In the Matter of the Personal Restraint of: Lyle Roetcisoender, Jr.

• Court: Court of Appeals of Washington
• Decided: February 27, 2025
• Docket: 39536-7
• Status: Unpublished

Opinion

FILED FEBRUARY 27, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Personal Restraint of ) ) No. 39536-7-III ) LYLE ROETCISOENDER, JR., ) ) Petitioner. ) ) UNPUBLISHED OPINION

COONEY, J. — Through this personal restraint petition (PRP), Lyle Roetcisoender

Jr. challenges the sentence imposed following his 1988 conviction for first degree

kidnapping, committed when he was 16 years old. Mr. Roetcisoender asserts his

sentence is unconstitutional because (1) it imposed a life sentence on a juvenile offender

for a nonhomicidal offense, (2) was ordered without consideration of his age, and

(3) failed to explicitly set a minimum term of confinement. Mr. Roetcisoender also

contends the judgment and sentence is invalid on its face because it imposed an

indeterminate life sentence with no minimum term in violation of the Sentencing Reform

Act of 1981 (SRA), chapter 9.94A RCW. No. 39536-7-III In re PRP of Roetcisoender, Jr.

We disagree with Mr. Roetcisoender’s arguments and hold that RCW 9.94A.730 is

an adequate alternative remedy because it eliminates the claimed constitutional infirmity.

Accordingly, we deny Mr. Roetcisoender’s petition.

BACKGROUND

The facts underlying Mr. Roetcisoender’s conviction are largely immaterial

as this PRP challenges his sentence, not his conviction. In short, on July 29, 1987,

Mr. Roetcisoender abducted a two-and-a-half-year-old girl from her front yard. He was

16 years old at the time of the offense. Under a nearby bridge, Mr. Roetcisoender “beat

her in the head with rocks and also beat her head against rocks,” molested her, and left

her “naked and unconscious under the water of the stream flowing under the bridge by

wedging her left foot in a crevice so that her body and head trailed in the current under

water.” Br. of Pet’r, Ex. 6 at 1.

Mr. Roetcisoender was charged with first degree kidnapping and second degree

attempted murder. While awaiting trial, Mr. Roetcisoender had two mental health

evaluations that revealed severe cognitive limitations. According to school records

provided to the psychologist, Mr. Roetcisoender had “been in special education since the

first grade,” and his academic performance was at or below the fifth-grade level near the

time he committed the offenses. Br. of Pet’r, Ex. 3 at 1.

2 No. 39536-7-III In re PRP of Roetcisoender, Jr.

Following a jury trial, Mr. Roetcisoender was found guilty of first degree

kidnapping and not guilty of second degree attempted murder. However, the jury

returned a guilty verdict on the lesser included crime of second degree assault.

On March 22, 1988, Mr. Roetcisoender was given an exceptional sentence of life

imprisonment on the first degree kidnapping charge and 14 months on the second degree

assault charge. The court further ordered:

The defendant shall be educated to the fullest extent of the State of Washington while incarcerated. He shall receive such psycho-therapeutic treatment as is available and appropriate in the Department of Corrections to rehabilitate him during his incarceration. When there is convincing evidence of the defendant's rehabilitation, the subject of his release may be addressed as provided by the law related to commutations and pardons, by the Clemency and Pardons Board, provided the defendant has served a minimum term of 108 months, including credit for time served of 234 days.

Br. of Pet’r, Ex. 5 at 3.

In ordering an exceptional sentence, the trial court found that during the

commission of the kidnapping, Mr. Roetcisoender’s conduct (1) “manifested a deliberate

cruelty to the victim,” (2) that he “knew that the victim was particularly vulnerable and

incapable of resistance due to her age and body size,” and (3) “under operation of the

multiple offense policy,” the presumptive sentence would be “clearly too lenient in light

of the purposes of the [SRA].” Br. of Pet’r, Ex. 6 at 3. The sentencing court found no

mitigating factors.

3 No. 39536-7-III In re PRP of Roetcisoender, Jr.

Mr. Roetcisoender appealed his convictions on June 22, 1989. This court

affirmed.

In 2021, confusion arose among staff at the Department of Corrections

(DOC) regarding Mr. Roetcisoender’s eligibility to petition for early release pursuant to

RCW 9.94A.730. The confusion was based on Mr. Roetcisoender being designated in

the DOC’s system as serving a life sentence. The DOC inquired of the Washington

Attorney General’s Office (AGO) whether Mr. Roetcisoender could petition for release

under RCW 9.94A.730 or whether a resentencing was necessary. Although the AGO

noted that the court “should have imposed a specific amount of months or years, not just

‘life’” and that it was not “clear . . . whether this specific order has any legal effect,” the

AGO nevertheless opined Mr. Roetcisoender was eligible to petition for release under

RCW 9.94A.730. Reply Br. of Pet’r, Ex. 1 at 8.

The DOC followed the AGO’s guidance and deemed Mr. Roetcisoender eligible to

petition for release under RCW 9.94A.730. However, Mr. Roetcisoender’s efforts to

petition for release were thwarted because the DOC had listed “LIFE” as his minimum

term and his early release date. Reply Br. of Pet’r, Ex. 1 at 4. To resolve the issue, the

DOC arbitrarily changed Mr. Roetcisoender’s minimum term from life to 999 years.

In June 2022, after serving “approximately 409 months plus 234 days of jail time,”

Mr. Roetcisoender was given a hearing before the Indeterminate Sentence Review Board

4 No. 39536-7-III In re PRP of Roetcisoender, Jr.

(ISRB) in accordance with RCW 9.94A.730. Supp. Br. of Pet’r, Ex. 1 at 1, 3. At the

conclusion of the hearing, the ISRB found:

Based on the burden of proof set out in RCW 9.94A.730 and the totality of evidence and information provided to the Board, the Board does find by a preponderance of the evidence that Mr. Roetcisoender is more likely than not to commit any new criminal law violations if released on conditions. Consequently, the Board finds Mr. Roetcisoender not releasable. Mr. Roetcisoender can re-submit a petition for review in 48 months.

Supp. Br. of Pet’r, Ex. 1 at 1. The ISRB denied release, citing: (1) Mr. Roetcisoender’s

failure to participate in the Sex Offender Treatment Assessment Program,

(2) Mr. Roetcisoender’s significant mental health problems “related to his crime of

conviction and a potential risk of re-offense,” (3) Mr. Roetcisoender experiencing a great

deal of anxiety over moving to a “more open living unit,” (4) Mr. Roetcisoener

demonstrating no insight into offending behavior, and (5) the unlikeliness that conditions

of release would sufficiently reduce the risk of Mr. Roetcisoender reoffending. Supp. Br.

of Pet’r, Ex. 1 at 2. The ISRB recommended referring Mr. Roetcisoender to sex offender

treatment as soon as possible and allowed him to petition for release again in June 2026.

ANALYSIS

Mr. Roetcisoender brings a collateral challenge to his life sentence through this

PRP. A PRP is an extraordinary form of relief that requires the petitioner to “meet a high

standard before this court will disturb an otherwise settled judgment.” In re Pers.

Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A PRP petitioner who had

5 No. 39536-7-III In re PRP of Roetcisoender, Jr.

a “prior opportunity for judicial review must show that they were actually and

substantially prejudiced by constitutional error or that their trials suffered from a

fundamental defect of a nonconstitutional nature that inherently resulted in a complete

miscarriage of justice.” Coats, 173 Wn.2d at 132; In re Pers. Restraint of Isadore, 151

Wn.2d 294, 299, 88 P.3d 390 (2004); Cook, 114 Wn.2d at 810-12. These standards are

grounded in the court’s interest in economy, finality, and integrity of the trial process,

and the petitioner’s prior access to judicial review. In re Pers. Restraint of Meippen, 193

Wn.2d 310, 315, 440 P.3d 978 (2019).

Moreover, a PRP will only be granted “if other remedies which may be available

to the petitioner are inadequate under the circumstances.” RAP 16.4(d). Here, among

other arguments, the State asserts that RCW 9.94A.730 provides Mr. Roetcisoender

an adequate alternative remedy. To constitute an adequate alternative remedy under

RAP 16.4(d), RCW 9.94A.730 must mitigate or eliminate the error identified by the

petitioner. See In re Pers. Restraint of Ali, 196 Wn.2d 220, 244-45, 474 P.3d 507 (2020).

JUVENILE LIFE SENTENCE

Mr. Roetcisoender asserts the sentence is unconstitutional because it imposed a

life sentence against a juvenile offender, was entered without consideration of his age,

and failed to explicitly set a minimum term of confinement.

After Mr. Roetcisoender filed this PRP, the Washington State Supreme Court

decided In re Pers. Restraint of Hinton, 1 Wn.3d 317, 525 P.3d 156 (2023). In Hinton,

6 No. 39536-7-III In re PRP of Roetcisoender, Jr.

17-year-old Mr. Hinton shot two people, killing one and seriously injuring the other. Id.

at 321. Mr. Hinton was tried as an adult and later convicted of second degree murder and

attempted second degree murder. Id. at 322. Through a PRP, Mr. Hinton challenged his

37-year adult sentence, arguing it violated the Eighth Amendment to the United States

Constitution because it did not comply with the constitutional mandate of Houston-

Sconiers.1 Id. at 325. In rejecting Mr. Hinton’s arguments, the Supreme Court held that

only Houston-Sconiers’s substantive rule applies retroactively on collateral review and,

even if the sentencing court violated Houston-Sconiers’s substantive rule, RCW

9.94A.730 was an adequate alternative remedy. Id. at 324.

In Houston-Sconiers, the Supreme Court created the substantive rule 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.” Ali, 196 Wn.2d at 239. “Substantive rules” are rules that

“‘set forth categorical constitutional guarantees that place certain criminal laws and

punishments altogether beyond the State’s power to impose’ including a prohibition

against “‘a certain category of punishment for a class of defendants because of their

status or offense.’” Id. at 237 (quoting Montgomery v. Louisiana, 577 U.S. 190, 136 S.

Ct. 718, 193 L. Ed. 2d 599 (2016)).

1 State v. Houston-Sconiers, 188 Wn.2d 139, 1 P.3d 409 (2017).

7 No. 39536-7-III In re PRP of Roetcisoender, Jr.

To effectuate the substantive rule, Houston-Sconiers also established the

procedural rule that “sentencing courts must consider the mitigating qualities of youth

and have discretion to impose sentences below what the SRA mandates.” Id. On

collateral review, a new rule is only given retroactive application if it is a new substantive

rule of constitutional law. Hinton, 1 Wn.3d at 329. “‘New procedural rules do not apply

retroactively on . . . collateral review.’” Id. (quoting Edwards v. Vannoy, 593 U.S. 255,

141 S. Ct. 1547, 1560, 209 L. Ed. 2d 651 (2021)).

Although, here, Houston-Sconiers’s substantive rule would apply retroactively, the

State argues we should deny Mr. Roetcisoender’s PRP because RCW 9.94A.730 has

resolved any constitutional defect in his original sentence by converting Mr.

Roetcisoender’s life sentence to a 20-year to life sentence. Accordingly, the State claims

Mr. Roetcisoender has an adequate alternative remedy that precludes relief through a

PRP. We agree with the State.

RCW 9.94A.730 grants those sentenced to lengthy prison terms as juveniles

the right to petition the ISRB for early release after serving at least 20 years.

RCW 9.94A.730(1); In re Pers. Restraint of Dodge, 198 Wn.2d 826, 839, 502 P.3d 349

(2022). At the hearing, the ISRB “shall order the person released” unless it “determines

by a preponderance of the evidence that . . . it is more likely than not that the person will

commit new criminal law violations if released.” RCW 9.94A.730(3); Dodge, 198

Wn.2d at 841. Should the ISRB deny an offender release, the offender may file “a new

8 No. 39536-7-III In re PRP of Roetcisoender, Jr.

petition for release five years from the date of denial or at an earlier date as may be set by

the [ISRB].” RCW 9.94A.730(7).

Like Hinton, RCW 9.94A.730 has effectively remedied Mr. Roetcisoender’s

alleged violation of Houston-Sconiers’s substantive rule. The only mandatory portion of

Mr. Roetcisoender’s sentence is the minimum 20-year term set by RCW 9.94A.730. Any

additional time Mr. Roetcisoender serves beyond the minimum term is a period of

incarceration directly tied to his rehabilitation. In re Pers. Restraint of Forcha-Williams,

200 Wn.2d 581, 599, 520 P.3d 939 (2022). Mr. Roetcisoender’s life sentence has been

converted to an indeterminate sentence of 20 years to life, specifically designed for

juvenile offenders. RCW 9.94A.730 is an adequate alternative remedy to Mr.

Roetcisoender’s claimed constitutional violation.

EXHAUSTION OF THE ALTERNATIVE REMEDY

Mr. Roetcisoender disagrees that RCW 9.94A.730 is an adequate alternative

remedy because he has already been denied release by the ISRB and cannot make a

new petition until 2026. Because he is ineligible to immediately petition the ISRB,

Mr. Roetcisoender contends that he has exhausted all alternative remedies other than a

PRP. We disagree.

Mr. Roetcisoender confuses his availability for release with actual release.

We will only grant relief by a PRP if other remedies are inadequate under the

circumstances. RAP 16.4(d). As discussed above, if the ISRB denies an offender

9 No. 39536-7-III In re PRP of Roetcisoender, Jr.

release, RCW 9.94A.730(7) entitles the offender to “file a new petition for release

five years from the date of denial or at an earlier date as may be set by the board.”

Here, the ISRB authorized Mr. Roetcisoender to file a new petition in June 2026, 48

months from the denial of his petition for release. With an anticipated hearing in June

2026, Mr. Roetcisoender has an adequate remedy available under his unique

circumstances.

FACIAL INVALIDITY OF JUDGMENT AND SENTENCE

Mr. Roetcisoender next argues that his judgment and sentence is invalid on

its face because it violates the SRA. Specifically, Mr. Roetcisoender posits that former

RCW 9.94A.120(3)2 (1987) required that all sentences outside the standard range be

determinate sentences. He directs us to the definition of “determinate sentence” found in

former RCW 9.94A.030(10) 3 (1987). This statute defines a “determinate sentence” as

one that “states with exactitude the number of actual years, months, or days of total

confinement.” RCW 9.94A.030(10) 4 (1987). Mr. Roetcisoender argues he was given an

indeterminate sentence because his sentence of life without parole does not state with

exactitude the actual number of years, months, or days of confinement.

2 Recodifed as RCW 9.94A.505 (LAWS OF 2011, ch. 338). 3 Recodifed as RCW 9.94A.030(18) (LAWS OF 2011, ch. 338). 4 Recodifed as RCW 9.94A.030(18) (LAWS OF 2011, ch. 338).

