 /mCTEV
/ IN CLERU OFFICE X
                                                                              This opinion was
aUPflSE COURT.8TOE OFIMMNMOICN                                                filed fqrrecord
                                                                       at 8^/tc^n               ;ir>^Ln
    date          3 (j
                                                                          -       -d2i
       em^MsTiGE
                                                                          Susan L. Carlson
                                                                         Supreme Court Clerk




        IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                            No. 96709-1
                          Petitioner,

                                                            EN BANC


 CRISTIAN DELBOSQUE
                                                            Filed:              3 0 2020
                          Respondent.


           YU, J. — We have continually recognized that children are different from

 adults for the purpose of sentencing. We also recognize that trial judges face an

 extraordinarily difficult task when determining whether a child's crime is a

 reflection of transient immaturity or permanent incorrigibility. This case requires

 us to elaborate on how that determination is made in the context of Miller-fix^

 resentencing.




         'The Washington Legislature enacted the Miller-fix statutes, RCW 10.95.030 and
 10.95.035, in response to the United States Supreme Court's ruling that mandatory life without
 parole sentences for juveniles are unconstitutional. See Miller v. Alabama, 567 U.S. 460, 132 S.
 Ct. 2455, 183 L. Ed. 2d 407(2012).
State V. Delbosque, No. 96709-1


       In 1994, 17-year-old Cristian J. Delbosque was convicted of aggravated first

degree murder and received a mandatory life sentence without the possibility of

release. Because he was a juvenile at the time of his offense, Delbosque was

resentenced in 2016 in accordance with the Miller-fix statute and received a


minimum term of48 years without the possibility of parole. The Court of Appeals

concluded that Delbosque could seek review of his sentence only through a

personal restraint petition (PRP), rather than direct appeal, but nevertheless

reversed his sentence, holding that the trial court's factual findings were not

supported by substantial evidence.

       We affirm the Court of Appeals' holding that the sentencing court's findings

were not supported by substantial evidence, thus remanding for resentencing was

proper. However, we reverse the Court of Appeals' holding that Delbosque was

not entitled to a direct appeal. We therefore affirm in part, reverse in part, and

remand for resentencing.

                 FACTUAL AND PROCEDURAL BACKGROUND

A.     The crime and original sentence

       On October 18, 1993, after a period of heavy drinking, 17-year-old

Delbosque brutally murdered Filiberto Sandoval and Kristina Berg. When

questioned by police, Delbosque waived his rights and confessed to the murders,

although he testified at trial that his girlfriend was the one responsible.
State V. Delbosque, No. 96709-1


       A jury found Delbosque guilty of aggravated first degree murder for the

death of Berg and second degree felony murder for the death of Sandoval.

Delbosque was sentenced to mandatory life without the possibility of parole for

Berg's murder.^

B.     2016 Miller-fix hearing

       The Washington Legislature enacted the Miller-fix statute in response to the

United States Supreme Court's decision in Miller, 567 U.S. 460. Miller held the

Eighth Amendment's ban on cruel and unusual punishment prohibits mandatory

life without parole sentences for juveniles and requires sentencing judges to

consider "how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison." Id. at 480; U.S. CONST,

amend. VIII. The Miller-fix amended several RCW chapters relating to juvenile

sentencing; however, this case involves only provisions concerning unlawful

mandatory life without parole sentences for aggravated first degree murder. RCW

10.95.035(1) provides that juveniles who received such sentences prior to June 1,

2014 "shall be returned to the sentencing court or the sentencing court's successor

for sentencing consistent with RCW 10.95.030." Delbosque was a juvenile

eligible to be resentenced.




       ^ Delbosque's felony murder conviction was later vacated in accordance with In re
Personal Restraint ofAndress, 147 Wn.2d 602, 56 P.3d 981 (2002).
State V. Delbosque, No. 96709-1


       Between June and November 2016, the superior court held a four-day

evidentiary hearing pursuant to the Miller-Tix statute. Both sides presented several

witnesses who testified about the crime, about Delbosque's life experience leading

up to the murders, and about his behavior as an adult. In its oral ruling, the trial

sentenced Delbosque to a minimum term of48 years without the possibility of

release.


       1.     Evidence presented

       The State presented testimony from the officer who investigated the crime,

the juvenile court officer who interviewed Delbosque for his decline determination,

and the unit supervisor of the prison where Delbosque was incarcerated at the time

of his resentencing. While incarcerated, Delbosque received prison infractions for

fighting without a weapon; for extortion; and for possession of a weapon, tattoo

paraphernalia, and another inmate's property. Between the ages of 29 and 32, he

was repeatedly investigated for gang-related violence. His last infraction occurred

in 2010, alleging that Delbosque used his position in a gang to arrange an assault

on another inmate. None ofthe infractions were referred for prosecution. The

con*ections officer also testified that but for Delbosque's life sentence and

immigration detainer, he would be classified as a minimum security prisoner. Six

victim impact statements were offered by Berg's family members.
State V. Delbosqiie, No. 96709-1


       Delbosque's siblings testified about his childhood experiences of growing up

in extreme poverty and losing his mother as a young child. In addition, Delbosque

confided during his psychiatric evaluations that he was physically and sexually

abused by multiple family members.

