                                                           this pplriion was filed for record
                                                                            on        d~
      IN CLEIIKS OmCE
tunec COURT.amiE OF WASHmoTOM

    OATS MAY 1 D ?n 8
                                                                 SUSAN L. GARUSQN
nMAkAMAft ^                                                  SUPREME CdURt CLERK
       CHIEF JUSmCE




             IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                   No. 94020-7
                        Respondent,

        V.                                         En Banc


JAI'MARELI SCOTT,

                        Petitioner.                Filed      MAY 1 0 ma



        MADSEN,J.—This case addresses the adequacy ofthe parole remedy available

under ROW 9.94A.730, the Miller^ "fix" statute. Consistent with the Supreme Court's

decision in Montgomery v. Louisiana,        U.S.     , 136 S. Ct. 718, 193 L. Ed. 2d 599

(2016), we hold that RCW 9.94A.730's parole provision is an adequate remedy for a

Miller violation, rendering unnecessary the resentencing of a defendant who long ago

received a de facto life sentence as a juvenile.




 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012).
No. 94020-7



                                         FACTS


       Jai'Mar Scott was convicted by a jury in 1990 of first degree premeditated murder

for killing his neighbor, a 78-year-old-woman who suffered from Alzheimer's disease.

See State v. Scott, 72 Wn. App. 207, 210, 866 P.2d 1258 (1993), aff'dsub nom. State v.

Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). Scott was 17 years old when he

committed the murder. The juvenile eourt declined jurisdietion, and Seott was tried,

convicted, and sentenced as an adult.

       At sentencing, the parties agreed that the standard range was 240 to 320 months,

with 240 months being the mandatory minimum sentence that could be imposed. The

State requested an exceptional sentence above the standard range. The defense requested

the low end of the standard range. The trial court sentenced Scott to an exceptional

sentence of900 months based on four independent findings: (1)that Scott's conduct

constituted deliberate cruelty,(2)that his eonduct was an abuse of trust,(3)that the crime

involved multiple injuries, and (4)that the victim was particularly vulnerable.

       On direct appeal, the Court of Appeals held that the 900-month sentence imposed

was not elearly excessive because the "aggravating factors are both numerous and

individually and eolleetively egregious." Id. at 222. The Court of Appeals also rejected

Scott's assertion that his exceptional sentenee was improper in light of his youth at the

time of the crime. This eourt affirmed in Ritchie, 126 Wn.2d at 399, which held that the

sentencing court had properly relied on "four horrid aggravating factors" in imposing the

900-month sentenee.
No. 94020-7



       As Scott served his sentence, the law ofjuvenile sentencing changed dramatically,

and in 2012 the Supreme Court decided Miller, 567 U.S. at 465, which held that a

sentence imposed on a juvenile of mandatory life without parole violates the prohibition

on cruel and unusual punishment under the Eighth Amendment to the United States

Constitution. Following Miller, this court, in State v. O'Dell, 183 Wn.2d 680, 696, 358

P.3d 359(2015), held that a trial court must be allowed to consider youth as a mitigating

faetor when imposing a sentence on a person who was barely 18 years old at the time of

his erime. Two months later. Division One held, in State v. Ronquillo, 190 Wn. App.

765, 774-77, 361 P.3d 779(2015), that Miller applied to juveniles receiving aggregate

sentences that resulted in the equivalent of life without parole, that is, de facto life

sentences.^

       In May 2016, Scott filed a motion for relief from judgment requesting a new

sentencing hearing. The State asked the superior court to transfer the untimely motion to

the Court of Appeals for eonsideration as a personal restraint petition(PRP)pursuant to

CrR 7.8. The court denied the State's motion and granted Scott's motion for relief from

judgment. The State appealed.

       The Court of Appeals reversed the trial eourt's grant of a new sentencing hearing,

finding,"The constitutional violation identified in the Miller line of cases is the failure to

allow a juvenile offender the opportunity for release when his or her erime was the result



^ This court recently also held that Miller applies to juvenile homicide offenders facing de facto
life-without-parole sentences m State v. Ramos, 187 Wn.2d 420, 436, 387 P.3d 650, cert, denied,
138 S. Ct. 467(2017).
No. 94020-7



of youthful traits." State v. Scott, 196 Wn. App. 961, 971, 385 P.3d 783(2016). The

Court of Appeals concluded,"In Montgomery, the Supreme Court expressly approved of

statutes that provide the opportunity for parole as remedies for a Miller violation." Id.

The Court of Appeals concluded that due to the enactment of"Washington's Miller fix

statute," RCW 9.94A.730,^ "Scott is no longer serving a sentence that is the equivalent of

life without parole. As such, Miller is not a significant change in law that is material to

his sentence." Id. at 972. Scott sought review, which this court granted. State v. Scott,

188 Wn.2d 1001, 393 P.3d 362(2017).

                                            ANALYSIS


       Standard of Review


        Constitutional interpretation is a question of law reviewed de novo. State v.

MacDonald, 183 Wn.2d 1, 8, 346 P.3d 748 (2015). Questions of statutory interpretation

are also reviewed de novo. State v. Bunker, 169 Wn.2d 571, 577, 238 P.3d 487(2010).

