State of Washington v. Vy Thang

• Court: Court of Appeals of Washington
• Decided: March 5, 2026
• Docket: 40197-9
• Status: Unpublished

Opinion

FILED MARCH 5, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON, ) ) No. 40197-9-III Respondent, ) ) v. ) ) VY THANG, ) UNPUBLISHED OPINION ) Appellant. )

STAAB, J. — Vy Thang appeals from his sentence imposed in 2015 at a Miller1

resentencing for a conviction of aggravated first degree murder that he committed when

he was 17 years old. Thang primarily contends that the trial court improperly

emphasized retributive factors over the mitigating qualities of youth in violation of

several cases published after he was sentenced.

We agree and conclude the trial court abused its discretion by failing to place

greater emphasis on Thang’s mitigating qualities of youth during resentencing.

Accordingly, we remand for a new resentencing hearing. Because the court will be

required to enter a new judgment and sentence, we do not address issues related to

1 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). No. 40197-9-III State v. Thang

community custody, fees, and assessments. Separately, we decline review of Thang’s

cruel punishment challenge because it is unpreserved.

BACKGROUND

This is Thang’s third direct appeal in this case. His case has a lengthy procedural

history, including two trials, two direct appeals, multiple personal restraint petitions

(PRPs), and a petition for a writ of habeas corpus in the United States Court for the

Eastern District of Washington. See Thang v. Gay, No. CV-07-235-LRS, 2008 WL

163619 (E.D. Wash. Jan. 15, 2008) (court order). This direct appeal arises from his 2015

resentencing hearing. This opinion discusses only the case facts relevant to the

resentencing hearing.

In 1996, sixteen-year-old Thang was convicted in Grays Harbor County of first

degree burglary, first degree robbery, and residential burglary after entering the home of

an elderly woman, kicking her, and stealing her property. When Thang was seventeen

years and ten months old and serving his sentence at Maple Lane School, a juvenile

detention facility, Thang escaped custody during a field trip to a Seattle Seahawks game

with another juvenile, Simeon Terry.

The pair traveled to Spokane, where Thang broke into the home of eighty-five-

year-old Mildred Klaus. Thang kicked her repeatedly, causing multiple blunt force

injuries, and she ultimately died. He then stole her purse, which contained approximately

$60, disposed of his bloody socks, washed his tennis shoes, and told Terry, “[t]he bitch is

2 No. 40197-9-III State v. Thang

dead, this bitch is dead.” Clerk’s Papers (CP) at 40. Days later, Klaus’s son discovered

her body lying in a pool of blood.

A jury found Thang guilty of aggravated first degree murder in 1999, although he

maintained his innocence and blamed Terry. The trial court imposed the then mandatory

sentence of life without parole (LWOP). The court also imposed the $500 victim penalty

assessment (VPA), court costs, and restitution. On appeal, this court affirmed. State v.

Thang, 103 Wn. App. 660, 13 P.3d 1098 (2000). The Washington Supreme Court took

review and later reversed, holding the trial court erred in admitting Thang’s 1996

burglary and robbery convictions as ER 404(b) identity evidence. State v. Thang, 145

Wn.2d 630, 41 P.3d 1159 (2002).

Following retrial in 2003, Thang again argued that Terry committed the crimes,

and a jury again found Thang guilty of aggravated first degree murder. The trial court

again imposed an LWOP sentence, the $500 VPA, court costs, and restitution. In 2004,

this court affirmed his conviction. State v. Thang, noted at 121 Wn. App. 1077 (2004).

Changes in Juvenile Sentencing Law

In 2012, the United States Supreme Court held that mandatory LWOP sentences

for juveniles violate the Eighth Amendment to the United States Constitution. See

generally Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

In response, the Washington Legislature enacted legislation to comply with Miller,

3 No. 40197-9-III State v. Thang

commonly referred to as “Miller-fix” statutes: RCW 10.95.030 and 10.95.035. State v.

Delbosque, 195 Wn.2d 106, 110-11 n.1, 456 P.3d 806 (2020); LAWS OF 2014, ch. 130.

For juveniles convicted of aggravated first degree murder committed between ages

16 and 18, RCW 10.95.030(2)(a)(ii) requires a maximum sentence of life imprisonment

with a minimum term of at least 25 years. When setting the minimum term, RCW

10.95.030(2)(b) directs courts to consider the “mitigating factors that account for the

diminished culpability of youth as provided in Miller v. Alabama,” including, but not

limited to, age, the youth’s childhood and life experiences, the degree of responsibility

the youth was capable of exercising, and the chances of rehabilitation. Further, any

juvenile sentenced to LWOP prior to June 1, 2014 “shall be returned to the sentencing

court or the sentencing court’s successor for sentencing consistent with RCW 10.95.030.”

