Personal Restraint Petition Of Austin Lee Mays

• Court: Court of Appeals of Washington
• Decided: July 31, 2023
• Docket: 84700-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of No. 84700-7-I AUSTIN LEE MAYS, DIVISION ONE Petitioner. UNPUBLISHED OPINION

COBURN, J. — Austin Lee Mays 1 brings this personal restraint petition (PRP)

arguing that he is entitled to resentencing under State v. Houston Sconiers, 188 Wn.2d

1, 391 P.3d 409 (2017), because his crimes were committed when he was 15 years old

and argues the trial court did not consider his youth at sentencing. We disagree and

dismiss the petition.

FACTS

In the spring of 2004, Mays, then 15 years old, attempted to convince his friend

to help him rob and burglarize the home of his mother’s friend, Larry Kloes. His friend

declined the invitation when Mays suggested that they may have to kill Kloes. Mays

then asked another friend to join him in the robbery who also declined when Mays

1 Mays previously directly appealed his conviction arguing that the trial court erred in declining to exercise its juvenile jurisdiction. State v. Mays, noted at 143 Wn. App. 1013 (2008).

Citations and pincites are based on the Westlaw online version of the cited material. 84700-7-I/2

raised the possibility of killing Kloes.

In May 2004, Mays and a friend broke into Kloes’ home, but did not harm Kloes.

Later that month, Mays again raised the idea of burglarizing Kloes’ home with two other

friends, 16-year-old Jeremy Boone and 18-year-old Perry Rothermel. The other boys

did not know Kloes or where he lived before Mays’ suggestion. Mays again explained

that they may have to kill Kloes in order to complete the robbery, but neither opposed

this plan. The three decided to execute the robbery in June.

A few weeks later the three met at Rothermel’s house, armed with golf clubs and

a baseball bat, then Mays drove them to Kloes’ house, despite not having a driver’s

license. When they arrived at Kloes’ house, they found that the garage door was open,

the lights were on, and the radio was “blasting.” Mays went into the house and found

Kloes asleep in his second-floor bedroom. Boone knocked on the front door to lure

Kloes to the first floor of the house, where Mays and Rothermel were waiting.

Rothermel hit Kloes in the head with a baseball bat to incapacitate him. Kloes was able

to get off the floor and escape to his bedroom and Mays told Rothermel to “get up there

and finish him off.” Rothermel complied, followed Kloes back to the bedroom and

delivered several more blows to Kloes’ head, leaving blood spatter on the bedroom

ceiling. Kloes was severely injured but alive while the boys gathered the items they

intended to steal.

The boys then discussed killing Kloes, which Boone agreed to do because both

Rothermel and Mays claimed to have shot someone previously while Boone had not.

Mays fashioned a rudimentary silencer out of a plastic bottle and electrical tape over the

barrel of the gun. Mays instructed Boone to shoot Kloes in the head three times as

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Kloes was laid out on the sofa. Rothermel covered Kloes’ face with a pillow and Boone

fired, but the gun jammed. Mays then removed the silencer, cleared the jam, replaced

the silencer, and handed the gun back to Boone. Rothermel and Boone resumed their

positions and Boone fired three shots into Kloes’ head, killing him. The medical

examiner concluded that Kloes died of multiple gunshot wounds to the head and found

both bullet fragments and pieces of plastic consistent with the makeshift silencer in

Kloes’ brain.

The next day, Boone learned that Kloes had been found dead and an

investigation had begun. Boone turned himself into police and confessed to the crime.

Rothermel and Mays were arrested days later. The court found that Mays had largely

acted as the leader of the group in planning and committing the crime, noting that

Rothermel asked to speak to Mays three times after being arrested and advised of his

rights.

Mays was charged with murder, assault, robbery, and burglary in the first degree

and all but burglary as armed with a firearm. The defense presented, and the court

considered, evidence of Mays’ family circumstances, history of abuse and neglect, and

maturity, including a forensic psychologist’s report and testimony at the decline hearing.

