stringent than federal

constitutional protections. State v. Bassett, 198 Wn. App. at 728. Washington law holds

that Washington’s cruel and unusual punishment clause provides greater protection than

its federal counterpart. State v. Ramos, 187 Wn.2d at 453-54 (2017); State v. Roberts,

                                                 55
No. 33794-4-III
State v. Gilbert (dissenting)


142 Wn.2d 471, 506, 14 P.3d 713 (2000). Perhaps the state constitution adds protections

because the state provision extends to cruel and unusual punishment regardless of

whether the punishment is unusual.

       In State v. Bassett, Brian Bassett challenged the constitutionality of Washington’s

Miller-fix statute, RCW 10.95.030. The State advocated the validity of the statute under

the Fain factors used by Washington courts to determine the validity of sentencing

statutes under the Washington Constitution. The four Fain factors are (1) the nature of

the offense, (2) the legislative purpose behind the statute, (3) the punishment the

defendant would have received in other jurisdictions, and (4) the punishment meted out

for other offenses in the same jurisdiction. State v. Witherspoon, 180 Wn.2d 875, 887,

329 P.3d 888 (2014). The Bassett court rejected the State’s argument and instead applied

a categorical bar analysis. In so ruling, this court adopted wholesale the reasoning of the

Iowa Supreme Court in State v. Sweet, 879 N.W.2d 811 (Iowa 2016).

       Miller and Montgomery established that life without parole sentences for juvenile

offenders are not available under the federal constitution even for heinous crimes except

in very rare cases. The Bassett court, therefore, asked if, under the state constitution, we

should continue to reserve the possibility that a juvenile offender may be identified as

“irretrievable” at the time of sentencing or by the parole board at a later time after the

offender’s juvenile brain has fully developed and a behavior pattern established by a

substantial period of incarceration. After answering the question, this court held that all

                                                 56
No. 33794-4-III
State v. Gilbert (dissenting)


life without parole sentences for juvenile offenders offend the state constitution. The

Bassett court thereby refused to continue a narrower, more incremental approach of

addressing whether an offender is one of the extremely rare, irredeemably corrupt

juveniles.

       The Bassett court considered the current status of state law and noted that, as of

February 2017, nineteen states and the District of Columbia had banned all juvenile life

without parole sentences. A geography buff will readily note that nineteen states and the

District of Columbia do not constitute a majority of United States jurisdictions.

Nevertheless, as observed in Bassett, in determining cruel punishment, the trend, by both

court decision and legislation, is to ban juvenile life without parole. The Bassett court

emphasized that the United States stands alone as the only nation to allow juveniles to

serve life in prison without parole.

       The Bassett court turned the Miller decision on itself. The Bassett court took the

Miller holding and questioned how resentencing courts could implement the holding.

The court comprehended, as did the Iowa high court in Sweet, the speculative nature of

identifying which juvenile offenders are irretrievable at the time of trial. Miller asks the

sentencer to execute the impossible. Even expert psychologists encounter difficulty in

differentiating between the juvenile offender whose crime reflects unfortunate yet

transient immaturity, and the rare juvenile offender whose crime reflects irreparable

corruption. The acknowledgement by the Bassett court of this impossibility led to a

                                                 57
No. 33794-4-III
State v. Gilbert (dissenting)


fundamental problem with the Miller-fix statute—the sentencing court cannot predict

from its application of the Miller factors which juveniles will prove to be irretrievably

corrupt. Thus, the Miller-fix statute results in an unacceptable risk that juvenile

offenders, whose crimes reflect transient immaturity, will be sentenced to life without

parole because the sentencing court mistakenly identifies the juvenile as one of the

uncommon, irretrievably corrupt juveniles. The Bassett court, perhaps rightly so,

grounds its analysis on the assumption that the sentencing court determines whether the

juvenile offender is irreparably corrupt rather than deciding whether the crime committed

shows irreparable corruption as directed by Miller and Montgomery. The Bassett court

omits from its astute analysis the difficulty the resentencing court or the indeterminate

sentence review board encounters when it, twenty-five years after the crime, decides

whether the crime reflected irretrievable depravity.

       According to the Bassett court, the sentencing court’s task grows more difficult

under Washington law because Washington’s cruel punishment clause provides greater

protection than its federal counterpart. Under federal law, life without parole sentences

for juvenile homicide offenders are to be uncommon and rare. Thus, to comport with

Washington’s broader protections, life without parole or early release sentences may be

imposed on only the most uncommon and rarest of offenders, an impossible

determination for the sentencing court to make when faced with a juvenile offender. The

factors identified in Miller provide little guidance for a sentencing court and do not

                                                 58
No. 33794-4-III
State v. Gilbert (dissenting)


alleviate the unacceptable risk identified.

