                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                           August 29, 2017




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    In the Matter of the                                              No. 49127-3-II
    Personal Restraint Petition of
                                                           (Consolidated with No. 49257-1-II)
    JAMAL DESHAWN SMITH,



                                                               UNPUBLISHED OPINION



          JOHANSON, J. — Jamal D. Smith petitions for relief from personal restraint. Smith argues

that his sentences violate the Eighth Amendment of the federal constitution, and he requests a

resentencing hearing. We accept the State’s concession that, under State v. Houston-Sconiers,1

Smith is entitled to resentencing. Accordingly, we grant Smith’s petition, reverse his sentences,

and remand for resentencing.

                                              FACTS

          On February 15, 2003, 17-year-old Smith shot Jason Fonder as part of a failed drug deal.

Smith evaded law enforcement until he was eventually arrested in May 2004, when he was charged

as an adult with attempted first degree murder (count I), first degree robbery (count III), possession



1
    188 Wn.2d 1, 391 P.3d 409 (2017).
Consol. Nos. 49127-3-II / 49257-1-II


of over 40 grams of marijuana (count IV), all with firearm enhancements, and possession of an

illegal firearm (count II).2 Miraculously, Fonder survived the gunshot injury and was expected to

testify against Smith at trial.

        On July 18, the day before trial was to begin and after Smith’s 19th birthday, Smith

facilitated a break-in of Fonder’s house with the intent to kill Fonder to prevent him from testifying

at Smith’s trial. Smith’s trial was delayed, and the State amended the information to add a second

charge of attempted first degree murder (count V) and a residential burglary (count VI); the first

degree robbery charge was changed to count II, the possession of marijuana charge was changed

to count III, and the unlawful possession of a firearm charge was changed to count IV.

        Smith was convicted as charged.3 The sentencing court imposed standard range sentences,

with mandatory firearm enhancements on counts I, II, and III. For these under-age-18 offenses,

Smith was sentenced to a total of 460 consecutive months: 322 months for count I, plus 138

months for the firearm enhancements on counts I to III to run consecutively. For the over-age-18

offenses, Smith was sentenced to a total of 240 months to run consecutively to the under-age-18

offenses.

        The sentencing court concluded that it was mandated to run the firearm enhancements and

sentences for the serious violent offenses (counts I and V) consecutively, pursuant to former RCW

9.94A.589 (2002). These sentences total 700 months or 58 years and 4 months. Of this sentence,




2
  A first degree rendering criminal assistance while armed with a deadly weapon charge was
dismissed before trial.
3
 The offenses committed while Smith was under 18 are referred to as “under-age-18 offenses”
and the offenses committed after age 18 are referred to as “over-age-18 offenses.”

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Consol. Nos. 49127-3-II / 49257-1-II


38 years and 4 months are for the under-age-18 offenses and 20 years are for the over-age-18

offenses. We affirmed Smith’s convictions in an unpublished opinion.

       In May 2016, Smith, now 31 years old, filed a CrR 7.8 motion for relief from judgement,

asserting that Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)

announced a significant change in the law concerning the sentencing of juvenile offenders. The

Superior Court transferred the motion to us under CrR 7.8(c)(2) as a personal restraint petition

(PRP) on grounds that the motion was time-barred under RCW 10.73.090.

                                            ANALYSIS

                                   I. PRP STANDARD OF REVIEW

       A petitioner may request relief through a PRP when he is under an unlawful restraint. RAP

16.4(a)-(c). A personal restraint petitioner must prove either a (1) constitutional error that results

in actual and substantial prejudice or (2) nonconstitutional error that “‘constitutes a fundamental

defect which inherently results in a complete miscarriage of justice.’” In re Pers. Restraint of

Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004) (quoting In re Pers. Restraint of Cook, 114 Wn.2d

802, 813, 792 P.2d 506 (1990)).

       Here, Smith alleges a constitutional error that resulted in actual and substantial prejudice.

He alleges the sentencing court violated his Eighth Amendment rights in failing to consider his

youth prior to sentencing.




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Consol. Nos. 49127-3-II / 49257-1-II


                              II. SMITH’S PRP IS NOT TIME-BARRED

       Smith argues that his PRP is not time-barred because recent decisions constitute an

exception allowed under RCW 10.73.100(6).4 Accepting the State’s concession,5 we agree that

Smith’s PRP is not time-barred.

       Generally, no petition or motion for a collateral attack on a sentence in a criminal case may

be filed more than one year after the judgment becomes final. RCW 10.73.090. There are,

however, six exceptions to this one-year limit, as stipulated in RCW 10.73.100. An exception to

the one-year limit exists when there has been a significant change in the law that is material to the

order being challenged, and the change is applied retroactively. RCW 10.73.100(6).