       Two experts testified in support of Delbosque. Dr. Manuel Saint Martin

testified about Delbosque's current psychological state and low propensity for

future dangerousness. He also concluded that Delbosque was likely experiencing

alcohol-induced psychosis at the time of the crime. Dr. Sarah Heavin opined that

Delbosque's executive functioning deficits were likely greater than the average 17-

year-old because of his early childhood traumas. This in turn would have

negatively impacted his development and ability to regulate his behavior.

       2.     Judgment and sentence

       Following closing argument, the superior court judge issued a lengthy oral

decision setting Delbosque's minimum term at 48 years. In arriving at this

sentence, the court explained.

       The Court recognizes that this sentence may be considered a de facto life
       without the possibility of parole sentence. However in reaching this
       conclusion, the Court considered the factors required by RCW
       10.95.030(3)(b) and the Miller factors required for consideration of a life
       without the possibility of parole sentence, and finds that the crime
       committed by Mr.[Delbosque] is one ofthose rare cases where a life
       without the possibility of parole sentence would be appropriate, except for
       the potential reduction of risk caused by advancing old age.

4 Verbatim Report ofProceedings(VRP)(Nov. 23, 2016) at 662.
State V. Delbosque, No. 96709-1


       The court then entered an order incorporating a supplemental written

memorandum opinion that set forth the court's findings and conclusions.

C.     Appeal and review

       Delbosque directly appealed, and the Court of Appeals unanimously

reversed in a published opinion. State v. Delbosque,6 Wn. App. 2d 407, 430 P.3d

1153 (2018). The court held that "the proper method for Delbosque to seek review

of the superior court's order is a PRP," but it decided to "disregard this procedural

defect and review Delbosque's appeal as a PRP." Id. at 413-14.

       On the merits, the court held that "(1) the superior court's findings regarding

Delbosque having an attitude toward others reflective of the underlying crime and

of Delbosque's permanent incorrigibility and irretrievable depravity are not

supported by substantial evidence and (2)the superior court failed to comply with

the Miller-fix statute when setting the minimum term." Id. at 414. The court

therefore determined that Delbosque's restraint is unlawful, granted his PRP, and

remanded for resentencing. Id. at 421.

       The State filed a petition for review challenging the Court of Appeals'

decision on the merits. Delbosque sought review of the Court of Appeals' decision

to treat his appeal as a PRP. We granted review of both issues.

                                      ISSUES
State V. Delbosque, No. 96709-1


       A.     Were the superior court's findings supported by substantial evidence

in the record?


       B.     If the findings were not supported by substantial evidence, is the

appropriate remedy to remand for resentencing to give the trial court the benefit of

our subsequent decisions?

       C.     Does RCW 10.95.035(3), which requires parties seeking review of a

minimum term sentence imposed pursuant to the Miller-fix statute to file a PRP,

violate the right to appeal in criminal cases guaranteed by article I, section 22 of

the Washington Constitution?

                                     ANALYSIS


A.     The Court of Appeals was correct in its review ofthe trial court's findings

       Three provisions ofthe Miller-fix statute govern Delbosque's resentencing.

First, RCW 10.95.035(1) provides that juveniles who received such sentences prior

to June 1, 2014 "shall be returned to the sentencing court or the sentencing court's

successor for sentencing consistent with RCW 10.95.030." Second, RCW

10.95.030(3)(a)(ii) gives 16- to 18-year-old juvenile homicide offenders a chance

to become eligible for parole by requiring that they receive "a maximum term of

life imprisonment and a minimum term of total confinement of no less than

twenty-five years." Third, RCW 10.95.030(3)(b) provides:

       In setting a minimum term, the court must take into account mitigating
       factors that account for the diminished culpability of youth as provided
State V. Delbosque, No. 96709-1


       in Miller v. Alabama, 132 S.Ct. 2455 (2012) including, but not limited
       to, the age of the individual, the youth's childhood and life experience,
       the degree of responsibility the youth was capable of exercising, and
       the youth's chances of becoming rehabilitated.

