        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint       )     No. 751 94-8-I (Consolidated with
of:                                           )     No. 75383-5-I)

JAMES HINTON,                                 )     DIVISION ONE

                      Petitioner.             )     UNPUBLISHED OPINION



__________________________________           )      FILED: December 30, 2019

        HAZELRIGG-HERNANDEZ, J.       —   James Hinton seeks resentencing, arguing

 that recent changes in the law surrounding sentencing for juvenile offenders have

 rendered his sentence unconstitutional. Because he has not made a prima facie,

 threshold showing that his sentence would have been different under the current

 state of the law, he is not entitled to collateral relief. We deny his petition.


                                          FACTS

        In 1998, James Hinton was charged with murder in the second degree,

 attempted murder in the second degree, and assault in the first degree. Although

 he was 17 years old when he committed the crimes, he was charged, tried, and

 convicted as an adult.

        At the sentencing hearing, the State detailed the applicable standard

 sentence ranges:
No. 751 94-8-1/2

              The standard range for Mr. Hinton on Count us 154 to 254
       months, plus 60 months for the firearm, for a total standard range of
       214 to 314 months.
              On Count 2, the attempted murder, his range is 92.25 to 165
       months, plus 60 months for the deadly weapon, for a total of 152.25
       to 225 months.
              Both terms run consecutively, and the firearm enhancements
       run consecutively to the underlying crimes as well as to each other.
              Count 3, the assault in the first degree, merges with Count 2
       and is not counted for purposes of sentencing.

The State recommended that the court impose sentences in the middle of the

standard ranges for a total of 453 months confinement. Hinton requested that the

court take into account his social history and lack of ‘substantive counseling” or

“intensive alcohol/drug treatment” despite his involvement in the juvenile justice

system. He argued that sentences at the low end of the applicable sentence

ranges would “impose an appropriate and severe punishment for these crimes.”

       After hearing statements from the victims’ families and from Hinton, the

court remarked to Hinton that “[t}he crimes that you’ve committed are called ‘very

serious crimes.’ That’s what the Legislature has called them, and certainly, in

whatever civilization we look at, there’s hardly anything that is more serious and

more devastating than the taking of human life.” When announcing its ruling, the

court stated:

               Again, there is no way to express what a standard sentence
       should be for a crime that has hurt people so much. Your family is
       terribly hurt by this, and obviously Ms. Nannauck and Mr. Pashinski’s
       families are both changed forever because of this.
               At the same time, because of this, given your youth, I am
       concerned that you’ve never had a chance to grow up and you’ve
       never had a chance to change the many bad choices that you’ve
       made in the course of your life, which has resulted in a very high
       standard range to begin with.
               I don’t consider there’s mercy; there’s no room for mercy in
       this case; but at the same time I do have to accept that you are the


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No. 75194-8-1/3

        person that you are and that the terribly bad choices and bad
        judgment that you’ve shown in many respects, including on this
        fateful day, are partly the result of your youth.

The court imposed a sentence at the midpoint of the standard range on count one

and slightly below the midpoint of the standard range for count two, plus the firearm

enhancements, for a total of 444 months confinement. Hinton’s convictions were

affirmed on appeal to this court in 2001.

        In 2016, Hinton filed a motion for relief from judgment under CrR 7.8 in the

superior court. The superior court found that the CrR 7.8 motion was time-barred

and transferred it to this court for consideration as a personal restraint petition.

        After Hinton’s opening brief and the State’s response brief had been

submitted, the State moved for a stay pending the resolution of State v. Scott1 in

the Washington Supreme Court, which concerned a similar issue. The stay was

granted. Following the resolution of Scott, the stay was lifted and the briefing

schedule resumed. After Hinton had filed his reply brief and oral argument had

been scheduled, the State sought another stay pending the resolution of In re

Personal Restraint of Meippen2 in the Washington Supreme Court. The case was

stayed until Meippen was decided, at which point the parties were directed to

submit supplemental briefing addressing the effect of Meippen on the issues in this

case.




        1190 Wn.2d 586, 416 P.3d 1182 (2018).
        2193 Wn.2d 310, 440 P.3d 978 (2019).


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                                      ANALYSIS

       Hinton contends that his sentence violates the Eighth Amendment of the

U.S. Constitution and article I, section 14 of the Washington Constitution because

the sentencing court did not take his age and youthful characteristics into

consideration at sentencing.     Because cases decided after he was sentenced

announced the substantive rule that sentencing courts must consider these factors

and this change applies retroactively, Hinton argues, he is serving an unlawful

sentence.

