/FTtrEIN CLERK* OFFICE This opinion was filed for record tUFieE coum;ansE OF wMHDicreii at aAAton p^Uim ^^ ^ DATg MAY 0 9 2019 '^/kAA kWU4 M. GMIEFJUSnGe Susan L. Carlson Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal No. 95394-5 Restraint of: En Banc TIME RIKAT MEIPPEN,
Petitioner. Filed: MAY 0 9 2019
OWENS,J. — Time Rikat Meippen was a juvenile when he was convicted in
adult court of first degree assault, first degree robbery, and second degree unlawful
possession of a firearm. The trial court sentenced Meippen to the top ofthe standard
sentencing range and imposed a firearm sentence enhancement. Several years after
Meippen's sentencing, this court decided State v. Houston-Sconiers} In Houston-
Sconiers, this court held that when sentencing a juvenile in adult court, a trial court
has absolute discretion to depart from the standard sentencing ranges and mandatory
sentence enhancements prescribed by the Sentencing Reform Act of 1981 (SRA),
chapter 9.94A ROW. 188 Wn.2d at 9. Meippen subsequently filed an untimely
188 Wn.2d 1,391 P.3d409(2017). In re Pers. Restraint ofMeippen, No. 95394-5
personal restraint petition(PRP), arguing that Houston-Sconiers constitutes a significant and material change in the law that should apply retroactively.
Even assuming Meippen can show that Houston-Sconiers is a significant,
material change in the law that applies retroactively, we hold that he is not entitled to
collateral relief because he does not demonstrate that any error actually and
substantially prejudiced him. Meippen does not show by a preponderance ofthe
evidence that his sentence would have been shorter if the trial court had absolute
discretion to depart from the SRA at the time of sentencing. The trial court had the
discretion to impose a lesser sentence under the SRA at the time and instead sentenced
Meippen at the top of the standard sentencing range. Accordingly, Meippen cannot
make a threshold showing of actual and substantial prejudice, and we dismiss his
PRP. Thus, we decline to consider whether Houston-Sconiers is a significant,
material change in the law that applies retroactively to cases on collateral review, and
we save the question for another day.
FACTS
In 2006, Meippen robbed a tobacco store and shot the store clerk in the head,
inflicting nonlethal injuries. Meippen was 16 years old. Meippen was automatically
transferred to adult court, where a jury convicted him of first degree assault and first
degree robbery, plus one firearm enhancement. See former ROW
13.04.030(l)(e)(v)(A)(2005). Meippen was also convicted of second degree
unlawful possession of a firearm in a concurrent bench trial. In re Pers. Restraint ofMeippen, No. 95394-5
At sentencing, Meippen's counsel recommended that Meippen receive a bottom-end standard range sentence. Meippen's counsel argued that Meippen was too
young to appreciate the nature and consequences of his actions and that he "lack[ed] an understanding ... of the seriousness ofthe situation he involved himself in."
State's Resp. to PRP, App. at 27-28. Meippen's counsel also noted that Meippen was
"very immature in his thought processes and beliefs" and opined that due to
Meippen's age, a lengthy prison sentence would be especially difficult. Id. at 27; see
id. at 28. The trial court rejected counsel's recommendation, stating,"I find
[Meippen's] behavior cold, calculated, and it showed complete indifference towards
another human being." Order Transferring Mot. for Relieffrom J. to Court of
Appeals, State v. Meippen, No. 06-1-05905-7-SEA, App. A at 17(King County
Super. Ct. Oct. 20, 2017). The court imposed a top-end standard range sentence of
231 months in confinement, including a 60-month firearm sentence enhancement.
Meippen appealed. The Court of Appeals affirmed his convictions and sentence and
issued its mandate in 2009. State v. Meippen, noted at 149 Wn. App. 1014(2009).
