Filed Washington State Court of Appeals Division Two
February 19, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the No.58999-1-II Personal Restraint Petition of:
JOHNNY CASSANOVA TWITTY, UNPUBLISHED OPINION
Petitioner.
MAXA, J. – In this personal restraint petition (PRP), Johnny Cassanova Twitty challenges
the sentence imposed for his convictions of attempted first degree murder and first degree
unlawful possession of a firearm (UPOF). Twitty argues that the trial court erred because it
included a juvenile adjudication when calculating his offender score.
RCW 9.94A.525(1)(b), which became effective after Twitty was sentenced, states that
most juvenile adjudications no longer can be included in a defendant’s offender score. Twitty
does not argue that RCW 9.94A.525(1)(b) applies to him. Instead, he argues that including
juvenile adjudications in an offender score constitutes cruel punishment in violation of article I,
section 14 of the Washington Constitution.
We hold that the inclusion of certain juvenile adjudications in offender scores is not
unconstitutional because under the categorical bar analysis, there is no objective indicia of a
national consensus against the practice of including juvenile adjudications in offender score
calculations and their inclusion serves legitimate penological goals. No.58999-1-II
Accordingly, we deny Twitty’s PRP.
FACTS
In 2008, a jury found Twitty guilty of attempted first degree murder and first degree
UPOF. The conviction arose out of an altercation between Twitty and another man during which
the other man was shot five to seven times. Twitty was sentenced to 316 months plus 60 months
for a firearm sentencing enhancement for a total of 376 months in confinement. Twitty’s
criminal history included juvenile adjudications for unlawful possession of a controlled
substance and second degree assault.
In March 2021, Twitty filed a CrR 7.8(b)(2) motion for relief based on the inclusion of
his adjudication for unlawful possession of a controlled substance in light of State v. Blake, 197
Wn.2d 170, 481 P.3d 521 (2021). The trial court vacated Twitty’s 2008 sentence and ordered
that he be resentenced excluding the unlawful possession of a controlled substance adjudication
from his criminal history.
At resentencing in March 2023, Twitty’s offender score included the juvenile
adjudication for second degree assault and several adult convictions, resulting in an offender
score of 6 on the first degree attempted murder conviction and 5 on the first degree UPOF
conviction. The standard sentencing ranges were 234-316 months for attempted murder and 41-
54 months for UPOF. The State recommended a sentence at the high end of the range for the
attempted murder conviction – 316 months plus 60 months for the firearm sentencing
enhancement. Twitty requested an exceptional sentence below the standard range of a total of
240 months.
The trial court imposed a standard range sentence. The court sentenced Twitty to 278
months in confinement on the first degree attempted murder conviction plus an additional 60
2 No.58999-1-II
months in confinement for a firearm sentencing enhancement, and 54 months in confinement on
the first degree UPOF conviction.
Twitty appealed his 2023 judgment and sentence. He argued that the trial court erred
when it failed to apply RCW 9.94A.525(1)(b) prospectively to his case, and that the court should
remand for resentencing with an offender score that does not include his juvenile second degree
assault conviction. State v. Twitty, No. 58738-6-II, slip op. at 7 (Aug. 6, 2024) (unpublished)
https://www.courts.wa.gov/opinions/pdf/D2%2058738-6-II%20Unpublished%20Opinion.pdf.
This court rejected this argument and affirmed Twitty’s sentence. Id. at 17.
Twitty files this PRP, challenging the constitutionality of including a prior juvenile
conviction for second degree assault in his offender score.
ANALYSIS
A. PRP PRINCIPLES
To prevail in a PRP, the petitioner must establish by a preponderance of the evidence (1)
a constitutional error that resulted in actual and substantial prejudice or (2) a fundamental defect
of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re
Pers. Restraint of Meredith, 191 Wn.2d 300, 306, 422 P.3d 458 (2018). Here, Twitty asserts a
constitutional error – violation of article I, section 14 of the Washington Constitution.
Establishing “actual and substantial prejudice” means more than merely showing the
possibility of prejudice; the petitioner must establish that if the alleged error had not occurred,
the outcome more likely than not would have been different. In re Pers. Restraint of Meippen,
193 Wn.2d 310, 315-16, 440 P.3d 978 (2019). When sentencing is involved, the petitioner must
show that their sentence would have been shorter but for the alleged error. Id. at 316.
