                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       September 24, 2019



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 In re the Personal Restraint of:                                   No. 49302-1-II

 JARRELL MAURICE MARSHALL,
                                                                PUBLISHED OPINION

                                Petitioner.


       MAXA, C.J. – In this personal restraint petition (PRP), Jarrell Marshall seeks freedom

from restraint imposed by the sentence following his 2007 guilty plea for one count of second

degree murder and two counts of first degree robbery. Marshall committed these crimes when he

was 16 years old, but he was sentenced in adult court. He asserts that the sentencing court erred

in failing to consider the mitigating qualities of his youth when he was sentenced.

       Marshall argues that even though his PRP was filed more than one year after his

conviction became final, his PRP is not time barred under RCW 10.73.100(6) because State v.

Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), represented a significant change in the

law that was material to his sentence and that must be applied retroactively. Our Supreme Court

in Houston-Sconiers stated that the Eighth Amendment requires sentencing courts to consider

mitigating qualities of youth when sentencing juvenile offenders. Id. at 21, 23.

       We hold that Marshall’s PRP claim was untimely. Although the directive in Houston-

Sconiers that sentencing courts must consider the mitigating qualities of youth when sentencing

juvenile offenders represented a significant change in the law that is material to Marshall’s
No. 49302-1-II


sentence, it stated a procedural rule that does not apply retroactively. Accordingly, we deny

Marshall’s PRP.1

                                              FACTS

       In 2007, Marshall pleaded guilty to second degree murder and to two counts of first

degree robbery after he was part of a group who killed one person and robbed two others. He

was 16 years old when he committed the crimes.

       The standard range sentence was 165-265 months for the murder charge and 51-68

months for the robbery charges. The State and defense counsel made a joint recommendation of

a 165 month sentence on the murder charge. The court instead sentenced Marshall to 189

months on the murder charge and 51 months on the robbery charges to run concurrently.

Marshall did not file a direct appeal.

       In 2016, Marshall filed a PRP based on various grounds. Following subsequent

developments in the law, he ultimately focused on an argument that the sentencing court violated

the Eighth Amendment and Houston-Sconiers by failing to consider the mitigating qualities of

youth when imposing a sentence above the joint recommendation.

       We ordered a reference hearing to determine what had happened at the 2007 sentencing

hearing. The trial court concluded that the sentencing court did not consider Marshall’s youthful

qualities as required under Houston-Sconiers and that Marshall suffered actual prejudice as the

result of that constitutional error. The State has challenged both findings.




1
 Because we hold that Marshall’s PRP is untimely, we do not address whether he established a
constitutional error that resulted in actual and substantial prejudice.



                                                 2
No. 49302-1-II


                                           ANALYSIS

       Marshall argues that the RCW 10.73.100(6) exception to the one-year time bar for PRPs

applies because Houston-Sconiers resulted in a significant change in the law by requiring

sentencing courts to consider mitigating qualities of youth when sentencing juvenile offenders,

which was not required under prior law.2 Our Supreme Court recently declined to address this

issue. In re Pers. Restraint of Meippen, 193 Wn.2d 310, 317-18, 440 P.3d 978 (2019). We hold

that although Houston-Sconiers constituted a significant change in the law that was material to

his sentence, that case stated a procedural rule that cannot be applied retroactively. Therefore,

we hold that the RCW 10.73.100(6) exception to the PRP time bar does not apply and that

Marshall’s PRP is untimely.

A.     TIMELINESS OF PRPS

       Under RCW 10.73.090(1), a petitioner generally must file a PRP within one year after a

trial court judgment becomes final. A judgment is final on the date it is filed with the clerk of

the trial court. RCW 10.73.090(3)(a). Here, Marshall’s judgment and sentence became final in

2007. But he did not file his PRP until 2016.

       RCW 10.73.100 lists six exceptions to the one-year limit. The exception potentially

applicable here is RCW 10.73.100(6), which states that the time bar does not apply if

       [t]here has been a significant change in the law, whether substantive or procedural,
       which is material to the conviction, sentence, or other order entered in a criminal or
       civil proceeding instituted by the state or local government, and either the
       legislature has expressly provided that the change in the law is to be applied
       retroactively, or a court, in interpreting a change in the law that lacks express



2
 In his PRP, Marshall also argued that State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015),
constituted a significant change in the law. However, the Supreme Court in In re Pers. Restraint
of Light-Roth subsequently held that O’Dell did not constitute a significant change in the law that
provides an exception to the time bar. 191 Wn.2d 328, 330, 337-38, 422 P.3d 444 (2018).
Therefore, Marshall no longer relies on O’Dell.


