IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint No. 86618-4-I Petition of
CHARLES BUKOVSKY, UNPUBLISHED OPINION
Petitioner.
BOWMAN, J. — In this personal restraint petition (PRP), Charles Andrew
Bukovsky seeks relief from the 2007 sentence the court imposed following his jury
conviction for murder in the second degree. Bukovsky argues that he is entitled to
resentencing under State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409
(2017), because the trial court did not consider the mitigating qualities of his youth
when it imposed his sentence. Because Bukovsky’s asserted claim of error is
subject to the one-year time limit for collateral attack under RCW 10.73.090(1), we
dismiss his PRP as untimely.
FACTS1
On September 5, 2006, Brian Lewis intervened in a fight between John
Gordon and a woman. The situation escalated when Gordon hit Lewis in the face.
As Lewis tried to run, Gordon punched him several times, causing him to fall to
1 We take the facts from the Supreme Court opinion on review of Bukovsky’s direct appeal, State v. Gordon, 172 Wn.2d 671, 260 P.3d 884 (2011), and repeat them only as necessary. No. 86618-4-I/2
the ground. Bukovsky and Gordon began punching and kicking Lewis while he
was on the ground, and they continued to punch and kick Lewis while one of their
friends held him in a choke hold. Lewis died in the ambulance on the way to the
hospital. Bukovsky was 17 years old at the time of the offense.
By amended information, the State charged Bukovsky with murder in the
second degree with the aggravating factors of deliberate cruelty and a particularly
vulnerable victim. The jury found Bukovsky guilty as charged, including the
aggravating factors. The standard range for the crime was 144 to 244 months of
confinement. At sentencing, the State recommended an exceptional sentence at
the high end of the standard range, plus 144 months for the aggravating factors,
for a total of 388 months of confinement. Bukovsky requested a low-end
standard-range sentence of 144 months.
Given the aggravating circumstances, the sentencing court accepted the
State’s recommendation and imposed an exceptional sentence of 388 months.
Our Supreme Court affirmed Bukovsky’s conviction and sentence on review of his
direct appeal.2 The Supreme Court entered a mandate on October 12, 2011.
In August 2018, Bukovsky filed a CrR 7.8 motion for relief from judgment in
Pierce County Superior Court. He requested resentencing in light of Houston-
Sconiers and State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), based on his
youth at the time he committed the crime. The trial court determined that the
matter was time barred and transferred it to Division Two of this court for
2 Gordon, 172 Wn.2d at 681-82.
2 No. 86618-4-I/3
consideration as a PRP. Division Two stayed consideration of the matter pending
our Supreme Court’s decisions in In re Personal Restraint of Ali, 196 Wn.2d 220,
474 P.3d 507 (2020), and In re Personal Restraint of Domingo-Cornelio, 196
Wn.2d 255, 474 P.3d 524 (2020).
After the Supreme Court issued its opinions for Ali and Domingo-Cornelio,
Division Two lifted its stay and remanded Bukovsky’s CrR 7.8 motion to the
superior court for further consideration of whether his motion was time barred.
Bukovsky argued that his motion was timely because Houston-Sconiers applied
retroactively under Ali and Domingo-Cornelio, and that the sentencing court’s
failure to meaningfully consider the mitigating factor of his youthfulness prejudiced
him.
On November 16, 2022, the superior court found that Bukovsky’s motion
was not time barred based on the retroactivity of Houston-Sconiers and granted
his motion for resentencing. But our Supreme Court then issued several opinions
that significantly clarified or altered its previous jurisprudence about resentencing
based on youthfulness, including In re Personal Restraint of Forcha-Williams, 200
Wn.2d 581, 520 P.3d 939 (2022), In re Personal Restraint of Williams, 200 Wn.2d
622, 520 P.3d 933 (2022), In re Personal Restraint of Hinton, 1 Wn.3d 317, 525
P.3d 156 (2023), and In re Personal Restraint of Carrasco, 1 Wn.3d 224, 525
P.3d 196 (2023).
On March 17, 2023, the State moved to dismiss Bukovsky’s CrR 7.8
motion or transfer the matter to this court as a PRP. The State argued that given
the Supreme Court’s recent opinions, the superior court should strike the
3 No. 86618-4-I/4
resentencing hearing because Bukovsky’s motion was now time barred. The
superior court agreed the motion was untimely and transferred the matter to this
court as a PRP.
ANALYSIS
Bukovsky argues that his PRP is timely under RCW 10.73.100(7) and
requires resentencing because the 2007 sentencing court erred by not
meaningfully considering the mitigating qualities of his youthfulness when it
imposed an exceptional sentence of 388 months. We disagree.
A petitioner challenging a judgment and sentence must file a PRP within
one year after the 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 bears the burden of showing that they timely filed the
PRP. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 832, 226 P.3d 208
(2010).
Bukovsky’s judgment and sentence became final when the Supreme Court
issued its mandate in 2011. See RCW 10.73.090(3)(b). So, under RCW
10.73.090(1), his claim is presumptively time barred unless he can show that his
judgment and sentence is facially invalid or that it was not entered by a court of
competent jurisdiction. Bukovsky does not make such a showing. But he can
avoid the time limit specified in RCW 10.73.090(1) if he can show that one of the
exceptions under RCW 10.73.100 apply, such as a significant change in the law.