Nearly eight years after Meippen's judgment and sentence became final, this
court decided Houston-Sconiers. In Houston-Sconiers, this court noted that the
Eighth Amendment to the United States Constitution requires courts to recognize that
"children are different." 188 Wn.2d at 18. This court reasoned that because children
are different, the Eighth Amendment mandates that trial courts have absolute
discretion to impose sentences below the SRA standard sentencing ranges and In re Pers. Restraint ofMeippen, No. 95394-5
mandatory sentence enhancements when sentencing a juvenile in adult court. Id. at 9. This court further held that to comply with the Eighth Amendment's mandate, trial
courts must have complete discretion to consider the mitigating qualities associated with youth at sentencing. Id. at 21. These mitigating qualities include a juvenile defendant's age, immaturity, and failure to appreciate risks and consequences. Id. at
23.
In 2017, Meippen filed a pro se motion for relieffrom judgment, requesting a
new sentencing hearing. The trial court transferred Meippen's untimely motion to the
Court of Appeals for consideration as a PRP. Soon after, Meippen filed an amended
PRP, arguing that his petition was timely because Houston-Sconiers represents a
significant and material change in the law that should apply retroactively to his
sentence. The Court of Appeals transferred Meippen's amended PRP to this court as
a successive petition that raised new grounds. This court retained the petition for
consideration on the merits.
ISSUE
Does Meippen demonstrate that the trial court's alleged sentencing eiTor actually
and substantially prejudiced him such that this court will consider whether Houston-
Sconiers is a significant, material change in the law that applies retroactively to cases on
collateral review? In re Pers. Restraint ofMeippen, No. 95394-5
ANALYSIS
Meippen argues that the one-year time bar does not apply to his PRP because
Houston-Sconiers constitutes a significant and material change in the law that should
apply retroactively to cases on collateral review. We hold that Meippen fails to
demonstrate that the trial court actually and substantially prejudiced him because he
does not show by a preponderance ofthe evidence that his sentence would have been
shorter if the trial court had absolute discretion to depart from the SRA at the time of
his sentencing. Because Meippen does not meet his threshold burden of showing
actual and substantial prejudice, we must dismiss his petition. Accordingly, we
decline to consider whether Houston-Sconiers is a significant, material change in the
law that applies retroactively.
A petitioner is generally barred from filing a PRP "more than one year after
[his]judgment becomes final if the judgment and sentence is valid on its face and was
rendered by a court of competent jurisdiction." RCW 10.73.090(1). A petitioner can
overcome the one-year time bar if he can identify(1) a significant change in the law,
(2)that is material to his conviction or sentence, and (3) that applies retroactively.
RCW 10.73.100(6); Miller, 185 Wn.2d 111, 114, 371 P.3d 528 (2016).
However, a petitioner must show not only error but also a threshold showing of harm
to obtain relief on a PRP. In re Pers. Restraint ofMcNeil, 181 Wn.2d 582, 589, 334
P.3d 548 (2014); see State v. Buckman, 190 Wn.2d 51, 65, 409 P.3d 193 (2018).
"These threshold requirements are justified by the court's interest in finality. In re Pers. Restraint ofMeippen, No. 95394-5
economy, and integrity of the trial process and by the fact that the petitioner has already had an opportunity for judicial review." In re Pers. Restraint oflsadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004).
A petitioner alleging constitutional error has the threshold, prima facie burden
of showing by a preponderance ofthe evidence that he was actually and substantially
prejudiced by the alleged error. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 671-
72, 101 P.3d 1 (2004). In doing so, the petitioner '"must shoulder the burden of
showing, not merely that the errors at his trial created a possibility of prejudice,'" but
that the outcome would more likely than not have been different had the alleged error
not occurred. In re Pers. Restraint ofHagler, 97 Wn.2d 818, 825,650 P.2d 1103
(1982)(quoting United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed.
2d 816 (1982)); see Buckman, 190 Wn.2d at 60. If the petitioner fails to make the
threshold, prima facie showing of actual and substantial prejudice, we must dismiss
his PRP. In re Pers. Restraint ofYates, 177 Wn.2d 1,17, 296 P.3d 872(2013); see In
re Pers. Restraint ofKhan, 184 Wn.2d 679,686, 363 P.3d 577(2015)(plurality
opinion)(stating that a PRP may be dismissed without addressing a debatable legal
issue that was properly raised).
Meippen contends that Houston-Sconiers renders his sentence unconstitutional.