        A collateral attack on a sentence generally must be brought within one year after

the judgment and sentence become final. RCW 10.73.090(1),(2). A collateral attack"^


^ In 2014, the legislature enacted '''Miller fix'" statutes "with the intention of bringing
Washington's sentencing framework into conformity With. Miller." Ronquillo, 190 Wn. App. at
777-78 (citing RCW 9.94A.730; Laws of 2014, ch. 130 (effective June 1,2014)). RCW
9.94A.730, in relevant part, provides that a juvenile offender may petition the Department of
Corrections Indeterminate Sentencing Review Board (ISRB)for early release after serving no
less than 20 years oftotal confinement. RCW 9.94A.730(1). An offender may not petition for
early release if he has been convicted of a crime committed after his 18th birthday or has
committed a disqualifying infraction in the previous 12 months. Id. Such qualifying petitioner is
presumptively eligible for early release. RCW 9.94A.730(3). A person denied release by the
ISRB may repetition five years after the date of denial or at an earlier date as may be set by the
ISRB. RCW 9.94A.730(6).
 An untimely motion for relieffrom judgment filed in the trial court "shall" be transferred to the
Court of Appeals for consideration as a PRP. CrR 7.8(c)(2).
No. 94020-7



filed more than one year after the underlying judgment will not be eonsidered time barred

by RCW 10.73.090 when it is based on a retroactively applicable "significant change in

the law, whether substantive or procedural, which is material to the conviction, sentence,

or other order entered." RCW 10.73.100(6). Here, there is no dispute that Miller

constituted a retroactively applicable, significant change in the law. See Scott, 196 Wn.

App. at 965. Nevertheless, the Court of Appeals held that RCW 10.73.100(6) did not

apply because Miller was not "material" to Seotfs unconstitutional sentence and thus,

Scott's motion for resenteneing was time barred. Id. at 972.

       This court has previously explained:

              While litigants have a duty to raise available arguments in a timely
       fashion and may later be proeedurally penalized for failing to do so,. . .
       they should not be faulted for having omitted arguments that were
       essentially unavailable at the time, as occurred here. We hold that where
       an intervening opinion has effectively overturned a prior appellate decision
       that was originally determinative of a material issue, the intervening
       opinion constitutes a "significant change in the law" for purposes of
       exemption from procedural bars.

In re Pers. Restraint ofGreening, 141 Wn.2d 687,697,9 P.3d 206(2000)(footnote

omitted). Further, mln re Personal Restraint ofThomas, 180 Wn.2d 951, 953, 330 P.3d

158 (2014), we dismissed a PRP as mixed, but acknowledged,"We recognize that

Thomas's claim premised on Miller may not be time barred; if we agreed with Thomas

that the rule in Miller applies retroactively, then that claim satisfies the exception to the

one-year time bar in RCW 10.73.100(6) and we could reach its merits."

       The Supreme Court has recently declared in Montgomery that Miller applies

retroactively. Nevertheless, as discussed infra, Montgomery also identifies an adequate
No. 94020-7



remedy for a Miller violation in the form of providing a parole opportunity for juvenile

defendants. 136 S. Ct. at 736. Consequently, because an adequate remedy is available to

Seott, this court cannot grant him the collateral relief(via a PRP)that he seeks. See RAP

16.4(d)("The appellate court will only grant relief by a personal restraint petition if other

remedies which may be available to petitioner are inadequate under the circumstances.").

Accordingly, we hold that the collateral relief Scott seeks (i.e., resentencing) is

unavailable because he has an adequate remedy, which is to seek parole under RCW

9.94A.730.


       Seott and amici^ contend that in light ofthe Miller violation here, the appropriate

remedy is to remand for resentencing and an individualized consideration of youth. We

reject the contentions that resentencing is warranted.

       In Miller, the Supreme Court observed,"The Eighth Amendment's prohibition of

cruel and unusual punishment 'guarantees individuals the right not to be subjected to

excessive sanctions.'" 567 U.S. at 469(quoting Roper v. Simmons, 543 U.S. 551, 560,

125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). Accordingly,justice requires that "'punishment

for crime should be [appropriately] graduated and proportioned' to both the offender and

the offense." Id.(internal quotation marks omitted)(quoting Roper, 543 U.S. at 560). In

other words,"'[tjhe concept of proportionality is central to the Eighth Amendment.'" Id.

(alteration in original)(quoting Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176


^ One amicus brief was submitted on behalf of the following; The American Civil Liberties
Union of Washington, Columbia Legal Services, Juvenile Law Center, National Juvenile
Defender Center, TeamChild, Washington Association of Criminal Defense Lawyers, and
Washington Defender Association.
No. 94020-7



L. Ed. 2d 825 (2010). And that concept is viewed "less through a historical prism than

according to 'the evolving standards of decency that mark the progress of a maturing

society.'" Id. at 469-70 (internal quotation marks omitted)(quoting Estelle v. Gamble,

429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)). The Court in Miller built on

its prior decisions in Roper and Graham^ in concluding that "mandatory life-without-

parole sentences for juveniles violate the Eighth Amendment." Id. at 470.

       In Miller, the Court was considering "the constitutionality of mandatory

sentencing schemes—which by definition remove a [sentencing]judge's . . . discretion."

Id. at 483 n.lO. The Court explained,"Our decision does not categorically bar a penalty

for a class of offenders or type of crime .... Instead, it mandates only that a sentencer

follow a certain process—considering an offender's youth and attendant characteristics—

before imposing a particular penalty." Id. at 483 (emphasis added).

       While Miller held that "the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders," the Court

reiterated that "'[a] State is not required to guarantee eventual freedom,' but must provide

''some meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.'"'' Id. at 479(emphasis added)(quoting Graham, 560 U.S. at 75).