10 No. 39536-7-III In re PRP of Roetcisoender, Jr.

A judgment is “invalid” if the trial court exercised power that it did not have, most

typically by imposing a sentence not authorized by law. In re Pers. Restraint of Flippo,

187 Wn.2d 106, 110, 385 P.3d 128 (2016). To prevail in a PRP on a claim that a

judgment and sentence is invalid on its face based on an alleged nonconstitutional error,

the petitioner must show a fundamental defect resulting in a complete miscarriage of

justice. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d 335 (2007); In re

Isadore, 151 Wn.2d at 299; Cook, 114 Wn.2d at 810-12. In determining whether a facial

sentencing error is prejudicial, the court looks to the practical effects resulting from the

error. In re Pers. Restraint of Yates, 180 Wn.2d 33, 41, 321 P.3d 1195 (2014).

Even if Mr. Roetcisoender could establish his life sentence is indeterminate

and violative of former RCW 9.94A.120 constituting a fundamental defect, as

discussed above, he is unable to demonstrate a resulting complete miscarriage of justice.

RCW 9.94A.730 has effectively reduced his life sentence to an indeterminate sentence of

20 years to life. Any incarceration Mr. Roetcisoender has served beyond the minimum

term is directly tied to his rehabilitation.

11 No. 39536-7-III In re PRP of Roetcisoender, Jr.

TERM OF COMMUNITY CUSTODY

Mr. Roetcisoender next argues that RCW 9.94A.730 is not an adequate alternative

remedy because he would be subject to lifetime community custody even if he was

released by the ISRB. We disagree.

Mr. Roetcisoender’s argument is premised on the assumption that he will be

subject to a lifetime of community custody once released by the ISRB. Alternatively,

Mr. Roetcisoender speculates that once released from confinement, the ISRB could return

him “to the institution for up to the remainder of the court-imposed term of

incarceration.” RCW 9.94A.730(8).

A PRP must be based on “more than speculation [or] conjecture.” In re Pers.

Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). “If the ISRB grants

release, the defendant is subject to Department of Corrections community custody for a

period of time determined by the ISRB, up to the length of the court-imposed term of

incarceration.” In re Pers. Restraint of Brooks, 197 Wn.2d 94, 99, 480 P.3d 399 (2021).

Because Mr. Roetcisoender’s term of community custody may be reduced, his

claimed error is premature. Should Mr. Roetcisoender be subject to unlawful restraint

through either a lifetime of community custody or returned “to the institution for up to

the remainder of the court-imposed term of incarceration,” his remedy is to file a PRP.

RCW 9.94A.730(8). Moreover, if Mr. Roetcisoender is released by the ISRB and later

returned to the institution, he would again be eligible to petition the ISRB for release

12 No. 39536-7-III In re PRP of Roetcisoender, Jr.

“five years from the date of return to the institution or at an earlier date as may be set by

the board.” RCW 9.94A.730(8).

CONCLUSION

RCW 9.94A.730 is an adequate alternative remedy that eliminates Mr.

Roetcisoender’s claim that his sentence is unconstitutional. Additionally, even if Mr.

Roetcisoender’s judgment and sentence is invalid on its face, he cannot demonstrate a

resulting complete miscarriage of justice because of RCW 9.94A.730. Consequently, we

deny Mr. Roetcisoender’s PRP.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

Cooney, J.

I CONCUR:

Lawrence-Berrey, C.J.

13 No. 39536-7-III FEARING, J. (Dissent) —

The facts of this case are devastating and heinous, honestly. Oral argument of Jodi Hammond, State of Washington’s counsel at 18:47 to 18:53.

The trouble with his superpredator forecast, he [John J. DiIulio, while disavowing his popularizing of the superpredator theory,] told Retro Report, is that “once it was out there, there was no reeling it in. Haberman, Clyde “When Youth Violence Spurred ‘Superpredator’ Fear,” The New York Times (April 6, 2014).

Disbelief, anger, and resistance met the United States Supreme Court’s epochal

decision in Brown v. Board of Education of Topeka, Shawnee County, Kansas, 347 U.S.

483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). State and local governments expended

extraordinary efforts to ignore, skirt, and defy the high Court’s ruling that integrated

public schools. Lower courts and later United States Supreme Court benches designed to

weaken the demands of the monumental decision.

Mistrust, skepticism, annoyance, antagonism, and defiance has also greeted the

United States Supreme Court watershed opinions in Miller v. Alabama, 567 U.S. 460, No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) and Montgomery v. Louisiana, 577 U.S. 190,

136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) and the Washington Supreme Court’s seminal

decision in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). The State has

spent exceptional efforts and formulated endless arguments envisioned to destroy the

promises found in the three towering decisions. Lower courts and later Washington

Supreme Court panels have fabricated specious arguments in order to dilute, if not

demolish, the imperatives of the three decisions that recognize the diminished culpability

of youth and disdain lengthy and sometimes lifetime punishment for the state’s youth. In

turn, the Washington criminal justice system rejects brain science because that science

fails to support a cherished world view that crime must be punished and heinous crime

must be ruthlessly punished.

This court’s response to Lyle Roetcisoender’s personal restraint petition represents

another fissure in the teaching, promise, holdings, and mandates from Miller v. Alabama,

Montgomery v. Louisiana, and State v. Houston-Sconiers. In 1988, Roetcisoender

received a lifetime sentence with the possibility of commutation or pardon, but not

parole, for first degree kidnapping and fourth degree assault committed at age 16.

Roetcisoender, with an I.Q. of 65 in 1987 and 53 in 2020, has spent thirty-seven years

incarcerated without any realistic chance of release.

In denying Lyle Roetcisoender relief, this court’s majority, in addition to the State,

fails to answer many imperative questions. What is the typical sentence meted for

kidnapping? Does the law permit a youth to receive a harsher sentence for a crime than

2 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

an adult would receive? Why, despite being a youth with an intellectual disability, did

Roetcisoender receive the highest possible adult penalty? Does the sentencing court’s

lifetime sentence with the possibility of pardon or commutation, but with no mention of

parole, make sense? Was the sentence imposed on Roetcisoender in 1988 a valid

sentence? If the Washington Supreme Court decision in State v. Bassett, 192 Wn.2d 67,

428 P.3d 343 (2018) bars a life sentence for any youth committing any crime, including

aggravated first degree murder, why does Roetcisoender remain incarcerated? Why has

the State refused to follow State v. Bassett and strike Roetcisoender’s life sentence?

What steps has the Department of Corrections (DOC) taken to rehabilitate

Roetcisoender? What must Roetcisoender accomplish to obtain release? What treatment

has DOC denied Roetcisoender because the DOC record insists that Roetcisoender is

serving a life sentence with the possibility of parole? When will Roetcisoender ever be

released from prison? Will Roetcisoender ever be released? Is there a likelihood that

Roetcisoender will spend the rest of his life in prison? Would Roetcisoender have

already been released from prison if he committed the crime as an adult? Has any court

or government agency ever considered the Miller factors in Roetcisoender’s case when

both United States Supreme Court and Washington Supreme Court cases demand

resentencing based on these factors? Would Roetcisoender have already been released

under the Miller-fix statute if he had committed murder? How will Roetcisoender ever

gain release when his low I.Q. interferes in his treatment and rehabilitation? What

purpose is served by keeping Roetcisoender in prison other than retribution? If

3 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Roetcisoender remains a danger to the community, do other means of protecting the

community exist other than caging him for the rest of his life? Would other means be

less expensive and promote rehabilitation?

I agree with Lyle Roetcisoender’s arguments that his 1988 sentence constitutes an

unconstitutional de jure and de facto life sentence. The sentence violates the United

States Constitution’s Eighth Amendment cruel and unusual punishment clause in that it

imposes a life sentence on a sixteen-year-old defendant with no meaningful possibility of

parole and with no consideration to his age at the time of sentencing. The sentence also

breaches the cruel punishment clause found in article I, section 14 of the Washington

Constitution simply because it is an impermissible life sentence. In turn, I disagree with

the majority that RCW 9.94A.730 presents an adequate alternative remedy. Therefore, I

dissent. Roetcisoender is entitled to a meaningful resentencing before the superior court.

This dissent outlines details of Lyle Roetcisoender’s prosecution, sentencing, and

imprisonment, describes the motion for resentencing brought by Roetcisoender, discusses

the difference between indeterminate sentences and determinate sentences, dissects the

language in Roetcisoender’s 1988 judgment and sentence, moves to the law controlling

youth sentencing, shows that Roetcisoender is living under an unconstitutional life

sentence, demonstrates that RCW 10.73.100’s time bar does not bar Roetcisoender from

relief, establishes that Roetcisoender lacks an adequate alternative remedy, determines

that Roetcisoender is entitled to relief in a personal restraint petition, and concludes that

Roetcisoender deserves resentencing before the the superior court if not immediate

4 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

release because of serving a de facto life sentence. The majority’s consigning Lyle

Roetcisoender to a life in prison for the crimes of assault and kidnapping committed

while a child, when an adult who commits the same crimes would probably receive a

sentence around twenty years, commands a detailed and thorough dissent.

-------------

Petitioner Lyle Roetcisoender is mentally challenged. He was placed in special

education beginning in the first grade. Br. of Pet’r, App., Ex. 3, A7. (Psychiatric

Evaluation by Andrew Haffey). At age sixteen, Roetcisoender possessed a fifth grader’s

knowledge. Br. of Pet’r, App., Ex. 3, A7. (Psychiatric Evaluation by Andrew Haffey).

Classmates belittled Roetcisoender at school. Br. of Pet’r, App., Ex. 2, A4. (Psychiatric

Evaluation by Verne Cressey). Before July 30, 1987, Lyle Roetcisoender either had no

criminal history or at least no felony record.

I agree with the State that Lyle Roetcisoender committed a heinous crime against a

helpless two-year-old girl, T.J., on July 30, 1987. In an understatement, the details of the

crime leave one horrified. T.J. was brain dead for ninety minutes. She miraculously

revived. Her breath returned. Her heart beat again. Even more miraculously, T.J.

suffered no brain damage. Roetcisoender was sixteen years of age on July 30, 1987.

Lyle Roetcisoender testified that, after kidnapping and assaulting T.J., he

immediately regretted his actions and attempted to give cardiopulmonary resuscitation, or

CPR, to the victim before fleeing. State v. Roetcisoender, No. 9260-7-III, at 2 (Wash. Ct.

App. June 22, 1989) (unpublished). During interrogation by police, Lyle Roetcisoender

5 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

“became extremely emotional” and “weeped [sic] openly” when asked about the

condition of T.J. Brief of Petitioner in Support of Personal Restraint (Br. of Pet’r), App.,

Ex. 9, at A48. (Supplementary Report by Sgt. John Harris). Law enforcement opined

that an argument Roetcisoender had with his mother earlier in the day “might have

contributed to his mood at the time of the kidnap [sic].” Br. of Pet’r, App., Ex. 9, at A48.

(Supplementary Report by Sgt. John Harris)

According to an evaluation performed at Eastern State Hospital in August of 1987,

Lyle Roetcisoender encountered difficulty reading simple sentences and performing

rudimentary arithmetic. Br. of Pet’r, App., Ex. 2, A4. (Psychiatric Evaluation by Verne

Cressey). Psychiatrist Verne Cressey assessed Roetcisoender’s I.Q. as 65 and reported

that “[h]e is obviously retarded.” Br. of Pet’r, App., Ex. 2, at A4. (Psychiatric

Evaluation by Verne Cressey). Roetcisoender underwent other evaluations in 1987.

Psychiatrists Andrew Haffey and Richard Dennie diagnosed Roetcisoender as possessing

limited cognitive intellectual abilities, impulsivity, and probable hyperactivity. Br. of

Pet’r, App., Ex.3, A7. (Psychiatric Evaluation by Andrew Haffey). The two wrote in a

September 1, 1987 report:

Not surprisingly then, his capacity for impulse control appears quite inadequate. This is evident not only from the reports of aggressive and out of control behavior from school, but also in the test data where it appeared unable to think through a response, answering as quickly as he possibly could. When the examiner requested that he re-do a performance (for example, a simple drawing) with an emphasis on careful response, he would again perform quickly, impulsively, and without a great deal of quality. Although he exercised his right not to discuss the incident which

6 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

brought him to the hospital, he denied any premeditation on his part, stating “it just happened.”

Br. of Pet’r, App., Ex.3, at A7. (Psychiatric Evaluation by Andrew Haffey).

The State of Washington charged Lyle Roetcisoender with first degree kidnapping

and attempted murder. On February 9, 1988, a jury convicted Roetcisoender of

kidnapping in the first degree. The jury acquitted Roetcisoender of attempted murder,

but found him guilty of the lesser offense of assault in the second degree.

The superior court conducted a sentencing hearing on March 18, 1988. During the

hearing, Lyle Roetcisoender’s counsel never asked the sentencing court to consider

Roetcisoender’s youth or diminished capacity.

Based on Lyle Roetcisoender’s offender score of two, the standard range, in 1988,

for kidnapping in the first degree was 62 to 82 months. Br. of Pet’r, App., Ex.5, A26

(Judgment and Sentence). The maximum sentence was life. Br. of Pet’r, App., Ex.5,

A26. (Judgment and Sentence). The standard range for assault in the fourth degree was

12 to 14 months. Br. of Pet’r, App., Ex.5, A26 (Judgment and Sentence).

The Kittitas County Superior Court, rather than the jury as now required by United

States Supreme Court precedent and Washington statute, found the aggravating

circumstances of deliberate cruelty to the victim, a vulnerable victim, and a presumptive

sentence clearly too lenient that would not promote respect for the law. With the finding

of aggravating circumstances, the superior court imposed an upward exceptional sentence

7 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

and sentenced Lyle Roetcisoender to life imprisonment for kidnapping and fourteen

months for fourth degree assault.

The Kittitas County Superior Court entered findings of fact and conclusions of law to support the exceptional sentence. The findings and conclusions announced in part:Findings of fact: .... 1.3 Psychological examinations done by Eastern State Hospital and by Dr. Montgomery of Yakima, Washington and introduced as evidence during the course of these proceedings reveal that the defendant, though not criminally insane, has a preoccupation with retribution, violence and homicide; that he has been and will be for the foreseeable future disposed to resolving conflicts by violence and homicide; that he has been and will be for the foreseeable future sexually attracted to children like [T.J.] because they are vulnerable. Because of this he is predatory and will remain so in the foreseeable future. 1.4 Mental health experts who introduced evidence during the course of these proceedings indicated that the chances of rehabilitation for the defendant are slim and that to the extent rehabilitation is possible, it can only be accomplished and the community can only be protected through a long period of incarceration and treatment. Information made available to the Court during the sentencing hearing shows that facilities are available in the Department of Corrections to sequester this defendant from the larger inmate population and to provide special sexual offender treatment for him at the Department of Corrections, Twin Rivers Institution.

Conclusions of law

2 .1 The Court hereby finds from the Findings of Fact that a sentence outside the standard range should be imposed under RCW 9.94A.390(2) because of the following aggravating factors: (a) Defendant’s conduct during the commission of the kidnaping and assault manifested a deliberate cruelty to the victim. (b) The defendant knew that the victim was particularly vulnerable and incapable of resistance due to her age and body size. (c) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the following purposes of the Sentencing Reform Act:

8 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

(1) It would fail to insure the punishment for the offense as proportionate to the seriousness of the offense in this case. RCW 9.94A.010(1) (2) It would fail to promote respect for the law by failing to provide punishment which is just. RCW 9.94A.010(2) (3) It would fail to protect the public. RCW 9.94A.010(4) (4) It would fail to offer the offender an opportunity to improve himself through rehabilitation. RCW 9.94A.010(5).