       Generally, a defendant may not collaterally attack a judgment more than

one year after the judgment becomes final. RCW 10.73.090. However, there are

exceptions to this time limit. RCW 10.73.100. Under one of these exceptions, the

time limit does not apply if a petitioner can show that there has been a significant

change in the law, that the change is material to their conviction or sentence, and

that the change applies retroactively. RCW 10.73.100(6).

       To obtain relief on a personal restraint petition, a petitioner must show both

error and a threshold showing of harm. In re Pers. Restraint of McNeil, 181 Wn.2d

582, 589, 334 P.3d 548 (2014).           They bear the burden of showing by a

preponderance of the evidence that they were actually and substantially prejudiced

by the claimed error. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671—72, 101

P.3d 1 (2004). This requires that the petitioner show ‘“not merely that the errors

at his trial created a possibility of prejudice,’ but that the outcome would more likely

than not have been different had the alleged error not occurred.” In re Meippen,




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193 Wn.2d at 315—16 (emphasis omitted) (quoting In re Pers. Restraint of Hagler,

97Wn.2d 818, 825, 650 P.2d 1103 (1982)).

       Relatively recently, the United States Supreme Court has begun restricting

permissible sentences for juvenile offenders.     First, in Roper v. Simmons, the

Supreme Court found that the Eighth Amendment forbids imposing the death

penalty on juvenile offenders under the age of 18. 543 U.S. 551, 568, 125 S. Ct.

1183, 161 L. Ed. 2d 1 (2005). The Court recognized that certain differences

between juvenile and adult offenders make it difficult to conclude with any certainty

that a juvenile belongs in the category of the most serious offenders who are

subject to the death penalty. j~ç[~ at 569—70.

       In Graham v. Florida, the Court relied on these same principles to find that

the Eighth Amendment also forbids imposition of a life sentence without parole on

a juvenile defendant who committed a crime other than homicide. 560 U.S. 48, 74—

75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). However, Graham made clear that

States were not required “to guarantee eventual freedom to a juvenile offender

convicted of a nonhomicide crime.” j.çj. at 75. Although the State was not permitted

to impose a sentence of life without parole at the outset for these offenders and

must give them “some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation,” the Court acknowledged that some

offenders would not prove to be suitable for release. k1.

       The Court next banned mandatory sentences of life without parole for

juvenile homicide offenders in Miller v. Alabama, concluding that a sentencing

court must be allowed to take an offender’s youth into account. 567 U.S. 460, 474,



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No. 75194-8-1/6

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).          This decision did not impose a

categorical bar on life sentences without the opportunity for parole for juveniles,

but the Court noted that “appropriate occasions for sentencing juveniles to this

harshest possible penalty will be uncommon” in light of this line of cases. j~çj~ at

479.

       The Court later clarified that Miller had created a new substantive rule that

applied retroactively. Montgomery v. Louisiana,    —   U.S.   —‘   136 S. Ct. 718, 732,

193 L. Ed. 2d 599 (2016). Although a new constitutional rule of criminal procedure

generally does not apply to convictions that were final when the rule was

announced, “courts must give retroactive effect to new substantive rules of

constitutional law.” j~ at 728. Substantive rules “set forth categorical constitutional

guarantees that place certain criminal laws and punishments altogether beyond

the State’s power to impose.” hi. at 729. This includes “rules prohibiting a certain

category of punishment for a class of defendants because of their status or

offense.” Id. at 728 (quoting Penryv. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934,

106 L. Ed. 2d 256 (1989) (abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S.

Ct. 2242, 153 L. Ed. 2d 335 (2002)). By contrast, procedural rules regulate the

manner by which the defendant’s culpability is determined. j.~ at 730.

       The Court reasoned that Miller rendered                life without parole an

unconstitutional penalty for an entire class of defendants—those whose crimes

reflect the transient immaturity of youth—by determining that this sentence is

“excessive for all but ‘the rare juvenile offender whose crime reflects irreparable

corruption.” Id. at 734 (quoting Miller, 567 U.S. at 479—80).          Although Miller



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No. 75194-8-1/7

included a procedural component that required the sentencing court to consider

the offender’s youth, the Court described this component of the holding as “a

procedural requirement necessary to implement a substantive guarantee.” j4~

       Washington courts have further developed this case law. This court found

that Miller’s application was not limited to “only a literally mandated life sentence.”