Because Meippen alleges a constitutional error, he must show that he was actually and
substantially prejudiced by the trial court's alleged error to obtain collateral relief.
Meippen fails to meet this threshold, prima facie burden for the following reasons. In re Pers. Restraint ofMeippen, No. 95394-5
To begin with, Meippen does not show by a preponderance of the evidence that
his sentence would have been shorter if Houston-Sconiers was a significant, material
change in the law that applied retroactively. At sentencing, Meippen's counsel argued
that mitigating qualities of youth—^Meippen's age, immaturity, and failure to
appreciate the consequences of his actions—supported a sentence at the bottom ofthe
standard range. The trial court considered these mitigating qualities and, nevertheless,
imposed a top-end standard range sentence.
Significantly, the trial court already possessed the discretion to depart from the
SRA standard sentencing ranges at the time of Meippen's sentencing. The trial court
had the discretion to impose an exceptional sentence downward based on Meippen's
youth, but it declined to do so. In re Pers. Restraint ofLight-Roth, 191 Wn.2d 328,
336,422 P.3d 444(2018)("[The SRA] has always provided the opportunity to raise
youth for the purpose of requesting an exceptional sentence downward, and mitigation
based on youth is within the trial court's discretion."). Nothing in our record suggests
that the trial court would have exercised its discretion to depart from the SRA
sentence enhancement guidelines. The trial court determined that Meippen's actions
were cold and calculated, and it clearly intended to impose a sentence at the top of the
standard range despite Meippen's youth.
Finally, although there is a mere possibility that the trial court could have
departed from the SRA in light of Houston-Sconiers, mere possibilities do not
establish a prima facie showing of actual and substantial prejudice. Meippen does not
7 In re Pers. Restraint ofMeippen, No. 95394-5
present any evidence that the trial court would have imposed a lesser sentence if it had
the discretion to depart from the SRA standard sentencing ranges and mandatory
sentence enhancements. The trial court already had the discretion to impose a lesser
sentence but declined to do so. Accordingly, Meippen fails to show by a
preponderance ofthe evidence that he was actually and substantially prejudiced by the
trial court's alleged error. Because Meippen does not make a threshold, prima facie
showing of actual and substantial prejudice, he is not entitled to collateral relief.
Thus, we dismiss his PRP and decline to consider whether Houston-Sconiers
represents a significant, material change in the law that should apply retroactively to
cases on collateral review.
CONCLUSION
Meippen does not show by a preponderance ofthe evidence that his sentence
would have been shorter if the trial court had absolute discretion to depart from the
SRA at the time of his sentencing. As a result, Meippen fails to show that he was
actually and substantially prejudiced during sentencing, and we dismiss his PRP. We
decline to consider whether Houston-Sconiers is a significant, material change in the
law that applies retroactively to cases on collateral review and save the question for
another day. In re Pers. Restraint ofMeippen, No. 95394-5
£
WE CONCUR: In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
No. 95394-5
WIGGINS, J. (dissenting)—Today the court avoids answering whether State v.
Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), applies retroactively when a
prisoner collaterally attacks a final judgment. The majority asserts that because Time
RIkat Meippen cannot show actual and substantial prejudice, we need not reach the
retroactlvlty question. Majority at 2, 8. But we must decide whether Houston-Sconiers
applies retroactively before we reach the Issue of actual and substantial prejudice.
Further, I conclude that Houston-Sconiers Is a significant change of law, material to
Melppen's case, and applies retroactively on collateral review under Montgomery v.
Louisiana, _ U.S. _, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). I conclude that
Meippen makes a prima facie showing of actual and substantial prejudice entitling him
to a reference hearing. Therefore, I respectfully dissent.
I. Retroactlvlty must be resolved before the question of prejudice
When deciding a personal restraint petition (PRP), we first look to see If the
petition was properly brought and. If so, then decide the merits of the petition. The
majority does not follow this order. Instead, It concludes that we need not "consider
whether Houston-Sconiers represents a significant, material change In the law that
should apply retroactively to cases on collateral review" because Meippen has not
1 In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
made "a threshold, prima facie showing of actual and substantial prejudice." Majority
at 8. This is backward. The question of Houston-Sconiers' retroactivity on collateral
review is part of the threshold procedural question. It is not substantive. Conversely, the question whether Meippen showed actual prejudice goes to the substantive merits of his case.
