    ^rrE
     IN CLERKS OFFICE
     COURT,smiE OF wASHii^mai                     'This opinion was fiied for record



      CHIEFJUSTTOe
                                                                                       —

                                                        SUSAN L. CARLSON
                                                      SUPREME COURT CLERK




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON




In the Matter ofthe Personal Restraint of               No. 94950-6


KEVIN LIGHT-ROTH,                                       En Banc

                                                                     AUG 0 2 2018
                        Respondent.                     Filed




       MADSEN,J.—^Kevin Light-Roth was convicted of second degree murder in 2004,

and the trial court sentenced him to 335 months' confinement. In an untimely personal

restraint petition (PRP), Light-Roth argued that State v. O'Dell, 183 Wn.2d 680, 358

P.3d 359(2015), constitutes a significant and material change in the law that applies

retroactively to his sentence, excepting him from RCW 10.73.ICG's time bar. In

O'Dell, this court held while "age is not a per se mitigating factor," a sentencing court

"must be allowed to consider youth as a mitigating factor when" relevant. Id. at 695-96.

       The Court of Appeals granted Light-Roth's PRP and remanded for resentencing.

We reverse the Court of Appeals and hold that O'Dell does not provide an exception to

the time bar.
No. 94950-6



                                           FACTS


       On February 5, 2003, Light-Roth, who was 19 years old at the time, shot and

killed Tython Bonnett. At that time, Light-Roth was living with Chris Highley and

dealing methamphetamine. The evening that he was shot, Bonnett came to Light-Roth

and Highley's apartment. Convinced that Bonnett stole his shotgun, Light-Roth

confronted Bonnett and subsequently shot him in the chest. Light-Roth then told Curtis

Stream, another friend who was present and witnessed the murder,"'[I]f you don't want

to be a part of this, you can go ahead and leave. But if you say anything....' Light-Roth

then showed him his gun and made a slicing gesture across his throat." Mot. for Discr.

Review, App. at 23 (alterations in original). Moments later Light-Roth enlisted the help

of Highley to dispose of Bonnett's body. Highley followed Light-Roth's instruction,

though he later testified that he did so only because he feared for his life.

       Hoping to avoid any suspicion, the next morning Light-Roth told Bonnett's

girlfriend that he believed Bonnett had moved to New Mexico. Bonnett's body was

subsequently found and Light-Roth was taken into custody. After detectives interviewed

him, Light-Roth attempted to escape by using a pen to remove his leg shackles and

handcuffs.


       On June 1, 2004, a jury convicted Light-Roth of murder in the second degree

while armed with a firearm and unlawful possession of a firearm. At sentencing, the

State requested a maximum standard range sentence of 335 months' confinement. In

justifying its recommendation the State said.
No. 94950-6



                Here we have a Defendant who basically in cold blood murdered an
       acquaintance, or perhaps even a friend of his, for really no good reason at
       all, if ever you could have a good reason for taking the life of another
       human being.
                After doing so, he demonstrated a complete disregard not only for
       human life but also just a considerable amount of contempt by the manner
       in which he disposed of Tython Bonnett's body and how he conducted
       himself in the six to seven days following the murder.
                There is absolutely nothing redeeming about this man.

Id. at 45. Defense counsel requested that the court "impose the sentence in the

mid to low range." Id. at 50. In support of his request, defense counsel added that

Light-Roth was only 21 years old at the time of sentencing and that attention

deficit disorder "has plagued him throughout his life." Id. at 50-51.

       The court sentenced Light-Roth to 335 months' confinement. The

sentencing judge explained his decision, stating,

       1 am satisfied that Mr. Light-Roth demonstrates classic soeiopathic
       behavior, didn't care about anybody but himself, and 1 am satisfied he is
       dangerous. 1 am satisfied, as 1 pointed out, if he makes it out of prison and
       does not somehow change his life, then he is going to get his third strike, or
       try to escape and be killed by the police or run into somebody who is
       tougher than him who will take his life.
              It is a shame that Mr. Light-Roth at such a young age is basically
       wasting his life. But at this point 1 am satisfied, having listened to the trial,
       and listened to the pre-trial, looking at the record, that Mr. Light-Roth's
       return to society, if he makes it out,. . . needs to be delayed as long as
       possible.