       We will reverse a sentencing court's decision only if we find '"a clear abuse

of discretion or misapplication of the law.'" State v. Blair, 191 Wn.2d 155, 159,

421 P.3d 937(2018){quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974

(1997)). A trial court abuses its discretion when "its decision 'is manifestly

unreasonable or based upon untenable grounds.'" State v. Lamb, 175 Wn.2d 121,

127, 285 P.3d 27(2012)(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d

615 (1995)). Further, "[t]he 'untenable grounds' basis applies 'if the factual

findings are unsupported by the record.'" Id.(quoting In re Marriage ofLittlefield,

133 Wn.2d 39, 47, 940 P.2d 1362(1997)).

       Here, the State contends that the Court of Appeals erred when it held that

two of the superior court's findings were not supported by substantial evidence.

We review findings of fact for substantial evidence. State v. Dobbs, 180 Wn.2d 1,

10, 320 P.3d 705 (2014). "Substantial evidence exists where there is a sufficient

quantity of evidence in the record to persuade a fair-minded, rational person of the

truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We

affirm that the Court of Appeals properly held that substantial evidence did not

support the following findings:(1)that Delbosque continues to exhibit an attitude

toward others that is reflective of the underlying murder where he chooses to
State V. Delbosque, No. 96709-1


advance his own needs over others and (2)that the crime was not symptomatic of

transient immaturity, but has proven over time to be a reflection of iiTeparable

corruption, permanent incorrigibility, and irretrievable depravity. Accordingly, we

hold that the trial court abused its discretion, reverse Delbosque's sentence, and

remand for resentencing.

       1.     Substantial evidence does not support the finding that Delbosque
              continues to exhibit an ongoing attitude toward others that is reflective
              of Berg's murder

       The trial court cited three factors in support ofthis finding: the nature of the

crime, Delbosque's attempt at trial to implicate his girlfriend in Berg's murder, and

his institutional record. With respect to this third factor, the trial court focused on

an infraction Delbosque received in 2010 for allegedly arranging an assault on

another inmate. Delbosque was 34 at the time.

       As the Court of Appeals pointed out,"the court's only example of this

attitude was Delbosque's 2010 infraction for attempting to arrange an assault,

which occurred six years prior to the evidentiary hearing." Delbosque, 6 Wn. App.

2d at 418. In other words, two of the court's three examples of an ongoing pattern

of predatory behavior relate back to the crime and prosecution, which occurred

over 20 years before Delbosque was resentenced. The Court of Appeals thus

determined that "to whatever extent Delbosque's infraction history does exhibit a
State V. Delbosque, No. 96709-1


pattern related to the murder he committed, that pattern is not continuing or

cuiTent." Id.


          Furthermore, while discussing Delbosque's 2010 infraction as evidence of

an ongoing attitude reflective of the murder, the sentencing judge declared that

"[tjhere is no identified program or treatment presented to deal with this negative

attribute." 4 VRP (Nov. 23, 2016) at 660. But this overlooks the fact that certain

programs, such as substance abuse treatment and anger management programs,

were not available to Delbosque because they are reserved only for people with

release dates. Moreover, Delbosque "demonstrated a desire to engage in

programming that's not available to him as someone who's classified as a life

without possibility of parole inmate," and he actually took advantage of those

opportunities when available.^ 3 VRP (Nov. 1, 2016) at 490.

          Because the trial court's "only example" of an ongoing attitude reflective of

the murder is Delbosque's 2010 infraction, the Court of Appeals correctly

determined that there is insufficient evidence to support this finding. Delbosque, 6

Wn. App. 2d at 418.

          2.     Substantial evidence does not support the finding that Delbosque's
                 crime was a reflection of"iiTcparable corruption, permanent
                 incorrigibility, and iiTetrievable depravity"



          ^ For example, Delbosque took a parenting class, despite not being a parent, because "he
wanted to understand how his parents had influenced his development." 3 VRP (Nov. 1, 2016)
at 519.



                                                 10
State V. Delbosque, No. 96709-1


       In its oral decision, the trial court analyzed whether Delbosque's crime was

"a reflection of transient immaturity associated with youth, or something more

heinous, often characterized by words such as irreparable corruption, permanent

inconigibility, irretrievable depravity, such that rehabilitation is impossible,

making life without parole justified." 4 VRP (Nov. 23, 2016) at 655. This analysis

"consider[ed] the actual crime, as well as the life and actions of[Delbosque] after

he committed the crime." Id. Yet the primary evidence for this finding was, as

with the prior finding, based on the crime, Delbosque's attempt to implicate his

girlfriend, and his 2010 infraction. Accordingly, the Court of Appeals properly

determined that "Delbosque's infraction is not evidence of irreparable corruption

proven over time. Delbosque had been in prison for approximately 15 years before

the 2010 infraction, and the infraction took place 6 years before the evidentiary

hearing." Delbosque,6 Wn. App. 2d at 418.