Whether Houston-Sconiers applies retroactively is clearly the threshold
procedural question. When a petitioner files a PRP more than one year after a
judgment becomes final (as was the case here), ROW 10.73.090 bars it as untimely,
exceptions aside."ROW 10.73.090 presents 'a procedural bar, not a substantive bar.'"
in re Pers. Restraint of Finstad, Ml Wn.2d 501, 508, 301 P.3d 450(2013)(emphasis
added)(quoting in re Pers. Restraint of Coats, 173 Wn.2d 123, 145, 267 P.3d 324
(2011) (Madsen, C.J., concurring)); see also In re Pers. Restraint of Schorr, 191
Wn.2d 315, 320, 422 P.3d 451 (2018)("[Resolving the time bar] is a threshold inquiry;
we do not have to decide whether the entire claim is completely meritorious in order
to decide whether it fits within an exception to the time bar.").
Meippen argues that ROW 10.73.100(6) exempts him from the time bar. He
must prove Houston-Sconiers is retroactive for that exception to apply, in re Pers.
Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 103, 351 P.3d 138 (2015). Thus, the
question of retroactivity is also procedural because it relates to whether he overcomes
the procedural time bar.
Rather, it is the issue of actual prejudice that goes to the substantive merits of
the petition. The majority treats this question as merely preliminary. Majority at 6. But
as we wrote in in re Personal Restraint of Davis, on which the majority relies, "To In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
actually obtain relief on collateral review based on a constitutional error[,] the petitioner must demonstrate by a preponderance of the evidence that petitioner was
actually and substantially prejudiced by the error." 152 Wn.2d 647, 671-72, 101 P.3d
1 (2004)(emphasis added)(footnote omitted). Given that "[gjranting the petition is
appropriate if the petitioner has proved actual prejudice," prejudice clearly deals with
the merits of the petition. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d
872(2013)(citing In re Pers. Restraint of Pierce, 173 Wn.2d 372, 377, 268 P.3d 907
(2011)).
Resolving whether to grant a petitioner relief necessarily comes after resolving
the procedural question of whether the PRP is time-barred. RAP 16.4(d) ("The
appellate court will only grant relief by a personal restraint petition if. . . such relief
may be granted under RCW 10.73.090 or .100."). By reversing this order, the majority
avoids the threshold procedural question and preemptively dismisses the case on the
merits.
This is more than semantics. By confusing our collateral attack procedure, the
majority does disservice not only to Meippen but to all incarcerated persons. The
personal restraint petition remains one of the few means available to incarcerated
individuals to seek further judicial review of their predicament. We must clarify which
aspects of seeking collateral relief are procedural, which are substantive, and in what
order these questions must be resolved. Given that many prisoners bring PRPs pro
se, such clarity is particularly necessary. See Houston v. Lack, 487 U.S. 266, 271,
108 S. Ct. 2379, 101 L. Ed. 2d 245(1988)(detailing challenges facing pro se prisoner
litigants in filing appeals); State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
(1999)(demonstrating how pro se briefs are held to the same standard as those
written by counsel). The consequences of incarceration and complexities of our
system of collateral attack demand clarity on our part.
II. Meippen overcomes the time bar because Houston-Sconiers is a significant and material change in law that applies retroactively
In light of the above, before considering the merits of Meippen's case, we must
consider whether he overcomes the one-year limitation barring untimely personal
restraint petitions. RCW10.73.090,.100. Meippen argues that he overcomes the time
bar because Houston-Sconiers satisfies the requirements of RCW 10.73.100(6).
I agree.
"'ROW 10.73.100(6) sets forth three conditions that must be met before a
petitioner can overcome the one-year time bar:(1)a [significant] change in the law (2)
that is material and (3)that applies retroactively.'" in re Pers. Restraint of Yung-Cheng
Tsai, 183 Wn.2d at 103 (alteration in original) (quoting in re Pers. Restraint of
Gentry, 179 Wn.2d 614, 625, 316 P.3d 1020 (2014)). Houston-Sconiers meets these
requirements.