Mays presented expert testimony of psychologist, Dr. Delton Young, who opined that

testing indicated Mays “will show quick impulsive reactions, little thought may be given

to consequences because of his own impulsivity and immaturity.” Dr. Young also

explained that Mays had a lower than average IQ for his age, but was able to

communicate well and may have appeared to be smarter than he actually was because

he had to develop strong interpersonal skills to cope with his childhood. The court

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declined juvenile jurisdiction over Mays and transferred the case for prosecution of

Mays as an adult.

Mays agreed to a stipulated bench trial. During discussions on what the parties

had stipulated to regarding sentence, the court reminded the parties that it is not bound

to any agreement related to sentencing and that the court’s “discretion may be totally

eliminated if there is a certain minimum sentence that I must impose.” The parties

agreed and clarified that they were simply calculating the absolute minimum sentence

based on statutory requirements would be a total of 40 years if the court found Mays

guilty of murder in the first degree, assault in the first degree when committed with the

intent to kill somebody, plus three class A firearm enhancements that must be run

consecutively. In the stipulation, defense agreed to not challenge any sentence of 50

years or less and the State agreed to not challenge any sentence 40 years or more.

The parties stipulated to the affidavit of probable cause, testimony and exhibits

presented at the decline hearing, and the conclusions of the trial court as the evidence

considered in the stipulated bench trial. The court found Mays guilty as charged on all

counts.

In his sentencing memorandum, Mays argued that the court should impose the

low end of the sentencing range of 40 years. Mays argued that his immaturity and

failure to appreciate the risks and consequences of the crime weighed in favor of a

sentence on the low end of the standard range. Mays explained that he had been

raised by a mother who was addicted to methamphetamine and left him alone to care

for his profoundly disabled sister for days at a time. Mays stated that he was largely

responsible for the care of his sister, who was unable to care for herself, required

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assistance with feeding and hygiene, and used a wheelchair. Mays also discussed the

“series” of romantic partners his mother brought into his life, several of whom were

abusive toward both Mays and his mother. In addition, Mays explained that he had

been moved around to different caretakers in different homes and states before moving

back in with his mother to a small house on Kloes’ property his mother had escaped to

after ending an abusive relationship.

At the sentencing hearing, Mays’ attorney noted that he had turned 17 just days

before the hearing. Mays also asked the court to look at the crime itself and the

planning to support his assertion that he had failed to appreciate the risks and

consequences due to his young age at the time of the crime. Mays argued that the

group acted on circumstances as they arose and that the plan had a “fantasy-land

quality” and “displays a childish and immature thinking process that is hard to believe

that these boys were as old as they were.” Mays’ believed that there was a “million

dollars” at Kloes’ house and that the three would “split [the money] up and take the car

and the guns and go to California.” Mays argued “that’s about as much of a plan as

there was. No thought at all to the ramifications of any of this. Nothing. No thought

which is grounded in any sort of reality.” Mays argued that the group had given no

thought to what would happen if Kloes discovered the missing items and theoretical

million dollars, if the crime were reported to police, or whether someone would

investigate if Kloes was killed. Mays also noted that he was the youngest of the group,

arguing that he was unlikely to be a true mastermind of the crime.

In issuing its ruling, the trial court noted that it had presided over Mays’ decline

hearing and stipulated trial and was familiar with the facts of the case. The court

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explained that it must consider

Who is more responsible, the minor, who for most things in this state is considered to be not mature, not sophisticated, not responsible enough that he or she may not vote, may not enter into binding contracts, may not do many things that adults can do; is that person more culpable for acts that he or she does than an adult who is presumed to be, by the laws of this state and most other states at a certain age . . . presumed to be more mature, more sophisticated and more responsible.

Regarding the crime, the trial court stated “unfortunately, that’s the way a lot of

young people nowadays act about life, so little value or so little reality to them of

the finality of death.”