Id. at 57-58.


       The Court of Appeals affirmed thatjudgment and sentence on direct appeal, and

this court denied review on April 30, 2008. The United States Supreme Court

subsequently denied a petition for a writ of certiorari on October 6, 2008. In 2016,
No. 94950-6



Light-Roth filed a PRP, arguing that he was entitled to a resenteneing under O'Dell. The

Court of Appeals granted Light-Roth's PRP in a published decision and remanded for

resenteneing. In re Pers. Restraint ofLight-Roth, 200 Wn. App. 149, 401 P.3d 459

(2017). The State sought review ofthe Court of Appeals decision.

                                        ANALYSIS


       In bringing a PRP,"a petitioner is entitled to full collateral review of a conviction

or sentence ifthe petitioner proves actual prejudice from a constitutional error, or

nonconstitutional error which inherently results in a complete miscarriage ofjustice." In

re Pers. Restraint ofGronquist, 138 Wn.2d 388, 396, 978 P.2d 1083(1999)(citing In re

Pers. Restraint ofCook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)).

       A PRP must not 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). Because Light-Roth filed his PRP more than one year

after his judgment and sentence became final, he must assert solely grounds for relief

exempt from the one-year limit under RCW 10.73.100. In re Pers. Restraint ofAdams,

178 Wn.2d 417, 422, 309 P.3d 451 (2013).

       A petitioner can overcome the one-year time bar under RCW 10.73.100(6) if he

can identify "(1) a [significant] change in the law (2)that is material and (3)that applies

retroactively." In re Pers. Restraint ofColbert, 186 Wn.2d 614, 619, 380 P.3d 504

(2016). There is no requirement in statute or case law that these elements must be
No. 94950-6



considered in a specific order. We can resolve this case by deciding whether our decision

in O'Dell constitutes a "significant change in the law."

       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 "intervening appellate decision

that 'settles a point oflaw without overturning prior precedent' or 'simply applies settled

law to new facts' does not constitute a significant change in the law." Id. at 114-15

(quoting/n re Pers. Restraint ofTuray, 150 Wn.2d 71, 83, 74 P.3d 1194(2003)). A

"significant change in the law" is likely to have occurred if the defendant was unable to

argue the issue in question before publication ofthe intervening decision. Id. at 115. The

pertinent inquiry here is whether our decision in State v. Ha'mim, 132 Wn.2d 834, 940

P.2d 633 (1997), precluded Light-Roth from raising or the trial court from considering

Light-Roth's youthfulness as a mitigating factor to support an exceptional sentence

downward.


       In Ha'mim, the defendant, who was 18 years old at the time of her crime, was

convicted of first degree robbery. Id. at 836. The sentencing court imposed an

exceptional sentence below the standard range, taking into "account the Defendant's age

and the fact she had no prior offenses." Id. at 837. The Court of Appeals reversed. Id. at

838. In affirming the Court of Appeals, this court held that the defendant's "age is not

alone a substantial and compelling reason to impose an exceptional sentence." Id. at 847.
No. 94950-6



While the court held that in general, "[t]he age ofthe defendant does not relate to the

crime or the previous record of the defendant," it also explained that

       {t\he {Sentencing Reform Act of7957] does include afactorfor which age
       could be relevant. RCW 9.94A.390[^] provides a nonexclusive list of
       illustrative factors a court may consider when imposing an exceptional
       sentence and includes as a mitigating factor that 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.390(l)(e).

Id. at 847, 846(emphasis added).

       Eleven years after Light-Roth's sentencing, this court, in O'Dell, again addressed

whether youthfulness may be considered to support a departure from the standard

sentencing range. In O'Dell, the defendant was convicted of second degree rape of a

child. 183 Wn.2d at 683. At sentencing, the defendant requested an exceptional sentence

below the standard range because his youthfulness impaired his '"capacity to appreciate

the wrongfulness of his conduct, or to conform his conduct to the requirements ofthe

law.'" Id. at 685. The sentencing judge denied the defendant's request, holding that

Ha'mim precluded him from considering age as a mitigating factor. Id. This court

reversed, holding that while "age is not a per se mitigating factor automatically entitling

every youthful defendant to an exceptional sentence," a trial court is permitted to

consider youth as a mitigating factor. Id. at 695-96.

