In re Pers. Restraint of Carrasco

• Court: Washington Supreme Court
• Decided: March 9, 2023
• Docket: 100,073-1
• Status: Published

Opinion

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of ) No. 100073-1 ) ERIK RAMOS CARRASCO,† ) En Banc ) Petitioner. ) ) Filed: March 9, 2023

JOHNSON, J.—This case concerns the adequacy of the early release statute,

RCW 9.94A.730, as a remedy to petitioner’s alleged unconstitutional sentence for

a crime he committed as a juvenile. This case is guided by State v. Scott, 1 where

we held that RCW 9.94A.730 was an adequate remedy for a petitioner serving a

75-year sentence imposed without consideration of the mitigating qualities of his

youth. Erik Carrasco Ramos is serving a 93-year sentence imposed without any

consideration of his youth. He will be eligible to petition for early release under

RCW 9.94A.730 after serving 20 years of his sentence. Because Scott guides our

† Petitioner signs his name as Erik Carrasco Ramos, however, self refers as Carrasco. We will refer to petitioner as Carrasco to reflect this and to reflect court documents. 1 190 Wn.2d 586, 416 P.3d 1182 (2018). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

analysis, and Carrasco does not propose we overrule Scott, we conclude that he has

an adequate remedy under RCW 9.94A.730. Accordingly, we affirm the dismissal

of Carrasco’s personal restraint petition (PRP). 2

FACTS 3 AND PROCEDURAL HISTORY

Carrasco is serving a 1,126-month (93 years, 10 months) sentence for

offenses he committed when he was 17 years old. Carrasco was convicted of

second degree murder, four counts of first degree assault, and second degree

unlawful possession of a firearm. These convictions stem from one incident on

April 28, 2010, in Yakima, Washington.

Carrasco was 17 years old and a member of “La Raza,” a Norteño gang in

Yakima. On April 28, 2010, Carrasco visited his friend’s house in a territory

claimed by the Norteño gang. As Carrasco and several acquaintances stood in the

front yard, a car carrying five rival Sureño gang members slowly drove by. The

Sureño members yelled out their gang name and some expletives. One passenger

threw a beer can, which hit Carrasco in the head. As the car drove away, Carrasco

shot at the car three times. One bullet struck a passenger in the head and lodged in

2 The Washington Association of Prosecuting Attorneys filed a brief of amicus curiae in support of the State. The Freedom Project of Washington filed an amicus brief in support of Carrasco. 3 As detailed in State v. Carrasco, No. 31298-4-III (Wash. Ct. App. Feb. 3, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/312984.unp.pdf.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

another passenger’s arm. The passenger who was shot in the head later died from

the injury.

Following an automatic decline to adult court and a jury trial, Carrasco was

convicted of second degree murder, four counts of first degree assault, and second

degree unlawful possession of a firearm. The jury returned special verdicts, finding

that Carrasco was armed with a firearm at the time he committed the crimes and

that he committed the offenses with two gang-related motive or intent aggravators,

supporting an exceptional high sentence under RCW 9.94A.535(3)(aa) 4 and (s).5

Carrasco was sentenced in November 2012. His counsel asked the court to

use its leniency and discretion to impose the bottom of the range and not impose

any additional time for the gang-related aggravating factors. Mot. for Discr. Rev. at

App. 15. He requested a sentence of 806 months (67 years, 2 months), which was

understood to be the minimum mandatory sentence at the time. Carrasco’s counsel

did not present evidence of the mitigating qualities of his youth. The State

requested a top of the range sentence for each offense and an additional 113

months based on the gang aggravators. The court imposed the top of the standard

range for each count, 300 months for the mandatory firearm enhancements, and an

4 “The defendant committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang as defined in RCW 9.94A.030, its reputation, influence, or membership.” 5 “The defendant committed the offense to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group.”

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

additional 100 months for the gang aggravators, all to be served consecutively.

Following an unsuccessful direct appeal, Carrasco’s judgment and sentence

became final in July 2015.

In 2018, Carrasco filed a pro se motion for relief from his judgment and

sentence, seeking resentencing based on an Eighth Amendment to the United

States Constitution violation, alleging the court failed to consider mitigating factors

of his youth at sentencing. He relied primarily on State v. Houston-Sconiers, 188

Wn.2d 1, 391 P.3d 409 (2017), and State v. Ramos, 187 Wn.2d 420, 387 P.3d 650

(2017). The trial court transferred the motion to Division Three of the Court of

Appeals for consideration as a PRP. The Court of Appeals stayed consideration of

the petition pending resolution of In re Personal Restraint of Meippen, 193 Wn.2d

310, 440 P.3d 978 (2019), In re Personal Restraint of Domingo-Cornelio, 196

Wn.2d 255, 474 P.3d 524 (2020), and In re Personal Restraint of Ali, 196 Wn.2d

220, 474 P.3d 507 (2020).

In July 2021, the Court of Appeals, Division Three’s Acting Chief Judge

(ACJ) dismissed Carrasco’s petition as frivolous. The ACJ concluded that

Carrasco’s petition was exempt from the time bar under one of the exceptions set

forth in RCW 10.73.100(6) and under Ali. Ali, 196 Wn.2d 220 (holding Houston-

Sconiers announced a significant and material change in the law that applies

retroactively). The ACJ also determined that Carrasco demonstrated a sentencing

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

error of constitutional magnitude where the sentencing transcript shows the trial

court did not acknowledge its ability to consider Carrasco’s youthfulness when

sentencing. Nevertheless, the judge dismissed the petition because Carrasco failed

to establish he suffered actual and substantial prejudice as a result of this error. The

ACJ also concluded that the early release statute, RCW 9.94A.730, provides

Carrasco an adequate remedy for this sentencing error.

ANALYSIS

Carrasco was sentenced as an adult for crimes he committed as a child. He

seeks collateral review of that sentence through this PRP. Carrasco alleges he is

serving an unconstitutional sentence because the sentencing court failed to comply

with the dual mandates of Houston-Sconiers.6

In Houston-Sconiers, on direct appeal, we established the Eighth

Amendment requires that trial courts consider the mitigating qualities of youth at

sentencing and have discretion to impose any sentence below the otherwise

applicable SRA7 range and/or sentence enhancements when sentencing a juvenile

in adult court, regardless of how the juvenile got there. 188 Wn.2d at 21. Here, the

6 As this court recently clarified, the substantive rule of Houston-Sconiers, prohibiting adult standard Sentencing Reform Act of 1981, ch. 9.94A RCW, ranges and enhancements that would be disproportionate punishment for juveniles who possess diminished culpability, is retroactive. Whereas, “the procedural mandates that require courts to consider mitigating qualities of youth and to have discretion to impose sentences below the SRA are not independently retroactive on collateral review.” In re Pers. Restraint of Williams, 200 Wn.2d 622, 632, 520 P.3d 933 (2022). 7 Sentencing Reform Act of 1981, ch. 9.94A RCW.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

Court of Appeals concluded that Carrasco demonstrated a sentencing error of

constitutional magnitude based on the trial court not considering the mitigating

qualities of Carrasco’s youth and not appreciating its ability to depart from the

SRA and enhancements. It also concluded that Carrasco’s petition is exempt from

the time bar. The State has not challenged these holdings, and the sole issue before

us is whether Carrasco has established grounds for relief in his PRP.

On direct appeal, the defendant needs only to establish the existence of the

Houston-Sconiers error in order to be entitled to a new sentencing hearing. In the

context of a PRP, a petitioner must show they are actually and substantially

prejudiced by the constitutional error. In re Pers. Restraint of Davis, 152 Wn.2d

647, 671-72, 101 P.3d 1 (2004). Even if a personal restraint petitioner successfully

establishes they are prejudiced by the constitutional error, the court will grant relief

via a PRP only if “other remedies which may be available to petitioner are

inadequate under the circumstances.” RAP 16.4(d). If Carrasco has an adequate

remedy available to him, this court cannot grant the collateral relief sought, i.e.,

resentencing. Carrasco argues that the possibility of early release under RCW

9.94A.730 is an inadequate remedy under the Eighth Amendment and article I,

section 14 of the Washington Constitution.