       The Court of Appeals further considered that the trial court "failed to

address the greater prospects for reform from a crime committed while Delbosque

was a child. . . . The court's rationale is also inconsistent with Miller's recognition

that incorrigibility is inconsistent with youth." Id. at 420. This reasoning is

consistent with our case law indicating that irreparable corruption should be rare.

State V. Bassett, 192 Wn.2d 67, 89, 428 P.3d 343 (2018). Indeed, Bassetfs




                                          11
State V. Delbosque, No. 96709-1


prohibition on juvenile life without parole sets a high standard for concluding that

a juvenile is permanently incorrigible.

       Furthermore, the trial court's oral ruling oversimplified and sometimes

disregarded Delbosque's mitigation evidence. For example, the Court of Appeals

considered the following testimony from Dr. Heavin, who evaluated whether youth

was a factor in Delbosque's case: '"[Yjouthfulness, combined with trauma, made

him less likely to monitor his own behavior responsibly, inhibit aggressive

behavior,"' and '"his relative risk taking was greater than a typically developing

youth without those same risk factors.'" Delbosque,6 Wn. App. 2d at 411. Yet

the trial court recharacterized Dr. Heavin's conclusions by stating that "these risk

factors had the potential for a significant impact on [Delbosque's] ability as a

juvenile to appropriately respond to his surroundings and appreciate the

ramifications of his actions." 4 VRP (Nov. 23, 2016) at 645 (emphasis added). In

fact. Dr. Heavin asserted that "lack of good decision making was a cumulative

effect ofthe various traumas he'd experienced, the poverty he'd experienced, his

lack of education, his lack of relative social support and his alcohol dependence."

3 VRP (Nov. 1, 2016) at 510. In other words. Dr. Heavin did not testify that

Delbosque's life experiences merely had the potential to have a negative impact on

his decisions, but that they actually did have such an impact. The court also




                                          12
State V. Delbosque, No. 96709-1


minimized expert testimony about Delbosque's alcohol addiction at the time of the

crime and how alcohol uniquely impacts the developing teenage brain.

       Similarly, the oral ruling does little to acknowledge Delbosque's mitigation

evidence demonstrating his capacity for change. The Court of Appeals highlighted

testimony that Delbosque "would qualify for minimum security except for the term

of his sentence and an immigration detainer." Delbosque, 6 Wn. App. 2d at 410.

In addition, Dr. Saint Martin testified that Delbosque's relatively few infractions

over a 23-year period, coupled with his progressive decrease in security level, were

proof that he was not iiTeparable and in fact could safely be released. He further

opined that Delbosque's risk for future dangerousness would be low. This

evidence, however, was not addressed in the trial court's analysis.

       These examples suggest that the trial judge did not adequately consider

mitigation evidence that would support a finding of diminished culpability, rather

than irretrievable depravity. Miller hearings require sentencing courts to

meaningfully consider "mitigating factors that account for the diminished

culpability of youth," including "the youth's chances of becoming rehabilitated."

RCW 10.95.030(3)(b). Moreover, the trial court concluded that Delbosque is

irretrievably depraved without reconciling, much less aclcnowledging, significant

evidence to the contrary. We therefore affirm the Court of Appeals' conclusion

that substantial evidence does not support a finding of permanent incorrigibility.



                                         13
State V. Delbosque, No. 96709-1


B.     Given the lack of substantial evidence, we remand for resentencing to give
       the trial court the benefit of our subsequent decisions

       After Delbosque's 2016 resentencing hearing, this court decided two cases

that significantly altered juvenile sentencing in Washington. The first was State v.

Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017). There, we outlined considerations

that trial courts must take into account when conducting a Miller hearing. Bassett

followed shortly thereafter, categorically eliminating juvenile life without parole.

Bassett, 192 Wn.2d at 91. In light of these cases, a remand for resentencing is

appropriate so the superior court may have the benefit of recent, relevant precedent

when resentencing Delbosque.

       1.     The trial court did not have the benefit ofRamos or Bassett to guide
              its decision


       Delbosque's resentencing hearing occurred in 2016, before this court

decided either Ramos or Bassett. Although neither case directly applied RCW

10.95.035, both discuss issues that are highly relevant to what is required when

setting a minimum term pursuant to the Miller-fix statute. Much of their analysis

therefore applies to this case and to Miller hearings pursuant to RCW 10.95.030.