                                                 3
No. 49302-1-II


       legislative intent regarding retroactive application, determines that sufficient
       reasons exist to require retroactive application of the changed legal standard.

In other words, an exception exists when (1) there has been a “significant change in the law,” (2)

the change is “material to the . . . sentence,” and (3) “sufficient reasons exist to require

retroactive application.” RCW 10.73.100(6); see In re Pers. Restraint of Colbert, 186 Wn.2d

614, 619, 380 P.3d 504 (2016).

       The issue here is whether Houston-Sconiers satisfied all three requirements of RCW

10.73.100(6).

B.     O’DELL AND HOUSTON-SCONIERS

       Over the last 15 years, courts increasingly have considered the impact of age on juvenile

defendants’ culpability. In a series of opinions, the United States Supreme Court held that the

Eighth Amendment prohibited sentencing juveniles to death, Roper v. Simmons, 543 U.S. 551,

578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); sentencing juveniles to life sentences without the

possibility of parole in non-homicide cases, Graham v. Florida, 560 U.S. 48, 81-82, 130 S. Ct.

2011, 176 L. Ed. 2d 825 (2010); and mandatory sentencing of juveniles to life without parole in

all cases. Miller v. Alabama, 567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The

Court in Montgomery v. Louisiana held that Miller stated a substantive rule that must be applied

retroactively. ___ U.S. ___, 136 S. Ct. 718, 732-36, 193 L. Ed. 2d 599 (2016).

       Relying on that line of cases, our Supreme Court addressed consideration of an offender’s

youth in State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). In that case, the defendant was

convicted of second degree rape of a child, committed 10 days after his 18th birthday. Id. at

683-84. At sentencing, the defendant requested an exceptional sentence below the standard

range. Id. at 685. He argued that he was still in high school, that he would have received a

significantly lower sentence in the juvenile system, and that research showed that juveniles are



                                                   4
No. 49302-1-II


more susceptible to negative influences and impulsive behavior. Id. The trial court

acknowledged the argument but ruled that it could not consider age as a mitigating circumstance.

Id. at 685-86.

       The Supreme Court noted that research showed “a clear connection between youth and

decreased moral culpability for criminal conduct.” Id. at 695. That connection may relate to the

crime and diminish the defendant’s culpability, even if it is not a “per se mitigating factor

automatically entitling every youthful defendant to an exceptional sentence.” Id. at 695.

Accordingly, the court held that trial courts “must be allowed to consider youth as a mitigating

factor” in sentencing a youthful defendant. Id. at 696.

       Our Supreme Court applied similar principles under the Eighth Amendment in Houston-

Sconiers, 188 Wn.2d 1. In Houston-Sconiers, the defendants were juveniles who had carried a

gun while stealing candy from Halloween trick-or-treaters. Id. at 9-11. They both were

convicted of multiple counts of robbery plus multiple firearm sentence enhancements. Id. at 12.

The trial court imposed no incarceration on the underlying crimes but believed that the law

compelled the imposition of mandatory consecutive sentences for the firearm enhancements. Id.

at 12-13. The Supreme Court noted that the trial court had no opportunity to exercise discretion

regarding the appropriateness of the sentence enhancements. Id. at 8.

       The Supreme Court stated that the trial court was required to consider a juvenile

defendant’s youth in sentencing, even for statutorily mandated sentences. Id. at 8-9, 21. The

court stated that to comply with the Eighth Amendment, courts must address the differences

between children and adults by exercising “discretion to consider the mitigating qualities of

youth.” Id. at 19. The court concluded,

       [W]e hold that sentencing courts must have complete discretion to consider
       mitigating circumstances associated with the youth of any juvenile defendant, even



                                                  5
No. 49302-1-II


         in the adult criminal justice system, regardless of whether the juvenile is there
         following a decline hearing or not. To the extent our state statutes have been
         interpreted to bar such discretion with regard to juveniles, they are overruled. Trial
         courts must consider mitigating qualities of youth at sentencing and must have
         discretion to impose any sentence below the otherwise applicable SRA[3] range
         and/or sentence enhancements.

Id. at 21 (emphasis added).

         Relying on Miller, the court also provided guidance to trial courts on how to exercise

their discretion in juvenile sentencing. Houston-Sconiers, 188 Wn.2d at 23. The court

emphasized that the sentencing court “must consider” the following factors:

         1. “[M]itigating circumstances related to the defendant’s youth – including age and its

‘hallmark features,’ such as the juvenile’s ‘immaturity, impetuosity, and failure to appreciate

risks and consequences.’ ” Id. (quoting Miller, 567 U.S. at 477).