The court explained that its decision in imposing different sentences did

not rest on the culpability of each defendant, but on the differences between their

criminal histories and actions before and after the crime, noting

The question put to me by [the State]: Would we be here if Austin Mays said to these other two people, Let’s not shoot him. I suspect that we would not be here. But I also believe in free will and responsibility, and I know if Mr. Boone or Mr. Rothermel said, you know, this is a dumb idea, I’m not going to do it, we wouldn’t be here. So I don’t see the separation for the reasons stated by the State.

In reading what occurred those fateful hours on June 26, the Court is left with the faith, with the abiding belief, that none of these defendants – and I’m including Boone – acted solely as an accomplice; all three were certainly principals, and it’s nearly impossible to make a legal or factual distinction among the three in committing the offense.

The separation that becomes between Boone and these two is what Boone did after the offense, and his lack of any criminal history. The separation that exists – and I find that there is some that exists between Mr. Mays and Mr. Rothermel – is based upon criminal history, of which Mr. Mays has offenses that score him higher, and the fact that he came after the same victim, he couldn’t let it go, leads to some separation.

The court sentenced Mays to 42 years’ confinement, two years longer than the

minimum sentence under the SRA standard sentencing range.

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In February 2018, Mays, through counsel, filed a motion in superior court

for relief from his judgment, arguing that the trial court must resentence him with

the mitigating effects of youth in mind, and with the awareness that it had

discretion to sentence him below the SRA guidelines, as required by State v.

Houston-Sconiers, 188 Wn.2d at 21. However, Mays never noted that motion for

a hearing. Several years later, in July 2022, Mays’ counsel filed a supplemental

motion for resentencing advancing the same arguments. The State filed a

response conceding “that the sentencing court did not know it had the authority

to sentence Mays below the agreed lower sentencing limit of 40 years,” but

asserted that the motion should be denied because: (1) the trial court

meaningfully considered Mays’s youth at sentencing and (2) Mays had not

shown that he was actually and substantially prejudiced by the court’s failure to

appreciate its full discretion. Mays filed a reply. The superior court transferred

the matter to this court for treatment as a personal restraint petition pursuant to

CrR 7.8(c)(2).

DISCUSSION

Mays argues that his sentence should be vacated because the sentencing court

failed to consider the mitigating factors of youth and was unaware of its ability to

exercise discretion in sentencing him to a term of imprisonment outside the SRA

standard sentencing range, even when the sentence included mandatory minimums.

Because the State concedes that the sentencing court was not aware of its ability to

sentence Mays below the statutory mandatory minimum, we focus our analysis on

whether the court considered mitigating factors of youth.

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In Houston-Sconiers, the Washington State Supreme Court established that the

Eighth Amendment “requires that trial courts consider the mitigating qualities of youth at

sentencing and have discretion to impose any sentence below the otherwise applicable

SRA range and/or sentence enhancements when sentencing a juvenile in adult court,

regardless of how the juvenile got there.” In re Pers. Restraint of Carrasco, 1 Wn.3d

224, 230, 525 P.3d 196 (2023) (citing 188 Wn.2d 1, 20-21, 391 P.3d 409 (2017)). While

Houston-Sconiers “announced a new substantive constitutional rule that must be

applied retroactively upon collateral review,” retroactivity is limited to the “substantive

rule” that courts may not impose adult sentences on juveniles who possess such

diminished capacity that the adult SRA ranges and enhancements would be

disproportionate punishment. In re Pers. Restraint of Ali, 196 Wn.2d 220, 236, 474 P.3d

507 (2020); In re Pers. Restraint of Hinton, No. 98135-3, slip op. at 12 (Wash. Mar. 9,

2023), https://www.courts.wa.gov/opinions/pdf/981353.pdf. The “dual mandate” of

Houston-Sconiers – that sentencing courts consider mitigating qualities of youth and

appreciate their discretion to depart from the standard ranges – is a “procedural rule.”

Carrasco, 1 Wn.3d at 199. “A violation of that procedural right does not lead to the

conclusion that [a defendant] is serving an unconstitutional sentence under the Eighth

Amendment.” Id. at 237.