       First, Ramos clarified that courts "must meaningfully consider how juveniles

are different from adults, how those differences apply to the facts of the case, and

whether those facts present the uncommon situation where a life-without-parole

sentence for a juvenile homicide offender is constitutionally permissible." Ramos,



                                         14
State V. Delbosque, No. 96709-1


187 Wn.2d at 434-35 (emphasis added). This means a court "must do far more

than simply recite the differences between juveniles and adults and make

conclusory statements that the offender has not shown an exceptional downward

sentence is justified." Id. at 443. Instead, the court must "receive and consider

relevant mitigation evidence bearing on the circumstances of the offense and the

culpability of the offender, including both expert and lay testimony as

appropriate." Id.

       Predicting a juvenile's future dangerousness is extremely difficult. As the

United States Supreme Court has acknowledged,"The reality that juveniles still

struggle to define their identity means it is less supportable to conclude that even a

heinous crime committed by a juvenile is evidence of irretrievably depraved

character." Roper v. Simmons, 543 U.S. 551, 570, 125 S. Ct. 1183, 161 L. Ed. 2d

1 (2005). Miller further attests that "a child's character is not as 'well formed' as

an adult's; his traits are 'less fixed.'" Miller, 567 U.S. at 471 (quoting Roper, 543

U.S. at 570). For this reason, resentencing courts must consider the measure of

rehabilitation that has occun-ed since a youth was originally sentenced to life

without parole.

      Indeed, other courts have also continued to refine their review of Miller

hearings in this regard. For instance, the Ninth Circuit Court of Appeals recently

remanded a Miller resentence to the district court based on the "district court's




                                          15
State V. Delbosque, No. 96709-1


heavy emphasis on the nature of[the defendant's] crime, coupled with [the

defendant's] evidence that his is not one of those rare and uncommon cases for

which LWOP [life without parole] is a constitutionally acceptable sentence."

United States v. Briones, 929 F.3d 1057, 1067 (9th Cir. 2019). In clarifying what

is required in a Miller hearing, the Ninth Circuit declared that sentencing courts

"must reorient the sentencing analysis to a forward-looking assessment of the

defendant's capacity for change or propensity for incorrigibility, rather than a

backward-focused review of the defendant's criminal history." Id. at 1066. "The

key question is whether the defendant is capable of change. If subsequent events

effectively show that the defendant has changed or is capable of changing, LWOP

is not an option." Id. at 1067 (citation omitted). These observations are highly

relevant in light of the evidence Delbosque presented at his resentencing hearing.

       Next, Bassett held that ROW 10.95.030(3)(a)(ii) is unconstitutional to the

extent that it allows any juvenile to be sentenced to life without parole. Bassett,

192 Wn.2d at 91. Consequently, every judge conducting a Miller sentencing in

Washington must set a minimum term that is less than life. In Ramos, we stated

that a "standard range consecutive sentencing may, and in this case did, result in a

total prison term exceeding the average human life-span—^that is, a de facto life

sentence." Ramos, 187 Wn.2d at 434. However, we did not define "de facto life

sentence" as a "total prison term exceeding the average human life-span." Id.



                                         16
State V. Delbosque, No. 96709-1


Rather, we explicitly stated, "It is undisputed that Ramos' 85-year aggregate

sentence is a de facto life sentence, so the question of precisely how long a

potential sentence must be in order to trigger Miller's requirements is not before

us. We reserve ruling on that question until we have a case in which it is squarely

presented." Id. at 439 n.6 (emphasis added). Although the trial court clearly

intended to impose a life sentence when setting Delbosque's 48-year minimum

term, the question of whether this amounts to a de facto life sentence is not

squarely presented here, either. We therefore decline to address the issue.

       In sum, Bassett has narrowed the available sentences under the Miller-fix

statute, while Ramos and other courts have clarified what a meaningful

consideration of youth requires in terms of procedure. The superior court would

benefit from such precedent in making its resentencing decision.

       2.     The Court of Appeals rightly did not allocate a burden of proof or
              treat age as a per se mitigating factor

       The State contends that a remand for resentencing is nevertheless

inappropriate for two reasons. First, the State asserts that the Court of Appeals

"misallocat[ed] the burden of proof and persuasion" when it "seemed to allocate

the burden of proof on the State." Mot. for Review at 6. Contrary to the State's




                                           17
State V. Delbosque, No. 96709-1


position, the Court of Appeals properly did not assign a burden of proofto either

the State or Delbosque when reviewing the trial court's decision.'^

       The State's argument is grounded in its incorrect belief that Delbosque

"bears the burden of proving that his crime was the result of transient immaturity."^

Id. at 5 (citing Ramos, 187 Wn.2d at 434-37). The State misinterprets Ramos.

There, we held that in the context ofthe Sentencing Reform Act of 1981 (SKA),

ch. 9.94A RCW,a juvenile bears the burden of proving by a preponderance of

evidence that an exceptional sentence below the standard range is justified.