         2. “[F]actors like the nature of the juvenile’s surrounding environment and family

circumstances, the extent of the juvenile’s participation in the crime, and ‘the way familial and

peer pressures may have affected him [or her].’ ” Houston-Sconiers, 188 Wn.2d at 23 (quoting

Miller, 567 U.S. at 477).

         3. “[H]ow youth impacted any legal defense, along with any factors suggesting that the

child might be successfully rehabilitated.” Houston-Sconiers, 188 Wn.2d at 23.

         The court concluded, “This is what the sentencing court should have done in this case,

and this is what we remand for it to do.” Id.

         More recently, our Supreme Court – in a unanimous opinion – characterized the

mandatory consideration of youthful qualities ordered in Houston-Sconiers as follows:

         We also recognized that the court must consider the mitigating circumstances
         related to the defendant’s youth, including, but not limited to, the juvenile’s
         immaturity, impetuosity, and failure to appreciate risks and consequences – the


3
    Sentencing Reform Act of 1981, chapter 9.94A RCW.


                                                   6
No. 49302-1-II


       nature of the juvenile’s surrounding environment and family circumstances, the
       extent of the juvenile’s participation in the crime, the way familial and peer
       pressures may have affected him or her, how youth impacted any legal defense, and
       any factors suggesting that the juvenile might be successfully rehabilitated.

State v. Gilbert, 193 Wn.2d 169, 176, 438 P.3d 133 (2019).

C.     ABILITY TO CHALLENGE STANDARD RANGE SENTENCE

       The concurrence notes the general rule that a sentence within the standard sentence range

for an offense may not be appealed. RCW 9.94A.585(1). However, a defendant may appeal the

process by which a trial court imposes a sentence. State v. Knight, 176 Wn. App. 936, 957, 309

P.3d 776 (2013). Therefore, a party may challenge “ ‘the underlying legal conclusions and

determinations by which a court comes to apply a particular sentencing provision.’ ” State v.

Ramos, 187 Wn.2d 420, 433, 387 P.3d 650 (quoting State v. Williams, 149 Wn.2d 143, 147, 65

P.3d 1214 (2003)), cert. denied, 138 S. Ct. 467 (2017). For instance, in Ramos, the court

considered on the merits an appeal of a standard range sentence that a juvenile offender alleged

violated the Eighth Amendment. 187 Wn.2d at 433, 436-53.

       Here, Marshall challenges the process by which the trial court imposed a standard range

sentence that was above the joint recommendation. Therefore, we cannot reject his PRP on the

ground that a standard range sentence generally is not appealable.

D.     APPLICATION OF RCW 10.73.100(6)

       As noted above, RCW 10.73.100(6) provides an exception to the time bar if (1) there has

been a significant change in the law, (2) the change is material to the defendant’s sentence, and

(3) retroactive application is required. No published opinion has addressed whether Houston-




                                                 7
No. 49302-1-II


Sconiers provides an exception to the time bar. As noted above, our Supreme Court in Meippen

declined to address this issue. 193 Wn.2d at 315.4

       Significantly, here we are not addressing the actual holding of Houston-Sconiers – that

“sentencing courts must have absolute discretion to depart as far as they want below otherwise

applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult

court.” 188 Wn.2d at 9. Marshall does not rely on that holding because he did not request a

sentence outside the standard sentencing range. He instead relies on the court’s directive that

sentencing courts must consider the mitigating qualities of youth when sentencing juvenile

offenders. Id. at 21, 23. The question is whether RCW 10.73.100(6) applies to this rule.

       1.    Significant Change in the Law

       For purposes of RCW 10.73.100(6), a significant change in the law occurs “when an

intervening appellate decision overturns a prior appellate decision that was determinative of a

material issue.” State v. Miller, 185 Wn.2d 111, 114, 371 P.3d 528 (2016). But a decision that

merely settles a point of law without overturning prior precedent, applies settled law to new

facts, or addresses an issue for the first time does not constitute a significant change in the law.

Id. at 114-16. One test for determining whether a significant change has occurred is to identify

whether the defendant previously could have argued the same issue. Id. at 115.

       In In re Personal Restraint of Light-Roth, our Supreme Court held that O’Dell did not

constitute a significant change in the law and therefore did not provide an exception to the time

bar. 191 Wn.2d 328, 336-38, 422 P.3d 444 (2018). The court concluded that even before O’Dell

was decided, a defendant could have argued youth as a mitigating factor. Id. at 337-38.