In Houston-Sconiers, we analyzed juvenile sentencing in the context of the
Eighth Amendment to the United States Constitution. 188 Wn.2d at 18. Reasoning
that "children are different," we held that "sentencing courts must have complete
discretion to consider mitigating circumstances associated with the youth of any
juvenile defendant" and that "the Eighth Amendment requires sentencing courts to
consider the mitigating qualities of youth at sentencing, even in adult court." Id. at 18,
21 (emphasis added)(capitalization omitted). This rule prevents children from facing In re Pers. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
disproportionate sentencing ranges in violation of the Eighth Amendment. Id. at 18- 21, 19 n.4.
Houston-Sconiers meets each of the requirements of RCW 10.73.100(6). First,
Houston-Sconiers is a significant change in the law. See In re Pers. Restraint of Yung-
Cheng Tsai, 183 Wn.2d at 103. "[W]here an intervening opinion has effectively
overturned a prior appellate decision that was originally determinative of a material
issue, the intervening opinion constitutes a 'significant change in the law.'" In re Pers.
Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000) (quoting RCW
10.73.100(6)). Houston-Sconiers expressly overruled State v. Brown, 139 Wn.2d 20,
983 P.2d 608 (1999). Houston-Sconiers, 188 Wn.2d at 21 n.5. Brown indicated that
judges had no discretion to depart from the requirements of the Sentencing Reform
Act of 1981 (SRA), ch. 9.94A RCW. 139 Wn.2d at 29. Given that Meippen's
sentencing occurred entirely within the framework of the SRA, without any indication
in the record that anyone believed it possible to go outside that range (indeed, defense
counsel recommended a sentence only at the low end of the SRA range. Brown
effectively controlled a material issue in Meippen's case. By overturning Brown,
Houston-Sconiers was a significant change in the law.
Another '"test to determine whether an [intervening case] represents a
significant 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)). Houston-Sconiers
held that at sentencing the judge must consider the mitigating factors of youth. 188 In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
Wn.2cl at 18. Meippen's counsel made the only argument then feasible: that the low end of the sentencing range was "appropriate" for Meippen because of "his youth." He
did not, because he could not, argue that the judge was required to take youth into
account. See id. By providing defendants with the argument that a sentencing judge
must consider youth, when this argument did not before exist (at least not in any
fashion endorsed or legitimated by this court), Houston-Sconiers was a significant
change in law. 188 Wn.2d at 18.
Second, Houston-Sconiers is material to Meippen's case. See In re Pers.
Restraint of Yung-Cheng Tsai, 183 Wn.2d at 103. Houston-Sconiers requires that a
court take youth into account at sentencing. 188 Wn.2d at 18, 21. Despite defense
counsel's invocation of Meippen's youth, the court did not take his youth into account.
On the contrary, in response to these arguments, the court said only,"Thank you" and
immediately imposed a sentence at the high end of the sentencing range. By way of
explanation, the judge simply stated, "I find the defendant's behavior cold, calculated,
and it showed complete indifference towards another human being." Without a clearer
indication that the sentencing court actually considered Meippen's youth, it cannot be
said that the sentencing court behaved as Houston-Sconiers commands. We cannot
presume that the sentencing court took Meippen's youth into account when it gave
absolutely no indication of having done so. Silence does not constitute reasoning. See
State V. Ramos, 187 Wn.2d 420, 444, 387 P.3d 650 (2017) (requiring courts
sentencing juveniles to life without parole to "thoroughly explain [their] reasoning" as In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
to why a juvenile deserves such a sentence, "specifically ccnsidering the differences between juveniles and adults" in the process).''
Further, neither the sentencing court nor Meippen's counsel indicated that it
was possible for Meippen to be sentenced below the standard range. Had Houston-
Sconiers been decided, all participants in sentencing would have known such
discretionary sentencing was possible and Meippen's counsel could have argued for
sentencing below the standard range. 188 Wn.2d at 21. This, too, makes Houston-
Sconiers material to Meippen's case.
