Personal Restraint Petition Of: Gail Brashear

• Court: Court of Appeals of Washington
• Decided: January 22, 2024
• Docket: 85344-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of No. 85344-9-I GAIL BRASHEAR DIVISION ONE

UNPUBLISHED OPINION

BIRK, J. — Gail Brashear brings a personal restraint petition (PRP), seeking

resentencing. Brashear is on parole serving a 51 year, 2 month sentence for a

murder she committed in 1996 at the age of 15. In 2019, the Indeterminate

Sentence Review Board (ISRB) released Brashear from custody pursuant to RCW

9.94A.730, and she remains on parole for the remainder of her sentence. As

Brashear acknowledges, controlling Supreme Court authority holds that RCW

9.94A.730 provides an adequate remedy for any constitutional infirmity in her

sentence, and pursuant to RAP 16.4(d), this forecloses collateral relief. We deny

Brashear’s PRP.

I

The factual background is set forth in the attachments to Brashear’s petition

and the State’s answer. We also note certain facts reflected in our previous

opinion, In re Personal Restraint of Brashear, 6 Wn. App. 2d 279, 430 P.3d 710

(2018).

The affidavit of probable cause indicated that Danny Varnell encountered

Brashear on May 11, 1996, when returning home from fishing on the Pilchuck No. 85344-9-I /2

River. Two witnesses saw a pickup truck with both doors open, three young people

present, and the body of an older man “shoved down under the dash board” with

the defendant Brashear “half-sitting on him.” The youths reported the older man

had been shot, and the witnesses urged them to get help at the fire station. The

youths departed in the truck, but a quarter mile down the road the witnesses

observed the truck stopped and the youths “trying to dispose of something in the

woods.” Responding deputies found the truck abandoned and Varnell’s body

nearby. Police located and detained the youths that night. They confessed they

had been “camping” in the area for a week, and decided to steal a car. When two

of them did not complete an attempt at stealing a car, Brashear took a .380

handgun, stopped Varnell, asked for a ride, and shot him twice. After the witnesses

saw them and left, Brashear stabbed Varnell in the neck. At the time of her arrest,

Brashear was under investigation for another stabbing and was a suspect in a

burglary.

On January 24, 1997, Brashear, at that time 16 years old, pleaded guilty to

all three crimes. She agreed the court could consider the affidavit of probable

cause to determine whether there was a factual basis for her plea and at

sentencing. The State indicated it would recommend an adult sentence of 614

months. Brashear stated she “joins the State’s recommendation” and agreed

“neither she nor anyone on her behalf shall request anything less.”

Sentencing was held on May 7, 1997. The State asked the court to

sentence Brashear to “the most the State can recommend within the standard

sentencing range,” as a “joint recommendation.” The State described the plea

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agreement as being the result of its concern that because of Brashear’s age and

the involvement of two other defendants, a jury might not convict of aggravated

first degree murder, together with Brashear’s agreement to acquiesce to the high

end sentencing recommendation which, if followed, would mean Brashear would

not be released before turning 64 years old. The State described Brashear as

“clearly the most culpable person involved.”

Two of Varnell’s family addressed the court and described the family’s grief.

Varnell’s oldest daughter described Varnell’s military service in the Vietnam War,

meeting his future wife there, and returning to duty in Vietnam to arrange her and

their first child’s travel to the United States. They described Varnell as the kind of

person who would stop to aid a person in need when Brashear posed as such.

They described Varnell’s children’s efforts to support their mother after his murder.

Brashear’s attorney advised the court that she did not have a long criminal

history as a juvenile. She had “a window of time of approximately six or eight

months” during which she committed “horrible crimes.” Brashear did not address

the court, but her counsel advised she was remorseful. Brashear’s counsel urged

the court to “adopt the agreed sentencing recommendation.”

The court entered a judgment and sentence. Based on Brashear’s guilty

plea, she was convicted of first degree murder, first degree assault, and first

degree burglary. The murder and burglary convictions included a finding of use of

a firearm. The adult standard range for Brashear’s murder conviction was 261 to

347 months, the standard range for her burglary conviction was 36 to 48 months,

and each carried an additional 60 month firearm enhancement. The assault

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conviction included a finding of use of a non-firearm deadly weapon, and was

subject to a standard range of 93 to 123 months with an additional 24 month deadly

weapon enhancement. Adopting the prosecutor’s recommendation, the court

sentenced Brashear to the high end of the standard range on each count.

