                                                        This opinion was filed for record
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          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                            )
     STATE OF WASHINGTON,                   )
                                            )
                            Respondent,     )     No. 92454-6
                                            )
           v.                               )
                                            )     ENBANC
     JOEL RODRIGUEZ RAMOS,                  )
                                            )
                            Petitioner.     )     Filed:    JAN 1 2 2017
       _______________________)
           YU, J.--When a juvenile offender is sentenced in adult court, youth matters

     on a constitutional level. Even for homicide offenses, "mandatory life-without-

     parole sentences for juveniles violate the Eighth Amendment." Miller v. Alabama,

     567 U.S.~' 132 S. Ct. 2455,2464, 183 L. Ed. 2d 407 (2012) (citing U.S. CONST.

     amend VIII). Therefore, where a convicted juvenile offender faces a possible life-

     without-parole sentence, the sentencing court must conduct an individualized

     hearing and "take into account how children are different, and how those

     differences counsel against irrevocably sentencing them to a lifetime in prison."

     Id. at 2469. This individualized Miller hearing "gives effect to Miller's substantive
State v. Ramos, No. 92454-6


holding that life without parole is an excessive sentence for children whose crimes

reflect transient immaturity." Montgomery v. Louisiana, 577 U.S._, 136 S. Ct.

718, 735, 193 L. Ed. 2d 599 (2016).

       As a juvenile homicide offender facing a de facto life-without-parole

sentence, petitioner Joel Rodriguez Ramos was entitled to a Miller hearing, just as

a juvenile homicide offender facing a literal life-without-parole sentence would be.

Based on the record presented, we hold that Ramos did receive a constitutionally

adequate Miller hearing and he has not shown that his aggregated 85-year sentence

violates the Eighth Amendment. We decline to engage in an independent state

constitutional analysis because the issue is inadequately briefed. We further hold

that the State did not breach the plea agreement, and we therefore affirm the Court

of Appeals in result.

                              FACTUAL BACKGROUND

       The basic facts of Ramos' offenses are undisputed:

             Mr. Ramos and his friend, Miguel Gaitan, both 14, broke into
       the Skelton family home on March 24, 1993. They were armed with
       knives. Mr. Michael Skelton, who was disabled, confronted the
       burglars and was stabbed and beaten to death by the two young men.
       Mr. Gaitan then attacked and killed Mrs. Lynn Skelton in the
       bathroom shower. He stabbed her 51 times and also beat her with a
       baseball bat. Twelve-year-old Jason Skelton went to his mother's aid.
       Gaitan killed him as well; Jason's body was found near his mother's.

             The two young men searched the house for items to steal. They
       found six-year-old Bryan Skelton in his bedroom and told the


                                          2
State v. Ramos, No. 92454-6


       youngster to go to sleep. They pulled the bedcovers over his head,
       and Mr. Ramos then hit Bryan in the head with a piece of firewood,
       fracturing his skull. Bryan was also stabbed in the heart. Mr. Ramos
       later told the court that he killed Bryan in order to prevent him from
       identifying the two assailants.

State v. Ramos, 152 Wn. App. 684, 687-88, 217 P.3d 384 (2009) (footnote

omitted). In his statement on plea of guilty, Ramos stated that "at one point, I ran

outside. But then I ran back in. Later while inside I picked up a piece of firewood

and hit Brian Skelton in the head with it so he could not identify us later." Clerk's

Papers (CP) at 80. A juvenile detention employee overheard Gaitan tell another

detainee "that it was a gang initiation and that they were to burglarize the house. If

anybody was there, they were supposed to take care of them." 1 Report of

Proceedings (RP) at 49.

                                PROCEDURAL HISTORY

       In August 1993, Ramos pleaded guilty in superior court to one count of first

degree premeditated murder for the death of Bryan Skelton and three counts of first

degree felony murder for the deaths of Michael, Lynn, and Jason Skelton. 1 "Both

parties recommended that the court impose the minimum possible sentence-

consecutive 240 month terms on each count." Ramos, 152 Wn. App. at 689.



       1
         As part of his plea agreement, "Ramos agreed to waive juvenile court jurisdiction and
plead guilty in superior court." Ramos, 152 Wn. App. at 688. There are no issues regarding the
validity of the plea agreement or the waiver of juvenile court jurisdiction currently before this
court.


                                                3
State v. Ramos, No. 92454-6


Although the sentencing court opined "that the murder of Bryan Skelton deserved

more than 240 months, the court nonetheless imposed the requested sentence." I d.

Ramos' term oftotal confinement was thus 960 months (80 years). CP at 15.

       Thirteen years later, Ramos filed both an appeal and a personal restraint

petition (PRP). After this court ordered the Court of Appeals to proceed with the

appeal as though it were timely filed, the Court of Appeals rejected Ramos' appeal

on the merits and dismissed his PRP. This court granted review only as to the

community placement term of Ramos' sentence, and "remanded to the Court of

Appeals for reconsideration in light of State v. Broadaway, 133 Wn.2d 118, 942

P.2d 363 (1997)." Order, State v. Ramos, No. 83819-4 (Wash. Apr. 1, 2010). The

Court of Appeals in turn remanded to the trial court for clarification of the "'period

of community placement required by law."' State v. Ramos, noted at 156 Wn.

App. 1041,2010 WL 2487831, at *2 (quoting Broadaway, 133 Wn.2d at 136).

Ramos again petitioned this court for review, and in a per curiam opinion, this

court held that the trial court was required to exercise discretion in order to comply

with the Court of Appeals decision, and that "Ramos, therefore, has a right to be

present and heard at resentencing." State v. Ramos, 171 Wn.2d 46, 49, 246 P.3d

811 (2011).

       By the time Ramos' case was remanded for resentencing, the original

sentencing judge had retired. A new judge conducted Ramos' resentencing, at


                                          4
State v. Ramos, No. 92454-6


which Ramos argued for an exceptional sentence below the standard range, with

his 20-year sentences on each count "to run concurrently rather than

consecutively." State v. Ramos, No. 30279-2-III, slip op. at 4 (Wash. Ct. App.

Apr. 16, 2013) (unpublished), http://www.courts.wa.gov/opinions/pdf/

302792.pdf. The resentencing court believed that it did not have authority to

consider an exceptional sentence downward and denied Ramos' request. Ramos

appealed.

       The Court of Appeals noted that the procedural history "presented the trial

court, and now us, with a uniquely complex set of issues." Id. at 6. It ultimately

concluded that the sentencing court abused its discretion in determining that it did

not have the authority to consider Ramos' arguments for an exceptional sentence.