       Light-Roth argues this holding is a "significant change in the law" because, prior

to O'Dell,"the argument that youth relates to the crime was unavailable." Suppl. Br. of



 Recodified as RCW 9.94A.535.
No. 94950-6



Light-Roth at 11. Specifically, he argues that Ha'mim "precluded a sentencing court

from considering as a non-statutory mitigating factor a youth's lack of maturity and

impulsiveness based on the notion that they do not relate to a defendant's crime or

culpability." Id. Light-Roth contends Ha'mim's cite to State v. Scott, 72 Wn. App. 207,

866 P.2d 1258 (1993), aff'dsub nom. State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308

(1995), shows that Ha'mim adopted the view that youth could never be considered to

support an exceptional sentence downward. Suppl. Br. ofLight-Roth at 9.

       In Scott, the defendant, who was convicted of second degree murder, argued that

his youthfulness should have been considered at sentencing. Scott, 72 Wn. App. at 218.

The Court of Appeals rejected this argument. Citing the facts ofthe crime, the court

observed that the defendant's argument, that his age limited his '"capacity to appreciate

the wrongfulness of his conduct or to conform his conduct to the requirements ofthe

law,"'"borders on the absurd." Id. The court added that the defendant's conduct

"cannot seriously be blamed on his 'lack ofjudgment' .... Premeditated murder is not a

common teenage vice." Id. at 219(emphasis added). We think Light-Roth reads Scott too

broadly.

       In O'Dell, we stated that Ha'mim

       did not bar trial courtsfrom considering a defendant's youth at sentencing-,
       it held only that the trial court may not impose an exceptional sentence
       automatically on the basis of youth, absent any evidence that youth in fact
       diminished a defendant's culpability.

183 Wn.2d at 689(emphasis added). We explained that Ha'mim did not preclude a

defendant from arguing youth as a mitigating factor but, rather, it held that the defendant
No. 94950-6



must show that his youthfulness relates to the commission of the crime. 132 Wn.2d at

846. In explaining Ha            pointed out that the defendant in Ha'mim had failed to

show that her "capacity to appreciate the wrongfulness of her conduct or to conform it to

the requirements ofthe law were in any way impaired" by her youth. Id. The same is

true ofthe defendant in Scott. Based on the facts there, the court rejected the defendant's

argument because his conduct could not''seriously be blamed on his Tack ofjudgment.'"

Scott, 72 Wn. App. at 219. Neither Scott nor Ha'mim categorically precludes

consideration of youth as a mitigating factor.

       In O'Dell, we reiterated the general proposition relied on in Scott and Ha'mim,

that "age is not a per se mitigating factor." 183 Wn.2d at 695-96. Contrary to

Light-Roth's contentions, RCW 9.94A.535(l)(e) has always provided the opportunity to

raise youth for the purpose of requesting an exceptional sentence downward, and

mitigation based on youth is within the trial court's discretion. Id. at 698-99("We hold

that a defendant's youthfulness can support an exceptional sentence below the standard

range ... and that the sentencing court must exercise its discretion to decide when that

is."). The fact that Light-Roth misinterpreted Ha'mim is of no consequence in

determining whether O'Dell constitutes a "significant change in the law." See Miller,

185 Wn.2d at 116("A 'significant change in the law' requires that the law, not counsels'

understanding ofthe law on an unsettled question, has changed.")

       Light-Roth also argues that O'Dell constitutes a "significant change in the law"

because the court in O'Dell disavowed Ha'mim's reasoning to the extent that it was
No. 94950-6



inconsistent with our decision. Suppl. Br. of Light-Roth at 11. Specifically, O'Dell

explained that youth

       is far more likely to diminish a defendant's culpability than this court
       implied in Ha'mim\ and that youth can, therefore, amount to a substantial
       and compelling factor, in particular cases,justifying a sentence below the
       standard range.

