                                                                TILED
                                                       VILICti OF APPEALS DIV I
                                                        STATE OF WASHINGTON
                                                       2018 HAY -7 AN 8:31


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )      DIVISION ONE
                      Respondent,        )
                                         )      No. 76232-0-1 (consol. with
                 v.                      )      No. 76333-4-1)
                                         )
SAY SULIN KEODARA,                       )      UNPUBLISHED OPINION
                                         )
                      Appellant.         )      FILED: May 7, 2018
                                         )

       DWYER, J. — Say Keodara committed terrible crimes when he was 17

years old. He was sentenced to a low-end standard range sentence of 831

months of incarceration. Finding that this 69-year, three-month sentence was the

functional equivalent of a life-without-parole sentence, and that the sentencing

court had, at sentencing, treated as immaterial Keodara's youth, we reversed the

sentence and remanded the cause for a new sentencing hearing.

       On remand, the court considered Keodara's youth at the time of his

offense, including the particular circumstances of his upbringing and general

circumstances pertaining to youthful offenders. The court concluded that

Keodara had proved by a preponderance of the evidence that he should receive

an exceptional sentence below the standard range. The court imposed a 480-

month sentence. This 40-year sentence is not the equivalent of a life-without-

parole sentence.
No. 76232-0-1/2


        Because the sentencing court(1) recognized that no mandatory sentence

provisions were applicable in Keodara's circumstance,(2) recognized that it had

discretion at sentencing to select an appropriate sentence,(3) exercised its

discretion,(4) considered Keodara's youth in determining the appropriate

sentence, and (5) imposed a sentence below the standard range for a lesser

term than life, there was no error. We affirm.

                                              I

       In 2013, a jury convicted Keodara for crimes that he committed when he

was 17 years old.1 The crimes of conviction were one count of murder in the first

degree, one count of unlawful possession of a firearm in the first degree, and

three counts of assault in the first degree. The murder conviction and the three

assault convictions included, for sentencing purposes, mandatory firearm

enhancements. Keodara was sentenced to a total of 831 months in prison. This

sentence was at the lowest end of the standard range of 831 months to 1141

months, as set forth in RCW 9.94A.510.

        Keodara appealed his convictions and sentence to this court. We affirmed

Keodara's convictions but remanded for resentencing because the sentencing

court had imposed a sentence that was, in effect, a life sentence without first

adequately considering Keodara's youth and individual circumstances, as

required by Eighth Amendment case law. See State v. Keodara, No. 70518-1-1,




        1 The crimes are detailed in State v. Keodara, 191 Wn. App. 305, 364 P.3d 777(2015),
review denied, 185 Wn.2d 1028 (2016).

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No. 76232-0-1/3


slip op. at 19(Wash. Ct. App. Nov. 2, 2015)(published in part)

http://www.courts.wa.gov/opinions/pdf/705181.pdf at 19.

        On remand, a new sentencing hearing was held. Prior to the hearing,

Keodara submitted 240 pages of mitigation materials. The materials included

Keodara's mental health assessments, details about his difficult childhood, and

educational materials explaining the effects of maltreatment on brain

development. Keodara also presented testimony from his mother and

psychologist, both of whom testified to Keodara's difficult childhood and to the

impact that his difficult childhood had on his psychological health.

        Before announcing Keodara's sentence, the trial court emphasized that it

had, on several occasions, reviewed all of the information submitted to the court.

It also explained that it had considered Keodara's age at the time of the crime,

his family and home environment, his susceptibility to influence from older

individuals, and his possibility of rehabilitation in reaching a decision about his

sentence.2 Upon considering Keodara's youth, the court imposed an exceptional

sentence of 480 months in prison.3 The sentence is almost 30 years below the

lowest end of the standard range-831 months.

        Keodara again appeals.


        2 The trial court entered extensive findings of fact and conclusions of law, as to the
impact of his youth, as supplements to the judgment and sentence.
        3 Keodara was sentenced to 240 months for the murder in the first degree conviction. He
was sentenced to 87 months for the unlawful possession of a firearm in the first degree
conviction. He was given three separate 93 month sentences for each of the three convictions for
assault in the first degree. He was also given four separate 60 month sentences for the firearm
enhancements to the murder and the assault convictions. The sentences for the murder,
assaults, and possession of a firearm convictions were ordered to run concurrently (for a total of
240 months.) The sentences for the four firearm enhancements were ordered to run
consecutively (for a total of 240 months.) Thus, the total sentence was for 480 months of
incarceration.