State v. Ronciuillo, 190 Wn. App. 765, 775, 361 P.3d 779 (2015).             Ronguillo

required sentencing courts to take a juvenile offender’s youth into account before

imposing a de facto life sentence.        The Washington Supreme Court adopted

this rule in State v. Ramos, holding that “every juvenile offender facing a literal or

de facto life-without-parole sentence” was entitled to have their youth taken into

consideration before a sentence was imposed. 187 Wn.2d 420, 434—35, 387 P.3d

650 (2017).

       The court went further in State v. Houston-Sconiers, holding that

“sentencing courts must have complete discretion to consider mitigating

circumstances associated with the youth of any juvenile defendant.” 188 Wn.2d 1,

21, 391 P.3d 409 (2017).       This case required sentencing courts to “consider

mitigating qualities of youth” regardless of the crime charged or expected length of

the sentence. ki.

       The Washington Supreme Court has not yet definitively stated whether

Houston-Sconiers constitutes a significant change in the law that applies

retroactively. Although determining retroactivity has historically been an early step

in analyzing a collateral attack based on a claimed change in the law, the court

avoided the question when it decided In re Meippen. 193 Wn.2d at 317. In this



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No. 751 94-8-1/8

recent case, the court held that the defendant had not shown “by a preponderance

of the evidence that his sentence would have been shorter if the trial court had

absolute discretion to depart from the SRA at the time of sentencing.” ~ at 312.

Because Meippen had not met this “threshold, prima facie burden,” the court

reasoned that it did not need to determine whether the case fell within an exception

to the time bar. k~. at 315.

       This case shares many significant facts with Mei~pen.         Like Meippen,

Hinton requested a sentence at the bottom of the standard range, which the court

elected not to impose. ki. at 313. Accordingly, ‘[t]he trial court already had the

discretion to impose a lesser sentence but declined to do so.” ki. at 317. The

Supreme Court found that Meippen had not presented any evidence that the trial

court would have imposed a lesser sentence if it had the discretion to depart from

the standard ranges. ki. Similarly, although the sentencing court remarked that

Hinton’s youth may have been a factor in his “terribly bad choices and bad

judgment,” it did not indicate any desire to depart from the standard sentence

ranges and imposed mid-range, rather than low-end, sentences.

       There are also some differences between these two cases. In Meippen,

defense counsel argued that the defendant’s age, immaturity, and failure to

appreciate the consequences of his actions made a low-end sentence appropriate.

Id. at 313, 316. The sentencing court disagreed, stating that it found his actions

cold, calculated, and showing extreme indifference toward another human being.

ki. at 313. The Supreme Court took this to mean that the sentencing court “clearly

intended to impose a sentence at the top of the standard range despite Meippen’s



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No. 75194-8-1/9

youth.” jçj~. at 317. Hinton did not explicitly argue his youth as a mitigating factor,

and therefore it is not clear that the court considered this aspect when imposing a

mid-range sentence.

       Although the majority in Meippen “save[d] the question [of Houston

Sconiers’ retroactivity] for another day,” the dissent stated that the question should

have been answered before the court reached the issue of prejudice. kzl. at 318

(alterations in original) (Wiggins, J., dissenting). The four dissenting justices also

indicated that they would find Houston-Sconiers to apply retroactively on collateral

review. ~ Division Two of this court recently published an opinion for In re

Personal Restraint of Marshall, in which it acknowledged the Supreme Court’s

avoidance of this issue in Meippen but appeared to follow the analytical steps

recommended in the Meippen dissent. No. 49302-1-Il, slip op. at 3 (Wash. Ct.

App. Sept. 24, 2019), https://www.courts.wa.gov/opinions/pdf/D2%2049302-1             -




lI%2oPublished%200pinion.pdf.         However, unlike the dissenting justices in

Meippen, Division Two held that Houston-Sconiers stated a procedural rule that

did not apply retroactively. In re Marshall, slip op. at 1—2.

       Although we agree that the retroactivity issue should be addressed first, our

review of this case is constrained by the analysis in Meippen. Because we have

no Supreme Court authority on which to rely, we assume without deciding that

Houston-Sconiers constituted a significant change in the law material to Hinton’s

sentence that applies retroactively so that we may reach the issue of prejudice.

       Despite some factual differences, this case is largely analogous to Meippen.

Like Meippen, the sentencing court in this case chose not to exercise its discretion



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No. 75194-8-1/10

to impose low-end sentences within the standard ranges. Accordingly, Hinton has

not shown by a preponderance of the evidence that he would have received a

shorter sentence if the court had absolute discretion to depart from the standard

sentence ranges. Because he has not made a prima facie showing of prejudice,

he has not met his burden. Hinton’s petition is denied.

      Denied.




WE CONCUR:




   ~IA                                                              4/




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