 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal           )       No. 75129-8-1
Restraint of                            )
                                        )       DIVISION ONE
KEVIN LIGHT-ROTH,                       )
                                        )       PUBLISHED OPINION
                    Petitioner.         )
                                        )
                                        )
                                        )       FILED: August 14, 2017

      TRICKEY, A.C.J. — In this personal restraint petition, Kevin Light-Roth
challenges his sentence for his 2004 conviction of murder in the second degree.

He argues that his sentence is invalid because the trial court did not meaningfully

consider whether his youthfulness justified an exceptional sentence below the

standard range.

      Although this is Light-Roth's second petition and is beyond the one-year

time bar for collateral attacks on the judgment, he argues that we may consider it

because of a significant change in the law. He contends that the recent Supreme

Court decision in State v. O'Dell significantly broadened the circumstances under

which a defendant's youthfulness may justify an exceptional sentence below the

standard range. 183 Wn.2d 680, 695-96, 358 P.3d 359 (2015).

      The State responds that O'Dell is not a significant change in the law

because the court did not overrule its decision in State v. Ha'mim. O'Dell, 183

Wn.2d at 685 (citing Ha'mim, 132 Wn.2d 834, 847, 940 P.2d 633 (1997)). In

O'Dell, the court said there was a "clear connection between youth and decreased

moral culpability for criminal conduct." 183 Wn.2d at 695. But in Ha'mim,the court

stated that the "age of the defendant does not relate to the crime or the previous
No. 75129-8-1 /2

record of the defendant," and cited with approval a Court of Appeals decision

characterizing as absurd the argument that a defendant's youth might justify

imposing a more lenient sentence. 132 Wn.2d at 846-47 (citing State v. Scott, 72

Wn. App. 207, 218-19, 866 P.2d 1258 (1993), affd, State v. Ritchie, 126 Wn.2d

388, 894 P.2d 1308 (1995)).

       Accordingly, we hold that O'Dell expanded youthful defendants' ability to

argue for an exceptional sentence, and was a significant change in the law.

Because that change in the law was material to Light-Roth's sentence and applies

retroactively, we may consider Light-Roth's petition. We conclude that Light-Roth

deserves an opportunity to have a sentencing court meaningfully consider whether

his youthfulness justifies an exceptional sentence below the standard range.

Therefore, we grant Light-Roth's petition.

                                        FACTS

       In 2003, when he was 19 years old, Light-Roth shot and killed Tython

Bonnet1

       In 2004, Light-Roth was convicted of murder in the second degree.2 Light-

Roth asked for a low- or mid-range sentence. He pointed out that he was only 21

years old at the time of sentencing, but he did not seek an exceptional sentence

downward on the basis of his youthfulness at the time of the murder. The trial

court imposed the maximum standard range sentence of 335 months.3


1 State v. Light-Roth, noted at 139 Wn. App. 1093, 2007 WL 2234613, at *1. Unless
otherwise specified, all references to ages of various defendants are to the ages at which
those defendants committed their crimes. '
2 Light-Roth, 2007 WL 2234613 at *5.
3 The sentence includes a 60-month mandatory sentence enhancement for use of a deadly
weapon. Light-Roth was also convicted of unlawful possession of a firearm. The court
                                            2
No. 75129-8-1 / 3

       In 2008, this court issued its mandate in Light-Roth's direct appeal, and the

judgment in his case became final.

       In 2009, Light-Roth brought his first personal restraint petition, alleging

numerous errors, none of which related to his sentence or youthfulness. In 2010,

this court dismissed that petition.

       In 2015, the Supreme Court issued its opinion in O'Dell. 183 Wn.2d 680.

       In 2016, Light-Roth filed this second personal restraint petition, challenging

his sentence.

                                      ANALYSIS

                                      Timeliness

       The State argues that this court should dismiss Light-Roth's petition as

untimely because Light-Roth filed it more than one year after the judgment in his

case became final. While this petition would normally be untimely, we hold that

we may consider it because of O'Dell, which announced a significant, material

change in the law that applies retroactively.