^ The Court explained that Roper held that "the Eighth Amendment bars capital punishment for
children," and Graham held that the Eighth Amendment also "prohibits a sentence of life
without the possibility of parole for a child who committed a nonhomicide offense." Miller, 567
U.S. at 470.
No. 94020-7



       The Court's discussion in Miller, which rejected the State's argument that

sufficient discretion is exercised in the course of the Juvenile transfer decision, is

instructive here. The Court explained as follows:

       [T]he question at transfer hearings may differ dramatically from the issue at
       a post-trial sentencing. Because many juvenile systems require that the
       offender be released at a particular age or after a certain number of years,
       transfer decisions often present a choice between extremes: light
       punishment as a child or standard sentencing as an adult(here, life without
       parole). In many States, for example, a child convicted in juvenile court
       must be released from custody by the age of 21. Discretionary sentencing
       in adult court would provide different options: There, ajudge or jury could
       choose, rather than a life-without-parole sentence, a lifetime prison term
       with the possibility ofparole or a lengthy term of years. It is easy to
       imagine a judge deciding that a minor deserves a(much)harsher sentence
       than he would receive in juvenile court, while still not thinking life-
       without-parole appropriate. For that reason, the discretion available to a
       judge at the transfer stage cannot substitute for discretion at post-trial
       sentencing in adult court—and so cannot satisfy the Eighth Amendment.

Id. at 488-89(emphasis added)(citations omitted). Notably, the circumstance that the

Miller court cites with approval in the above passage is precisely the circumstance Scott

finds himself in by operation of the Miller fix statute in this ease—^he has a de facto

lifetime prison term with the possibility ofparole. This meets Miller's requirement that

the State provide "'some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.'" Id. at 479(quoting Graham, 560 U.S. at 75).

       Scott argues that this court's recent decision in State v. Houston-Sconiers, 188

Wn.2d 1, 20, 391 P.3d 409(2017), supports resenteneing in his case. We disagree.

Applying Miller, this court held that "[tjrial courts must consider mitigating qualities of

youth at sentencing and must have discretion to impose any sentence below the otherwise



                                               8
No. 94020-7



applicable SRA [(Sentencing Reform Act of 1981, ch. 9.94A RCW)]range and/or

sentence enhancements." Id. at 21 (emphasis added). This court explained in Houston-

Sconiers,"Critically, the Eighth Amendment requires trial courts to exercise this

discretion at the time ofsentencing itself, regardless of what opportunities for

discretionary release may occur down the line." Id. at 20(emphasis added). In Houston-

Sconiers, this court was addressing the appeal of a juvenile offender's sentence that was

not yet final. The Houston-Sconiers court acknowledged that the Supreme Court had

approved a postsentencing Miller fix of extending parole eligibility to Juveniles as a

remedy where an offending juvenile conviction and sentence are "long final.         Id. at 20

(citing Montgomery, 136 S. Ct. at 736).

       Further, as noted, Montgomery held that Miller announced a new substantive rule

of constitutional law that is "retroactive in cases on collateral review." 136 S. Ct. at 732.


The Montgomery Court acknowledged that ''Miller held that mandatory life without

parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on

'cruel and unusual punishments.'" Id. at 726 (internal quotation marks omitted)(quoting

Miller, 567 U.S. at 465). The Montgomery Court stated:

       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. Although Miller did not foreclose a sentencer's ability
       to impose life without parole on a juvenile, the Court explained that a

^ Similarly, in Ramos, 187 Wn.2d at 436, this court stated:
               We acknowledge that the Supreme Court has held that for cases on
       collateral review, life-without-parole sentences previously imposed without
       proper Miller hearings may be remedied "by permitting juvenile homicide
       offenders to be considered for parole, rather than by resentencing them."
       Montgomery, 136 S. Ct. at 736. However, this case is before us on direct appeal.
No. 94020-7



       lifetime in prison is a disproportionate sentence for all but the rarest of
       children, those whose crimes reflect" 'irreparable corruption.'"

Id. at 726(emphasis added)(citation omitted)(quoting Miller, 567 U.S. at 479-80

(quoting Roper, 543 U.S. at 573)). The Montgomery Court explained

       Miller, it is true, did not bar a punishment for all juvenile offenders,. . .
       Miller did bar life without parole, however, for all but the rarest ofjuvenile
       offenders, those whose crimes reflect permanent incorrigibility. . . . Before
       Miller, every juvenile convicted of a homicide offense could be sentenced
       to life without parole. After Miller, it will be the rare juvenile offender who
       can receive that same sentence. . . . Miller drew a line between children
       whose crimes reflect transient immaturity and those rare children whose
       crimes reflect irreparable corruption.

Id. at 734. The Montgomery Court explained that procedurally,'Miller requires a

sentencer to consider a juvenile offender's youth and attendant characteristics before

determining that life without parole is a proportionate sentence." Id.(emphasis added).

Such 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." Id. at 735 (quoting Miller, 567 U.S. at 465).

       The Montgomery Court observed,'Miller's conclusion that the sentence of life

without parole is disproportionate for the vast majority ofjuvenile offenders raises a

grave risk that many are being held in violation of the Constitution." Id. at 736. While

acknowledging the potential scope ofthe Court's retroactive application of Miller, the

Montgomery Court proceeded to explain the appropriate remedy, stating:

              Giving Miller retroactive effect. . . does not require States to
      relitigate sentences, let alone convictions, in every case where a juvenile
      offender received mandatory life without parole. A State may remedy a
      Miller violation by permittingjuvenile homicide offenders to be considered

                                             10
No. 94020-7



      for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §
      6-10-301(c)(2013)(juvenile homicide offenders eligible for parole after 25
       years). Allowing those offenders to be considered for parole ensures that
      juveniles whose crimes reflected only transient immaturity—and who have
      since matured—will not be forced to serve a disproportionate sentence in
       violation of the Eighth Amendment.
              Extending parole eligibility to juvenile offenders does not impose an
       onerous burden on the States, nor does it disturb the finality of state
       convictions. Those prisoners who have shown an inability to reform will
       continue to serve life sentences. The opportunity for release will be
       afforded to those who demonstrate the truth of Miller's central intuition—
       that children who commit even heinous crimes are capable of change.