RCW 9.94A.730 (hereinafter .730) grants criminal defendants sentenced to

lengthy terms as juveniles the right to petition the Indeterminate Sentence Review

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

Board (ISRB) for early release after serving at least 20 years. RCW 9.94A.730(1);

In re Pers. Restraint of Dodge, 198 Wn.2d 826, 502 P.3d 349 (2022). The

petitioner benefits from a statutorily mandated presumption of release. The statute

“presumes that a petitioner is releasable and requires the ISRB to determine, by a

preponderance of evidence, that no conditions of release could sufficiently mitigate

the petitioner’s risk.” Dodge, 198 Wn.2d at 841 (citing RCW 9.94A.730(3)). “If

the ISRB grants release, the defendant is subject to Department of Corrections

[DOC] community custody for a period of time determined by the ISRB,[8] up to

the length of the court-imposed term of incarceration.” In re Pers. Restraint of

Brooks, 197 Wn.2d 94, 99, 480 P.3d 399 (2021) (citing RCW 9.94A.730(5)).

Our holding today is guided by our decision in Scott, 190 Wn.2d 586. In

Scott, we concluded .730 provides an adequate remedy under the Eighth

Amendment for a de facto life sentence imposed on a juvenile. In that case, Scott

was serving a long-final 900-month (75 years) sentence that he alleged was

imposed in violation of Miller.9 Under those circumstances, we concluded 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

8 As a matter of policy, these juvenile offenders are under the DOC’s active supervision for three years. Indeterminate Sentence Review Board: Frequently Asked Questions (FAQ), WASH. STATE DEP’T OF CORRECTIONS, https://www.doc.wa.gov/corrections/isrb/faq.htm#isrb- inmates (last visited Feb. 28, 2023). 9 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

facto life sentence as a juvenile.” Scott, 190 Wn.2d at 588. Here, Carrasco, like

Scott, “has a de facto lifetime prison term with the possibility of parole” by

operation of .730, thereby meeting Miller’s requirement that the State provide

“‘“some meaningful opportunity to obtain release based on demonstrated maturity

and rehabilitation.”’” Scott, 190 Wn.2d at 594 (quoting Miller, 567 U.S. at 479

(quoting Graham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010))). Consistent with Scott, we conclude .730 is an adequate remedy for an

alleged Houston-Sconiers violation where the petitioner is serving a de facto life

without parole (LWOP) sentence.

Carrasco does not seek to overrule Scott. Instead, Carrasco claims that Scott

does not apply here because this case involves a Houston-Sconiers violation

whereas Scott dealt with a Miller violation. Therefore, according to Carrasco, the

question of whether .730 is an adequate remedy under the Eighth Amendment for a

Houston-Sconiers violation within the context of a de facto life sentence is

undecided. Suppl. Br. of Pet’r at 23. In essence, Carrasco, like the dissent, argues a

Houston-Sconiers violation and a Miller violation address “materially different

constitutional concerns, which require different remedies” under these

circumstances. Dissent at 5. We disagree and conclude .730 is an adequate remedy

under the circumstances of this case.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

Carrasco argues Scott is inapplicable here because Scott was decided before

we held Houston-Sconiers was retroactive. In his view, Ali made retroactive the

dual mandates of Houston-Sconiers, i.e., courts must meaningfully consider the

mitigating factors of youthfulness and recognize their absolute discretion to impose

any sentence below the standard sentencing range. Ali, 196 Wn.2d 220. According

to Carrasco, he is entitled to resentencing because the sentencing court did not

comply with these dual mandates. Thus, in Carrasco’s view, it follows that this

retroactivity makes Scott inapplicable because if Scott’s case were heard today, he

would also be entitled to resentencing under Houston-Sconiers. The dissent makes

a similarly erroneous argument. The dissent sua sponte alleges Scott is “incorrect,”

and thus must be overruled, because it was “premised on the now incorrect

assumption that the [Houston-Sconiers] dual mandates only apply to sentences not

yet final on direct review.” Dissent at 6, 12. The dissent, like Carrasco,

misapprehends the retroactive effect of Houston-Sconiers.

In Scott, we had no occasion to discuss the dual mandate of Houston-

Sconiers, but this court has since confirmed that Houston-Sconiers’ procedural

“dual mandates” are not retroactive and therefore do not apply on collateral review

to a sentence that is long final. Responding to a similar argument, this court stated,

“This characterization of Houston-Sconiers’ retroactivity is inaccurately broad and

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

fails to distinguish between the substantive rule and the procedural dual mandates.”

In re Pers. Restraint of Williams, 200 Wn.2d 622, 631-32, 520 P.3d 933 (2022).

The substantive rule of Houston-Sconiers—the Eighth Amendment prohibits

imposing adult standard SRA ranges and enhancements that would be

disproportionate punishment for juveniles who possess diminished culpability—is

retroactive and stems directly from the substantive rules of Miller and its progeny:

“some sentences routinely imposed on adults are disproportionately too harsh

when imposed on children who lack adult culpability.” Ali, 196 Wn.2d at 237.

In arguing that a Miller violation and a Houston-Sconiers violation

“address[] materially different constitutional concerns,” the dissent and Carrasco

misconstrue the Houston-Sconiers protections as broadening the type of protections

the federal constitution provides to juveniles when it actually broadened the scope

of the protection. Dissent at 5. A Houston-Sconiers violation is an Eighth

Amendment violation, 10 and Houston-Sconiers did not impose new Eighth

Amendment protections. It applied Miller’s substantive rule to a broader category

of people. Ali, 196 Wn.2d at 241-42 (“The difference is one of scope, not of

kind.”). As confirmed in Forcha-Williams,

10 We rooted our Houston-Sconiers holding in the Eighth Amendment and explicitly declined to address whether “imposing a lengthy term of years sentence on a juvenile without possibility of discretion violates article I, section 14, of our state constitution.” 188 Wn.2d at 21 n.6. In Ali, we confirmed that Houston-Sconiers was rooted in the Eighth Amendment and Miller and its federal progeny. Ali, 196 Wn.2d at 237.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

[o]ur decision in Houston-Sconiers was an expansion of Miller. . . . We noted that like Miller, Houston-Sconiers protects juveniles from receiving certain disproportionate sentences; the difference is that Houston-Sconiers prohibits a broader category of punishments. Instead of prohibiting only mandatory life without possibility of parole sentences, Houston-Sconiers prohibits courts from imposing any mandatory adult sentence on juveniles who possess diminished culpability. But Houston-Sconiers centers on the same substantive rule as Miller: the Eighth Amendment requires punishment proportionate to culpability.

In re Pers. Restraint of Forcha-Williams, 200 Wn.2d 581, 594, 520 P.3d 939

(2022) (citations omitted). 11 Because Carrasco is serving a long-final mandatory de

facto LWOP sentence, he is entitled to the same Eighth Amendment protections of

the substantive rule prohibiting mandatory adult sentences on juveniles who lack

adult culpability whether he alleges a Miller violation or a Houston-Sconiers

violation.

Carrasco also argues that under Ali, .730 is an inadequate remedy for a

Houston-Sconiers violation. Suppl. Br. of Pet’r at 24 (“In Matter of Ali, this Court

held that, ‘while RCW 9.94A.730 might provide an adequate remedy for a Miller

violation, it may be grossly inadequate under the circumstances of a Houston-

Sconiers violation.’” (emphasis added) (quoting Ali, 196 Wn.2d at 246)). Contrary

11 Because Houston-Sconiers broadened the types of punishments subject to this substantive rule, .730 will not be an adequate remedy for every Houston-Sconiers violation. As explained in detail below, Ali and Domingo-Cornelio provide two examples of circumstances under which .730 was inadequate. However, consistent with Scott, .730 is an adequate remedy for a Houston-Sconiers violation where the petitioner is serving a long-final de facto LWOP sentence.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

to Carrasco’s assertion, Ali did not hold that .730 is an inadequate remedy for all

Houston-Sconiers violations. Our comments in Ali confirmed that .730 will

provide an adequate remedy for a Houston-Sconiers violation in cases such as

Carrasco’s where the petitioner is serving an exceptionally lengthy sentence. In Ali,

we cited Scott, recognizing that .730 is an adequate remedy for long-final life

sentences and de facto life sentences. Ali, 196 Wn.2d at 246 n.7. We also

highlighted that Miller, as interpreted by Washington case law before Houston-

Sconiers, was limited to life sentences and de facto life sentences, whereas

Houston-Sconiers applies to any adult standard sentence imposed on a juvenile.