       "No petition or motion for collateral attack on a judgment and sentence in a

criminal case may be filed more than one year after the judgment becomes final if

the judgment and sentence is valid on its face and was rendered by a court of

competent jurisdiction." RCW 10.73.090(1). A judgment becomes final when an

appellate court issues its mandate disposing of the direct appeal.                 RCW

10.73.090(3)(b).

       But there are exceptions to the one-year time limit. RCW 10.73.100. The


imposed slightly less than the maximum standard range for Light-Roth's conviction for that
charge.
                                            3
No. 75129-8-1/4

one-year limit does not apply to a petition that is based solely on the ground that

there has been (1) a significant change in the law, (2) that is material to the

defendant's sentence, and (3) applies retroactively. RCW 10.73.100(6).4

        Here, Light-Roth's sentence became final in 2008. He filed this petition in

2016. Therefore, he may pursue this petition only if he can satisfy all three prongs

of RCW 10.73.100(6). We conclude that he can.

       Significant Change in the Law

        Light-Roth argues that O'Dell announced a significant change in the law

because it changed "the law regarding the evidence that is relevant to decreased

culpability" and changed the showing required to merit a sentencing court's

consideration of an offender's youth.5 The State argues that O'Dell did not

announce a significant change in the law because it did not overrule established

precedent. We agree with Light-Roth because defendants could not successfully

argue that their youth diminished their culpability before O'Dell.

       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). An appellate

decision that "settles apoint of law without overturning prior precedent' or 'simply

applies settled law to new facts' does not constitute a significant change in the

law. Miller, 185 Wn.2d at 114-15(quoting In re Pers. Restraint of Turay, 150 Wn.2d

71, 83, 74 P.3d 1194 (2003)). But appellate courts will usually find a significant



4There are several other exceptions to the time limit, which are not relevant to this petition.
RCW 10.73.100(1)-(5).
5 Personal Restraint Petition (PRP) at 5.

                                              4
No. 75129-8-I /5

change in the law when the defendant could not have argued an issue before the

new appellate decision was published. Miller, 185 Wn.2d at 115. The change

must be a change in the law itself; a change in counsels' understanding of the law

is not enough. Miller, 185 Wn.2d at 116.

       In State v. Miller, the court held that State v. Mulholland had not announced

a significant change in the law because, there, the court stated explicitly that the

question it was confronted with was "'a question [it had] not directly addressed."

185 Wn.2d at 116(quoting Mulholland, 161 Wn.2d 322,328, 166 P.3d 677(2007)).

       In In re the Personal Restraint of Flippo, Earl Flippo petitioned the Supreme

Court to review the discretionary legal financial obligations(LF0s)imposed on him,

arguing that there had been a significant change in the law since his sentence.

187 Wn.2d 106, 108, 385 P.3d 128(2016)(citing State v. Blazina, 182 Wn.2d 827,

837-38, 344 P.3d 680 (2015) (holding that the trial court must make an

"individualized inquiry into the defendant's current and future ability to pay" before

imposing discretionary LFOs and that the record must reflect that inquiry)). The

court dismissed Flippo's petition because it concluded that Blazina had clarified

the trial court's requirements under RCW 10.01.160(3) but had not "change[d]

anything about the meaning of that statue or any other material provision of law."

Flippo, 187 Wn.2d at 112. The court reasoned that, "prior to Blazina, a defendant

could certainly request that the court perform an individualized inquiry pursuant to

the statute." Flippo, 187 Wn.2d at 112.

       Flippo argued that such a request would have been "futile" because

controlling precedent established that the trial court did not need to "'enter formal,


                                          5
No. 75129-8-1 /6

specific findings regarding a defendant's ability to pay." Flippo, 187 Wn.2d at 112-

13(quoting State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992)). The court

rejected Flippo's argument, holding that, although Blazina explained what the trial

court was required to do, "nothing about those requirements changed with

Blazina."   Flippo, 187 Wn.2d at 113.        The court acknowledged that some

practitioners had had a mistaken understanding of the law, but nevertheless, held

that there was no significant change in the law. Flippo, 187 Wn.2d at 113.

