IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85084-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BRANDON KENNETH WHITE,
Appellant.
CHUNG, J. — Brandon White committed aggravated murder in the first
degree when he was 19 years old. In 2001, he was convicted and sentenced to
life without parole (LWOP). In 2023, White received a resentencing hearing
based on In re Pers. Restraint of Monschke, 1 and was sentenced to 39 years of
confinement. White appeals, claiming that the sentencing court erred by
presuming an LWOP sentence and placing the burden on him to prove mitigating
factors by a preponderance of the evidence. He also argues the court placed too
little weight on his evidence of rehabilitative efforts.
Subsequent to White’s resentencing, our Supreme Court held in State v.
Carter 2 that in a resentencing based on Monschke, the sentencing court has
discretion to impose a sentence of LWOP or anything less than LWOP. In this
case, White’s sentencing court understood its discretion; considered the
1 197 Wn.2d 305, 482 P.3d 276 (2021). 2 3 Wn.3d 198, 219, 548 P.3d 935 (2024). No. 85084-9-I/2
evidence of mitigating qualities of youth, including whether White’s crime
reflected youthful immaturity, impetuosity, or the inability to appreciate the
consequences and risks, as well as the capacity for, and actual rehabilitation;
considered the individual facts of the case; and explained its reasoning. We
conclude that the court did not abuse its discretion by imposing a 39-year
determinate sentence. We therefore affirm.
BACKGROUND
In December 2001, a jury convicted Brandon White of aggravated murder
in the first degree and made special findings that he committed the crime with a
firearm and a deadly weapon other than a firearm, a knife. White was 19 years
old at the time of the crime. The trial court sentenced him to LWOP. On direct
appeal, this court affirmed his conviction in 2003. State v. White, noted at 117
Wn. App. 1025 (2003), 2003 WL 21387219, at *3.
In 2019, this court denied White’s personal restraint petition (PRP), which
claimed a “constellation of recent federal and state cases that address
sentencing of juveniles and youthful offenders” constituted a significant change in
the law which had rendered the statute under which he was sentenced
unconstitutional. In re Pers. Restraint of White, No. 76988-0-I, slip op. at 4
(Wash. Ct. App. Dec. 2, 2019) (unpublished)
(https://www.courts.wa.gov/opinions/pdf/769880.pdf). Subsequently, White
moved under CrR 7.8 to be resentenced based on Monschke, which held that
sentencing all 18- to 20-year-olds convicted of aggravated murder to mandatory
LWOP under RCW 10.95.030 regardless of individual characteristics violates the
2 No. 85084-9-I/3
state constitution because it denies courts discretion to consider the mitigating
qualities of youth. 197 Wn.2d at 326, 329. After initially transferring White’s CrR
7.8 motion to this court as a PRP, the trial court granted his motion in February
2023.
At resentencing, the State recommended that the court impose the same
sentence, LWOP. It argued White is “one of those rare and uncommon youthful
offenders that deserves” LWOP. The court asked the State whether, assuming
White’s crime did not reflect youth, the law authorized LWOP as an appropriate
sentence. The State answered, “The Court has absolute unfettered discretion at
this point.” The court followed up, “Even if the crimes did not reflect [youth]?” The
State answered,
I still think the Court has discretion. . . . So I don’t think . . . assuming . . . there’s nothing about mitigating youthful characteristics of this crime that the Court finds that you’re mandated to sentence him to life without [parole]. I just don’t think that’s the state of the law at this point.
White requested a sentence of 265 months, equivalent to time served, to
be followed by 36 months of community custody. He based his recommendation
on the standard range for murder in the first degree for a person with an offender
score of 0 such as White, which is 240 to 320 months. White asserted that, “Your
Honor has the discretion to . . . sentence [White] however you see fit.”
At his resentencing hearing, White presented reports from two experts: a
forensic psychological evaluation and a response to concerns raised in the
State’s resentencing brief by Dr. Michael Stanfill and a mitigation investigation by
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clinical social worker Tiffany Cunningham. Neither testified; the State stipulated
to the admission of their reports in lieu of their testimony.