       The Bassett court quoted a passage from State v. Sweet in illustrating the

impossibility of applying the Miller factors:

                 [Consideration of] the offender’s family and home environment . . .
       is . . . fraught with risks. For example, what significance should a
       sentencing court attach to a juvenile offender’s stable home environment?
       Would the fact that the adolescent offender failed to benefit from a
       comparatively positive home environment suggest he or she is irreparable
       and an unlikely candidate for rehabilitation? Or conversely, would the
       offender’s experience with a stable home environment suggest that his or
       her character and personality have not been irreparably damaged and
       prospects for rehabilitation are therefore greater? . . .
                 A similar quandary faces courts sentencing juvenile offenders who
       have experienced horrendous abuse and neglect or otherwise have been
       deprived of a stable home environment. Should the offenders’ resulting
       profound character deficits and deep-seated wounds count against the
       prospects for rehabilitation and in favor of life-without-the-possibility-of-
       parole sentences under the Miller framework? Or should sentencing courts
       view the deprivation of a stable home environment as a contraindication for
       life without the possibility of parole because only time will tell whether
       maturation will come with age and treatment in a structured environment?

Sweet, 879 N.W.2d at 838.

       The Bassett court concluded that, in light of the speculative and uncertain nature

of the Miller analysis, the Miller-fix statute creates a risk of misidentifying juveniles with

hope of rehabilitation for those who are irretrievably corrupt. The State’s cruel

punishment proscription deems this risk unacceptable. Existing state laws, allowing the

imposition of these sentences based only on a discretionary, subjective judgment by a

judge or jury that the offender is irredeemably depraved, cannot prevent the possibility


                                                 59
No. 33794-4-III
State v. Gilbert (dissenting)


that the offender will receive a life without parole sentence for which he or she lacks the

moral culpability. Courts taking a case-by-case proportionality approach also cannot

with sufficient accuracy distinguish the few incorrigible juvenile offenders from the

many that have the capacity for change. Therefore, life sentences without parole or early

release for juvenile offenders as allowed under RCW 10.95.030(3)(a)(ii) are

unconstitutional. This court reversed Brian Bassett’s life without parole sentence and

remanded for resentencing consistent with the opinion.

       The reader may ask what should the Bassett resentencing court do under this

court’s decision. Presumably the lower court cannot impose a maximum sentence of life

as demanded by the Miller-fix statute. Instead, the court must impose a maximum

sentence that allows the offender release from prison at some indefinite time in the future.

Presumably the sentencing court must allow the juvenile offender into society at least for

his or her geriatric years. Presumably the sentencing court may not defer to the

indeterminate sentence review board to determine the offender’s release date.

       The Bassett court may base its decision, in part, on the proposition that, if a court

faces an impossible task, the statute that directs that impossible task must be

unconstitutional. No principle of law demands that a statute that creates an impossible

task be declared unconstitutional. The statute may remain constitutional but not enforced

because of its impossibility of enforcement. The Bassett court wisely grounds its

decision on the firmer basis that a sentencing scheme must be capable of fair application

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No. 33794-4-III
State v. Gilbert (dissenting)


or it violates the cruel punishment clause.

       I conclude that the Miller-fix statute places a difficult, if not impossible, burden on

the sentencing and resentencing courts for another reason. State judges undergo election.

The electorate expects a harsh sentence on a multiple murderer. The electorate considers

the freeing of a murderer as deprecating the seriousness of the reprehensible crime.

Grieving victim relatives demand justice and shun release of a coldblooded murderer no

long how much time has passed. Even after Miller and the instruction to impose life

sentences only on the rarest of offenders who are irretrievably depraved, juvenile

offenders continue to receive life without parole in the form of de facto life sentences

without any evidence of irretrievable corruption and with all recent evidence indisputably

showing rehabilitation. Jeremiah Gilbert’s appeal is one such case. Joel Ramos’ case is

another.

       In Roper v. Simmons, 543 U.S. 551 (2005), the nation’s high Court, in a death

penalty case, rejected the argument that the Eighth Amendment required only that juries

be told they must consider the defendant’s age as a mitigating factor before electing

whether or not to impose the ultimate penalty. The Court concluded that an

“unacceptable likelihood exists that the brutality or cold-blooded nature of any particular

crime would overpower mitigating arguments based on youth as a matter of course, even

where the juvenile offender’s objective immaturity, vulnerability, and lack of true

depravity should require a sentence less severe than death.” Roper v. Simmons, 543 U.S.