Consistent with governing law, the court ordered that the 407 month sentence for

the murder conviction, the 147 month sentence for the assault conviction, and the

60 month firearm enhancement for the burglary conviction would be served

consecutively, resulting in 614 months or 51 years, 2 months of confinement.

In the following years, the U.S. Supreme Court held that “a mandatory life

sentence without parole for those under the age of 18 at the time of their crime

violates the Eighth Amendment to the United States Constitution.” Brashear, 6

Wn. App. 2d at 281 (citing Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455,

183 L.Ed.2d 407 (2012)). In response, in 2014, the Washington legislature

enacted RCW 9.94A.730. Brashear, 6 Wn. App. 2d at 281. Going beyond

mandatory life without parole sentences at issue in Miller, and with exceptions not

relevant here, RCW 9.94A.730 allows a person convicted of one or more crimes

committed before turning 18 to petition the ISRB for early release after serving 20

years of confinement. See Brashear, 6 Wn. App. 2d at 281-82. Early release is

presumptive unless the ISRB determines that, despite conditions, it is more likely

than not a person will reoffend. Id. at 287.

On April 12, 2017, the ISRB held a hearing on a petition for release filed by

Brashear. Id. at 283. The ISRB noted a psychological evaluation indicating

Brashear was at low risk to reoffend, and a shift in her behavior starting after 2008.

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Id. at 284. At that hearing the Snohomish County Prosecutor provided a

recommendation opposing release. Id. at 284-85. The ISRB denied release,

acknowledging Brashear’s good work but desiring to see further progress. Id. at

285. Brashear filed a PRP challenging the ISRB decision. Id. at 285. We

reversed, holding the ISRB had failed to apply the statutory presumption of release

and had relied on factors that do not guide a release decision under RCW

9.94A.730(3). Id. at 288-90. Our opinion issued December 3, 2018. Id. at 279.

On April 19, 2019, Lisa Robtoy, PsyD, performed a psychological evaluation

of Brashear for the ISRB, and later issued a report. The report documented

reported difficulties during Brashear’s childhood, including her father’s infidelity to

her mother, associated conflict, alcohol use and abusive behavior by her father,

frequent moves and resultant social difficulties, lack of supervision, truancy, sexual

assault by a family member, fighting, and introduction to criminal behavior by an

older boyfriend. According to Dr. Robtoy, Brashear

expressed a high amount of remorse related to her instant offense. She became quite tearful at several points during the interview in relation to her crime. For instance, she reported having sought support from mental health after her last [ISRB] hearing, as apparently her case was broadcasted in the news along with information about the victim of her crime. Ms. Brashear expressed pain associated with learning about her victim, as it makes him “even more real” to her and in turn, more difficult to cope with her past behavior. She also discussed understanding why the victim’s family might oppose her release, and how her behavior has affected both the victim’s family and her family alike.

Brashear had not received an infraction since 2014. Dr. Robtoy opined Brashear’s

“overall risk level for future offending continues to be low” and she “appears to be

a reasonable candidate for transitioning to a less restrictive environment.”

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The ISRB held a hearing in Brashear’s case on September 11, 2019, and

issued a decision on September 23, 2019. The prosecutor did not provide a

recommendation for this hearing. Under RCW 9.94A.730, the ISRB did “not find”

by a preponderance that Brashear was likely to commit new criminal law violations

if released on conditions, and found her releasable. This was based on several

factors, including overall low risk, completion of substantial risk related

programming, no serious infractions since 2008, positive behavior, and an

extensive release plan. Brashear was then working as a Braille Transcriber with

excellent reviews from her supervisors, had extensive support, and anticipated

working as a transcriber after release. Brashear “voiced her remorse and appears

to have good insight into her offense along with an understanding of the impact of

her crimes on the victim’s family.” Brashear had then served 22 years, 4 months

in prison, and 361 days in jail. This left approximately 27 years, 10 months

remaining on Brashear’s sentence, a period running to the late 2040s.

Brashear represents in her PRP that she “completed three years of ‘active

supervision’ without incident.” Thereafter going on “inactive supervision status”

formally acknowledged in January 2023, Brashear was instructed, “This means

you will not be assigned to/reporting to a field case manager but will still remain

under the jurisdiction of the [ISRB]” for “[u]p to the court-imposed term of

incarceration.” She was advised if she is convicted of a new offense, the ISRB

may schedule a violation hearing and return her to prison, and, “[t]here is currently

no mechanism for final discharge from this sentence.” The State asserts Brashear

is “not required to report nor is she subject to any other conditions of community

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supervision other than the possibility of a violation hearing if she is convicted of

any new offense.”

