..... -. . ' ' -·
FILE IN CLERK'S OFFICE SUPREME COURT, STATE OF WASHINGTON
SEP 2 5 2C14 DATE._ _ _ __
}Ylt:t-~~~ C!.C). CJDEF JUSTICE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) In the Matter of the Personal ) Restraint of ) ) RUSSELL DUANE McNEIL, ) No. 87654-1 ) (Consolidated with 88172-3) Petitioner. ) _______________________ ) ENBANC ) In the Matter of the Personal ) Restraint of ) Filed September 25, 2014 ) HERBERT CHIEF RICE, JR., ) ) Petitioner. ) _______________________ )
FAIRHURST, J.-About 25 years ago, petitioners Russell Duane McNeil and
Herbert Chief Rice Jr. were tried as adults and convicted of aggravated first degree
murder for crimes committed while the petitioners were both approximately 17 years
and 5 months old. They were each given the mandatory minimum sentence for that
crime-life in prison without the possibility of early release. In re Pers. Restraint o,j'McNeil & Rice, No. 87654-1
On June 25, 2012, the United States Supreme Court issued its opinion in
Miller v. Alabama, 567 U.S._, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Miller
holds that a mandatory minimum sentence of life without the possibility of parole or
early release, as applied to juvenile offenders, violates the Eighth Amendment to the
United States Constitution, applicable to the states via the Fourteenth Amendment.
Relying on Miller, petitioners sought relief from their sentences on collateral review
through personal restraint petitions (PRPs ).
While the PRPs were pending before this court, the legislature passed and the
governor signed Second Substitute Senate Bill 5064, which can be found at Laws of
2014, ch. 130 (the Miller fix). The State filed a motion to dismiss the PRPs, arguing
the Miller fix made it impossible for petitioners to meet their threshold burden of
showing they had suffered actual and substantial prejudice based on a constitutional
error. We deny the State's motion and deny the PRPs.
I. FACTUAL AND PROCEDURAL HISTORY
On January 17, 1988, McNeil and Rice were both approximately 17 years and
5 months old. With the intention of committing an easy robbery, they drove together
to the rural home of Mike and Dorothy Nickoloff, who were 82 and 74 years old,
respectively. They knocked on the Nickoloffs' door, and Mrs. Nickoloff let them
inside. Rice made a phone call while McNeil had a drink of water. Mrs. Nickoloff
returned to the kitchen to eat dinner while Mr. Nickoloff watched television in the
2 In re Pers. Restraint of McNeil & Rice, No. 87654-1
living room. McNeil and Rice then each stabbed one of the Nickoloffs, both of whom
died. McNeil and Rice stole two television sets from the Nickoloff home.
McNeil and Rice were each charged with one count of aggravated first degree
murder and one count of accomplice to aggravated first degree murder. After holding
declination hearings, the juvenile court entered findings of fact, conclusions of law,
and orders permanently declining jurisdiction over both cases and transferring them
to Yakima County Superior Court. The State sought the death penalty against both
petitioners. McNeil and Rice each filed a motion for dismissal of the State's notice
of intent to seek the death penalty. The trial court denied their motions, and
discretionary review was denied.
McNeil and the State reached a plea agreement. The State withdrew its notice
of intent to seek the death penalty, and McNeil pleaded guilty to one count of
aggravated first degree murder and one count of accomplice to aggravated first
degree murder. McNeil was sentenced to two life sentences without the possibility
of early release, the mandatory minimum sentence for aggravated first degree
murder. As an exceptional sentence, the trial court ordered the two life sentences be
served consecutively, rather than concurrently, based on findings of fact and
conclusions of law determining that the Nickoloffs were targeted because they were
particularly vulnerable.
3 In re Pers. Restraint of McNeil & Rice, No. 87654-1
Rice went to trial, and the jury found him guilty of one count of aggravated
first degree murder and one count of accomplice to aggravated first degree murder.
At sentencing, the jury could not reach a decision regarding the death penalty so
Rice was given two life sentences without the possibility of early release, the
mandatory minimum sentence for aggravated first degree murder. As an exceptional
sentence, the trial court ordered Rice's sentences be served consecutively, rather
than concurrently, based on findings of fact and conclusions oflaw determining that
the Nickoloffs were targeted because they were particularly vulnerable.
Both Rice and McNeil appealed, and their sentences were affirmed. State v.
Rice, 120 Wn.2d 549, 844 P.2d 416 (1993); State v. McNeil, 59 Wn. App. 478, 798
P.2d 817 (1990). Rice's sentence was final in March 1993, and McNeil's sentence
was final in November 1990.