Therefore, the Court of Appeals remanded for resentencing but noted that

              [w ]e do not mean to express a view on how the trial court
       should exercise its discretion. Mr. Ramos committed a heinous crime.
       The appropriate sentence is the trial court's domain. We only point
       out that Mr. Ramos has presented real reasons why a court might
       choose to reduce his sentence. He should have the opportunity to
       have his request considered with the correct law in mind.

Id. at 35.

       The matter currently on review is Ramos' second resentencing, which was

held before a third judge. Ramos presented evidence and argument supporting an

exceptional sentence below the standard range, specifically "asking for the three




                                          5
State v. Ramos, No. 92454-6


felony murder convictions to be run concurrently," 2 RP at 156, resulting in a total

aggregate sentence of 320 months (26 years and 8 months), id. at 158. The State

presented its own evidence and argument opposing an exceptional sentence, and

asked that the court "deny the exceptional sentence and just reaffi1m the sentence

of 80 years." !d. at 144. However, the State acknowledged the court's authority to

impose a different sentence within the standard range or an exceptional sentence

downward.

       The court denied Ramos' request for an exceptional sentence and imposed a

sentence near the bottom of the standard range: 20-year sentences for each of the

three felony murder convictions and a 25-year sentence for the premeditated

murder of Bryan Skelton, all to run consecutively, for a total of 85 years. Ramos

appealed, and the Court of Appeals affirmed in a published opinion, reasoning that

Miller applies to literal life-without-parole sentences but not to de facto life-

without-parole sentences resulting from aggregate consecutive sentences for

multiple homicides. State v. Ramos, 189 Wn. App. 431,452,357 P.3d 680 (2015).

We granted Ramos' petition for review. State v. Ramos, 185 Wn.2d 1009,367

P.3d 1083 (2016).

                                        ISSUES

A      Is this appeal moot in light of recent legislative action?

B.     Is Ramos' sentence constitutionally permissible?


                                            6
State v. Ramos, No. 92454-6


       1.     Does Miller apply to a juvenile homicide offender who is facing a de
              facto life-without-parole sentence due to the aggregation of standard
              range consecutive sentences?

       2.     If Miller applies, did Ramos' second resentencing comply with its
              requirements?

       3.     Does article I, section 14 of the Washington Constitution impose
              greater procedural or substantive protections than the Eighth
              Amendment as applied to this case?

C.     Did the State breach the plea agreement?

                              STANDARD OF REVIEW

       The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, provides

that a standard range sentence "shall not be appealed." RCW 9.94A.585(1); see

also former RCW 9.94A.21 0(1) (1989). "However, this prohibition does not bar a

party's right to challenge the underlying legal conclusions and determinations by

which a court comes to apply a particular sentencing provision." State v. Williams,

149 Wn.2d 143, 147, 65 P.3d 1214 (2003). Accordingly, Ramos challenges his

standard range consecutive sentences on the basis that they were imposed pursuant

to a statutory system that is unconstitutional as applied to him. Constitutional

interpretation is a question oflaw reviewed de novo. State v. MacDonald, 183

Wn.2d 1, 8, 346 P.3d 748 (2015).

       When evaluating Ramos' contention that the State breached its plea

agreement, we must "review [the] prosecutor's actions and comments objectively




                                          7
State v. Ramos, No. 92454-6


from the sentencing record as a whole to determine whether the plea agreement

was breached." State v. Carreno-Maldonado, 135 Wn. App. 77, 83, 143 P.3d 343

(2006). A breach occurs when the State "undercut[s] the terms of the agreement

explicitly or implicitly by conduct evidencing an intent to circumvent the terms of

the plea agreement." !d. Nevertheless, we review the State's actions objectively,

focusing "on the effect of the State's actions, not the intent behind them." State v.

Sledge, 133 Wn.2d 828, 843 n.7, 947 P.2d 1199 (1997). Where the plea agreement

is unambiguous, as it is here, our review is de novo. MacDonald, 183 Wn.2d at 8;

State v. E.A.J, 116 Wn. App. 777, 784-85, 67 P .3d 518 (2003).

                                     ANALYSIS

       The SRA provides that when a person is convicted of "two or more serious

violent offenses arising from separate and distinct criminal conduct," standard

range consecutive sentences will be imposed for each offense. RCW

9.94A.589(1 )(b); see also former RCW 9.94A.400(1 )(b) (1990). This standard

range consecutive sentencing may, and in this case did, result in a total prison term

exceeding the average human life-span-that is, a de facto life sentence.

       The person being sentenced pursuant to the SRA carries the burden of

proving by a preponderance ofthe evidence "that there are substantial and

compelling reasons justifying an exceptional sentence" below the standard range.

RCW 9.94A.535; see also former RCW 9.94A.l20(2) (1992); In re Pers. Restraint


                                           8
 State v. Ramos, No. 92454-6


· of Mulholland, 161 Wn.2d 322, 328-30, 166 P.3d 677 (2007). Generally speaking,

 such an exceptional sentence may be for a reduced term of years, for concurrent

 rather than consecutive sentences, or both. The fundamental question presented is

 whether, in light of Miller, this statutory sentencing system is unconstitutional as

 applied to a juvenile offender who commits multiple homicides.

        We hold that while not every juvenile homicide offender is automatically

 entitled to an exceptional sentence below the standard range, every juvenile

 offender facing a literal or de facto life-without-parole sentence is automatically

 entitled to a Miller hearing. At the Miller hearing, the court must meaningfully

 consider how juveniles are different from adults, how those differences apply to

 the facts of the case, and whether those facts present the uncommon situation

 where a life-without-parole sentence for a juvenile homicide offender is

 constitutionally permissible. If the juvenile proves by a preponderance ofthe

 evidence that his or her crimes reflect transient immaturity, substantial and

 compelling reasons would necessarily justify an exceptional sentence below the

 standard range because a standard range sentence would be unconstitutional.

        On the record presented, Ramos received an adequate Miller hearing at his

 second resentencing and he has not shown that his sentence violates the Eighth

 Amendment. We also hold the State did not breach the plea agreement and

 therefore affirm.


                                            9
State v. Ramos, No. 92454-6


A.     The appeal is not moot

       After Ramos' second resentencing, our legislature enacted RCW 9.94A.730

in response to the ever-evolving jurisprudence regarding juvenile sentencing. That

statute provides, in relevant part:

       Notwithstanding any other provision of this chapter, any person
       convicted of one or more crimes committed prior to the person's
       eighteenth birthday may petition the indeterminate sentence review
       board for early release after serving no less than twenty years of total
       confinement, provided the person has not been convicted for any
       crime committed subsequent to the person's eighteenth birthday, the
       person has not committed a disqualifying serious infraction as defined
       by the department in the twelve months prior to filing the petition for
       early release, and the current sentence was not imposed under RCW
       10.95.030 [pertaining to sentences for aggravated first degree murder]
       or 9.94A.507 [pertaining to sentences for sex offenders].