Ramos, 187 Wn.2d at 435. This reasoning does not extend to sentencing hearings

pursuant to the Miller-fix statute, which unlike the SRA,does not impose a burden

of proof on either party. Indeed, the trial court rightly stated that although Miller

and RCW 10.95.030(3)(b)"provide factors and guidelines for the court to consider

during the resentencing hearing ... they do not establish any presumptions to be

created or rebutted by any party." Clerk's Papers(CP)at 238. We agree with the




         Aniici in support of Delbosque propose that "[t]he State must have the burden to prove
by clear and convincing evidence that the child is incorrigible to justify a minimum sentence
over 25 years." Br. of Fred T. Korematsu Ctr. for Law & Equality et al. as Amici Curiae at 13.
We appreciate amici's thoughtful consideration ofthe appropriate burden of proof and
understand the desire for a clear benchmark. However, the statute is silent and thus does not
provide for siieh a result.
       ^ The State's briefing is inconsistent on this point. While its petition for review argues
that Delbosque has the burden of proving his crime was the result oftransient immaturity, its
response to the joint amici brief supporting Delbosque recognizes that"RCW 10.95.030 does not
allocate or define the burden of proof applicable at a Miller-fa. hearing." Br. ofPet'r in Resp. to
Br. of Amici Curiae at 14.



                                                18
State V. Delbosque, No. 96709-1


trial court that the statute does not allocate a burden of proof, and we decline to

write one in.


       The State further asserts that the Court of Appeals "treat[ed] age as a per se

mitigating factor," going so far as to characterize the opinion as "say[ing] that all

children, all the time, no matter the conduct and irrespective of the facts of the

crime, are entitled to a mitigated sentence." Mot. for Review at 6. Far from this,

the Court of Appeals merely emphasized the central tenets of Graham^ and Miller.

Children are '"less deserving of the most severe punishments' . . . and their traits

are less likely to be evidence of iiTetrievable depravity." Delbosque,6 Wn. App.

2d at 419 (internal quotation marks omitted)(quoting Miller, 567 U.S. at 471).

       Thus, the State's arguments that the Court of Appeals misallocated the

burden of proof and improperly treated age as a per se mitigating factor are not

supported by the record or the law. In addition, our cases decided after

Delbosque's resentencing provide significant guidance on the standards that

sentencing courts should apply at Miller hearings. We therefore hold that the

Court of Appeals correctly reversed Delbosque's sentence and remanded for a new

Miller hearing.

C.     The Court of Appeals incoiTectly held that Delbosque may seek review of
       his resentence only by PRP, in violation of article I, section 22




        Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).


                                             19
State V. Delbosque, No. 96709-1


       We now consider whether RCW 10.95.035(3) violates article I, section 22 of

the Washington Constitution. Article I, section 22 of the Washington Constitution

provides,"In criminal prosecutions the accused shall have ... the right to appeal in

all cases." Meanwhile, RCW 10.95.035(3) provides,"The court's order setting a

minimum term is subject to review to the same extent as a minimum term decision

by the parole board before July 1, 1986." We review a statute's constitutionality

de novo and presume that the statute is constitutional. Bassett, 192 Wn.2d at 77.

To prevail, Delbosque must show the statute is unconstitutional beyond a

reasonable doubt. Id.


       Parole board decisions setting minimum terms before July 1, 1986 were

reviewed by PRP,thus the Court of Appeals determined that Delbosque's appeal

was improper and treated it as a PRP. Delbosque,6 Wn. App. 2d at 413-14.

Delbosque argued to the Court of Appeals that allowing review only by PRP

violates article I, section 22, but the Court of Appeals declined to consider his

argument, concluding that he raised it too late. Id. at 413 n.3. We exercise our

discretion to reach the merits of Delbosque's argument because it is an important

constitutional issue that is likely to recur.

       With few exceptions, our case law is clear that criminal defendants have the

right to appeal sentences and to correct legal errors and abuses of discretion.

Whether Delbosque has a right to appeal turns on whether the Miller-fix remedy



                                            20
State V. Delbosque, No. 96709-1


provides only for an amended sentence or requires an actual resentencing. The

plain language of RCW 10.95.035(3) and Washington precedent suggest that a

Miller hearing results in a new, appealable sentence. We therefore reverse the

Court of Appeals on this issue and hold that RCW 10.95.035(3) violates article I,

section 22 of the Washington Constitution.

       1.     Washington law broadly guarantees the right to appeal sentences,
              even after resentencing

        As a general rule, the Washington Constitution guarantees criminal

defendants the right to appeal "in all cases." CONST, art. I, § 22. There are limited

exceptions to this rule; specifically, standard range sentences pursuant to the SRA

are not appealable. RCW 9.94A.585(1). This provision of the SRA does not

violate the constitutional right to appeal because "[wjhen the sentence given is

within the presumptive sentence range then as a matter of law there can be no

abuse of discretion." State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718

P.2d 796 (1986).