                                                 61
No. 33794-4-III
State v. Gilbert (dissenting)


at 573. This same danger looms when an elected judge, with the authority to impose a

lengthy sentence that effectively becomes a life sentence, sentences or resentences a

juvenile homicide offender.

       I join in Division Two’s Bassett ruling. I would declare the Miller-fix statute

unconstitutional. The Washington Supreme Court has accepted review of Bassett and

will make the final decision based on the state constitution.

       The ultimate value behind the United States Constitution’s Eighth Amendment

cruel and unusual punishment clause is the affirmation of the dignity of humankind.

Roper v. Simmons, 543 U.S. at 560 (2005); Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct.

590, 2 L. Ed. 2d 630 (1958). The state must accept the human attributes even of those

who commit serious crimes. Graham v. Florida, 560 U.S. at 59 (2010). Jeremiah

Gilbert, as an immature runaway, disrespected the dignity of man and the value of life.

Society, nonetheless, need not retaliate against Gilbert by disrespecting his dignity and

devaluing his life. Gilbert, with the help of the state corrections system and through his

own maturation, has rehabilitated himself.

       This court should affirm and respect life by allowing Jeremiah Gilbert release

from prison and permit him to exist as a human being free from constant restraints and

ceaseless monitoring. We should grant Jeremiah Gilbert the opportunity to fulfill his

humanity with his daily choosing from possible paths and courses of conduct. Release of

Jeremiah Gilbert does not denigrate the lives or belittle the losses of life of Gilbert’s

                                                 62
No. 33794-4-III
State v. Gilbert (dissenting)


victims, but rather venerates the sanctity of all human life. With the undisputed record

before this court, I hold confidence that Gilbert will contribute to the welfare of others

with his release from incarceration. The Washington criminal justice system and the

Washington populace will then benefit from mercy shown Jeremiah Gilbert. The State of

Washington will also have finally fulfilled the letter and spirit of Miller v. Alabama.

       I respectively dissent




                                                  ________________________________
                                                  Fearing, J.




                                                 63
No. 33794-4-III
State v. Gilbert (dissenting)


                                      Appendix A
                                     RCW 10.95.030

               (1) Except as provided in subsections (2) and (3) of this section, any
       person convicted of the crime of aggravated first degree murder shall be
       sentenced to life imprisonment without possibility of release or parole. A
       person sentenced to life imprisonment under this section shall not have that
       sentence suspended, deferred, or commuted by any judicial officer and the
       indeterminate sentence review board or its successor may not parole such
       prisoner nor reduce the period of confinement in any manner whatsoever
       including but not limited to any sort of good-time calculation. The
       department of social and health services or its successor or any executive
       official may not permit such prisoner to participate in any sort of release or
       furlough program.
               ....
               (3)(a)(i) Any person convicted of the crime of aggravated first
       degree murder for an offense committed prior to the person’s sixteenth
       birthday shall be sentenced to a maximum term of life imprisonment and a
       minimum term of total confinement of twenty-five years.
               (ii) Any person convicted of the crime of aggravated first degree
       murder for an offense committed when the person is at least sixteen years
       old but less than eighteen years old shall be sentenced to a maximum term
       of life imprisonment and a minimum term of total confinement of no less
       than twenty-five years. A minimum term of life may be imposed, in which
       case the person will be ineligible for parole or early release.
               (b) In setting a minimum term, the court must take into account
       mitigating factors that account for the diminished culpability of youth as
       provided in Miller v. Alabama, 132 S. Ct. 2455 (2012) including, but not
       limited to, the age of the individual, the youth’s childhood and life
       experience, the degree of responsibility the youth was capable of
       exercising, and the youth’s chances of becoming rehabilitated.
               (c) . . . During the minimum term of total confinement, the person
       shall not be eligible for community custody, earned release time, furlough,
       home detention, partial confinement, work crew, work release, or any other
       form of early release authorized under RCW 9.94A.728, or any other form
       of authorized leave of absence from the correctional facility while not in the
       direct custody of a corrections officer. . . .
               ....


