In Re The Personal Restraint Petition Of Thomas Wayne Mounts

• Court: Court of Appeals of Washington
• Decided: April 25, 2023
• Docket: 51046-4
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

April 25, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the No. 51046-4-II Personal Restraint Petition of:

THOMAS WAYNE MOUNTS, UNPUBLISHED OPINION

Petitioner.

MAXA, J. – Thomas Wayne Mounts seeks relief from personal restraint imposed

following his 2004 convictions for first degree kidnapping, first degree assault, and first degree

unlawful possession of a firearm. The trial court imposed a 360 month sentence, which included

a mandatory 60-month firearm sentencing enhancement.

Mounts, who was 19 years old when he committed these crimes, argues in his personal

restraint petition (PRP) that he is entitled to be resentenced because the trial court did not

consider the mitigating qualities of youth before imposing his sentence. He also challenges the

constitutionality of his mandatory 60-month firearm sentencing enhancement.

We hold that (1) Mounts’ sentencing claim is time barred because he cannot establish that

either the significant change in the law or the newly discovered evidence exceptions to the time

bar apply to his sentencing claim, and (2) we decline to consider Mounts’ firearm enhancement

claim because the untimeliness of the sentencing claim renders this PRP a mixed petition.

Accordingly, we dismiss this PRP.

FACTS

In January 2004, 19-year-old Mounts and others robbed and assaulted two people and

kidnapped one of those people. Mounts pled guilty to the amended charges of first degree No. 51046-4-II

kidnapping, first degree assault, and first degree unlawful possession of a firearm. In June 2004,

the trial court imposed a sentence of 360 months, which included a mandatory 60-month firearm

sentencing enhancement.

Mounts appealed his convictions, and this court affirmed. State v. Mounts, 130 Wn. App.

219, 220, 122 P.3d 745 (2005). The appeal mandated on April 9, 2007.

In August 2017, Mounts filed a CrR 7.8 motion in the trial court, which was transferred

to this court as a PRP. In this motion, Mounts argued that he was entitled to be resentenced

because the trial court had sentenced him without considering his youth. He further argued that

this PRP was not subject to the one-year time bar because State v. O’Dell, 183 Wn.2d 680, 358

P.3d 359 (2015), was a significant, material, retroactive change in the law. This court stayed

Mounts’ PRP pending Supreme Court decisions in two cases.

After this court lifted the stay, Mounts filed an amended PRP in December 2018 in which

he abandoned his original time bar arguments and argued that his PRP was not time barred

because the newly discovered evidence exception to the time bar applied. He asserted that this

newly discovered evidence consisted of recent developments in brain science regarding late

adolescents. In support of this claim, Mounts submitted an August 2018 declaration from

Dr. Laurence Steinberg. This court again stayed the PRP pending a Supreme Court decision.

After this court lifted the stay, Mounts filed a second amended PRP in September 2021.

In this PRP, Mounts again asserts that he was entitled to be resentenced based on the trial court’s

failure to consider his youth at sentencing. He contends that this issue is not time barred under

the significant change in the law and the newly discovered evidence exceptions to the one-year

time bar. In addition, Mounts challenges his 60-month firearm sentencing enhancement, arguing

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that he is entitled to resentencing because the mandatory firearm enhancement statute is

unconstitutional as applied to a late adolescent.

ANALYSIS

A. PRP TIME BAR

RCW 10.73.090(1) provides that a petitioner generally must file a PRP within one year

after their facially valid judgment and sentence becomes final. However, RCW 10.73.100 lists

six exceptions to the one-year time limit. These include:

(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the [PRP] or motion; (2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant’s conduct;

.... (6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence . . . , 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.

RCW 10.73.100(1), (2), (6).

If a PRP raises one or more claims that fall within one of these statutory exceptions but

also raises one or more claims that are time barred, the PRP is a “mixed petition” that must be

dismissed. In re Pers. Restraint of Young, 21 Wn. App. 2d 826, 830, 508 P.3d 687 (2022).

B. TIME BAR EXCEPTIONS INAPPLICABLE TO SENTENCING CLAIM

Mounts argues that his sentencing claim is not time barred because both the significant

change in the law exception under RCW 10.73.100(6) and the newly discovered evidence

exception under RCW 10.73.100(1) apply. We disagree.

3 No. 51046-4-II

1. Significant Change in the Law Exception

Under RCW 10.73.100(6), the time bar does not apply if the PRP is “[1] based on a

significant change in the law, [2] which is material to the conviction or sentence, and [3]

sufficient reasons exist to require retroactive application of the changed legal standard.” In re

Pers. Restraint of Ali, 196 Wn.2d 220, 233, 474 P.3d 507 (2020), cert. denied, 141 S. Ct. 1754

(2021).