RCW 9.94A.730(1 ). For the first time in its supplemental brief, the State suggests

that the issues presented in this appeal are now moot because Ramos may petition

for early release pursuant to RCW 9.94A.730, which would in fact reduce his

sentence. We disagree. The possibility of another remedy in the future cannot

displace Ramos' right to appeal his sentence on the basis that it was unlawfully

imposed in the first instance.

       We acknowledge that the Supreme Court has held that for cases on collateral

review, life-without-parole sentences previously imposed without proper Miller

hearings may be remedied "by permitting juvenile homicide offenders to be

considered for parole, rather than by resentencing them." Montgomery, 136 S. Ct.


                                          10
State v. Ramos, No. 92454-6


at 736. However, this case is before us on direct appeal, and at the time of Ramos'

second resentencing, there was no provision oflaw that would have allowed him to

ever be considered for parole. He was unquestionably facing a de facto life-

without-parole sentence, and we are reviewing his case on direct appeal to

determine whether that sentence was lawfully imposed. If it was not, he is entitled

to resentencing. The appeal is not moot. State v. Ronquillo, 190 Wn. App. 765,

778-79,361 P.3d 779 (2015).

B.     On the record presented, Ramos' sentence is constitutionally permissible

       Miller establishes a substantive rule that a life-without-parole sentence

cannot be imposed on a juvenile homicide offender whose crimes reflect transient

immaturity. Therefore, where a juvenile offender facing a standard range life-

without-parole sentence proves that his or her crimes reflect transient immaturity,

the juvenile has necessarily proved that there are substantial and compelling

reasons for an exceptional sentence downward. Miller anticipates that most

juveniles will be able to meet this burden of proof, and we now explicitly hold that

all juvenile homicide offenders must be given the opportunity to do so at a Miller

hearing.

       However, Miller does not require that the State assume the burden of

proving that a standard range sentence should be imposed, rather than placing the

burden on the juvenile offender to prove an exceptional sentence is justified. It


                                          11
State v. Ramos, No. 92454-6


also does not require the sentencing court to consider mitigating evidence

otherwise prohibited by Washington law or to make an explicit finding that the

offense reflects irreparable corruption on the part of the juvenile. We do not intend

to discount the potential benefits of such procedural requirements; we hold only

that Ramos has not shown that the specific procedures enumerated in this

paragraph are required as a matter of federal constitutional law. We also decline to

decide at this time whether the state constitution requires greater protections than

the federal constitution. We therefore hold that on the record presented, Ramos'

second resentencing satisfied Miller's minimal requirements.

       1.     Miller applies equally to literal and de facto life-without-parole
              sentences

       The parties all agreed, at both the trial and appellate courts, that Ramos was

entitled to a full Miller hearing at his second resentencing. However, the Court of

Appeals suggested the parties were incorrect on this issue, and because other

Washington appellate decisions have reached differing conclusions, we address its

merits. See, e.g., id at 785 n.7; State v. Solis-Diaz, 194 Wn. App. 129, 140-41,

376 P.3d 458 (2016). We now join the majority of jurisdictions that have

considered the question and hold that Miller does apply to juvenile homicide

offenders facing de facto life-without-parole sentences.




                                           12
State v. Ramos, No. 92454-6


       The Court of Appeals suggested that Miller is inapplicable here based on

two observed differences between this case and Miller: (1) Miller involved

sentencing for single homicides, while this case involves sentencing for multiple

homicides and (2) Miller involved single sentences of life without parole, while

this case involves four consecutive sentences totaling 85 years' confinement

without the possibility of early release. Ramos, 189 Wn. App. at 452. Those

observations are accurate, but do not provide a principled basis on which to hold

Miller does not apply. To the contrary, 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. Ramos unquestionably faced such a sentence.

       Focusing on the number of victims is justified but misplaced. Of course, the

number of victims is highly relevant to determining an appropriate sentence.

However, nothing 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). Even the most egregious facts presented by a particular case

cannot automatically negate a juvenile homicide offender's right to a Miller

hearing. As the Miller Court explained,


                                          13
State v. Ramos, No. 92454-6


       We have consistently held that limiting a mandatory death penalty law
       to particular kinds of murder cannot cure the law's "constitutional
       vice" of disregarding the "circumstances ofthe particular offense and
       the character and propensities of the offender." Roberts v. Louisiana,
       428 U.S. 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (plurality
       opinion); see Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97
       L.Ed.2d 56 (1987). The same analysis applies here, for the same
       reasons.

!d. at 2471 n.9. Moreover, a properly conducted Miller hearing does not in any

way permit sentencing courts to disregard the number of victims in determining an

appropriate sentence. Miller explicitly requires sentencing courts "to take into

account the differences among defendants and crimes." !d. at 2469 n.8 (emphasis

added).

       For similar reasons, 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. Cf State v. McNeil, 59 Wn. App. 478,481,

798 P.2d 817 (1990) (rejecting a defendant's argument that two consecutive life-

without-parole sentences were excessive because the distinction between




                                           14
State v. Ramos, No. 92454-6


concurrent and consecutive life terms "is academic; the sentence is ultimately

limited by Mr. McNeil's life span").

       Many other jurisdictions have confronted this issue and have reached

varying results. Some have squarely held that Miller does apply to de facto life-

without-parole sentences. 2 Applying similar reasoning, some have held that the

prohibition on life-without-parole sentences for nonhomicide juvenile offenders in

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

applies to de facto life-without-parole sentences. 3 Other courts have rejected this

reasoning. 4 Ultimately though, "most courts that have considered the issue agree

that a lengthy tenn of years for a juvenile offender will become a de facto life

sentence at some point." 5 Casiano v. Comm 'r ofCorr., 317 Conn. 52, 74, 115




       2
          See, e.g., Casiano v. Comm'r ofCorr., 317 Conn. 52,72-75, 115 AJd 1031 (2015);
Bear Cloud v. State, 2014 WY 113, ~ 33, 334 PJd 132; State v. Null, 836 N.W.2d 41, 72 (Iowa
2013) (decided on state constitutional grounds).
        3
          See, e.g., Henry v. State, 175 So. 3d 675, 679-80 (Fla. 2015); State v. Boston, 363 PJd
453,457-58 (Nev. 2015).
        4
          See, e.g., Bunch v. Smith, 685 FJd 546, 550 (6th Cir. 2012) (Graham's prohibition on
life-without-parole sentences for juvenile nonhomicide offenses "did not clearly establish" that
de facto life without parole is unconstitutional for purposes of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214); State v. Brown, 12-0872, p. 15 (La.
5/7/13), 118 So. 3d 332 (Graham does not forbid de facto life-without-parole sentences for
nonhomicide juvenile offenders); State v. Kasic, 228 Ariz. 228, 265 P.3d 410, 415-16 (2011)
(same).
        5 It is undisputed that Ramos' 85-year aggregate sentence is a de facto life sentence, so

the question of precisely how long a potential sentence must be in order to trigger Miller's
requirements is not before us. We reserve ruling on that question until we have a case in which it
is squarely presented.