       Here, the parties dispute whether O'Dell announced a change in the

interpretation of the mitigating factors justifying an exceptional sentence below the

standard range under the Sentencing Reform Act of 1981, chapter 9.94A RCW

(SRA). The court may impose a sentence below the standard range when the

"defendant's capacity to appreciate the wrongfulness of his or her conduct, or to

conform his or her conduct to the requirements of the law, was significantly

impaired." RCW 9.94A.535(1)(e).

       The court may also impose an exceptional sentence on the basis of a

nonstatutory mitigating factor. RCW 9.94A.535(1).         The factor may not be

something that "the legislature necessarily considered" when establishing the

sentence range and it must be "sufficiently substantial and compelling to

distinguish the crime in question from others in the same category." O'Dell, 183

Wn.2d at 690(quoting Ha'mim, 132 Wn.2d at 840).

       In 1993, in State v. Scott, the Court of Appeals rejected as bordering "on

the absurd" an argument that a 17-year-old murder defendant's youth lessened his




                                         6
No. 75129-8-1/7

culpability.6 72 Wn. App. at 218-19. The court acknowledged that "teenagers are

more impulsive than adults and lack mature judgment," but stated that

"[p]remediated murder is not a common teenage vice." Scott, 72 Wn. App. at 219.

       In 1997, in State v. Ha'mim, an 18-year-old defendant requested an

exceptional sentence below the standard range on the basis of her youth and her

absence of police contacts. 132 Wn.2d 834, 837, 940 P.2d 633(1997). The trial

court imposed the exceptional sentence downward, relying on the defendant's

youth as a mitigating factor. Ha'mim, 132 Wn.2d at 838.

       The Supreme Court reversed. Ha'mim, 132 Wn.2d at 848. It declined "to

hold that age alone may be used as a factor to impose an exceptional sentence

outside of the standard range." Ha'mim, 132 Wn.2d at 846. The court noted that

age "could be relevant" to the statutory mitigating factor that the defendant's

capacity to appreciate the wrongfulness of her conduct or conform her behavior to

the law was impaired. Ha'mim, 132 Wn.2d at 846. But the court noted that the

trial court had made "no such finding." Ha'mim, 132 Wn.2d at 846.

       The court also stated that age alone could not be a nonstatutory mitigating

factor. Ha'mim, 132 Wn.2d at 847. The court held that "the age of a young adult

defendant is not alone" a "substantial and compelling" factor. Ha'mim, 132 Wn.2d

at 847. It also held that the "age of the defendant does not relate to the crime or

the previous record of the defendant." Ha'mim, 132 Wn.2d at 847.

       In 2005, in State v. Law, the Supreme Court engaged in a detailed


6The defendant was challenging the trial court's imposition of an exceptional sentence
above the standard range, but cited statutes for mitigating factors justifying a sentence
below the standard range, specifically former RCW 9.94A.390(1)(e)(1992)(recodified as
RCW 9.94A.535(1)(e)). Scott, 72 Wn. App. at 218-19.
                                           7
No. 75129-8-1 /8

discussion of what may constitute a nonstatutory factor justifying a sentence below

the standard range. 154 Wn.2d 85, 94-98, 110 P.3d 717 (2005). The court

explained that it had "rejected the use of age as a mitigating factor" in Ha'mim.

Law, 154 Wn.2d at 98. The court quoted Ha'mim's conclusion that the defendant's

age does not relate to the crime or record of the defendant. Law, 154 Wn.2d at 98

(quoting Ha'mim, 132 Wn.2d at 847). The court went on to state that, in Ha'mim,

it had held "that this personal factor was not a substantial and compelling reason

to impose an exceptional sentence." Law, 154 Wn.2d at 98.

