/FTtrEIN CLERK* OFFICE
                                                                  This opinion was
                                                                   filed for record
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    DATg MAY 0 9 2019
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       GMIEFJUSnGe
                                                                  Susan L. Carlson
                                                                Supreme Court Clerk




          IN THE SUPREME COURT OF THE STATE OF WASHINGTON



In the Matter of the Personal                          No. 95394-5
Restraint of:
                                                       En Banc
TIME RIKAT MEIPPEN,

                         Petitioner.                   Filed:            MAY 0 9 2019


        OWENS,J. — Time Rikat Meippen was a juvenile when he was convicted in

adult court of first degree assault, first degree robbery, and second degree unlawful

possession of a firearm. The trial court sentenced Meippen to the top ofthe standard

sentencing range and imposed a firearm sentence enhancement. Several years after

Meippen's sentencing, this court decided State v. Houston-Sconiers} In Houston-

Sconiers, this court held that when sentencing a juvenile in adult court, a trial court

has absolute discretion to depart from the standard sentencing ranges and mandatory

sentence enhancements prescribed by the Sentencing Reform Act of 1981 (SRA),

chapter 9.94A ROW. 188 Wn.2d at 9. Meippen subsequently filed an untimely



 188 Wn.2d 1,391 P.3d409(2017).
In re Pers. Restraint ofMeippen, No. 95394-5

personal restraint petition(PRP), arguing that Houston-Sconiers constitutes a
significant and material change in the law that should apply retroactively.

       Even assuming Meippen can show that Houston-Sconiers is a significant,

material change in the law that applies retroactively, we hold that he is not entitled to

collateral relief because he does not demonstrate that any error actually and

substantially prejudiced him. Meippen does not show by a preponderance ofthe

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. The trial court had the

discretion to impose a lesser sentence under the SRA at the time and instead sentenced

Meippen at the top of the standard sentencing range. Accordingly, Meippen cannot

make a threshold showing of actual and substantial prejudice, and we dismiss his

PRP. Thus, we decline to consider whether Houston-Sconiers is a significant,

material change in the law that applies retroactively to cases on collateral review, and

we save the question for another day.

                                         FACTS


       In 2006, Meippen robbed a tobacco store and shot the store clerk in the head,

inflicting nonlethal injuries. Meippen was 16 years old. Meippen was automatically

transferred to adult court, where a jury convicted him of first degree assault and first

degree robbery, plus one firearm enhancement. See former ROW

13.04.030(l)(e)(v)(A)(2005). Meippen was also convicted of second degree

unlawful possession of a firearm in a concurrent bench trial.
In re Pers. Restraint ofMeippen, No. 95394-5

       At sentencing, Meippen's counsel recommended that Meippen receive a
bottom-end standard range sentence. Meippen's counsel argued that Meippen was too

young to appreciate the nature and consequences of his actions and that he "lack[ed]
an understanding ... of the seriousness ofthe situation he involved himself in."

State's Resp. to PRP, App. at 27-28. Meippen's counsel also noted that Meippen was

"very immature in his thought processes and beliefs" and opined that due to

Meippen's age, a lengthy prison sentence would be especially difficult. Id. at 27; see

id. at 28. The trial court rejected counsel's recommendation, stating,"I find

[Meippen's] behavior cold, calculated, and it showed complete indifference towards

another human being." Order Transferring Mot. for Relieffrom J. to Court of

Appeals, State v. Meippen, No. 06-1-05905-7-SEA, App. A at 17(King County

Super. Ct. Oct. 20, 2017). The court imposed a top-end standard range sentence of

231 months in confinement, including a 60-month firearm sentence enhancement.

Meippen appealed. The Court of Appeals affirmed his convictions and sentence and

issued its mandate in 2009. State v. Meippen, noted at 149 Wn. App. 1014(2009).