       Smith argues that Miller constitutes a significant change to the law, that Miller is material

to the order being challenged, and that Miller is intended to be applied retroactively. The State

concedes that Houston-Sconiers represents a significant change in the law. We agree that Miller

and Houston-Sconiers represent a significant change in the law that is material to the order being

challenged and that the changed law is intended to be applied retroactively.6




4
 Smith alleges that he is entitled to a new sentencing hearing under the decisions in Miller, 567
U.S. 460; State v. Ronquillo, 190 Wn. App. 765, 778-79, 361 P.3d 779 (2015), and State v. O’Dell,
183 Wn.2d 680, 683, 358 P.3d (2015).
5
 In the State’s original response to Smith’s pro se petition, the State concedes that the petition is
not time-barred. In the State’s response to the petition drafted by Smith’s attorney entitled “Brief
of Appellant,” the State concedes that Smith is entitled to the relief Smith requests but without
specifically mentioning the time-bar issue again.
6
 Division One recently held that O’Dell constitutes a “significant, material change in the law that
applies retroactively,” classifying O’Dell as an exception allowed under RCW 10.73.100(6). In
re Pers. Restraint of Light-Roth, No. 75129-8-I, 2017 WL 3473644, at *2 (Wash. Ct. App. Aug.
14, 2017). We agree.
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Consol. Nos. 49127-3-II / 49257-1-II


      A. MILLER AND HOUSTON-SCONIERS CONSTITUTE SIGNIFICANT CHANGES IN THE LAW

       An intervening opinion may constitute a “‘significant change in the law’” under RCW

10.73.100(6) if it effectively overturns a prior appellate decision that was determinative on the

material issue now reversed. In re Pers. Restraint of Lavery, 154 Wn.2d 249, 258, 111 P.3d 837

(2005) (quoting In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000)). “One

test to determine whether an appellate decision represents a significant change in the law is whether

the defendant could have argued this issue before the publication of the decision.” In re Pers.

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

       Miller and Houston-Sconiers constitute significant changes in the law.                 Miller

unequivocally held that a mandatory life sentence without parole for those under 18 at the time of

their crimes violated the Eighth Amendment’s prohibition on cruel and unusual punishments. 567

U.S. at 465. Prior to the publication of Miller, “29 jurisdictions . . . ma[d]e a life-without-parole

term mandatory for some juveniles.” 567 U.S. at 482. That is, in 29 jurisdictions, including

Washington, a juvenile could not argue that a mandatory life-without-parole sentence was

unconstitutional prior to Miller’s publication. See State v. Ronquillo, 190 Wn. App. 765, 777-79,

361 P.3d 779 (2015) (discussing Washington’s “Miller fix” statute, RCW 9.94A.730, and the

intent of our legislature to cure any constitutional sentencing defects following the publication of

Miller). As such, Miller constitutes a significant change in the law.

       Similarly, Houston-Sconiers held that courts sentencing juveniles in adult court have

“absolute discretion to depart as far as they want” from standard sentencing ranges and mandatory

enhancements. 188 Wn.2d at 9. The trial court judge “expressed frustration at his inability to

exercise greater discretion over the sentences imposed.” Houston-Sconiers, 188 Wn.2d at 13.


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Moreover, Houston-Sconiers overruled a prior appellate decision that was determinative of the

outcome here: State v. Brown, 139 Wn.2d 20, 22, 983 P.2d 608 (1999) (holding that sentencing

courts have no discretion to impose an exceptional sentence below the time specified in mandatory

enhancements), overruled by Houston-Sconiers, 188 Wn.2d 1.           As such, Houston-Sconiers

constitutes a significant change in the law.

     B. MILLER AND HOUSTON-SCONIERS ARE MATERIAL TO THE ORDER BEING CHALLENGED

       Smith argues that he is entitled to a resentencing hearing on grounds that he was sentenced

for crimes committed as a juvenile to an effective life-without-parole sentence. Additionally,

Smith objects to the mandatory nature of the enhancements and the application of the serious

violent offense rule to his sentence. As such, Miller and Houston-Sconiers are both material here.

See Miller, 567 U.S. at 483 (prohibiting life-without-parole sentences for juveniles); Houston-

Sconiers, 188 Wn.2d at 9 (holding that courts have discretion to depart below mandatory

sentencing enhancements for juveniles).