4
  However, in a dissenting opinion Justice Wiggins argued that Houston-Sconiers did meet the
requirements of RCW 10.73.100(6). 193 Wn.2d at 318-29 (Wiggins, J., dissenting).


                                                  8
No. 49302-1-II


       But Houston-Sconiers adopted a new sentencing rule, even when compared with O’Dell.

Houston-Sconiers stated that not only did trial courts have the discretion under the SRA to

consider youth as O’Dell clarified, but trial courts were required under the Eighth Amendment to

consider mitigating qualities of youth when sentencing a juvenile defendant. 188 Wn.2d at 21.

The court also identified certain factors relating to youth that trial courts must consider at

sentencing. Id. at 23.

       We need not decide whether Houston-Sconiers expressly overruled prior precedent.5 Our

Supreme Court repeatedly has identified another characteristic of a significant change in the law:

that the defendant could not have argued the issue before the new case was decided. E.g., Light-

Roth, 191 Wn.2d at 334; Miller, 185 Wn.2d at 115; In re Pers. Restraint of Lavery, 154 Wn.2d

249, 258-59, 111 P.3d 837 (2005). “A ‘significant change in the law’ is likely to have occurred

if the defendant was unable to argue the issue in question before publication of the intervening

decision.” Light-Roth, 191 Wn.2d at 334. As the court stated in In re Personal Restraint of

Greening, although petitioners “have a duty to raise available arguments in a timely fashion . . .

they should not be faulted for having omitted arguments that were essentially unavailable at the

time.” 141 Wn.2d 687, 697, 9 P.3d 206 (2000).

       Here, as the court noted in Light-Roth, Marshall could have argued that the sentencing

court should consider youth as a mitigating factor. Id. at 338. But there is no question that he

could not have argued at sentencing that the sentencing court was required under the Eighth

Amendment to consider specific mitigating qualities of his youth. Houston-Sconiers was the

first case to adopt that rule. And that rule changed the law; before Houston-Sconiers sentencing



5
 In his dissent in Meippen, Justice Wiggins asserted that Houston-Sconiers expressly overruled
State v. Brown, 139 Wn.2d 20, 983 P.2d 608 (1999). Meippen, 193 Wn.2d at 321 (Wiggins, J.,
dissenting) (citing Houston-Sconiers, 188 Wn.2d at 21 n.5).


                                                  9
No. 49302-1-II


courts were not required to consider youth as a mitigating factor and after Houston-Sconiers they

were.

        We conclude that Houston-Sconiers constituted a significant change in the law for

purposes of RCW 10.73.100(6).

        2.   Materiality of Change

        Whether a change in the law is material for purposes of RCW 10.73.100(6) “depends

upon the facts and circumstances of each case.” In re Pers. Restraint of Hartzell, 108 Wn. App.

934, 940, 33 P.3d 1096 (2001).

        Here, Marshall was a juvenile offender. At sentencing, he was unable to argue that the

sentencing court was required to consider his youth when evaluating the joint recommendation

for a mid-range sentence. Under Houston-Sconiers, the sentencing court would be required to

consider certain mitigating qualities of youth. 188 Wn.2d at 21, 23. Marshall would be able to

argue based on the court’s mandatory consideration of these qualities that his sentence should be

lower. The required consideration of the mitigating qualities of youth may have convinced the

trial court not to impose a higher sentence than the joint recommendation. Therefore, Houston-

Sconiers is material.

        The State appears to argue that Houston-Sconiers is not material because the rule stated

in that case applies only to sentences that are the functional equivalent of a life sentence.

However, Houston-Sconiers contains no such limitation. The court stated that sentencing courts

must consider the characteristic of youth any time a juvenile offender is sentenced in adult court.

188 Wn.2d at 8-9, 21, 23.

        The State also appears to argue that the holding in State v. Scott, 190 Wn.2d 586, 416

P.3d 1182 (2018), precludes Houston-Sconiers from being material to Marshall’s sentence. In




                                                 10
No. 49302-1-II


Scott, the juvenile defendant was sentenced to 900 months confinement and later filed a motion

requesting a new sentencing hearing that was converted to a PRP. Id. at 589-90. The court held

that collateral relief was unavailable to Scott pursuant to RAP 16.4(d), which allows collateral

relief only if available remedies are inadequate. Id. at 592, 601. The court stated that his

adequate remedy was to seek parole under RCW 9.94A.730. Id. That statute, commonly known

as the Miller fix, provides that a person convicted as juvenile can petition the indeterminate

sentence review board for early release after serving no less than 20 years of total confinement.