                                                64
No. 33794-4-III
State v. Gilbert (dissenting)


               (f) No later than one hundred eighty days prior to the expiration of
       the person’s minimum term, the department of corrections shall conduct,
       and the offender shall participate in, an examination of the person,
       incorporating methodologies that are recognized by experts in the
       prediction of dangerousness, and including a prediction of the probability
       that the person will engage in future criminal behavior if released on
       conditions to be set by the board. The board may consider a person’s
       failure to participate in an evaluation under this subsection in determining
       whether to release the person. The board shall order the person released,
       under such affirmative and other conditions as the board determines
       appropriate, unless the board determines by a preponderance of the
       evidence that, despite such conditions, it is more likely than not that the
       person will commit new criminal law violations if released. If the board
       does not order the person released, the board shall set a new minimum term
       not to exceed five additional years. The board shall give public safety
       considerations the highest priority when making all discretionary decisions
       regarding the ability for release and conditions of release.
               (g) In a hearing conducted under (f) of this subsection, the board
       shall provide opportunities for victims and survivors of victims of any
       crimes for which the offender has been convicted to present statements as
       set forth in RCW 7.69.032. The procedures for victim and survivor of
       victim input shall be provided by rule. To facilitate victim and survivor of
       victim involvement, county prosecutor’s offices shall ensure that any victim
       impact statements and known contact information for victims of record and
       survivors of victims are forwarded as part of the judgment and sentence.
               (h) An offender released by the board is subject to the supervision of
       the department of corrections for a period of time to be determined by the
       board. The department shall monitor the offender’s compliance with
       conditions of community custody imposed by the court or board and
       promptly report any violations to the board. Any violation of conditions of
       community custody established or modified by the board are subject to the
       provisions of RCW 9.95.425 through 9.95.440.
               (i) An offender released or discharged under this section may be
       returned to the institution at the discretion of the board if the offender is
       found to have violated a condition of community custody. The offender is
       entitled to a hearing pursuant to RCW 9.95.435. The board shall set a new
       minimum term of incarceration not to exceed five years.



                                                65
No. 33794-4-III
State v. Gilbert (dissenting)


                                      Appendix B
                     Jeff Coats Remarks during Resentencing Hearing

               The best way for me to start this is by expressing how I know
       Jeremiah.
               I know Jeremiah because I went to the adult prison system when I
       was fourteen years old and I did seventeen years in it. Today I speak at
       universities, detention centers, inside prisons and the Legislature about
       incarceration, change and transition. I also work as a real estate agent and
       own my own business.
               While I was incarcerated I lived around Jeremiah in the same unit
       with him day after day, hour after hour. I’ve known Jeremiah for about
       twenty-one years.
               I traveled down here from Seattle today because it is important for
       me to give you a verbal glimpse as to who Jeremiah is today, even though
       you’re sentencing him based off something that happened long ago.
               He is a humble person. He is a friendly person. He is a man of
       integrity and morals, something that he may not have had at fifteen years-
       old. He is a loving person and most importantly he is not the same man at
       thirty-eight as he was when he was fifteen years-old. Today he is a mentor
       to not just the youth of the system; but to every man in the system. He tries
       to be a positive individual who promotes being humble for what you have
       and to work hard for everything in life. He’s not bitter and he has accepted
       his responsibility for his actions that day.
               He has moved forward with his life towards being a productive,
       positive individual and has dedicated his life to helping others and to giving
       back.
               ....
               Before I talk any more about Jeremiah, let’s talk about the victims
       and the justice for them, because that’s important. When I thought about
       this I thought is there ever really justice for any victim? Every crime has a
       victim no matter how small or how heinous. We as a society try to judge
       and determine what the appropriate punishment should be for said crimes to
       give the victim justice, or in this case, the victims justice and to teach the
       perpetrator a lesson in hopes of reforming. Then we try and rely on our
       judges like yourself to find the balance and create the appropriate sentence.
               Right now juveniles sentenced to life in prison would do more or
       double the amount of time as an adult male does for a similar crime. This
       state does not have parole or a review period for parole until recently for