Id. at 736(emphasis added). Thus, Montgomery provides that the Washington Miller fix

statute's parole provision cures the Miller violation in Scott's case. Accordingly, as

discussed above, under Miller, Montgomery, Houston-Sconiers, and State v. Ramos, 187

Wn.2d 420, 387 P.3d 650, cert, denied, 138 S. Ct. 467(2017), remand for resentencing is

not required by the Eighth Amendment in this case.

       Nevertheless, Scott argues that the Wyoming statute approved in Montgomery is

distinguishable. But while the Wyoming and Washington Miller fix statutes are not

identical, they do not differ in any substantive way relevant to the present inquiry. Both

provide a parole avenue to juvenile offender inmates after a set period oftime. Notably,

the Washington statute, RCW 9.94A.730, provides more advantages to the inmate by

providing a right to petition for early release after serving 20 years(5 years earlier than

under the Wyoming statue) and provides the petitioner with a presumption of early

release (Wyoming's Miller fix statute has no such presumption). See RCW

9.94A.730(1),(3); WYO.Stat. Ann. § 6-10-301.




                                             11
No. 94020-7



       Scott and amicus also complain that while RCW 9.94A.730 provides for parole

eligibility, it does not provide for consideration of a defendant's diminished capacity due

to attributes of youth. First, the Wyoming statute that Montgomery expressly approved

also lacks the considerations that Scott complains are missing. See Wyo.Stat. ANN. §

6-10-301. Second, Montgomery expressly approved the extension of"parole eligibility"

to juvenile offenders as sufficient to address a Miller violation on collateral review,

precisely as RCW 9.94A.730 provides. 136 S. Ct. at 736. Third, while Miller requires

that at the sentencing of a juvenile, the court must consider the juvenile's youth before

imposing a sentence. Miller also acknowledged that the State "must provide 'some

meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.'" 567 U.S. at 479(quoting Graham, 560 U.S. at 75). Here, RCW

9.94A.730 does so.


       We note that contemporaneously with Scott's present collateral attack he

petitioned the Department of Corrections Indeterminate Sentencing Review Board

(ISRB)for early release under RCW 9.94A.730.^ Although the ISRB decision does not

expressly focus on Scott's diminished culpability based on his juvenile status at the time

of the crime, the transcript of the ISRB hearing establishes that the ISRB specifically



® We grant the State's motion to supplement the record to include the transcript and ISRB
decision for Scott's parole hearing under RAP 9.10, which provides, in part:
       If the record is not sufficiently complete to permit a decision on the merits ofthe
       issues presented for review, the appellate court may, on its own initiative or on the
       motion of a party(1) direct the transmittal of additional clerk's papers and
       exhibits or administrative records and exhibits certified by the administrative
       agency, or(2) correct, or direct the supplementation or correction of, the report of
       proceedings.
                                                12
No. 94020-7



inquired of Scott about his circumstances, environment, and mind set at the time ofthe

crime, and how and to what extent he had matured into a different person hy the time of

the parole hearing.^ Taken together, the ISRB transcript and decision^® show that the

ISRB did consider Scott's youth at the time ofthe crime and how he purportedly has

changed since that time, hut the ISRB was persuaded hy other evidence (i.e., the

psychologist's evaluation) that Scott should not yet he released.

       Scott and amicus next contend that the passage in Montgomery approving parole

eligihility as a Miller violation fix is merely dicta and not precedential. In State v.

Williams-Bey, a Connecticut appellate court addressed and persuasively rejected the same

argument as follows:

               We first address the defendant's claim that the United States
       Supreme Court's statement that parole eligihility will remedy a Miller
       violation is dicta .... We are not persuaded.
                Black's Law Dictionary (9th Ed. 2009) defines "obiter dictum" as
       "[a]judicial comment made while delivering a judicial opinion, hut one that
       is unnecessary to the decision in the ease and therefore not precedential
       . . . ." Dicta of the United States Supreme Court, however, is persuasive

^ In the course ofthe hearing, Scott's youth at the time of the crime was discussed, including his
lack of appropriate role model at home. Scott described his father as mostly absent and a "thug"
who introduced Scott to drugs. ISRB Verbatim Report of Proceedings(Mar. 15, 2016) at 24-25.
Scott stated that his extended family blames his mom because she could have raised Scott better.
Id. at 26-27. Scott said at age 17, he had no maturity and "didn't know what [he] was doing."
Id. at 27, 50. He knew only of gang and street mentality as a youth, and that slapping women
and other assaults were "normal," but Scott told the ISRB that now he is someone who takes
responsibility. Id. at 24, 51.
  The ISRB decision ultimately turned on the evaluation and recommendation of a psychologist
that Scott needed sex offender treatment "before any reduction on custody is considered." ISRB
Decision & Reasons, No. 970703 (Apr. 26, 2016) at 6. The psychologist recommended that
Scott complete sex offender treatment and participate in a cognitive-behaviorally based offender
change program. Id. The ISRB determined that Scott was "not releasable," finding that he was
more likely than not to commit a new crime if released on conditions. Id. at 1. The ISRB
determined that Scott could repetition for release in 2019 "or upon successful completion of a
specified sex offender treatment program and a cognitive-behavioral change program. Id.