3 No.58999-1-II
B. CRUEL PUNISHMENT CHALLENGE
Twitty argues that the inclusion of his juvenile second degree assault adjudication in his
offender score violates the cruel punishment provision of article I, section 14. We disagree.
1. Legal Principles
Twitty argues that the use of juvenile adjudications to calculate offender scores is
categorically unconstitutional under article I, section 14. There are two steps in the categorical
bar analysis. First, we must determine “whether there are ‘objective indicia of a national
consensus against the sentencing practice[.]’ ” State v. Reynolds, 2 Wn.3d 195, 204, 535 P.3d
427 (2023). (quoting State v. Bassett, 192 Wn.2d 67, 84, 428 P.3d 343 (2018)). We determine
whether there is a national consensus “by looking at the ‘objective indicia of society’s standards,
as expressed in legislative enactments and state practice.’ ” Reynolds, 2 Wn.3d at 204 (quoting
Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)). “ ‘It is not so
much the number of these States that is significant, but the consistency of the direction of
change.’ ” Reynolds, 2 Wn.3d at 204 (quoting Bassett, 192 Wn.2d at 86).
Second, we must address “ ‘whether our independent judgment, based on controlling
precedent and our understanding and interpretation of the cruel punishment provision’s text,
history, and purpose, weighs against the sentencing practice.’ ” Reynolds, 2 Wn.3d at 204
(quoting Bassett, 192 Wn.2d at 83). We consider 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 challenged sentencing practice serves legitimate penological goals.’ ”
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Filed Washington State Court of Appeals Division Two
February 19, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the No.58999-1-II Personal Restraint Petition of:
JOHNNY CASSANOVA TWITTY, UNPUBLISHED OPINION
Petitioner.
MAXA, J. – In this personal restraint petition (PRP), Johnny Cassanova Twitty challenges
the sentence imposed for his convictions of attempted first degree murder and first degree
unlawful possession of a firearm (UPOF). Twitty argues that the trial court erred because it
included a juvenile adjudication when calculating his offender score.
RCW 9.94A.525(1)(b), which became effective after Twitty was sentenced, states that
most juvenile adjudications no longer can be included in a defendant’s offender score. Twitty
does not argue that RCW 9.94A.525(1)(b) applies to him. Instead, he argues that including
juvenile adjudications in an offender score constitutes cruel punishment in violation of article I,
section 14 of the Washington Constitution.
We hold that the inclusion of certain juvenile adjudications in offender scores is not
unconstitutional because under the categorical bar analysis, there is no objective indicia of a
national consensus against the practice of including juvenile adjudications in offender score
calculations and their inclusion serves legitimate penological goals. No.58999-1-II
Accordingly, we deny Twitty’s PRP.
FACTS
In 2008, a jury found Twitty guilty of attempted first degree murder and first degree
UPOF. The conviction arose out of an altercation between Twitty and another man during which
the other man was shot five to seven times. Twitty was sentenced to 316 months plus 60 months
for a firearm sentencing enhancement for a total of 376 months in confinement. Twitty’s
criminal history included juvenile adjudications for unlawful possession of a controlled
substance and second degree assault.
In March 2021, Twitty filed a CrR 7.8(b)(2) motion for relief based on the inclusion of
his adjudication for unlawful possession of a controlled substance in light of State v. Blake, 197
Wn.2d 170, 481 P.3d 521 (2021). The trial court vacated Twitty’s 2008 sentence and ordered
that he be resentenced excluding the unlawful possession of a controlled substance adjudication
from his criminal history.
At resentencing in March 2023, Twitty’s offender score included the juvenile
adjudication for second degree assault and several adult convictions, resulting in an offender
score of 6 on the first degree attempted murder conviction and 5 on the first degree UPOF
conviction. The standard sentencing ranges were 234-316 months for attempted murder and 41-
54 months for UPOF. The State recommended a sentence at the high end of the range for the
attempted murder conviction – 316 months plus 60 months for the firearm sentencing
enhancement. Twitty requested an exceptional sentence below the standard range of a total of
240 months.