Third, Houston-Sconiers applies retroactively. See In re Pers. Restraint of
Yung-Cheng Tsai, 183 Wn.2d at 103. This court decides whether a rule applies
retroactively in collateral review under the framework of league v. Lane, 489 U.S.
288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). In re Pers. Restraint of Colbert, 186
Wn.2d 614, 623, 380 P.3d 504 (2016). The United States Supreme Court recently
made clear that league identified "new substantive rules of constitutional law" as
retroactive on collateral review. Montgomery, 136 S. Ct. at 728. By contrast, most
procedural rules (except watershed rules of criminal procedure) are not retroactive on
collateral review. Id. at 728, 730. This matters in the case before us for two reasons.
First, Montgomery appWes the league framework, which this court follows. Id. at 728;
In re Pers. Restraint of Colbert, 186 Wn.2d at 623. Second, and more importantly, the
Supreme Court held that "when a new substantive rule of constitutional law controls
^ While Ramos does not require thorough justification when a juvenile faces a sentence shorter than life without parole, it nevertheless suggests that we cannot presume that a sentencing court has considered youth merely because defense counsel has invoked it. Some indication that the juvenile's youth was evaluated by the sentencing court is required. In re Pers. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
the outcome of a case, the Constitution requires state collateral review courts to give
retroactive effect to that rule." Montgomery, 136 S. Ct. at 729. 1 conclude that Houston-
Sconiers applies retroactively because it is a new, substantive rule of constitutional
law.
There is no question that the rule in Houston-Sconiers is a rule of constitutional
law. The entire case was premised on the dictates of the Eighth Amendment.
Houston-Sconiers, 188 Wn.2d at 8, 18-21. In particular, it was focused on the Eighth
Amendment's guaranty of proportionate sentencing. Id. at 19 n.4. The questions are
therefore only whether it is a new rule and whether it is substantive. Montgomery, 136
S. Ct. at 728.
The rule in Houston-Sconiers is a new rule. A new rule is one that "breaks new
ground or 'was not dictated by precedent existing at the time the defendant's
conviction became final.'" In re Pers. Restraint of Colbert, 186 Wn.2d at 623 (internal
quotation marks omitted)(quoting In re Pers. Restraint of Haghighi, 178 Wn.2d 435,
443, 309 P.3d 459 (2013)). The rule in Houston-Sconiers expressly overruled prior
cases that indicated the inflexibility of the SRA. 188 Wn.2d at 21 n.5. Further, in
holding that a juvenile defendant's youth must be considered at eve/y sentencing, it
went beyond even Supreme Court cases like Miller v. Alabama (which required
consideration of youth when the sentence was life without parole). Houston-Sconiers,
188 Wn.2d at 18; Miller v. Alabama, 567 U.S. 460, 479-80, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012). It is therefore a new rule.
The Houston-Sconiers rule is also substantive. A substantive rule of
constitutional law, in retroactivity doctrine, is one that "forbids 'criminal punishment of In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
certain primary conduct'" or prohibits '"a certain category of punishment for a class of
defendants because of their status or offense.'" Montgomery, 136 S. Ct. at 732
(quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 8. Ct. 2934, 106 L. Ed. 2d 256
(1989)). The key example is Montgomery. In Montgomery, the Supreme Court held
that Miller announced a substantive rule of constitutional law. Id. at 734. Miller
prohibited sentences of mandatory life without parole for juvenile offenders without
consideration of their youth at the time of the offense. Miller, 567 U.S. at 479-80. The
Montgomery Court reasoned that Miller's rule guarded against disproportionate
punishment for juveniles and that "[pjrotection against disproportionate punishment is
the central substantive guarantee of the Eighth Amendment and goes far beyond the
manner of determining a defendant's sentence." 136 S. Ct. at 732-33. The
Montgomery Court concluded that Miller's rule was a "substantive holding that life
without parole is an excessive sentence for children whose crimes reflect transient
immaturity." Id. at 735. Montgomery acknowledged that Miller did not categorically
prohibit life without parole for juvenile defendants but held that irrelevant. Id. By
barring life without parole "for all but the rarest of juvenile offenders, those whose
crimes reflect permanent incorrigibility," Miller created a substantive rule of
constitutional law that states are constitutionally required to give retroactive effect on
collateral review. Id. at 734.