Because we broadened the scope of these Eighth Amendment protections, we

made the logical observation that “RCW 9.94A.730 cannot provide an adequate

remedy under all circumstances.” Ali, 196 Wn.2d at 246 (emphasis added). Ali and

Domingo-Cornelio provide examples of circumstances where .730 was not

adequate. But Carrasco’s circumstances are not akin to the circumstances of the

petitioners in those cases.

In Ali and Domingo-Cornelio, we concluded .730 was not an adequate

remedy based on the length of the petitioners’ sentences. In Ali’s case, .730 was

inadequate because he would have had to serve over 75 percent of his 26-year

sentence before becoming eligible for early release. For Domingo-Cornelio, .730

provided no remedy at all because he would have had to serve the entirety of his

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

20-year sentence. This court reasoned that under those particular circumstances,

.730 was inadequate based on the petitioners likely serving all or nearly all their

sentence before becoming eligible for the remedy. Ali, 196 Wn.2d at 245-46. That

is not the case here where Carrasco is serving a de facto life sentence and will be

entitled to seek early release after serving about 20 percent of his overall sentence.

In addition to arguing that the possibility of parole under .730 is an

inadequate remedy for a Houston-Sconiers violation under the Eighth Amendment,

Carrasco makes a similar argument relying on article I, section 14 of the

Washington Constitution. For support, he cites State v. Fain, 94 Wn.2d 387, 617

P.2d 720 (1980), and the concurrence in Scott to argue he is entitled to a

resentencing hearing despite his eligibility to petition for early release under .730.

Carrasco does not explain how article I, section 14 is more protective than

the Eighth Amendment in this particular context. Citing the Scott concurrence, he

claims Fain held that the possibility of parole is not akin to a real resentencing

under our state constitution. Scott, 190 Wn.2d at 605 (Gordon McCloud, J.,

concurring). Therefore, in Carrasco’s view, this court has already determined that

article I, section 14 requires the remedy of a resentencing hearing even when the

offender has the possibility of parole. This reading of Fain broadens its holding far

beyond what we actually decided. Fain did not hold that the possibility of parole

failed to remedy a life sentence that was unconstitutionally disproportionate to the

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

underlying offenses under article I, section 14. Rather, we concluded that the

opportunity for parole under the particular statute did not convert Fain’s life

sentence into a less-than-life sentence for purposes of analyzing Fain’s

proportionality claim under our state constitution. Also, the pre-SRA parole

scheme at issue in Fain is significantly different from the early release statute here.

In sum, Fain did not hold that the possibility of parole cannot be considered akin to

resentencing under our state constitution and does not control our assessment of

the adequacy of .730 as a remedy to Carrasco’s exceptionally lengthy sentence.

In arguing that .730 is an inadequate remedy under the state constitution,

Carrasco indirectly argues that article I, section 14 requires a resentencing hearing

for juveniles serving long-final exceptionally lengthy sentences imposed without

consideration of the dual mandates of Houston-Sconiers. The Eighth Amendment

does not require a resentencing hearing under these circumstances, and none of our

cases support that state constitutional argument.

Further, Carrasco does not identify a substantive state constitutional right

that invalidates his sentence. The constitutional error that Carrasco alleges in this

PRP is a procedural one. He asserts that the sentencing court did not follow the

procedural requirements of Houston-Sconiers, i.e., the dual mandates. Houston-

Sconiers, in interpreting Miller, identified the substantive federal constitutional

right that the imposition of adult standard SRA ranges and/or enhancements is a

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re the Personal Restraint of Carrasco, No. 100073-1

disproportionate punishment for juveniles with diminished culpability. Ali, 196

Wn.2d at 232. The dual mandate of Houston-Sconiers—that sentencing courts

consider mitigating qualities of youth and appreciate their discretion to depart from

the standard ranges—is a “‘necessary [procedural rule] to implement [the]

substantive guarantee’” of Houston-Sconiers. Ali, 196 Wn.2d at 240 (quoting

Montgomery v. Louisiana, 577 U.S. 190, 210, 136 S. Ct. 718, 193 L. Ed. 2d 599

(2016)). But that procedural rule “‘regulate[s] only the manner of determining the

defendant’s culpability.’” Ali, 196 Wn.2d at 240 (alteration in original) (quoting

Montgomery, 577 U.S. at 210). A violation of that procedural right does not lead to

the conclusion that Carrasco is serving an unconstitutional sentence under the

Eighth Amendment, and Carrasco does not identify an independent state

constitutional basis to conclude differently. Further, Carrasco does not argue that

his substantive constitutional rights—under either the state or federal

constitutions—were violated. Specifically, Carrasco does not argue that he is a

“juvenile with diminished culpability” serving a disproportionate adult standard

SRA range sentence. He also does not show that his sentence is categorically

unconstitutional applied generally to all juveniles. Therefore, this argument fails.

We affirm the Court of Appeals.

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1

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16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco (Eric Ramos), No. 100073-1 (Gordon McCloud, J., concurring)

No. 100073-1

GORDON McCLOUD, J. (concurring)—I agree with the majority’s

conclusion that we must deny Eric Carrasco Ramos’s personal restraint petition

(PRP) because he has an adequate, alternative remedy. I write separately because I

do not agree with all of the majority’s reasoning.

Instead, I believe our precedent now establishes the following rules: (1) that

as the concurrence in dissent states at 2, under State v. Houston-Sconiers, 188

Wn.2d 1, 391 P.3d 409 (2017), “a judge imposing sentence on a person for a crime

committed as a juvenile must meaningfully consider the mitigating qualities of

youth and must have discretion to make a downward departure” from otherwise

mandatory sentencing requirements, (2) that as the concurrence in dissent also

states at 2, under In re Personal Restraint of Ali, 196 Wn.2d 220, 237, 474 P.3d

507 (2020), those dual mandates apply retroactively on collateral review, (3) that

under In re Personal Restraint of Williams, 200 Wn.2d 622, 631, 520 P.3d 933

(2022), those dual mandates still apply retroactively on collateral review but in

fewer circumstances: “The dual mandates are clearly procedural as they do not

place any law or punishment beyond the State’s power to impose. Thus, any

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco (Eric Ramos), No. 100073-1 (Gordon McCloud, J., concurring)

application of Houston-Sconiers’ procedural elements to an indeterminate sentence

must be tied to the substantive rule prohibiting adult standard SRA[1] ranges and

enhancements that would be disproportionate punishment for juveniles who

possess diminished capacity.”, and (4) that under State v. Scott, 190 Wn.2d 586,

416 P.3d 1182 (2018), RCW 9.94A.730’s provision for Indeterminate Sentence

Review Board review of certain lengthy sentences after 20 years may provide an

adequate available remedy, RAP 16.4(d), that bars criminal defendants who

suffered from Houston-Sconiers type errors that resulted in de facto life sentences

from using the PRP procedure for relief.

I would not overrule those recent cases or discard those recent rules.

For that reason, I agree with the dissent that Carrasco has established a

violation of Houston-Sconiers’ “dual mandate” procedural protections. I agree

with the dissent that those Houston-Sconiers procedural protections apply

retroactively to Carrasco because they are so tied to the “substantive rule”

prohibiting adult standard SRA ranges and enhancements that would

disproportionately punish “juveniles who possess diminished capacity.” I further

agree with the dissent that Carrasco has established prejudice, as we defined

prejudice in In re Personal Restraint of Domingo-Cornelio, 196 Wn.2d 255, 268,

1 Sentencing Reform Act of 1981, ch. 9.94A RCW. 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco (Eric Ramos), No. 100073-1 (Gordon McCloud, J., concurring)

474 P.3d 524 (2020). And I would not disturb that precedent’s requirement of

prejudice or its definition of prejudice.

But Scott bars relief. As I mentioned above, Scott holds that RCW

9.94A.730 generally provides an adequate alternative remedy for those who

suffered from Houston-Sconiers type errors that resulted in de facto life sentences.

