       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Personal               No. 76988-0-1
 Restraint of
                                             DIVISION ONE
 BRANDON KENNETH WHITE,
                                             UNPUBLISHED OPINION


                             Petitioner.     FILED: December 2, 2019


       CHUN, J. — In this personal restraint petition (PRP), Brandon White argues

he is entitled to resentencing because a significant change in the law of

sentencing young adults and juveniles renders unconstitutional the statute under

which he was sentenced, RCW 10.95.030. White also argues the State did not

present sufficient evidence to support his conviction. Because White's claim of

unconstitutionality is untimely, we deny the petition in its entirety.

                                  I. BACKGROUND

       A jury convicted White of aggravated first degree murder, and made

special findings that he committed the crime with a gun and knife. White was

19 years old at the time of the crime. The trial court sentenced him to life without

the possibility of parole(LWOP). White's judgment and sentence became final

on February 3, 2004, when our Supreme Court denied White's petition for review.

See State v. White, No. 49825-8-1 (Wash. Ct. App. June 16, 2003)(unpublished),
No. 76988-0-1/2


review denied, 150 Wn.2d 1034 (2004). White initially filed this petition on June

6, 2017, over 13 years after the judgment reached finality.

                                   II. ANALYSIS

       A petitioner typically must file a PRP within one year of the final judgment

of their conviction. RCW 10.73.090. But RCW 10.73.100 provides exceptions to

the one-year limit. The grounds for relief excepted from the one year time bar

that are applicable to White's petition are subsections (4) and (6):
      (4) The defendant pled not guilty and the evidence introduced at
      trial was insufficient to support the conviction; . . .
      (6) There has been a significant change in the law, whether
      substantive or procedural, which is material to the conviction,
      sentence, or other order entered in a criminal or civil proceeding
      instituted by the state or local government, and either the legislature
      has expressly provided that the change in the law is to be applied
      retroactively, or a court, in interpreting a change in the law that lacks
      express legislative intent regarding retroactive application,
      determines that sufficient reasons exist to require retroactive
      application of the changed legal standard.

RCW 10.73.100.

       White argues that a significant change in the law of sentencing juveniles

and young adults has occurred. Based on this claim, he argues that RCW

10.95.030, the statute under which the trial court sentenced him, is

unconstitutional as applied to adult offenders with youthful characteristics. The

State asserts that his grounds for relief under RCW 10.73.100(6) are time barred,

because no significant change in law has occurred. Thus, the State argues, his




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petition must be denied in its entirety because it is mixed. We agree with the

State.

A.       RCW 10.73.100(6)

         White argues he is entitled to resentencing because a significant change

in the law renders unconstitutional the statute under which he was sentenced,

RCW 10.95.030. He elaborates that the statute is unconstitutional as applied to

him because the court was unable to consider his youth as a mitigating factor

and impose a sentence less than life without parole. But no significant change in

law has occurred, so his claim of unconstitutionality is time barred.

         "A petitioner can overcome the one-year time bar under RCW

10.73.100(6) if [they] can identify (1) a significant change in the law (2) that is

material and (3) that applies retroactively." In re Pers. Restraint of Light-Roth,

191 Wn.2d 328, 333, 422 P.3d 444(2018)(internal quotation marks and citation

omitted). "A significant change in the law occurs when an intervening opinion

has effectively overturned a prior appellate decision that was originally

determinative of a material issue." In re Pers. Restraint of Colbert, 186 Wn.2d

614, 619, 380 P.3d 504(2016)(internal quotation marks and citation omitted).

"One 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)(internal quotation marks and citations omitted).




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       In support of his argument that a significant change in law has occurred,

White points to a constellation of recent federal and state cases that address

sentencing of juveniles and youthful offenders: Roper v. Simmons, 543 U.S.

551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1(2005)(holding the United States

Constitution's Eighth and Fourteenth Amendments prohibit imposition of the

death penalty on juvenile offenders); Graham v. Florida, 560 U.S. 48, 82, 130 S.

