                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       October 15, 2019



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 In the Matter of the                                              No. 52962-9-II
 Personal Restraint of

 DALE SCOTT MADDEN,

                               Petitioner.
                                                            UNPUBLISHED OPINION



       GLASGOW, J. – Dale Madden seeks relief from personal restraint imposed following his

2017 guilty plea to first degree assault, with a firearm enhancement, and second degree unlawful

possession of a firearm. We conclude that the petition was timely, and we deny the petition.

                                  FACTUAL BACKGROUND

       In the course of a derailed Xanax purchase, Madden drew a gun and fired multiple rounds

into the vehicle driven by his suppliers, striking one person in the jaw. At the time, Madden was

17 years old and had previously been convicted of two juvenile felony nonviolent offenses and

four juvenile misdemeanors. Due to his criminal history, Madden was subject to a standard

sentencing range of 111 to 147 months for the first degree assault charge, plus a 60-month firearm

enhancement, and 4 to 12 months for the second degree unlawful possession of a firearm charge.

       Prior to sentencing, Madden requested an exceptional sentence below the standard range,

based on his youth and the difficulties he faced while growing up. Specifically, Madden requested

the sentence he would have received if he were sentenced as a juvenile: 35.6 months in

confinement. The State opposed the exceptional sentence downward, arguing that it had already

taken Madden’s youth into account when dismissing additional counts of first degree assault and
No. 52962-9-II


attempted first degree robbery. Under the original list of charges arising from “essentially

undisputed” facts, Madden faced 378 to 450 months in prison. Pet., App. D at 6.

       The State requested a high-end standard range sentence of 207 months (147 months plus

the 60-month firearm enhancement). The State also noted that there were two victims of Madden’s

assault and that one victim had been shot in the jaw.

       The trial court imposed a low-end standard range sentence of 171 months (111 months plus

the 60-month firearm enhancement). Madden filed this timely personal restraint petition, asserting

that the trial court failed to meaningfully consider his youth as a mitigating factor and consequently

violated the Eighth Amendment to the United States Constitution, article I, section 14 of the

Washington Constitution, and our Supreme Court’s holdings in State v. O’Dell, 183 Wn.2d 680,

358 P.3d 359 (2015), and State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).

                                            ANALYSIS

       Madden’s judgment and sentence was entered in March 2018, making his February 2019

petition timely filed. RCW 10.73.090(3)(a).

       Madden purports to raise “‘issues that were afforded no previous opportunity for judicial

review’” and claims that his sentence constitutes unlawful restraint. Pet. at 9 (internal quotation

marks omitted) (quoting In re Pers. Restraint of Pierce, 173 Wn.2d 372, 377, 268 P.3d 907

(2011)). The lower burden of proof for issues that were not previously subject to judicial review

applies where there has been no opportunity for a prior appeal, for example where a petitioner

challenges prison disciplinary decisions or Department of Corrections sanctions. E.g., In re Pers.

Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031 (2016); In re Pers. Restraint of Dalluge, 162

Wn.2d 814, 817, 177 P.3d 675 (2008). Madden had an opportunity to directly appeal the trial


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No. 52962-9-II


court’s sentencing decision. Therefore, he must meet the same burden as every other personal

restraint petitioner seeking collateral review of a trial court’s alleged error.

        Granting a personal restraint petition is an extraordinary remedy, and the petition must

meet a high standard. In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450 (2013);

In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011). If the petitioner

claims constitutional error, they must demonstrate that they were actually and substantially

prejudiced as a result; alternatively, they must prove a fundamental defect of a nonconstitutional

nature resulting “‘in a complete miscarriage of justice.’” In re Pers. Restraint of Cook, 114 Wn.2d

802, 811, 792 P.2d 506 (1990) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7

L. Ed. 2d 417 (1962)). The petitioner must prove error by a preponderance of the evidence. In re

Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).

        Madden argues that the trial court abused its discretion by imposing a standard range

sentence without considering youth as a basis for a reduced sentence under O’Dell, 183 Wn.2d at

696. Madden similarly argues that his standard range sentence violates the Eighth Amendment

under Houston-Sconiers, 188 Wn.2d at 24, and article I, section 14 because the trial court did not

“meaningfully consider” his youth as a mitigating factor supporting an exceptional sentence below

the standard range. Pet. at 21.

        We conclude that because the trial court meaningfully considered Madden’s youth, no error

or abuse of discretion occurred. An abuse of discretion in sentencing occurs when, under the

circumstances presented to the court, no reasonable person would adopt the trial court’s position

or the trial court’s decision is based on untenable grounds. State v. Ferguson, 142 Wn.2d 631,

651, 15 P.3d 1271 (2001). In both O’Dell and Houston-Sconiers, the trial courts believed their


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No. 52962-9-II


discretion was limited. O’Dell, 183 Wn.2d at 685-86; Houston-Sconiers, 188 Wn.2d at 20-21.