       Nearly eight years after Meippen's judgment and sentence became final, this

court decided Houston-Sconiers. In Houston-Sconiers, this court noted that the

Eighth Amendment to the United States Constitution requires courts to recognize that

"children are different." 188 Wn.2d at 18. This court reasoned that because children

are different, the Eighth Amendment mandates that trial courts have absolute

discretion to impose sentences below the SRA standard sentencing ranges and
In re Pers. Restraint ofMeippen, No. 95394-5

mandatory sentence enhancements when sentencing a juvenile in adult court. Id. at 9.
This court further held that to comply with the Eighth Amendment's mandate, trial

courts must have complete discretion to consider the mitigating qualities associated
with youth at sentencing. Id. at 21. These mitigating qualities include a juvenile
defendant's age, immaturity, and failure to appreciate risks and consequences. Id. at

23.


      In 2017, Meippen filed a pro se motion for relieffrom judgment, requesting a

new sentencing hearing. The trial court transferred Meippen's untimely motion to the

Court of Appeals for consideration as a PRP. Soon after, Meippen filed an amended

PRP, arguing that his petition was timely because Houston-Sconiers represents a

significant and material change in the law that should apply retroactively to his

sentence. The Court of Appeals transferred Meippen's amended PRP to this court as

a successive petition that raised new grounds. This court retained the petition for

consideration on the merits.

                                          ISSUE


       Does Meippen demonstrate that the trial court's alleged sentencing eiTor actually

and substantially prejudiced him such that this court will consider whether Houston-

Sconiers is a significant, material change in the law that applies retroactively to cases on

collateral review?
In re Pers. Restraint ofMeippen, No. 95394-5

                                       ANALYSIS


       Meippen argues that the one-year time bar does not apply to his PRP because

Houston-Sconiers constitutes a significant and material change in the law that should

apply retroactively to cases on collateral review. We hold that Meippen fails to

demonstrate that the trial court actually and substantially prejudiced him because he

does not show by a preponderance ofthe evidence that his sentence would have been

shorter if the trial court had absolute discretion to depart from the SRA at the time of

his sentencing. Because Meippen does not meet his threshold burden of showing

actual and substantial prejudice, we must dismiss his petition. Accordingly, we

decline to consider whether Houston-Sconiers is a significant, material change in the

law that applies retroactively.

       A petitioner is generally barred from filing a PRP "more than one year after

[his]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 petitioner can

overcome the one-year time bar if he can identify(1) a significant change in the law,

(2)that is material to his conviction or sentence, and (3) that applies retroactively.

RCW 10.73.100(6);             Miller, 185 Wn.2d 111, 114, 371 P.3d 528 (2016).

However, a petitioner must show not only error but also a threshold showing of harm

to obtain relief on a PRP. In re Pers. Restraint ofMcNeil, 181 Wn.2d 582, 589, 334

P.3d 548 (2014); see State v. Buckman, 190 Wn.2d 51, 65, 409 P.3d 193 (2018).

"These threshold requirements are justified by the court's interest in finality.
In re Pers. Restraint ofMeippen, No. 95394-5

economy, and integrity of the trial process and by the fact that the petitioner has
already had an opportunity for judicial review." In re Pers. Restraint oflsadore, 151
Wn.2d 294, 298, 88 P.3d 390 (2004).

       A petitioner alleging constitutional error has the threshold, prima facie burden

of showing by a preponderance ofthe evidence that he was actually and substantially

prejudiced by the alleged error. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 671-

72, 101 P.3d 1 (2004). In doing so, the petitioner '"must shoulder the burden of

showing, 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 Pers. Restraint ofHagler, 97 Wn.2d 818, 825,650 P.2d 1103

(1982)(quoting United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed.

2d 816 (1982)); see Buckman, 190 Wn.2d at 60. If the petitioner fails to make the

threshold, prima facie showing of actual and substantial prejudice, we must dismiss

his PRP. In re Pers. Restraint ofYates, 177 Wn.2d 1,17, 296 P.3d 872(2013); see In

re Pers. Restraint ofKhan, 184 Wn.2d 679,686, 363 P.3d 577(2015)(plurality

opinion)(stating that a PRP may be dismissed without addressing a debatable legal

issue that was properly raised).

       Meippen contends that Houston-Sconiers renders his sentence unconstitutional.

Because Meippen alleges a constitutional error, he must show that he was actually and

substantially prejudiced by the trial court's alleged error to obtain collateral relief.