                                                66
No. 33794-4-III
State v. Gilbert (dissenting)


       the juveniles that are sentenced.
               So a life sentence given doesn’t allow for much of a chance for relief
       for a juvenile whose mind develops in prison. Maturity takes place in
       prison and grows -- and they grow into men like Jeremiah is here today.
       Jeremiah has done twenty years already -- twenty-three.
               If he does any more time than this he will be doing more time than
       the equivalent and a lot more time than most men who are convicted of
       multiple murders in our state. I only speak that because I’ve seen it. The
       law books that were mentioned earlier give a bigger range for a sentence;
       but the men who are sentenced usually get less time than what the book
       outlines, as I’m sure you see here in your own courtroom.
               Remember when you are sentencing Jeremiah today that you are
       sentencing a fifteen-year-old boy, not the man that’s standing here. I know
       that’s hard to do or hard to think about; but he was a young boy at the time
       of this crime. And the question then is by giving a twenty-five-year
       sentence, is this justice for the victims and is this an equal balance of
       punishment.
               I feel that if you sentence Jeremiah to twenty-five years, running
       everything concurrent, with his time served you are, in fact, giving justice
       to the victims. You would bring balance to what was once an unbalanced
       punishment by giving an individual who was fifteen years old, a juvenile
       boy when this crime was committed, not the grown man that you see before
       you; but a skinny young kid at fifteen, with an undeveloped mind and an
       undeveloped maturity, a sentence that would be fair and just. The time he
       has done already is more than two lifetimes.
               To conclude, I respectfully ask that you use the State’s growth of the
       past -- over the past ten years when it comes to juveniles and how we
       sentence them to guide you in your sentencing of Jeremiah. He doesn’t
       deserve to live a life in prison longer than twenty-five years today. He
       made a horrible, horrible mistake, that’s not in question here, at a very
       young age. And he has accepted that responsibility and he has spent many
       years giving back to the community from behind prison fences, a feat that
       shouldn’t be overlooked.
               At the very low end of what you’re allowed to give as a sentence,
       you indeed will be giving justice to the victims. And I hope that you find it
       in your heart to hear those of us who know who Jeremiah is today, and give
       that lower sentence when you sentence Jeremiah today.

RP at 13-17.

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                                          Appendix C
                                Tactics Employed to Avoid Miller

         1. The legislature, not the courts, holds the prerogative to set the length of

sentences. Cook v. State, --- So.3d ---, 2017 WL 3424877 (Miss. Ct. App. 2017).

         2. American law must be based on American, not international, values, even if the

United States is an outlier. State argument in State v. Sweet, 879 N.W.2d 811, 818 (Iowa

2016).

         3. The United States Supreme Court has not imposed a categorical bar of the

penalty of life in prison without parole. States’s argument in this appeal; Garcia v. State,

903 N.W.2d 503, 508 (N.D. 2017); Newton v. State, 83 N.E.3d 726, 744 (Ind. Ct. App.

2017).

         4. Miller v. Alabama only barred the mandatory nature of life without parole for

juvenile offenders, and not the punishment itself. In Re Personal Restraint of McNeil,

181 Wn.2d 582, 554, 334 P.3d 548 (2014); Bun v. State, 296 Ga. 549, 769 S.E.2d 381,

384 (2015); Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283, 285, 289 (2014); State v.

Arredondo, 406 S.W.3d 300, 306 (Ct. App. Tex. 2013).

         5. Graham and Miller apply only when the sentencing court sentences the juvenile

offender to the specific sentence of life without parole for one offense. Lucero v. People,

2017 CO 49, 394 P.3d 1128, 1132 (Colo. 2017).


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No. 33794-4-III
State v. Gilbert (dissenting)


         6. Because Miller only banned mandatory life without parole sentences for

juvenile offenders and thus a sentencing court may always on a discretionary basis

impose a life without parole sentence regardless of the immaturity of the offender at the

time of the homicide or the extent of the offender’s rehabilitation. People v. Holman,

2017 IL 12065, --- N.E.3d --- (2017); Conley v. State, 972 N.E.2d 864, 879 (Ind.2012).

         7. Because of the nature of the crime, the offender must possess an explosive

personality that demands life in prison. “He is the type of individual who is likely to

blow at any point.” Garcia v. State, 903 N.W.2d 503, 510 (N.D. 2017).

         8. The offender’s crimes were premeditated, calculated acts, and no evidence

demonstrates an acceptable explanation or excuse for the crimes. The planning of the

crime shows a lack of impetuosity. State argument in State v. Bassett, 198 Wn. App. 714,

394 P.3d 430 (2017); Cook v. State, --- So.3d ---, 2017 WL 3424877 (Miss. Ct. App.

2017).

         9. The brutality of the crimes outweighs any rehabilitation achieved by the

offender. State argument in State v. Bassett, 198 Wn. App. 714, 394 P.3d 430 (2017) and

in this appeal.

         10. A person who commits a heinous crime is beyond rehabilitation.

Commonwealth argument in Commonwealth v. Batts, 163 A.3d 410, 435 (Pa. 2017);

Newton v. State, 83 N.E.3d 726, 743 (Ind. Ct. App. 2017).