183 Wn.2d at 696. While O'Dell broadened our understanding of youth as it relates to

culpability, it did not alter the court's interepretation ofRCW 9.94A.535. Whether there

has been a "significant change in the law" primarily rests on whether the defendant

'"could have argued this issue before publication ofthe decision.'" In re Pers. Restraint

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

Stoudmire, 145 Wn.2d 258, 264, 36 P.3d 1005 (2001)).

       It is also significant that, m O'Dell, we found the trial court's "failure to exercise

discretion is itself an abuse of discretion subject to reversal." 183 Wn.2d at 697. A trial

court cannot abuse discretion it does not have. If Ha'mim precluded trial courts from

considering youth as a mitigating factor, we would have ruled that it was an error of law

for the trial court to refuse to consider youth in O'Dell.^ See Williams v. Tilaye, 174

Wn.2d 57, 61, 272 P.3d 235(2012)("Statutory interpretation is a question oflaw




^ While the concurrence argues that we did rule it was an error oflaw for the trial court to refuse
to consider youth, our opinion in O'Dell contains no such language. Instead, it appears that the
concurrence is arguing that the trial court's failure to exercise discretion constituted an error of
law. This is a distinction without a difference. The fact that we held the court abused its
discretion, as the concurrence concedes, demonstrates that O'Dell did not create a significant
change in the law. Indeed, it would be odd to find a significant change in the law in O'Dell, and
that the trial court abused its discretion in failing to apply a law that did not yet exist.
No. 94950-6



reviewed de novo")- Here, Light-Roth eould have argued youth as a mitigating faetor, as

he was permitted to do so under Ha'mim?

       Because O'Dell does not constitute a "significant change in the law," we do not

reach whether it applies retroactively or is material to Light-Roth's ease.

                                        CONCLUSION


       We reverse the Court of Appeals, and hold that Light-Roth's PRP is time barred,

as it was filed more than one year after his judgment became final and he is not exempt

from the one-year time limit.




^ Notably,in 2005, the United States Supreme Court, in Roper v. Simmons, 543 U.S. 551, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 (2005), held that it was unconstitutional to impose the death penalty on
individuals under the age of 18. The Court explained that juveniles have a diminished
culpability because they "Tack ... maturity,"' have '"an underdeveloped sense of
responsibility,"' and are "more vulnerable or susceptible to negative influences and outside
pressures," and their character is not as "well formed as that of an adult." Id. at 569-70(quoting
Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)). While Roper
was published after Light-Roth's sentence, it was published before his 2007 appeal. State v.
Light-Roth, noted at 139 Wn. App. 1093 (2007). Even assuming Ha'mim precluded Light-Roth
from arguing youth as a mitigating factor, which it did not, Light-Roth still could have raised the
argument on appeal by invoking Roper. He did not.

                                                10
No. 94950-6




WE CONCUR:




 ^(xXa Vma^^          7^




                \/   D^.OhjL^^ R I*
  53^




               11
In re Pers. Restraint ofLight-Roth




                                       No. 94950-6


       Gonzalez, J.(concurring in result)—I concur with the majority that Kevin

Light-Roth is entitled to relief only if he can show his personal restraint petition

falls within an exception to the one-year time bar. See RCW 10.73.090. One

exception to the time bar is a significant, material, retroactive change in the law.

RCW 10.73.100(6). Light-Roth contends that the rule we articulated in State v.

O'Dell, 183 Wn.2d 680, 358 P.3d 359(2015) meets these requirements. O'Dell is

significant and retroactive. However, since it is not material to Light-Roth's

conviction, I concur in result only.


       In O'Dell, we held that a sentencing court "must be allowed to consider

youth as a mitigating factor when" relevant. Id. at 695-96. This directly abrogated

State V. Ha'mim, where we held age was not a mitigator. 132 Wn.2d 834, 847, 940

P.2d 633 (1997).