Dr. Stanfill opined on White’s risk for future offending based on several
clinical assessments, including the Violence Risk Appraisal Guide, Revised
Version (VRAG-R). He concluded that White’s current risk for future acts of
violence or aggression were in the low range and he was in the low recidivism
risk categorization group. Dr. Stanfill stated that there was significant evidence
White was “developmentally immature at the time of the alleged offense and did
not have the cognitive flexibility or appreciation of reckless behavior that would
typically be seen in a fully functioning and developed adult.” Dr. Stanfill’s report
concluded that “there was significant evidence that Mr. White was immature, a
product of his environment and susceptible to negative social influences at the
time of the 2000 index offense and not necessarily representative of who he was
now or who he will be in the coming years.”
Cunningham’s report stated that “[t]he impulsivity characterizing Brandon’s
involvement in the offense is consistent with the brain-immaturity of a 19-year-
old” and his “participation in the offense represented impulsive conduct on his
part, even though some superficial ‘planning’ may have been involved and the
sequence leading up to the offense extended over a number of hours.”
Cunningham opined that neurodevelopmental factors and psychosocial factors,
including fetal drug and alcohol exposure, White’s own substance abuse, and
parental abandonment and abuse, further reduced his functional maturity at age
19 relative to the typical 19-year-old, and his developmental history reflected only
4 No. 85084-9-I/5
limited protective factors or “developmental assets” that would have reduced his
risk as a youth of delinquency and serious violence. Cunningham noted that
while incarcerated, White exhibited “significant gains in psychosocial maturity
and sustained rehabilitation,” and he now had a more stable, sober, and
prosocial family network than in his teen years. Cunningham summarized,
“White’s conduct at the time of the offense is not predictive of his risk of offending
as a middle-aged adult. The age-related growth in Mr. White’s psychosocial
maturity, and associated capacity to desist from misconduct, is evident in his
incarceration adjustment consistently over the years.”
White also presented evidence of his rehabilitation while in prison. He
earned his general equivalency diploma, took horticulture courses, learned
employable trade skills, demonstrated a work ethic that Department of
Corrections staff praised, took a leadership role in an incarcerated youth
program, proved himself trustworthy in prison jobs, and became a role model for
other inmates. He did not incur a single infraction during 22 years in prison. His
wife Danielle testified that he is an “amazing dad” to their three-year-old
daughter. Former inmates and a former corrections officer who knew White
inside prison testified on his behalf at his resentencing, as did family members
and White himself. Three of the victim’s brothers and a sister also testified at the
hearing.
The court sentenced White to 39 years, or 468 months, of total
confinement and 36 months of community custody. The court’s order states that
the sentence of 468 months included 84 months for weapons enhancements and
5 No. 85084-9-I/6
that “both weapon enhancements,” 60 months for the firearm and 24 months for
the knife used in the crime, are “to run concurrently.”
White timely appealed. 3
DISCUSSION
White raises several issues on appeal. First, he argues the sentencing
court erred by treating LWOP as the presumptive sentence and placing the
burden on White to prove mitigating factors by a preponderance of the evidence.
He also claims the court erred by placing “too much focus on retribution and not
enough on rehabilitation.” Finally, he argues that the sentencing court erred by
failing to conduct an evidentiary hearing to resolve a material disputed fact. The
State contends that the sentencing court properly exercised its discretion at
resentencing, including placing the burden of proof on defendant to prove
mitigating factors of youth and properly considering evidence of rehabilitation.
The Washington Supreme Court has held that “children under the age of
18 are different” and “that young adults are different as well, based on well-
established neurological science, sociological analysis, and legal principles.”
Carter, 3 Wn.3d at 211. As a result, sentencing children to mandatory LWOP
violates the federal and state constitutions. Miller v. Alabama, 567 U.S. 460, 465
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (sentencing children to mandatory
LWOP is unconstitutional); State v. Bassett, 192 Wn.2d 67, 72, 73, 428 P.3d 343
(2018) (sentencing children to LWOP categorically violates article 1, section 14).
3 The State initially filed a cross-appeal. At this court’s request, the parties submitted
supplemental briefs regarding the impact of Carter, 3 Wn.3d 198. In addition, the State filed a motion to withdraw its cross-appeal based on Carter. We hereby grant the motion.
6 No. 85084-9-I/7
And in Monschke, our Supreme Court held that sentencing all 18- to 20-year-olds
convicted of aggravated murder to mandatory LWOP under RCW 10.95.030
violates article I, section 14 of our state constitution because it denies courts
discretion to consider the mitigating qualities of youth. 197 Wn.2d at 326, 329.