Meippen fails to meet this threshold, prima facie burden for the following reasons.
In re Pers. Restraint ofMeippen, No. 95394-5


       To begin with, Meippen does not show by a preponderance of the evidence that

his sentence would have been shorter if Houston-Sconiers was a significant, material

change in the law that applied retroactively. At sentencing, Meippen's counsel argued

that mitigating qualities of youth—^Meippen's age, immaturity, and failure to

appreciate the consequences of his actions—supported a sentence at the bottom ofthe

standard range. The trial court considered these mitigating qualities and, nevertheless,

imposed a top-end standard range sentence.

       Significantly, the trial court already possessed the discretion to depart from the

SRA standard sentencing ranges at the time of Meippen's sentencing. The trial court

had the discretion to impose an exceptional sentence downward based on Meippen's

youth, but it declined to do so. In re Pers. Restraint ofLight-Roth, 191 Wn.2d 328,

336,422 P.3d 444(2018)("[The SRA] 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."). Nothing in our record suggests

that the trial court would have exercised its discretion to depart from the SRA

sentence enhancement guidelines. The trial court determined that Meippen's actions

were cold and calculated, and it clearly intended to impose a sentence at the top of the

standard range despite Meippen's youth.

       Finally, although there is a mere possibility that the trial court could have

departed from the SRA in light of Houston-Sconiers, mere possibilities do not

establish a prima facie showing of actual and substantial prejudice. Meippen does not

                                            7
In re Pers. Restraint ofMeippen, No. 95394-5


present any evidence that the trial court would have imposed a lesser sentence if it had

the discretion to depart from the SRA standard sentencing ranges and mandatory

sentence enhancements. The trial court already had the discretion to impose a lesser

sentence but declined to do so. Accordingly, Meippen fails to show by a

preponderance ofthe evidence that he was actually and substantially prejudiced by the

trial court's alleged error. Because Meippen does not make a threshold, prima facie

showing of actual and substantial prejudice, he is not entitled to collateral relief.

Thus, we dismiss his PRP and decline to consider whether Houston-Sconiers

represents a significant, material change in the law that should apply retroactively to

cases on collateral review.

                                     CONCLUSION


       Meippen does not show by a preponderance ofthe evidence that his sentence

would have been shorter if the trial court had absolute discretion to depart from the

SRA at the time of his sentencing. As a result, Meippen fails to show that he was

actually and substantially prejudiced during sentencing, and we dismiss his PRP. We

decline to consider whether Houston-Sconiers is a significant, material change in the

law that applies retroactively to cases on collateral review and save the question for

another day.
In re Pers. Restraint ofMeippen, No. 95394-5




                                               £


WE CONCUR:
In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting




                                      No. 95394-5


       WIGGINS, J. (dissenting)—Today the court avoids answering whether State v.

Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), applies retroactively when a

prisoner collaterally attacks a final judgment. The majority asserts that because Time

RIkat Meippen cannot show actual and substantial prejudice, we need not reach the

retroactlvlty question. Majority at 2, 8. But we must decide whether Houston-Sconiers

applies retroactively before we reach the Issue of actual and substantial prejudice.

Further, I conclude that Houston-Sconiers Is a significant change of law, material to

Melppen's case, and applies retroactively on collateral review under Montgomery v.

Louisiana, _ U.S. _, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). I conclude that

Meippen makes a prima facie showing of actual and substantial prejudice entitling him

to a reference hearing. Therefore, I respectfully dissent.

                                       ANALYSIS


        I.   Retroactlvlty must be resolved before the question of prejudice

      When deciding a personal restraint petition (PRP), we first look to see If the

petition was properly brought and. If so, then decide the merits of the petition. The

majority does not follow this order. Instead, It concludes that we need not "consider

whether Houston-Sconiers represents a significant, material change In the law that

should apply retroactively to cases on collateral review" because Meippen has not

                                            1
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

made "a threshold, prima facie showing of actual and substantial prejudice." Majority

at 8. This is backward. The question of Houston-Sconiers' retroactivity on collateral

review is part of the threshold procedural question. It is not substantive. Conversely,
the question whether Meippen showed actual prejudice goes to the substantive merits
of his case.