                                                15
State v. Ramos, No. 92454-6


A.3d 1031 (20 15). Given that the majority of jurisdictions agree on this point and

it is consistent with both common sense and Washington case law, we follow suit.

       Regardless of labeling, it is undisputed that Ramos was in fact sentenced to

die in prison for homicide offenses he committed as a juvenile. Miller plainly

provides that a juvenile homicide offender cannot be sentenced to die in prison

without a meaningful opportunity to gain early release based on demonstrated

rehabilitation unless the offender first receives a constitutionally adequate Miller

hearing. The next question is therefore whether Ramos in fact received such a

hearing at his second resentencing.

       2.     Ramos' second resentencing did not violate Miller

       Miller recognizes a substantive rule of constitutional law pursuant to the

Eighth Amendment that "life without parole is an excessive sentence for children

whose crimes reflect transient immaturity." Montgomery, 136 S. Ct. at 735. As

with other substantive constitutional rules, the Miller Court left state legislatures

with considerable flexibility to develop their own procedures for implementing its

substantive holding. We hold that on the record presented, Ramos received an

adequate Miller hearing at his second resentencing and he has not shown that the

SRA, properly applied, so undermines Miller's substantive holding that it is

unconstitutional as applied to juvenile homicide offenders.




                                           16
State v. Ramos, No. 92454-6


              a.     As a substantive rule of constitutional law, Miller did not
                     impose detailed procedural requirements

       Miller's holding involved a somewhat unusual application of the Eighth

Amendment. The Miller Court stated that it

       does not categorically bar a penalty for a class of offenders or type of
       crime-as, for example, we did in Roper [v. Simmons, 543 U.S. 551,
       125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), which bars capital
       punishment for juvenile offenders,] or Graham[, which bars life-
       without-parole sentences for juvenile nonhomicide offenders].
       Instead, it mandates only that a sentencer follow a certain process-
       considering an offender's youth and attendant characteristics-before
       imposing a particular penalty.

132 S. Ct. at 2471. This holding generated disagreement as to whether Miller's

holding was substantive or procedural. Montgomery, 136 S. Ct. at 725, 732. The

Supreme Court of the United States recently resolved that question, and its

decision informs our analysis of what precisely Miller requires of sentencing

courts.

       The Court held that Miller announced a substantive rule that "life without

parole [is] an unconstitutional penalty for 'a class of defendants because of their

status'-that is, juvenile offenders whose crimes reflect the transient immaturity of

youth." Id. at 734 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934,

106 L. Ed. 2d 256 (1989)). It rejected the argument that because Miller "has a

procedural component," it announced a procedural rule. Id. Miller's procedural

requirement for individualized sentencing of juvenile homicide offenders "does not


                                           17
State v. Ramos, No. 92454-6


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." Id. at 735.

       Because Miller announces a substantive rule, not a procedural one, the Court

was "careful to limit the scope of any attendant procedural requirement to avoid

intruding more than necessary upon the States' sovereign administration of their

criminal justice systems." I d. (emphasis added). State legislatures are thus

allowed some flexibility in fashioning the methods for fulfilling Miller's

substantive requirements, so long as the State's approach does not "demean the

substantive character of the federal right at issue." Id.

       To be sure, the fact that state legislatures are given flexibility to define

appropriate procedures does not mean that every legislatively enacted procedure

will be constitutionally permissible. If a state procedural rule "creates an

unacceptable risk" that a substantive constitutional rule will be violated, the

procedural rule cannot stand. Hall v. Florida, 572 U.S.         , 134 S. Ct. 1986, 1990,

188 L. Ed. 2d 1007 (20 14 ). This was forcefully demonstrated when the Supreme

Court recently struck down Florida's procedures for determining when a defendant

is intellectually disabled and thus ineligible for capital punishment. Florida law set

a rigid, numerical cutoff point, and Florida courts held that any defendant who

scored even slightly above that cutoff point on standardized intelligence tests "does


                                            18
State v. Ramos, No. 92454-6


not have an intellectual disability and is barred from presenting other evidence that

would show his faculties are limited." Id. at 1994. This rigid test, which

conflicted with the views of medical experts in the field, created an intolerable risk

of violating the substantive rule that persons with intellectual disabilities cannot be

executed and was therefore held unconstitutional.

       Thus, our task is to determine what procedures are necessary to give full

effect to Miller's substantive holding, and whether any of the procedures currently

imposed by the SRA create an unacceptable risk that a juvenile whose homicide

offenses reflect only transient immaturity will be unconstitutionally sentenced to

life without parole. The principle guiding our analysis is that "[t]he States are

laboratories for experimentation, but those experiments may not deny the basic

dignity the Constitution protects." Id. at 2001.

              b.     Miller hearings are always required where a juvenile homicide
                     offender faces life without parole

       It is difficult to imagine any reason for an exceptional sentence downward

that could be more substantial and compelling than the fact that a standard range

sentence would be unconstitutional. Therefore, when a juvenile facing a standard

range life-without-parole sentence shows that his or her crimes reflect transient

immaturity, the juvenile has necessarily proved that substantial and compelling

reasons justifY an exceptional sentence below the standard range. Moreover,




                                           19
State v. Ramos, No. 92454-6


Miller anticipated that life-without-parole sentences for juvenile homicide

offenders should be "uncommon." Miller, 132 S. Ct. at 2469. Therefore, most

juvenile homicide offenders facing the possibility of life without parole will be

able to meet their burden of proving an exceptional sentence below the standard

range is justified.

       Given these principles, it is clear that in order to give effect to Miller's

substantive holding, every case where a juvenile offender faces a standard range

sentence of life without parole (or its functional equivalent) necessarily requires a

Miller hearing. The juvenile cannot forfeit his or her right to a Miller hearing

merely by failing to affirmatively request it, and all doubts should always be

resolved in favor of holding a Miller hearing.

       The required Miller hearing is not an ordinary sentencing proceeding.

Miller "establishes an affirmative requirement that courts fully explore the impact

ofthe defendant's juvenility on the sentence rendered." 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.

       The court must receive and consider relevant mitigation evidence bearing on

the circumstances of the offense and the culpability of the offender, including both


                                            20
State v. Ramos, No. 92454-6


expert and lay testimony as appropriate. The court and counsel have an affirmative

duty to ensure that proper consideration is given to the juvenile's "chronological

age and its hallmark features-among them, immaturity, impetuosity, and failure

to appreciate risks and consequences." Miller, 132 S. Ct. at 2468. It is also

necessary to consider the juvenile's "family and home environment" and "the

circumstances of the homicide offense, including the extent of his participation in

the conduct and the way familial and peer pressures may have affected him." Id.