       In Ha'mim, we decided the "age ofthe defendant does not relate to the crime

or the previous record ofthe defendant," and held a defendant's youth cannot

justify imposing a more lenient sentence. 132 Wn.2d at 846-47 (quoting State v.

Scott, 72 Wn. App. 207, 218-19, 866 P.2d 1258 (1993), aff'd sub nom. State v.
In re Pars. Restraint ofLight-Roth, No. 94950-6 (Gonzalez, J., concurring in result)


Richie, 126 Wn.2d 388, 894 P.2d 1308 (1995)). In O'Dell, we disavowed//a'm/m

because it "contains reasoning that some . . . have understood as absolutely barring

any exceptional downward departure sentence below the range on the basis of

youth. That reasoning has been thoroughly undermined by subsequent scientific

developments." O'Dell, 183 Wn.2d at 698(emphasis added); see also Alexandra

O. Cohen et al., When Does a Juvenile Become an Adult? Implicationsfor Law and

Policy, 88 TempleL.Rev. 769, 786 (2016).'

        For many years, Ha'mim effectively foreclosed mitigation arguments based

on the age of a defendant, particularly the availability of exceptional downward

sentences.^ See, e.g.. State v. Wright, No. 44821-1-II, slip. op. at 7(Wash. Ct.

App. Nov. 4, 2014)(unpublished)("[T]he trial court concluded that Wright's lack

ofjudgment due to her age and inexperience significantly impaired her capacity to

conform to the requirements ofthe law. This conclusion is similar to the reasoning

that the Supreme Court rejected in Ha'mim."),

http://www.courts.wa.gov/opinions/pdf/D2%2044821-1-



'Contrary to the majority's claim, we did rule "it was an error oflaw for the trial court to refuse
to consider youth in O'Dell." Majority at 9; see O'Dell, 183 Wn.2d at 696. The trial court's
failure to exercise discretion, when it did not know it had discretion, resulted in reversal.
^ Age was among the mitigating factors not considered per sc. See, e.g.. State v. Law, 154 Wn.2d
85, 97, 110 P.3d 717(2005)(exceptional sentences cannot be "based on factors personal in
nature to a particular defendant."). O'Dell preserved this aspect of Ha'mim, and this aspect is
likely the source ofthe majority's confusion. O'Dell, 183 Wn.2d at 695 ("It remains true that
age is not a per se mitigating factor automatically entitling every youthful defendant to an
exceptional sentence.").
In re Pers. Restraint ofLight-Roth, No. 94950-6 (Gonzalez, J., concurring in result)


II%20Unpublished%200pinion.pdf. When Ha'mim was decided, mitigation

arguments at sentencing were routinely denied. See State v. Freitag, 127 Wn.2d

141, 148, 896 P.2d 1254, 905 P.2d 355 (1995)(Madsen, J., dissenting)("In sharp

contrast to [the court's] findings regarding nonstatutory aggravating factors, this

court has rarely found mitigators to be justified unless statutorily provided"); Nick

Straley, Miller'5 Promise: Re-Evaluating Extreme Criminal Sentencesfor

Children, 89 WASH.L. Rev.963, 985 (2014)(describing the state ofjuvenile

sentencing under the Sentencing Reform Act of 1981 (SRA)).


        As Light-Roth served his sentence,"the law ofjuvenile sentencing changed

dramatically." State v. Scott, 190 Wn.2d 586, 589, 416 P.3d 1182(2018)(citing

O'Dell, 183 Wn.2d at 696)? A significant change in the law means that an

argument that was previously unavailable is now available. In re Pers. Restraint of

Yung-Cheng Tsai, 183 Wn.2d 91, 104-05, 351 P.3d 138(2015)(quoting/« re Pers.