Therefore, when sentencing a young adult offender convicted of
aggravated murder in the first degree, the sentencing court “ ‘must consider [the]
mitigating qualities of youth at sentencing and must have discretion to impose
any sentence below’ the otherwise applicable range.” Carter, 3 Wn.3d at 211
(quoting State v. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409 (2017)).
“The mitigating qualities of youth recognized in Miller and Houston-Sconiers are
the defendant’s ‘ “immaturity, impetuosity, and failure to appreciate risks and
consequences,” ’ as well as ‘the nature of the juvenile’s surrounding environment
and family circumstances,’ ‘ “the way familial and peer pressures may have
affected” ’ them, and ‘any factors suggesting that the child might be successfully
rehabilitated.’ ” Carter, 3 Wn.3d at 220 (quoting Houston-Sconiers, 188 Wn.2d at
23 (quoting Miller, 567 U.S. at 477)) (applying factors to young adults aged 18 to
20 entitled to resentencing under Monschke).
“In addition to the mitigating qualities of youth, sentencing courts must
also consider the facts of the particular case.” Carter, 3 Wn.3d at 212 (citing
State v. Haag, 198 Wn.2d 309, 323-24, 495 P.3d 241 (2021)). “[Y]outh is not a
per se mitigating factor . . . . Instead, a juvenile offender must show that their
immaturity, impetuosity, or failure to appreciate risks and consequences—
characteristics of youth that suggest a juvenile offender may be less culpable
7 No. 85084-9-I/8
than an adult offender—contributed to the commission of their crime.” State v.
Anderson, 200 Wn.2d 266, 285, 516 P.3d 1213 (2022). The court “must
thoroughly explain its reasoning for imposing such a sentence, specifically
considering the differences between youth and adults and how those differences
apply to the case.” Carter, 3 Wn.3d at 211.
We will not reverse a sentencing court’s decision unless we find a clear
abuse of discretion or misapplication of the law. Id. at 212. A trial court abuses its
discretion when its decision is manifestly unreasonable or based upon untenable
grounds. Haag, 198 Wn.2d at 317. Untenable grounds consist of factual findings
that are unsupported by the record. Carter, 3 Wn.3d at 212. “We review factual
findings for substantial evidence, which ‘exists where there is a sufficient quantity
of evidence in the record to persuade a fair-minded, rational person of the truth of
the finding.’ ” Id. (internal quotation marks omitted) (quoting Haag, 198 Wn.2d at
317).
A. Court’s Discretion
White argues that the sentencing court improperly viewed LWOP as the
presumptive sentence and improperly placed the burden on White to
demonstrate the mitigating qualities of youth. The State disagrees, contending
that the sentencing court had discretion to impose a long sentence, provided it
considered the mitigating qualities of youth and the facts of the case and detailed
its findings. We agree with the State.
RCW 10.95.030(1) requires that “any person convicted of the crime of
aggravated first degree murder shall be sentenced to life imprisonment without
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possibility of release or parole.” But “mandatory LWOP under RCW 10.95.030 [is]
unconstitutional as applied to a subset of 18- to 20-year-old defendants . . . .”
Carter, 3 Wn.3d at 219 (citing Monschke, 197 Wn.2d at 310-12, 327). For this
subset of youthful offenders sentenced under Monschke, the statute’s mandatory
language must be replaced with permissive language, so it permits LWOP or
anything less than LWOP. Carter, 3 Wn.3d at 219. 4 Therefore, the court may
sentence a defendant to a determinate sentence because the individualized,
discretionary sentencing is consistent with Monschke. Id.