RCW 9.94A.730(1).

       The court rejected the argument that Houston-Sconiers required resentencing. Id. at 594-

97. The court noted that the United States Supreme Court in Montgomery expressly held that a

state may remedy an unconstitutional life without the parole sentence by permitting juvenile

offenders to be considered for parole rather than resentencing them. Scott, 190 Wn.2d at 596-

97. But Scott is inapplicable here because Marshall was not sentenced to more than 20 years of

total confinement. Therefore, RCW 9.94A.730(1) does not apply to him and cannot provide an

adequate remedy under RAP 16.4(d).

       We conclude that that Houston-Sconiers constituted a change in the law that was material

to Marshall’s sentence for purposes of RCW 10.73.100(6).

       3.   Retroactive Application

            a.   General Principles

       A decision that constitutes a significant change in the law does not necessarily apply

retroactively. See Colbert, 186 Wn.2d at 619. Whether a decision must be applied retroactively

for purposes of RCW 10.73.100(6) depends on the federal retroactivity analysis established in




                                                11
No. 49302-1-II


Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality opinion).

Colbert, 186 Wn.2d at 623.

       Under the Teague analysis, a “new rule” generally will not be given retroactive

application on collateral review. Colbert, 186 Wn.2d at 623. A new rule is one that breaks new

ground or was not dictated by precedent existing when the defendant was convicted, and is a rule

upon which reasonable jurists could disagree. Id.

       If a decision establishes a new rule, that decision generally applies only to those cases

that are pending on direct review or not yet final. In re Pers. Restraint of Haghighi, 178 Wn.2d

435, 443, 309 P.3d 459 (2013). But under Teague, a decision will apply retroactively on

collateral review in two situations: when the decision establishes (1) “a substantive rule that

places certain behavior ‘beyond the power of the criminal law-making authority to proscribe’ ”

or (2) a “watershed rule of criminal procedure” that is “ ‘implicit in the concept of ordered

liberty.’ ” In re Pers. Restraint of Gentry, 179 Wn.2d 614, 628, 316 P.3d 1020 (2014) (quoting

Teague, 489 U.S. at 311) (internal quotation marks omitted). We apply the Teague analysis to

determine whether Houston-Sconiers applies retroactively.

            b.    Houston-Sconiers as a New Rule

       The rule set out in Houston-Sconiers is plainly new. It was based on evolving law that

culminated in Miller, which the United States Supreme Court in Montgomery treated as new.

136 S. Ct. at 732. And the case law preceding Houston-Sconiers, Miller included, did not

establish that the Eighth Amendment required a sentencing court to consider a juvenile

defendant’s youth for all types of offenses.




                                                 12
No. 49302-1-II


             c.   Substantive vs. Procedural Rule

       A new rule applies retroactively if it is substantive. Gentry, 179 Wn.2d at 628.

“Procedural rules . . . are designed to enhance the accuracy of a conviction or sentence by

regulating ‘the manner of determining the defendant’s culpability.’ ” Montgomery, 136 S. Ct. at

730 (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed. 2d 442

(2004). “Substantive rules . . . set forth categorical constitutional guarantees that place certain

criminal laws and punishments altogether beyond the State’s power to impose.” Montgomery,

136 S. Ct. at 729. “A substantive rule . . . forbids ‘criminal punishment of certain primary

conduct’ or prohibits ‘a certain category of punishment for a class of defendants because of their

status or offense.’ ” Montgomery, 136 S. Ct. at 732 (quoting Penry v. Lynaugh, 492 U.S. 302,

330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)).

       The Supreme Court’s directive in Houston-Sconiers that sentencing courts must consider

the mitigating qualities of youth did not prohibit any category of punishment or provide that the

State could not impose certain punishment. Instead, the court addressed the manner of

determining what sentence to impose on a juvenile, establishing a process to ensure that the

sentencing of juveniles comports with the Eighth Amendment. The court held that a sentencing

court must consider certain specific factors when sentencing a juvenile. Houston-Sconiers, 188

Wn.2d at 23. But the court did not limit the sentencing court’s discretion to impose a particular

sentence as long as those factors were considered. Therefore, we conclude that Houston-

Sconiers stated a procedural rule rather than a substantive one.