         11. The crime was heinous, shocking, incomprehensible, extraordinary,

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No. 33794-4-III
State v. Gilbert (dissenting)


unthinkable, cold, heartless, and uncivilized. Bell v. Uribe, 748 F.3d 857, 869-70 (9th

Cir. 2014); Conley v. State, 972 N.E.2d 864, 879 (Ind.2012). With this argument, the

sentencing court focuses on the nature of the crime and the crime’s incorrigibility, rather

than the offender’s incorrigibility.

       12. Few murders reflect only transient immaturity. The term “transient

immaturity” effectively absolves the offender of culpability. Cook v. State, --- So.3d ---,

2017 WL 3424877 (Miss. Ct. App. 2017).

       13. The United States Supreme Court has never defined irretrievably corrupt, a

term that sounds more like a theological concept than a rule of law to be applied by an

earthly judge. The United States Supreme Court has given the sentencing court or

resentencing court a difficult, if not impossible, task. Therefore, we will defer to the

resentencing court’s reimposition of life without parole. Cook v. State, --- So.3d ---, 2017

WL 3424877 (Miss. Ct. App. 2017).

       14. Irretrievably depraved offenders are only “allegedly” rare. Cook v. State, ---

So.3d ---, 2017 WL 3424877 (Miss. Ct. App. 2017).

       15. Retribution and deterrence remain proper purposes of sentencing. Cook v.

State, --- So.3d ---, 2017 WL 3424877 (Miss. Ct. App. 2017).

       16. The devastating impact of the crime on the victim’s family warrants a

sentence of life in prison without the possibility of parole. Bell v. Uribe, 748 F.3d 857,

870 (9th Cir. 2014).

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No. 33794-4-III
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       17. Miller applies to literal life without parole sentences but not to de facto life

without parole sentences. State v. Ramos, 189 Wn. App. 431, 451–52 (2015), aff'd but

disagreed with on this ground, 187 Wn.2d 420 (2017); sentencing court in State v.

Ronquillo, 190 Wn. App. 765, 775 (2015).

       18. Miller does not apply to a sentence that involves a term of years. State

argument in State v. Ronquillo, 190 Wn. App. 765, 768 (2015); Henry v. State, 82 So.3d

1084, 1089 (Fla.Ct.App.2012); State v. Kasic, 228 Ariz. 228, 265 P.3d 410, 415

(App.2011).

       19. Miller only mandates that a procedure be followed. Under that procedure the

sentencing court must consider the youthfulness of the offender at the time of the crime,

but Miller does not mandate any particular substantive outcome. As long as the

sentencing court follows the procedure, the court retains the discretion to resentence the

offender to life without parole. Bell v. Uribe, 748 F.3d 857, 870 (9th Cir. 2014); People

v. Holman, 2017 IL 12065, --- N.E.3d --- (2017); In re Petition of Wolf, 196 Wn. App.

496, 596, 384 P.3d 591 (2016).

       20. Miller and Montgomery did not address juvenile offenders who were

sentenced to multiple fixed-term periods of imprisonment for multiple offenses.

Therefore, the sentencing court may impose a de facto life sentence for multiple crimes

even if all crimes occurred at the same time. Our majority; Willbanks v. Department of

Corrections, 522 S.W.3d 238, 242 (Mo. 2017); State v. Ali, 895 N.W.2d 237, 242 (Minn.

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No. 33794-4-III
State v. Gilbert (dissenting)


2017); McCullough v. State, 233 Md. App. 702, 168 A.3d 1045 (2017); State v.

Arredondo, 406 S.W.3d 300, 306 (Ct. App. Tex. 2013).

       21. Eighth Amendment analysis focuses on the sentence imposed for each

specific crime, not on the cumulative sentence for multiple crimes. State v. Ali, 895

N.W.2d 237, 242 (Minn.2017); State v. Buchold, 727 N.W.2d 816, 823-36 (S.D.2007).

       22. Miller does not apply to sentences resulting from aggregate consecutive

sentences for multiple homicides. State v. Ramos, 189 Wn. App. at 451-52 (2015), aff’d

but disagreed with on this ground, 187 Wn.2d 420 (2017); Lucero v. People, 2017 CO

49, 394 P.3d 1128 (Colo.2017); sentencing court in State v. Ronquillo, 190 Wn. App. at

775 (2015).

       23. No standard exists to determine how long a term-of-years must be before it

becomes the equivalent of life imprisonment, and any term-of-years could be equivalent

to life without parole if the offender dies while incarcerated. State argument in Steilman

v. Michael, OP 16-0328, 2017 WL 6348119, at *5 (Mont. Dec. 13, 2017)

       24. In Washington, the sentencing court considers the Fain factors, rather than

any categorical bar against life without parole or rather than looking to the immaturity of

the offender. State’s position in this appeal.