      Whether Houston-Sconiers applies retroactively is clearly the threshold

procedural question. When a petitioner files a PRP more than one year after a

judgment becomes final (as was the case here), ROW 10.73.090 bars it as untimely,

exceptions aside."ROW 10.73.090 presents 'a procedural bar, not a substantive bar.'"

in re Pers. Restraint of Finstad, Ml Wn.2d 501, 508, 301 P.3d 450(2013)(emphasis

added)(quoting in re Pers. Restraint of Coats, 173 Wn.2d 123, 145, 267 P.3d 324

(2011) (Madsen, C.J., concurring)); see also In re Pers. Restraint of Schorr, 191

Wn.2d 315, 320, 422 P.3d 451 (2018)("[Resolving the time bar] is a threshold inquiry;

we do not have to decide whether the entire claim is completely meritorious in order

to decide whether it fits within an exception to the time bar.").

       Meippen argues that ROW 10.73.100(6) exempts him from the time bar. He

must prove Houston-Sconiers is retroactive for that exception to apply, in re Pers.

Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 103, 351 P.3d 138 (2015). Thus, the

question of retroactivity is also procedural because it relates to whether he overcomes

the procedural time bar.

       Rather, it is the issue of actual prejudice that goes to the substantive merits of

the petition. The majority treats this question as merely preliminary. Majority at 6. But

as we wrote in in re Personal Restraint of Davis, on which the majority relies, "To
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

actually obtain relief on collateral review based on a constitutional error[,] the
petitioner must demonstrate by a preponderance of the evidence that petitioner was

actually and substantially prejudiced by the error." 152 Wn.2d 647, 671-72, 101 P.3d

1 (2004)(emphasis added)(footnote omitted). Given that "[gjranting the petition is

appropriate if the petitioner has proved actual prejudice," prejudice clearly deals with

the merits of the petition. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d

872(2013)(citing In re Pers. Restraint of Pierce, 173 Wn.2d 372, 377, 268 P.3d 907

(2011)).

       Resolving whether to grant a petitioner relief necessarily comes after resolving

the procedural question of whether the PRP is time-barred. RAP 16.4(d) ("The

appellate court will only grant relief by a personal restraint petition if. . . such relief

may be granted under RCW 10.73.090 or .100."). By reversing this order, the majority

avoids the threshold procedural question and preemptively dismisses the case on the

merits.


      This is more than semantics. By confusing our collateral attack procedure, the

majority does disservice not only to Meippen but to all incarcerated persons. The

personal restraint petition remains one of the few means available to incarcerated

individuals to seek further judicial review of their predicament. We must clarify which

aspects of seeking collateral relief are procedural, which are substantive, and in what

order these questions must be resolved. Given that many prisoners bring PRPs pro

se, such clarity is particularly necessary. See Houston v. Lack, 487 U.S. 266, 271,

108 S. Ct. 2379, 101 L. Ed. 2d 245(1988)(detailing challenges facing pro se prisoner

litigants in filing appeals); State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501
In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

(1999)(demonstrating how pro se briefs are held to the same standard as those

written by counsel). The consequences of incarceration and complexities of our

system of collateral attack demand clarity on our part.

           II. Meippen overcomes the time bar because Houston-Sconiers is a
           significant and material change in law that applies retroactively

       In light of the above, before considering the merits of Meippen's case, we must

consider whether he overcomes the one-year limitation barring untimely personal

restraint petitions. RCW10.73.090,.100. Meippen argues that he overcomes the time

bar because Houston-Sconiers satisfies the requirements of RCW 10.73.100(6).

I agree.

      "'ROW 10.73.100(6) sets forth three conditions that must be met before a

petitioner can overcome the one-year time bar:(1)a [significant] change in the law (2)

that is material and (3)that applies retroactively.'" in re Pers. Restraint of Yung-Cheng

Tsai, 183 Wn.2d at 103 (alteration in original) (quoting in re Pers. Restraint of

Gentry, 179 Wn.2d 614, 625, 316 P.3d 1020 (2014)). Houston-Sconiers meets these

requirements.