       A decade later, in O'Dell, the Supreme Court revisited "the same question"

it had considered in Ha'mim. 183 Wn.2d at 689. It determined that Ha'mim had

correctly held that courts may not impose an exceptional sentence on the basis of

youth unless there is evidence "that youth in fact diminished a defendant's

culpability." O'Dell, 183 Wn.2d at 689. But the court noted that, in Ha'mim, it had

not had the benefit of studies about "adolescents' cognitive and emotional

development," which have since established "a clear connection between youth

and decreased moral culpability for criminal conduct." O'Dell, 183 Wn.2d at 695.7

       Accordingly, the Supreme Court disapproved of its earlier, "sweeping

conclusion" that "[t]he age of the defendant does not relate to the crime or the

previous record of the defendant." O'Dell, 183 Wn.2d at 695(alteration in original)

(quoting Ha'mim, 132 Wn.2d at 847). The court held that, while "age is not a per



7 The studies the court relied on were essential to the United States Supreme Court's
decisions in Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 161 L. Ed. 2d 1
(2005); Graham v. Florida, 560 U.S. 48, 71, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010);
and Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2465, 183, L. Ed. 2d 407 (2012).
O'Dell, 183 Wn.2d at 685, 691, 695.
                                          8
No. 75129-8-1 / 9

se mitigating factor," it was "far more likely to diminish a defendant's culpability

than" the court had implied in Ha'mim. O'Dell, 183 Wn.2d at 695-96. The court

concluded that "in particular cases" youth could amount to a substantial and

compelling factor justifying a sentence below the standard range. O'Dell, 183

Wn.2d at 696. The court explicitly disavowed any reasoning in Ha'mim that was

inconsistent with its opinion. O'Dell, 183 Wn.2d at 696.

       When describing how the defendant might be able "to establish that youth

diminished his capacities for purposes of sentencing," the court explained that the

defendant would not need to present expert testimony. O'Dell, 183 Wn.2d at 697.

The court cited examples from the record of the type of "lay testimony that a trial

court should consider," including family member depictions of the defendant as an

"immature kid," descriptions of the defendant's hobbies, including hiking and

playing video games, and the way he interacted with his family. O'Dell, 183 Wn.2d

at 697-98. All of the examples related to the defendant's immaturity, rather than

the specific circumstances of his crime or criminal record. O'Dell, 183 Wn.2d at

697-98.

       This court has not yet considered whether O'Dell announced a significant

change in the law for purposes of personal restraint petitions. But, in State• v.

Ronquillo, this court recognized that O'Dell has impacted the use of youth as a

mitigating factor. 190 Wn. App. 765, 780-83, 361 P.3d 779(2015).

       In that case, Brian Ronquillo, a minor defendant who had been sentenced

in adult court, sought an exceptional sentence based on his youthfulness, relying




                                         9
No. 75129-8-1 / 10

on research on juvenile brain development.8 Ronquillo, 190 Wn. App. at 773-74.

The trial court found the evidence "'incredibly compelling" but, after reviewing

Ha'mim and Law, refused to grant the exceptional sentence. 190 Wn.App. at 773-

74. The trial court explained that it felt "'constrained" by the law. Ronquillo, 190

Wn. App. at 773-74. As the Court of Appeals explained, at the time of Ronquillo's

sentencing, his "youthfulness was not, by itself, a mitigating factor that could justify

a downward departure." Ronquillo, 190 Wn. App. at 771 (citing Law, 154 Wn.3d

at 97-98; Ha'mim, 132 Wn.2d at 847).

       But, while Ronquillo's appeal to this court was pending, the Supreme Court

issued its opinion in O'De11.8 This court concluded that O'Dell had "significantly

revised the interpretation of Ha'mim relied on by the trial court." Ronquillo, 190

Wn. App. at 780-81. Noting that O'Dell did not "overrule Ha'mim," the Court of

Appeals nevertheless concluded that, following O'Dell, trial courts may consider

age "as a possible mitigating factor." Ronquillo, 190 Wn. App. at 783 (quoting

O'Dell, 183 Wn.2d at 689).