Br. of Pet’r, App., Ex. 6, at A31. (Findings of Fact and Conclusions of Law)

Neither the findings nor the conclusions mention Roetcisoender’s age or intellectual

disability at the time of his offense.

The transcript of the hearing demonstrates that the sentencing court was

particularly motivated by retribution and did not consider Lyle Roetcisoender’s youth.

Br. of Pet’r., App., Ex. 6, A31. (Findings of Fact and Conclusions of Law). The

sentencing judge mentioned that Roetcisoender cannot relate to reality. The court

worried about Roetcisoender being responsive to treatment and his release endangering

the community. Finally, the sentencing court commented:

There are no mitigating factors that I can think of to mitigate the seriousness of Lyle’s conduct.

Respondent’s Brief (Br. of Resp’t), Ex. F, at 19.

The court did not explicitly set a minimum term of confinement. The judgment

and sentence, dated March 18, 1998 reads:

IT IS ORDERED that defendant serve the determinate sentence and abide by the conditions set forth below. .... 2.2 CRIMINAL HISTORY: The Defendant has no prior convictions constituting criminal history for purposes of calculating the offender score.

9 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

2.3 SENTENCING DATA:

Offender Seriousness Range Maximum Score Level Term Count One 2 X 62-82 months Life Count Two 2 IV 12-14 months 10 years

2.4 EXCEPTIONAL SENTENCE: Substantial and compelling reasons exist which justify a sentence above the standard range for Count One and Count Two. Findings of Fact and Conclusions of Law are attached in Appendix B. .... 4.2 CONFINEMENT OVER ONE YEAR: Defendant is sentenced to a term of total confinement in the custody of the Department of· Corrections as follows, commencing March 18, 1988; Life imprisonment on Count No. One 14 months on Count No. Two The terms in Counts No. One and Two are concurrent. Credit is given for 234 days served. 4.3 The Court further orders: The defendant shall be educated to the fullest extent of the State of Washington while incarcerated. He shall receive such psycho-therapeutic treatment as is available and appropriate in the Department of Corrections to rehabilitate him during his incarceration. When there is convincing evidence of the defendant’s rehabilitation, the subject of his release may be addressed as provided by the law related to commutations and pardons, by the Clemency and Pardons Board, provided the defendant has served a minimum term of 108 months, including credit for time served of 234 days.

Br. of Pet’r, App., Ex. 5 at A26. (Judgment and Sentence) (emphasis added). I highlight

that the sentence provides for release only with a commutation or pardon. The sentence

does not mention the possibility of parole.

Lyle Roetcisoender has now lived 449 months or thirty-seven years and five

months in prison. During these years in DOC custody, psychologists have diagnosed

Roetcisoender with mental illnesses and intellectual disabilities. Roetcisoender has spent

10 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

nearly the entirety of his incarceration in mental health units. He continues to encounter

difficulty in reading and writing. He struggles with self-harming behaviors, such as

picking at his skin until the skin bleeds and inserting objects into his anus to the point of

injury. Br. of Pet’r, App., Ex. 7, A35. (Mental Health Update). According to

Roetcisoender, incarceration has exacerbated his serious mental conditions.

In June 2022, thirty-four years after his conviction, Lyle Roetcisoender’s

incarceration and possible release came before the Indeterminate Sentence Review Board

(ISRB) under RCW 9.94A.730. The statute, which I will review later, allows offenders,

who committed their crimes while under the age of 18 and who were sentenced as adults,

to petition the ISRB for early release after serving no less than twenty years of total

confinement. The record does not indicate why the scheduling of an ISRB review took

decades. We surmise that the ISRB failed to schedule a hearing because the DOC

database falsely equated Roetcisoender’s term as life without parole. Under such a

sentence, the database lists the sentence as 999 years, a sentence even beyond the lifespan

of Methuselah.

In 2022, the ISRB file on Lyle Roetcisoender included a DOC report from August

2, 2020:

DOC Mental Health Update on August 2, 2020 Per chart review, Mr. Roetcisoender has had a history of sexually acting out with fascination on his feces and penis while at Maple Lane Juvenile Detention, and in prison had a habit of inserting objects into his anus to the point of injury, possibly indicating polyembolokoilamania. Mr. Roetcisoender has ceased this behavior due to pharmacological intervention.

11 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

On April 13, 2017 Madeline Wielgus, M.S., tested Mr. Roetcisoender utilizing the Wechsler Adult Intelligence Scale 4th Addition (WAIS-IV) with a result that his full scale I.Q. was 53. Per chart review, he also has a history of special education for learning disabilities. Since January 27, 2020, Mr. Roetcisoender has been infraction free, but did have one negative B.O.E. [Behavior Observation Entries] in February 2020 for passing coffee to another inmate. As of March 2017, he has 41 BOE’s with 37 being negative and one listed as a positive for cleaning his cell. Most relate to his hygiene, or rather the lack of it, and his cell’s cleanliness. . . . Current psychotropic medications: OLANZAPINE l0MG lx at night FLUVOXAMINE l00MG ltab 2x daily PRAZOSIN lMG lx noc Med line DIPHENHYDRAMINE 25MG lx at night DIVALPROEX DRUD 500MG lx at night LISINOPRIL lMG lx daytime Response to psychotropic medications since last appraisal or update: Mr. Roeticisoender seems to be benefitting positively to current psychotropic regimen as supported by remaining infraction free, less negative BOEs, one positive BOE, and no signs of antagonistic and sexually inappropriate conduct. Per chart review, Mr. Roeticisoender is compliant with all of his medications be it psychotropic, or somatic. Summary of and response to other forms of treatment since last appraisal or update. Mr. Roeticisoender . . . enjoys attending groups and rarely, if ever misses one. He currently enjoys DBT Overview & Art Group, and regularly attends two groups per quarter and meets with his therapist bi-weekly without missing a session. Mr. Roeticisoender continues to be exhibiting picking behaviors, but is willing to discuss this issue and work on measurable alternatives to this behavior. . . . He also serves E-Unit as a group room porter and regularly cleans. Comments on Observations I Mental Status: Mr. Roetcisoender is cooperative, engaged, alert and oriented times four, does not appear to be responding to internal stimuli, regularly denies suicidal, or homicidal ideation, and usually exhibits some visible signs of picking, either on the forehead, or on the arms, in various states of healing. He also displays a latency in response to questions at times, but also speaks within normal limits at other times. . ....

12 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Harm to Self / Other: . . . Mr. Roetcisoender . . . did report having some suicidal ideation subsequent to his grandfather’s death. He reported he poked himself in his arm with a comb to the point it drew blood. .... Formulation and Diagnostic Rationale: Excoriation Disorder: Mr. Roetcisoender is frequently seen with excoriation on his forehead, arms, and neck, and may purposely wear long sleeve shirts to cover up his arms. Mr. Roetcisoender frequently denies that he is engaging in this behavior, until asked directly and even when there are smears of blood on his clothing, due to him wiping off the blood from his fingers onto his shirts and pants after he has been picking the scab until it bleeds, and then he admits he has been picking. . . . This behavior has caused him many issues others as it keeps him isolated. .... Antisocial Personality Disorder: Mr. Roetcisoender appears to meet DSM-V criteria for Antisocial Personality Disorder as evidenced by, and per chart review, Criteria A; being diagnosed with a conduct disorder prior to age fifteen, was cruel to animals, impulsive, failed to conform to social norms, failed to plan ahead, reckless disregard to the suffering of others, and was convicted of kidnapping and assaulting a two-year old when sixteen and sentenced to life without parole as a result due to the heinous nature of the offense, and these behaviors do not appear to be better explained by another mental disorder, Criteria B: Is eighteen years of age, Criteria C: evidence of a conduct disorder before age fifteen, and Criteria D: the occurrence of antisocial behavior is not exclusively during the course of schizophrenic, or bipolar. DSM-5 Diagnoses Name of diagnosis L98.1 Excoriation Disorder; F70 Intellectual Disability, Mild; F60.2 Antisocial Personality Disorder IZI 40-31 Reality testing impaired/communication/several areas - Needs residential treatment. Symptoms likely to prevent programming other than highly structured MH programming. Behavioral problems related to symptoms regularly observed. ADLs [activities of daily life] generally intact but may need support. IZI Residential Treatment (describe needs) Needs residential treatment in the form of groups, individual therapy, and pharmacological interventions. Symptoms likely to prevent programming other than highly structured MH programming where staff are able to engage him in

13 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

treatment, groups, and incentive programs. Behavioral problems related to symptoms regularly observed.

Br. of Pet’r, App., Ex. 7, at A35. (Mental Health Update) (emphasis added).

I underscore that the DOC 2020 report identified Lyle Roetcisoender’s sentence as

life without parole. His intelligence quotient by 2020 had fallen from 65 in 1987 to 53.

The DOC psychologist listed, in the 2020 DOC update, a possible diagnosis of

polyembolokoilamania. Polyembolokoilamania is the act of inserting foreign

bodies into orifices such as the rectum, urethra, or vagina. This mania is often exhibited

by patients with Smith–Magenis syndrome. In turn, Smith–Magenis syndrome is a

genetic disorder caused by an abnormality in the short arm of chromosome 17. Those

with the syndrome suffer from intellectual disability, facial abnormalities, difficulty

sleeping, and numerous behavioral problems such as self-harm.

The ISRB conducted a hearing on June 22, 2022. Lyle Roetcisoender attended the

hearing by videoconference. Counsel represented him. The Board issued a decision on

July 11, 2022 that denied release. The decision proclaimed:

Based on the burden of proof set out in RCW 9.94A.730 and the totality of evidence and information provided to the Board, the Board does find by a preponderance of the evidence that Mr. Roetcisoender is more likely than not to commit any new criminal law violations if released on conditions. Consequently, the Board finds Mr. Roetcisoender not releasable. Mr. Roetcisoender can re-submit a petition for review in 48 months. REASONS FOR DECISION: This was a deferred decision following a full Board discussion using a structured decision-making framework that takes into consideration: the statistical estimate of risk, criminal history, parole/release history, ability to control behavior, responsivity to programming, demonstrated offender change, release

14 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

planning, discordant information, and other case specific factors. Based on the requirements of RCW 9.94A.730 the Board finds Mr. Roetcisoender is more likely than not to commit a new crime if released with conditions that are designed to help better prepare him for a successful re-entry into society. Mr. Roetcisoender is determined to be not releasable based on the following: Though not convicted of a sexual offense, there were sexual elements to the offense and Mr. Roetcisoender has not yet participated in the Sex Offender Treatment and Assessment Program (SOTAP) to address his risks. He indicates a willingness to do so. Has significant mental health problems that appear to be related to his crime of conviction and potential risk of re-offense. He is classified as an S3. He has resided in mental health units throughout most of his prison stay. He experiences a great deal of anxiety regarding any possible move to a more open living unit. He will need a step-down process of sorts to assist him in making any changes to more independent living prior to release consideration. Demonstrates no insight into offending behavior. It is unlikely that conditions of release would sufficiently reduce the risk of re-offense if released at this time. RECOMMENDATIONS: Mr. Roetcisoender should be referred to the SOTAP [sexual offender treatment] as soon as possible. He should remain serious infraction free and make every effort to tolerate more interaction with staff and inmates. He should engage more fully in mental health treatment by discussing his struggles with staff on working on interventions. OFFENSE DESCRIPTION: According to file material, Mr. Roetcisoender, at his age of 16, abducted a 2 ½ year old unknown female from her front yard by picking her up and carrying her away. The victim’s 5-year-old brother ran in the house to report what happened. A search ensued and the victim was found naked, unconscious, and face-down in a nearby creek. When apprehended for the crime Mr. Roetcisoender admitted to taking the victim, beating her into unconsciousness and digitally penetrating her vagina.

Br. of Pet’r, App., Ex. 8, at A41. (ISRB Decision and Reasons). Contrary to the ISRB

ruling, court records do not show that Lyle Roetcisoender admitted to digitally

penetrating T.J.’s vagina. Also, the State did not convict Roetcisoender of a sex offense.

15 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

----------

In his personal restraint petition, Lyle Roetcisoender raises three nuanced

arguments. First, his 1988 judgment and sentence is invalid on its face because it

contravened the Sentencing Reform Act of 1981 (SRA) by imposing an indeterminate

sentence. Second, his 1988 judgment and sentence violates the United States

Constitution and the Washington State Constitution by imposing on him a life without

parole sentence despite being sixteen years of age at the time of his crimes. Third and

related to the first argument, his judgment and sentence breaches the United States

Constitution and the Washington State Constitution because the sentencing court failed to

meaningfully consider his age before imposing a life sentence.

The State answers the personal restraint petition by arguing RCW 10.73.090 bars

the petition because Lyle Roetcisoender did not file the petition within one year. The

State further contends the petition fails because Roetcisoender enjoys an adequate

alternative remedy found in RCW 9.94A.730.

Lyle Roetcisoender replies that the one-year time bar does not apply because his

judgment and sentence is invalid on its face and because he relies on a constitutional

ruling applied retroactively. He further contends that that an ISRB petition no longer

constitutes an alternative remedy because he may not file another petition until 2026.

Finally, he argues that an ISRB review hearing is not an adequate remedy for claims

based on Houston-Sconiers because the Board does not address the Miller factors.

16 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Since we do not address a constitutional question if we can resolve the appeal on

statutory grounds, I address Lyle Roetcisoender’s statutory argument first. Tunstall v.

Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000). The superior court sentenced

Roetcisoender in 1988 for a crime committed in 1987, after adoption of the SRA. In

general, the act established a determinate sentencing regime. Thus, according to

Roetcisoender, the court should have issued a determinate sentence. Going further,

Roetcisoender insists his sentence of life imprisonment does not fit within the definition

of a determinate sentence. Finally, according to Roetcisoender, because the court did not

impose a determinate sentence, the sentence is invalid on its face.

According to Lyle Roetcisoender, DOC takes actions based on the length of a

sentence. Those actions include calculating earned release. When the offender receives a

sentence for life, DOC either has difficulty or may not even calculate earned good time

credits because DOC cannot predict the offender’s date of death. For this reason, among

others, a life sentence cannot be classified as a determinate sentence.

In opposition, the State insists Lyle Roetcisoender’s 1988 sentence constituted a

determinate sentence. According to the State, even if the sentencing court did not know

the number of years Roetcisoender might serve, the term was definite because the only

length the sentence could last was Roetcisoender’s lifetime.

In 1987, the kidnapping crime read similar to the statute today:

KIDNAPING IN THE FIRST DEGREE. (1) A person is guilty of kidnaping in the first degree if he intentionally abducts another person with intent:

17 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

(a) To hold him for ransom or reward, or as a shield or hostage; or (b) To facilitate commission of any felony or flight thereafter; or (c) To inflict bodily injury on him; or (d) To inflict extreme mental distress on him or a third person; or (e) To interfere with the performance of any governmental function. (2) Kidnaping in the first degree is a Class A felony.