RCW 10.95.035(1).

Because Thang received a mandatory LWOP sentence in 2003 for aggravated first

degree murder committed as a 17-year-old, he was required to be resentenced under the

Miller-fix statutes. RCW 10.95.035(1).

Miller-Fix Resentencing—Presentence Investigation Report

Prior to resentencing, the Department of Corrections (DOC) conducted a

presentence investigation of Thang and prepared a report (PSI). During the investigation,

Thang admitted guilt for the first time. He explained that he escaped from custody while

at the Seahawks game because Terry goaded him about his masculinity and courage. He

4 No. 40197-9-III State v. Thang

stated that while in Spokane, he entered the victim’s home intending to steal items to

repay the friends that were housing him. When the victim startled him in the kitchen, he

threw her down and kicked her until she stopped moving. He denied premeditation,

stating “it just happened.” See CP at 318-19. He described his actions as “impulsive,”

“without thought,” and the result of anger and resentment toward his family.

Regarding education and employment, the PSI indicated that Thang obtained his

high school diploma while housed at Maple Lane and was on the “fast track” to group

home placement and college before his escape. The PSI also listed numerous certificates

and coursework completed during his incarceration. Thang told the interviewing officer

that his school years were difficult because his parents operated a floral business and

required him to work there, leaving little time for his studies.

As to family background, Thang explained he was born in Cambodia and the

result of a forced marriage and arranged birth. His family fled to Seattle when he was

five or six years old. He recalled running from soldiers who were trying to kill his

family, and said his mother often told him that, as a loud baby, she had tried to throw him

into a river while the family fled the ruling regime in Cambodia. Thang recalled his

mother reminding him of his arranged birth and her attempts to drown him when she was

upset with him. He acknowledged that his childhood was otherwise free from emotional,

physical, or sexual abuse. The PSI also noted that Thang has no official or documented

mental health diagnoses.

5 No. 40197-9-III State v. Thang

The PSI also stated that Thang had remained infraction free during his

incarceration since 2012. However, his prior infraction history was also before the court.

Records showed infractions in 2000 (multiple incidents within six months), 2004

(possession of an edged weapon fashioned as a shank), 2005 (participation in a group

resisting staff orders), 2009 (possession of a cell phone), and 2012 (involvement in a

multiple inmate fight). Due to Thang’s history of violence and escape, the PSI classified

him as an escape risk.

The PSI also included a list of mitigating and aggravating factors:

In THANG’s case, mitigating factors to a high-end Standard Range sentence include the following:

• THANG was a juvenile at the time he committed the current offense, and a juvenile at the time of his original Robbery and Assault offense. • THANG has made considerable strides in furthering himself and being a productive inmate during his term of incarceration at Washington State Penitentiary (WSP) at Walla Walla. • THANG has remained infraction-free since 2012 • THANG has risen through the ranks of the WSP chapter of Toastmasters International, a significant accomplishment requiring dedication and institutional compliance

In addition, aggravating factors exist which would encourage the imposition of a sentence above the low-end of the Standard Range. Those factors include:

• THANG, while incarcerated at Maple Lane for a violent physical assault which occurred during the commission of a burglary, escaped and murdered the victim, Klaus, during the commission of a robbery. • THANG has a history of similar offenses, with similar outcomes • THANG has received infractions while housed at WSP for fighting, engaging in gang-related activity, possessing weapons and contraband

6 No. 40197-9-III State v. Thang

and participating in group demonstrations which affected the safety and orderly operation of WSP. • THANG is suspected of being a member of a prison-based gang, the Asian Blood Posse

CP at 285-86.

In conclusion, the PSI recommended 300 months of confinement, with credit for

time served, and approximately 192 months of community custody. The report noted a

concern that “a finding of premeditation was levied” and added that Thang’s statements

and the evidence “veer towards a Murder 2nd or Manslaughter charge.” CP at 286.

Resentencing Hearing

In September 2015, the trial court held a Miller-fix resentencing hearing. The

State first presented relatives of the victim who delivered impact statements, urging the

court to impose the maximum possible punishment and describing the continuing trauma

caused by the murder.

Defense Counsel’s Argument

Thang’s counsel addressed the court next, emphasizing the steps Thang had taken

to change and improve himself during nearly two decades of incarceration. He explained

that Thang earned his high school diploma in custody, completed community college

coursework, and received certificates in information technology, bookkeeping, Microsoft

Word, and graphic design. He also highlighted Thang’s participation in a “Redemption

Self-Awareness” program designed to help offenders view their crimes from the victim’s

perspective, and his active involvement in “Toastmasters” to develop communication 7 No. 40197-9-III State v. Thang

skills he lacked as a teenager. He noted that despite limited programming available to

LWOP inmates, Thang sought out and completed every class possible, and that his

infraction history in later years was minimal.

