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The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE SEPTEMBER 17, 2020 SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 17, 2020 SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal ) No. 97205-2 Restraint of: ) ) EN BANC ENDY DOMINGO-CORNELIO, ) ) Filed :__________________ September 17, 2020 Petitioner. ) ______________________________ )
MONTOYA-LEWIS, J.—“‘Children are different.’” State v. Houston-
Sconiers, 188 Wn.2d 1, 8, 391 P.3d 409 (2017) (quoting Miller v. Alabama, 567 U.S.
460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)). The differences between
children’s and adults’ culpability matter on a constitutional level in criminal
sentencing. State v. Ramos, 187 Wn.2d 420, 428, 387 P.3d 650 (2017). In Houston-
Sconiers, we held that the Eighth Amendment to the United States Constitution
requires courts to consider the mitigating circumstances of youth when sentencing
juveniles adjudicated as adults and must have absolute discretion to impose anything
less than the standard adult sentence based on youth. 188 Wn.2d at 19. In this case
and its companion case, In re Personal Restraint of Ali, No. 97205-2, slip op. (Wash.
Sept. 17, 2020), https:/www.courts.wa.gov/opinions/, we consider whether For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
Houston-Sconiers constitutes a significant and material change in the law that
requires retroactive application on collateral review. As in Ali, we hold that it does.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
In 2014, Endy Domingo-Cornelio was convicted by a jury of one count of first
degree rape of a child and three counts of child molestation. The crimes took place
over a two-year span when Domingo-Cornelio was between 15-17 years old,1 but
because of delayed reporting, he was not investigated or charged until several years
later, when he was 20 years old. Domingo-Cornelio was convicted and sentenced as
an adult.
Under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, Domingo-
Cornelio faced a sentence between 240 and 318 months. At sentencing, the State
recommended the maximum adult standard range of 318 months, followed by 36
months of community custody. In its recommendation, the State acknowledged that
Domingo-Cornelio was under 18 at the time of the crimes to explain why an
indeterminate sentence would not apply and why it was seeking 36 months of
community custody instead of lifetime community custody.
1 The Court of Appeals erroneously indicated that Domingo-Cornelio was between 14-16 years old at the time of the offenses. In re Pers. Restraint of Domingo-Cornelio, No. 50818-4-II, slip op. at 2 (Wash. Ct. App. Mar. 8, 2019) (unpublished), https://www.courts.wa.gov/opinions/ pdf/D2%2050818-4-II%20Unpublished%20Opinion.pdf. The offenses occurred between November 2007 and November 2009, when Domingo-Cornelio was between 15-17 years old. Clerk’s Papers at 1-2. 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
Domingo-Cornelio’s defense counsel requested 240 months, the low end of
the standard range. Defense counsel also mentioned that Domingo-Cornelio was
under 18 at the time of the crimes but did not argue that there were any mitigating
factors due to his youth and did not request an exceptional sentence:
My client has a lot of family support, Your Honor. He was a juvenile when these incidents took place. I would like the Court to consider the fact that my client did not take the witness stand at this trial. He sat through the trial. He heard what was testified to. The standard range starts out at 20 years, Your Honor, 240 months. Now, I don’t know what benefit to either my client’s psychological or psychosexual health or to society or to the victim and their family it would do to give him more than the low end. 20 years, Your Honor. He is barely 20 himself. 20 years is a very long time in prison, and yes, the standard range goes above that quite a bit, but I would ask the Court to consider that the victim seems to be progressing through school right on time, on course. I believe she has been able to move on with her life after these acts, and I am glad that she has, and I hope that she has a decent—better than decent, a good life. I think that society, in general, does not demand acts that a teenager did, which weren’t reported for four or five years, should result in more than 20 years in prison, and I’m asking that the Court consider all of the facts here, the lack of information from the family of the victim in the Presentence Investigation, and consider that Endy Domingo[-]Cornelio will be in prison for a minimum for 240 months, and that is long enough, Your Honor.
7 Verbatim Report of Proceedings (Sept. 25, 2014) (VRP) at 731-32. In addition to
the presentence investigation report mentioned in the excerpt above, the sentencing
judge considered several letters written in support of Domingo-Cornelio.
The court sentenced Domingo-Cornelio to the low end of 240 months of
incarceration and 36 months of community custody supervision upon release. The
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
sentencing judge said that she had read the letters from friends and family and
imposed this sentence “considering all of the information before the Court,” but she
made no mention of Domingo-Cornelio’s youth in her ruling. 7 VRP at 733.
B. Procedural History
Domingo-Cornelio appealed unsuccessfully, and we denied discretionary
review on August 31, 2016. We decided Houston-Sconiers on March 2, 2017, after
Domingo-Cornelio’s judgment and sentence became final. Domingo-Cornelio filed
his personal restraint petition (PRP) in the Court of Appeals on August 30, 2017.