Carrasco does not ask us to overrule Scott. After Scott was decided, we further

clarified that the petitioner at such RCW 9.94A.730 hearings benefits from a

“statutorily mandated presumption of release.” Majority at 7 (citing In re Pers.

Restraint of Dodge, 198 Wn.2d 826, 841, 502 P.3d 349 (2022)). Carrasco received

a sentence of 93 years. That is a de facto life sentence. Under our controlling

precedent, RCW 9.94A.730 provides him with a hearing after he has served 20

years at which he will be entitled to a presumption of release. Under Scott, that is

an adequate alternative remedy.

I therefore respectfully concur.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

WHITENER, J. (dissenting)— Erik Carrasco Ramos was sentenced to almost

94 years in prison without the trial court judge considering his youth at the time of

the crime. At the time of sentencing, the trial court judge did not have the benefit of

the dual mandate set forth in Houston-Sconiers,1 a decision this court held is a

significant change in the law that applies retroactively. Trial courts must consider

youth when sentencing juveniles, even when those juveniles are sentenced as adults,

and we should remand to ensure that happens in this case.

It is not disputed that Carrasco “is serving a 93-year sentence imposed without

any consideration of his youth.” Majority at 1. The majority concludes, however,

that based on the lengthiness of Carrasco’s sentence, his personal restraint petition

(PRP) must be dismissed because he has an adequate remedy in the form of

eligibility for early release under RCW 9.94A.730. Majority at 1-2, 9-10. I

acknowledge, in line with the majority’s position, that Carrasco’s PRP appears to

fall squarely within the factual underpinnings of State v. Scott, 190 Wn.2d 586, 416

P.3d 1182 (2018). However, I cannot agree that this similarity is determinative of

the case before us because Scott was decided before we held that Houston-Sconiers

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

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

was a significant change in the law with retroactive effect. Although both deal with

juvenile rights under the Eighth Amendment, a Miller2 violation and a Houston-

Sconiers violation are not one and the same. See majority at 7-8. The distinction in

scope between the violations, discussed further in Section I.A, infra, makes evident

that while early release eligibility corrects a Miller violation, it is not an adequate

remedy for a Houston-Sconiers violation.

Therefore, I respectfully dissent. I would grant Carrasco’s PRP and remand

for resentencing because Carrasco has established that he was prejudiced by the

sentencing court’s failure to comply with the dual mandate of Houston-Sconiers.

I. Carrasco’s petition should not be dismissed because eligibility for early release under RCW 9.94A.730 is not an adequate remedy for a Houston- Sconiers violation

A. A Houston-Sconiers violation differs from a Miller violation

Although both Miller and Houston-Sconiers addressed juvenile rights under

the Eighth Amendment, there is a critical distinction between a Miller violation and

a Houston-Sconiers violation.3 Miller prohibited mandatory life without parole

(LWOP) for defendants who committed their crimes as juveniles. 567 U.S. at 479.

Because “children are different” from adults—namely, they are generally more

2 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). 3 We touched on this fleetingly in In re Personal Restraint of Ali, 196 Wn.2d 220, 245, 474 P.3d 507 (2020), when we noted eligibility for early release, while adequate to remedy a Miller violation, “does not necessarily provide a remedy to a Houston-Sconiers violation.”

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

immature, reckless, and impetuous, and thus less blameworthy—the Supreme Court

reasoned that “making youth (and all that accompanies it) irrelevant to imposition

of that harshest prison sentence . . . poses too great a risk of disproportionate

punishment.” Id. at 472, 479, 481. In Houston-Sconiers, we applied Miller’s

reasoning in the context of a determinate sentence based on the Supreme Court’s

recognition that “‘children are different’ under the Eighth Amendment” and so all

“‘criminal procedure laws’ must take the defendants’ youthfulness into account.”

188 Wn.2d at 9. We appropriately recognized that the Eighth Amendment’s

prohibition of cruel and unusual punishment was not restricted to the context of

mandatory LWOP 4 and extended Miller’s reasoning to hold that sentencing courts

must consider youth as a mitigating factor and understand that they have discretion

to depart from mandatory sentencing schemes whenever sentencing a defendant for

crimes they committed as a juvenile. Id. at 21 (requiring adherence to dual mandate

when sentencing “any juvenile defendant” in criminal court); see In re Pers.

4 The Eighth Amendment bars any punishment that is grossly disproportionate to the defendant’s crime; its protections have not been limited to prevent only those punishments we have deemed to be the most severe, such as the death penalty or LWOP. See Weems v. United States, 217 U.S. 349, 368, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (explaining “[w]hat constitutes a cruel and unusual punishment has not been exactly decided” and acknowledging even a sentence for a term of years may be grossly disproportionate under certain circumstances); see also Graham v. Florida, 560 U.S. 48, 60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (holding courts must perform fact-specific comparison of gravity of offense and severity of punishment); Solem v. Helm, 463 U.S. 277, 287-90, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983) (discussing circumstances where a term of imprisonment, even relatively short or intermediate in length, could be grossly disproportionate to a crime).

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

Restraint of Ali, 196 Wn.2d 220, 245-46, 474 P.3d 507 (2020) (“Houston-Sconiers

applies to all juveniles sentenced as adults under the SRA [(Sentencing Reform Act

of 1981, ch. 9.94A RCW)], including those who received far less than life

sentences.”).

Whereas a Miller violation necessarily involves a mandatory LWOP

sentence—in other words, categorical denial of a meaningful opportunity for release

through parole without consideration of youth as a mitigating factor—a Houston-

Sconiers violation does not. Instead, a Houston-Sconiers violation may involve

mandatory LWOP (in which case it would also be a Miller violation) or it may

involve some other lesser sentence, such as a standard adult range determinate

sentence with mandatory enhancements. See Houston-Sconiers, 188 Wn.2d at 13

(determinate sentence of 372 months); see also Ali, 196 Wn.2d at 228 (determinate

sentence of 312 months); In re Pers. Restraint of Domingo-Cornelio, 196 Wn.2d

255, 261, 474 P.3d 524 (2020) (determinate sentence of 240 months plus 36 months

of community custody supervision). The crux of a Houston-Sconiers violation,

therefore, is not the automatic denial of parole, it is the sentencing court’s failure to

ensure a punishment is proportionate (and thus constitutional) by meaningfully

considering youth and understanding its absolute discretion to depart from

mandatory punishments prescribed by the SRA at the time of sentencing, should the

court find that the defendant’s youth mitigates their culpability and warrants an

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

exceptional downward sentence. 188 Wn.2d at 9. When courts fail to adhere to the

dual mandate of Houston-Sconiers, we lack any assurances that the sentence

imposed on a juvenile offender comports with their Eighth Amendment right to be

free from disproportionate punishment. See Domingo-Cornelio, 196 Wn.2d at 268

(“Unless the court meaningfully considers youth and knows it has absolute

discretion to impose a lower sentence, we cannot be certain that an adult standard

range was imposed appropriately on a juvenile.”). Thus, although we have held that

the difference between a Miller violation and a Houston-Sconiers violation “is one

of scope, not of kind,” Ali, 196 Wn.2d at 241-42, this difference in scope addresses

materially different constitutional concerns, which require different remedies.

Houston-Sconiers applies to any adult standard sentence imposed on a juvenile and

is not limited like Miller, so RCW 9.94A.730 cannot provide an adequate remedy

under all circumstances. Ali, 196 Wn.2d at 245. This case is one such circumstance.

B. Houston-Sconiers announced a substantive rule and the procedural mechanism to enforce that rule, both of which are retroactive under Ali and Domingo-Cornelio

The majority concludes the dual mandates from Houston-Sconiers “are not

retroactive and therefore do not apply on collateral review to a sentence that is long

final.” Majority at 9. I disagree.

We framed both Ali and Domingo-Cornelio as analyzing whether the dual

mandates of Houston-Sconiers are retroactive. We ultimately concluded that they

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

are, and we then analyzed prejudice as whether the dual mandates had been satisfied

at the trial court. Finding they had not, we remanded for resentencing because the

trial courts had not complied with the dual mandates. The majority now overrules

those cases without any explanation as to how these two cases are incorrect and

harmful as required under stare decisis.