Houston-Sconiers is substantive for the same reasons. Houston-Sconiers
protects juveniles from facing certain disproportionate sentencing ranges. 188 Wn.2d
at 18-20. This parallels Miller's rule, which prevents juveniles from facing
disproportionate life without parole sentences. 567 U.S. 460; accord Montgomery, 136 In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
S. Ct. at 726. In this way, like Miller, Houston-Sconiers "prohibits 'a certain category
of punishment for a class of defendants because of their status or
offense.'" Montgomery, 136 S. Ct. at 732(quoting Penry, 492 U.S. at 330). Like Miller,
Houston-Sconiers was premised on the "central substantive guarantee of the Eighth
Amendment"; the prohibition against disproportionate punishment. Id. at 732-33;
Houston-Sconiers, 188 Wn.2d at 19 n.4. "Before Miller, every juvenile convicted of a
homicide offense could be sentenced to life without parole. After Miller, it will be the
rare juvenile offender who can receive that same sentence." Montgomery, 136 S. Ct.
at 734. Before Houston-Sconiers, every juvenile convicted of certain offenses faced
certain sentencing ranges, while after Houston-Sconiers, juveniles no longer
necessarily face those ranges now that sentencing courts not only have the discretion
to go outside the bounds of the SRA but are required to consider the mitigating
qualities of youth. 188 Wn.2d at 18, 21. Just as Montgomery considered Miller a
substantive change in the law, so too should we hold that Houston-Sconiers is a
substantive change of constitutional law.
Houston-Sconiers itself indicated that its holding was substantive. We relied
heavily on Roper,^ Graham,^ and Miller, noting that those cases
[made] two substantive rules of law clear: first, "that a sentencing rule permissible for adults may not be so for children," rendering certain sentences that are routinely imposed on adults disproportionately too harsh when applied to youth, and second, that the Eighth Amendment requires another protection, besides numerical proportionality, in juvenile sentencings—the exercise of discretion.
2 Roper V. Simmons, 543 U.S. 551, 125 8. Ct. 1183, 161 L. Ed. 2d 1 (2005). 3 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
10 In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
Houston-Sconiers, 188 Wn.2d at 19 n.4 (emphasis added)(citation omitted)(quoting
Miller, 567 U.S. at 481). Houston-Sconiers is based on the same federal decisions
that Montgomery made clear were substantive. Id.] Montgomery, 136 8. Ct. at 734.
Houston-Sconiers itself also referred to them as substantive. 188 Wn.2d at 19 n.4. In
so doing, Houston-Sconiers all but stated that it also announced a substantive rule of
constitutional law applicable retroactively on collateral review.
That the rule in Houston-Sconiers has a procedural component, requiring
sentencing courts to take into account the youth of the defendant, does not prevent it
from being a substantive rule. Miller had an identical procedural component, yet the
Supreme Court In Montgomery stWl held Miller was substantive. Montgomery, 136 S.
Ct. at 735. "There are instances in which a substantive change in the law must be
attended by a procedure that enables a prisoner to show that he falls within the
category of persons whom the law may no longer punish." Id. Such is the case here.
Houston-Sconiers' substantive change in law—preventing juvenile defendants from
facing disproportionate sentencing ranges—was accomplished by procedurally
requiring sentencing courts to take youth into account. 188 Wn.2d at 19-20. Thus,
Houston-Sconiers' procedural component does not prevent it from being retroactive
on collateral review.
For these reasons, I would hold Houston-Sconiers is retroactive. Meippen
therefore overcomes the time bar.
11 In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
III. We should order a reference hearing to determine whether the sentencing court's failure to consider youth actually and substantially prejudiced Meippen
Having established that Houston-Sconiers applies retroactively to Meippen's
case, permitting Meippen to overcome the time bar, I now turn to the question of relief.
I conclude that we should transfer the case to superior court for a reference hearing
because Meippen has made a prima facie showing of actual and substantial prejudice.