       This conclusion is not inconsistent with Montgomery, which held that Miller established

a substantive rule. As the Court stated in Montgomery, Miller “did more than require a sentence

to consider a juvenile offender’s youth before imposing life without parole; it established that the




                                                 13
No. 49302-1-II


penological justifications for life without parole collapse in light of the ‘distinctive attributes of

youth.’ ” Montgomery, 136 S. Ct. at 734 (quoting Miller, 567 U.S. at 472). The court recognized

that Miller did not erect a categorical bar against sentencing a juvenile to life without parole, but

stated that Miller’s prohibition of such punishment “for all but the rarest of juvenile offenders”

amounted to a substantive protection. Montgomery, 136 S. Ct. at 734. The Court concluded that

the rule stated in Miller was a “substantive holding that life without parole is an excessive

sentence for children whose crimes reflect transient immaturity.” Id. at 735.

        The same substantive prohibition is missing from Houston-Sconiers. Unlike in Miller,

Houston-Sconiers did not address whether the Eighth Amendment prohibited a specific sentence.

Instead of forbidding application of a particular type of punishment as in Miller, the court in

Houston-Sconiers created a generally applicable process for sentencing juvenile defendants that

regulated “ ‘the manner of determining the defendant’s culpability.’ ” Montgomery, 136 S. Ct. at

730 (quoting Schriro, 542 U.S. at 353).

        We conclude that the directive in Houston-Sconiers that sentencing courts must consider

the mitigating qualities of youth when sentencing juvenile offenders did not establish a

substantive rule and therefore cannot be retroactive on that basis.

             d.   Watershed Rule of Criminal Procedure

        The second Teague exception is that a new procedural rule may apply retroactively if it is

a watershed rule of criminal procedure. Colbert, 186 Wn.2d at 624. A watershed rule is a rule

that is “ ‘implicit in the concept of ordered liberty’ ” and that implicates the “fundamental

fairness of the trial.” State v. Evans, 154 Wn.2d 438, 445, 114 P.3d 627 (2005) (quoting In re

Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326, 823 P.2d 492 (1992)). The rule must not only

improve accuracy, but alter our understanding of “ ‘bedrock procedural elements essential to the




                                                  14
No. 49302-1-II


fairness of a proceeding.’ ” Evans, 154 Wn.2d at 445 (quoting Sawyer v. Smith, 497 U.S. 227,

242, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).

         Watershed rules are almost nonexistent. The United States Supreme Court has

referenced Gideon v. Wainwright,6 which guaranteed the right to counsel for criminal

defendants, as a watershed rule. Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed.

2d 415 (1990); see Gentry, 179 Wn.2d at 628. Since then, the United States Supreme Court has

addressed multiple claimed watershed rules, but no new watershed has been announced. See

Gentry, 179 Wn.2d at 628. The United States Supreme Court twice has rejected watershed status

to rules addressing mitigating evidence at sentencing. Graham v. Collins, 506 U.S. 461, 476-78,

113 S. Ct. 892, 122 L. Ed. 2d 260 (1993); Beard v. Banks, 542 U.S. 406, 419-20, 124 S. Ct.

2504, 159 L. Ed. 2d 494 (2004).

         Our Supreme Court similarly has never held that a rule meets the Teague watershed

criteria. Gentry, 179 Wn.2d at 628. The court in Gentry noted that in applying this exception,

“courts have been sparing to the point of unwillingness.” Id.

         Given the reluctance of the United States Supreme Court and our Supreme Court to find

watershed rules in this context, we conclude that Houston-Sconiers does not establish a

watershed procedural rule.

         4.   Summary

         We conclude that the directive in Houston-Sconiers that sentencing courts must consider

the mitigating qualities of youth when sentencing juvenile offenders does not apply retroactively

to matters on collateral review. Therefore, we hold that Marshall’s PRP claim is untimely.




6
    372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).



                                                 15
No. 49302-1-II


                                       CONCLUSION

       We hold that RCW 10.73.100(6) is inapplicable here and therefore that Marshall’s PRP is

untimely. Accordingly, we deny the PRP.



                                                  MAXA, C.J.


 I concur:



GLASGOW, J.




                                             16
No. 49302-1-II


         MELNICK, J. (concurring) — After receiving the benefits of the bargain from his plea

negotiations with the State, Jerrell Marshall now seeks in this personal restraint petition (PRP) to

renege on his stipulated plea agreement.