       However, even RCW 9.94A.585(1)"does not bar a party's right to challenge

the underlying legal conclusions and determinations by which a court comes to

apply a particular sentencing provision." State v. Williams, 149 Wn.2d 143, 147,

65 P.3d 1214(2003). Indeed,"appellate review is still available for the correction

of legal errors or abuses of discretion in the determination of what sentence




                                         21
State V. Delbosque, No. 96709-1


applies." Id. Thus, even where a statute appears to broadly prohibit any direct

appeal, certain appeals must be allowed pursuant to article I, section 22.

       In the context of resentencing, the right to appeal may depend on the nature

and scope of the errors in the original sentence. The Court of Appeals has held that

      [rjemand to correct a scrivener's error does not result in a new final
      judgment and sentence and, accordingly, the court's action to correct the
      error is not appealable as a matter of right. But remand for resentencing
      renders the prior judgment and sentence void and results in a new final
      judgment, which is appealable as a matter of right.

State V. Amos, 147 Wn. App. 217, 224 n.l, 195 P.3d 564(2008)(citations omitted).

Our cases likewise recognize that remand and resentencing means that a

defendant's "entire sentence [is] reversed, or vacated . . . the finality of the

judgment is destroyed." State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104

(2003)(finding collateral estoppel did not apply because the defendant's prior

sentence "ceased to be a final judgment on the merits").

       Thus, to determine whether there is a constitutional right to directly appeal

from a sentence imposed pursuant to the Miller-fix statute, we must consider

whether the statute requires only an amendment of the original sentence or the

entry of an entirely new sentence.

      2.      The Miller-fix statute requires resentencing to remedy erroneous
              mandatory life without parole sentences

       The very purpose ofthe Miller-fix statute is to correct unconstitutional

mandatory life without parole sentences in accordance with Miller. In re Pers.


                                           22
State V. Delbosque, No. 96709-1


Restraint ofMcNeil, 181 Wn.2d 582, 590, 334 P.3d 548 (2014)("The Miller fix

remedies the unlawfulness of the petitioners' sentences by providing they must be

resentenced in a manner that does not violate the Eighth Amendment, consistent

with Miller"). When an apparently legal sentence is later held unconstitutional, as

here, the remedy is to "remand[] to the superior court, with instructions to

resentence appellants in accordance with law." State v. Lindsey, 194 Wash. 129,

130, 77 P.2d 596(1938)(emphasis added); see also State v. Mehlhorn, 195 Wash.

690, 692-93, 82 P.2d 158 (1938). Such resentencing is subject to direct appeal.

       Lindsey and Mehlhorn illustrate how we have long treated resentences as

appealable. Both cases concerned an ex post facto law overturned by the United

States Supreme Court. Lindsey, 194 Wash, at 130; Mehlhorn, 195 Wash, at 691.

The invalid sentences did not '"necessitate the granting of a new trial, or vacation

of the verdict found,'" but rather served as '"a ground for reversing the erroneous

judgment or sentence, leaving the verdict to stand as a basis for a new and proper

sentence.'" Lindsey, 194 Wash, at 131 (quoting 8 RULING Case Law Criminal

Law § 237, at 237 (1915)). Mehlhorn further explained that the erroneous sentence

was "void as to offenses committed prior to its enactment" and thus required

resentencing. Mehlhorn, 195 Wash, at 691. In both instances, the defendants

directly appealed their resentencing decisions.




                                         23
State V. Delbosque, No. 96709-1


       Resentencing in accordance with the Miller-fix statute is consistent with the

resentencing at issue in Lindsey and Mehlhorn. In both situations, the defendant

was given a sentence that was later held unconstitutional, and in both situations the

defendant was given a new, appealable sentence. The Miller-fix statute itself

describes the process as "resentencing" that, like the resentencing in Lindsey, does

not require a new trial on the defendant's underlying conviction. RCW

10.95.035(4)("A resentencing under this section shall not reopen the defendant's

conviction to challenges that would otherwise be barred by RCW 10.73.090,

10.73.100, 10.73.140, or other procedural bamers."). Thus, like the defendants in

Lindsey and Mehlhorn, individuals sentenced pursuant to the Miller-fix statute are

constitutionally entitled to direct appeal.

       Nevertheless, because the Miller-fix statute provides that sentences will be

"subject to review to the same extent as a minimum term decision by the parole

board before July 1, 1986," one might presume that the two situations are similar.

RCW 10.95.035(3). This is not the case. Sentences imposed pursuant to the

Miller-fix statute are procedurally and constitutionally distinct from minimum term

sentences set by the parole board before July 1, 1986.