       In Houston-Sconiers, we analyzed juvenile sentencing in the context of the

Eighth Amendment to the United States Constitution. 188 Wn.2d at 18. Reasoning

that "children are different," we held that "sentencing courts must have complete

discretion to consider mitigating circumstances associated with the youth of any

juvenile defendant" and that "the Eighth Amendment requires sentencing courts to

consider the mitigating qualities of youth at sentencing, even in adult court." Id. at 18,

21 (emphasis added)(capitalization omitted). This rule prevents children from facing
In re Pers. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

disproportionate sentencing ranges in violation of the Eighth Amendment. Id. at 18-
21, 19 n.4.

       Houston-Sconiers meets each of the requirements of RCW 10.73.100(6). First,

Houston-Sconiers is a significant change in the law. See In re Pers. Restraint of Yung-

Cheng Tsai, 183 Wn.2d at 103. "[W]here an intervening opinion has effectively

overturned a prior appellate decision that was originally determinative of a material

issue, the intervening opinion constitutes a 'significant change in the law.'" In re Pers.

Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000) (quoting RCW

10.73.100(6)). Houston-Sconiers expressly overruled State v. Brown, 139 Wn.2d 20,

983 P.2d 608 (1999). Houston-Sconiers, 188 Wn.2d at 21 n.5. Brown indicated that

judges had no discretion to depart from the requirements of the Sentencing Reform

Act of 1981 (SRA), ch. 9.94A RCW. 139 Wn.2d at 29. Given that Meippen's

sentencing occurred entirely within the framework of the SRA, without any indication

in the record that anyone believed it possible to go outside that range (indeed, defense

counsel recommended a sentence only at the low end of the SRA range. Brown

effectively controlled a material issue in Meippen's case. By overturning Brown,

Houston-Sconiers was a significant change in the law.

      Another '"test to determine whether an [intervening case] represents a

significant change in the law is whether the defendant could have argued this issue

before publication of the decision.'" State v. Miller, 185 Wn.2d 111, 115, 371 P.3d 528

(2016) (alteration in original) (internal quotation marks omitted)(quoting In re Pers.

Restraint of Lavery, 154 Wn.2d 249, 258-59, 111 P.3d 837(2005)). Houston-Sconiers

held that at sentencing the judge must consider the mitigating factors of youth. 188
In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

Wn.2cl at 18. Meippen's counsel made the only argument then feasible: that the low
end of the sentencing range was "appropriate" for Meippen because of "his youth." He

did not, because he could not, argue that the judge was required to take youth into

account. See id. By providing defendants with the argument that a sentencing judge

must consider youth, when this argument did not before exist (at least not in any

fashion endorsed or legitimated by this court), Houston-Sconiers was a significant

change in law. 188 Wn.2d at 18.

      Second, Houston-Sconiers is material to Meippen's case. See In re Pers.

Restraint of Yung-Cheng Tsai, 183 Wn.2d at 103. Houston-Sconiers requires that a

court take youth into account at sentencing. 188 Wn.2d at 18, 21. Despite defense

counsel's invocation of Meippen's youth, the court did not take his youth into account.

On the contrary, in response to these arguments, the court said only,"Thank you" and

immediately imposed a sentence at the high end of the sentencing range. By way of

explanation, the judge simply stated, "I find the defendant's behavior cold, calculated,

and it showed complete indifference towards another human being." Without a clearer

indication that the sentencing court actually considered Meippen's youth, it cannot be

said that the sentencing court behaved as Houston-Sconiers commands. We cannot

presume that the sentencing court took Meippen's youth into account when it gave

absolutely no indication of having done so. Silence does not constitute reasoning. See

State V. Ramos, 187 Wn.2d 420, 444, 387 P.3d 650 (2017) (requiring courts

sentencing juveniles to life without parole to "thoroughly explain [their] reasoning" as
In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

to why a juvenile deserves such a sentence, "specifically ccnsidering the differences
between juveniles and adults" in the process).''

       Further, neither the sentencing court nor Meippen's counsel indicated that it

was possible for Meippen to be sentenced below the standard range. Had Houston-

Sconiers been decided, all participants in sentencing would have known such

discretionary sentencing was possible and Meippen's counsel could have argued for

sentencing below the standard range. 188 Wn.2d at 21. This, too, makes Houston-

Sconiers material to Meippen's case.

