                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        October 24, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 49152-4-II

                       Respondent,

        v.                                                   UNPUBLISHED OPINION

 AARON ATA TOLEAFOA,

                       Appellant.


       MAXA, J. – Aaron Toleafoa appeals the sentence the trial court imposed following his

guilty pleas to multiple felonies he committed when he was 15 years old. He claims that the trial

court failed to properly consider his youth in denying his request for an exceptional sentence

below the standard sentencing range for his offenses.

       The trial court did consider Toleafoa’s youth under the law existing at the time of

sentencing before declining to impose an exceptional sentence. However, the Supreme Court in

State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), subsequently held that a trial

court must consider certain factors when sentencing a juvenile offender. Because the trial court

did not have the benefit of Houston-Sconiers when sentencing Toleafoa, we remand for

resentencing.
No. 49152-4-II


                                              FACTS

       In October 2014, Toleafoa and another person burglarized a home and stole a rifle, other

items, and a vehicle. The next day, Toleafoa and his friend stole another vehicle. They later

ordered a woman out of her vehicle at gunpoint, stole her purse, and took her vehicle. Finally,

Toleafoa aimed his rifle at a person’s head and then shot him in the chest. Tacoma police

arrested Toleafoa a few days later after he fired several rifle rounds in an apartment complex.

       The State charged Toleafoa with eight felonies and two misdemeanors. Toleafoa pleaded

guilty to attempted second degree murder, first degree robbery, first degree burglary, theft of a

motor vehicle, and second degree taking of a motor vehicle without the owner’s permission.

       Toleafoa presented a mitigation package at his sentencing hearing, arguing for an

exceptional sentence downward because of his youthfulness and other circumstances in his life.

The trial court correctly recognized that Toleafoa’s youth could be a mitigating factor at

sentencing that could support an exceptional sentence downward. But the court denied

Toleafoa’s motion for an exceptional sentence downward, stating:

          But let me just say I think, Mr. Toleafoa, you were not living the life of a 15-
       year-old when you committed this offense. You have a child that you fathered.
       You were out running the streets involved in a whole variety of activities. You
       were not residing primarily under your family roof to the extent that they were in
       control of you, and you were not in school at the time. You were out causing
       problems. You made some horrific decisions in this case.
       ....

          So this is not a case in my mind where I could say that your behavior was that
       of a juvenile who doesn’t have a well-formed brain at that point and doesn’t have
       the ability to appreciate the wrongfulness of his conduct. You certainly did.
       ....

          You had exceeded the role of a juvenile when you made this decision, and I think
       that it’s reflected in the fact that you’re dealing with a serious range and a serious
       adult consequences for adult-like behavior.


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No. 49152-4-II


4 Report of Proceedings at 164-66. Instead, the court imposed standard range sentences, the

maximum of which was 260 months of incarceration.

       Toleafoa appeals his sentence.

                                           ANALYSIS

       Under RCW 9.94A.535,1 a trial court may impose a sentence outside the standard

sentence range if it finds that there are “substantial and compelling reasons justifying an

exceptional sentence.” The legislature enacted the exceptional sentence provision of the

Sentencing Reform Act (SRA) to authorize courts to tailor the sentence to the facts of the case,

recognizing that not all individual cases fit the predetermined sentencing grid. State v. Davis,

146 Wn. App. 714, 719-20, 192 P.3d 29 (2008).2

       RCW 9.94A.535(1) provides a list of mitigating factors that can support a trial court's

imposition of an exceptional sentence below the standard range if established by a

preponderance of the evidence. Under RCW 9.94A.535(1)(e), one mitigating factor is that “[t]he

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.” The statute states that

the factors are “illustrative only and are not intended to be exclusive reasons for exceptional


1
 RCW 9.94A.535 has been amended since the events of this case transpired. However, these
amendments do not impact the statutory language relied on by this court. Accordingly, we do
not include the word “former" before RCW 9.94A.535.
2
 Generally, a sentence within the standard sentence range for an offense may not be appealed.
RCW 9.94A.585(1). However, a defendant may appeal the process by which a trial court
imposed a sentence. State v. Knight, 176 Wn. App. 936, 957, 309 P.3d 776 (2013). Therefore, a
party may challenge “the underlying legal conclusions and determinations by which a court
comes to apply a particular sentencing provision.” State v. Ramos, 187 Wn.2d 420, 433, 387
P.3d 650 (2017).