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No. 76232-0-1/4


                                                II

        Keodara's primary contention on appeal is that the procedure at his

sentencing hearing fell short of that required by Miller v. Alabama, 567 U.S. 460,

132 S. Ct. 2455, 183 L. Ed. 2d 407(2012). Keodara's assertion reflects a

fundamental misunderstanding of the Miller decision and of the Eighth

Amendment, upon which Miller was grounded.

        The Eighth Amendment'concerns itself with actual punishment. It is not a

procedural guarantee.

        The import of Miller was explained by the United States Supreme Court in

a later decision. In Miller,

       the Court held that a juvenile convicted of a homicide offense could
       not be sentenced to life in prison without parole absent
       consideration of the juvenile's special circumstances in light of the
       principles and purposes of juvenile sentencing.

Montgomery v. Louisiana,           U.S.     , 136 S. Ct. 718, 725, 193 L. Ed. 2d

599 (2016). More specifically,

       Miller held that mandatory life without parole for juvenile homicide
       offenders violates the Eighth Amendment's prohibition on "cruel
       and unusual punishments." Id., at_, 132 S. Ct., at 2460. "By
       making youth (and all that accompanies it) irrelevant to imposition
       of that harshest prison sentence," mandatory life without parole
       "poses too great a risk of disproportionate punishment." Id., at ,
       132 S. Ct., at 2469. Miller required that sentencing courts consider
       a child's "diminished culpability and heightened capacity for
       change" before condemning him or her to die in prison. Ibid.
       Although Miller did not foreclose a sentencer's ability to impose life
       without parole on a juvenile, the Court explained that a lifetime in
       prison is a disproportionate sentence for all but the rarest of
       children, those whose crimes reflect "irreparable corruption." Ibid.



         "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. CONST. amend. VIII.

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No. 76232-0-1/5


      (quoting Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183,
      161 L. Ed. 2d 1 (2005)).

Montgomery, 136 S. Ct. at 726.

       In Montgomery, the high court made explicit that Miller announced

"a new substantive rule of constitutional law." Montgomery, 136 S. Ct. at

729. Such rules, the Court cautioned, are to be distinguished from

"procedural rules." Montgomery, 136 S. Ct. at 729. To be sure, Miller

conferred a "substantive constitutional right." Montgomery, 136 S. Ct. at

732. The right was substantive, the Montgomery Court explained,

because "[p]rotection against disproportionate punishment is the central

substantive guarantee of the Eighth Amendment." Montgomery, 136 S.

Ct. at 732.

              These considerations underlay the Court's holding in Miller
      that mandatory life-without-parole sentences for children "pos[e] too
      great a risk of disproportionate punishment." 567 U.S., at_, 132
      S. Ct., at 2469. Miller requires that before sentencing a juvenile to
      life without parole, the sentencing judge take into account "how
      children are different, and how those differences counsel against
      irrevocably sentencing them to a lifetime in prison." Ibid. The Court
      recognized that a sentencer might encounter the rare juvenile
      offender who exhibits such irretrievable depravity that rehabilitation
      is impossible and life without parole is justified. But in light of
      "children's diminished culpability and heightened capacity for
      change," Miller made clear that "appropriate occasions for
      sentencing juveniles to this harshest possible penalty will be
      uncommon." Ibid.

Montgomery, 136 S. Ct. at 733-34. The Court then explained,

      [b]ecause Miller determined that sentencing a child to life without
      parole is excessive for all but "the rare juvenile offender whose
      crime reflects irreparable corruption," 567 U.S., at_, 132 S. Ct., at
      2469 (quoting Roper, supra, at 573, 125 S. Ct. 1183), it rendered
      life without parole an unconstitutional penalty for "a class of
      defendants because of their status"—that is, juvenile offenders

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No. 76232-0-1/6


       whose crimes reflect the transient immaturity of youth. As a result,
       Miller announced a substantive rule of constitutional law.