First, this court has already held that the dual mandates are “necessary to

effectuate” the substantive rule that Houston-Sconiers announced and therefore

those procedural dual mandates do apply retroactively. The Ali court explained that

the dual mandates are the crucial mechanisms that trial courts must use in securing

this constitutional right:

Without the context of a defendant’s youthfulness and the discretion to impose something less than what the SRA mandates, sentencing courts cannot protect juveniles’ Eighth Amendment right to be free from unconstitutionally disproportionate punishment. The discretion and consideration that Houston-Sconiers requires are necessary to effectuate the substantive rule that certain punishments routinely imposed on adults are unconstitutional as applied to youth.

196 Wn.2d at 238. Our court stressed this point further in Ali’s sister case, Domingo-

Cornelio. 196 Wn.2d at 266 (the dual mandates are “the mechanism necessary to

effectuate th[e] substantive rule”).

Second, when we analyzed the violations at issue in Ali and Domingo-

Cornelio, the analysis does not concern whether a categorically prohibited

disproportionate adult standard SRA range sentence was imposed on the juvenile

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

offender with diminished culpability. Instead, we analyzed whether the trial court

judge complied with the dual mandates of Houston-Sconiers because there is no way

to know if the sentence is unconstitutionally disproportionate unless the court

followed the dual mandates.

In Ali, we reasoned,

Ali’s sentencing comported with only one of the two constitutional requirements we announced in Houston-Sconiers. The sentencing judge considered the mitigating factors of Ali’s youth and arguments for an exceptional sentence, but because she did not have the discretion to impose any sentence below the standard SRA range and mandatory enhancements, she sentenced according to the SRA’s mandates for adult sentencing. Based on the record, it appears that more likely than not, the judge would have imposed a lower sentence had she understood that the Eighth Amendment requires absolute discretion to impose any sentence below the standard range based on youthful diminished culpability. Since Houston-Sconiers applies retroactively, Ali was actually and substantially prejudiced by the sentencing court’s (understandable) error.

196 Wn.2d at 244-45.

Further, in Domingo-Cornelio, we concluded that “a petitioner establishes

actual and substantial prejudice when a sentencing court fails to consider mitigating

factors relating to the youthfulness of a juvenile tried as an adult and/or does not

appreciate its discretion to impose any exceptional sentence in light of that

consideration.” 196 Wn.2d at 268. We went on to analyze whether the trial court

judge had complied with the dual mandates, ultimately concluding that “[m]ore

likely than not, Domingo-Cornelio would have received a lesser sentence had the

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

court complied with the dual mandates of Houston-Sconiers.” Id at 268-69. We

remanded for resentencing because of this failure to follow the dual mandates. Id. at

269.

The dual mandates are retroactive on collateral attack, otherwise, there would

be no reason for this court to mention the dual mandates in reference to the trial

court’s actions, much less decide the case on those grounds.

These are two recent, binding decisions that the majority now ignores in its

attempt to limit the application of Houston-Sconiers. But our court is bound to follow

a majority opinion unless that opinion has been shown to be incorrect and harmful—

an analysis the majority fails to perform. State v. Otton, 185 Wn.2d 673, 678, 374

P.3d 1108 (2016) (“In order to effectuate the purposes of stare decisis, this court will

reject its prior holdings only upon ‘a clear showing that an established rule is

incorrect and harmful.’” (quoting In re Rights to Waters of Stranger Creek, 77

Wn.2d 649, 653, 466 P.2d 508 (1970))).

Further, the majority in In re Personal Restraint of Williams agrees that the

dual mandates are retroactive, holding that “any application of Houston-Sconiers’

procedural elements to an indeterminate sentence must be tied to the substantive rule

prohibiting adult standard SRA ranges and enhancements that would be

disproportionate punishment for juveniles who possess diminished capacity.” In re

Personal Restraint of Williams, 200 Wn.2d 622, 631, 520 P.3d 933 (2022).

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

Accordingly, Williams recognizes the retroactivity of the dual mandates so long as

the issue is whether the sentence imposed was disproportionate punishment for

juveniles who possess diminished capacity, as is the issue here.

The majority frames Williams as holding that the dual mandates of Houston-

Sconiers are not retroactive. See majority at 5 n.6. However, the majority then quotes

language from Williams that “‘the procedural mandates that require courts to

consider mitigating qualities of youth and to have discretion to impose sentences

below the SRA are not independently retroactive on collateral review.’” Id. (quoting

Williams, 200 Wn.2d at 632). This means that the dual mandates are retroactive on

collateral review when tied to an adult SRA sentence that would be disproportionate

punishment for a juvenile with diminished culpability. The only way to determine

whether the punishment is disproportionate is through the dual mandates.

Accordingly, the dual mandates are never independent from the underlying question

when the determination is whether the punishment is proportionate, as is the question

here. The majority is expanding the language in Williams far beyond what it actually

holds and in doing so uses Williams to implicitly overrule Ali and Domingo-

Cornelio.

To the contrary, Ali and Domingo-Cornelio are still controlling precedent and

both of those decisions held that the dual mandates apply retroactively. Therefore,

this binding precedent guides my analysis.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

C. Our decision in Scott should not be deemed controlling

After Carrasco serves 20 years of his sentence, he will become eligible to

petition the Indeterminate Sentence Review Board (ISRB) for early release under

RCW 9.94A.730. The majority concludes that this is an adequate remedy according

to our decision in Scott, 190 Wn.2d at 588, wherein we held “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.” See majority at 10-11. I cannot agree that Scott is determinative of the case

before us. I acknowledge that the sentence Carrasco received parallels the de facto

life sentence imposed on the defendant in Scott, but the parallel ends there. Scott

failed to appreciate the distinction between a Miller violation and a Houston-

Sconiers violation, discussed above. Majority at 8; Ali, 196 Wn.2d at 233-34

(“Houston-Sconiers represents a significant change in the law because it requires

the sentencing court to consider the youthfulness of the defendant.”). For these

reasons, developed further below, I would hold that Scott is “incorrect and harmful”

and that we are therefore, not compelled to follow it under the principle of stare

decisis. Waters of Stranger Creek, 77 Wn.2d at 653 (stability offered by stare decisis

“should not be confused with perpetuity”). “If the law is to have a current relevance,

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

courts must have and exert the capacity to change a rule of law when reason so

requires.” Id. Reason so requires in this case.

In Scott, this court held that RCW 9.94A.730 was an adequate remedy for a

Miller violation because it offered juvenile offenders “‘some meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.’” Scott, 190

Wn.2d at 594 (internal quotation marks omitted) (quoting Miller, 567 U.S. at 479).

Although Scott argued that he was also entitled to resentencing under Houston-

Sconiers, this court distinguished Houston-Sconiers on the grounds that it was

limited to appeals that were “not yet final” and that it had “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 595 (quoting Houston-Sconiers, 188 Wn.2d at 20).

This reasoning was implicitly overruled in 2020 when this court held that Houston-

Sconiers was a significant change in the law that must apply retroactively. See Ali,

196 Wn.2d at 226, 233-34; Domingo-Cornelio, 196 Wn.2d at 262, 265-66; cf. In re

Pers. Restraint of Meippen, 193 Wn.2d 310, 312-13, 440 P.3d 978 (2019) (deciding

appeal on issue of prejudice and declining to reach question of retroactivity of

Houston-Sconiers). Because Houston-Sconiers has retroactive effect, it necessarily

applies to all appeals—provided it is material to the issues raised—including those

that became final long ago. See Ali, 196 Wn.2d at 226, 233-34.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

Scott is incorrect for two reasons. First, to the extent it suggests there is a time

limitation to be eligible for resentencing under Houston-Sconiers. Ali, 196 Wn.2d at

226, 233-34; see State v. Barber, 170 Wn.2d 854, 864, 248 P.3d 494 (2011) (decision

may be incorrect if inconsistent with precedent, constitution or statutes, policy

concerns, or “if it relies on authority to support a proposition that the authority itself

does not actually support”). Second, Scott’s minimal discussion of Houston-Sconiers

appears to be premised on the now incorrect assumption that the dual mandates only

apply to sentences not yet final on direct review. See Scott, 190 Wn.2d at 595. Thus,

this court was not able to adequately address whether RCW 9.94A.730 remedies a

Houston-Sconiers violation because this court had not yet held that the dual

mandates of Houston-Sconiers are retroactive. Accordingly, Scott is incorrect

because it is no longer consistent with this court’s precedent insomuch as it suggests

that RCW 9.94A.730 is an adequate remedy when a juvenile has been sentenced to

a de facto life sentence without consideration of whether the trial court adhered to

the dual mandates of Houston-Sconiers.