Ct. 2011, 176 L. Ed. 2d 825(2010)(holding the United States Constitution's

Eighth Amendment prohibits LWOP sentences for juveniles who did not commit

homicide); Miller v. Alabama, 567 U.S. 460, 502, 132 S. Ct. 2455, 183 L. Ed. 2d

407(2012)(holding the United States Constitution's Eighth Amendment bars

mandatory LWOP sentences for juveniles); State v. O'Dell, 183 Wn.2d 680,

698-99, 358 P.3d 359(2015)(holding non-juvenile defendants' youthfulness can

support exceptional sentences below the standard range applicable to adult

felony defendants); State v. Houston-Sconiers, 188 Wn.2d 1, 34, 391 P.3d 409

(2017)(holding that sentencing courts must consider the mitigating qualities of

youth when sentencing juveniles, and must have discretion to depart from

mandatory sentence enhancements when sentencing juveniles in adult court);

and State v. Bassett, 192 Wn.2d 67, 91, 428 P.3d 343(2018)(holding LWOP for

juvenile defendants violates Washington's Constitution).




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       Referring to these cases, White asks the court to infer that a significant

change in law has occurred that allows sentencing courts to depart from

mandatory sentence enhancements for "youthful" adult offenders.

       The holdings of Roper, Graham, Miller, Houston-Sconiers, and Bassett

apply explicitly only to juveniles.1 O'Dell is the only case White cites relating to

sentencing of "youthful" adult offenders. But in Light-Roth, our Supreme Court

held O'Dell did not constitute a significant change in law, since sentencing courts

have always had the discretion to consider a defendant's youthfulness at

sentencing. 191 Wn.2d at 336-38.

       White asks the court to examine these cases cumulatively, not

individually. White offers no legal authority in support of his proposition that the

court may examine an array of cases, and from such, infer a significant change in

law has occurred. Indeed, the test for determining whether there has been a

significant change in law asks the court to examine if the defendant could have

made their argument before the publication of a given decision—not before a

trend of decisions. See Miller, 185 Wn.2d at 115. And when courts analyze

whether a significant change in law has occurred, the focus of their analysis is

whether a single case has changed Washington law in some way. See, e.q.,

Miller, 185 Wn.2d at 115-16 (analyzing whether In re Pers. Restraint of


       1 In a statement of additional authority, White also asks the court to address
State v. Gilbert, 193 Wn.2d 169, 438 P.3d 133(2019). But similarly, Gilbert's holding
addresses only resentencing procedures for juveniles.




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Mulholland, 161 Wn.2d 322, 166 P.3d 677(2007), significantly changed the law

of concurrent sentencing); Colbert, 186 Wn.2d at 619 (analyzing whether State v.

W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014), significantly changed the law

regarding the burden of proof of consent in second degree rape cases); In re

Pers. Restraint of Yung-Chenq Tsai, 183 Wn.2d 91, 105-07, 351 P.3d 138

(2015)(analyzing whether Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,

176 L. Ed. 2d 284(2010), significantly changed the law regarding ineffective

assistance of counsel). White bases his argument on an erroneous

understanding of the manner in which a "significant change in law" occurs.

       Because White cannot satisfy the significant change in law element of

RCW 10.73.100(6), we need not address whether the materiality and retroactivity

elements are satisfied.

       Because White cannot satisfy RCW 10.73.100(6), his claim of

unconstitutionality is time barred, and we will not consider it.

B.     Mixed Petition

       Because his claim of unconstitutionality is time barred, we must deny

White's entire petition:
       [I]f a personal restraint petition claiming multiple grounds for relief is
       filed after the one-year period of RCW 10.73.090 expires, and the
       court determines that at least one of the claims is time barred, the
       petition must be [denied]. Under such circumstances the court will
       not analyze every claim that is raised in order to determine or advise
       which claims are time barred and which are not, nor will it decide
       claims under RCW 10.73.100 that are not time barred.




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 No. 76988-0-1/7



In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 702-03, 72 P.3d 703

(2003). White's petition is mixed. Thus, we deny White's petition without

consideration of his "sufficiency of the evidence" claim.2

        Denied.




WE CONCUR:




  nirtAel el,   tiC.:
                    ,r




        2 As the State conceded at oral argument, White may file a PRP in the future
bringing other claims he believes fall within the exceptions of RCW 10.73.100. While
RAP 16.4(d) bars a second petition claiming similar relief without a showing of good
cause, a successive petition will be dismissed on these grounds only where the prior
application was denied after being heard and determined on the merits. In re Pers.
Restraint of Stoudmire, 141 Wn.2d 342, 350, 5 P.3d 1240(2000)(rev'd on other grounds
by In re Pers. Restraint of Turav, 153 Wn.2d 44, 101 P.3d 854 (2004)). Where claims
are dismissed because they are contained in a mixed petition, the dismissal is on
procedural grounds and the court has not considered the claims on the merits.
Stoudmire, 141 Wn.2d at 350-51.




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