^ The majority, assuming that Ha'mim precluded Light-Roth's ability to argue youth as a
mitigating factor, faults Light-Roth for failing to raise Roper v. Simmons, 543 U.S. 551, 125 S.
Ct. 1183, 161 L. Ed. 2d 1 (2005)in his 2007 appeal to make the argument eventually adopted in
O'Dell. The briefs oh the direct appeal were not provided to this court, so it is also unclear if this
is true. It should be noted, however, that earlier attempts to raise Roper have had inconsistent
results. Compare State v. Ramos, No. 30279-2-III, slip op. at 30(Wash. Ct. App. Apr. 16, 2013)
(unpublished)("The SRA does not require courts to be more lenient to juveniles or even
encourage it."), http://www.courts.wa.gov/opinions/pdf/302792.pdf, with In re Pers. Restraint of
Solis-Diaz, noted at 170 Wn. App. 1042, 2012 WL 5348865, at *6(remanding in light of Roper
because the court '"cannot say that the sentencing court would have imposed the same sentence
had it known an exceptional sentence was an option.'"(internal quotation marks omitted)
(quoting In re Pers. Restraint ofMulholland, 161 Wn.2d 322, 334, 166 P.3d 677 (2007))).
Whether Roper undermined the generalizations underlying Ha'mim supports the proposition that
O'Dell was a significant change in the law.
In re Pers. Restraint ofLight-Roth, No. 94950-6 (Gonzalez, J., concurring in result)


Restraint ofGreening, 141 Wn.2d 687, 697,9 P.3d 206 (2000)). Relying on

O'Dell, the Court of Appeals reversed a trial court that had (before O'Dell was

announced) concluded it could not impose an exceptional sentence based on

youthfulness despite '"incredibly compelling'" evidence on juvenile brain

development. State v. Ronquillo, 190 Wn. App. 765, 773-74, 361 P.3d 779

(2015). A similar result occurred in State v. Houston-Sconiers, where the "trial

court. .. did not have the benefit ofthe O'Dell decision at the time of petitioners'

sentencing, and that accounts for its belief that its exceptional sentence below the

SRA range on the case crimes was technically illegal under state law." 188 Wn.2d

1, 24, 391 P.3d 409(2017)(emphasis added); see also State v. Solis-Diaz, 194 Wn.

App. 129, 138, 376 P.3d 458 (2016)("the trial court here decided that

under Ha'mim it could not consider the defendant's youth as a mitigating factor in

sentencing"), rev'd in part on other grounds, 187 Wn.2d 535, 387 P.3d 703 (2017).

Our decision in O'Dell substantially changed how sentencing courts consider a

defendant's youthfulness. See In re Pers. Restraint ofLight-Roth, 200 Wn. App,

149, 160, 401 P.3d 459(2017)("It would be disingenuous to suggest that O'Dell

merely clarified Ha'mim's holding or applied settled law to new facts.").

In O'Dell we revisited the ''same question this court considered in" Ha'mim, but

arrived at a different conclusion. 183 Wn.2d at 689(emphasis added). Plainly, it

is a significant change in the law.
In re Pers. Restraint ofLight-Roth, No. 94950-6(Gonzalez, J., concurring in result)


       Further, because O'Dell reinterpreted a provision ofthe SRA,its holding is

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

the statute has meant since its enactment." In re Pers. Restraint ofJohnson, 131

Wn.2d 558, 568, 933 P.2d 1019(1997)(citing//? re Pers. Restraint of Vandervlugt,

120 Wn.2d 427,436, 842 P.2d 950 (1992); see also In re Pers. Restraint ofHinton,

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


       Nonetheless, Light-Roth fails to show O'Dell was material to his sentence.

While Light-Roth could not successfully argue his youthfulness entitled him to an

exceptionally lenient sentence until O'Dell, he did argue his age justified a

sentence at the bottom of the range. His argument was rejected. The sentencing

court had no cause to consider the disavowed portion ofHa'mim, making the

applicability of O'Dell immateriaL^

       O'Dell will be material for others, and I hope O'DeWs significance will

become clear to the court before irreparable damage is done. Since O'Dell is a

significant and retroactive change in the law, but not material to Light-Roth's

conviction, I concur in result only.




 A prudent option would be to decide this case on materiality, and leave the question of O'DelPs
significance for another day. I regret the majority's decision not to do so.
                                                 5
In re Pers. Restraint ofLight-Roth, No. 94950-6(Gonzalez, J., concurring in result)