Former RCW 9A.40.020. Kidnapping was and remains today a Class A felony.

In 1988, as today, the maximum sentence for a Class A felony was life in prison.

The sentencing statute in 1988 declared:

AUTHORIZED SENTENCES OF OFFENDERS.

(1) Felony. Every person convicted of a classified felony shall be punished as follows: (a) For a Class A felony, by imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years or by a fine of not more than ten thousand dollars or by both such imprisonment and fine;

RCW 9.20.021.

In 1988, the former RCW 9.94A.120 read that “a sentence outside the standard

range shall be a determinate sentence.” (Recodified as RCW 9.94A.505.) The Kittitas

County Superior Court imposed a sentence outside the standard range. Another statute,

RCW 9.94A.030, defined a “determinate sentence” in 1988:

(18) “Determinate sentence” means a sentence that states with exactitude the number of actual years, months, or days of total confinement.

I surprisingly find no case law that definitively declares whether a life sentence

constitutes an indeterminate sentence or a determinate sentence. I find, however, a trickle

of Washington and foreign cases that distinguish between “an indeterminate life

18 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

sentence” and a “determinate sentence,” suggesting that a life sentence is indeterminate.

State v. Beals, 100 Wn. App. 189, 997 P.2d 941, 947 (2000); State v. Ross, 71 Wn. App.

556, 861 P.2d 473 (1993), amended, 71 Wn. App. 556, 883 P.2d 329 (1994); Hollis v.

State, 173 Idaho 1021, 551 P.3d 1262 (2024); State v. Campbell, 170 Idaho 232, 250, 509

P.3d 1161 (2022); People v. McDowell, 99 Cal. App. 5th 1147, 1155–56, 318 Cal. Rptr.

3d 453 (2024), review denied (May 1, 2024).

I need not resolve whether a life sentence qualifies as a determinate sentence

because that issue lacks importance. The focal question is whether the life sentence

violated the SRA, not whether a life sentence is an indeterminate sentence. Conceivably,

although the SRA favors a determinative sentence and a life sentence constitutes an

indeterminate sentence, some statute might override the requirement of imposing a

determinate sentence as in the case of the State’s Persistent Offender Accountability Act

(POAA).

In State v. Beals, 100 Wn. App. 189 (2000), the offender argued that his life

sentence imposed as a result of his being a persistent offender violated the SRA

requirement that a determinate sentence be imposed “with exactitude.” This court

rejected the argument because the POAA, as part of the SRA, expressly stated that

persistent offenders would be sentenced to life. Thus, the POAA life sentence functioned

as an exception to the requirement of a determinate sentence.

To repeat, in 1988, pursuant to RCW 9A.20.021 and 9A.40.020, the statutory

maximum for kidnapping in the first degree was life in prison. Although the two statutes

19 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

are not part of the SRA, they evidence a desire on the part of the legislature to allow a life

sentence for the serious crime of kidnapping despite a general rule promoting determinate

sentences. RCW 9A.20.021 was reenacted last in 2015, decades after the sentencing

reform act of 1981. Chapter 265 §16, LAWS OF 2015.

As circumscribing its coverage to Class A felonies, RCW 9A.20.021 reads more

narrowly than the broad language of RCW 9.94A.505. A general statutory provision

must yield to a more specific statutory provision. Washington State Association of

Counties v. State, 199 Wn.2d 1, 13, 502 P.3d 825 (2022). This principle does not result

in the more specific statute invalidating the general statute. Washington State

Association of Counties v. State, 199 Wn.2d 1, 13 (2022). Instead, the law considers the

specific statute as an exception to, or qualification of, the general statute, whether it was

passed before or after such general enactment. Wark v. Washington National Guard, 87

Wn.2d 864, 867, 557 P.2d 844 (1976).

I conclude that, regardless of whether a life sentence for first degree kidnapping

qualifies as an indeterminate sentence, the sentencing court had authority, under the SRA,

to issue the life sentence. To employ two negatives, unless another reason exists, outside

the SRA, to invalidate the sentence, Lyle Roetcisoender’s 1988 life sentence was not

invalid on its face. A judgment is invalid on its face only if the court has exceeded its

authority in entering the judgment and sentence. In re Personal Restraint of Coats, 173

Wn.2d 123, 135-36, 267 P.3d 324 (2011).

20 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Lyle Roetcisoender contends no statute authorizes an indeterminate life sentence

for kidnapping in the first degree without any prior convictions or a finding of sexual

motivation. He does not cite any statute that precludes such a sentence if the offender

lacks earlier convictions or the absence of a sexual motivation finding.

Lyle Roetcisoender may advocate for the invalidity on its face of the 1988

judgment and sentence in order to avoid the RCW 10.73.100 one-year time bar for a

personal restraint petition. But, I conclude that Roetcisoender need not win this point for

the granting of his petition.

The parties quarrel over whether the 1988 sentence constitutes a life sentence with

the possibility of parole or a life sentence without the possibility of parole. The State,

contrary to Lyle Roetcisoender, posits that the Kittitas County Superior Court sentenced

Roetcisoender to life with parole. The resolution of this disagreement between the parties

does not control the question of whether the superior court imposed an unconstitutional

sentence. But the solution to the dispute influences the answer to this personal restraint

petition’s principal issue.

The State writes that the 1998 judgment and sentence expressly states that the life

sentence recognizes the possibility of parole. It does not. The sentence only references a

pardon or commutation. To repeat, the 1988 judgment and sentence declared:

When there is convincing evidence of the defendant’s rehabilitation, the subject of his release may be addressed as provided by the law related

21 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

to commutations and pardons, by the Clemency and Pardons Board, provided the defendant has served a minimum term of 108 months.

Br. of Petr’r, App., Ex. 5, A26. (Judgment and Sentence).

The sentence did not expressly employ the phrase “life without the possibility of

parole.” Nevertheless, the judgment and sentence makes no reference to parole. Because

Lyle Roetcisoender committed his offense after the effective date of the SRA, he, in

1988, did not fall under the jurisdiction of the ISRB until twenty-five years later.

Therefore, a literal reading of the sentence results in Roetcisoender lacking any

meaningful possibility of parole by the sentencing court even after he had served 108

months.

I have never read a criminal judgment and sentence that references the possibility

of release through a pardon or clemency, but not parole. Neither party has suggested that

other such sentences exist. After reflection, the sentence makes no sense.

The 1988 sentence’s language only affords release before death through a pardon

or commutation. These two actions do not equate or function equivalently to parole

because any person convicted of any crime may seek clemency or pardon regardless of

one’s sentence. The governor may grant a pardon or clemency before the running of any

minimum term set by the courts. In addition, the governor enjoys unbridled discretion

when determining whether to grant or deny one of the two offerings. The governor need

not issue a reasoned decision, and the courts cannot review the pardon or clemency.

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464-65, 101 S. Ct. 2460, 69 L.

22 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Ed. 2d 158 (1981). Thus, an offender lacks any cognizable liberty interest in the receipt

of clemency or pardon, and the clemency process is not generally subject to judicial

review. Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464-65 (1981). Thus,

the 1998 judgment presented Roetcisoender no meaningful opportunity for release.

Lyle Roetcisoender’s supposed minimum term of 108 months passed in August

1996 without any recognition from DOC, the ISRB, or the court. This passage of time

without any action confirms that Roetcisoender lacked and continues to lack any right to

parole. The ISRB did not review Roetcisoender’s incarceration until 2022 and then only

did so as a Juvenile Board case under RCW 9.94A.730. The Washington State

Legislature did not enact RCW 9.94A.730 until 2014.

This analysis intimates that the 1988 sentencing court imposed a sentence of life

without possibility of parole. Because Lyle Roetcisoender received this sentence when

he was sixteen years old, the sentence inflicts cruel punishment and violates the Eighth

Amendment of the United States Constitution and article I section 14 of the Washington

State Constitution as shown below.

The State argues that Lyle Roetcisoender does not suffer a de facto life sentence

because he has the opportunity for parole through the ISRB. Of course, although the

ISRB has assumed jurisdiction, the sentence does not read that way. In fact,

Washington’s system of parole effectively ended on July 1, 1984. State v. Carter, 3

Wn.3d 198, 214, 458 P.3d 935 (2024). Unlike juveniles sentenced to life without parole

for aggravated first degree murder under RCW 10.95.030, Roetcisoender does not have a

23 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

right for his sentence to be reviewed by the ISRB but instead a right to petition for release

if he meets certain preconditions, such as having no serious misconduct or felony

conviction while imprisoned. Regardless, the judgment and sentence imposed a life

sentence. Roetcisoender has served thirty-seven years with no probability of ever being

released. The State cites no law that indicates the possibility of parole or release by

definition precludes a sentence from being a de facto life sentence particularly when the

judgment and sentence imposed a life sentence.

I move to the crux of the personal restraint petition, the unconstitutionality of a life

sentence for a youthful offender. The United States Supreme Court’s decisions in Miller

v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 577 U.S. 190

(2016), and the Washington Supreme Court’s decision in State v. Houston-Sconiers, 188

Wn.2d 1 (2017), brought promise for juvenile offenders. The decisions recognized the

foolhardiness of sentencing juveniles as adults, and the rulings directed that youth already

sentenced to long terms should have those sentences reviewed and reduced based on

factors now known as Miller factors. The decisions brought hope to juvenile offenders

for a mature life without constant caging.

In the previous century, American jurisprudence treated teenage murderers the

same as adult murderers. Juvenile courts rotely declined jurisdiction over a teenager

accused of murder, and the adult courts prosecuted and sentenced teenagers as if adults.

A sixteen-year-old, who committed a crime, was deemed as blameworthy as a fifty-year-

24 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

old, who committed the same crime. In re Boot, 130 Wn.2d 553, 569-70, 925 P.2d 964

(1996).

In the 1980s and early 1990s, rising crime rates piloted academics and the media

to create the phantom juvenile super-predator to justify harsher punishment and

prosecuting youth in adult court for violent crimes. JEFFREY BUTTS & JEREMY TRAVIS,

URBAN INSTITUTE, THE RISE AND FALL OF AMERICAN YOUTH VIOLENCE: 1980 TO 2000

(2002), https://www.urban.org/sites/default/files/publication/60381/410437-The-Rise-

and-Fall-of-American-Youth-Violence.PDF. In 2001, the United States Office of the

Surgeon General labeled the super-predator theory a myth. UNITED STATES OFFICE OF

THE SURGEON GENERAL, YOUTH VIOLENCE: A REPORT OF THE SURGEON GENERAL ch. 1,

at 5 (2001), https://www.ncbi.nlm.nih.gov/books/NBK44297/?report=reader.

Beginning in 2005, the United States Supreme Court acknowledged advances in

neurological science. The federal Supreme Court thereafter issued landmark decisions,

under the Eighth Amendment’s cruel and unusual punishment clause, concerning juvenile

offender sentencing. Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1

(2005); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010); Miller v. Alabama, 567 U.S. 460 (2012); and Montgomery v. Louisiana, 577 U.S.

190 (2016).

The prefrontal cortex, an important part of one’s brain, sits at the front of the

frontal lobe, which lies immediately behind the forehead. The cortex is connected to

many other parts of the brain and sends and receives information. Mariam Arain et al.,

25 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Maturation of the Adolescent Brain, 9 NEUROPSYCHIATRIC DISEASE & TREATMENT 449

(2013). The prefrontal cortex assists in many brain functions, one of which is executive

function or the ability to self-regulate and plan ahead. Examples of executive function

include: controlling your behavior and impulses, delaying instant gratification, making

decisions, solving problems, planning long term goals, balancing short-term rewards with

future goals, adapting one’s behavior as situations change, understanding and predicting

one’s behavior, synthesizing many streams of information, and focusing one’s attention.

Mariam Arain et al., supra. A growing body of longitudinal neuroimaging research has

demonstrated that the brain continues to grow and change during adolescence, thereby

modernizing longstanding assumptions that the brain ceased maturing by puberty. J.N.

Giedd et al., Brain Development during Childhood and Adolescence: A Longitudinal MRI

Study, 2 NATURE NEUROSCIENCE 861 (1999).

The prefrontal cortex of the brain grows as a person matures from childhood to

early adulthood. The cortex is one of the last parts of the brain to develop completely. In

general, the prefrontal cortex does not fully mature until age 25, which prompts car

insurance companies to charge higher rates until a person turns 25 because those younger

are high-risk drivers. The prefrontal cortex assesses risk-taking and decision-making,

both important for driving. Tobias Grossmann, The Role of Medial Prefrontal Cortex in

Early Social Cognition, 7 FRONTIERS IN HUMAN NEUROSCIENCE 340 (2013),

https://doi:10.3389/fnhum.2013.00340.

26 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

According to the United States Supreme Court, the cruel and unusual punishment

clause demands that the penal system treat offenders under the age of eighteen

differently. Children’s lack of maturity and underdeveloped sense of responsibility lead

to recklessness, impulsivity, and heedless risk taking. Miller v. Alabama, 567 U.S. 460,

471 (2012). Children are more vulnerable to negative influence and outside pressure

from family and peers, have limited control over their environments, and lack the ability

to extricate themselves from horrific, crime-producing settings. Miller v. Alabama, 567

U.S. 460, 471 (2012). Adolescent brains are not yet fully mature in regions and systems

related to higher order executive functions such as impulse control, planning, and risk

avoidance. Miller v. Alabama, 567 U.S. 460, 475 n.5 (2012). All of these features

impact a tendency to commit a crime. Miller v. Alabama, 567 U.S. 460, 473 (2012).

Commonsense, parental knowledge, physical science, and social science confirm these

observations. Miller v. Alabama, 567 U.S. 460, 472 n.5 (2012). Because a child’s

character is not as well-formed as an adult’s, the child’s traits are less fixed, and his

actions are less likely to be evidence of depravity. Miller v. Alabama, 567 U.S. 460, 471

(2012). Only a relatively small proportion of adolescents who engage in illegal activity

develop entrenched patterns of problem behavior. Roper v. Simmons, 543 U.S. 551, 570

(2005).

According to the United States Supreme Court, the distinctive attributes of youth

diminish the penological justifications for imposing the harshest sentences on juvenile

offenders, even when they commit terrible crimes. Miller v. Alabama, 567 U.S. 460, 472

27 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

(2012). Deterrence supplies a flawed rationale for punishment because of juveniles’

impulsivity and inability to consider the consequences of their actions. Miller v.

Alabama, 567 U.S. 460, 472 (2012). Retribution’s focus on blameworthiness also does

not justify a lengthy sentence because juveniles have severely diminished moral

culpability. Miller v. Alabama, 567 U.S. 460, 472 (2012). Incapacitation fails to justify a

long sentence because adolescent development diminishes the likelihood that an offender

forever will be a danger to society. Miller v. Alabama, 567 U.S. 460, 472-73 (2012).

With a new understanding of juvenile brain development, the United States Supreme

Court established strictures on harsh and long sentences for teenagers, even youth

committing murder. The Eighth Amendment’s cruel and unusual punishment clause

compelled these sentencing restrictions. Because of the constitutional nature of children,

including teenagers, the United States Supreme Court, in Miller v. Alabama, 567 U.S.