And where appropriate, the court should account for "incompetencies associated

with youth" that may have had an impact on the proceedings, such as the juvenile's

"inability to deal with police officers or prosecutors (including on a plea

agreement) or his incapacity to assist his own attorneys." I d.

       When making its decision, the court must be mindful that a life-without-

parole sentence is constitutionally prohibited for juvenile homicide offenders

whose crimes reflect "'unfortunate yet transient immaturity"' rather than

'"irreparable corruption."' I d. at 2469 (quoting Roper, 543 U.S. at 573).

Moreover, due to "children's diminished culpability and heightened capacity for

change ... appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon." Id. The sentencing court must thoroughly explain its

reasoning, specifically considering the differences between juveniles and adults

identified by the Miller Court and how those differences apply to the case


                                          21
State v. Ramos, No. 92454-6


presented. While formal written findings of fact and conclusions or law are not

strictly required, they are always preferable to ensure that the relevant

considerations have been made and to facilitate appellate review.

              c.     Ramos has not shown that the specific procedures he suggests
                     are required as a matter of federal constitutional law

       Ramos contends several additional procedural protections are required at a

Miller hearing. He argues that the State must bear the burden of proving that

standard range sentencing is appropriate and that the SRA and Washington case

law improperly limit the mitigating evidence that a sentencing court may consider.

He also argues that a sentencing court must make an explicit finding that the

crimes reflect irreparable corruption on the part of the juvenile before imposing life

without parole. We agree with Ramos that each of these protections might be

highly valuable and worth considering as a matter of policy. However, Ramos has

not shown that they are required as a matter of federal constitutional law.

                     1.       Requiring the offender to carry the burden of proof for an
                              exceptional sentence downward is constitutionally
                              permissible

       At a Miller hearing, the sentencing court must "take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison." Id. Miller did not, however, specify who

carries the burden of proof. Pursuant to the SRA, the offender carries the burden




                                             22
State v. Ramos, No. 92454-6


of proving that an exceptional sentence below the standard range is justified.

Ramos argues that as a matter of constitutional law, the burden must be shifted to

the State to prove that a standard range sentence is appropriate. However, he has

not shown that such burden-shifting is required by the Eighth Amendment.

       Ramos reasons that because Miller predicted life without parole for juvenile

homicide offenders will be uncommon, such a sentence cannot be presumptive.

Therefore, he argues that the State must carry the burden of proving life without

parole is appropriate in each individual case. We do not question the logical

appeal of this reasoning. However, it attaches a procedural significance to Miller's

holding that the Court expressly disavowed. Montgomery, 136 S. Ct. at 735.

       Moreover, Ramos has not shown that the SRA's allocation of the burden of

proof creates such an unacceptable risk that juvenile homicide offenders will be

given unconstitutional sentences of life without parole such that the legislative

allocation is constitutionally impermissible. In other contexts where a particular

punishment is categorically impermissible for a particular class of defendants,

courts have held that the defendant may be required to carry the burden of proving

by a preponderance of the evidence that he or she falls within that protected class.

Commonwealth v. Sanchez, 614 Pa. 1, 66-77, 36 A. 3d 24 (20 11) (holding that it is

constitutionally permissible to require defendants to prove that they fall within the

class of people with intellectually disabilities who cannot be subject to capital


                                          23
State v. Ramos, No. 92454-6


punishment). Therefore, at this time we cannot hold that the SRA's allocation of

the burden of proof for exceptional sentencing is constitutionally impermissible as

applied to juvenile homicide offenders.

       We also note our legislature's demonstrated and ongoing concern for

juvenile justice issues. See, e.g., RCW 9 .94A.540(3) (eliminating mandatory

minimum sentences for juvenile offenders tried as adults), .730 (expanding parole

eligibility for juvenile offenders tried as adults); RCW 10.95.030(3) (creating

special sentencing procedures for juvenile offenders convicted of aggravated first

degree murder in adult court); State v. S.J.C., 183 Wn.2d 408,419,352 P.3d 749

(2015) ("[T]he legislature has always made some provision to limit public access

to juvenile court records in recognition of the unique purpose of juvenile courts to

rehabilitate and reintegrate youth into society."). Given this history, we are

confident in our legislature's ability and willingness to respond to emerging

juvenile justice issues in an appropriate manner, accounting for all of the

competing interests at stake.

       Miller does not authorize this court to mandate sentencing procedures that

conflict with the SRA unless it is shown that the SRA procedures so undermine

Miller's substantive holding that they create an unacceptable risk of

unconstitutional sentencing. Ramos has not made this showing as to the SRA's

allocation of the burden of proving that an exceptional sentence below the standard


                                          24
State v. Ramos, No. 92454-6


range is justified. We thus decline to hold that this allocation is unconstitutional as

applied to juvenile homicide offenders.

                     ii.      Miller is consistent with Washington law regarding the
                              permissible scope of potential mitigating circumstances

       Ramos also argues that Washington law regarding the scope of mitigating

evidence that may be considered in deciding whether to impose an exceptional

downward sentence imposes a restraint that is inconsistent with Miller's

individualized sentencing requirements for juvenile offenders facing life without

parole. He reads Miller as requiring sentencing courts to consider mitigating

evidence of personal factors that are forbidden by RCW 9.94A.340 and this court's

holding in State v. Law, 154 Wn.2d 85, 110 P.3d 717 (2005). Given the way our

court has recently clarified the impact of Law with its holding in State v. 0 'Dell,

183 Wn.2d 680,358 P.3d 359 (2015), current Washington law complies with

Miller.

       RCW 9.94A.340 provides that the SRA's "sentencing guidelines and

prosecuting standards apply equally to offenders in all parts of the state, without

discrimination as to any element that does not relate to the crime or the previous

record of the defendant." In Law, this court held

       that the SRA requires factors that serve as justification for an
       exceptional sentence to relate to the crime, the defendant's culpability
       for the crime, or the past criminal record of the defendant. Factors




                                             25
State v. Ramos, No. 92454-6


       which are personal and unique to the particular defendant, but
       unrelated to the crime, are not relevant under the SRA.

154 Wn.2d at 89. Meanwhile, Miller holds that before a court can sentence a

juvenile offender to life without parole, it must consider the offender's

"chronological age and its hallmark features," including "the family and home

environment that surrounds" the offender, "the circumstances of the homicide

offense, ... incompetencies associated with youth[,] ... [and] the possibility of

rehabilitation." 132 S. Ct. at 2468.