4 No. 86618-4-I/5
RCW 10.73.100(7).3
Bukovsky contends that Houston-Sconiers constitutes a significant change
in the law that is material to his conviction under RCW 10.73.100(7) and that it
operates retroactively, exempting his petition from RCW
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint No. 86618-4-I Petition of
CHARLES BUKOVSKY, UNPUBLISHED OPINION
Petitioner.
BOWMAN, J. — In this personal restraint petition (PRP), Charles Andrew
Bukovsky seeks relief from the 2007 sentence the court imposed following his jury
conviction for murder in the second degree. Bukovsky argues that he is entitled to
resentencing under State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409
(2017), because the trial court did not consider the mitigating qualities of his youth
when it imposed his sentence. Because Bukovsky’s asserted claim of error is
subject to the one-year time limit for collateral attack under RCW 10.73.090(1), we
dismiss his PRP as untimely.
FACTS1
On September 5, 2006, Brian Lewis intervened in a fight between John
Gordon and a woman. The situation escalated when Gordon hit Lewis in the face.
As Lewis tried to run, Gordon punched him several times, causing him to fall to
1 We take the facts from the Supreme Court opinion on review of Bukovsky’s direct appeal, State v. Gordon, 172 Wn.2d 671, 260 P.3d 884 (2011), and repeat them only as necessary. No. 86618-4-I/2
the ground. Bukovsky and Gordon began punching and kicking Lewis while he
was on the ground, and they continued to punch and kick Lewis while one of their
friends held him in a choke hold. Lewis died in the ambulance on the way to the
hospital. Bukovsky was 17 years old at the time of the offense.
By amended information, the State charged Bukovsky with murder in the
second degree with the aggravating factors of deliberate cruelty and a particularly
vulnerable victim. The jury found Bukovsky guilty as charged, including the
aggravating factors. The standard range for the crime was 144 to 244 months of
confinement. At sentencing, the State recommended an exceptional sentence at
the high end of the standard range, plus 144 months for the aggravating factors,
for a total of 388 months of confinement. Bukovsky requested a low-end
standard-range sentence of 144 months.
Given the aggravating circumstances, the sentencing court accepted the
State’s recommendation and imposed an exceptional sentence of 388 months.
Our Supreme Court affirmed Bukovsky’s conviction and sentence on review of his
direct appeal.2 The Supreme Court entered a mandate on October 12, 2011.
In August 2018, Bukovsky filed a CrR 7.8 motion for relief from judgment in
Pierce County Superior Court. He requested resentencing in light of Houston-
Sconiers and State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), based on his
youth at the time he committed the crime. The trial court determined that the
matter was time barred and transferred it to Division Two of this court for
2 Gordon, 172 Wn.2d at 681-82.
2 No. 86618-4-I/3
consideration as a PRP. Division Two stayed consideration of the matter pending
our Supreme Court’s decisions in In re Personal Restraint of Ali, 196 Wn.2d 220,
474 P.3d 507 (2020), and In re Personal Restraint of Domingo-Cornelio, 196
Wn.2d 255, 474 P.3d 524 (2020).
After the Supreme Court issued its opinions for Ali and Domingo-Cornelio,
Division Two lifted its stay and remanded Bukovsky’s CrR 7.8 motion to the
superior court for further consideration of whether his motion was time barred.
Bukovsky argued that his motion was timely because Houston-Sconiers applied
retroactively under Ali and Domingo-Cornelio, and that the sentencing court’s
failure to meaningfully consider the mitigating factor of his youthfulness prejudiced
him.
On November 16, 2022, the superior court found that Bukovsky’s motion
was not time barred based on the retroactivity of Houston-Sconiers and granted
his motion for resentencing. But our Supreme Court then issued several opinions
that significantly clarified or altered its previous jurisprudence about resentencing
based on youthfulness, including In re Personal Restraint of Forcha-Williams, 200
Wn.2d 581, 520 P.3d 939 (2022), In re Personal Restraint of Williams, 200 Wn.2d
622, 520 P.3d 933 (2022), In re Personal Restraint of Hinton, 1 Wn.3d 317, 525
P.3d 156 (2023), and In re Personal Restraint of Carrasco, 1 Wn.3d 224, 525
P.3d 196 (2023).
On March 17, 2023, the State moved to dismiss Bukovsky’s CrR 7.8
motion or transfer the matter to this court as a PRP. The State argued that given
the Supreme Court’s recent opinions, the superior court should strike the
3 No. 86618-4-I/4
resentencing hearing because Bukovsky’s motion was now time barred. The
superior court agreed the motion was untimely and transferred the matter to this
court as a PRP.
ANALYSIS
Bukovsky argues that his PRP is timely under RCW 10.73.100(7) and
requires resentencing because the 2007 sentencing court erred by not
meaningfully considering the mitigating qualities of his youthfulness when it
imposed an exceptional sentence of 388 months. We disagree.