460 (2012), mandated that a sentencer follow a process that incorporates consideration of

the offender’s chronological age and its hallmark features and other mitigating features

before imposing life without parole. The attended characteristics include: (1)

chronological age, (2) immaturity, impetuosity, failure to appreciate risks and

consequences, (3) the surrounding family and home environment, (4) the circumstances

of the offense, (5) the extent of the offender’s participation in the offense, (6) any

pressures from friends or family affecting him, (7) the inability to deal with police

officers and prosecutors, (8) incapacity to assist an attorney in his or her defense, and (9)

the possibility of rehabilitation. Miller v. Alabama, 567 U.S. 460, 477-78 (2012). Courts

28 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

now call these characteristics “the Miller factors.” Under the cruel and unusual

punishment clause, sentencing courts must exercise their discretion at the time of

sentencing itself with regard to the youth of the offender, regardless of what opportunities

for discretionary release may occur in the future. Miller v. Alabama, 567 U.S. 460, 477-

83 (2012); State v. Houston-Sconiers, 188 Wn.2d 1, 20 (2017).

In Montgomery v. Louisiana, 577 U.S. 190 (2016), the high Court readdressed the

subject of life without parole sentences for juvenile homicide offenders. Montgomery

held that Miller applied retroactively to offenders who were juveniles when they

committed their crimes. Against contentions that the Miller ruling only imposed a

procedure for resentencing, the Court announced that Miller established a substantive rule

that juveniles, whose crimes reflect “only transient immaturity” and who have since

matured, will not be forced to serve a life without parole sentence. Montgomery v.

Louisiana, 577 U.S. 190, 212 (2016). Under the cruel and unusual punishment clause,

sentencing courts must exercise their discretion at the time of sentencing itself with

regard to the youth of the offender, regardless of what opportunities for discretionary

release may occur in the future. Miller v. Alabama, 567 U.S. 460, 477-83 (2012); State v.

Houston-Sconiers, 188 Wn.2d 1, 20 (2017).

The Washington Supreme Court has ruled that Washington Constitution’s article I,

section 14, which prohibits cruel punishments, extends greater protections to offenders,

including juvenile offenders. State v. Bassett, 192 Wn.2d 67, 79-80 (2018). Going

further, in State v. Houston-Sconiers, 188 Wn.2d 1 (2017), the Washington Supreme

29 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Court addressed Miller v. Alabama’s applicability to juvenile defendants who receive

lengthy sentences for crimes other than homicide. The Evergreen high court held that

sentencing courts possess absolute discretion under the SRA to depart as far as desired

below the otherwise applicable sentencing ranges when sentencing juveniles in adult

court. Sentencing courts also may exercise the prerogative to reduce or ignore sentencing

enhancements. To the extent Washington sentencing statutes had been interpreted to bar

such discretion with regard to juveniles, the high court deemed the statutes

unconstitutional. Rendering sentences routinely imposed on adults will often be too

harsh when applied to youth. State v. Houston-Sconiers, 188 Wn.2d 1, 19 (2017).

Houston-Sconiers extended protections against disproportionate punishment to all

juveniles subject to the adult sentencing reform act of 1981 sentences and enhancements.

State v. Harris, 559 P.3d 499, 505 (November 27, 2024). The Washington Supreme

Court further extended the dictates of the Miller factors to young adults who were

nineteen and twenty years old at the time of their offenses because of the lack of full

brain development until age 25. In re Personal Restraint of v. Monschke, 197 Wn.2d

305, 313, 482 P.3d 276 (2021).

When asserting the cruel punishment clause to attack a sentence, a defendant may

bring a categorical challenge by arguing that an entire class of sentences is

disproportionate based on the nature of the offense or the characteristics of a class of

offenders. Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2022 (2010); State v.

Bassett, 192 Wn.2d 67, 83 (2018). Or the offender may raise an as-applied challenge by

30 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

asserting that the length of a sentence is grossly disproportionate given the offender’s

circumstances. State v. Bassett, 192 Wn.2d 67, 73 (2018); State v. Moen, 4 Wn. App. 2d

589, 598, 422 P.3d 930 (2018). Lyle Roetcisoender principally, but not exclusively,

relies on a categorical bar of life sentences for youth offenders.

In response to the United States Supreme Court’s decision in Miller v. Alabama,

the Washington State Legislature passed S.B. 5064, colloquially known as the “Miller fix

statute.” LAWS OF 2014, ch. 130, § 9(3)(b); codified at RCW 9.94A.730 and RCW

10.95.030(3). One section of the statute, RCW 10.95.030(3), affords an opportunity for

resentencing of offenders sentenced, for crimes committed before age eighteen, to life

without possibility of parole under Washington’s aggravated murder statute before they

were 18 years old. This statute applies only to offenders convicted of aggravated first

degree murder. Importantly, the statute entitles the offender to the same sentencing,

before the superior court not a government board, that he should have received when

convicted, including a sentencing that reviews the Miller factors. This opportunity for

resentencing before the superior court under the Miller factors does not extend to those

convicted of lesser crimes such as first degree kidnapping or even second degree murder.

The final section of the Miller-fix statute, RCW 9.94A.730, includes a provision

authorizing juvenile offenders imprisoned from crimes other than aggravated first degree

murder to petition the ISRB for early release after serving at least twenty years of

confinement. The statute reads in part:

31 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

(1) Notwithstanding any other provision of this chapter, any person convicted of one or more crimes committed prior to the person’s 18th birthday may petition the indeterminate sentence review board for early release after serving no less than 20 years of total confinement, provided the person has not been convicted for any crime committed subsequent to the person’s 18th birthday, the person has not committed a disqualifying serious infraction as defined by the department in the 12 months prior to filing the petition for early release, and the current sentence was not imposed under RCW 10.95.030 or 9.94A.507. . . . .... (6) An offender released by the board is subject to the supervision of the department for a period of time to be determined by the board, up to the length of the court-imposed term of incarceration. The department shall monitor the offender’s compliance with conditions of community custody imposed by the court or board and promptly report any violations to the board. Any violation of conditions of community custody established or modified by the board are subject to the provisions of RCW 9.95.425 through 9.95.440. (7) An offender whose petition for release is denied may file a new petition for release five years from the date of denial or at an earlier date as may be set by the board. (8) An offender released under the provisions of this section may be returned to the institution at the discretion of the board if the offender is found to have violated a condition of community custody. The offender is entitled to a hearing pursuant to RCW 9.95.435. If the board finds that the offender has committed a new violation, the board may return the offender to the institution for up to the remainder of the court- imposed term of incarceration. The offender may file a new petition for release five years from the date of return to the institution or at an earlier date as may be set by the board.

A hearing before the ISRB under RCW 9.94A.730 is not a resentencing. In re

Personal Restraint of Brooks, 197 Wn.2d 94, 102, 480 P.3d 399 (2021). Instead, an early

release hearing under the statute looks to the future and focuses on one’s likelihood of

reoffending. In re Personal Restraint of Brooks, 197 Wn.2d 94, 102 (2021). I will return

to the nature of RCW 9.94A.730 and its differences from RCW 10.95.030 later when

32 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

discussing an adequate alternative remedy. For now, I turn to the Washington Supreme

Court decision controlling this petition: State v. Bassett, 192 Wn.2d 67 (2018).

State v. Bassett, 192 Wn.2d 67 (2018) suggests, if not demands, that, because of

the decades that Lyle Roetcisoender has spent in prison, he should be released now. In

Bassett, the Washington Supreme Court addressed the constitutionality of RCW

10.95.030, the aggravated first degree murder resentencing statute. The court held that

sentencing juvenile offenders to life without parole or early release, even if discretionary

rather than mandatory, constitutes cruel punishment and therefore is unconstitutional

under article I, section 14 of the Washington Constitution. In turn, the Washington

Supreme Court declared unconstitutional that portion of RCW 10.95.030 that permitted

the imposition of life imprisonment without parole.

In 1995, when Brian Basset was sixteen years old, he lived in a shack with a friend

after Bassett’s parents expelled him from home. With assistance from his friend, Bassett

returned home, shot and killed his mother and father, and drowned his brother in a

bathtub. The superior court convicted Bassett of three counts of aggravated first degree

murder. The superior court deemed Bassett a walking advertisement for the death

penalty, but sentenced him to three consecutive terms of life in prison without parole.

In 2015, Brian Bassett returned to superior court for the resentencing, under

RCW 10.95.030 and .035, required for those convicted of aggravated first degree murder.

The superior court again sentenced him to three consecutive life without parole

33 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

sentences. The Court of Appeals adjudged the sentence in RCW 10.95.030 permitting a

life sentence without parole unconstitutional. The Supreme Court accepted review.

On appeal, Brian Bassett argued that RCW 10.95.030(3) was unconstitutional

under Washington’s cruel punishment clause because it permitted life sentences for

juveniles convicted of aggravated first degree murder. The Washington Supreme Court

faced the initial question of whether to apply a grossly disproportionate sentence analysis

or a categorical bar analysis. In the end it did not matter, since the court declared

RCW 10.95.030(3) unconstitutional under either approach. Nevertheless, the court

deemed the categorical bar analysis more suitable.

The Supreme Court, in State v. Bassett, observed that the Fain disproportionality

framework focuses away from the characteristics of the offender class. State v. Fain, 94

Wn.2d 387, 617 P.2d 720 (1980). The Fain test instead weighs the offense with the

punishment. Thus, the Fain framework uncomfortably analyzes a claim of cruel

punishment based on the offender’s class of youth. The categorical bar analysis, on the

other hand, directs a court to consider the nature of children. The categorical approach

requires consideration of the culpability of the offenders at issue in light of their crimes

and characteristics, along with the severity of the punishment in question and whether the

sentence serves legitimate penological goals. Issues of culpability, the severity of the

punishment, and whether penological goals are served all allow the court to include

youth-specific reasoning into the analysis. When addressing punishment of children, the

court generally does not focus on the severity of the crime.

34 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

The Washington Supreme Court, in State v. Bassett, applied the categorical bar

analysis and found RCW 10.95.030 constitutionally wanting. The court agreed with

Brian Bassett that the direction of change in the United States unmistakably and steadily

moves toward abandoning the practice of putting child offenders in prison for their entire

lives. This observation did not control but weighed in favor of finding that sentencing

juvenile offenders to life without parole is cruel punishment under article I, section 14.

RCW 10.95.030, a portion of the Miller-fix statute, allowed children to be sentenced to

the extremely severe punishment of life without parole.

The Washington Supreme Court adopted the United States Supreme Court’s

characterization in Graham v. Florida of permitting a juvenile to die in prison as harsh.

Life without parole alters the offender’s life with an irrevocable forfeiture and deprives

individuals of the most basic liberties without giving hope of restoration. The sentence is

especially harsh for children, who will on average serve more years and a greater

percentage of their lives in prison than an adult offender. The juvenile should not be

deprived of the opportunity to achieve maturity of judgment and self-recognition of

human worth and potential.

The Washington Supreme Court, in State v. Bassett, reflected that a life sentence

does not serve the penological goals of retribution, deterrence, incapacitation, or

rehabilitation in the context of youth committing even heinous crimes. The distinctive

attributes of youth diminish the penological justifications for imposing the harshest

sentences on juvenile offenders. The heart of retribution relates to an offender’s

35 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

blameworthiness, and children have diminished culpability. Deterrence lacks effect in

this context, because the same characteristics that render juveniles less culpable than

adults—their immaturity, recklessness, and impetuosity—render them less likely to

consider potential punishment. Rehabilitation is not supported by a juvenile life sentence

because the sentence forswears altogether the rehabilitative ideal. Incapacitation is not

well-served by sentencing juveniles to life without parole because deciding that a juvenile

offender forever will be a danger to society would require a judgment that he is

incorrigible, but incorrigibility is inconsistent with youth. The penological goal of

incapacitation is especially concerning given the fact that the sentence makes an

irrevocable judgment about that person at odds with what we know about children’s

capacity for change.

The Washington Supreme Court, in State v. Bassett, while recognizing that, under

United States Supreme Court precedent, only the rarest of children who are incorrigible

can spend life in prison, discerning who is subject to this extreme punishment is arduous,

if not unfeasible. While RCW 10.95.030(3)(b) required sentencing courts to consider

youth’s chances of becoming rehabilitated, courts face extreme difficulty in making that

determination. Even expert psychologists confront impossibility when differentiating

between the juvenile offender whose crime reflects unfortunate yet transient immaturity,

and the rare juvenile offender whose crime reflects irreparable corruption. Although the

Supreme Court did not declare such, this observation should render any life sentence,

regardless of availability of release, unconstitutional. A judge can only issue imprecise

36 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

and subjective judgments regarding transient immaturity and irreparable corruption. The

same factor that one sentencing judge might consider material in releasing the juvenile

offender could lead another judge to consider the offender incorrigible and

unrehabilitated and not amenable to release.

The Washington Supreme Court, in State v. Bassett, observed that, even if it

applied the Fain proportionality test, it would still find that sentencing a juvenile offender

to life without parole violated article I, section 14. Undoubtedly, aggravated first degree

murder formed the most serious criminal offense. The legislature, in RCW 10.95.030,

announced the purpose of requiring sentencing courts 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). Thus, the first two factors warranted a serious punishment

for aggravated murder. The third factor, the punishment juveniles would receive in other

jurisdictions, weighed in favor of finding juvenile life without parole sentences to be

cruel punishment and unconstitutional. Lastly, the fourth factor directed the court to look

at the punishment juveniles would receive for other offenses in the same jurisdiction.

Juveniles in Washington could be sentenced to life without parole only if convicted of

aggravated first degree murder. RCW 10.95.030. If a juvenile was convicted of any

other crime or combination of crimes, he or she would be eligible for release after 20

years, unless he or she has committed a disqualifying infraction in the prior year.

RCW 9.94A.730(1). The punishment was extreme in comparison to the sentence

Washington would impose for other crimes. Thus, life without parole was a

37 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

disproportionate sentence for juvenile offenders rendering unconstitutional under article

I, section 14. The court remanded sentencing back to the superior court for resentencing

in light of Bassett’s immaturity at the time of his murders. Remember that, although Lyle

Roetcisoender committed an egregious crime, he did not commit murder.

Although I conclude that Lyle Roetcisoender’s life sentence should end,

Roetcisoender also asks for resentencing before the superior court. As a result of State v.

Houston-Sconiers, the requisite sentencing hearing for a juvenile in adult court, under

Washington jurisprudence, is no longer an ordinary sentencing proceeding. State v.

Ramos, 187 Wn.2d 420, 443, 387 P.3d 650 (2017). Miller v. Alabama establishes an

affirmative requirement that courts fully explore the impact of the defendant’s juvenility

on the sentence rendered. State v. Ramos, 187 Wn.2d 420, 443 (2017). The court must

receive and consider relevant mitigation evidence bearing on the circumstances of the

offense and the culpability of the offender, including both expert and lay testimony as

appropriate. State v. Ramos, 187 Wn.2d 420, 443 (2017). The court and counsel have an

affirmative duty to ensure that proper consideration is given to the juvenile’s

chronological age and its hallmark features of immaturity, impetuosity, and failure to

appreciate risks and consequences. State v. Ramos, 187 Wn.2d 420, 443 (2017). The

sentencing court must also consider the juvenile’s family and home environment, the

circumstances of the offense, the extent of the offender’s participation in the conduct, and

the way familial and peer pressures may have affected him. State v. Ramos, 187 Wn.2d

420, 443-44 (2017).