       These different requirements can be reconciled because Miller requires a

sentencing court to consider the circumstances of youth "in assessing [the

offender's] culpability." Id. at 2467. Law explicitly states that valid mitigating

factors may relate to "the defendant's culpability for the crime," 154 Wn.2d at 89,

and as this court recently clarified in 0 'Dell, "[i]t is precisely these differences

[between juveniles and young adults on one hand and mature adults on the other]

that might justify a trial court's finding that youth diminished a defendant's

culpability," 183 Wn.2d at 693. Properly applied, Washington law thus allows

consideration of factors that might be considered "personal" in a colloquial sense

but directly bear on a juvenile offender's culpability, and does not conflict with

Miller.




                                            26
State v. Ramos, No. 92454-6


       Ramos' case presents another consideration, however, because he was

resentenced for a second time after having spent approximately 20 years in total

confinement. The sentencing court received evidence of his maturation and

rehabilitation over that time, but in announcing its decision, the court stated,

             While, Mr. Ramos, you may have made great strides in your
       personal life while incarcerated, the punishment is just. It protects the
       public, and I hope it sends a message of deterrence and works to
       protect this public.

             I have attempted to restrict my considerations to those
       authorized by the en bane holding of the Washington State Supreme
       Court in [Law] and in compliance with RCW 9.94A.340 to the extent
       they do not restrict my consideration offactors under RCW 9.94A.010
       on the question of concurrent versus consecutive sentences under
       RCW 9.94A.535(1)([g]).

2 RP at 175. Ramos contends that the court was required to consider his

subsequent rehabilitation in making its sentencing decision, and that the above-

quoted language shows it refused to do so. 6

       While a resentencing court may certainly exercise its discretion to consider

evidence of subsequent rehabilitation where such evidence is relevant to the

circumstances of the crime or the offender's culpability, we decline to hold that the

court is constitutionally required to consider such evidence in every case. If it


       6
         This is a questionable reading of the court's decision. As discussed further below, all of
Ramos' proffered mitigation evidence was admitted without objection. The court clearly
determined that the evidence of Ramos' subsequent rehabilitation was insufficient to meet his
burden of proving that an exceptional sentence downward was justified, but did not clearly
refuse to consider that evidence at all.


                                                27
State v. Ramos, No. 92454-6


were, the court would be required to consider evidence of a person's subsequent

rehabilitation in prison as a basis for an exceptional sentence downward, but it

might also be required to consider evidence that the person has not demonstrated

subsequent rehabilitation as a basis for refusing to impose an exceptional sentence

downward. We do not believe Miller can be interpreted to require such a result.

       Miller requires courts to consider the capacity for rehabilitation when

making an initial sentencing decision about whether a juvenile should be subject to

life without parole. 132 S. Ct. at 2468-69 (discussing the reasons a lesser sentence

might have been appropriate based on the crimes and the petitioners'

backgrounds). However, evidence of actual '"demonstrated maturity and

rehabilitation"' is generally considered later, when it is time to determine whether

a former juvenile offender who is up for parole should be given early release. !d.

at 2469 (quoting Graham, 560 U.S. at 75). Whether such evidence should be

considered at the time of resentencing to the extent that it bears on the offender's

culpability is a question we leave to the discretion ofthe trial court in each case.

                     111.     Miller does not require an explicit finding that the
                              offenses reflect irreparable corruption

       Finally, Ramos contends that the sentencing court must make an explicit

finding that the juvenile's homicide offenses reflect irreparable corruption before

imposing life without parole. However, the Supreme Court has expressly




                                             28
State v. Ramos, No. 92454-6


acknowledged that "Miller did not require trial courts to make a finding of fact

regarding a child's incorrigibility." Montgomery, 136 S. Ct. at 735 (emphasis

added). Instead, it imposes a substantive requirement that draws "a line between

children whose crimes reflect transient immaturity and those rare children whose

crimes reflect irreparable corruption." Jd. at 734. Just as the Court did not allocate

the burden of proof at a Miller hearing as a matter of constitutional law, the fact

that "this finding is not required ... speaks only to the degree of procedure Miller

mandated in order to implement its substantive guarantee." Id. at 735. An explicit

finding of fact would certainly help to ensure Miller's substantive holding is being

implemented, and we encourage sentencing courts to be as detailed and explicit as

possible when making their sentencing decisions. However, Ramos has not shown

that this particular explicit finding is required as a matter of federal constitutional

law.

              d.     Ramos' Miller hearing met minimal federal constitutional
                     requirements

       Having considered what Miller does and does not require, we must now

consider the ultimate question of whether Ramos in fact received a Miller hearing

sufficient to sustain the constitutionality of his de facto life-without-parole

sentence. On the record presented, we hold that Ramos' Miller hearing at his

second resentencing met minimal federal constitutional requirements.




                                           29
State v. Ramos, No. 92454-6


       The State expressly agreed at the outset that Ramos was entitled to a "full

resentencing," and the court held a Miller hearing that extended over two days. 1

RP at 6. At the hearing, the defense presented lay testimony from Ramos'

upholstery teacher and supervisor at Airway Heights Corrections Center, from four

of Ramos' family members, and from a man who befriended Ramos in prison, all

of whom testified about their good relationships with Ramos, his personal history

and lack of other serious disciplinary issues, his positive influence on others, and

his good attitude and future prospects. It also presented expert testimony from Dr.

Terry Lee, who discussed studies regarding adolescent brain functioning and

development. The defense further provided extensive documentary evidence,

including social science research, Ramos' records from the Department of Social

and Health Service's Division of Juvenile Rehabilitation and the Department of

Corrections, written statements from Ramos, and dozens of letters written on

Ramos' behalf. Ramos also personally addressed the court, accepting

responsibility and expressing remorse for his actions. There was no objection to

any of the defense's evidence.

       The State presented testimony from a juvenile corrections officer, a sheriffs

deputy, and a detective, who all testified about the circumstances of the homicides,

including the level of planning beforehand and the events that took place, as well

as their recollections of Ramos when they interacted with him in 1993.


                                          30
State v. Ramos, No. 92454-6


       When announcing its decision, the sentencing court began by noting that

when Ramos was originally sentenced, "the judge and the lawyers held an honest

belief that the law required each of these four sentences as violent, serious offenses

to run consecutively and that the judge did not have the authority to exercise

discretion and run one or more of the sentences concurrently." 2 RP at 167.

However, the court stated for the record that it had "discretion to impose

concurrent sentences as an exceptional sentence for these serious, violent offenses"

in light of Mulholland, 161 Wn.2d 322. Jd.

       The court then explained the legal parameters underlying its exercise of

discretion as follows:

              The question hinges on whether or not under former RCW
       9. 94 A.l20 I find a substantial and compelling reason to justify the
       exceptional sentence requested by Mr. Ramos.