Mounts argues that State v. Houston-Sconiers, 188 Wn.2d 1, 34, 391 P.3d 409 (2017), is

a significant, material, retroactive change in the law that is applicable to him through In re

Personal Restraint of Monschke, 197 Wn.2d 305, 329, 482 P.3d 276 (2021), which he contends

extended Houston-Sconiers to young adult offenders such as himself.

The Supreme Court has held that Houston-Sconiers is a significant change in the law that

applies retroactively to certain claims. Ali, 196 Wn.2d at 233-35; but see In re Pers. Restraint of

Hinton, ___ Wn.3d ___, 525 P.3d 156, 161-62 (2023) (holding that a part of the rule stated in

Houston-Sconiers is procedural and does not apply retroactively). But RCW 10.73.100(6)

applies here only if Houston-Sconiers is material to Mounts’ sentence. Young, 21 Wn. App. 2d

at 831. Houston-Sconiers is not material here because the Supreme Court has expressly limited

the holding in Houston-Sconiers to juvenile defendants, and Mounts was not a juvenile when he

committed his offenses. Id. at 831-32.

And Mounts’ assertion that Monschke has extended Houston-Sconiers to young adult

offenders has no merit. The Supreme Court has held that Monschke is only material to young

adult offenders who were convicted under the aggravated murder statute and sentenced to

mandatory life sentences. In re Pers. Restraint of Kennedy, 200 Wn.2d 1, 24-25, 513 P.3d 769

(2022).

4 No. 51046-4-II

Accordingly, we conclude that the RCW 10.73.100(6) significant change in the law

exception to the time bar does not apply to Mounts’ sentencing claim.

2. Newly Discovered Evidence Exception

Mounts argues that the newly discovered evidence exception to the time bar applies. The

alleged newly discovered evidence involves a growing understanding that the still developing

brains of late adolescents affect their culpability for crimes.

To satisfy the newly discovered evidence exception under RCW 10.73.100(1), a

petitioner must present evidence that “ ‘(1) will probably change the result of the trial, (2) was

discovered since the trial, (3) could not have been discovered before trial by the exercise of due

diligence, (4) is material, and (5) is not merely cumulative or impeaching.’ ” Kennedy, 200

Wn.2d at 13 (quoting In re Pers. Restraint of Fero, 190 Wn.2d 1, 15, 409 P.3d 214 2018)).

In addition, the petitioner also must show that he “acted with reasonable diligence in

discovering the evidence and filing the petition.” RCW 10.73.100(1).

Here, Mounts focuses only on whether evidence regarding the brain development of late

adolescents could have been discovered before his sentencing and whether the evidence was

material. He relies on Steinberg’s declaration regarding the increasing knowledge in the

scientific community over the previous 15 years. He also argues that a key scientific article on

which this court relied in an earlier case was not published until June 2004, and this article was

not available until after his June 3, 2004 sentencing.

The Supreme Court’s decision in Kennedy undermines Mounts’ newly discovered

evidence claim. In that case, the court rejected a newly discovered evidence claim based on the

same declaration from Steinberg. 200 Wn.2d at 13-18. Although that case involved a 2007

sentencing rather than the 2004 sentencing here, the court noted that Steinberg’s declaration

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suggested that research and understanding regarding the development of late adolescent brains

existed as early as 2003. Id. at 18.

However, even if this brain science evidence was newly discovered, in neither of

Mounts’ amended PRPs does he address whether this evidence probably would change the result

of the sentencing. This is an essential element of the RCW 10.73.100(1) exception. Id. at 13,

18. We cannot speculate whether the evidence on which Mounts relies would have resulted in a

different sentence. See id. at 20 (“It is entirely speculative whether the additional studies

Kennedy points to would have persuaded the trial court to impose a mitigated sentence below the

standard range.”).

Further, Mounts does not address the reasonable diligence requirement. The one-year

time period started to run when Mounts’ appeal mandated in 2008, RCW 10.73.090(3)(b), and

Mounts did not raise this claim until more than 10 years later in his amended PRP. Mounts does

not explain why it took more than 14 years after his sentencing to discover a scientific article

published in 2004 or to raise this claim, particularly in light of the fact that beginning in 2005 the

United States Supreme Court issued a series of cases explaining advances in adolescent brain

development. See id., 200 Wn.2d at 15.

Because Mounts does not show that his sentencing claim is subject to any exception to

the time bar, we hold that this claim was untimely.

C. FIREARM SENTENCING ENHANCEMENT

Mounts challenges his 60-month firearm sentencing enhancement. He argues that

firearm sentencing enhancements are unconstitutional as applied to late adolescents and that the

unconstitutional statute exception to the time bar, RCW 10.73.100(2), applies. Because we hold

6 No. 51046-4-II

that Mounts’ sentencing claim is time barred, this PRP is a mixed petition and must be dismissed

without reaching this claim.

CONCLUSION

We dismiss Mounts’ PRP as a mixed petition.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

MAXA, J.

We concur:

GLASGOW, C.J.

CHE, J.