As the Washington Supreme Court explained, “RCW 10.95.030 made
LWOP mandatory and not discretionary, so the statute was unconstitutional in
that respect, but not unconstitutional in its entirety.” Carter, 3 Wn.3d at 219 (citing
Monschke, 197 Wn.2d at 325 (“statute’s rigid cutoff at age 18 combined with its
mandatory language creates an unacceptable risk that youthful defendants
without fully developed brains will receive a cruel LWOP sentence”)). Under the
doctrine of severability, a court can “modif[y] the existing statute in the manner
required by article I, section 14 of the Washington Constitution prohibiting cruel
punishment . . . by severing the unconstitutional ‘mandatory’ language and
leaving the rest intact.” Carter, 3 Wn.3d at 218. Such modification is required only
if, as applied, the statute would be unconstitutional. As the court noted in
4 The majority opinion in Carter acknowledges that “it may seem peculiar that the
minimum for people 18 to 20 years old is zero years.” 3 Wn.3d at 216. And the concurring opinion in Carter states that “it matters that the legislature set forth the minimum sentence a child may receive for aggravated first degree murder: 25 years.” Id. at 232 (González, C.J., concurring) (citing RCW 10.95.030(2), the Miller-fix provision that applies to juveniles). As this statute is unchallenged and presumptively constitutional, “[i]t would be an abuse of discretion for a judge to sentence an 18-, 19-, or 20-year-old to a sentence that is less than what a judge is required to impose on a 14-year-old for aggravated first degree murder.” Id.
9 No. 85084-9-I/10
Monschke, rather than impose a categorical bar, Miller “ ‘mandate[d] only that a
sentencer follow a certain process—considering an offender’s youth and
attendant characteristics—before imposing a particular penalty.’ ” Monschke, 197
Wn.2d at 327 (quoting Miller, 567 U.S. at 483). Until and unless a court has
determined that youth has been established as a mitigating factor, the provisions
of the applicable sentencing statute—here, RCW 10.95.030(1)—apply. Cf.
Rogers, 17 Wn. App. 2d at 475 (reviewing sentence for juvenile defendant
convicted of murder in the first degree, holding that “the provisions of the SRA
apply until a court has determined that youth has been established as a
mitigating factor”).
The applicable sentencing statute, RCW 10.95.030, does not assign a
burden of proof to demonstrate the mitigating qualities of youth, as it
contemplates only mandatory LWOP. And the Sentencing Reform Act, RCW
9.94A.535, which places the burden of proof on a defendant to prove mitigating
circumstances, does not apply to sentences imposed under RCW 10.95.030 for
aggravated murder in the first degree. 5 See State v. Rogers, 17 Wn. App. 2d
466, 478 n.9, 487 P.3d 177 (2021) (neither the SRA nor any other statute
“assigns the burden of proof of demonstrating that youth was a mitigating factor
5 In this case, the court’s written order used a standard form applicable for SRA
sentences, and the court checked the boxes for “exceptional sentence” and “below standard range.” The court also referred to the SRA standard for an exceptional downward sentence in its oral ruling, stating that “the defendant has the burden of proving by a preponderance of the evidence that his crime reflects transient immaturity as would justify an exceptional sentence below the sentence of life without the possibility of parole.” Although the SRA did not apply to White’s sentence, any error in referencing it was harmless. As discussed below in section B, the record amply demonstrates the court understood its discretion; determined that White’s “crime did not reflect youthful immaturity, impetuosity, or the inability to appreciate the consequences and risks,” but that there was strong evidence of rehabilitation; and explained its reasoning for imposing a 39-year determinate sentence.
10 No. 85084-9-I/11
at sentencing” 18- to 20-year-olds convicted of aggravated murder in the first
degree). Similarly, the Washington Supreme Court has noted that the “Miller-fix”
provision of the same statute, 6 which addresses sentencing of juveniles who are
tried as adults for aggravated first degree murder, does not allocate a burden of
proof, and “decline[d] to write one in.” State v. Delbosque, 195 Wn.2d 106, 124,
456 P.3d 806 (2020). We follow the reasoning in Delbosque and decline to add
language assigning a burden of proof when none exists in the statute. 7
B. Court’s Sentencing Decision
We next review the sentencing court’s decision to impose a 39-year
sentence for White’s conviction for first degree aggravated murder. White claims
that the sentencing court improperly placed “too much focus on retribution and
not enough on rehabilitation.” The State contends that the court did not abuse its
discretion and gave the evidence of rehabilitation the appropriate weight. We
agree with the State.