On collateral review of whether the procedural mandates of Houston-Sconiers

were violated at sentencing, the “ultimate question” is whether the violation “constituted

a violation of the Eighth Amendment’s substantive rule prohibiting punishment

disproportionate to culpability.” In re Pers. Restraint of Forcha-Williams, 200 Wn.2d

581, 599, 520 P.3d 939 (2022). Under the rule, a petitioner must “show by a

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preponderance of the evidence that his sentence would have been shorter if the

sentencing judge complied with Houston-Sconiers.” Forcha- Williams, 200 Wn.2d at

599; In re Pers. Restraint of Meippen, 193 Wn.2d 310, 316, 440 P.3d 978 (2019). This

follows the general rule that a defendant asserting a constitutional error must show

actual and substantial prejudice to obtain collateral relief. Forcha-Williams, 200 Wn.2d

at 601.

Here, Mays fails to show by a preponderance of the evidence that his sentence

would have been shorter had the sentencing judge complied with Houston-Sconiers.

Mays argues that the trial court violated Houston-Sconiers when it did not consider and

weigh the Miller factors of the “hallmark features” of youth, “immaturity, impetuosity, and

failure to appreciate risks and consequences,” and failed to consider the juvenile’s

surrounding environment. See Miller v. Alabama, 567 U.S. 460, 477, 132 S. Ct. 2455,

183 L. Ed. 2d 407 (2012). However, the record reflects that the trial court did consider

concepts nearly identical to these factors. The trial court had received and evaluated

extensive evidence regarding Mays’ childhood circumstances, including abuse, neglect,

instability, and being forced to act as a caretaker for his disabled sister as the result of

his mother’s drug abuse. This evidence was presented to the court at the decline

hearing, the exhibits and testimony of which were stipulated to as evidence in his bench

trial. This evidence included the expert report and testimony of a forensic psychologist

about Mays’ immaturity and reduced ability to control impulses as a result of his

traumatic and unstable childhood and adolescence. The trial court also explained that

in sentencing Mays it considered his culpability as a minor, noting that minors are

generally thought of as less mature, sophisticated, and responsible than adults, in

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comparison to Rothermel, who had been 18 at the time of the crime.

Mays attempts to support his assertion by relying on Domingo-Cornelio, however

the circumstances in that case were far different than here. 196 Wn.2d 255, 474 P.3d

524 (2020). Unlike the extensive presentation of evidence regarding Mays’ age, mental

abilities, maturity, and effects of his background on his culpability for the crime, in

Domingo-Cornelio “the only relevant information presented to the sentencing court was

Domingo-Cornelio’s age at the time of the crimes.” 196 Wn.2d at 267.

The record does not support Mays’ assertion that the sentence would have been

lower had the trial court been aware of its discretion. The court could have sentenced

Mays to the mandatory minimum sentence of 40 years, but instead sentenced him to 42

years. The court reasoned that 42 years was appropriate because Mays made

repeated unsuccessful attempts to mobilize other friends to join him in the crime, even

telling them of the possibility of killing Kloes in the process before finally finding

Rothermel and Boone, who agreed to join. The trial court also explained that the

sentence imposed was based on Mays’ own criminal history, where his co-defendants

had none.

Unlike Ali, in which the sentencing court was similarly presented with significant

evidence of mitigating circumstances of youth, but sentenced the defendant to low end

of the SRA range believing it “lacked the discretion to impose” anything less, the court

sentenced Mays to a higher than minimum sentence after considering the mitigating

circumstances of his youth. 196 Wn.2d at 243-45.

Mays has not met his burden to show that the sentence would have been shorter

had it complied with Houston-Sconiers.

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We dismiss the petition 2 and need not determine whether Mays demonstrated

actual and substantial prejudice.

WE CONCUR:

2 In his reply to the State’s briefing to the trial court, Mays for the first time argues that because a term of imprisonment of life without parole had not yet been ruled unconstitutional for juvenile defendants, Mays was improperly coerced into signing the stipulation agreement. “An issue raised and argued for the first time in a reply brief is too late to warrant consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). We decline to review the issue. 11