The trial court imposed a standard range sentence. The court sentenced Twitty to 278
months in confinement on the first degree attempted murder conviction plus an additional 60
2 No.58999-1-II
months in confinement for a firearm sentencing enhancement, and 54 months in confinement on
the first degree UPOF conviction.
Twitty appealed his 2023 judgment and sentence. He argued that the trial court erred
when it failed to apply RCW 9.94A.525(1)(b) prospectively to his case, and that the court should
remand for resentencing with an offender score that does not include his juvenile second degree
assault conviction. State v. Twitty, No. 58738-6-II, slip op. at 7 (Aug. 6, 2024) (unpublished)
https://www.courts.wa.gov/opinions/pdf/D2%2058738-6-II%20Unpublished%20Opinion.pdf.
This court rejected this argument and affirmed Twitty’s sentence. Id. at 17.
Twitty files this PRP, challenging the constitutionality of including a prior juvenile
conviction for second degree assault in his offender score.
ANALYSIS
A. PRP PRINCIPLES
To prevail in a PRP, the petitioner must establish by a preponderance of the evidence (1)
a constitutional error that resulted in actual and substantial prejudice or (2) a fundamental defect
of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re
Pers. Restraint of Meredith, 191 Wn.2d 300, 306, 422 P.3d 458 (2018). Here, Twitty asserts a
constitutional error – violation of article I, section 14 of the Washington Constitution.
Establishing “actual and substantial prejudice” means more than merely showing the
possibility of prejudice; the petitioner must establish that if the alleged error had not occurred,
the outcome more likely than not would have been different. In re Pers. Restraint of Meippen,
193 Wn.2d 310, 315-16, 440 P.3d 978 (2019). When sentencing is involved, the petitioner must
show that their sentence would have been shorter but for the alleged error. Id. at 316.
3 No.58999-1-II
B. CRUEL PUNISHMENT CHALLENGE
Twitty argues that the inclusion of his juvenile second degree assault adjudication in his
offender score violates the cruel punishment provision of article I, section 14. We disagree.
1. Legal Principles
Twitty argues that the use of juvenile adjudications to calculate offender scores is
categorically unconstitutional under article I, section 14. There are two steps in the categorical
bar analysis. First, we must determine “whether there are ‘objective indicia of a national
consensus against the sentencing practice[.]’ ” State v. Reynolds, 2 Wn.3d 195, 204, 535 P.3d
427 (2023). (quoting State v. Bassett, 192 Wn.2d 67, 84, 428 P.3d 343 (2018)). We determine
whether there is a national consensus “by looking at the ‘objective indicia of society’s standards,
as expressed in legislative enactments and state practice.’ ” Reynolds, 2 Wn.3d at 204 (quoting
Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)). “ ‘It is not so
much the number of these States that is significant, but the consistency of the direction of
change.’ ” Reynolds, 2 Wn.3d at 204 (quoting Bassett, 192 Wn.2d at 86).
Second, we must address “ ‘whether our independent judgment, based on controlling
precedent and our understanding and interpretation of the cruel punishment provision’s text,
history, and purpose, weighs against the sentencing practice.’ ” Reynolds, 2 Wn.3d at 204
(quoting Bassett, 192 Wn.2d at 83). We consider 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 challenged sentencing practice serves legitimate penological goals.’ ”
Reynolds, 2 Wn.3d at 207 (quoting Bassett, 192 Wn.2d at 87). “The four recognized ‘legitimate
penological goals’ are retribution, deterrence, incapacitation, and rehabilitation.” Reynolds, 2
Wn.3d at 207 (quoting Bassett, 192 Wn.2d at 87.)
4 No.58999-1-II
We review constitutional challenges de novo. State v. Ross, 28 Wn. App. 2d 644, 646,
537 P.3d 1114 (2023), review denied, 2 Wn.3d 1026, 544 P.3d 30 (2024).
2. Analysis
Twitty argues that article I, section 14 requires a retroactive prohibition against including
juvenile adjudications in offender scores. He points to Connecticut and Oregon as examples.