On May 11, 2023, Brashear filed this PRP in the Supreme Court. She asked

the Supreme Court to “overturn the ‘adequate remedy’ ruling” of State v. Scott, 190

Wn.2d 586, 416 P.3d 1182 (2018) and other recent Supreme Court decisions.

Brashear asserts that although she has “gained release,” she cannot obtain

discharge until she has served the maximum term of her sentence, and remains

“under several disabilities,” which she explains are that she is prohibited from

serving as a juror, as a personal representative in a probate matter, and as a

trustee. Brashear “challenges her current sentence on state cruel punishment

grounds,” contending she “continues to serve a constitutionally disproportionate

sentence.”1

Brashear stated in her PRP, “Because only [the Supreme Court] can

overturn its precedent, Ms. Brashear urges [the Supreme] Court not to transfer this

petition to the Court of Appeals.” On May 16, 2023, the Supreme Court transferred

Brashear’s PRP to this court pursuant to RAP 16.5. On May 23, 2023, this court

requested an answer to the PRP. After the State filed an answer and Brashear

filed a reply, on October 19, 2023 the court referred the PRP to a panel for

determination on the merits pursuant to RAP 16.11(b).

1Brashear presents no analysis supporting independent state grounds under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).

7 No. 85344-9-I /8

II

“Granting a PRP is an extraordinary form of relief, so we require the

petitioner to ‘meet a high standard before this court will disturb an otherwise settled

judgment.’ ” In re Pers. Restraint of Hinton, 1 Wn.3d 317, 324, 525 P.3d 156

(2023) (quoting In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324

(2011)). A personal restraint petitioner must establish actual and substantial

prejudice from an alleged constitutional error, and, in addition, if the petitioner has

an adequate remedy available, the court “cannot grant the collateral relief sought,”

such as resentencing. In re Pers. Restraint of Carrasco, 1 Wn.3d 224, 230-31,

525 P.3d 196 (2023).

In Miller, in two cases, states obtained murder convictions of defendants

who were 14 years old at the times of the crimes in 1999 and 2003. 567 U.S. at

466, 469. In both cases, state law required mandatory sentences of life without

the possibility of parole. Id. The court discussed the fact “the mandatory penalty

schemes at issue here prevent the sentencer from taking account” of those

considerations making children “constitutionally different from adults for purposes

of sentencing.” Id. at 471, 474. The court held, “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders.” Id. at 479. This was because by “making youth (and all that

accompanies it) irrelevant to imposition of that harshest prison sentence, such a

scheme poses too great a risk of disproportionate punishment.” Id. The court did

not foreclose the possibility of a life without parole sentence for a juvenile offender,

but anticipated it would be rare and required that it “take into account how children

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are different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison.” Id. at 480.

In Scott, the defendant was convicted in 1990 of committing a murder at the

age of 17. 190 Wn.2d at 588. Although the adult standard range sentence was

240 to 320 months, with 240 months being the mandatory minimum, the

sentencing court found that several factors supported an exceptional sentence of

900 months. Id. at 588-89. After Miller and other decisions, in 2016 Scott filed a

motion seeking a new sentencing hearing. Id. at 590. By then, the legislature had

enacted RCW 9.94A.730 and 26 years had elapsed between Scott’s 1990

conviction and his motion for resentencing. Id. at 589-90. The court held that

under RAP 16.4(d) Scott was barred from obtaining collateral relief because he

had “an adequate remedy, which is to seek parole under RCW 9.94A.730.” Id. at

592 (“A State may remedy a Miller violation by permitting juvenile homicide

offenders to be considered for parole, rather than by resentencing them.”) (citing

Montgomery v. Louisiana, 577 U.S. 190, 212, 136 S. Ct. 718, 736, 193 L. Ed. 2d

599 (2016)). The court explained that in Miller, “the Court reiterated that ‘[a] State

is not required to guarantee eventual freedom,’ but must provide ‘some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ”

Id. at 593 (alteration in original) (quoting Miller, 567 U.S. at 479).