       Ronquillo demonstrates that, until O'Dell, defendants could                  not

meaningfully argue that youthfulness was a mitigating factor under RCW

9.94A.535(1)(e) or as a nonstatutory mitigating factor. O'Dell did not technically

overrule Ha'mim, but the court notes it was addressing the same question it had

already addressed in Ha'mim, and it came to a different conclusion. It would be


8 This was a resentencing. The court had already remanded the case once for a new
sentencing hearing because the defendant's original sentence relied on a miscalculation
of Ronquillo's offender score. Ronquillo, 190 Wn. App. at 770-71.
9 Ronquillo's resentencing was on March 21, 2004. Ronquillo, 190 Wn. App. at 773.
O'Dell was decided on August 13, 2015. 183 Wn.2d at 680. Ronquillo was decided by
this court on October 26, 2015. 190 Wn. App. at 765.
                                          10
No. 75129-8-1 / 11

disingenuous to suggest that O'Dell merely clarified Ha'mim's holding or applied

settled law to new facts.

       Law and Ha'mim together effectively prevented trial courts from considering

whether a young adult defendant's age diminished his or her culpability unless

something else tied the defendant's youth to the crime itself. Under O'Dell, trial

courts are allowed to consider the defendant's youth and immaturity. In short,

O'Dell approved of the argument that the earlier cases characterized as absurd.

Thus, unlike Flippo, Light-Roth could not "certainly request" an exceptional

sentence based on his youth. Flippo, 187 Wn.2d at 112. Accordingly, we conclude

that O'Dell announced a significant change in the law.

       Applied Retroactively

       "Whether a changed legal standard applies retroactively is a distinct inquiry

from whether there has been a significant change in the law." In re Pers. Restraint

of Tsai, 183 Wn.2d 91, 103, 351 P.3d 138(2015). We conclude that O'Dell should

be applied retroactively because it announced a new interpretation of the SRA.

       "Once the Court has determined the meaning of a statute, that is what the

statute has meant since its enactment." In re Pers. Restraint of Johnson, 131

Wn.2d 558, 568, 933 P.2d 1019 (1997). Accordingly, that meaning applies

retroactively. See Johnson, 131 Wn.2d at 568; see also In re Pers. Restraint of

Hinton, 152 Wn.2d 853, 859-60, 100 P.3d 801 (2004).

       O'Dell announced a change in the interpretation of the SRA, specifically

RCW 9.94A.535(1) and RCW 9.94A.535(1)(e).1° 183 Wn.2d at 694-96. Because


'° In O'Dell, the court relies on studies cited in United States Supreme Court cases
discussing evolving standards for the treatment of juveniles under the Eight Amendment,
                                          11
No. 75129-8-1 /12

the SRA is a statute, courts should apply this new interpretation retroactively.

       Material to Sentence

       Light-Roth argues that the change in the law announced in O'Dell is material

to his sentence because he was only 19 years old when he committed his crime

and because his crime bears many hallmarks of immaturity. The State argues

that, even if O'Dell announced a significant change in the law, it is not material to

Light-Roth's sentence because Light-Roth did not seek an exceptional sentence

downward based on his youth.

       It is unreasonable to hold that a case announced a significant change

because it made a new argument available to a defendant, and then hold that the

change is not material because the defendant did not make that argument. We

conclude that the change in the law O'Dell announced was material to Light-Roth's

sentence because, under O'Dell, Light-Roth can now argue that his youth justified

an exceptional sentence below the standard range.

       To qualify for the exception to the one-year time bar, the change in the law

must be material to the defendant's sentence. RCW 10.73.100(6). In State v.