In addition, counsel played a video of recorded statements made by Thang’s

parents and sisters, who described Thang’s consistent efforts to maintain close family

connections. A volunteer chaplain also testified that, though she had never met Thang in

person, she had exchanged letters with him since 2014 and was struck by his sincerity,

remorse, and mentorship of younger inmates. Defense counsel also submitted a

sentencing memorandum for the court’s consideration.

The State’s Argument

The prosecutor spoke next, specifying and addressing the Miller factors the court

is required to consider. He first argued that the court must consider the character of the

offender and the circumstances of the offense. He noted that less than two years before

the murder, Thang had committed first degree robbery and burglary against another

elderly woman. He also urged the court to evaluate Thang’s “truth-telling,” reminding

the court that Thang blamed the murder on Terry in both trials, throughout his appeals,

and even before a federal court, where he alleged the State falsified and presented

perjured evidence. The prosecutor added that he was surprised to learn from the PSI

report that Thang had admitted responsibility for the murder and asked the court to

consider whether the admission was merely self-serving.

8 No. 40197-9-III State v. Thang

Turning to Thang’s background and development, the prosecutor emphasized

Thang’s above-average intelligence and the absence of any documented mental illness,

disability, or social problems. He argued that although Thang claimed difficulties

understanding the moral expectations and laws of the United States, that excuse carried

little weight after his prior robbery and burglary convictions. With respect to Thang’s

family life and home environment, the prosecutor argued there was no evidence that

Thang suffered physical or mental abuse. Instead, Thang had lived with his parents and

siblings while working and attending school.

Addressing the crime itself, the prosecutor stressed that no peer or family pressure

contributed to the offense. He contended that Thang had alternatives when confronted by

the victim, such as exiting the home, but instead chose to brutally beat her to death. He

noted that there was no evidence that Thang was intoxicated when he committed the

crimes. The prosecutor rejected the PSI’s suggestion that the circumstances and evidence

might have supported a lesser conviction, reminding the court that two juries had

convicted him of premeditated aggravated murder. The prosecutor concluded by asking

the court to impose life without parole, reimpose restitution and court appointed attorney

fees, and order lifetime no-contact with the victim’s family.

Defense Counsel’s Rebuttal Argument

During rebuttal argument, Thang’s attorney emphasized his resilience, family

support, and capacity for rehabilitation. He stressed that despite long separations,

9 No. 40197-9-III State v. Thang

transfers, and restrictions on visitation, Thang maintained close relationships with his

family, particularly his sister and niece. He also underscored Thang’s early years as a

Cambodian refugee, noting the hardships of displacement, poverty, and then social

alienation in the United States as a young kid. Turning to sentencing, he urged the court

to adopt the PSI writer’s recommendation of 25 years to life, emphasizing that such a

sentence would reflect both the seriousness of the offense and Thang’s rehabilitation.

Thang’s Allocution

Thang spoke next. He admitted sole responsibility for the victim’s death and

apologized to her family. He added that he intended to make good choices while in

prison and would try to help others avoid the same mistakes he made.

The Trial Court’s Oral Ruling

The court began by acknowledging the brutality of the crime and thanking the

victim’s family for attending and speaking:

And so, first, I do want to observe additionally that this murder of Ms. Klaus was undeniably brutal, awful, not necessary, and involved a lot of suffering on her part, in that as the medical evidence showed that, and of course Mr. Thang didn’t know this at the time, but it’s possible and likely that Ms. Klaus suffered for an extended period of time following the assault on her. So, in that respect I’m sure to the Klaus family members, this does seem like it’s happening all over again. And that’s an awful feeling, I’m quite sure, and I do want to express appreciation for the family members who did speak this morning. And seeing them and hearing what they had to say, it impresses the Court that indeed this family, the Klaus family, is a close-knit family, a very loving family, who have experienced a terrible,

10 No. 40197-9-III State v. Thang

terrible loss. And so, the Court appreciates your presence here and your thoughts on the matter.

Rep. of Proc. (RP) at 49-50.

The court then reflected on Thang’s family background and criminal history.

While acknowledging that Thang came from a relatively close-knit family, the court

noted that “something went awry” during his teenage years, as evidenced by his

convictions. The court emphasized the “bitter irony” that Thang had been on a positive

trajectory at Maple Lane, performing so well that he was considered a candidate for

higher education and was rewarded with a field trip to a Seahawks game. That reward,

however, created the opportunity for his escape, his trip to Spokane, and the events that

ultimately led to the murder.