In his PRP, Domingo-Cornelio argued ineffective assistance of counsel and
significant changes in the law relating to juvenile sentencing. The Court of Appeals
retained the PRP for consideration on the merits but ultimately denied relief.
Domingo-Cornelio, No. 50818-4-II, slip op. at 1. Relevant here, the Court of
Appeals held that Houston-Sconiers did not constitute a significant change in the
law because it did not overturn a prior appellate decision that was determinative of
a material issue. Id. at 34. The court did not address materiality or retroactivity.
We granted review only on the issue of the applicability and effect of
Houston-Sconiers. We also set a companion case, Ali, slip op. at 6, for consideration.
II. ANALYSIS
Domingo-Cornelio filed his PRP within one year after his judgment and
sentence became final, so his PRP is timely. RCW 10.73.090. The court will grant
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
appropriate relief if his restraint is unlawful for one or more reasons specified under
RAP 16.4(c). RAP 16.4(a). Under RAP 16.4(c)(4), continued restraint is unlawful if
“[t]here has been a significant change in the law, whether substantive or procedural,
which is material to the . . . sentence, . . . and sufficient reasons exist to require
retroactive application of the changed legal standard.”
A. Unlawful Restraint
In Houston-Sconiers, we held that when sentencing juveniles in adult court,
“courts must consider mitigating qualities of youth” and “must have discretion to
impose any sentence below the otherwise applicable SRA range and/or sentence
enhancements.”2 188 Wn.2d at 21. Although there are several factual and procedural
differences between Domingo-Cornelio’s case and the companion case, Ali, we
conclude that Houston-Sconiers constitutes a significant change in the law material
to both cases and that it requires retroactive application. 3
1. Significant Change in the Law
Houston-Sconiers represents a significant change in the law. Ali, slip op. at
11-13. “‘One test to determine whether an [intervening case] represents a significant
2 We rely on the summary of Houston-Sconiers in the companion case, Ali, slip op. at 7- 10, for the animating principles of Houston-Sconiers. 3 Because the requirements for a significant, material, and retroactive change in the law under RCW 10.73.100(6) are echoed in RAP 16.4(c)(4), we rely on our analysis of those requirements in Ali, slip op. at 11-23. However, since Domingo-Cornelio’s petition is timely, he does not need to meet the requirements of RCW 10.73.100(6) for us to consider his petition; he needs only to establish that his restraint is unlawful under RAP 16.4(c). 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
change in the law is whether the defendant could have argued this issue before
publication of the decision.’” State v. Miller, 185 Wn.2d 111, 115, 371 P.3d 528
(2016) (alteration in original) (internal quotation marks omitted) (quoting In re Pers.
Restraint of Lavery, 154 Wn.2d 249, 258-59, 111 P.3d 837 (2005)). 4 Here, even if
Domingo-Cornelio’s sentencing court had discretion to impose a lower sentence
prior to Houston-Sconiers, Domingo-Cornelio could not have argued that it must
consider his youth before imposing a standard range sentence. Domingo-Cornelio
could have, and did, argue for a low end standard range sentence based, in part, on
his youth. However, he could not have argued that the sentencing court must consider
mitigating factors relating to his youth in light of its absolute discretion to impose
any lesser sentence. Therefore, Houston-Sconiers constitutes a significant change in
the law. 5
4 See also In re Pers. Restraint of Greening, 141 Wn.2d 687, 697 & n.9, 9 P.3d 206 (2000) (“While litigants have a duty to raise available arguments in a timely fashion and may later be procedurally penalized for failing to do so, . . . they should not be faulted for having omitted arguments that were essentially unavailable at the time.” “While the State correctly notes that ‘Washington case law is replete with examples of defendants challenging standing case law and succeeding in reversing that law,’ we do not believe procedural restrictions should penalize litigants who fail to do so.” (citation omitted)). 5 Unlike in Ali, State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999), would not have applied to Domingo-Cornelio because he was not sentenced to any weapon enhancements. However, Houston-Sconiers nevertheless meets the test for a significant change in the law under the above test. 6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
2. Materiality
Houston-Sconiers is material to Domingo-Cornelio’s case. Domingo-
Cornelio was sentenced to a standard adult range under the SRA for crimes he
committed as a child, one of the types of sentences that required the consideration
of youth in Houston-Sconiers. 188 Wn.2d at 21. The sentencing court imposed a low
end standard adult sentence—which defense counsel characterized as the
“minimum” sentence—for crimes Domingo-Cornelio committed as a child. 7 VRP
at 732. Under Houston-Sconiers, the sentencing court had discretion to impose an
exceptional downward sentence and it was required to consider mitigating
circumstances of youth at sentencing, which it appears it did not do.