II. ISSUES
A. Should the PRPs be dismissed in light of the Miller fix? If not, are petitioners entitled to relief on collateral review?
B. Is life without the possibility of early release always unconstitutional under article I, section 14 of the Washington Constitution as applied to juvenile offenders?
III. ANALYSIS
The Miller decision holds "that mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition
4 In re Pers. Restraint of McNeil & Rice, No. 87654-1
on 'cruel and unusual punishments."' 132 S. Ct. at 2460. 1 In order to comply with
the Eighth Amendment, 2 sentencing bodies must engage in "individualized
consideration" of juvenile offenders facing life in prison without the possibility of
parole, and specifically to "take into account how children are different [from
adults], and how those differences counsel against irrevocably sentencing them to a
lifetime in prison." !d. at 2469-70. Thus, the Miller decision
does not categorically bar a penalty for a class of offenders or type of crime-as, for example, we did in Roper [v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005),] or Graham [v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (201 0)]. Instead, it mandates only that a sentencer follow a certain process-considering an offender's youth and attendant characteristics-before imposing a particular penalty.
!d. at 24 71. Miller reaches this conclusion by analogizing life without the possibility
of parole as applied to juvenile offenders to capital punishment as applied to adult
offenders because each represents the harshest punishment that may be imposed on
each offender class, and each contemplates the offender remaining in prison until he
or she dies there. !d. at 2467-68.
1 The Miller Court primarily refers to "life without parole" sentencing, but its decision clearly applies to all life sentences without the possibility of any type of early release. See 132 S. Ct. at 2469 ("[W]e require [the sentencing court] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."). For purposes of this opinion, "early release" and "parole" are treated as functional equivalents. 2 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CoNST. amend. VIII. 5 In re Pers. Restraint of McNeil & Rice, No. 87654-1
The legislature responded to the Supreme Court's decision with the Miller fix.
The Miller fix sets new sentencing guidelines for aggravated first degree murder
committed by juvenile offenders and requires the sentencing court to "take into
account mitigating factors that account for the diminished culpability of youth as
provided in Miller." LAWS OF 2014, ch. 130, § 9(3)(b). No juvenile offender may be
mandatorily subjected to a life sentence without the possibility of early release; such
a sentence may be imposed only on older juvenile offenders if it is properly based
on an individualized determination consistent with Miller. Id. § 9(3)(a)(ii). If life in
prison without the possibility of early release is not imposed, the offender is given
an indeterminate sentence with a minimum term of at least 25 years. !d. § 9(3)(a)(i)-
(ii). Any juvenile offender who was given a mandatory sentence of life without the
possibility of early release before the Miller fix became effective is automatically
entitled to resentencing consistent with the new guidelines. Id. § 11(1).
A. The State's motion to dismiss is denied
In order to be afforded relief on a PRP, the petitioner must make a threshold
showing ofharm. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324
(2011). For alleged errors of constitutional magnitude, the petitioner "must show
that [he or she was] actually and substantially prejudiced by constitutional error." Id.
The State argues that because the petitioners are entitled to resentencing under the
Miller fix, they cannot meet their threshold burden, so their PRPs must be dismissed.
6 In re Pers. Restraint of McNeil & Rice, No. 87654-1
The State's argument wrongly conflates a threshold showing of prejudice with
the availability of other adequate remedies. The Miller fix has absolutely no impact
on the petitioners' ability to meet their threshold burden of showing that to the extent
that their sentences were imposed in violation of the Eighth Amendment, the
violation probably resulted in actual and substantial prejudice to them. The Miller
fix directs trial courts to make new sentencing decisions to replace the old ones, and
it certainly does not provide that the old sentencing decisions are presumed valid. In
fact, the Miller fix indicates that noncompliance with Miller is per se prejudicial
because all juvenile offenders whose sentences are inconsistent with Miller are
automatically entitled to resentencing. LAWS OF 2014, ch. 130, § 11(1).
B. The PRPs are denied because the petitioners have other adequate remedies
Because of the per se prejudicial effect of a Miller sentencing violation, we
turn to RAP 16.4. RAP 16.4(d) provides, "The appellate court will only grant relief
by a personal restraint petition if other remedies which may be available to petitioner
are inadequate under the circumstances." The Miller fix remedies the unlawfulness
of the petitioners' sentences by providing they must be resentenced in a manner that
does not violate the Eighth Amendment, consistent with Miller. The petitioners
7 In re Pers. Restraint of McNeil & Rice, No. 87654-1
argue the Miller fix, as applied to them, is an unconstitutional 3 ex post facto law, so
it cannot be an adequate remedy. We reject their argument.