In Washington, going beyond juvenile mandatory life without parole

sentences, State v. Houston-Sconiers, 188 Wn.2d 1, 20-21, 391 P.3d 409 (2017),

held that under the Eighth Amendment, “sentencing courts must have complete

discretion to consider mitigating circumstances associated with the youth of any

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juvenile defendant, even in the adult criminal justice system.” With consecutive

firearm enhancements, the 17 and 16 year old defendants in Houston-Sconiers

faced approximately 42 to 45 and 37 to 40 years in prison for a series of robberies

of mainly candy from children on Halloween. Id. at 8, 10. The Supreme Court

explained, “Trial courts must consider mitigating qualities of youth at sentencing

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

SRA range and/or sentence enhancements.” Id. at 21 (citing Sentencing Reform

Act of 1981, ch. 9.94A RCW (SRA)). “[T]he rule announced by Houston-Sconiers

that applies retroactively . . . is 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.’ ” Hinton, 1 Wn.3d at 331 (one alteration in original) (quoting In re

Pers. Restraint of Ali, 196 Wn.2d 220, 239, 474 P.3d 507 (2020)). A violation of

the procedural aspects of Houston-Sconiers does not lead to the conclusion the

defendant is serving an unconstitutional sentence. Carrasco, 1 Wn.3d at 237.

In Carrasco, the court extended the adequate remedy holding of Scott

beyond assertions of Miller error to assertions of Houston-Sconiers error. 1 Wn.3d

at 232. The court acknowledged two cases holding RCW 9.94A.730 did not

provide an adequate remedy for 26 and 20 year sentences. Carrasco, 1 Wn.3d at

235 (citing Ali, 196 Wn.2d at 246; In re Pers. Restraint of Domingo-Cornelio, 196

Wn.2d 255, 269 n.8, 474 P.3d 524 (2020)). The court distinguished Carrasco’s 93

year, 10 month, de facto life without parole sentence, for which RCW 9.94A.730

was an adequate remedy. Id. at 227, 235. Again in Hinton the court concluded

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RCW 9.94A.730 was an adequate remedy for a juvenile sentenced to an adult mid-

range 37 year sentence for a murder committed at the age of 17. 1 Wn.3d at 321-

22, 324. In concluding the statute was an adequate remedy, the court explained,

“RCW 9.94A.730’s remedy applies automatically to all qualifying juvenile offenders

originally sentenced to lengthy determinate adult sentences,” and provides relief

“in the form of an indeterminate sentence with a minimum term of 20 years and a

presumption of release.” Id. at 333. Hinton held the statute “has created a new

sentence that the legislature has designed expressly and exclusively for juvenile

offenders,” and it “addresses the constitutional problem” that was identified. Id. at

334-35.

Carrasco additionally rejected the argument, advanced by Brashear, that

article I, section 14 of the state constitution and State v. Fain, 94 Wn.2d 387, 617

P.2d 720 (1980) require a different result. 1 Wn.3d at 236. Fain acknowledged

the constraints of parole, 94 Wn.2d at 394-95, but Carrasco explained it held only

“that the opportunity for parole under the particular statute did not convert Fain’s

life sentence into a less-than-life sentence for purposes of analyzing Fain’s

proportionality claim under our state constitution,” 1 Wn.3d at 236. Carrasco

characterized the state constitutional claim as a claim “that article I, section 14

requires a resentencing hearing for juveniles serving long-final exceptionally

lengthy sentences imposed without consideration of the dual mandates of

Houston-Sconiers,” but the court concluded “none of our cases support that state

constitutional argument.” Id. at 236-37.

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A decision by the Supreme Court is binding on all lower courts in the state.

1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423

(2006). The State advances several reasons why Brashear is not entitled to relief,2

but we reach only the last, that RCW 9.94A.730 provided Brashear an adequate

remedy against any unconstitutionally disproportionate sentence. Whether

Brashear’s claim is viewed as a claim of Miller error or Houston-Sconiers error,

Scott, Carrasco and Hinton hold that RCW 9.94A.730 affords adequate relief for

any constitutional infirmity, precluding collateral relief pursuant to RAP 16.4(d). We

deny Brashear’s PRP.

WE CONCUR:

2 The State argues (1) Brashear is not under restraint under RAP 16.4(b)

by the remaining disabilities she claims while on inactive supervision status; (2) any restraint is not unlawful, because none of the cited constitutional case law from the U.S. Supreme Court or the state Supreme Court suggests that Brashear’s circumstances are substantively an unconstitutional disproportionate sentence for a violent and cruel murder; (3) Brashear fails to show actual and substantial prejudice in light of her agreement not to request a lesser sentence as part of which she avoided a charge of aggravated first degree murder and the associated mandatory sentence of life without parole; (4) Brashear waived her right to request a lesser sentence in her plea agreement; and (5) Brashear may not seek resentencing without voiding her plea agreement. In light of our disposition, we do not reach these arguments.