Scott is also harmful as it is inconsistent with growing public policy concerns

that juveniles must be (or should have been, in cases that became final before

Houston-Sconiers) given special protections at the time of sentencing in criminal

court. See Barber, 170 Wn.2d at 865 (discussing harmful cases where “the common

thread was the decision’s detrimental impact on the public interest”). Several

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

Supreme Court cases discuss our society’s deep-seated concern that children cannot

and should not be assessed and punished the same as adults because children

typically possess diminished culpability by virtue of their immature mental and

emotional development. See Miller, 567 U.S. at 471-80 (discussing how

characteristics of youth generally show reduced culpability and increased aptitude

for reform and thus warrant individualized consideration before imposing most

severe punishments (citing Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L.

Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d

1 (2005))). Our cases have followed suit, emphasizing that all juveniles—not just

those convicted of homicide—must receive individualized consideration of their

youth as a mitigating factor at the time of sentencing to ensure against

disproportionate punishment. See Ali, 196 Wn.2d at 232, 245; Domingo-Cornelio,

196 Wn.2d at 268; Houston-Sconiers, 188 Wn.2d at 21; see also Meippen, 193

Wn.2d at 321 (Wiggins, J., dissenting) (noting dual mandate of Houston-Sconiers

“prevents children from facing disproportionate sentencing ranges in violation of the

Eighth Amendment”).

Scott’s holding that certain defendants should not have the opportunity to

rectify a constitutionally defective sentence simply because their judgment and

sentence became final too long ago undermines these public policy concerns and

prevents courts from adhering to precedent requiring that all juveniles must be

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

accorded the same protections under Houston-Sconiers. See Ali, 196 Wn.2d at 232,

245; Domingo-Cornelio, 196 Wn.2d at 268; Houston-Sconiers, 188 Wn.2d at 21.

We should expressly abrogate Scott to the extent it did not apply Houston-Sconiers

retroactively and therefore did not consider whether RCW 9.94A.730 is an adequate

remedy for a Houston-Sconiers violation but, instead, only that RCW 9.94A.730 is

an adequate remedy for a Miller violation.

D. Early release eligibility is not an adequate remedy for a Houston-Sconiers violation

In response to Miller, our legislature enacted RCW 9.94A.730 to provide that

most juveniles who were sentenced in adult criminal court would have the

opportunity to petition for early release after serving 20 years of their sentence. See

State v. Haag, 198 Wn.2d 309, 331 n.7, 495 P.3d 241 (2021) (Stephens, J.,

concurring in part, dissenting in part). Eligibility under this statute has been deemed

an adequate remedy for a Miller violation, which, as discussed above, involves the

imposition of a mandatory LWOP sentence without considering whether an

exceptional downward sentence is warranted based on a juvenile offender’s youth.

Scott, 190 Wn.2d at 588; see Montgomery v. Louisiana, 577 U.S. 190, 212, 136 S.

Ct. 718, 193 L. Ed. 2d 599 (2016) (“A State may remedy a Miller violation by

permitting juvenile homicide offenders to be considered for parole, rather than by

resentencing them.”). Practically speaking, RCW 9.94A.730 has rendered Miller

violations a relic of the past in Washington because most juvenile homicide

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

offenders 5 are now effectively serving indeterminate sentences with a 20-year

minimum term. See Montgomery, 577 U.S. at 212; see also Haag, 198 Wn.2d at 331

n.7 (Stephens, J., concurring in part, dissenting in part); In re Pers. Restraint of

Hinton, No. 98135-3, slip op. at 17-18 (Wash. Mar. 9, 2023) (majority of Stephens,

J.). However, “Houston-Sconiers identified a category of sentences that are beyond

courts’ authority to impose: adult standard SRA ranges and enhancements that

would be disproportionate punishment for juveniles with diminished culpability.”

Ali, 196 Wn.2d at 232. This category of sentences, which may involve any

disproportionate punishment, not solely the denial of parole, requires a different

remedy tailored to the actual violation. RCW 9.94A.730 resolves a Miller violation

but does not also resolve a Houston-Sconiers violation. See id.

Houston-Sconiers requires individualized consideration of a juvenile

offender’s youth at the time of sentencing to ensure the court imposes a punishment

that is commensurate with the offender’s culpability at the time they committed their

crime(s). See id. RCW 9.94A.730 does not satisfy this mandate. Should Carrasco

file a petition under RCW 9.94A.730, he will enjoy a presumption of release that

remains subject to the ISRB’s discretion and its forward-looking assessment of his

risk of reoffending. RCW 9.94A.730(3) (ISRB must “give public safety

5 Juveniles convicted of aggravated first degree murder are ineligible for parole under RCW 9.94A.730(1). Such offenders are subject to the terms of punishment and eligibility for early release provided in RCW 10.95.030(3).

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

considerations the highest priority when making all discretionary decisions

regarding the ability for release and conditions of release”); see In re Pers. Restraint

of Dodge, 198 Wn.2d 826, 839, 502 P.3d 349 (2022) (public safety concerns are the

ISRB’s “highest priority” when considering a petition for parole); Ali, 196 Wn.2d at

245 (“The assessment at this stage is not whether the person possessed adult

culpability at the time of the crimes but whether they pose a continued danger after

20 years of incarceration.”). The ISRB’s assessment of the risk Carrasco poses to

the public 20 years after his crimes—which necessarily is based on his conduct while

incarcerated and exposed to atypical living conditions and social stresses, see Dodge,

198 Wn.2d at 833-34—in no way equates to a meaningful consideration of his

culpability when he was a 17-year-old juvenile offender. See Scott, 190 Wn.2d at

594 (holding RCW 9.94A.730 offers juvenile offenders “‘some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation’”

(emphasis added) (internal quotation marks omitted) (quoting Miller, 567 U.S. at

479)).

I agree with the majority that RCW 9.94A.730 creates a mechanism for early

release, with a statutorily mandated presumption of release through the ISRB after

serving at least 20 years, for juveniles sentenced to lengthy terms. RCW

9.94A.730(1); Dodge, 198 Wn.2d at 838-39. However, the possibility of

discretionary release—which necessarily entails continued submission to the ISRB’s

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

authority—cannot justify denying petitioners the opportunity to rectify a

constitutionally defective sentence. The possibility remains that petitioners like

Carrasco might have received lesser sentences had the sentencing court complied

with the dual mandate of Houston-Sconiers.

Under Houston-Sconiers, petitioners like Carrasco might have been sentenced

to a lesser term, 6 and while they would remain subject to the ISRB’s authority it

would conceivably be for a shorter duration of time, whether in confinement or

community custody. Because of this possibility, it is evident that early release

eligibility alone—which entails continued submission to the ISRB and the

possibility of return to incarceration, RCW 9.94A.730(5), (7)—cannot adequately

remedy a sentence that was unconstitutionally imposed in the first place. State v.

Ramos, 187 Wn.2d 420, 436, 387 P.3d 650 (2017) (“The possibility of another

remedy in the future cannot displace [a defendant’s] right to appeal his sentence on

the basis that it was unlawfully imposed in the first instance.”).

Accordingly, I would hold that RCW 9.94A.730 is an inadequate remedy in

all cases where a violation of the dual mandate of Houston-Sconiers has occurred.

6 I will presume that Carrasco would remain under the ISRB’s authority under RCW 9.94A.730 because, given the number of convictions, enhancements, and aggravating factors that led to an extremely lengthy sentence, it seems likely a sentence that complies with Houston- Sconiers would still exceed 20 years.