A statute's constitutionality is a question of law. State v. Hunley, 175 Wn.2d
901, 908, 287 P.3d 584 (2012). We presume statutes are constitutional, and the party
challenging a statute's constitutionality has the burden of proving otherwise beyond
a reasonable doubt. I d. A statute is an unconstitutional ex post facto law if it "(1)
disadvantages the person affected by the law by increasing the punishment and (2)
is retrospectively applied to acts that occurred before the law was enacted." 4 In re
Pers. Restraint of Forbis, 150 Wn.2d 91, 96, 74 P.3d 1189 (2003). The Miller fix
explicitly applies retrospectively to acts that occurred before its enactment. LAws OF
2014, ch. 130, § 11(1). It does not, however, increase the punishment a juvenile
offender faces for aggravated first degree murder.
The minimum punishment available at the time of the petitioners' crimes was
life in prison without any possibility of early release. Under the Miller fix, the
petitioners would be subject to "a maximum term of life imprisonment and a
minimum term of total confinement of no less than twenty-five years." LAWS OF
3 Article I, section 23 of the Washington Constitution provides, "No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed." Article I, section 10, clause 1 of the United States Constitution provides in relevant part, "No State shall ... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." 4"A law may survive an ex post facto challenge if it is merely procedural." In re Pers.
Restraint of Forbis, 150 Wn.2d 91, 96 n.2, 74 P.3d 1189 (2003). The Miller fix unquestionably changes the amount of punishment available and not just the appropriate sentencing procedures, so it is not "merely procedural" for ex post facto purposes. 8 In re Pers. Restraint of McNeil & Rice, No. 87654-1
2014, ch. 130, § 9(3)(a)(ii). The Miller fix thus provides some possibility that the
petitioners could be released from prison during their lifetimes, allowing for
decreased punishments, not increased punishments. The Miller Court itself
recognizes that the only sentence more severe than life without the possibility of
early release is a death sentence, Miller, 132 S. Ct. at 2468, and the Miller fix, of
course, does not authorize the imposition of a death sentence on a juvenile offender.
The petitioners argue that the appropriate comparison point is not life in prison
without the possibility of early release. By analogy to this court's opinion in State v.
Furman, 122 Wn.2d 440, 858 P.2d 1092 (1993), the petitioners argue that life
without the possibility of early release was not a statutorily authorized sentence at
the time of their crimes, so the appropriate comparison point is a determinate
sentence of at least 20 years under former RCW 9.94A.120(4) (1987). An
indeterminate 25-year minimum sentence is clearly a more severe punishment than
a determinate 20-year minimum sentence, so if Furman's reasoning applied here,
the petitioners' ex post facto challenge would be successful. It does not.
Following a jury trial, Michael Furman was convicted of aggravated first
degree murder and sentenced to death for crimes he committed when he was
approximately 17 years and 10 months old. Furman, 122 Wn.2d at 443-44. This
court held that interpreting the penalty statute for aggravated first degree murder,
RCW 10.95.080, to authorize the death penalty for a juvenile offender would render
9 In re Pers. Restraint of McNeil & Rice, No. 87654~1
the statute unconstitutional. !d. at 458. Neither RCW 10.95.080 nor the statutes
allowing prosecution of a juvenile offender as an adult included any age restrictions
on subjecting an offender to the death penalty. !d. at 456-57. Therefore, the Furman
opinion held, if it interpreted the relevant statutes as authorizing capital punishment
for juvenile offenders generally, those statutes would authorize imposing a death
sentence on a person who was potentially as young as eight years old at the time of
the offense, which would be an unconstitutional result. !d. at 458.
The fact that the relevant statutes did not "set[] any minimum age for
imposition of the death penalty" was the factor that played "[m]ost critically" into
the Furman decision. !d. at 458. Furman was decided in light of a constitutional
landscape where the death penalty could be constitutional as applied to 16- and 17-
year~olds 5 but was categorically unconstitutional as applied to those under 16. !d. at
456-57 (citing Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed.
2d 702 (1988)). Miller, by contrast, does not set any minimum age for offenders who
may be sentenced to life in prison without the possibility of parole or early release.