Again, we review the court’s sentencing decision for an abuse of
discretion. Carter, 3 Wn. 3d at 212. In a Monschke resentencing, “the trial court
must consider whether each defendant was subject to the mitigating qualities of
youth.” Monschke, 197 Wn.2d at 329. The mitigating qualities of youth are “the
defendant’s ‘ “immaturity, impetuosity, and failure to appreciate risks and
6 The current version of this provision is codified at RCW 10.95.030(2). 7 Discussing Delbosque, the court in Rogers suggested in dicta that the burden of proof
lies with the defendant. 17 Wn. App. 2d at 478 n.9 (“[I]f it were the State’s burden to prove that youth was not a mitigating factor before a life without parole sentence could be imposed, the Sixth Amendment would require that a jury make such a finding.”). While this reasoning in Rogers is compelling, we need not reach this issue to resolve this case. The Carter court reviewed Carter’s and Reite’s sentences for an abuse of discretion without explicitly assigning either party the burden of proof. 3 Wn.3d at 212. We similarly resolve this case by applying the same standard of review.
11 No. 85084-9-I/12
consequences, ” ’ as well as ‘the nature of the juvenile’s surrounding
environment and family circumstances,’ ‘ “the way familial and peer pressures
may have affected” ’ them, and ‘any factors suggesting that the child might be
successfully rehabilitated.’ ” Carter, 3 Wn.3d at 220 (quoting Houston-Sconiers,
188 Wn.2d at 23 (quoting Miller, 567 U.S. at 477)). Youth is not a per se
mitigating factor, but rather, “a juvenile offender must show that their immaturity,
impetuosity, or failure to appreciate risks and consequences—characteristics of
youth that suggest a juvenile offender may be less culpable than an adult
offender—contributed to the commission of their crime.” Anderson, 200 Wn.2d at
285.
“When reviewing evidence regarding the mitigating characteristics of
youthfulness, sentencing courts must ‘meaningfully consider how juveniles are
different from adults, how those differences apply to the facts of the case, and
whether those facts present the uncommon situation where’ the juvenile offender
is just as culpable as an adult offender.” Id. at 285 (quoting State v. Ramos, 187
Wn.2d 420, 434-35, 387 P.3d 650 (2017)). “While sentencing courts must focus
on these mitigating qualities of youth, they must also consider the facts of the
particular case, including those that counsel in favor of punishment.” Anderson,
200 Wn.2d at 286.
Moreover, at a resentencing hearing for a juvenile or youthful offender,
mitigation evidence can also include the measure of rehabilitation that has
occurred since a youth was originally sentenced. Haag, 198 Wn.2d at 321.
“Courts must ‘consider the capacity for rehabilitation when making an initial
12 No. 85084-9-I/13
sentencing decision’ involving LWOP, but ‘evidence of actual “demonstrated
maturity and rehabilitation” is generally considered later,’ when determining
whether a defendant ‘who is up for parole should be given early release.’ ”
Carter, 3 Wn.3d at 221 (quoting Ramos, 187 Wn.2d at 449) (quoting Miller, 567
U.S. at 477-79)). Thus, whether to consider such evidence of rehabilitation “is a
question we leave to the discretion of the trial court in each case.” Ramos, 187
Wn.2d at 449, quoted in Carter, 3 Wn.3d at 221.
Finally, “ ‘[t]he sentencing court must thoroughly explain its reasoning,
specifically considering the differences between juveniles and adults identified by
the Miller Court and how those differences apply to the case presented.’ ” Haag,
198 Wn.2d at 321 (quoting Ramos, 187 Wn.2d at 444).
As White notes, when a sentencing court places more emphasis on
retribution than on mitigation—in other words, when the court’s focus is
backward-looking rather than forward-looking—it can constitute reversible error.
See Haag, 198 Wn.2d at 325. For example, in Haag, the court imposed a 46-
year minimum and maximum LWOP sentence upon resentencing Haag, who had
been 17 when he committed aggravated murder in the first degree. 198 Wn.2d at
316. At his resentencing hearing, Haag presented two expert witnesses, who
testified that he was at a low risk of reoffending both at the time of the offense
and currently, as well as numerous witnesses who testified to his rehabilitation.
Id. at 314. The State did not rebut Haag’s evidence and offered only victim
impact testimony. Id. at 315. Yet the “court’s emphasis on retribution was stark,”
and it noted that retribution matters, stating, “Under the retributive theory,
13 No. 85084-9-I/14
severity of the punishment is calculated by the gravity of the wrong committed.”
Id. at 323. By contrast, when it considered youth, it primarily focused on the
victim’s youth and discussed Haag’s youth only in “cursory” fashion. Id. at 323-
24. Our Supreme Court held that “in the face of the substantial and
uncontroverted mitigating evidence,” the court had impermissibly favored
retributive factors over mitigation factors. Id. at 325.