The Connecticut legislature abolished the death penalty for future crimes, leaving people still on
death row to face execution. State v. Santiago, 318 Conn. 1, 9, 122 A.3d 1 (2015). The
Connecticut Supreme Court barred the executions from taking place, and held that the death
penalty did not comport with Connecticut’s standards of decency. Id. at 10. And in Oregon, the
legislature passed a law prospectively reclassifying the crimes that previously had constituted
aggravated murder. State v. Bartol, 368 Or. 598, 600, 496 P.3d 1013 (2021). The Oregon
Supreme Court held that similarly situated people on death row could not be executed. Id. We
note that both cases involved the death penalty, not standard range sentences.
Twitty asserts that the Washington legislature concluded in RCW 9.94A.525(1)(b) that
the use of juvenile adjudications to calculate adult sentences does not result in a just and fair
sentence because the evidence shows that juveniles’ decision making differs significantly from
adults, defendants in juvenile adjudications do no not have the right to a jury trial, and those facts
taken together result in a racially disproportionate impact of including juvenile adjudications in
offender scores. He claims that the enactment of RCW 9.94A.525(1)(b) shows a consensus in
Washington against the practice of including juvenile adjudications in offender scores.
However, Twitty cannot satisfy either step of the article I, section 14 categorical bar
analysis. First, Twitty does not show that there is a national consensus against the inclusion of
juvenile adjudications in adult sentencing, the first part of the categorical bar analysis. See
5 No.58999-1-II
Reynolds, 2 Wn.3d at 204. In fact, he concedes the point that there is no national consensus
because there is a wide diversity in the restrictions placed on juvenile adjudications among the
states.
Twitty points to the difficulty of measuring the use or disuse of juvenile adjudications
among the states because of the diversity of approaches that each state takes to the use of
juvenile adjudications. He argues that we can disregard the national consensus requirement in
favor of a local consensus. He asks us to revise the constitutional test and follow Washington
trends and practices to inform the constitutional analysis.
This is a compelling argument; interpretation of the Washington Constitution should not
necessarily depend on what other states are doing. And Washington courts have acknowledged
the different culpabilities between children and adults. See State v. Houston-Sconiers, 188
Wn.2d 1, 18, 391 P.3d 409 (2017) (holding that sentencing standards for juveniles are different
than those of adults because “children are different”); see also Bassett, 192 Wn.2d at 81 (holding
that children warrant special protections in sentencing).
However, the enactment of RCW 9.94A.525(1)(b) does not show that there is a
consensus in Washington that juvenile adjudications cannot be included in offender scores.
RCW 9.94A.525(1)(b) reflects only a legislative decision that certain juvenile adjudications no
longer should be included in offender scores, not that the prior rule was improper or unlawful.
The legislature could have made RCW 9.94A.525(1)(b) retroactive, but elected not to. And the
legislature did not completely ban the consideration of juvenile adjudications from offender
scores. See RCW 9.94A.525(1)(b) (juvenile court adjudications of guilty for first or second
degree murder and class A felony sex offenses may be included in offender scores).
6 No.58999-1-II
Further, we are not in a position to alter the categorical bar analysis that has been adopted
by the Supreme Court. See State v. Rohleder, 31 Wn. App. 2d 492, 494, 550 P.3d 1042 (2024).
Any change in that analysis must come from the Supreme Court.
Second, Twitty does not even address why we should use our independent judgment to
make this sentencing practice unlawful, the second part of the categorical bar analysis. For
example, he fails to show how the inclusion of juvenile adjudications in offender score
calculations does not serve legitimate penological goals. See Reynolds, 2 Wn.3d at 204.
Twitty’s sentence was not for his juvenile adjudication, but for his current adult offense.
See Id. at 208. The United States Supreme Court stated that “a second or subsequent offense is
often regarded as more serious because it portends greater future danger and therefore warrants
an increased sentence for purposes of deterrence and incapacitation.” United State v. Rodriquez,
553 U.S. 377, 385, 128 S. Ct. 1783, 170 L.Ed.2d 719 (2008). Twitty committed attempted first
degree murder as an adult, and it was not his first offense. Because this was a subsequent
offense, the principle that an increased sentence is warranted “for purposes of deterrence and
incapacitation” applies. Id.
Accordingly, we reject Twitty’s argument that the inclusion of his juvenile second degree
assault adjudication in his offender score violates the cruel punishment provision of article I,
section 14.
CONCLUSION
We deny Twitty’s PRP.
7 No.58999-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
CRUSER, C.J.
PRICE, J.