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

II. Carrasco is entitled to resentencing consistent with Houston-Sconiers

In PRPs based on the retroactive application of Houston-Sconiers, whether

petitioners can prove actual and substantial prejudice is challenging and the issues

are imprecise. Under the existing prejudice standard applicable on collateral review,

to obtain a resentencing hearing Carrasco must show by a preponderance of the

evidence that he was actually and substantially prejudiced by the sentencing court’s

failure to comply with the dual mandate of Houston-Sconiers. Meippen, 193 Wn.2d

at 316. This requires “show[ing] some practical effect caused by [the] claimed

error,” namely, that Carrasco more likely than not would have received a shorter

sentence but for the error. State v. Buckman, 190 Wn.2d 51, 61, 68, 409 P.3d 193

(2018) (“constitutional error generally does not, on its own, constitute prejudice”;

there must be some “defect of substance”); see also Domingo-Cornelio, 196 Wn.2d

at 268; Meippen, 193 Wn.2d at 316-17. The heightened standard of actual and

substantial prejudice applicable in PRPs aligns with the long-recognized principle

that collateral challenges are “not to operate as a substitute for a direct appeal.” In

re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29, 823 P.2d 492 (1992)

(heightened standard justified because collateral attack generally “undermines the

principles of finality of litigation, degrades the prominence of trial, and sometimes

deprives society of the right to punish admitted offenders”); see State v. Delbosque,

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

195 Wn.2d 106, 129, 456 P.3d 806 (2020) (“a PRP does not, and is not meant to,

afford the same protections as an appeal”).

In Carrasco’s case there is very little in the record that would shed any light

on the sentencing court’s willingness to impose a lesser sentence based on

Carrasco’s youthful characteristics, and it appears Carrasco would fail to meet his

burden to prove actual and substantial prejudice by a preponderance of the evidence.

This silence is expected because Carrasco was sentenced approximately eight years

before Houston-Sconiers was held to be a significant change in the law; at the time

of his sentencing, the basis for Carrasco’s argument was not legally tenable and the

court had no reason to believe it had to meaningfully consider his youth or that it

had absolute discretion to depart from the SRA. We cannot infer, nor should we,

either a willingness or unwillingness to impose a lesser sentence based on the court’s

silence on the issue of youth and discretion to impose an exceptional downward

sentence. See Domingo-Cornelio, 196 Wn.2d at 268 (“silence does not constitute

reasoning”). As a matter of fundamental fairness and fidelity to evolving public

policy that mandates stronger protections for juveniles in adult criminal court, this

result is unacceptable.

One foundational assumption underlying our heightened prejudice standard is

“‘that the petitioner has already had an opportunity for judicial review.’” Meippen,

193 Wn.2d at 315 (quoting In re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

P.3d 390 (2004)). Carrasco had no such opportunity as he did not have the benefit

of Houston-Sconiers at the time of his sentencing. Further, our existing standard

places a colossal burden on petitioners like Carrasco to prove what a sentencing

court likely would have done based on a then purely hypothetical argument and

within a legal framework that did not exist. A practical impossibility.

It is illogical to require petitioners to meet a higher standard of prejudice

simply because they were sentenced before courts had more meaningfully weighed

in on the issue of juvenile rights.7 The record here simply provides no assurances

that the sentencing complied with Carrasco’s constitutional rights and that his

punishment was, therefore, a reliable result. Domingo-Cornelio, 196 Wn.2d at 268.

Given our particular concern with protecting juvenile offenders’ Eighth Amendment

rights and our recognition that special protections like the dual mandate of Houston-

Sconiers must be given retroactive effect (essentially to rectify past constitutional

violations), we should adopt a narrow exception to the actual and substantial

7 If Carrasco had the benefit of the dual mandate of Houston-Sconiers during the time allotted for direct appeal, he would have had to only show error to justify a resentencing hearing. 188 Wn.2d at 23 (remand for resentencing required where sentencing judge failed to consider youth or understand discretion to depart from applicable adult standard sentences). The State would then have borne the burden of proving that the error was harmless beyond a reasonable doubt. Delbosque, 195 Wn.2d at 129. However, because Carrasco was sentenced in 2012, he now faces a much higher burden of proving error and actual and substantial prejudice. This calls into question whether Houston-Sconiers—which demands resentencing if judges fail to comply with the dual mandate—would truly be given full retroactive effect if courts also impose an additional hurdle (i.e., proving the likelihood of a shorter sentence) on those unfortunate defendants whose sentences became final before the bench had fully weighed in on the protections necessary to prevent violations of juveniles’ Eighth Amendment rights.

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

prejudice standard: a per se prejudice standard, for the limited purpose of reviewing

collateral challenges based on the retroactive application of Houston-Sconiers in

cases where defendants were sentenced in criminal court for crime(s) they

committed as juveniles.

A restricted per se prejudice rule does not unreasonably undercut the

principles we have cited as justifying the heightened actual and substantial prejudice

standard. See St. Pierre, 118 Wn.2d at 329 (collateral attack “undermines the

principles of finality of litigation, degrades the prominence of trial, and sometimes

deprives society of the right to punish admitted offenders”); Meippen, 193 Wn.2d at

315 (citing “‘the court’s interest in finality, economy, and integrity of the trial

process and by the fact that the petitioner has already had an opportunity for judicial

review’” (quoting Isadore, 151 Wn.2d at 298)). First, petitioners like Carrasco

would not be able to reverse their convictions, they could only potentially alter the

severity of their sentence so that it complies with their constitutional right to be free

from cruel and unusual punishment. A resentencing hearing does not guarantee that

a sentence will be altered, and petitioners assume the risk that they may be sentenced

to the same or an even greater term of punishment if resentenced. Thus, society

would not be deprived of its right to punish offenders in line with the Eighth

Amendment. See St. Pierre, 118 Wn.2d at 329.

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

Second, we cannot justify a heightened standard of prejudice based on the

premise that Carrasco, and petitioners like him, have already had a chance to

meaningfully challenge the constitutionality of their sentences based on their

youthful culpability because, as mentioned, petitioners like Carrasco have not

“‘already had an opportunity for judicial review.’” Meippen, 193 Wn.2d at 315

(quoting Isadore, 151 Wn.2d at 298). This limited group of petitioners was

sentenced when the basis for their claim of error—a violation of the dual mandate

of Houston-Sconiers—was not at all cognizable within the time allotted for direct

review.

Third, all resentencing necessarily reopens litigation and consumes additional

court resources; however, an unconstitutional sentence cannot be allowed to stand

simply because of a general public interest in judicial economy and finality. See Ali,

196 Wn.2d at 233-34 (Houston-Sconiers was significant change in law that requires

retroactive application).

I would, therefore, adopt a per se prejudice rule for the narrow purpose of

considering PRPs based on the retroactive application of Houston-Sconiers in cases

where a petitioner committed their offense as a juvenile and was sentenced in adult

criminal court. Should a petitioner establish that the sentencing court satisfied

neither prong of the dual mandate of Houston-Sconiers, they should be given a

resentencing hearing because, in such cases, we would have no basis for concluding

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

that their sentence complied with the Eighth Amendment. Domingo-Cornelio, 196

Wn.2d at 268; cf. Meippen, 193 Wn.2d at 313, 316-17. Carrasco has met this burden

and remand for resentencing is proper.

CONCLUSION

The crux of a Houston-Sconiers violation, like the one at issue in Carrasco’s

case, is a sentencing court’s failure to ensure a punishment is proportionate based on

an individualized assessment of a juvenile offender’s culpability at the time they

committed their crime(s). Whereas RCW 9.94A.730 offers petitioners a meaningful

opportunity for release after they have served 20 years in confinement, release is

granted at the discretion of the ISRB based on its forward-looking assessment of a

petitioner’s risk of recidivism, and petitioners remain subject to the authority of the

ISRB for the duration of their original court-imposed term. This statute offers

petitioners the precise opportunity they were denied in cases of a Miller violation,

that is, automatic denial of parole without consideration of youth as a mitigating

factor. It is therefore adequate where Miller violations are concerned. But, the

possibility of discretionary release—which necessarily entails continued submission

to the ISRB’s authority—cannot justify denying petitioners the opportunity to rectify

a constitutionally defective sentence. The possibility remains that petitioners like

Carrasco may have received lesser sentences had the sentencing court complied with

the dual mandate of Houston-Sconiers. Accordingly, I would hold that RCW

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Personal Restraint of Carrasco, No. 100073-1 Whitener, J., dissenting

9.94A.730 is not an adequate remedy and that Carrasco’s PRP should not be

dismissed under RAP 16.4(d).