Our Supreme Court disagreed. In O’Dell, the court held “a trial court must be allowed to consider

youth as a mitigating factor,” but specifically recognized “age is not a per se mitigating factor

automatically entitling every youthful defendant to an exceptional sentence.” 183 Wn.2d at 695-

96. In Houston-Sconiers, the court noted that the Eighth Amendment mandates courts recognize

that “children are different.” 188 Wn.2d at 18; see also Miller v. Alabama, 567 U.S. 460, 481, 132

S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Due to this difference, trial courts “must have absolute

discretion” to impose sentences below the standard applicable range and with or without otherwise

mandatory sentence enhancements when sentencing a juvenile in adult court. Houston-Sconiers,

188 Wn.2d at 9. The court went on to clarify that “[t]rial courts must consider mitigating qualities

of youth at sentencing,” including a juvenile’s age, immaturity, and failure to appreciate risks and

consequences. Id. at 21.

       Neither case mandates exceptional sentences for juveniles. Rather, trial courts have

discretion to impose a standard range sentence or an exceptional sentence below the standard

range, so long as the trial court meaningfully considers the defendant’s youth as a mitigating factor.

O’Dell, 183 Wn.2d at 696; Houston-Sconiers, 188 Wn.2d at 21. Our Supreme Court recently

reiterated that the Eighth Amendment requires trial courts to have absolute discretion to consider

the mitigating qualities of youth during sentencing; it does not entitle all juvenile defendants

sentenced in adult court to exceptional downward sentences. In re Pers. Restraint of Meippen,

193 Wn.2d 310, 314, 440 P.3d 978 (2019). Showing that the trial court could have imposed a

lower sentence does not by itself raise actual and substantial prejudice. Id. at 317.




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No. 52962-9-II


       Here, before imposing Madden’s sentence, the trial court made extensive remarks

regarding the evidence presented about the impact of Madden’s youth and the considerations

required by Houston-Sconiers. The court explained that it had “to take youthfulness and all of

these surrounding circumstances, like home life and so forth, into consideration in making a

sentencing determination but that it does not in any way dictate a particular result.” Pet., App. D

at 24-25. The court articulated its “discretion to go outside of the standard sentencing range,” and

its “discretion to not impose what we otherwise believe to be mandatory firearm sentencing

enhancements.” Pet., App. D at 25.

       With regard to the facts of this case, the court said,

       This wasn’t, at least as I understand the facts of this case, a situation where a young
       Mr. Madden was unable to stand up to peer pressure. This was not a factual
       circumstance, that, as I understand it, where he couldn’t understand that shooting
       at people, they might get hit, and they might suffer physical injury, or what would
       happen if he pulled the trigger on a gun. This wasn’t a situation where he was
       having problems coping with authority, parents or otherwise.

Pet., App. D at 26.

                Certainly, Mr. Madden had a difficult start in life, being born to someone
       who utilized I believe it was methamphetamine when he was born. And [he] had a
       difficult start in life, no question about it. But at 17 years, 8 months and 20 days,
       especially given his prior behavior and opportunities to change the trajectory of his
       life, I believe he knew the consequences of what he did on June 23, 2017. I think
       he knew it every bit as much as someone who was 18 years, zero months and zero
       days would have, or 25 years and zero months and zero days would have. And I
       believe that the appropriate sentence is a sentence within the standard range
       sentence.

Pet., App. D at 28. The court explicitly acknowledged Madden’s “difficult start in life” but

believed that, three months shy of his eighteenth birthday, Madden could comprehend that firing

a loaded weapon multiple times at an occupied vehicle might cause injury to the occupants. Pet.,

App. D at 28.

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No. 52962-9-II


        Accordingly, we conclude that the trial court did meaningfully consider Madden’s youth

as a mitigating factor before exercising its discretion to impose a low-end standard range sentence,

and it did not abuse its discretion in doing so. The trial court addressed the evidence that Madden

presented regarding his youth as a mitigating factor. Because the trial court meaningfully

considered Madden’s youth, this case presents no violation of the Eighth Amendment or article I,

section 14.

        Madden effectively asks that we reweigh the evidence. We decline to do so. A reasonable

person could come to the same decision as the trial court, and the trial court’s decision was not

based upon untenable grounds. Accordingly, Madden does not establish any error and thus fails

to present any valid grounds for relief from restraint. Nor does he establish actual and substantial

prejudice. We therefore deny his petition.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     GLASGOW, J.
 We concur:



 WORSWICK, J.




 MAXA, C.J.




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