              To determine this I am guided by [former] RCW 9.94A.390(1)
       [(1990)], and that's the former statute applicable at the time in
       question, which sets forth the mitigating circumstances. I am also
       taking into account the adolescent brain science considerations set
       forth in [Miller, 132 S. Ct. 2455, Graham, 560 U.S. 48, and Roper,
       543 U.S. 551], as that relates to subsections [(c)], [(d)], and [(e)][7l of
       [former] RCW 9.94A.390(1), as well as considerations under the
       Eighth Amendment of the United States Constitution and the above-


       7 The  court noted specific facts of the crime that made former RCW 9.94A.390(1)(a), (b),
and (f) inapplicable, which were that "none of the four victims initiated this confrontation," that
"Ramos did not make any effort to compensate the victims," and that Ramos did not "manifest[ ]
extreme caution or sincere concern for the safety or well-being of the victims." 2 RP at 171-72.
Former RCW 9.94A.390(1)(h) (applying where "[t]he defendant or the defendant's children
suffered a continuing pattern of physical or sexual abuse by the victim") was not discussed, but
was clearly not at issue.


                                                31
State v. Ramos, No. 92454-6


       mentioned cases, and the corresponding Washington State
       Constitutional protections.
Id. at 169.

       Regarding adolescent brain science, the court noted that the expert opinions

of Dr. Lee, "as well as those referenced by the United States Supreme Court, were

general in nature and intended to apply generally to the population of

adolescents .... Dr. Lee did not render an opinion nor provide testimony

individualized to Mr. Ramos." I d. at 172-73. The court thus addressed "three

significant gaps between juveniles and adults" identified by Miller as applied to

Ramos specifically. Id. at 173.

       The court correctly identified those gaps as '"a lack of maturity and an

tmderdeveloped sense of responsibility leading to recklessness, impulsivity, and

heedless risk taking"'; the fact that'" [c]hildren are more vulnerable to negative

influences and outside pressures and lack the ability to extricate themselves from

horrific crime-producing settings"'; and the fact "that a juvenile's actions are less

likely to be evidence of irretrievable depravity." I d. at 173-74. The court

concluded none of the gaps applied here because the murders were "planned" and

"not indicative of impulsive acts"; the murder of Bryan Skelton to eliminate him as

a witness "evidences to me a clear, cold, calculating decision of a mind fully

cognizant of future consequences"; and the murders "were monstrous." Id.




                                          32
State v. Ramos, No. 92454-6


       Finally, the court turned to "the four penological justifications set forth in

[Miller] or the stated purposes of Washington Sentencing Reform Act found in

former RCW 9.94A.010 [(1981)]." 8 Id. at 174. The court noted that "[i]n [Miller]

the Court was faced with one murder. Here we have four." Id. It also noted that

"[w]hile these three felony murders may have evidenced the twice-diminished

responsibility discussed by the United States Supreme Court in their opinions, the

[premeditated] murder of Bryan Skelton did not." Id. at 175. The court concluded

that "[o]n balance the factors set forth in [RCW]9.94A.010 lead me to reject the

request for concurrent sentences." !d. at 174-75.

       Although we cannot say that every reasonable judge would necessarily make

the same decisions as the court did here, we cannot reweigh the evidence on

review. The court clearly received and considered Ramos' extensive mitigation

evidence, was fully aware of its authority to impose an exceptional sentence below

the standard range, and reasonably considered the issues identified in Miller when

making its decision. Ramos has not shown that his second resentencing violated

Miller's minimal requirements.




       8
         In additional to the constitutional issues raised by Miller, this portion of the court's
ruling appears to address former RCW 9.94A.390(l)(g), which provides that it is a mitigating
circumstance if"[t]he operation of the multiple offense policy ofRCW 9.94A.400 results in a
presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed
in RCW 9.94A.Ol0.'' See 2 RP at 176.


                                                33
State v. Ramos, No. 92454-6


       3.     We decline to engage in an independent state constitutional analysis

       Ramos contends that even if the Eighth Amendment does not require the

specific procedural protections he advocates, article I, section 14 of the

Washington Constitution does. As Ramos correctly notes,

             This Court has "repeated[ly] recogni[zed] that the Washington
       State Constitution's cruel punishment clause often provides greater
       protection than the Eighth Amendment." State v. Roberts, 142 Wn.2d
       471, 506, 14 P.3d 713 (2000); Const. art. I,§ 14. This "established
       principle[ ]" requires no analysis under State v. Gunwall, 106 Wn.2d
       54, 720 P.2d 808 (1986). Id. at 506 n.11.

Pet. for Review at 16 (first and second alterations in original). Unfortunately, this

is Ramos' entire argument regarding the Washington Constitution; his analysis

focuses on Eighth Amendment jurisprudence.

       Even where it is already established that the Washington Constitution may

provide enhanced protections on a general topic, parties are still required to explain

why enhanced protections are appropriate in specific applications. State v. Pugh,

167 Wn.2d 825, 835, 225 P.3d 892 (2009). Ramos does not provide any such

explanation and does not address the factors for determining whether a sentence

independently violates the Washington Constitution. 9 We therefore do not decide

at this time whether article I, section 14 of the Washington Constitution requires


       9
          These factors are "(1) the nature of the offense; (2) the legislative purpose behind the
[relevant] statute; (3) the pnnishment defendant would have received in other jurisdictions for the
same offense; and (4) the punishment meted out for other offenses in the same jurisdiction."
State v. Fain, 94 Wn.2d 387, 397,617 P.2d 720 (1980).


                                                34
State v. Ramos, No. 92454-6


greater procedural protections than the Eighth Amendment when a juvenile

homicide offender faces life without parole.

       Amici ask us to hold that a life-without-parole sentence or its equivalent is

always unconstitutional as applied to juvenile offenders as a matter of state

constitutional law. However, they do not specifically analyze the factors we have

established for determining whether a sentence violates the Washington

Constitution. Instead, they urge us to follow the lead of the Iowa Supreme Court,

which recently "adopt[ed] a categorical rule that juvenile offenders may not be

sentenced to life without the possibility of parole under article I, section 17 of the

Iowa Constitution." State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016). We do not

foreclose the possibility that this court may reach a similar conclusion in a future

case, but the briefing here does not adequately explain why we must do so as a

matter of Washington constitutional law. We therefore decline to decide the issue

at this time.

       In conclusion, on this record we hold that the court conducted the

individualized sentencing hearing required by Miller. It considered the evidence

presented and the factors that must be taken into account pursuant to the SRA and

the Eighth Amendment, and provided an adequate explanation for its decision. We

therefore hold that Ramos' second resentencing complied with Miller's minimal

procedural and substantive requirements.