Further, the parties do not dispute that Carrasco’s sentencing court failed to

comply with the dual mandate of Houston-Sconiers. To give full effect to our

decision in Houston-Sconiers, I would adopt a per se prejudice standard for the

limited purpose of considering PRPs that are based on the retroactive application of

Houston-Sconiers where a petitioner was sentenced in criminal court for crimes they

committed as a juvenile. Therefore, I would hold that Carrasco has shown that he

was prejudiced, and I would grant his PRP and remand for resentencing.

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco, No. 100073-1 (González, C.J., concurring in dissent)

GONZÁLEZ, C.J. (concurring in dissent) — The United States Supreme Court

has recognized that “children are different” and that that difference has

constitutional implications. Miller v. Alabama, 567 U.S. 460, 480, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012). In so doing, the Court recognized that our

constitutions do not allow us to treat people as necessarily irredeemable because of

what they did as a child. See id. at 489. Instead, “a judge or jury must have the

opportunity to consider mitigating circumstances before imposing the harshest

possible penalty for juveniles.” Id.

In the decade since Miller, both this court and our legislature have struggled

with its meaning and the implications, if any, for our own state constitutional

jurisprudence. See LAWS OF 2014, ch. 130, §§ 10-11 (codified at RCW 9.94A.730

and RCW 10.95.035); see also State v. Anderson, 200 Wn.2d 266, 269-70, 516

P.3d 1213 (2022); State v. Haag, 198 Wn.2d 309, 330, 495 P.3d 241 (2021); State

v. Bassett, 192 Wn.2d 67, 73, 428 P.3d 343 (2018). The United States Supreme

Court has arguably repudiated some of what we treated as binding law in our 1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco, No. 100073-1 (González, C.J., concurring in dissent)

earlier cases. But under our system, those cases are good law unless and until

overturned by this court or the United States Supreme Court.

Under these cases, a judge imposing sentence on a person for a crime

committed as juvenile must meaningfully considered the mitigating qualities of

youth and must have discretion to make a downward departure from the otherwise

mandatory sentencing guidelines. State v. Houston-Sconiers, 188 Wn.2d 1, 21,

391 P.3d 409 (2017). These “dual requirements” are not merely procedural; they

are “a mechanism necessary to effectuate that substantive rule: sentencing courts

must consider the mitigating qualities of youth and have discretion to impose

sentences below what the SRA [(Sentencing Reform Act of 1981, ch. 9.94A

RCW)] mandates.” In re Pers. Restraint of Ali, 196 Wn.2d 220, 237, 242, 474

P.3d 507 (2020) (“Houston-Sconiers announced a new substantive rule that must

be applied retroactively”), cert. denied, 141 S. Ct. 1754 (2021). In Ali, we found

that Houston-Sconiers’s dual mandates applied retroactively on collateral review.

Id. at 236. We acknowledged that Houston-Sconiers has a procedural component,

but “this does not render Houston-Sconiers procedural. Rather than merely

establishing a manner of determining the defendants’ culpability, Houston-

Sconiers prohibits certain punishments when imposed without the consideration

and discretion that the Eighth Amendment requires.” Id. at 241. I disagree with the

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco, No. 100073-1 (González, C.J., concurring in dissent)

majority that the dual requirements of Houston-Sconiers are only procedural for

the purposes of this case. See majority at 15. 1

Between Houston-Sconiers and Ali lies State v. Scott, 190 Wn.2d 586, 416

P.3d 1182 (2018). That case asked a different but closely related question—

whether RCW 9.94A.730 provided Jai’Mar Eli Scott, who was serving a de facto

life sentence, an adequate remedy for any Miller error. Id. at 594. Collateral relief

is not available to a person who has an adequate available remedy, RAP 16.4(d),

and RCW 9.94A.730 gave Scott an opportunity to seek parole after he had served

20 years in prison. As Scott had served sufficient time to be eligible to apply for

parole, we concluded he had an adequate remedy and dismissed his petition. Scott,

190 Wn.2d at 601. Whether Scott was entitled to relief under Houston-Sconiers

was not before us.

While section .730 provided Scott with an adequate remedy given the error

he pleaded, nothing in Scott suggests that it necessarily provides an adequate

remedy for all other juvenile sentencing errors. As we later explained:

Houston-Sconiers applies to all juveniles sentenced as adults under the SRA, including those who received far less than life sentences. While RCW

1 I recognize that we recently characterized the dual requirements of Houston-Sconiers as procedural. See In re Pers. Restraint of Williams, 200 Wn.2d 622, 631, 520 P.3d 933 (2022). But Williams concerned whether Houston-Sconiers applied to a 3-month-to-life indeterminate sentence. Id. at 625. Whether Houston-Sconiers was substantive in the context of lengthy determinate sentences was not before us. Williams did not overrule Ali or Domingo-Cornelio, and they remain good law. 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco, No. 100073-1 (González, C.J., concurring in dissent)

9.94A.730 might provide an adequate remedy for a Miller violation, it may be grossly inadequate under the circumstances of a Houston-Sconiers violation. . . . [I]n this case, the Miller-fix statute would still require Ali to serve most of the sentence imposed in violation of Houston-Sconiers before he could even be considered for early release. Although Miller is limited to life sentences and de facto life sentences, Houston-Sconiers applies to any adult standard sentence imposed on a juvenile, so RCW 9.94A.730 cannot provide an adequate remedy under all circumstances.

Ali, 196 Wn.2d at 245-46 (citation omitted). The majority is simply incorrect that

section .730 necessarily provides an adequate remedy for anyone serving a de facto

life sentence that was imposed in violation of the dual requirements of Houston-

Sconiers.

We made this crystal clear in Ali’s companion case, Domingo-Cornelio,

where we held “a petitioner establishes actual and substantial prejudice when a

sentencing court fails to consider mitigating factors relating to the youthfulness of

a juvenile tried as an adult and/or does not appreciate its discretion to impose any

exceptional sentence in light of that consideration.” In re Pers. Restraint of

Domingo-Cornelio, 196 Wn.2d 255, 268, 474 P.3d 524 (2020), cert. denied, 141 S.

Ct. 1753 (2021).

Ultimately before us today is whether RCW 9.94A.730 provides one person,

Erik Carrasco Ramos, with an adequate remedy precluding collateral relief. I

agree with the lead dissent that it does not. The trial judge did not consider the

mitigating qualities of youth and the trial court was unaware that it had the

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco, No. 100073-1 (González, C.J., concurring in dissent)

authority to make a downward departure from the sentencing guidelines given

Carrasco’s youth at the time of the crime. This violated the dual mandates of

Houston-Sconiers. This case is substantially similar to Domingo-Cornelio, and I

see no reason to treat it differently. See Domingo-Cornelio, 196 Wn.2d at 268.

Like Domingo-Cornelio, Carrasco has established sufficient prejudice to warrant

relief.

Parole under the Miller-fix statute is not an adequate remedy for Carrasco

any more than it was for Said Omer Ali or Endy Domingo-Cornelio. All three

suffered from the same errors—the trial court did not consider the mitigating

qualities of their youth and did not appreciate that it had the power to make a

downward departure from the sentencing requirements. As the lead dissent

eloquently demonstrates, a parole hearing half a life later is not an adequate

remedy.

I write separately, however, because I do not agree that State v. Scott should

be overruled. Given the question presented, it was correctly decided. Whether

Scott himself was entitled to relief under Ali and Domingo-Cornelio is a question

that was not asked and was not answered. It may be that section .730 is an

adequate remedy for someone who is actually eligible for parole under it. As a

matter of fact, the more time that has passed since a child committed a crime, the

harder it is for the sentencing court to meaningfully evaluate whether the 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Carrasco, No. 100073-1 (González, C.J., concurring in dissent)

mitigating qualities of youth demand a lower sentence. But, given that Carrasco is

not eligible for a parole hearing and will not (if ever) be for years, it is not an

adequate remedy for him.

With these observations, I respectfully concur in dissent.