Here, unlike the court in Haag, White’s sentencing court understood and
properly exercised its discretion. First, the sentencing court explained the
applicable law in detail, beginning by reviewing federal and Washington State law
regarding sentencing juveniles and young adults for aggravated first degree
murder. The court traced the “two strands” of reasoning from Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), and Graham v. Florida,
560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)—“children are different”
and “individualized sentencing”—that led to the U.S. Supreme Court’s decision in
Miller. The court reviewed the application of Miller in Washington State: Houston-
Sconiers, which affords courts complete discretion to individually consider youth
when sentencing juveniles; Bassett, which categorically bars juvenile LWOP
sentences under article I, section 14 of Washington’s constitution; and the
extension of Miller’s protections to young adults in Monschke. The court noted
that evidence of rehabilitation must be considered under Haag and Anderson.
Then, the court discussed the evidence presented at the sentencing
hearing. First, the court “found that the crime did not reflect youthful immaturity,
impetuosity, or the inability to appreciate the consequences and risks associated
14 No. 85084-9-I/15
with his action.” It found that neither expert’s report addressed the specific facts
of White’s crime. Second, it found White’s crime was not impetuous because
“[t]he evidence before the jury was that this was a planned-out event,” especially
because White obtained the firearm and the knife used in the crime in advance
and wore a suit as a ruse to gain entry. Third, White’s crime did not reflect
youthful immaturity because the evidence showed White planned and committed
the murder alone, not under the influence of peer pressure. Fourth, the court
found that White did not fail to appreciate the risks and consequences of his
actions. Instead, the evidence showed he killed Gail Jubie to prevent her from
becoming a witness. Additionally, the evidence showed White appreciated the
consequences of his crime because he understood the penalties he faced; when
he was interviewed by police, he demonstrated maturity and understanding of the
consequences by explaining the differences between burglary and robbery, as
well as between burglary and attempted burglary. He told the detectives he had
given them “reasonable doubt” to prove he was not at the crime and would beat
the charge, which the court found “reflect[ed] a level of maturity and
understanding of the criminal justice process and the burden of proof at trial.”
The court also considered White’s rehabilitation in the years that he has
been incarcerated. The evidence showed White was a “model prisoner” who
never had “any infractions in 22 years of incarceration.” The court also said,
however, that the same evidence “undercuts, while being a very positive thing for
the defendant, in some way may be looked at as undercutting a claim that he
was so impulsive early on that he couldn’t stay out of committing crimes.”
15 No. 85084-9-I/16
Nevertheless, the court noted White stayed out of crimes while in a structured
setting, which was “remarkable because it shows that the defendant has the
potential of rehabilitation and can be rehabilitated.”
The court noted that “Haag instructs this Court to place more emphasis on
the mitigating factors, even as the heinous nature of the crime counsels towards
punishment.” The court then described the “strong supportive voices” at the
resentencing hearing from six former inmates who spoke about White’s positive
influence; a former corrections officer who described White as a “model prisoner”
and opined he could be rehabilitated; and a chaplain. The court noted that the
State did not challenge White’s infraction-free record and other supportive
observations. Moreover, Dr. Stanfill opined that the defendant scored a low risk
of reoffending.
Therefore, the court concluded, the evidence “support[s] an argument that
the defendant is not so fixed that he is incapable of rehabilitation such that he
should be sentenced to die in prison.” While the court was concerned that White
“only recently took responsibility for his actions in the death of Ms. Jubie,” the
court could not agree with the State that White could not be rehabilitated: “To do
so would be to disregard the undisputed evidence before the Court that instructs
this Court that the defendant can be rehabilitated.” The court also noted that
White came from a dysfunctional background, and while not itself controlling, it
was one of the factors that the court considered.
The court rejected the State’s recommended sentence of LWOP but also
determined that the defendant’s request for “time served at 22 years would
16 No. 85084-9-I/17
disregard the heinous nature of the crime” and the fact that the crime did not
reflect youthful immaturity, impetuosity, or the inability to appreciate the
consequences and risks associated with his action. Overall, the court noted
“punishment must promote respect for the law by providing punishment that is
just,” but concluded neither White’s proposed 22-year sentence nor the State’s
proposed LWOP sentence, which would have ignored the evidence of
rehabilitation, would accomplish this goal. Having weighed the evidence of the
mitigating factors of youth, the court sentenced White to 39 years.