                                                13
No. 94020-7



      authority. See United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir.)
      ("carefully considered language of the [United States] Supreme Court, even
      if technically dictum, generally must be treated as authoritative" [internal
      quotation marks omitted]), cert, denied, 549 U.S. 1055, 127 S. Ct. 691, 166
      L. Ed. 2d 518 (2006). This is especially so in this case, in which we
       consider a federal constitutional claim.
              It is true that the Supreme Court granted eertiorari in Montgomery to
       determine only whether the court had jurisdiction over the defendant's
       claim and whether Miller applied retroactively. Montgomery v. Louisiana,
       supra, 136 S. Ct. at 725, 727. The court, though, had to have recognized
       that Miller'?, retroactive application would potentially affect thousands of
       cases across several states and that the logical extension of its holding
       would require state legislatures and courts to fashion a constitutionally
       adequate remedy for sentences that violated Miller. It thus is illogical to
       categorize Montgomery'? conclusion that Miller applies retroactively as the
       holding ofthe court, but its pronouncement of a constitutionally adequate
       remedy in light of Miller'? retroactive application as not being germane to
       that holding, and, thus, mere dicta. We do not believe that the United
       States Supreme Court would so glibly identify a constitutionally adequate
       remedy under the eighth amendment. Moreover, as noted, the court in
       Montgomery stated unequivocally that "[a] State may remedy a Miller
       violation by permitting juvenile homicide offenders to be considered for
       parole, rather than by resentencing them." Montgomery v. Louisiana,
       supra, 736. The court could hardly have been clearer. We conclude that
       parole eligibility is an adequate remedy for sentences that violated Miller as
       applied retroactively.

167 Conn. App. 744, 764-65, 144 A.3d 467(2016)(most alterations in original)(citations

omitted). We agree.

       Finally, Scott raises a new argument in his supplemental brief, asserting that the

Court of Appeals decision conflicts with State v. Fain, 94 Wn.2d 387, 617 P.2d 720

(1980). Fain is distinguishable. In Fain, the defendant had written unauthorized checks,

depriving his victims of a total of less than $407, but as an habitual offender he received a

life sentence. Id. at 401. This court held that the defendant's life sentence as an habitual

offender was disproportionate under the Washington Constitution. Id. at 402. Fain is

                                             14
No. 94020-7



simply too different to have any impact on the present case. It was decided on state

constitutional grounds, but here the state constitution has not been asserted. The Fain

court noted particularly that any parole possibility in that case was highly speculative, see

id. at 394-95, but here RCW 9.94A.730 provides a specific right to petition and a

presumption of early release, and imposes a standard for the ISRB to apply. See RCW

9.94A.730(3). And finally, this case concerns a Miller violation of the Eighth

Amendment. "The United States Supreme Court is the ultimate authority on the

requirements ofthe federal constitution, and has emphasized that parole eligibility is a

constitutionally adequate remedy for sentences that violate Miller in light of that case's

retroactive application." Williams-Bey, 167 Conn. App. at 767-68.

                                      CONCLUSION


       The Court of Appeals reversal of the trial court order granting a new sentencing

hearing is affirmed because Scott has an adequate remedy as directed by the Supreme

Court in Montgomery—^he may seek early release under RCW 9.94A.730. Because he

has an adequate remedy, collateral relief via a personal restraint petition is not available

under RAP 16.4(d). Accordingly, we affirm the reversal ofthe trial court's order.




                                              15
No. 94020-7




                   ~yy\.aL.^(LcjiY<-)

WE CONCUR:




              16
State V. Scott, No. 94020-7
Fairhurst, C.J., concurring




                                       No. 94020-7



       FAIRHURST, C.J. (concurring)—I agree with the majority that the parole

provision ofRCW 9.94A.730 is an adequate remedy for a.Miller^ violation. Majority

at 1. fa.Miller,the United States Supreme Court built on its prior decisions vaRopeP-

and Graham,^ concluding that '"mandatory life-without-parole sentences for

juveniles violate the Eighth Amendment.'" Majority at 7 (quoting Miller, 567 U.S.

at 470); U.S. Const, amend. VIII. I may be overstating the obvious, but Miller does

not control the interpretation of article I, section 14 of our state constitution. See

State V. Bartholomew, 101 Wn.2d631,639,683 P.2d 1079(1984)(our interpretation

of article I, section 14 "is not constrained to the Supreme Court's interpretation" of

the Eighth Amendment); State v. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713(2001)

(we have "repeated[ly] recogni[zed] that the Washington State Constitution's cruel




       ^ Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012).
       ^ Roper V. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
       ^ Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011,176 L. Ed. 2d 825(2010).
State V. Scott, No. 94020-7
Fairhurst, C.J., concurring


punishment clause often provides greater protection than the Eighth Amendment").

And for that reason, I write separately to clarify the Fain^ issue.

       In his supplemental brief, Jai'Mar Eli Scott raised a new argument that Fain

controls, and the Court of Appeals decision effectively overturned that case. First,

the    majority     fails     to   acknowledge    that      "this   court   will   generally

not address arguments raised for the first time in a supplemental brief." Cummins v.

Lewis County, 156 Wn.2d 844, 851, 133 P.3d 458 (2006). Instead, the majority

distinguishes Fain, Majority at 14.1 would follow our general rule and refrain from

addressing Scott's Fain argument entirely. As such, I agree with Justice Gordon

McCloud that we have an "open question under Washington law" as to whether "the

possibility of parole after 20 years rather than the certainty of a full resentencing"

comports with article I, section 14. Concurrence at 2. Justice Gordon McCloud

proceeds to answer that "open question." I refrain from doing so because the

argument is not properly before us.