Scott, the court addressed whether Miller, which held "that a sentence of life

without parole is unconstitutional for most juvenile offenders," was material to the

sentence of a juvenile defendant who had received a de facto life sentence. 196

Wn. App. 961, 963, 385 P.3d 783(2016), review granted, No. 94020-7, 2017 WL

1736726 (Wash. May 3, 2017). The parties agreed that Miller had announced a



but O'Dell does not base its departure from Ha'mim on Eighth Amendment grounds. See
183 Wn.2d at 695 (citing Miller, 567 U.S. 460; Roper, 543 U.S. 551; Graham, 560 U.S.
48).
                                         12
No. 75129-8-1 /13

significant change in the law and that it applied retroactively. Scott, 196 Wn. App.

at 965.

       The State argued that Miller was not material to the defendant's sentence

because the trial court had imposed the sentence as an exercise of discretion, not

as a result of a mandatory scheme. Scott, 196 Wn. App. at 970. The Court of

Appeals disagreed, holding that because the sentencing judge "did not

meaningfully consider[the defendant's]age as a mitigating factor," the defendant's

sentence fell "squarely within the constitutional concerns expressed in Miller."

Scott, 196 Wn. App. at 970.

       But the State also argued that Miller was not material to the defendant's

sentence because any violation had been cured by the legislature's passage of a

Miller-fix statute. Scott, 196 Wn. App. at 970-71. Under the Miller-fix statute, "a

juvenile offender is presumptively eligible for early release after serving no less

than 20 years." Scott 196 Wn. App. at 971 (citing RCW 9.94A.730). The court

agreed with the State, holding that Miller was not material to the defendant's

sentence because, under the Miller-fix statute, the defendant was "no longer

serving a sentence that is the equivalent of life without parole." Scott, 196 Wn.

App. at 971-72.

       By contrast, in In re Pers. Restraint of Rowland, the court held that a change

in how the court compares convictions from other states was material to a

petitioner's conviction because it led to a miscalculation of the petitioner's offender

score, even though the trial court imposed an exceptional sentence above the

standard range. 149 Wn. App. 496, 507, 204 P.3d 953(2009).


                                          13
No. 75129-8-1 / 14

       Here, Light-Roth received the maximum standard range sentence for his

conviction of murder in the second degree. He was only 19 years old at the time

he committed the offense. Light-Roth's actions immediately following his arrest,

including attempting to escape via the ceiling of his interrogation room,

demonstrate impulsivity and immaturity."

       Further, Light-Roth's mother declared that, as a 19-year-old, Light-Roth "still

continued to exhibit substantial impulsivity and a limited ability to manage his

behavior by thinking through the consequences of his actions and by being drawn

to risky and exciting behaviors."12 Light-Roth's cousin declared that Light-Roth

was "stunted socially and emotionally due to unintentional neglect," and that Light-

Roth was a "troubled teenager" struggling to "fit in and be accepted by his peers."13

Their statements are similar to the examples of "lay testimony" the Supreme Court

provided in O'Dell for the purpose of "evaluating whether youth diminished a

defendant's culpability." See, 183 Wn.2d at 697-98.

      As the State points out, Light-Roth did not request an exceptional sentence

downward on the basis of his youthfulness. But, as discussed above, Light-Roth

could not have successfully argued that his youthfulness entitled him to an

exceptionally lenient sentence until O'Dell. Therefore, Light-Roth has shown that,

had O'Dell been decided before he was sentenced, he could have argued that his

youthfulness justified an exceptional sentence below the standard range. We




11 Light-Roth, 2007 WL 2234613 at *4.
12 PRP App. C at 1.
13 PRP App. C at 3.

                                         14
No. 75129-8-1 /15

conclude that the denial of an opportunity to seek an exceptional sentence is

sufficient to make O'Dell material to Light-Roth's sentence.

       Accordingly, we conclude that Light-Roth's petition is based solely on the

ground that there has been a significant, material change in the law that applies

retroactively. Thus, the petition falls into the exception for the one-year time bar

and is timely.