         Marshall pled guilty to murder in the second degree and two counts of robbery in the first

degree in exchange for a stipulated sentence recommendation within the standard range. 7 The

State reduced the original charges of murder in the first degree, assault in the first degree, and three

counts of robbery in the third degree. These original charges carried a higher standard range than

the ones to which Marshall pled guilty. The murder in the first degree charge also carried a

mandatory minimum of twenty years of total confinement with no earned early release. RCW

9.94A.540(1)(a), (2). The events underlying all of these charges occurred when Marshall was 16

years old. He was sentenced in adult court.

         While I agree with the majority’s result, I disagree with its reasoning and analysis. First,

Marshall has failed to show actual and substantial prejudice. Accordingly, his PRP should be

denied. Second, there has been no significant change in the law as it relates to sentencing a

defendant within the standard range. The majority takes an overly broad view of the rule in State

v. Houston-Sconiers8 and fails to factually distinguish it.          I believe Houston-Sconiers is

inapplicable in this case where Marshall pled guilty to a stipulated sentence within the standard

range and where the court meted out a standard range sentence.




7
  The court sentenced Marshall to a determinate standard range sentence; however, it did not follow
the stipulated plea agreement. The court advised Marshall it was not bound by the plea agreement.
8
    188 Wn.2d 1, 391 P.2d 409 (2017).


                                                  17
No. 49302-1-II


I.     NO PREJUDICE

       “A personal restraint petitioner must prove either a (1) constitutional error that results in

actual and substantial prejudice or (2) nonconstitutional error that ‘constitutes a fundamental defect

which inherently results in a complete miscarriage of justice.’” In re Pers. Restraint of Monschke,

160 Wn. App. 479, 488, 251 P.3d 884 (2010) (internal quotation marks omitted) (quoting In re

Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004)). The petitioner must prove the

error by a preponderance of the evidence. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94

P.3d 952 (2004).

       In In re Pers. Restraint of Meippen, 193 Wn.2d 310, 317-18, 440 P.3d 978 (2019), the court

recently ruled that it need not decide if Houston-Sconiers represented a significant, material legal

change that should be applied retroactively to cases on collateral review. Instead, it decided that

because Meippen could not demonstrate actual and substantial prejudice by a preponderance of

the evidence, his personal restraint petition should be dismissed. Meippen, 193 Wn.2d at 318.

       The same situation exists in this case. Marshall cannot show prejudice. He cannot

demonstrate that the sentencing court would have sentenced him to an exceptional sentence below

the range, the relief he now requests.9, 10 In fact, the stipulated plea agreement precluded Marshall

from asking or arguing for an exceptional sentence below the standard range. In exchange for the

reduction of charges, he stipulated to a specific sentence within the standard range.




9
 In addition, Marshall cannot show by a preponderance of the evidence that his sentence would
have been shorter if Houston-Sconiers applied retroactively.
10
   If Marshall’s PRP was granted, I question whether his proffered remedy would be imposed.
Rather, because he arguably entered into an indivisible plea agreement, there may be other
remedies. See In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 810-12, 383 P.3d 454 (2016)
(regarding appropriate remedies). I need not address this issue at this time.


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No. 49302-1-II


       I would rely on Meippen and dismiss Marshall’s PRP on this basis without further

discussion. He has not demonstrated actual and substantial prejudice.

II.    NO CHANGE IN LAW

       Because the majority has chosen to analyze this case differently than the Supreme Court

did in Meippen, I also address the majority’s analysis regarding whether there has been a

significant change in the law.

       The majority and I agree that this PRP is time-barred under RCW 10.73.090 unless there

has been a significant change in the law that is material to Marshall’s sentence.           RCW

10.73.100(6). “Whether there has been a “significant change in the law” primarily rests on whether

the defendant ‘could have argued this issue before publication of the decision.’” In re Pers.

Restraint of Light-Roth, 191 Wn.2d 328, 337, 422 P.3d 444 (2018) (internal quotations omitted)

(quoting In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258-59, 111 P.3d 837 (2005)). Even if

there is a change in the law, the petitioner must show that it was material to him and his case.

RCW 10.73.100(6).

       In evaluating this issue, it must be remembered that standard range sentences are

presumptively not appealable. RCW 9.94A.585. A trial court’s decision regarding the length of

a sentence within the standard range is not appealable because “as a matter of law there can be no

abuse of discretion.” State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796, cert.

denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986).