       25. The United States Supreme Court does not require that the resentencing court

enter a finding of fact of irretrievably depravity. The sentencer is not required to use the

words “incorrigible” or “irretrievably corruption” in his or her ruling. Since the

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No. 33794-4-III
State v. Gilbert (dissenting)


resentencing court reviewed all of the evidence presented to it by the offender and the

State, the resentencing court must have considered the youthfulness of the offender at the

time of the crime and all other Miller factors, but nonetheless found the offender to be

one of the rare irretrievably depraved people who can never be rehabilitated and trusted

in society, no matter what oral ruling the resentencing court uttered. State’s position in

this appeal; State v. Ramos, 187 Wn.2d at 437 (2017); People v. Holman, 2017 IL 12065,

--- N.E.3d --- (2017); Garcia v. State, 903 N.W.2d 503, 512 (N.D. 2017).

       26. The juvenile offender carries the burden of proving transient immaturity

rather than the State proving irreparable corruption. State v. Ramos, 187 Wn.2d 420

(2017); State argument in Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017).

       27. An appellate court reviews the resentencing court’s decision under Miller only

for an abuse of discretion. State argument in Commonwealth v. Batts, 163 A.3d 410, 434

(Pa. 2017); Hudspeth v. State, 179 So.3d 1226, 1228 (Miss. Ct. App. 2015).

       28. There is no presumption against a sentence of life without parole. Jones v.

State, 122 So.3d 698, 702 (Miss. 2013).

       29. Even if the sentencing hearing occurred before the Miller decision, no

resentencing is needed if the sentencing court mentioned the youth of the offender in his

sentencing ruling. Garcia v. State, 903 N.W.2d 503 (N.D. 2017); Windom v. State, 162

Idaho 417, 398 P.3d 150, 157–58 (2017); Johnson v. State, 162 Idaho 213, 395 P.3d 1246

(2017).

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No. 33794-4-III
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       30. If the offender is close to his eighteenth birthday, his youth should not weigh

against the imposition of a sentence of life without parole. Cook v. State, --- So.3d ---,

2017 WL 3424877 (Miss. Ct. App. 2017).

       31. The State sentencing scheme allowed a juvenile offender the opportunity to

present mitigating evidence at a hearing, but the offender agreed to the sentence of life

without parole through a plea bargain, even if sentencing occurred before Miller and the

offender entered the plea to avoid a death sentence. Jones v. Commonwealth, 293 Va. 29,

795 S.E.2d 705, 713 (2017); Newton v. State, 83 N.E.3d 726, 739 (Ind. Ct. App. 2017).

       32. A State may remedy a Miller violation by permitting juvenile homicide

offenders to be considered for parole, rather than by resentencing them. State v. Rivera,

177 Conn. App. 242, 172 A.3d 260, 271 (2017).

       33. The life sentence need not be reversed because a new statute known as the

“Miller fix” provides a possibility of early release. State argument in State v. Ronquillo,

190 Wn. App. 765, 777–79 (2015).

       34. The amount of good time credit to which the offender is eligible may reduce

the sentence below a de facto lifetime sentence. Steilman v. Michael, OP 16-0328, 2017

WL 6348119, at *5 (Mont. Dec. 13, 2017).

       35. A commutation by the state governor to a sixty-year sentence without the

possibility of parole complies with Miller. State argument in State v. Ragland, 836

N.W.2d 107, 110 (2013).

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No. 33794-4-III
State v. Gilbert (dissenting)


       36. Access to a parole board satisfies the mandates of Miller. State v. Calhoun,

222 So.3d 903, 907 (La. App. 2 Cir. 2017).




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No. 33794-4-III
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                                      Appendix D
             Terms Used for an Offender Who May Receive Life without Parole

       Crimes reflect permanent incorrigibility. Montgomery v. Louisiana, __ U.S. __,
136 S. Ct. 718, 726, 734, 193 L. Ed. 2d 599 (2016); State v. Bassett, 198 Wn. App. 714,
725, 394 P.3d 430 (2017).

     The crime exhibits such irretrievably depravity that rehabilitation is impossible.
Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 733, 193 L. Ed. 2d 599 (2016).

       Few incorrigible juvenile offenders. Graham v. Florida, 560 U.S. 48, 77, 130 S.
Ct. 2011, 176 L. Ed. 2d 825 (2010); State v. Bassett, 198 Wn. App. 714, 723, 394 P.3d
430 (2017).