The State argues that Houston-Sconiers is a significant change in the law only
because it permits sentencing courts to depart from mandatory firearm enhancements
that would deny a juvenile offender meaningful opportunity for release in their
lifetime, and that the significant change is not material to Domingo-Cornelio because
he was not sentenced to any weapon enhancements and did not receive a de facto
life sentence. As we stated in Ali, slip op. at 13, this is wrong. We stated explicitly
in Houston-Sconiers that “[t]rial courts must consider the mitigating qualities of
youth at sentencing and must have discretion to impose any sentence below the
otherwise applicable SRA range and/or sentence enhancements.” 188 Wn.2d at 21
(emphasis added). In that case, the State recommended a sentence below the SRA
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
range—zero months on the substantive crimes that otherwise would have carried
SRA ranges but the full time for mandatory weapon enhancements—which it
believed to be “just” but “technically illegal.” Id. We disagreed with the State’s and
sentencing judge’s belief that it was illegal to impose zero months for the substantive
crimes instead of a sentence within the SRA range and held that sentencing courts
must have discretion to impose any sentence below the otherwise applicable SRA
range in light of the mitigating circumstances of the defendant’s youth. Id. Thus, the
fact that the defendants in Houston-Sconiers were sentenced to time only for the
weapon enhancements does not mean that the case was limited to such
enhancements. We made clear that our holdings applied equally to any otherwise
applicable SRA range or enhancement. Id. 6
Domingo-Cornelio received the kind of sentence that implicates Houston-
Sconiers; thus, that case is material. The change in the law is material to adult
standard range sentences imposed for crimes the defendant committed as a child.
Prior to Houston-Sconiers, Domingo-Cornelio could not have argued that the court
was required to consider his youth at sentencing or that it had to consider whether
6 See also State v. Gilbert, 193 Wn.2d 169, 175-76, 438 P.3d 133 (2019) (“We held [in Houston-Sconiers] that sentencing courts possess this discretion to consider downward sentences for juvenile offenders regardless of any sentencing provision to the contrary. . . . Our opinion in that case cannot be read as confined to the firearm enhancement statutes as it went so far as to question any statute that acts to limit consideration of the mitigating factors of youth during sentencing.”) (first emphasis added). 8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
his youth justified any exceptional sentence downward in light of its absolute
discretion.
3. Retroactivity
A new rule applies retroactively on collateral review only if it is a new
substantive rule of constitutional law or a watershed rule of criminal procedure. See
Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016)
(citing Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)).
As we held in Ali, “Houston-Sconiers applies retroactively because it announced (1)
a new rule (2) of constitutional magnitude (3) that is substantive.” Ali, slip op. at 15.
First, Houston-Sconiers announced a new rule, holding that the Eighth
Amendment requires sentencing courts to consider mitigating circumstances of
youth and to have absolute discretion to impose any sentence below the SRA range
or enhancements in order to protect juveniles who lack adult culpability from
disproportionate punishment. 188 Wn.2d at 19-21; Ali, slip op. at 15. The
requirement that sentencing courts must consider youth and must have discretion to
impose any exceptional sentence downward based on youth were not dictated by
existing precedent at the time Domingo-Cornelio’s sentence became final, so
Houston-Sconiers announced a new rule. Ali, slip op. at 15; In re Pers. Restraint of
Yung-Cheng Tsai, 183 Wn.2d 91, 104, 351 P.3d 138 (2015).
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
Second, we decided Houston-Sconiers on constitutional grounds. 188 Wn.2d
at 18-19; Ali, slip op. at 16. Houston-Sconiers followed a line of United States
Supreme Court cases holding “that the Eighth Amendment to the United States
Constitution compels us to recognize that children are different.” 188 Wn.2d at 18
(citing 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)); see also Ali, slip op. at 8, 16.
Third, Houston-Sconiers announced a substantive constitutional rule. Ali, slip
op. at 16-23. Substantive rules include “‘rules prohibiting a certain category of
punishment for a class of defendants because of their status or offense.’”
Montgomery, 136 S. Ct. at 729 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109
S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)). Houston-
Sconiers identified a category of punishments that are beyond courts’ authority to
impose: adult standard SRA ranges and enhancements for juveniles who possess
such diminished culpability that those sentences would be disproportionate
punishment. Ali, slip op. at 17; Houston-Sconiers, 188 Wn.2d at 19-21. It also
established the mechanism necessary to effectuate that substantive rule. The Eighth
Amendment requires trial courts to exercise discretion to consider the mitigating
qualities of youth at sentencing in order to protect the substantive constitutional
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
guaranty of punishment proportionate to culpability. Ali, slip op. at 17; Houston-
Sconiers, 188 Wn.2d at 19-20; see also Montgomery, 136 S. Ct. at 732-33.