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No. 49152-4-II


sentences.” RCW 9.94A.535(1). However, nonstatutory factors supporting an exceptional

below-range sentence must “relate to the crime, the defendant's culpability for the crime, or the

past criminal record of the defendant.” State v. Law, 154 Wn.2d 85, 89, 110 P.3d 717 (2005).

       In State v. O’Dell, the Supreme Court held that youth may relate to a defendant’s crime,

and therefore “youth can . . . amount to a substantial and compelling factor, in particular cases,

justifying a sentence below the standard range.” 183 Wn.2d 680, 696, 358 P.3d 359 (2015). As

a result, the court stated that the trial court “must be allowed to consider youth as a mitigating

factor when imposing a sentence” on a youthful offender. Id.

       In Houston-Sconiers, the Supreme Court held that the trial court was required to consider

a juvenile defendant’s youth in sentencing, even for statutorily mandated sentences. 188 Wn.2d

at 8-9. The court stated, “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.” Id. at 21.

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

the court also provided guidance to trial courts on how to exercise their discretion in juvenile

sentencing. Houston-Sconiers, 188 Wn.2d at 23. The court emphasized that the sentencing court

must consider the following factors:

       1. “[M]itigating circumstances related to the defendant’s youth – including age and its

‘hallmark features,’ such as the juvenile’s ‘immaturity, impetuosity, and failure to appreciate

risks and consequences.’ ” Id. (quoting Miller, 567 U.S. at 477).

       2. “[F]actors like the nature of the juvenile’s surrounding environment and family

circumstances, the extent of the juvenile’s participation in the crime, and ‘the way familial and



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No. 49152-4-II


peer pressures may have affected him’ [or her].” Houston-Sconiers, 188 Wn.2d at 23 (quoting

Miller, 567 U.S. at 477).

       3. “[H]ow youth impacted any legal defense, along with any factors suggesting that the

child might be successfully rehabilitated.” Houston-Sconiers, 188 Wn.2d at 23.

       The court concluded, “This is what the sentencing court should have done in this case,

and this is what we remand for it to do.” Id.

       Here, Toleafoa argues that the trial court failed to meaningfully consider his youth as a

possible mitigating circumstance. He claims that the court (1) improperly considered Toleafoa’s

maturity and lifestyle compared to other juveniles rather than compared to adult offenders, (2)

failed to consider Toleafoa’s likelihood for rehabilitation from maturation, and (3) failed to

consider how immature judgment and impetuousness may have contributed to Toleafoa’s

conduct. The second and third arguments track two of the factors that the Supreme Court in

Houston-Sconiers stated that a sentencing court “must consider.” 188 Wn.2d at 23.

       The trial court’s decision reflects its consideration of Toleafoa’s mitigation package and

briefing in support of an exceptional sentence downward. And the court’s discussion of its

sentencing decision shows its understanding that it could impose an exceptional sentence based

on Toleafoa’s youth.

       However, at the time of Toleafoa’s sentencing, Houston-Sconiers had not yet been

decided. Therefore, the trial court was not aware that there were certain factors that a sentencing

courts must consider when sentencing a juvenile defendant. Nevertheless, Houston-Sconiers

applies here because Toleafoa’s appeal was pending when that decision was issued. See In re

Pers. Restraint of Haghighi, 178 Wn.2d 435, 443, 309 P.3d 459 (2013).



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No. 49152-4-II


        The trial court addressed some but not all of the factors outlined in Houston-Sconiers.

We are unable to discern whether the court’s sentence would have been different if it had

considered all of these factors. Accordingly, we must remand for resentencing for the trial court

to fully consider the Houston-Sconiers mandatory factors.

                                          CONCLUSION

        We remand for resentencing under the guidelines adopted in Houston-Sconiers for

sentencing juvenile defendants.

        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.



                                                      MAXA, J.


 We concur:



 WORSWICK, J.




 BJORGEN, C.J.




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