38 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Trial courts possess complete discretion to weigh the Miller factors. Houston-

Sconiers, 188 Wn.2d 1, 21 (2017). This discretion does not, however, mean no review of

the sentencing court’s application of mitigating factors. State v. Haag, 198 Wn.2d 309,

326, 495 P.3d 241 (2021). A trial court lacks the discretion to impose a standard range

sentence, let alone an upward exceptional sentence, without first considering the

mitigating circumstances of youth when the defendant committed the crime as a juvenile.

In re Personal Restraint of Ali, 196 Wn.2d 220, 231–33, 474 P.3d 507 (2020); State v.

Backstrom, 15 Wn. App. 2d 103, 106–07, 476 P.3d 201 (2020).

Aggravating factors, including a defendant’s criminal history, his academic

delinquency, and his probation violations must be considered in a different light. People

v. Johnson, 2020 Il. App (3d) 130543,-B, 171 N.E.3d 936, 942, 446. Ill. Dec. 831. The

sentencing court must filter those factors through the lens of youth and the specific

propensities that come with immaturity. People v. Johnson, 2020 Il. App (3d) 130543,-

B, 171 N.E.3d 936, 942.

According to the United States Supreme Court, retribution cannot take precedence

in juvenile sentencing. Miller v. Alabama, 567 U.S. 460, 472 (2012); State v. Haag, 198

Wn.2d 309, 321 (2021). Because the heart of the retribution rationale relates to an

offender’s blameworthiness, the case for retribution lessens with a minor as with an adult.

Graham v. Florida, 560 U.S. 48 (2010); State v. Haag, 198 Wn.2d 309, 321 (2021).

The 1988 sentencing court emphasized the need for retribution because of the

hideous nature of Lyle Roetcisoender’s crimes. Thus, the superior court sentenced

39 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Roetcisoender as an adult without meaningfully considering his youth and his

individualized lack of development. Rather than using discretion to sentence below the

standard range of 62 to 82 months, the court imposed an exceptional sentence of life

based on factors that a jury must now determine but did not determine then.

The Kittitas County sentencing court committed legal error. A meaningful

consideration of Lyle Roetcisoender’s age and maturity would likely lead to a lower

sentence. Roetcisoender was not only under age, but his mental capacity was even lower

than his chronological age. All mental health professionals concluded that

Roetcisoender’s crimes resulted from his immaturity, impetuosity, and failure to

appreciate risks and consequences.

Some mental health professionals opine that Lyle Roetcisoender does not

acknowledge the harm he caused to T.J. and her family based in part on his low

intelligence and difficulty in socializing. Nevertheless, Roetcisoender testified that he

immediately regretted his actions and attempted to give CPR to the victim before fleeing.

Police reported that Roetcisoender wept and became distraught when asked about the

condition of T.J., and law enforcement noted that Roetcisoender had previously argued

with his mother, which could have set his mood for the day. Roetcisoender’s frequent

denial of wrongdoing may result from his low intelligence.

If the sentencing court had afforded Lyle Roetcisoender the protection granted

under the United States and Washington State Constitutions, the court may have granted

a downward exceptional sentence. If the court had knowledge of brain growth and

40 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

adhered to Washington and United States Supreme Court precedent, the court probably

would have granted a sentence on the low end of the standard range.

I earlier suggested that the categorical bar analysis adopted in State v. Bassett may

demand the current release of Lyle Roetcisoender. The same factors and reasoning that

preclude a life without parole sentence and invalidated one provision in RCW

10.95.030 demand the release. Roetcisoender has reached age 53. His sentence, now

thirty-seven years and persisting, has matured into a life sentence. Nothing in State v.

Bassett restricts its holding to statutorily mandatory life without parole sentences. State

v. Anderson, 200 Wn.2d 266, 296, 516 P.3d 1213 (2022) (Gonzalez, C.J., dissenting).

Bassett held that, under article I, section 14 of our constitution, any life-without-parole

sentence for a juvenile offender is unconstitutional. State v. Anderson, 200 Wn.2d 266,

296 (2022) (Gonzalez, C.J., dissenting). The decision’s reasoning extends to any life

spent in prison by a juvenile offender regardless of whether the sentence results from a

mandatory sentence or a never-ending indeterminate sentence. State v. Bassett created no

exception to the prohibition on a life sentence for those unrehabilitated. The nature of a

life sentence for a juvenile remains cruel no matter the type or characteristics of the

sentence imposed and no matter if the offender remains unremorseful, difficult, troubled,

and naughty. A life sentence remains cruel regardless if the offender enjoys the

opportunity for parole if he obeys prison staff.

As hinted in the previous paragraph, by demanding that Lyle Roetcisoender gain

release permission from the ISRB, the State in essence imposes a de facto life sentence

41 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

on Roetcisoender. In Sam v. State, 2017 WY, 98, 401 P.3d 834 (Wyo. 2017), the

Wyoming high court ruled that a sentence imposed on Phillip Sam of a minimum fifty-

two years with possible release at age seventy constituted a de facto life sentence.

In Bear Cloud v. State, 2014 WY, 113, 334 P.3d 132 (Wyo. 2014), the same western

court adjudged a sentence of a minimum of forty-five years, with possible release at age

sixty-one, as the functional equivalent of life without parole. In State v. Williams-Bey,

167 Conn. App. 744, 144 A.3d 467 (2016), the court remanded for a new hearing a

sentence that would not release a juvenile offender convicted of murder until age fifty-

two.

Most courts that have considered the issue agree that a lengthy term of years for a

juvenile offender will become a de facto life sentence at some point. Casiano v.

Commissioner of Corrections, 317 Conn. 52, 115 A.3d 1031 (2015). The United States

Supreme Court viewed the concept of “life” in Miller and Graham more broadly than

biological survival and implicitly endorsed the notion that an individual is effectively

incarcerated for life if he will have no opportunity to truly reenter society or have any

meaningful life outside of prison. Casiano v. Commissioner of Corrections, 115 A.3d

1031, 1047 (2015). The Supreme Court’s Miller decision intended to allow juvenile

offenders the opportunity to live a part of their lives in society, not simply to leave prison

in order to die. State v. Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127,

1137.

42 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Washington follows the majority view. In State v. Ramos, 187 Wn.2d 420 (2017),

our high court wrote:

[Similarly,] we also reject the notion that Miller applies only to literal, not de facto, life-without-parole sentences. Holding otherwise would effectively prohibit the sentencing court from considering the specific nature of the crimes and the individual’s culpability before sentencing a juvenile homicide offender to die in prison, in direct contradiction to Miller. Whether that sentence is for a single crime or an aggregated sentence for multiple crimes, we cannot ignore that the practical result is the same.

State v. Ramos, 187 Wn.2d 420, 438-39 (2017). Also, Bassett held that, under article I,

section 14 of our constitution, any life-without-parole sentence for a juvenile offender is

unconstitutional even if by a de facto imposition. State v. Anderson, 200 Wn.2d 266, 296

(2022) (Gonzalez, C.J., dissenting).

Two Washington decisions compel the release of Lyle Roetcisoender from

incarceration because of his decades in prison. In State v. Ronquillo, 190 Wn. App. 765,

361 P.3d 779 (2015), this court deemed a 51.3-year sentence for murder and other

violent, gang-motivated crimes as a de facto life sentence. The sentence contemplated

Brian Ronquillo remaining incarcerated until the age of 68. This court deemed the de

facto life sentence to have impermissibly categorized Ronquillo as irredeemable, a

characterization inconsistent with Miller v. Alabama. Before a court can sentence a

youth offender to a functional equivalent of a life sentence, the court must consider how

children are different and assess whether the offender was irrevocably corrupt. This court

43 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

remanded to the superior court to resentence Ronquillo, who committed the crimes at age

sixteen.

The most compelling decision in the context of Lyle Roetcisoender’s petition

is State v. Haag, 198 Wn.2d 309 (2021). Timothy Haag experienced a troubled

upbringing. In 1994, Haag, at age 17, killed a seven-year-old neighbor girl. A jury

convicted Haag of first degree aggravated murder. The superior court then sentenced him

to mandatory life without parole. In 2018, the superior court resentenced Haag under

the Miller-fix provisions of RCW 10.95.030 and .035. After the hearing, the resentencing

court found that Haag was not irretrievably depraved or irreparably corrupt.

Nevertheless, after hearing from the victim’s family of the need to keep a child killer

behind bars and that such a man is incapable of reform, the superior court resentenced

Haag to forty-six years to life. The resentencing court mentioned that Haag, weighing

three hundred pounds at the time of the homicide, strangled a sixty-five-pound

defenseless child during a heinous multi-step strangulation. With the resentence, the

earliest release date for Haag was age 63.

On appeal to the Supreme Court, the court reversed Timothy Haag’s resentencing

because the superior court emphasized retribution over mitigation. RCW 10.95.030

demands that the sentencing court place greater emphasis on mitigation factors than on

retributive factors. The court repeated the presumption that youth possess diminished

culpability. Only the rare offender is irreparably corrupt. The court also characterized

the first possible release date of age 63 as comprising a de facto life sentence. A

44 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

minimum sentence of forty-six years also constituted a de facto life sentence. Article I,

section 14 and Miller applies to juvenile homicide offenders facing de facto life sentence

not just literal life without the opportunity of parole sentences. The prospect of geriatric

release, if one is to be afforded the opportunity for release at all, does not provide a

meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain

release and reenter society as required by Graham v. Florida.

Lyle Roetcisoender’s case differs from Timothy Haag’s case because

Roetcisoender has failed to show the growth that Haag experienced in a correctional

system. Experts worry about public safety if Roetcisoender is released. Still, Haag

shows that Roetcisoender is now serving a de facto life sentence without any court having

determined that he was irreparably depraved when he committed the crime in 1987. The

State will not even agree to a resentencing during which Roetcisoender could present his

own expert witnesses for review by the court. Roetcisoender has yet to benefit from the

requirement that a judge determining release must focus on the mitigating factors of

youth.

The most egregious facts presented by a particular case cannot automatically

negate a juvenile homicide offender’s right to resentencing under the Miller factors.

State v. Ramos, 187 Wn.2d 420, 438 (2017). Instead, all doubts should be resolved in

favor of conducting a Miller hearing.

Assuming Lyle Roetcisoender to be unrehabilitated, Washington’s criminal justice

system, by sentencing him as an adult to an adult prison, shares blame with

45 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Roetcisoender for any failure to reform. Imprisonment results in a traumatic and

dangerous existence, not a learning and maturation experience. Washington State has

only recently adopted other state and national efforts to reform policies that incarcerate

youth and young adults in the adult criminal system. State v. Reynolds, 2 Wn.3d 195,

218, 535 P.3d 427 (2023) (Whitener, J., dissenting). In 2019, the Washington State

Legislature wrote:

The legislature acknowledges that transferring youth and young adults to the adult criminal justice system is not effective in reducing future criminal behavior. Youth and young adults incarcerated in the adult criminal justice system are more likely to recidivate than their counterparts housed in juvenile facilities.

LAWS OF 2019, ch. 322, § 1. Lyle Roetcisoender entered the prison system at age sixteen

and has remained incarcerated since.

I have not performed an exhaustive study of other sentences imposed on offenders

convicted of first degree kidnapping, but a number of recent examples suffice. In State v.

Stone, No. 38808-5-III (Wash. Ct. App. Apr. 4, 2024) (unpublished), review denied, 3

Wn.3d 1016 (2024), Kenneth Stone pled guilty to second degree murder in exchange for

the State dismissing a first degree kidnapping charge. In honoring the agreement, the

court sentenced Stone to 254 months’ confinement to be served concurrent with a federal

sentence. In State v. Roberts, No. 56435-1-II (Wash. Ct. App. Feb. 22, 2023)

(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2056435-1-

II%20Unpublished%20Opinion.pdf, review denied, 1 Wn.3d 1021 (2023), the court

sentenced Jeffrey Roberts to 130 months for first degree kidnapping. In State v. Smith,

46 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

No. 54296-0-II (Wash. Ct. App. Mar. 15, 2022) (unpublished), the trial court sentenced

Eddie Smith to 149 months for first degree kidnapping plus 24 months for a deadly

weapon sentencing enhancement. Finally, in State v. Herrera-Castro, No. 35288-0-III

(Wash. Ct. App. Jan. 17, 2019) (unpublished),

https://www.courts.wa.gov/opinions/pdf/352889_unp.pdf, the court imposed on

Alejandro Herrera-Castro a sentence, the court imposed on Alejandro Herrera-Castro a

sentence of 164 months for three convictions of first degree kidnapping, not including

weapon enhancements.

Court decisions fail to mention that incarceration decreases one’s life expectancy.

Michael Massoglia & William Alex Pridemore, Incarceration and Health, 41 ANN. REV.

SOCIO. 291 (2015). According to a study conducted by Vanderbilt University and data

from New York, for every year spent behind bars, overall life expectancy decreases two

years. Evelyn J. Patterson, The Dose–Response of Time Served in Prison on Mortality:

New York State, 1989-2003, 103 AM. J. PUB. HEALTH 523 (2013); Nick Straley, Miller’s

Promise: Re-Evaluating Extreme Criminal Sentences for Children, 89 WASH. L.

REV. 963, 986 n.142 (2014).

Washington releases someone convicted of kidnapping or even of murder who has

served less than the thirty-seven year sentence Lyle Roetcisoender has served without the

offender proving he or she will unlikely recidivate. The State and the majority have no

qualms of keeping Roetcisoender caged for the rest of his life for a kidnapping because

he cannot, because of his low intelligence, show he will not commit another crime.

47 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

I previously wrote that Lyle Roetcisoender should be released now. But assuming

no current release, the law at least demands a meaningful resentencing before a superior

court.

As a result of State v. Houston-Sconiers, the requisite sentencing hearing for a

juvenile in adult court, under Washington jurisprudence, is no longer an ordinary

sentencing proceeding. State v. Ramos, 187 Wn.2d 420, 443 (2017). Miller v.

Alabama establishes an affirmative requirement that courts fully explore the impact of the

defendant’s juvenility on the sentence rendered. State v. Ramos, 187 Wn.2d 420, 443

(2017). The court must receive and consider relevant mitigation evidence bearing on the

circumstances of the offense and the culpability of the offender, including both expert

and lay testimony, as appropriate. State v. Ramos, 187 Wn.2d 420, 443 (2017). The

court and counsel have an affirmative duty to ensure that proper consideration is given to

the juvenile’s chronological age and its hallmark features of immaturity, impetuosity, and

failure to appreciate risks and consequences. State v. Ramos, 187 Wn.2d 420, 443

(2017). The sentencing court must also consider the juvenile’s family and home

environment, the circumstances of the offense, the extent of the offender’s participation

in the conduct, and the way familial and peer pressures may have affected him. State v.