       Third, Houston-Sconiers applies retroactively. See In re Pers. Restraint of

Yung-Cheng Tsai, 183 Wn.2d at 103. This court decides whether a rule applies

retroactively in collateral review under the framework of league v. Lane, 489 U.S.

288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). In re Pers. Restraint of Colbert, 186

Wn.2d 614, 623, 380 P.3d 504 (2016). The United States Supreme Court recently

made clear that league identified "new substantive rules of constitutional law" as

retroactive on collateral review. Montgomery, 136 S. Ct. at 728. By contrast, most

procedural rules (except watershed rules of criminal procedure) are not retroactive on

collateral review. Id. at 728, 730. This matters in the case before us for two reasons.

First, Montgomery appWes the league framework, which this court follows. Id. at 728;

In re Pers. Restraint of Colbert, 186 Wn.2d at 623. Second, and more importantly, the

Supreme Court held that "when a new substantive rule of constitutional law controls


^ While Ramos does not require thorough justification when a juvenile faces a sentence
shorter than life without parole, it nevertheless suggests that we cannot presume that a
sentencing court has considered youth merely because defense counsel has invoked it.
Some indication that the juvenile's youth was evaluated by the sentencing court is required.
In re Pers. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

the outcome of a case, the Constitution requires state collateral review courts to give

retroactive effect to that rule." Montgomery, 136 S. Ct. at 729. 1 conclude that Houston-

Sconiers applies retroactively because it is a new, substantive rule of constitutional

law.


       There is no question that the rule in Houston-Sconiers is a rule of constitutional

law. The entire case was premised on the dictates of the Eighth Amendment.

Houston-Sconiers, 188 Wn.2d at 8, 18-21. In particular, it was focused on the Eighth

Amendment's guaranty of proportionate sentencing. Id. at 19 n.4. The questions are

therefore only whether it is a new rule and whether it is substantive. Montgomery, 136

S. Ct. at 728.


       The rule in Houston-Sconiers is a new rule. A new rule is one that "breaks new

ground or 'was not dictated by precedent existing at the time the defendant's

conviction became final.'" In re Pers. Restraint of Colbert, 186 Wn.2d at 623 (internal

quotation marks omitted)(quoting In re Pers. Restraint of Haghighi, 178 Wn.2d 435,

443, 309 P.3d 459 (2013)). The rule in Houston-Sconiers expressly overruled prior

cases that indicated the inflexibility of the SRA. 188 Wn.2d at 21 n.5. Further, in

holding that a juvenile defendant's youth must be considered at eve/y sentencing, it

went beyond even Supreme Court cases like Miller v. Alabama (which required

consideration of youth when the sentence was life without parole). Houston-Sconiers,

188 Wn.2d at 18; Miller v. Alabama, 567 U.S. 460, 479-80, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012). It is therefore a new rule.

       The Houston-Sconiers rule is also substantive. A substantive rule of

constitutional law, in retroactivity doctrine, is one that "forbids 'criminal punishment of
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

certain primary conduct'" or prohibits '"a certain category of punishment for a class of

defendants because of their status or offense.'" Montgomery, 136 S. Ct. at 732

(quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 8. Ct. 2934, 106 L. Ed. 2d 256

(1989)). The key example is Montgomery. In Montgomery, the Supreme Court held

that Miller announced a substantive rule of constitutional law. Id. at 734. Miller

prohibited sentences of mandatory life without parole for juvenile offenders without

consideration of their youth at the time of the offense. Miller, 567 U.S. at 479-80. The

Montgomery Court reasoned that Miller's rule guarded against disproportionate

punishment for juveniles and that "[pjrotection against disproportionate punishment is

the central substantive guarantee of the Eighth Amendment and goes far beyond the

manner of determining a defendant's sentence." 136 S. Ct. at 732-33. The

Montgomery Court concluded that Miller's rule was a "substantive holding that life

without parole is an excessive sentence for children whose crimes reflect transient

immaturity." Id. at 735. Montgomery acknowledged that Miller did not categorically

prohibit life without parole for juvenile defendants but held that irrelevant. Id. By

barring life without parole "for all but the rarest of juvenile offenders, those whose

crimes reflect permanent incorrigibility," Miller created a substantive rule of

constitutional law that states are constitutionally required to give retroactive effect on

collateral review. Id. at 734.