     Forever incorrigible. Commonwealth v. Batts, 163 A.3d 410, 435 (Pa. 2017);
Newton v. State, 83 N.E.3d 726, 739 (Ind. Ct. App. 2017).

         Incapable of rehabilitation. Commonwealth v. Batts, 163 A.3d 410, 416 (Pa.
2017).

      Incorrigible. Graham v. Florida, 560 U.S. 48, 72-73, 130 S. Ct. 2011, 176 L. Ed.
2d 825 (2010); Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2465, 183 L. Ed. 2d 407
(2012).

      Irredeemable. Graham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010); Sam v. State, 401 P.3d 834, 859 (Wyo. 2017).

       Irreparable corruption. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 734,
193 L. Ed. 2d 599 (2016); Miller v. Alabama, 567 U.S. 460, 479-80, 132 S. Ct. 2455, 183
L. Ed. 2d 407 (2012); Graham v. Florida, 560 U.S. 48, 73, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010); State v. Ramos, 187 Wn.2d 420, 437, 387 P.3d 650 (2017); Commonwealth
v. Batts, 163 A.3d 410, 416 (Pa. 2017); Garcia v. State, 903 N.W.2d 503, 508 (N.D.
2017); People v. Hoy, 2017 IL App (1st) 142596, --- N.E.3d --- (2017); People v. Lozano,
16 Cal. App.5th 1286, 1289, 225 Cal. Rptr 104 (2017); Newton v. State, 83 N.E.3d 726,
737 (Ind. Ct. App. 2017); State v. Scott, 196 Wn. App. 961, 969, 385 P.3d 783 (2016),
review granted, 188 Wn.2d 1001, 393 P.3d 362 (2017).

         Irreparably lost. State v. Null, 836 N.W.2d 41, 75 (Iowa 2013).


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No. 33794-4-III
State v. Gilbert (dissenting)


         Irretrievable. State v. Bassett, 198 Wn. App. 714, 730-31, 394 P.3d 430 (2017).

       Irretrievable depravity. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718,
733, 193 L.Ed.2d 599 (2016); Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2464
(2012); Windom v. State, 162 Idaho 417, 398 P.3d 150, 156 (2017).

      Irretrievably corrupt. State v. Bassett, 198 Wn. App. 714, 743, 394 P.3d 430
(2017).

         No possibility of redemption. Garcia v. State, 903 N.W.2d 503, 511 (N.D. 2017).

       Permanently incorrigible. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718,
734, 193 L.Ed.2d 599 (2016); Commonwealth v. Batts, 163 A.3d 410, 416 (Pa. 2017).

      Rare juvenile offender. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718,
733-34, 193 L. Ed. 2d 599 (2016); State v. Scott, 196 Wn. App. 961, 969, 385 P.3d 783,
786 (2016), review granted, 188 Wn.2d 1001, 393 P.3d 362 (2017); Windom v. State, 162
Idaho 417, 398 P.3d 150, 156 (2017).

         Rarest of children. Steilman v. Michael, 2017 WL 6348119, at *4 (Mont. Dec. 13,
2017).

       Rarest of juvenile offenders. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct.
718, 734, 193 L. Ed. 2d 599 (2016); State v. Bassett, 198 Wn. App. 714, 725, 394 P.3d
430 (2017); Commonwealth v. Coia, 2017 PA Super 250, 168 A.3d 219, 223-24 (Pa.
Super. Ct. 2017).

       Rarest of juvenile offenders whose crimes reflect permanent incorrigibility,
irreparable corruption, and irretrievable depravity. Commonwealth v. Batts, 163 A.3d
410, 416 (Pa. 2017).

       Sufficient depravity. Graham v. Florida, 560 U.S. 48, 77, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010); State v. Bassett, 198 Wn. App. 714, 723, 394 P.3d 430 (2017).

       Unable to be rehabilitated. Commonwealth v. Coia, 2017 PA Super 250, 168 A.3d
219, 222 (Pa. Super. Ct. 2017)

      Uncommon situation. State v. Ramos, 187 Wn.2d 420, 435, 443, 387 P.3d 650
(2017).

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No. 33794-4-III
State v. Gilbert (dissenting)



      Virtually irredeemable. State v. Ronquillo, 190 Wn. App. 765, 775, 361 P.3d 779
(2015).

       Without any hope of rehabilitation. Commonwealth v. Batts, 163 A.3d 410, 435
(Pa. 2017); Newton v. State, 83 N.E.3d 726, 739 (Ind. Ct. App. 2017).




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