Ramos, 187 Wn.2d 420, 443-44 (2017).

The State seeks dismissal of Lyle Roetcisoender’s personal restraint petition based

on restrictors imposed by statute and court rule for relief by way of collateral attack. The

48 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

State asks us to deny the personal restraint petition because Roetcisoender did not file the

petition within one year of the finality of his judgment, because Roetcisoender

purportedly enjoys another sufficient remedy to the unconstitutional sentence, and

because Roetcisoender establishes no prejudice. I first discuss the time bar.

Lyle Roetcisoender filed his personal restraint petition more than one year after

the finality of his conviction. RCW 10.73.090 imposes a one-year time limit for the

filing of a personal restraint petition. The statute declares:

(1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than 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.

(Emphasis added.)

A related statute, RCW 10.73.100, grants seven exceptions to the one-year time

bar, one of which is a change in law. This latter statute reads in pertinent part:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds: … (7) There 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.

49 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

The statutory exception found in RCW 10.73.100(7) requires that the change in

law apply retroactively. The retroactive application extends to both procedural and

substantive changes in the law. The statute does not require that the collateral attacker

file his motion or petition within one year of the significant change in law.

The opening statute, RCW 10.73.090, only bars a collateral attack more than one

year after a judgment becomes final when “the judgment and sentence is valid on its

face.” RCW 10.73.090(1). A judgment may be facially invalid due to constitutional

defects. In re Personal Restraint of Goodwin, 146 Wn.2d 861, 866, 50 P.3 618 (2002).

A judgment is constitutionally invalid on its face if it evidences the invalidity without

further elaboration. In re Personal Restraint of Goodwin, 146 Wn.2d 861, 866 (2002).

The face of Lyle Roetcisoender’s judgment and sentence imposed a life sentence on a

youth. The categorical bars announced in State v. Bassett and Graham v. Florida may

declare the sentence invalid on its face, but Roetcisoender has not briefed this question.

The judgment and sentence did not list Roetcisoender’s birthdate such that the reader

could tell on the sentence’s face of an unconstitutional sentence imposed on a teenager.

Roetcisoender need not rely, however, on facial invalidity to survive RCW 10.73.090.

Lyle Roetcisoender asserts the change of law exception found in RCW

10.73.100(7). State v. Houston-Sconiers, 188 Wn.2d 1 (2017), on which Roetcisoender

substantively relies, represents a significant and material change in the law that applies

retroactively, exempting Roetcisoender’s petition from the one-year time bar under

RCW 10.73.100. In re Personal Restraint of Domingo-Cornelio, 196 Wn.2d 255, 259,

50 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

474 P.3d 524 (2020). The demands of Houston-Sconiers apply retroactively and a

juvenile defendant is actually and substantially prejudiced when a sentencing court fails

to “meaningfully consider” the defendant’s youth. In re Personal Restraint of Domingo-

Cornelio, 196 Wn.2d 255 (2020). Roetcisoender’s 1988 sentencing court violated the

teachings of Houston-Sconiers when meting a sentence exceeding the adult standard

range and failing to meaningfully consider Roetcisoender’s age.

State v. Bassett, on which Lyle Roetcisoender also depends, heralded a watershed

change in the law. Finally, in Montgomery v. Louisiana, the United States Supreme

Court ruled that the teachings of Miller v. Alabama applied retroactively.

The State observes that the Washington Supreme Court has divided the ruling in

Houston-Sconiers into a procedural wedge and a substantive tranche. The court has

stated that only the substantive aspect of Houston-Sconiers applies retrospectively.

Finally, the State contends that Lyle Roetcisoender only relies on the procedural facet of

Houston-Sconiers.

In 2020, the Washington Supreme Court, in companion cases In re Personal

Restraint of Ali, 196 Wn.2d 220 (2020) and In re Personal Restraint of Domingo-

Cornelio, 196 Wn.2d 255 (2020) addressed whether the requirements of Houston-

Sconiers apply retroactively on collateral review. The court held that Houston-

Sconiers constituted a significant and material change in the law that required retroactive

application. Thus, a personal restraint petitioner could raise a Miller and Houston-

Sconiers violation despite filing the petition more than one year after sentencing.

51 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Nothing in either Ali or Domingo-Cornelio suggests that any of the rulings

in Houston-Sconiers did not enjoy retroactive effect. In In re Personal Restraint of Ali,

the Washington high court applied retroactively all components of the State v. Houston-

Sconiers ruling to offenders such as Lyle Roetcisoender, sentenced before issuance of the

Supreme Court’s decision in Houston-Sconiers. Houston-Sconiers followed Miller v.

Alabama and its progeny, which centered on the substantive guaranty of the Eighth

Amendment: punishment proportionate to culpability. To that end, the court must, on a

showing of prejudice, resentence the offender and, on resentencing, consider all

mitigating circumstances related to the defendant’s youth.

In steps that thwart the promise of Miller v. Alabama, the Washington Supreme

Court has since characterized Houston-Sconiers as entailing procedural and substantive

aspects. In turn, the state high court has limited retroactivity to the substantive ruling

in Houston-Sconiers, despite RCW 10.73.100(6) referencing both procedural and

substantive changes in the law as being retroactive.

The Washington Supreme Court, in In re Personal Restraint of Forcha-Williams,

200 Wn.2d 581, 520 P.3d 939 (2022), dissected the Houston-Sconiers ruling into one

substantive rule that bars standard adult SRA ranges as being disproportionate

punishment for juveniles who possess diminished capacity. In turn, the high state court

identified and separated from the substantive rule two Houston-Sconiers procedural rules.

First, sentencing courts must consider the mitigating qualities of youth. Second, courts

must possess discretion to impose sentences below what the SRA mandates. The court

52 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

characterized a procedural Houston-Sconiers violation as not necessarily causing the

offender prejudice.

In response to Lyle Roetcisoender’s personal restraint petition, the State argues

that In re Personal Restraint of Forcha-Williams held that a procedural Houston-

Sconiers violation is not subject to retroactivity. But the Supreme Court did not venture

that far. The Supreme Court instead, in a 5 to 4 ruling, only declared that a procedural

violation does not constitute per se prejudice. Forcha-Williams did not hold that a

procedural violation cannot be applied retroactively. The Supreme Court dismissed

Derrius Forcha-Williams’ personal restraint petition because, despite the State

conceding Houston-Sconiers procedural violations, Forcha-Williams failed to establish

that, if the sentencing court had considered the Miller mitigating factors and exercised its

unlimited discretion, it would have imposed a lower sentence. In part, the Supreme Court

relied on the harsh words uttered by the superior court during the sentencing hearing and

the court having mentioned Forcha-Williams’ youth as suggesting a resentencing would

not change the outcome.

Assuming In re Personal Restraint of Forcha-Williams stood for the principle that

procedural rules arising from Houston-Sconiers do not survive the one-year time bar, the

majority ruling must be criticized. The symbiotic procedural and substantive aspects

of Houston-Sconiers do not subsist without one another. The procedural aspect of the

decision lacks any importance but for the substantive aspect of gaining a lower sentence.

Unless the petitioner relies on a categorical bar such as the bar from State v. Bassett, the

53 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

substantive aspect cannot be fulfilled without the procedure of reviewing evidence of

immaturity and possessing discretion to resentence based on juvenile immaturity. Under

state law, courts do not usually apply a new procedural rule retroactively. But, if a

substantive constitutional rule coincides with a crucial procedural mechanism that

implements that substantive rule, that procedural mechanism must also apply

retroactively. In re Personal Restraint of Ali, 196 Wn.2d 220, 240 (2020).

The four dissenters, in In re Personal Restraint of Forcha-Williams, observed that

the majority strayed from the court’s decision, in In re Personal Restraint of Domingo-

Cornelio, that a PRP petitioner shows actual and substantial prejudice by identifying a

violation of only one of the Houston-Sconiers mandates. In fact, the dissent in Domingo-

Cornelio had faulted the majority for recognizing the importance of both of the dual

mandates. The dissent, in Forcha-Williams, also concluded that Derrius Forcha-Williams

showed prejudice because, although the resentencing court referred to Forcha-Williams

as a young man, the court never explored the implications of Forcha-Williams’

immaturity, impetuosity, and inability to understand risks.

In re Personal Restraint of Carrasco, 1 Wn.3d 224, 525 P.3d 196 (2023)

followed In re Personal Restraint of Forcha-Williams. Erik Carrasco Ramos served a

93-year sentence imposed in 2012 without any consideration of his youth. In April 2010,

while a gang member and at the age of 17, he committed second degree murder, four

counts of first degree assault, and second degree unlawful possession of a firearm. In

2018, Carrasco filed a personal restraint petition that sought resentencing. The Supreme

54 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Court accepted the State’s contention that Carrasco enjoyed an alternative remedy to

resentencing under RCW 9.94A.730(1) due to the statutory presumption of release by the

ISRB after serving twenty years of confinement. In doing so, the court followed Forcha-

Williams’ distinction between the procedural and substantive aspects of Houston-

Sconiers.

Three dissenters in In re Personal Restraint of Carrasco wisely criticized the

attempt to distinguish between the procedural requirements and substantive requirements

of Houston-Sconiers. Both requirements must be applied retroactively because the two

intertwine. A court cannot determine whether a youth offender’s sentence substantively

violates the cruel punishment clause without engaging in the procedure of analyzing

the Miller factors and then exercising discretion to resentence the youth. The procedures

of reviewing the Miller factors and exercising resentencing discretion serve no purpose

except to enforce the promises and protections of the cruel punishment clause. Houston-

Sconiers never separated its rulings into distinct categories for purposes of retroactivity.

The recent decisions in In re Personal Restraint of Carrasco and Personal

Restraint of Forcha-Williams created a befuddling set of rules divorced from reality that

preclude many juvenile offenders from resentencing hearings. As one commentator

noted, the recent Washington decisions complete the annihilation of the Miller promise

by erecting a time bar, imposing a sophistic distinction between procedural and

substantive challenges, and narrowly viewing prejudice. Atif Rafay, Evading Haag: How

55 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

Courts Deny That Imprisoning Teens for Life Without Possibility of Parole Is Cruel,

21 SEATTLE J. FOR SOC. JUST. 731 (2023).

The erroneous rulings in In re Personal Restraint of Carrasco and In re Personal

Restraint of Forcha-Williams do not harm Lyle Roetcisoender. Despite the imperative of

this intermediate appellate court following Washington Supreme Court precedent, the

State fails to recognize that Roetcisoender, although accusing his sentencing court of

violating the procedures established in Houston-Sconiers, principally relies on the

substantive rule announced in Houston-Sconiers. Roetcisoender’s 1988 sentencing court

breached the cruel punishment clause when imposing a standard adult sentence and a de

facto life sentence on a juvenile with diminished capacity.

Lyle Roetcisoender’s argument also relies on the new substantive principle

announced in State v. Bassett, 192 Wn.2d 67 (1998) that imposing a life sentence on a

youth without a finding of irreparable depravity constitutes cruel punishment.

The Bassett rule, as a substantive rule, must also apply retroactively in favor of

Roetcisoender. Finally, Roetcisoender relies on a combination of the Bassett and

Houston-Sconiers substantive rulings to the effect that he need not show rehabilitation in

order to gain release from prison.

In Montgomery v. Louisiana, 577 U.S. 190 (2016), the high Court readdressed the

subject of life without parole sentences for juvenile homicide offenders. Montgomery

held that Miller applied retroactively to offenders who were juveniles when they

committed their crimes. Against contentions that the Miller ruling only imposed a

56 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

procedure for resentencing, the Court later announced that Miller established a

substantive rule that juveniles, whose crimes reflect “only transient immaturity” and who

have since matured, will not be forced to serve a life without parole sentence.

Montgomery v. Louisiana, 577 U.S. 190, 212 (2016).

The State seeks to defeat Lyle Roetcisoender’s motion by forwarding the

availability of an alternative remedy. A court will grant relief by a personal restraint

petition only if other remedies available to the petitioner are inadequate under the

circumstances. RAP 16.4(d). The State argues that Washington’s Miller-fix

statute, RCW 9.94A.730, affords an adequate remedy because it allowed Roetcisoender

to petition for early release after serving twenty years of his lifetime sentence. To repeat,

RCW 9.94A.730 declares:

(1) Notwithstanding any other provision of this chapter, any person convicted of one or more crimes committed prior to the person’s eighteenth birthday may petition the indeterminate sentence review board for early release after serving no less than twenty years of total confinement, provided the person has not been convicted for any crime committed subsequent to the person's eighteenth birthday, the person has not committed a disqualifying serious infraction as defined by the department in the twelve months prior to filing the petition for early release, and the current sentence was not imposed under RCW 10.95.030 [aggravated first degree murder] or 9.94A.507 [certain sex offenders].(3) . . . The board shall order the person released under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the person will commit new criminal law violations if released. The board shall give public safety considerations the highest priority when making all discretionary decisions regarding the ability for release and conditions of release

57 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

(6) An offender whose petition for release is denied may file a new petition for release five years from the date of denial or at an earlier date as may be set by the board.

The State asserts that RCW 9.94A.730 remedies all attacks against an unlawful

adult sentence. But no Washington case holds that the statute repairs all methods and

natures of attacks against an unlawful youth sentence. The State also relies on two recent

Washington decisions: In re Hinton, 1 Wn.3d 317, 525 P.3d 156 (2023) and In re

Personal Restraint of Carrasco, 1 Wn.3d 224 (2023). In the two 2023 opinions, the

Washington Supreme Court ruled that RCW 9.94A.730 affords an adequate remedy to

the petitioners’ lengthy adult sentences since the statute converted their determinate

sentences to indeterminate sentences and was available specifically to juvenile offenders

that were sentenced as adults.

Lyle Roetcisoender responds that the remedy found in RCW 9.94A.730 is neither

available nor adequate for him. He adds that his petition seeks substantive relief because

he challenges the life sentence under the categorical bar found in State v. Bassett, an

argument unrelated to RCW 9.94A.730.

Lyle Roetcisoender first contends that RCW 9.94A.730 is no longer “available” to

him because he must wait another four years to petition the ISRB for redress after the

Board denied his 2022 petition. According to RCW 9.94A.730(6), an individual denied

relief may only petition again five years from the date of denial or at an earlier date as

may be set by the board. Presumably, when one suffers an unconstitutional action by the

58 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

government, one should not need to wait for years in order to obtain redress. In both

Hinton and Carrasco, the petitioners had yet to petition the ISRB under RCW 9.94A.730.

Roetcisoender may not avail himself of the process prescribed in RCW 9.94A.730 until at

least July of 2026. I rely on another basis for concluding Roetcisoender lacks an

adequate alternative remedy.