                                Barred as Successive

       The State argues that, in addition to being untimely, this court may not

address the merits of Light-Roth's petition because it is successive. But the State

appears to concede that, if O'Dell announced a significant change in the law, that

change would amount to good cause to excuse Light-Roth's otherwise successive

petition.

       "If a person has previously filed a petition for personal restraint, the court of

appeals will not consider the petition unless the person certifies that he or she has

not filed a previous petition on similar grounds, and shows good cause why the

petitioner did not raise the new grounds in the previous petition." RCW 10.73.140.

"A significant intervening change in the law resulting from a court decision satisfies

the good cause requirement." In re Pers. Restraint of Flippo, 191 Wn. App. 405,

409, 362 P.3d 1011 (2015), aff'd, 187 Wn.2d 106, 385 P.3d 128 (2016); see also

State v. Brown, 154 Wn.2d 787, 794, 117 P.3d 336(2005).

       This is Light-Roth's second personal restraint petition. Thus, we should not

consider it unless Light-Roth can show good cause. But, as discussed, O'Dell

announced a significant and material change in the law. Therefore, Light-Roth has


                                          15
No. 75129-8-1 / 16

shown good cause, and, his petition is not barred as successive.

         Because we conclude that Light-Roth's petition is timely and not

successive, we reach the merits of the petition.

                                    Miscarriage of Justice

         In its response, the State appears to concede that, if the petition is timely,

Light-Roth is entitled to a resentencing hearing. The State asserts, "It is important

to note, that under Light-Roth's reasoning, every offender of an arguably youthful

age who was previously sentenced would now be entitled to a new sentencing

proceeding."14 We treat this argument as a concession that Light-Roth is entitled

to relief if we reach the merits of his petition.

         "When nonconstitutional grounds are asserted for relief from personal

restraint, the petitioner must establish that he is unlawfully restrained, and that the

unlawful restraint is due to a fundamental defect that inherently results in a

miscarriage of justice." Rowland, 149 Wn. App. at 507.

         Light-Roth's claimed defect is that he was precluded from arguing to the

trial court that his youth was a mitigating factor that it could consider. In O'Dell,

the court concluded that failing to consider youth was a failure to exercise

discretion, which was "itself an abuse of discretion subject to reversal." 183 Wn.2d

at 697. The court relied on State v. Grayson, in which the court held that a court

abused its discretion by failing to consider a defendant's request for a drug

offender sentencing alternative. O'Dell, 183 Wn.2d at 697 (citing Grayson, 154

Wn.2d 333, 342, 111 P.3d 1183(2005)). In both cases, the court remanded for a



14   Resp. to PRP at 9.
                                           16
No. 75129-8-1 / 17

new sentencing hearing.15 O'Dell, 183 Wn.2d at 697; Grayson, 154 Wn.2d at 342-

43. Thus, the trial court's failure to consider Light-Roth's youth as a mitigating

factor is reversible error.

       This court has previously suggested that a sentencing error may be

harmless in a personal restraint petition context. In Rowland, this court addressed

the merits of a petition after concluding that it fell under the exception to the one-

year time bar. 149 Wn. App. at 507. The trial court had improperly calculated the

petitioner's offender score before imposing an exceptional sentence. Rowland,

149 Wn. App. at 508. The court held that, under those circumstances,"remand is

the remedy unless the record clearly indicates the sentencing court would have

imposed the same sentence anyway." Rowland, 149 Wn. App. at 508. But the

State has made no argument that any error in this case was harmless.

       We grant Light-Roth's petition and remand for resentencing.




WE CONCUR:




                                                                Cm,,J

15 Light-Roth's situation is also distinguishable because, in each case, the party
sought the relief the trial court failed to consider granting. Here, neither party appears to
suggest that Grayson or O'Dell hold that, going forward, a court must consider an
exceptional sentence below the standard range for young adult defendants, regardless of
whether the defendant requests one.
                                             17