       At a sentencing hearing, the court “may impose any sentence within the range that it deems

appropriate.” RCW 9.94A.530(1). There is no limitation on what a court may consider in

sentencing a defendant within the standard range. 13 ROYCE A. FERGUSON, JR., WASHINGTON




                                               19
No. 49302-1-II


PRACTICE, CRIMINAL PRACTICE AND PROCEDURE § 4818, at 395-96 (3d ed. 2004);11 State v. Mail,

121 Wn.2d 707, 711 n.2, 714, 854 P.2d 1042, 1044 (1993). At sentencing, a court must consider

all of the information presented to it. However, it is important to differentiate between information

presented to a court at a sentencing hearing and the weight the court gives the information.

       Where the trial court follows correct procedures when sentencing a defendant to a standard

range sentence, an appeal is statutorily barred. Mail, 121 Wn.2d at 714. In Mail, the court held

“that in order for a “procedural” appeal to be allowed under Ammons, it must be shown that the

sentencing court had a duty to follow some specific procedure required by the SRA [Sentencing

Reform Act of 1981], and that the court failed to do so.” 121 Wn.2d at 712. Marshall has failed

to make such a showing.

       As such, the court at sentencing could always consider such factors as a “juvenile’s

immaturity, impetuosity, and failure to appreciate risks and consequences—the nature of the

juvenile’s surrounding environment and family circumstances, the extent of the juvenile’s

participation in the crime, the way familial and peer pressures may have affected him or her, how

youth impacted any legal defense, and any factors suggesting that the juvenile might be

successfully rehabilitated.” State v. Gilbert, 193 Wn.2d 169, 176, 438 P.3d 133 (2019); Houston-

Sconiers 188 Wn.2d at 23.

       Based on the foregoing, the court did not fail to follow a specific procedure required by the

SRA and Marshall does not allege any. In addition, Marshall could have argued the issue he now




11
  For sentences above the standard range, the court “may rely on no more information than is
admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of
sentencing, or proven pursuant to RCW 9.94A.537”. RCW 9.94A.530(2). This “real facts”
doctrine only applies to exceptional sentences above the range. It does not apply to standard range
sentences.


                                                 20
No. 49302-1-II


puts forth, before publication of Houston-Sconiers.          I do not believe that Marshall has

demonstrated that a change in law occurred under RCW 10.73.100(6) as it affects his case.

       Marshall stipulated to a sentence within the standard range and had available to him all of

the arguments about youth enumerated in Houston-Sconiers to justify his standard range sentence.

I also note that if Marshall could not have appealed his standard range sentence, he certainly cannot

collaterally attack it in a PRP and prevail.

       In arriving at this conclusion, I note that the majority has taken an overly broad view of the

rule of Houston-Sconiers and its progeny. The majority states that a sentencing court “must

consider the characteristic of youth any time a juvenile offender is sentenced in adult court.”

Majority at 10. However, this rule must be tempered by the facts of the case and the issues the

court had before it. In Houston-Sconiers the defendants went to trial. The court sentenced the

defendants to an exceptional sentence below the standard range but it did not believe it could

impose an exceptional sentence on the enhancements. The court disagreed and said that the

mandatory nature of the enhancements violated the eighth amendment when applied to juveniles

who are sentenced in adult court. Houston-Sconiers, 188 Wn.2d at 26.12

       In the present case, Marshall did not go to trial; he plead guilty after receiving many great

benefits from his plea bargain, including reduced charges, no mandatory minimum, and a lower

standard range. Marshall also involved a stipulation by both parties to recommend a specific

sentence within the standard range.



12
   Similarly, in State v. Gilbert, the defendant committed his crimes, murder in the first degree
with aggravating factors, murder in the first degree, and others, at 15 years of age and was
sentenced in adult court after a jury convicted him. The trial court ruled it lacked the discretion to
run the murder sentences in any way other than consecutive to each other. On appeal, the court
relied on Houston-Sconiers, reversed and ruled that the trial court had the discretion to impose an
exceptional sentence below the range and run the sentences concurrent with each other. Gilbert,
193 Wn.2d 169, 175, 438 P.3d 133 (2019).


                                                 21
No. 49302-1-II


       Lastly, although the majority has emphasized that trial courts are mandated to consider

specific mitigating factors of youth at sentencing, I must stress that courts can only consider the

evidence and information presented to them by the parties. The failure by a court to consider any

of the specific factors enumerated by the majority would not be error if neither party did not or

could not present such information. I believe the only logical way to read that rule is that

sentencing courts must consider the mitigating qualities of youth when such information is

presented to them.

       Because Marshall has failed to show actual and substantial prejudice and because he has

failed to demonstrate a significant change in the law that affects his case, I concur in the result to

deny the PRP.




                                                              Melnick, J.




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