Montgomery, 136 S. Ct. at 734 (citation omitted).

       But there is even more to be learned about Miller from the

Montgomery opinion.

               To be sure, Miller's holding has a procedural component.
       Miller requires a sentencer to consider a juvenile offender's youth
       and attendant characteristics before determining that life without
       parole is a proportionate sentence... . Those procedural
       requirements do not, of course, transform substantive rules into
       procedural ones.
               The procedure Miller prescribes is no different. A hearing
       where "youth and its attendant characteristics" are considered as
       sentencing factors is necessary to separate those juveniles who
       may be sentenced to life without parole from those who may not.
       567 U.S., at_, 132 S. Ct., at 2460. The hearing does not replace
       but rather gives effect to Miller's substantive holding that life without
       parole is an excessive sentence for children whose crimes reflect
       transient immaturity.

Montgomery, 136 S. Ct. at 734-35 (emphasis added).

       Miller thus established two inter-related, substantive constitutional

rules. The Eighth Amendment prohibits both (1) the mandatory imposition

of a life-without-parole sentence on a juvenile offender, and (2)the

imposition of a life-without-parole sentence on a juvenile offender whose

crime reflects transient immaturity, as opposed to irretrievable depravity.

       Our Supreme Court undertook an application of Miller just last year.

In State v. Ramos, the court held that "Miller applies equally to literal and

de facto life-without-parole sentences." 187 Wn.2d 420, 437, 387 P.3d

650, cert. denied, 138 S. Ct. 467(2017). The court described a de facto




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No. 76232-0-1/7


life sentence as follows: "a total prison term exceeding the average human

life-span—that is, a de facto life sentence." Ramos, 187 Wn.2d at 434.

       The Supreme Court then applied the Miller guarantees to the de

facto life sentence imposed on Ramos. In so doing, it set forth the rule of

Miller: "Miller establishes a substantive rule that a life-without-parole

sentence cannot be imposed on a juvenile homicide offender whose

crimes reflect transient immaturity." Ramos, 187 Wn.2d at 436(emphasis

added). Applying this to Ramos's situation, the court explained that

       Ramos was in fact sentenced to die in prison for homicide offenses
       he committed as a juvenile. Miller plainly provides that a juvenile
       homicide offender cannot be sentenced to die in prison without a
       meaningful opportunity to gain early release based on
       demonstrated rehabilitation unless the offender first receives a
       constitutionally adequate Miller hearing.

Ramos, 187 Wn.2d at 440(emphasis added).

       The import of the discussions in Montgomery and Ramos is that

they make clear that Miller, as an Eighth Amendment case, is concerned

with the punishment imposed. The Miller rule is applicable when a

juvenile offender is sentenced to die in prison (as a result of the imposition

of either a literal or a de facto life-without-parole sentence).

       Here, Keodara was not sentenced to die in prison. The sentencing

judge found that he had proved that he deserved an exceptional sentence

below the standard range. Such a sentence was imposed. The 40-year

sentence imposed is not a de facto life sentence. Should Keodara serve




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No. 76232-0-1/8


the full sentence, he will be age 58 upon release.5 His life expectancy, as

predicted by official state records, is 77 years.6

        Because Keodara did not receive a literal or a de facto life-without-

parole sentence, Miller does not apply to appellate review of his

sentence.7

                                                 Ill

        The fact that Keodara was not sentenced to die in prison does not mean

that the Eighth Amendment has no applicability to the sentence imposed upon

him. In fact, as the recipient of a less-than-life sentence, Keodara's sentence, on

appellate review, is measured against the requirements of State v. Houston-

Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). In that decision, our Supreme

Court noted that

        "[C]hildren are different." Miller v. Alabama, 567 U.S. 460, 132 S.
        Ct. 2455, 2470, 183 L. Ed. 2d 407(2012). That difference has
        constitutional ramifications: "An offender's age is relevant to the
        Eighth Amendment, and [so] criminal procedure laws that fail to
        take defendants' youthfulness into account at all would be flawed."
        Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d
        825 (2010); U.S. CONST. amend. VIII.