Second, Lyle Roetcisoender argues that RCW 9.94A.730(8) does not afford him a

complete remedy. The statute allows the ISRB, if it grants an offender release, to return

the offender to prison for the remainder of the court-imposed term of incarceration if he

violates any conditions of community custody. Because the 1988 sentencing court

imposed a life sentence, Roetcisoender, if released, would face an unlawful lifetime

jurisdiction. According to Roetcisoender, he has always been entitled to a sentence other

than lifetime. A hearing under RCW 9.94A.730 cannot remedy the wrong of lifetime

supervision. As the argument proceeds, an incomplete remedy comprises an inadequate

remedy. I also do not rely on this second argument because it harnesses speculation. The

ISRB determines the length of supervision, which need not match the remainder of the

“the court-imposed term of incarceration.” RCW 9.94A.730(6). Once the supervision

period concludes, the ISRB’s jurisdiction ends, and the offender can only be “returned to

the institution at the discretion of the board if the offender is found to have violated a

condition of community custody.” RCW 9.94A.730(8).

Third, Lyle Roetcisoender maintains that his 1988 judgment and sentence is

invalid on its face such that the ISRB reviewing the sentence serves no purpose. The

59 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

legislature authorized the ISRB to determine whether an offender may return safely to the

community, but Roetcisoender does not attack the sentence because he shows he may

return safely. He attacks the validity of the sentence from its beginning, because under

cruel punishment principles, a juvenile cannot receive a life sentence even for aggravated

first degree murder. The ISRB lacks authority to determine the constitutionality of

Roetcisoender’s sentence. Also, according to Roetcisoender, his 1988 sentence fails

because the sentencing court failed to consider the Miller factors as demanded in by State

v. Houston-Sconiers, and RCW 9.94A.730 does not permit the ISRB to review the Miller

factors.

The Washington Supreme Court’s recent decision, in State v. Carter, 3 Wn.3d

198, 548 P.3d 935 (2024), illustrates the Kafkaesque senselessness of demanding that

Lyle Roetcisoender undergo review by the ISRB rather than receive a resentencing based

on the Miller factors before the superior court. In Carter, a consolidation of two

resentencings, the Supreme Court affirmed two superior court judges respective

shortening of sentences from life without parole to sentences shorter in length than the

sentence already served by Roetcisoender. The two offenders, Kimonti Dennis Carter

and Shawn Dee Reite, each committed egregious murders. Carter was eighteen years old.

Reite was twenty. Juries convicted each of aggravated first degree murder. The

respective superior court judges thoroughly reviewed the Miller factors and determined

that those factors warranted a substantial reduction in the sentence. This court’s decision

60 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

precludes Lyle Roetcisoender, who committed a less severe crime at a younger age, from

receiving the same benefit of a superior court hearing under the Miller factors.

Although I agree with Lyle Roetcisoender’s Miller factors second contention, I

conclude that In re Hinton and In re Personal Restraint of Carrasco preclude the

contention. One may distinguish the duo of 2023 decisions because both petitioners had

yet petitioned for release from the ISRB under RCW 9.94A.730. Roetcisoender already

petitioned the ISRB and failed. He at least temporarily has not other remedy to correct

his unlawful sentence, including the failure of his sentencing court to consider the Miller

I agree with Lyle Roetcisoender’s assertion that he lacks an adequate remedy

before the ISRB because he not only challenges his sentence because of the sentencing

court’s failure to apply the Miller factors, but because the law demands the immediate

erasure of the unconstitutional life sentence. RCW 9.94A.730 does not authorize the

ISRB to grant relief from a sentence invalid under the cruel punishment clause. RCW

9.94A.730 does not require or ask the ISRB to consider the Miller factors when

addressing an offender’s request for release. RCW 9.94A.730(3) charges the ISRB to

determine whether “it is more likely than not that the person will commit new criminal

law violations if released.” The statute further directs the ISRB to incorporate

methodologies recognized by experts in the prediction of dangerousness and to give

public safety considerations the highest priority. Whereas public safety is a worthy goal,

public safety does not justify an unconstitutional sentence.

61 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

In State v. Ramos, 187 Wn.2d 420, 436 (2017), the Washington Supreme Court

held that an eventual petition for relief under RCW 9.94A.730 did not render a

defendant’s appeal moot. The court reasoned that the possibility of another remedy in the

future cannot displace a defendant’s right to appeal when court did not lawfully impose

the sentence in the first instance. Although Ramos concerned relief on direct appeal, Lyle

Roetcisoender argues the same principle applies on collateral attack, especially when he,

in 1988, could not successfully argue the principles found Houston-Sconiers and Bassett.

Although I conclude that that In re Hinton and In re Personal Restraint of

Carrasco preclude Lyle Roetcisoender from solely relying on the failure of the

sentencing court to apply the Miller factors, the two decisions should be criticized, as did

the dissenters in the cases. RCW 9.94A.730 does not afford Lyle Roetcisoender an

adequate remedy because, unlike a sentencing court, the ISRB need not consider

mitigating factors of youth at the time of the offense. In State v. Houston-Sconiers, 188

Wn.2d 1, 23 (2017), the Washington State Supreme Court held that trial courts must

consider mitigating circumstances related to the defendant’s youth before sentencing a

juvenile defendant to any adult sentence, let alone a life sentence.

A hearing under RCW 9.94A.730 is not a resentencing. In re Personal Restraint

of Brooks, 197 Wn.2d 94, 102 (2021). Instead, a hearing for early release under

RCW 9.94A.730 looks to the future and focuses on one’s likelihood of reoffending. State

v. Delbosque, 195 Wn.2d 106, 122, 456 P.3d 806 (2020). The statute does not guarantee

62 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

that the petitioner will be released. In re Personal Restraint of Brooks, 197 Wn.2d 94,

102 (2021).

Lyle Roetcisoender’s 2022 petition to the ISRB illustrates the unavailability of a

remedy for him. The Board failed to recognize the substantive constitutional invalidity of

Roetcisoender’s life sentence. Both Hinton and Carrasco affirm that the court, in

response to a personal restraint petition, should apply the “substantive rule” of State v.

Houston-Sconiers. In addition, the ISRB did not weigh the Miller factors.

The State also seeks dismissal of Lyle Roetcisoender’s petition because

Roetcisoender fails to show prejudice. To be awarded relief, a personal restraint

petitioner must show, by a preponderance of evidence, actual and substantial prejudice by

the constitutional error. In re Personal Restraint of Domingo-Cornelio, 196 Wn.2d 255,

267 (2020). Roetcisoender must show his initial sentencing more likely than not would

have been shorter had the alleged error not occurred. In re Personal Restraint of

Meippen, 193 Wn.2d 310, 316, 440 P.3d 978 (2019). Actual and substantial prejudice is

not limited to circumstances when defense counsel makes an argument not legally

available and the sentencing court explicitly states that it cannot deviate from sentencing

rules. In re Personal Restraint of Domingo-Cornelio, 196 Wn.2d 255, 267 (2020).

Lyle Roetcisoender shows prejudice because he now remains in prison under an

unconstitutional life sentence. Even if Roetcisoender does not show an immediate right

to release, a movant also establishes sufficient prejudice if the sentencing court failed to

63 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

consider mitigating factors related to youthfulness. In re Personal Restraint of Domingo-

Cornelio, 196 Wn.2d 255, 268 (2020).

The three dissenters, in In re Personal Restraint of Carrasco, 1 Wn.3d 224 (2023),

sagely noted the need for trial courts, not the ISRB, to resentence all youth, even those

sentenced as an adult. Every personal restraint petitioner shows prejudice when his or

her sentencing court failed to sentence under the Miller factors and failed to comply with

the procedural and substantive mandates of Houston-Sconiers. A reviewing court cannot

be sure if the original sentence was unconstitutionally disproportionate unless a

resentencing court follows the dual mandates of Houston-Sconiers.

In State v. Houston-Sconiers, 188 Wn.2d 1 (2017), the Washington Supreme

Court, without extensive analysis, held that two offenders suffered prejudice even though

defense counsel at sentencing argued mitigating factors based on youth. The Washington

Supreme Court remanded the two combined cases for resentencing.

In In re Personal Restraint of Ali, 196 Wn.2d 220 (2020), the Washington

Supreme Court held that the offender demonstrated actual and substantial prejudice.

Seventeen-year-old Said Ali committed numerous robberies and a first degree assault.

The State requested a high-end standard sentence of 390 months. Ali’s defense counsel

requested an exceptional downward sentence of ten years. Counsel emphasized that Ali

was a young adolescent at the time of the crimes and little would be gained by crushing

his hope and spirit by sending him away for two lifetimes, which the State sought. Ali

presented letters and testimony from members of his community, who referenced his age,

64 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

inexperience, and susceptibility to peer pressure. The sentencing judge ruled that she

lacked the discretion to impose an exceptional sentence downward based on those

In In re Personal Restraint of Ali, the Washington Supreme Court held that Said

Ali had demonstrated prejudice by a preponderance of the evidence. The sentencing

judge imposed 312 months, the minimum sentence she had discretion to impose under the

SRA. The high court remanded the case for resentencing. In In re Personal Restraint of

Domingo-Cornelio, 196 Wn.2d 255 (2020), the Supreme Court also remanded for

resentencing because the sentencing judge had ordered the lowest possible sentence

within the standard range.

I contrast State v. Houston-Sconiers and In re Personal Restraint of Ali with In re

Personal Restraint of Meippen, 193 Wn.2d 310 (2019). In the last case, the state high

court held that sixteen-year-old Time Meippen failed to show the likelihood of a lower

sentence because the sentencing court imposed a sentence in the high-end of the standard

range despite recognizing the court had discretion to order a lower sentence within the

standard range. Defense counsel argued for a sentence in the low-end of the standard

range because the youth’s age prevented him from understanding the full nature of his

robbing a store and shooting the clerk. The sentencing court deemed Meippen’s actions

to be cold and calculated.

The ruling in Personal Restraint of Meippen should be criticized. Although Time

Meippen’s sentencing court held discretion to impose a lower sentence and instead

65 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

imposed a higher sentence in the standard range, the sentencing court still lacked any

knowledge about juvenile brain development studies that scientists released only after

Meippen’s sentencing. Reviewing the brain studies should have significantly impacted

the sentencing judge if she had sentenced Meippen years later. Just because the

sentencing judge imposed a high sentence, despite discretion to the contrary, does not

mean the court would not have significantly shortened the sentence after scientific

enlightenment, after knowing it must consider the immaturity of the teenager when

sentencing, and after understanding it must exercise discretion in possibly granting an

exceptional downward sentence. A reading of recent case law could have and should

have convinced the sentencing judge that it possessed complete discretion in sentencing

based on new data of teenage brain development. On resentencing, the judge would have

had available for the first-time instructions from the United States Supreme Court and

Washington Supreme Court from the last two decades that impose a mandatory duty on

the sentencing court to seriously consider the lack of maturity of a seventeen-year-old

when sentencing. I underwent a sea change in attitude toward juvenile sentencing when

studying the scientific literature and reading the United States Supreme Court decisions.

Those facts critical to the Washington Supreme Court’s denial of Time Meippen’s

petition are absent in Lyle Roetcisoender’s sentencing. Roetcisoender’s defense counsel,

during the 1988 sentencing, never argued mitigating factors based on youth.

Roetcisoender’s sentencing court did not impose a high sentence within a standard range.

Instead, the court imposed a sentence outside the standard range and the highest sentence

66 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

possible for first degree kidnapping. The court did so without any understanding of brain

science.

Although not necessary to the granting of Lyle Roetcisoender’s personal restraint

petition, this court should recognize that the United States Supreme Court’s decisions on

the eighth amendment’s cruel and unusual punishment clause control, not Washington

Supreme Court precedent. Montgomery v. Louisiana, 577 U.S. 190, 197–98, 136 S. Ct.

718, 193 L. Ed. 2d 599 (2016); Martin v. Hunter’s Lessee, 1 Wheat. 304, 340–341, 344, 4

L.Ed. 97 (1816); City of Seattle v. Long, 198 Wn.2d 136, 166, 493 P.3d 94 (2021). In

Montgomery v. Louisiana, a state court refused to apply retroactively the United States

Supreme Court’s ruling in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed.

2d 407 (2012). The United States Supreme Court reversed the state court and demanded

that it apply its precedent retroactively. So too this court may not impose barriers to the

application of the rulings in Miller v. Alabama and Montgomery v. Louisiana regardless

of whether that barrier is a time bar, a distinction between a procedural and substantive

challenge, an alleged alternative remedy, or a purported failure to show prejudice. United

States Supreme Court precedence demands that this court retroactively apply Miller v.

Alabama to Lyle Roetcisoender’s, and state law rules may not interfere in that

application.

A unique aspect of this case not found in other Washington reported decisions

concerns Lyle Roetcisoender’s is intellectual disability. Roetcisoender does not seek

67 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

abrogation of his life sentence because of this disability.

Lyle Roetcisoender has a low intelligence quotient that apparently dipped even

further after incarceration. His special needs increase his risk factors. He cannot

effectively communicate, which impedes any treatment. Roetcisoender’s cognitive

impairment limits his ability to develop insight, experience and understand his emotions,

learn from his behavior, problem solve, participate in reciprocal interpersonal

relationships, and function independently. Roetcisoender’s intellectual disability and

mental health infirmities inhibit his ability to appear or be defined as rehabilitated or

matured. Roetcisoender demonstrates characteristics akin to an antisocial personality

disorder, but medical health professionals cannot assess the extent to which his antisocial

thoughts and behaviors result from his low I.Q. or from a genuine disregard for the safety

of himself and others. Regardless, Roetcisoender likely does not experience remorse,

empathy, or understanding about the seriousness of his conduct. These characteristics

will unlikely change with education, treatment, or programming.

As Eighth Amendment jurisprudence forbidding the execution of adolescent

offenders developed, the law regarding intellectually disabled defendants followed a

parallel track. The United States Supreme Court had allowed execution of the

intellectually disabled in 1989, Penry v. Lynaugh, 492 U.S. 302, 340, 109 S. Ct. 2934,

106 L. Ed. 2d 256 (1989) (plurality portion), abrogated by Atkins v. Virginia, 536 U.S.

304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). In Penry, the majority recognized

that a national consensus against execution of the “mentally retarded” may someday

68 No. 39536-7-III In re PRP of Roetcisoender, Jr. (Dissent)

emerge reflecting the evolving standards of decency that mark the progress of a maturing

society, but did not believe such a consensus existed in 1989. Penry v. Lynaugh, 492

U.S. 302, 340 (1989). That change came thirteen years later. Atkins v. Virginia, 536 U.S.

304 (2002).

The 1988 sentence continues to punish Lyle Roetcisoender thirty-six years later

for his immaturity based on his disability. He has served longer than many sentenced to

murder. Assuming the community still needs protection from Roetcisoender, the State

may undertake precautions other than caging him from age sixteen until the end of his

life. The State might even conserve resources by implementing some other methods.

The ultimate value behind the United States Constitution’s Eighth Amendment

cruel and unusual punishment clause is the affirmation of the dignity of humankind.

Roper v. Simmons, 543 U.S. 551, 560 (2005); Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct.

590, 2 L. Ed. 2d 630 (1958). The state must recognize the dignity of even those who

commit serious crimes. Graham v. Florida, 560 U.S. 48, 59 (2010). For the sake of his

dignity, Lyle Roetcisoender deserves and needs more than ending his life in a

Washington State prison.

I respectfully dissent.

_________________________ Fearing, J.