A petitioner challenging a judgment and sentence must file a PRP within
one year after the 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 bears the burden of showing that they timely filed the
PRP. In re Pers. Restraint of Quinn, 154 Wn. App. 816, 832, 226 P.3d 208
(2010).
Bukovsky’s judgment and sentence became final when the Supreme Court
issued its mandate in 2011. See RCW 10.73.090(3)(b). So, under RCW
10.73.090(1), his claim is presumptively time barred unless he can show that his
judgment and sentence is facially invalid or that it was not entered by a court of
competent jurisdiction. Bukovsky does not make such a showing. But he can
avoid the time limit specified in RCW 10.73.090(1) if he can show that one of the
exceptions under RCW 10.73.100 apply, such as a significant change in the law.
4 No. 86618-4-I/5
RCW 10.73.100(7).3
Bukovsky contends that Houston-Sconiers constitutes a significant change
in the law that is material to his conviction under RCW 10.73.100(7) and that it
operates retroactively, exempting his petition from RCW 10.73.090(1)’s one-year
time bar. He also contends that the trial court’s failure to consider the required
factors of his youth at sentencing “demonstrated actual and substantial prejudice.”
In Houston-Sconiers, our Supreme Court held that the Eighth Amendment
to the United States Constitution requires a sentencing court to “consider
mitigating qualities of youth at sentencing,” and so the court “must have discretion
to impose any sentence below the otherwise applicable SRA[4] range and/or
sentence enhancements.” 188 Wn.2d at 20-21. But in later decisions, the court
clearly distinguished between the substantive and procedural rules announced in
Houston-Sconiers.
The Houston-Sconiers substantive rule, which applies retroactively on
collateral review, provides that “courts may not impose ‘certain adult sentences
. . . on juveniles who possess such diminished culpability that the adult standard
SRA ranges and enhancements would be disproportionate punishment.’ ” Hinton,
3 RCW 10.73.100(7) provides that the one-year time bar under RCW 10.73.090(1) does not apply when [t]here has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard. 4 Sentencing Reform Act of 1981, chapter 9.94A RCW.
5 No. 86618-4-I/6
1 Wn.3d at 323, 328-295 (quoting Ali, 196 Wn.2d at 239). The Houston-Sconiers
procedural rule, which effectuates the substantive rule and does not apply
retroactively, provides that “ ‘sentencing courts must consider the mitigating
qualities of youth and have discretion to impose sentences below what the SRA
mandates.’ ” Id. at 323, 329 (quoting Ali, 196 Wn.2d at 237).
Our Supreme Court further clarified that a violation of the Houston-Sconiers
procedural rule does not constitute per se prejudice on collateral review. Forcha-
Williams, 200 Wn.2d at 599. “Rather, a petitioner must show by a preponderance
of the evidence that his sentence would have been shorter if the sentencing judge
complied with Houston-Sconiers.” Id. So, to avoid the one-year time bar for
collateral attack of a judgment and sentence, Bukovsky must establish a violation
of Houston-Sconiers’ substantive rule by showing that he possessed such
diminished culpability at the time of the crime that his sentence amounted to
disproportionate punishment. See Hinton, 1 Wn.3d at 331; see also In re Pers.
Restraint of Rodriguez, 29 Wn. App. 2d 17, 19-20, 539 P.3d 849 (2023) (PRP
time-barred where petitioner did not assert a violation of Houston-Sconiers’
substantive rule).
Here, Bukovsky does not allege that his youth diminished his culpability.
Instead, he mainly relies on Ali and Domingo-Cornelio to assert that the
sentencing court’s failure to meaningfully consider the mitigating factors of his
youth was per se prejudicial. But a violation of Houston-Sconiers’ procedural
mandate “does not lead to the conclusion that [Bukovsky] is serving an
5 Alteration in original.
6 No. 86618-4-I/7
unconstitutional sentence under the Eighth Amendment.” Carrasco, 1 Wn.3d at
237. Because Bukovsky does not allege a violation of Houston-Sconiers’
substantive rule, he has failed to establish that Houston-Sconiers applies
retroactively to his claim. Bukovsky’s claim of procedural error under Houston-
Sconiers is time barred.6
Still, Bukovsky asks us to disregard Forcha-Williams and Hinton because
he believes our Supreme Court incorrectly decided those cases. But we are
bound by the Washington Supreme Court’s decisions. State v. Mandefero, 14
Wn. App. 2d 825, 832, 473 P.3d 1239 (2020); State v. Gore, 101 Wn.2d 481, 486-
87, 681 P.2d 227 (1984). Bukovsky’s PRP remains untimely.
Bukovsky seeks resentencing only on the basis that the sentencing court
violated Houston-Sconiers’ procedural rule, so RCW 10.73.100(7) does not
exempt his PRP from the one-year time bar under RCW 10.73.090(1).
Accordingly, we dismiss his PRP as untimely.
WE CONCUR:
6 As a result, we do not reach his argument that the 2007 sentencing court erred by not meaningfully considering the mitigating qualities of his youthfulness when it imposed an exceptional sentence of 388 months.