White argues the resentencing court gave his rehabilitation evidence only
“minimal legal weight,” and then used it as “a double-edged sword” against him.
He points to the court’s statements about the “heinous nature of the crime” and
that “punishment must promote respect for the law,” as well as its reference to
the “tragedy of great – of immense proportions” for the families involved. But the
court explicitly stated its understanding that when sentencing a youthful offender,
Haag requires the court to place more emphasis on mitigating factors. And Haag
does not require the court to completely disregard retribution or ignore victim
impact statements. The court’s explanation of the evidence here is nothing like
the court’s description in Haag, which emphasized graphic details and the harm
to the victim, while acknowledging the multiple witnesses’ mitigating evidence
only briefly.
Instead, the court’s analysis of rehabilitation in the present case is similar
to the court’s analysis of mitigating evidence for defendant Reite, discussed in
Carter. As with White, in Reite’s case, the court found strong evidence of
17 No. 85084-9-I/18
rehabilitation and stated that it “demonstrates her diminished culpability and her
great capacity for change.” Carter, 3 Wn.3d at 224. Nevertheless, both in this
case and Reite’s case, the sentencing courts found that the defendant’s crimes
did not reflect the mitigating qualities of youth. In Reite’s case, the court “was not
completely persuaded that youthful characteristics were a substantial factor in
Reite’s crimes,” shooting and killing both her mother and her mother’s partner. Id.
at 204, 208. Reite’s crimes were not impetuous, the court found, because “[they]
related to planned financial crime against her mother.” Id. at 209. Further, Reite’s
home life was nurturing. Id. No peer pressure influenced her and her youth did
not impact her legal defenses. Id. Also, the court “noted Reite’s rehabilitation,”
that she had “ ‘persevered’ in her efforts at self-improvement ‘despite it being
hopeless, or seeming so.’ ” Id. (quoting the record). Reite took responsibility for
“being unimpacted by the enormity of her actions at the time of the crime . . . and
realized the pain she caused to everyone who loved her mother and her mother’s
partner.” Id. at 223. The court affirmed Reite’s sentence of two consecutive 280-
month sentences (a little more than 46 years), reasoning that Reite’s “is a rare
case where a sentence of this length is appropriate because the detailed findings
by the superior court comported with the requirements of individualized
consideration of the mitigating qualities of youth.” Id. at 224.
Here, the record shows the sentencing court fully considered White’s
proffered evidence of mitigating qualities of youth, including evidence of
rehabilitation, as Monschke and other controlling authority require. Substantial
evidence supports the court’s detailed findings that comported with the
18 No. 85084-9-I/19
requirements of individualized discretion and consideration of the mitigating
qualities of youth. 8 The court did not abuse its discretion in sentencing White to
39 years of confinement. Though it is a long sentence, it is not an
unconstitutional de facto LWOP sentence because substantial evidence supports
the trial court’s conclusion that White’s crime did not reflect the hallmarks of
youth. See Anderson, 200 Wn.2d at 280 (clarifying Haag and affirming 61-year
sentence when substantial evidence supported court’s conclusion that
defendant’s crimes did not reflect youthful characteristics).
We affirm.
WE CONCUR:
8 White also argues on appeal that the sentencing court erred by failing to conduct an
evidentiary hearing to resolve a material disputed fact. He notes that at trial he admitted he was present during Jubie’s murder but claimed another person shot her, slit her throat, and stabbed her. He claims that “the jury’s guilty verdict did not necessarily resolve that factual dispute in the State’s favor,” and the factual claim that White acted alone “loomed large and figured prominently” in both parties’ presentations, as well as in the sentencing decision. But as the State notes, White’s sentencing memorandum does not mention the alleged other person, and White’s reply to the State’s sentencing brief states, “Defense is not here to relitigate the facts. Everyone, including Brandon, agrees that Brandon was responsible for the death of Gail Jubie.” He also addressed the court and stated, “I am guilty of the murder of Gail Jubie.” In response to the State’s argument that White did not object and, thus, did not preserve the issue for appeal, White claims it was the State’s obligation to object and identify the factual dispute. We agree with the State that White cannot now on appeal raise this issue, when he not only did not raise the issue below, but explicitly agreed with the State that he was responsible for the murder. See RAP 2.5(a).