                                           35
State v. Ramos, No. 92454-6


C.     The State did not breach the plea agreement

       The plea agreement in this case was that the State would recommend Ramos

serve the minimum standard range sentence of four consecutive 20-year terms.

Ramos contends the State breached that agreement when it noted at Ramos' second

resentencing hearing that the murder of 6-year-old Bryan Skelton "would have

been a basis for an aggravating sentence" because Ramos "knew or should have

known [Bryan] was particularly vulnerable or incapable of resistance due to his

extreme youth." 2 RP at 141. Taken in context, this statement did not constitute a

breach of the plea agreement.

       The State breaches a plea agreement when it "undercut[s] the terms of the

agreement explicitly or implicitly by conduct evidencing an intent to circumvent

the terms of the plea agreement." Carreno-Maldonado, 135 Wn. App. at 83. Even

if the State formally recommends a standard range sentence in accordance with the

plea agreement, we have observed that "a deputy prosecutor could easily undercut

the plea agreement by placing emphasis on the evidence that supports findings that

aggravating factors are present." State v. Talley, 134 Wn.2d 176, 186, 949 P.2d

358 (1998). Such a breach occurred in Sledge, where

             [a]lthough the prosecutor adhered to the recommended
       disposition from the plea agreement, she insisted on a disposition
       hearing where she called and vigorously examined a probation
       counselor and a parole officer on aggravating factors supporting an
       exceptional disposition based on manifest injustice.


                                         36
State v. Ramos, No. 92454-6




133 Wn.2d at 830. That is not the case presented here. The complicated

procedural history and evolving underlying law relevant to Ramos' case

necessitated a full evidentiary hearing at his second resentencing; the State

certainly did not insist on an unnecessary hearing.

       Moreover, the judge who presided over Ramos' second resentencing was

completely new to the case and needed input from both parties regarding the facts

of Ramos' offenses and the state of the applicable law. Particularly, in light of the

multiple appellate dispositions of this case over the years, the court asked a number

of questions regarding the scope of its authority at Ramos' second resentencing.

The court asked both parties "which standard you're asking me or you believe the

law requires me to apply in considering the various mitigating factors." 1 RP at

126. It asked the defense "specifically what it is that [Ramos is] asking me to do,

not only in terms ofnmning concurrent [sentences], but whether or not you're

asking me to go below a standard range." !d. at 127. It also asked both parties to

"compare and contrast the scope and extent of my discretion under Washington's

Sentencing Reform Act as interpreted by [Law] compared with the more expansive

discretion that the Court would have under the federal Sentencing Reform Act

under the United States Supreme Court case of [Pepper v. United States, 562 U.S.




                                          37
State v. Ramos, No. 92454-6


476, 131 S. Ct. 1229, 179 L. Ed. 2d 196 (2011 ) 10]." I d. at 128-29. And the court

requested "guidance from both sides tomorrow on the factors you believe I should

consider, an1 allowed to consider legally, and what it is that each side would like

me to do in rendering Judgment and Sentence." Id. at 129. Neither party asked for

clarification of the court's questions, agreeing that they were "pretty clear" and

"pretty specific." I d.

       It is in this context that we must consider the State's remarks the following

day:

               And, as the Court's aware, the manner and mechanism of death
       -- or injury and death was very heinous. This is -- the description that
       was provided to the Court clearly shows that the people were both
       bludgeoned to death and then stabbed to death. And in particular the
       death of Bryan, a six year old, that the defendant admits having
       committed himself, was particularly heinous.

              And I'd like to point out that that death, you know, would have
       been a basis for an aggravating sentence. And it's the State position
       that, you know, that's something you have to look at in terms of, well,
       okay, there's these mitigating factors. Well, there's also an
       aggravating factor. Although, we're not advocating that you give him
       an aggravated sentence based upon that, I think it's something as part
       of the crime that the Court can look at. And in particular that Bryan
       was a young child that the defendant lmew or should have lmown was
       particularly vulnerable or incapable of resistance due to his extreme
       10
           Pepper held "that when a defendant's sentence has been set aside on appeal, a district
court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and
that such evidence may, in appropriate cases, support a downward variance from the now-
advisory Federal Sentencing Guidelines range." 562 U.S. at 481. However, this decision was
based on the Court's interpretation of applicable federal sentencing statutes. See id at 490-93.
Ramos does not contend on appeal that Pepper should inform our analysis regarding the scope of
mitigating evidence that may be considered pursuant to the SRA or that must be considered
pursuant to the United States Constitution.


                                               38
State v. Ramos, No. 92454-6


       youth. And so I think you've got to weigh that in in terms of the type
       of a crime that was committed.

2 RP at 140-41 (emphasis added). The defense did not object to these statements,

and considered in context, it is clear that the State's remarks had both the intention

and effect of providing the court a full picture of the facts underlying the offense at

issue. It is true that the presence of an aggravating factor does not automatically

negate the presence of a mitigating factor, but sentencing decisions must be made

in light of the actual facts ofthe offenses, and the court needed here the parties'

input on that issue. See Miller, 132 S. Ct. at 2469 n.8.

       The State had an obligation to participate in Ramos' second resentencing

and ensure the court made a fully informed decision. Talley, 134 Wn.2d at 183. It

fulfilled this obligation while also fulfilling its obligation pursuant to the plea

agreement by repeatedly recommending that the court sentence Ramos to the

bottom of the standard range: 20 years for each of the four homicide counts, to run

consecutively, for a total of 80 years. And in reaching its decision, the court did

not discuss Bryan Skelton's particular vulnerability; it focused on the fact that

Bryan was killed "for the stated purpose of eliminating a witness. That evidences

to me a clear, cold, calculating decision of a mind fully cognizant of future

consequences." 2 RP at 174. Thus, considered in context with a focus "on the




                                           39
State v. Ramos, No. 92454-6


effect of the State's actions, not the intent behind them," Sledge, 133 Wn.2d at 843

n.7, we hold the State did not breach the plea agreement.

                                   CONCLUSION

       In light of the constantly evolving nature of juvenile justice law, we must

take a measured approach to each issue as it arises, giving sufficient deference to

legislative judgments and ensuring that we confine our decisions to the merits of

the issues presented. Here, the issue presented is whether Ramos' sentence is

unconstitutional pursuant to the Eighth Amendment as interpreted by Miller. We

hold that Miller does not impose the specific procedural requirements Ramos

suggests, that his second resentencing hearing was at least minimally

constitutionally adequate, and that he has not shown that his aggregate 85-year

sentence violates the Eighth Amendment. We decline to engage in an independent

state constitutional analysis at this time. In light of the full record presented, we

also hold the State did not breach the plea agreement. We therefore affirm.




                                           40
State v. Ramos, No. 92454-6




WE CONCUR:




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                              41