        5  If he earns early release, Keodara may be released as early as age 39.
        6 When    life expectancy is at issue in litigation, the Washington Pattern Jury Instructions
contain a suggested pattern jury instruction addressing the issue. That instruction, WPIC 34.04
(6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 34.04 (6th ed. 2012)),
allows the jury to be instructed on a person's life expectancy based on data routinely gathered by
the Washington Insurance Commissioner. See 6A WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CIVIL APPENDIX B LIFE EXPECTANCY TABLE, at 665-68 (6th ed. 2012). Our
statement as to Keodara's life expectancy is based on that data. See Life-expectancy table,
Office of the Insurance Commissioner Washington State (April 18, 2018, 10:46 a.m.),
https://insurance.wa.gov/life-expectancy-table.
        7 Keodara's appellate contention is that Miller set forth a procedural right. That right,
Keodara avers, is to have his sentencing hearing proceed in a particular fashion, with the court
considering certain factors, regardless of the sentence actually imposed. This is wrong. Miller
ensures that only juveniles who manifest irretrievable depravity are sentenced to die in prison.
The Eighth Amendment does not require an inquiry into irretrievable depravity as a precursor to a
sentence such as that imposed on Keodara.

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No. 76232-0-1/9


Houston-Sconiers, 188 Wn.2d at 8. Thus, a rule was announced.

      Because "children are different" under the Eighth Amendment and
      hence "criminal procedure laws" must take the defendants'
      youthfulness into account, sentencing courts must have absolute
      discretion to depart as far as they want below otherwise applicable
      SRA ranges and/or sentencing enhancements when sentencing
      juveniles in adult court, regardless of how the juvenile got there.

Houston-Sconiers, 188 Wn.2d at 9. This rule led to the court's holding.

      [W]e hold that sentencing courts must have complete discretion to
      consider mitigating circumstances associated with the youth of any
      juvenile defendant, even in the adult criminal justice system,
      regardless of whether the juvenile is there following a decline
      hearing or not. To the extent our state statutes have been
      interpreted to bar such discretion with regard to juveniles, they are
      overruled. Trial courts must consider mitigating qualities of youth at
      sentencing and must have discretion to impose any sentence below
      the otherwise applicable SRA range and/or sentence
      enhancements.

Houston-Sconiers, 188 Wn.2d at 21 (footnote omitted). Accordingly, the

Supreme Court ruled, the court that sentenced Houston-Sconiers had erred by

reasoning that, in sentencing him, it was statutorily required to impose mandatory

firearm enhancements to be served consecutively. Houston-Sconiers, 188

Wn.2d at 25-26.

       No such error occurred herein. At Keodara's sentencing hearing, the

court considered extensive written submittals. It considered, and entered

findings and conclusions describing, the impact of his youth on his criminal

culpability. It found that Keodara proved by a preponderance of the evidence

that he was entitled to an exceptional sentence below the standard range. And it

imposed just such a sentence.




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No. 76232-0-1/10


       The standard range sentence applicable to Keodara was 831 months to

1141 months in prison. The superior court sentenced him to an exceptional

sentence downward: a total of 480 months. The sole reason given for this

sentence was Keodara's youth.

       On appeal, Keodara mistakenly claims that the trial court erred by

imposing four consecutive 60-month firearm enhancements. This is not so. The

trial court plainly understood that it had the discretion not to do so. However, it

chose to structure its leniency by drastically reducing the period of incarceration it

imposed on the murder conviction—reducing that part of the sentence to 240

months. It then ordered that the base sentences for Keodara's four other

convictions be served concurrently with the murder sentence. "[A]n exceptional

sentence may be for a reduced term of years, for concurrent rather than

consecutive sentences, or both." Ramos, 187 Wn.2d at 434.

       The trial court exercised its discretion, based solely on Keodara's youth,

and determined that he should receive an exceptional sentence below the

standard range. The trial court then again exercised its discretion, based solely

on Keodara's youth, and structured the exceptional sentence so that it totaled

480 months-351 months below the lowest end of the standard range. By

recognizing that it had such discretion—and by exercising that discretion in good

faith—the sentencing court fully complied with the requirements of Houston-

Sconiers.




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No. 76232-0-1/1 1


      Affirmed.



We concur:



cer