         State V. Fain, 94 Wn.2d 387,617 P.2d 720 (1980).
                                             2
State V. Scott, No. 94020-7
Fairhurst, C.J., concurring




                              4
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)




                                     No. 94020-7


       GORDON McCLOUD, J. (concurring)—The majority holds that Jai'Mar

Scott's de facto life sentence is unconstitutional under Miller v. Alabama, 567 U.S.

460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012). Majority at 9-10 & n.7.1 agree.

       The majority also holds that Scott's challenge to his unconstitutional sentence

was timely, and that Miller's Eighth Amendment protections constitute a significant

change in the law that is retroactively applicable to Scott and material to his sentence.

Id. at 5, 9-10; U.S. CONST, amend. VIII. I agree with that also.

       The majority denies Scott relief for a different reason. A personal restraint

petition may be granted only when there is no other adequate relief available. RAP

16.4. The majority concludes that under current Eighth Amendment precedent,

RCW 9.94A.730—which provides Scott with a chance for parole rather than a right

to resentencing—^provides an adequate remedy for the Miller violation. Id. at 1. I

agree with that conclusion also.

      But we have "repeated[ly] recogni[zed]" that the Washington Constitution's

article I, section 14 is more protective of individual rights at sentencing than the
State V. Scott (Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


Eighth Amendment. State v. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713(2006). The

majority does not address the impact of our more protective article I, section 14 on

this case at all. Instead, it asserts that Scott did not properly present a state

constitutional argument. Majority at 14.

       The majority is correct about that too. Despite the fact that amicus briefs filed

in support of Scott's position did address that issue, the majority certainly has the

discretion to decline to reach arguments raised solely by amici.^

       I therefore write to clarify that the adequacy ofthe statutory remedy available

to Scott—^the possibility of parole after 20 years rather than the certainty of a full

resentencing now—^remains an open question under Washington law. This is

important because our court has held that any Miller "fix" must include an

individualized hearing and '"take into account how children are different [from

adults].'"^ See State v. Ramos, 187 Wn.2d 420, 428, 387 P.3d 650 (quoting Miller,

567 U.S. at 480), cert, denied, 138 S. Ct. 467 (2017). RCW 9.94A.730 fails to

provide those two requirements—it does not give the offender a resentencing




        ^ State V. Duncan, 185 Wn.2d 430, 440, 374 P.3d 83 (2016)(citing Dragonslayer,
Inc. V. Wash. State Gambling Comm 'n, 139 Wn.App.433,442,161 P.3d 428(2007)(citing
Noble Manor Co. v. Pierce County, 133 Wn.2d 269,272 n.l, 943 P.2d 1378 (1997))).

       ^ In re Pers. Restraint of McNeil, 181 Wn.2d 582, 588-89, 334 P.3d 548 (2014)
(citing Laws of 2014, ch. 130, § 9(3)(b)).
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


hearing, and it provides no similar forum for a judge to evaluate the offender's age-

related deficits at the time of the crime. The result of the majority's limited Eighth

Amendment approach is thatjuveniles convicted of aggravated first degree murder^

get more protections post-Mi7/er than juveniles, like Scott, who were convicted of

lesser crimes—and that result would likely change under our own state's law.

       I therefore respectfully concur.

                                      Analysis


RCW 9.94A.730, the legislature's Miller "fix" applicable to nonaggravated murder
        offenses, is not an "adequate" remedy under Washington law

       The Eighth Amendment to the United States Constitution compels us to

recognize that children are different. See, e.g., Miller, 567 U.S. at 480; Graham v.

Florida, 560 U.S. 48, 68-70, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v.

Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); State v.

Houston-Sconiers, 188 Wn.2d 1, 18, 391 P.3d 409 (2017); Ramos, 187 Wn.2d at

428. In Houston-Sconiers, we noted that the United States Supreme Court has

"explained how the courts must address those differences in order to comply with




       ^ Id. at 589 ("Any juvenile offender who was given a mandatory sentence of life
without the possibility of early release before the Miller fix became effective is
automatically entitled to resentencing consistent with the new guidelines." (citing LAWS
OF 2014, ch. 130, § 11(1))).
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


the Eighth Amendment: with discretion to consider the mitigating qualities of

youth.'"^ Based on this line of cases, we explained,

             These cases make two substantive rules of law clear: first, "that
      a sentencing rule permissible for adults may not be so for children,"
      [Roper, 543 U.S. at 481], rendering certain sentences that are routinely
      imposed on adults disproportionately too harsh when applied to youth,
      and second, that the Eighth Amendment requires another protection,
      besides numerical proportionality, in juvenile sentencing—^the exercise
       of discretion.


Houston-Sconiers, 188 Wn.2d at 19 n.4. But our own constitution and case law

require more than the framework offered by RCW 9.94A.730.

       A. Under State v. Fain,^ the opportunity for parole cannot cure an
          unconstitutional sentence


       The first reason that our own constitution and case law compel a different

result from that provided by the Eighth Amendment is our holding in Fain. RCW

9.94A.730 gives the offender the chance to ask the Indeterminate Sentence Review

Board (ISRB)—basically a parole board—for release—^basically parole. But Fain

holds that the possibility of parole cannot be considered akin to a real resentencing

under our state constitution.