Only the mandatory nature of the punishment, and not the punishment itself, was
held unconstitutional as applied to juveniles-all juveniles. See Miller, 132 S. Ct. at
2489 (Alito, J., dissenting).
5In2005, the United States Supreme Court held the Eighth Amendment prohibits the imposition of a death sentence on anyone who was under the age of 18 at the time of his or her offense. Roper, 543 U.S. at 571. 10 In re Pers. Restraint ofMcNeil & Rice, No. 87654~1
Further, underlying the reasoning in Furman was the fact that the United
States Supreme Court had issued controlling precedent before the date of the murder
that clearly held the statutes at issue would be unconstitutional as applied to some
defendants. Compare Thompson, 487 U.S. at 838 (holding, in an opinion issued June
29, 1988, that the death penalty may not be imposed on those under 16 years old at
the time of their crimes), with Furman, 122 Wn.2d at 444 (noting the date of the
murder was April 27, 1989). No such precedent existed at the time the petitioners
here committed their crimes. It was not until 2010 that the United States Supreme
Court held the Eighth Amendment placed any categorical limitations on life without
parole sentencing as applied to juvenile offenders. See Graham, 560 U.S. at 94
(Roberts, C.J., concurring). In this case, unlike in Furman, there was no reason to
hold the penalty statute was unconstitutional at the time of the petitioners' crimes.
Furman is not analogous, and without that analogy the relevant comparison
point is a mandatory minimum sentence of life in prison without the possibility of
early release. The Miller fix does not provide for any punishment that could
reasonably be called an "increase" from that, so we reject the petitioners' ex post
facto argument. 6 They do not raise any other argument that the remedy provided by
the Miller fix is inadequate, so we deny the PRPs under RAP 16.4(d).
6 To the extent the petitioners intend to argue that the Miller fix is an increase in punishment even as compared to life in prison without the possibility of early release, we reject that argument. We have held retrospective application of a determinate sentencing scheme in place of a previous 11 In re Pers. Restraint of McNeil & Rice, No. 87654-1
C. We do not consider the constitutionality of life without the possibility of early release if it is imposed on a juvenile offender consistent with Miller
Rice's PRP raises the alternative argument, later joined by McNeil, that we
should hold life without the possibility of early release is always violative of article
I, section 14 of the Washington Constitution as applied to juvenile offenders. We do
not consider this alternative argument because the petitioners' sentences were final
over one year ago and there is no applicable exception to the one year limit on
collateral attacks. In re Pers. Restraint of Thomas,_ Wn.2d _ , 330 P.3d 158,
158 (2014). 7
IV. CONCLUSION
For the foregoing reasons, we deny the State's motion to dismiss and we deny
the PRPs.
indeterminate scheme does not violate the ex post facto clause because "what is gained in determinacy more than makes up for what is lost in terms of the possibility of early release." In re Pers. Restraint of Powell, 117 Wn.2d 175, 185, 814 P.2d 635 (1991). That reasoning does not apply, however, where an indeterminate sentencing scheme creates a possibility of early release that was completely unavailable under prior law. Cf id. at 194. 7The State does not make an argument that either PRP should be dismissed as a mixed
petition, so we do not consider it. 12 In re Pers. Restraint of McNeil & Rice, No. 87654-1
WE CONCUR:
13 In re Pers. Restraint ofMcNeil & Rice, No. 87654-1 Gordon McCloud, J., Concurrence
No. 87654-1
GORDON McCLOUD, J. (concurring)-! agree with the majority's decisions
to deny the State's motion to dismiss, to address the personal restraint petitions
(PRPs) on the merits, and to deny the PRPs. I write separately only because I
disagree with the majority's treatment of the petitioners' ex post facto clause
arguments.
The petitioners argued that applying the new Miller 1 fix legislation to them
would violate the ex post facto clause. LAWS OF 2014, ch. 130. They based this
argument largely on State v. Furman, 122 Wn.2d 440, 858 P.2d 1092 (1993), but
Furman was not an ex post facto clause case. Instead, in Furman, this court held
that the death penalty was not statutorily authorized for juveniles under Washington
law-and since the statutes didn't allow the death penalty at the time of the Furman
decision, the statutes didn't allow the death penalty to be imposed on Furman for the
murder he committed several years earlier, while still a juvenile. !d. at 456-58.