       C. MILLER AND HOUSTON-SCONIERS ARE INTENDED TO BE APPLIED RETROACTIVELY

       Courts distinguish between new rules of constitutional law which, unless exceptional, do

not apply retroactively, and rules that give new application to an old rule, which are presumed to

apply retroactively. Teague v. Lane, 489 U.S. 288, 290-91, 109 S. Ct. 1060, 103 L. Ed. 2d 334

(1989); In re Pers. Restraint of Colbert, 186 Wn.2d 614, 619-20, 380 P.3d 504 (2016). A rule is

not “new” when it is based on statutory interpretation. Colbert, 186 Wn.2d at 619-20.

       The Supreme Court has held that Miller is intended to be applied retroactively with regard

to PRPs. Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 724, 193 L. Ed. 2d 599 (2016)

(“Miller’s prohibition on mandatory life without parole for juvenile offenders announced a new


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substantive rule that, under the Constitution, is retroactive in cases on state collateral review.”).

Houston-Sconiers involved interpretation of our statutory sentencing scheme; therefore, Houston-

Sconiers does not create a new rule and is presumed to apply retroactively. 188 Wn.2d at 21 (“To

the extent our state statutes have been interpreted to bar such discretion with regard to juveniles,

they are overruled.”).    Therefore, both Miller and Houston-Sconiers are intended to apply

retroactively.

       Thus, Smith’s petition is not time-barred and he is entitled to review.

                      III. SMITH IS ENTITLED TO A RESENTENCING HEARING

       Smith alleges that, in light of recent development in the area of juvenile sentencing, he is

entitled to a new sentencing hearing. The State concedes that Smith is entitled to resentencing in

light of Houston-Sconiers, 188 Wn.2d at 21. We accept the State’s concession.

       The Eighth Amendment extends greater protection to juveniles. See, e.g., Miller, 567 U.S.

at 479-80 (noting that “children are different” in support of holding mandatory life without parole

sentences for juveniles unconstitutional); Graham v. Florida, 560 U.S. 48, 68-70, 130 S. Ct. 2011,

176 L. Ed. 2d 825 (2010) (holding life-without-parole sentences for nonhomicide offenses for

juveniles unconstitutional); Roper v. Simmons, 543 U.S. 551, 574, 124 S. Ct. 1183, 161 L. Ed. 2d

1 (2005) (holding death penalty for juveniles unconstitutional).

       In addition, our Supreme Court held that sentencing courts have complete discretion to

consider mitigating circumstances associated with the youth of any juvenile defendant. Houston-

Sconiers, 188 Wn.2d at 21. In Houston-Sconiers, defendants who committed nonhomicide crimes

while under 18 years of age, appealed their sentences of 31 and 26 years on grounds that, in part,

the differences between children and adults render their mandatory firearm enhancements


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Consol. Nos. 49127-3-II / 49257-1-II


unlawful. 188 Wn.2d at 13, 18. The Supreme Court held that “[t]he mandatory nature of these

enhancements violates the Eighth Amendment protections.” Houston-Sconiers, 188 Wn.2d at 25-

26. The court also held that “sentencing courts must have absolute discretion to depart as far as

they want below otherwise applicable [Sentencing Reform Act of 1981, ch. 9.94A RCW,] ranges

and/or sentencing enhancements when sentencing juveniles in adult court.” Houston-Sconiers,

188 Wn.2d at 9.

       Under Houston-Sconiers, the sentencing court here had discretion to depart from

“mandatory” firearm enhancements and from the serious violent offense rule that requires

consecutive sentencing. 188 Wn.2d at 9. We recognize that the trial court did not have the benefit

of the Houston-Sconiers decision at the time of sentencing Smith. But in light of Houston-

Sconiers, the trial court erred when it concluded that it was constrained to impose the mandatory

firearm enhancements as well as the serious violent offense consecutive sentencing provisions.

Consequently, the trial court did not adequately consider mitigating circumstances associated with

the youth of Smith when sentencing him. See Houston-Sconiers, 188 Wn.2d at 21; State v. O’Dell,

183 Wn.2d 680, 683, 358 P.3d 359 (2015); In re Pers. Restraint of Light-Roth, No. 75129-8-I,

2017 WL 3473644, at *2 (Wash. Ct. App. Aug. 14, 2017).

       We hold that Smith has shown a constitutional error that resulted in actual and substantial

prejudice. Therefore, the appropriate remedy is to remand for resentencing to allow the sentencing

court an opportunity to consider the mitigating circumstances associated with Smith’s youth,




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consistent with recent case law. Thus, we grant Smith’s petition, reverse his sentences and remand

for a new sentencing hearing.

        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.



                                                    JOHANSON, J.
 We concur:



 WORSWICK, P.J.




 MELNICK, J.




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