       In Fain, the defendant argued that his mandatory life sentence was

unconstitutionally disproportionate to his nonviolent crimes. The State responded by


        188 Wn.2dat 19 & n.4.


       5 94 Wn.2d 387, 617 P.2d 720(1980).
                                           4
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


arguing that this court should treat a sentence oflife with the possibility of parole as

a lesser (and more proportionate) sentence than a sentence of life without parole

because the former provides for "the availability of parole and 'good behavior'

credits." 94 Wn.2d at 393 (citing RCW 9.95.110, .070). This court rejected the

State's distinction because "[i]t is clear to us that'parole is simply an act ofexecutive

grace.'" Id. at 394 (quoting Riimmel v. Estelle, 445 U.S. 263, 293, 100 S. Ct. 1133,

63 L. Ed. 2d 382(1980)(Powell, J., dissenting)). We continued by explaining that

"[a] prisoner has no right to parole, which is merely a privilege granted by the

administrative body."^ Thus, for purposes of our analysis, Scott's sentence, like

Tain's sentence, must be treated as a true life sentence. Id. at 395.

       Following Fain,the majority's argument that RCW 9.94A.730 provides Scott

with a "de facto lifetime prison term with the possibility ofparole,'' majority at 8, is

irrelevant under state law. RCW 9.94A.730 provides no more than a possibility of



       ^ Id. at 394 (citing January v. Porter, 75 Wn.2d 768, 774, 453 P.2d 876 (1969)
(parole decision not subject to judicial review);In re Application ofLindsey,33 Wn.2d 94,
104-05,204 P.2d 482(1949);In re Pers. Restraint ofLaLande,21 Wn. App.378,380,585
P.2d 180)(1978). The Supreme Court has also recognized this principle. Greenholtz v.
Inmates ofNeb. Penal and Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed.
2d 668 (1979)('There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.'); Morrissey v. Brewer,
408 U.S. 471, 482 n.8, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)(an individual's mere
anticipation or hope offreedom is not as important as hisjustifiable reliance in maintaining
his conditional release on parole). And see Rummel v. Estelle, 587 F.2d 651, 665(5th Crr.
1978)(Clark, J., dissenting), aff'd, 445 U.S. 263.)).
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


parole, an act of executive privilege, and it therefore '"creates an unacceptable risk'

that a substantive constitutional rule will be violated." Ramos, 187 Wn.2d at 442

(quoting Hall v. Florida, 572 U.S.          , 134 S. Ct. 1986, 1990, 188 L. Ed. 2d 1007

(2014)).

       B. Under In re Personal Restraint of McNeil,^ Miller "fixes" must include
          both substantive and procedural requirements to be adequate

       Further, our prior decisions make clear that Miller "fixes" must include both

substantive and procedural protections. Ramos and Houston-Sconiers emphasized

these two protections—^those decisions explain both the constitutional limits on

sentence length® and the constitutionally required discretion in the consideration of

mitigating factors.^


       ^ 181 Wn.2d 582, 334 P.3d 548 (2014).

       ® "The [United States Supreme] Court held that Miller announced a substantive rule
that 'life without parole [is] an unconstitutional penalty for "a class of defendants because
of their status"—^that is, juvenile offenders whose crimes reflect the transient immaturity
of youth.'" Ramos 187 Wn.2d at 441 (second alteration in original)(quoting Montgomery,
136 S. Ct. at 734 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L.
Ed. 2d 256 (1989))).

       ^ "[I]t is clear that in order to give effect to Milled s substantive holding, every case
where a juvenile offender faces a standard range sentence of life without parole (or its
functional equivalent) necessarily requires a Miller hearing." Id. at 443.

      "[T]he Eighth Amendment requires trial courts to exercise . . . discretion [to
consider the mitigating qualities of youth] whether the youth is sentenced in juvenile or
adult court and whether the transfer to adult court is discretionary or mandatory." Houston-
Sconiers, 188 Wn.2d at 19-20 (citing Miller, 132 S. Ct. at 2461-62; Graham, 560 U.S. at
5?>-, Roper, 543 U.S. at 557).
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


       We explained the importance of incorporating both constitutional

requirements into any Miller "fix" type ofresentencing in McNeil. McNeil addressed

one ofthe legislature's two Miller "fixes"—^RCW 10.95.030(3). RCW 10.95.030(3)

describes the initial sentencing procedure for certain juveniles convicted of

aggravated murder. RCW 10.95.035(1) makes this Miller "fix" fully retroactive and

applicable to resentencing. See McNeil, 181 Wn.2d at 591 (citing Laws OF 2014,ch.

130, §11(1)).

       In McNeil,two juveniles were tried as adults and convicted of aggravated first

degree murder. Both were given the mandatory minimum of life in prison without

the possibility of early release, and both challenged that sentence based on Miller.

Id. at 585. Like the majority in this case, McNeil held that "[t]he Miller fix remedies

the unlawfulness ofthe petitioners' sentences by providing they must be resentenced

in a manner that does not violate the Eighth Amendment, consistent with Miller."

Id. at 590.


       But the McAez7-referenced Miller "fix," RCW 10.95.030(3) (sentences for

aggravated first degree murder), differs significantly from RCW 9.94A.730, the

"fix" statute at issue here. The RCW 10.95.030(3) Miller "fix" is far more protective

of the defendant's constitutional rights. RCW 10.95.030(3) states in relevant part,

      (a)(i) Any person convicted of the crime of aggravated first degree
      murder for an offense committed prior to the person's sixteenth

                                           7
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


       birthday shall be sentenced to a maximum term of life imprisonment
       and a minimum term of total confinement oftwenty-five years.

          (ii) Any person convicted of the crime of aggravated first degree
       murder for an offense committed when the person is at least sixteen
       years old but less than eighteen years old shall be sentenced to a
       maximum term of life imprisonment and a minimum term of total
       confinement of no less than twenty-five years. A minimum term of life
       may be imposed, in which case the person will be ineligible for parole
       or early release.

          (b) In setting a minimum term, the court must take into account
       mitigatingfactors that accountfor the diminished culpability ofyouth
       as provided 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.