1 Miller v. Alabama, 567 U.S._, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). 1 In re Pers. Restraint of McNeil & Rice, No. 87654-1 Gordon McCloud, J., Concurrence
The petitioners argue, by analogy, that the mandatory life without parole
sentence imposed on them was similarly improper because, since the constitution
doesn't allow that punishment to be imposed on them now, the constitution didn't
allow that punishment to be imposed on them several years ago. The petitioners'
final conclusion is that for ex post facto purposes, we must therefore compare the
penalty authorized by the Miller fix statutes to a penalty of20 years (a penalty clearly
less harsh than that authorized by the Miller fix statutes), not to the unconstitutional
penalty of mandatory life without parole.
The majority credits this argument but distinguishes Furman on its facts.
Majority at 9-11.
I disagree with the way the majority distinguishes Furman's facts, but I think
that the petitioners' ex post facto argument fails for a different reason. The reason
is that this court rejected the same argument about the relevant point of comparison,
for ex post facto purposes, in a recent prior controlling decision that neither party
cited: State v. Pillatos, 159 Wn.2d 459, 150 P.3d 1130 (2007).
In Pillatos, the defendant/appellant argued in part that the Blakely fix 2 was an
unconstitutional ex post facto law for basically the same reason that McNeill and
2The Blakely fix is statutes that our legislature enacted to address the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 313, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which held a jury must find beyond a reasonable doubt any fact supporting the imposition of an exceptional sentence. LAWS OF 2005, ch. 68, § 4(2). 2 In re Pers. Restraint of McNeil & Rice, No. 87654-1 Gordon McCloud, J., Concurrence
Rice argue that the Miller fix is an unconstitutional ex post facto law. In Pillatos,
two defendants 3 asserted that the Blakely fix authorized exceptional sentences that
were unconstitutional-and thus, according to those defendants, did not exist-
when those defendants committed their crimes. Id. at 474-76. This court rejected
that argument:
A defendant is subject to the penalty in place the day the crime was committed. After the fact, the State may not increase the punishment. In re Pers. Restraint of Hinton, 152 Wn.2d 853, 861, 100 P.3d 801 (2004) (citing Stogner v. California, 539 U.S. 607, 612, 123 S. Ct. 2446, 156 L. Ed. 2d 544 (2003)). But as we have said when considering other amendments to the SRA [Sentencing Reform Act of 1981, ch. 9.94A RCW], the key is whether the defendant had notice of the punishment at the time of the crime, not whether in some metaphysical sense, a constitutional statute existed at the time of the cnme.
Id. at 475. Thus, in an ex post facto analysis, we ask whether a new law imposes a
penalty greater than the one that was authorized by statute when the defendant's
The Blakely fix statutes required the State to notify the defendant before trial or entry of a guilty plea that the State intended to seek a sentence above the standard range, to state the aggravating circumstances it intended to allege, and to prove the existence of those circumstances beyond a reasonable doubt. !d. § 4(1 ), (2).
3 Pillatos consolidated four defendants' cases; two of those defendants had already pleaded guilty when the legislature enacted the Blakely fix, and this court held that the new legislation was, by its terms, inapplicable to those defendants. 159 Wn.2d at 470. The remaining two defendants had yet to plead or be tried; they argued that applying the Blakely fix to their cases would violate ex post facto clause protections. I d. at 475. 3 In re Pers. Restraint of McNeil & Rice, No. 87654-1 Gordon McCloud, J., Concurrence
offense occurred. We do not consider whether the statutes in place at the time of the
offense were later found to be unconstitutional.
Pillatos may well have been wrongly decided. But it was decided just seven
years ago, and it rejected the ex post facto argument that the petitioners make here.
No one has argued that Pillatos should be overruled; no one has given us a reason to
distinguish it.
I think the majority errs in ignoring this prior controlling precedent. I think
that this error leads the majority to make some unwarranted assertions, for example,
"[i]n this case, unlike in Furman, there was no reason to hold the penalty statute was
unconstitutional at the time of the petitioners' crimes." Majority at 11. Actually,
the statute at issue in this case requiring mandatory life without parole was
unconstitutional at the time of sentencing and is unconstitutional now; that is why
these petitioners are aggrieved, that is why their PRPs are not subject to dismissal,
and that is why they are being decided on the merits.
But the Miller fix statute addresses this constitutional problem. This court
unanimously agrees that that statute, with its guaranty of a full resentencing for
juveniles sentenced before its enactment, majority at 6 (citing LAWS OF 2014, ch.
130, § 11(1)), is sufficient to protect the petitioners' constitutional interests. I
therefore respectfully concur.
4 In re Pers. Restraint of McNeil & Rice, No. 87654-1 Gordon McCloud, J., Concurrence