      The imposition of a minimum term sentence prior to July 1, 1986 occurred

in an administrative setting where the parole board "relie[d] on standardized

guidelines and inform[ed] an inmate of the reasons for his or her minimum term



                                          24
State V. Delbosqiie, No. 96709-1


when outside the guideline range." In re Pers. Restraint ofSinka, 92 Wn.2d 555,

565-66, 599 P.2d 1275 (1979). Consequently, this court determined that "the

setting of a minimum term is not part of a criminal prosecution and the full

panoply of rights due a defendant in such a proceeding does not apply to a

minimum term setting." Id. at 566.

       A resentencing pursuant to the Miller-fix statute is entirely different. Unlike

a parole board hearing, a Miller hearing is adversarial, involves arguments from

both the defendant and the State, and mandates that a sentencing judge consider

specific criteria that account for the diminished culpability of youth. These

differences demand more stringent due process protections than the "minimal due

process" at stake in a minimum term hearing before the parole board. Id. at 556.

Whereas review by PRP is appropriate for a minimum term sentence imposed by

the parole board, the same cannot be said for a sentence pursuant to Miller.

       Thus, both the procedures involved and the statutory language itself strongly

indicate that the Miller-fix statute requires the trial court to vacate the eiToneous

life without parole sentence and impose a new minimum term consistent with the

statutory criteria. Such resentencing necessarily results in a new, appealable

sentence.^




       ^ The trial judge proceeded as though this was the case, explaining in his memorandum
opinion that "[t]he Order and Judgment will reflect. . . that the sentence set forth . . . will be


                                                  25
State V. Delbosque, No. 96709-1


       3.     A PRP is not a substitute for appeal

       It is essential to preserve the right to appeal in criminal cases because a PRP

does not, and is not meant to, afford the same protections as an appeal. See In re

Pers. Restraint ofHagler, 97 Wn.2d 818, 824, 650 P.3d 1103 (1982). On appeal,

the standard of review is more favorable to criminal defendants, as the State has

the burden to prove beyond a reasonable doubt that a constitutional error is

harmless. Id. at 825. In contrast, a personal restraint petitioner claiming a

constitutional violation must establish that they were actually and substantially

prejudiced. In re Pers. Restraint ofBenn, 134 Wn.2d 868, 884-85, 952 P.2d 116

(1998).

       The State contends that review of a Miller resentencing will not be subject to

this heightened standard because "the petitioner will have 'had no previous or

alternative avenue for obtaining state judicial review' in such cases." Second

Suppl. Br. of Pet'r at 3 (quoting In re Pers. Restraint ofCashaw, 123 Wn.2d 138,

149, 866 P.2d 8 (1994)). However, the State's reliance on Cashaw is questionable

because the decision in that case was made by the Indeterminate Sentence Review

Board, while Miller-fix sentences are imposed by trial courts. Moreover, even if

Cashaw''s lower standard of review were to apply, a PRP is not an adequate




vacated and the court will impose a new term of confinement consistent with the court's decision
after the resentencing proceeding." CP at 240.


                                              26
State V. Delbosque, No. 96709-1


substitute for an appeal because it provides limited bases for relief. See RAP

16.4(c).

       These heightened protections of a direct appeal as compared to a PR? are

especially significant in the context ofjuvenile sentencing. Indeed, we have

recognized that "[wjhen a juvenile offender is sentenced in adult court, youth

matters on a constitutional level." Ramos, 187 Wn.2d at 428. Prohibiting

juveniles from appealing their Miller sentences not only violates their right to

appeal, but runs contrary to our cases that bolster protections for juvenile offenders

facing lengthy sentences. E.g., Bassett, 192 Wn.2d 67; Ramos, 187 Wn.2d 420;

State V. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409(2017)(holding

sentencing courts must have complete discretion to consider mitigating

circumstances associated with the youth of any juvenile defendant).

       The fact that Delbosque could seek review by PRP is therefore insufficient.

The Miller-f\x statute requires a full resentencing, and the sentence imposed must

be subject to direct appeal. RCW 10.95.035(3) therefore violates the right to

appeal in criminal cases guaranteed by article 1, section 22.

                                  CONCLUSION


       We affirm the Court of Appeals' holding that the trial court's findings were

not supported by substantial evidence and hold that the Court of Appeals properly

remanded Delbosque's case for resentencing. However, we reverse the Court of



                                         27
State V. Delbosqiie, No. 96709-1


Appeals' determination that the only avenue to review a Miller resentencing is by

PRP. We therefore affirm in part, reverse in part, and remand for resentencing.




                                        28
State V. Delbosque, No. 96709-1




 WE CONCUR:




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