(Emphasis added.) As the emphasized language shows, this RCW 10.95.030(3)

Miller "fix," unlike the RCW 9.94A.730 Miller "fix" at issue here, specifically

incorporates Miller's requirements—^both substantive and procedural—^by providing

a limit on the sentence length and by requiring that a sentencing "court"—^not parole

board—^must "take into account mitigating factors that account for the diminished

culpability of youth." RCW 10.05.030(3)(b).

       Unlike McNeil, who was convicted of aggravated first degree murder, Scott

was convicted of the less serious crime of first degree murder. See State v. Scott, 72

Wn. App. 207, 210, 866 P.2d 1258 (1993). He is therefore eligible for the Miller

"fix" ofRCW 9.94A.730—rather than the Miller "fix" ofRCW 10.95.030(3). RCW
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


9.94A.730 (early release for persons convicted of one or more crimes committed

prior to 18th birthday) details a very different Miller "fix," stating,

      (1) Notwithstanding any other provision of this chapter, any person
      convicted of one or more crimes committed prior to the person's
      eighteenth birthday may petition the indeterminate sentence review
      board for early release after serving no less than twenty years total
      confinement, provided the person has not been convicted for any crime
      committed subsequent to the person's eighteenth birthday, the person
      has not committed a disqualifying serious infraction as defined by the
      department in the twelve months prior to filing the petition for early
      release, and the current sentence was not imposed under RCW
       10.95.030 or 9.94A.507.




          (3)No later than one hundred eighty days from receipt ofthe petition
       for early release, the department shall conduct, and the offender shall
       participate in, an examination of the person, incorporating
       methodologies that are recognized by experts in the prediction of
       dangerousness, and including a prediction of the probability that the
       person will engage in future criminal behavior ifreleased on conditions
       to be set by the board. The board may consider a person's failure to
       participate in an evaluation under this subsection in determining
       whether to release the person. The board shall order the person released
       under such affirmative and other conditions as the board determines
       appropriate, unless the board determines by a preponderance of the
       evidence that, despite such conditions, it is more likely than not that the
       person will commit new criminal law violations if released. The board
       shall give public safety considerations the highest priority when making
       all discretionary decisions regarding the ability for release and
       conditions of release.
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


Obviously,this does not provide for a"resentencing" in a"court," with consideration

of Miller factors, as ROW 10.95.030(3)(which applies to aggravated first degree

murderers) does.

       But our Washington cases do not require one set ofheightened protections for

juveniles committing aggravated first degree murders and a lesser set of protections

for juveniles committing less culpable murderers. Instead, our state case law holds

that in both cases, '"a sentencer follow[s] a certain process—considering an

offender's youth and attendant characteristics—before imposing a particular

penalty.'" McNeil, 181 Wn.2d at 588 (quoting Miller, 567 U.S. at 483). As we held

in McNeil, the legislature met the requirements of Miller in its enactment of RCW

10.95.030(3)—because ofthefull resentencing requirements discussed above. 181

Wn.2d at 590. The legislative "fix" available to Scott, in contrast, fails to meet this

standard. See RCW 9.94A.730. There is no resentencing requirement in RCW

9.94A.730, the review is not conducted by a court, and, most importantly, the ISRB

is not required to consider the offender's youth and its characteristics. Compare

RCW 9.94A.730, with RCW 10.95.030(3).

       C. The United States Supreme Court's holdings in Miller        Montgomery do
          not bar this postconviction remedy

       As noted by the majority, the Montgomery Court cited with approval a post-

Miller Wyoming statute that permitted juvenile homicide offenders to be considered

                                           10
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


for parole after 25 years, rather than requiring resentencing. 136 S. Ct. at 736 (citing

Wyo. Stat. Ann. § 6-10-301); majority at 11. The Court's brief reference to the

Wyoming statute, however, was dictum. The questions presented for review in

Montgomery were (1)"Did Miller v. Alabama, 132 S. Ct. 2455 (2012) adopt a new

substantive rule that applies retroactively to cases on collateral review" and (2)

"[djoes this Court have jurisdiction to decide whether the Supreme Court of

Louisiana correctly refused to give retroactive effect in this case to this Court's

decision in Miller v. Alahamal" Br. ofPet'r, Montgomery v. Louisiana, No. 14-280,

at i (U.S. July 22, 2015). The respondent phrased the questions slightly differently.

But neither party presented—and the Court did not accept review of—^the question

of a specific state's statutory compliance with Miller.

       Further, Washington courts would not be bound by the United States Supreme

Court's statement about available state court remedies even if it were not dictum.


This is clear from Danforth v. Minnesota, in which the United States Supreme Court

stated that its limitations on the availability of relief for violations of new rules of

constitutional law do not "limit a state court's authority to grant relief for violations

ofnew rules of constitutional law when reviewing its own State's convictions." 552

U.S. 264, 280-81, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). And our state's

constitution and case law, described above, states that Washington requires more


                                           11
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)


than the Montgomery dictum does. Thus, under Washington law, RCW 9.94A.730

does not provide adequate protections.

                                     Conclusion


      I agree with the majority's conclusion that under the Eighth Amendment,

RCW 9.94A.730 is constitutionally adequate. But over the almost 30-year history of

this case, Scott's youthfulness has never been considered as a mitigating factor.

RCW 9.94A.730 does not provide for the Fain and McNeil compliant resentencing

that would remedy this constitutional problem. For that reason, it is not an adequate

"fix" for that problem under our state constitution and case law.

      I therefore concur.




                                           12
State V. Scott(Jai'Mar Eli), No. 94020-7
(Gordon McCloud, J., concurring)




                                           13