       Houston-Sconiers is substantive for the same reasons. Houston-Sconiers

protects juveniles from facing certain disproportionate sentencing ranges. 188 Wn.2d

at 18-20. This parallels Miller's rule, which prevents juveniles from facing

disproportionate life without parole sentences. 567 U.S. 460; accord Montgomery, 136
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

S. Ct. at 726. In this way, like Miller, Houston-Sconiers "prohibits 'a certain category

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

offense.'" Montgomery, 136 S. Ct. at 732(quoting Penry, 492 U.S. at 330). Like Miller,

Houston-Sconiers was premised on the "central substantive guarantee of the Eighth

Amendment"; the prohibition against disproportionate punishment. Id. at 732-33;

Houston-Sconiers, 188 Wn.2d at 19 n.4. "Before Miller, every juvenile convicted of a

homicide offense could be sentenced to life without parole. After Miller, it will be the

rare juvenile offender who can receive that same sentence." Montgomery, 136 S. Ct.

at 734. Before Houston-Sconiers, every juvenile convicted of certain offenses faced

certain sentencing ranges, while after Houston-Sconiers, juveniles no longer

necessarily face those ranges now that sentencing courts not only have the discretion

to go outside the bounds of the SRA but are required to consider the mitigating

qualities of youth. 188 Wn.2d at 18, 21. Just as Montgomery considered Miller a

substantive change in the law, so too should we hold that Houston-Sconiers is a

substantive change of constitutional law.

       Houston-Sconiers itself indicated that its holding was substantive. We relied

heavily on Roper,^ Graham,^ and Miller, noting that those cases

      [made] two substantive rules of law clear: first, "that a sentencing rule
      permissible for adults may not be so for children," rendering certain
      sentences that are routinely imposed on adults disproportionately too
      harsh when applied to youth, and second, that the Eighth Amendment
       requires another protection, besides numerical proportionality, in juvenile
       sentencings—the exercise of discretion.




2 Roper V. Simmons, 543 U.S. 551, 125 8. Ct. 1183, 161 L. Ed. 2d 1 (2005).
3 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

                                            10
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

Houston-Sconiers, 188 Wn.2d at 19 n.4 (emphasis added)(citation omitted)(quoting

Miller, 567 U.S. at 481). Houston-Sconiers is based on the same federal decisions

that Montgomery made clear were substantive. Id.] Montgomery, 136 8. Ct. at 734.

Houston-Sconiers itself also referred to them as substantive. 188 Wn.2d at 19 n.4. In

so doing, Houston-Sconiers all but stated that it also announced a substantive rule of

constitutional law applicable retroactively on collateral review.

      That the rule in Houston-Sconiers has a procedural component, requiring

sentencing courts to take into account the youth of the defendant, does not prevent it

from being a substantive rule. Miller had an identical procedural component, yet the

Supreme Court In Montgomery stWl held Miller was substantive. Montgomery, 136 S.

Ct. at 735. "There are instances in which a substantive change in the law must be

attended by a procedure that enables a prisoner to show that he falls within the

category of persons whom the law may no longer punish." Id. Such is the case here.

Houston-Sconiers' substantive change in law—preventing juvenile defendants from

facing disproportionate sentencing ranges—was accomplished by procedurally

requiring sentencing courts to take youth into account. 188 Wn.2d at 19-20. Thus,

Houston-Sconiers' procedural component does not prevent it from being retroactive

on collateral review.


      For these reasons, I would hold Houston-Sconiers is retroactive. Meippen

therefore overcomes the time bar.




                                           11
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

        III. We should order a reference hearing to determine whether the
        sentencing court's failure to consider youth actually and substantially
        prejudiced Meippen

       Having established that Houston-Sconiers applies retroactively to Meippen's

case, permitting Meippen to overcome the time bar, I now turn to the question of relief.

I conclude that we should transfer the case to superior court for a reference hearing

because Meippen has made a prima facie showing of actual and substantial prejudice.