"We have three available options when reviewing a personal restraint petition:
(1) dismiss the petition, (2) transfer the petition to a superior court for a full
determination on the merits or a reference hearing, or (3) grant the petition." in re
Pars. Restraint of Yates, 177 Wn.2d at 17 (citing in re Pars. Restraint of Hews, 99
Wn.2d 80, 88, 660 P.2d 263 (1983); RAP 16.11(b), 16.12). To obtain relief in a
personal restraint petition asserting constitutional error, the petitioner must show, by
a preponderance of the evidence, that he or she was actually and substantially
prejudiced by the error. In re Pars. Restraint of Davis, 152 Wn.2d at 671-72 (citing in
re Pars. Restraint of Cook, 114 Wn.2d 802, 810, 792 P.2d 506 (1990); In re Pars.
Restraint of Crabtree, 141 Wn.2d 577, 587, 9 P.3d 814(2000)). If the petitioner makes
such a showing, we grant relief, id.; In re Pars. Restraint of Yates, 177 Wn.2d at 18.
If the petitioner does not make even a prima facie showing of actual and substantial
prejudice, we dismiss the PRP. In re Pars. Restraint of Yates, 177 Wn.2d at 17. If the
petitioner makes a prima facie showing of actual and substantial prejudice, but the
record is insufficient to entitle him or her to relief, we order a reference hearing, id. at
18.
12 In re Pars. Restraint of Meippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
Meippen has made a prima facie showing of actuai and substantlai prejudice.
Houston-Sconiers heid that the Eighth Amendment requires a sentencing court to
consider a juveniie defendant's youth at sentencing. 188 Wn.2d at 18, 19 n.4. The
sentencing court faiied to consider Meippen's youth at sentencing. Rather than
engaging in any way with the fact that Meippen was oniy 16 years oid at the time of
the crime, the court sentenced him within the standard sentencing range (indeed, at
its upper iimits) irrespective of those factors. The sentencing court thereby faiied to
adhere to the procedurai component that protects Meippen's substantive Eighth
Amendment guaranty of proportionate sentencing. Houston-Sconiers, 188 Wn.2d at
18-20, 19 n.4.
However, we cannot teii from the record whether Meippen was actuaiiy
prejudiced. The record does not reveai whether taking Meippen's youth into account
wouid have ied to a different sentence, in iight of this, i conciude that we shouid order
a reference hearing. Meippen was sentenced, for a crime committed at the age of 16,
to 231 months in prison—over 17 years. As a matter of fundamentai fairness, we
shouid order a reference hearing so the superior court can determine whether he was
prejudiced when sentenced to serve more years in jaii than he had then been aiive.
The majority disagrees, conciuding that Meippen cannot prove actuai and
substantiai prejudice, and dismisses his PRP. Majority at 8. But that is not the correct
response. When a petitioner offers '"the facts underiying the ciaim of uniawfui restraint
and the evidence avaiiabie to support the factuai aiiegations'" so that they go beyond
'"baid assertions and conciusory arguments,"' a reference hearing is justified. In re
Pers. Restraint of Yates, 177 Wn.2d at 18 (quoting In re Pers. Restraint of Rice, 118
13 In re Pars. Restraint ofMeippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
Wn.2d 876, 885-86, 828 P.2d 1086 (1992)). Meippen has done just that. Meippen's
constitutional rights were violated. There is no evidence in the record that shows the
sentencing judge considered Meippen's youth. The only question is whether his
sentence would have been different had the judge taken his youth into account. Thus,
we should order a reference hearing to deternnine if his sentence would have been
different if the sentencing judge had had the benefit of Houston-Sconiers at the time
of sentencing.
Today the majority improperly avoids addressing Houston-Sconiers'
retroactivity. But we must reach the issue of retroactivity, and we should hold that
Houston-Sconiers applies retroactively on collateral review. The majority also
incorrectly dismisses Meippen's petition. I would hold instead that Meippen has made
a prima facie showing of actual and substantial prejudice entitling him to a reference
hearing to determine whether Meippen can prove, by the preponderance of the
evidence, that the sentencing court's failure to consider youth actually and
substantially prejudiced him. Accordingly, I respectfully dissent.
14 In re Pers. Restraint of Meippen (Time Rikat), No. 95394-5 Wiggins, J., dissenting
cM)