Houston-Sconiers constitutes a significant change in the law that is material
to Domingo-Cornelio’s sentence and requires retroactive application. Ali, slip op. at
23. Domingo-Cornelio is entitled to resentencing if he demonstrates actual and
substantial prejudice and there are no other adequate remedies available. RAP 16.4.
B. Prejudice
A petitioner must demonstrate by a preponderance of the evidence that he was
actually and substantially prejudiced by the constitutional error in order to obtain
relief on collateral review. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72,
101 P.3d 1 (2004). In Houston-Sconiers, we explained that Miller requires discretion
to impose any sentence below the SRA range or enhancements based on youth, and
“provides the guidance on how to use it.” 188 Wn.2d at 23 (listing mitigating
circumstances of youth that courts must consider). Here, there is no evidence to
suggest that the sentencing court considered any mitigating circumstances relating
to Domingo-Cornelio’s youth. Instead, the only relevant information presented to
the sentencing court was Domingo-Cornelio’s age at the time of the crimes.
Moreover, defense counsel erroneously characterized the low end of the adult
standard range as the “minimum” sentence for Domingo-Cornelio. 7 VRP at 732.
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
In Ali, we found that the petitioner had established actual and substantial
prejudice by a preponderance of the evidence when the sentencing court was
presented with significant evidence of mitigating circumstances of the petitioner’s
youth, defense counsel requested an exceptional sentence based on youth, and the
court imposed the low end of the SRA range, believing it lacked discretion to impose
anything less. Ali, slip op. at 25-26. There, the evidence of prejudice was
overwhelming. However, actual and substantial prejudice is not limited to
circumstances where defense counsel makes an argument that is not legally available
and the sentencing judge explicitly states that they would deviate from the SRA on
that basis if they could.
We do not expect lawyers to make every conceivable argument on the
possibility that it may someday be recognized as a basis for an exceptional sentence.7
Nor do we expect sentencing judges to always signal in their oral rulings that they
would exercise more discretion if they felt they had the authority to do so. Instead,
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.
7 See Greening, 141 Wn.2d at 697 & n.9 (litigants should not be penalized for failing to raise unavailable arguments). 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
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 under Houston-Sconiers. Here, there
is no evidence that the sentencing judge considered any mitigating qualities of
Domingo-Cornelio’s youth or that she knew she had discretion to impose an
exceptional sentence based on youth, just that she was aware of his age at the time
of the crimes. Domingo-Cornelio’s counsel did not argue any mitigating factors
relating to youthfulness or request an exceptional sentence. The sentencing judge
said nothing about whether Domingo-Cornelio’s youth mitigated his culpability. But
silence does not constitute reasoning. See Ramos, 187 Wn.2d at 444 (requiring courts
sentencing juveniles to life without parole to “thoroughly explain [their] reasoning”
as to why a juvenile deserves such a sentence, “specifically considering the
differences between juveniles and adults” in the process). That Domingo-Cornelio’s
sentencing judge imposed the lowest standard range sentence when the State
recommended the high end sentence is evidence that the judge was willing to
consider mitigating factors that justify a lower sentence. More likely than not,
Domingo-Cornelio would have received a lesser sentence had the court complied
with the dual mandates of Houston-Sconiers.
Domingo-Cornelio has met his burden to establish prejudice. He has
established that his sentencing did not comply with Houston-Sconiers and that more
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Domingo-Cornelio No. 97205-2
likely than not, he would have received a lesser sentence if it had. Domingo-Cornelio
is entitled to relief by this PRP because his restraint is unlawful, he has been actually
and substantially prejudiced, and the State does not dispute that the other remedies
are inadequate under the circumstances.8
III. CONCLUSION
Houston-Sconiers announced a significant change in the law, which is
material to Domingo-Cornelio’s sentence and requires retroactive application.
Domingo-Cornelio was actually and substantially prejudiced by the sentencing
court’s failure to meaningfully consider youth and to appreciate its absolute
discretion to impose a sentence below the adult SRA range for crimes he committed
as a child. Domingo-Cornelio’s PRP is granted, and we order resentencing consistent
with Houston-Sconiers.
8 The court “will only grant relief by a [PRP] if other remedies which may be available to the petitioner are inadequate under the circumstances.” RAP 16.4(d). Unlike in Ali, the State does not contend that the Miller-fix statute, RCW 9.94A.730, could provide adequate relief to Domingo- Cornelio. That statute would permit Domingo-Cornelio to petition for early release after he serves 20 years—the full term of the sentence he originally received in violation of Houston-Sconiers— which is no relief at all. 14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint ofDomingo-Cornelio No. 97205-2
WE CONCUR:
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.