      "We have three available options when reviewing a personal restraint petition:

(1) dismiss the petition, (2) transfer the petition to a superior court for a full

determination on the merits or a reference hearing, or (3) grant the petition." in re

Pars. Restraint of Yates, 177 Wn.2d at 17 (citing in re Pars. Restraint of Hews, 99

Wn.2d 80, 88, 660 P.2d 263 (1983); RAP 16.11(b), 16.12). To obtain relief in a

personal restraint petition asserting constitutional error, the petitioner must show, by

a preponderance of the evidence, that he or she was actually and substantially

prejudiced by the error. In re Pars. Restraint of Davis, 152 Wn.2d at 671-72 (citing in

re Pars. Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990); In re Pars.

Restraint of Crabtree, 141 Wn.2d 577, 587, 9 P.3d 814(2000)). If the petitioner makes

such a showing, we grant relief, id.; In re Pars. Restraint of Yates, 177 Wn.2d at 18.

If the petitioner does not make even a prima facie showing of actual and substantial

prejudice, we dismiss the PRP. In re Pars. Restraint of Yates, 177 Wn.2d at 17. If the

petitioner makes a prima facie showing of actual and substantial prejudice, but the

record is insufficient to entitle him or her to relief, we order a reference hearing, id. at

18.




                                            12
In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

       Meippen has made a prima facie showing of actuai and substantlai prejudice.

Houston-Sconiers heid that the Eighth Amendment requires a sentencing court to

consider a juveniie defendant's youth at sentencing. 188 Wn.2d at 18, 19 n.4. The

sentencing court faiied to consider Meippen's youth at sentencing. Rather than

engaging in any way with the fact that Meippen was oniy 16 years oid at the time of

the crime, the court sentenced him within the standard sentencing range (indeed, at

its upper iimits) irrespective of those factors. The sentencing court thereby faiied to

adhere to the procedurai component that protects Meippen's substantive Eighth

Amendment guaranty of proportionate sentencing. Houston-Sconiers, 188 Wn.2d at

18-20, 19 n.4.

       However, we cannot teii from the record whether Meippen was actuaiiy

prejudiced. The record does not reveai whether taking Meippen's youth into account

wouid have ied to a different sentence, in iight of this, i conciude that we shouid order

a reference hearing. Meippen was sentenced, for a crime committed at the age of 16,

to 231 months in prison—over 17 years. As a matter of fundamentai fairness, we

shouid order a reference hearing so the superior court can determine whether he was

prejudiced when sentenced to serve more years in jaii than he had then been aiive.

      The majority disagrees, conciuding that Meippen cannot prove actuai and

substantiai prejudice, and dismisses his PRP. Majority at 8. But that is not the correct

response. When a petitioner offers '"the facts underiying the ciaim of uniawfui restraint

and the evidence avaiiabie to support the factuai aiiegations'" so that they go beyond

'"baid assertions and conciusory arguments,"' a reference hearing is justified. In re

Pers. Restraint of Yates, 177 Wn.2d at 18 (quoting In re Pers. Restraint of Rice, 118

                                            13
In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting

Wn.2d 876, 885-86, 828 P.2d 1086 (1992)). Meippen has done just that. Meippen's

constitutional rights were violated. There is no evidence in the record that shows the

sentencing judge considered Meippen's youth. The only question is whether his

sentence would have been different had the judge taken his youth into account. Thus,

we should order a reference hearing to deternnine if his sentence would have been

different if the sentencing judge had had the benefit of Houston-Sconiers at the time

of sentencing.

                                    CONCLUSION


      Today the majority improperly avoids addressing Houston-Sconiers'

retroactivity. But we must reach the issue of retroactivity, and we should hold that

Houston-Sconiers applies retroactively on collateral review. The majority also

incorrectly dismisses Meippen's petition. I would hold instead that Meippen has made

a prima facie showing of actual and substantial prejudice entitling him to a reference

hearing to determine whether Meippen can prove, by the preponderance of the

evidence, that the sentencing court's failure to consider youth actually and

substantially prejudiced him. Accordingly, I respectfully dissent.




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In re Pers. Restraint of Meippen (Time Rikat), No. 95394-5
Wiggins, J., dissenting




                                                             cM)




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