The court next acknowledged that it considered the Miller factors:

So I looked at the Miller factors and have considered those, and it would appear that they are not only factors the court should consider for—in direct relation to a sentencing order but rather in addition to that, principles that apply through that Miller case. And given the advancement and the progress, development of further knowledge insofar as neurological development of children, the scientific evidence is now strong. That evidence shows that the brains of youthful people do not finish, that the development does not conclude at adolescence, but rather concludes on into young adulthood, and the science is extensive. There have been many studies. Miller has addressed that, and really there’s no longer any dispute that, in fact, that’s the case, in that people who are not adults, less than 18, need to be treated differently and with a consideration of the individual circumstances of that particular person. So among the principles is the US Supreme Court, we must follow the rule of law, which certainly the Supreme Court is the ultimate authority. And the Supreme Court has indicated among the principles that, first, sentencing a juvenile to life in prison without possibility of a parole should be an unusual and rare event, 11 No. 40197-9-III State v. Thang

and that’s not to say that a life sentence without parole is not permitted. It is permitted, but only after considering other factors that tend to justify that result, again from an individual perspective. And secondly, as I may have inferred and said a moment ago, juveniles are constitutionally different from adults. They’re subject to a number of influences, including peer pressure, and including the changing nature of the juveniles’ character and personality and world view, to summarize that. Third, the trial court needs to consider the individual circumstances of the particular homicide-type offense to include the juvenile’s participation level and the way these other pressures may have affected that juvenile. As pointed out by the state[sic], one of the factors or one of the influences required to be considered is whether or not there was substance abuse, there was physical abuse or other influences in that youthful person’s family setting and life which played a part in motivating that person to do what he or she did. Lastly, the court is required to take into consideration that juveniles are more capable of change than adults are, and as a result, actions of juveniles are not as likely to be evidence of an irretrievably depraved character, as the court described that factor, that principal [sic]. And so, the Supreme Court has said, just to sum all that up, that only a juvenile whose offense, homicide offense, reflects irreparable corruption, only those juveniles should receive life sentences without possibility of parole. So then as to the factors, the individual specific factors, the Court is required to consider the character of the offender and the circumstances of the offense; the background and mental and emotional development of the youthful defendant; the juvenile’s chronological age and hallmark features to include immaturity, impulsiveness or impetuosity, failure to appreciate risks and consequences. And I have considered all these, I would add, as I indicated at the outset. And the family home environment that surrounds the juvenile, no matter how brutal or dysfunctional.

RP at 51-53. The court then addressed each factor in detail.

The court first discussed Thang’s family home environment. It observed that

while his upbringing was “far from perfect,” it did not reflect the kinds of dysfunction

commonly seen in other juvenile homicide cases. The court noted that Thang’s parents

12 No. 40197-9-III State v. Thang

were immigrants with limited English proficiency and that he had been required to work

from an early age to support the family. It also recounted the traumatic history described

in the record: while fleeing the ruling regime in Cambodia, Thang’s mother attempted to

throw him into a river as an infant because his crying threatened the family’s safety—an

experience the court acknowledged could not have been remembered by Thang except for

recitation from family, which could have a lasting emotional impact. At the same time,

the court emphasized that Thang’s home life lacked common risk factors such as parental

substance abuse, mental illness, or physical abuse.

The court turned to the circumstances of the crime. The court acknowledged the

PSI suggested that Thang could have been convicted of a lesser crime but stated that two

juries had convicted Thang of aggravated first degree murder. The court said it was not

entirely clear whether Thang had entered the victim’s home intending to murder

somebody, but he nonetheless made the “abysmally awful and poor decision” to assault

the victim.

Next, the court discussed Thang’s potential for rehabilitation. The court indicated

it had considered Thang’s “track record” while incarcerated. It recognized that Thang

completed numerous programs aimed at promoting self-awareness, personal growth, and

communication skills, and had earned several awards for his participation. The court

further noted his consistent work ethic, observing that he was punctual, diligent, and

13 No. 40197-9-III State v. Thang

never caused problems in his assignments. The court commended Thang for being a self-

taught electrician and for receiving awards recognizing his skills in that field.

The court then stated:

So, the court sees a number of countervailing interpretations here applying the factors identified and the principles as well in reference to imposition of the sentence requested by the state [sic], life in prison without parole or that suggested by the PSI writer and defense counsel of 25 years to life. And in either case, as we know, the Indeterminate Sentence Review Board has the task and responsibility of addressing a specific release, whether that’s appropriate at all. So we do know that according to the statute, that I’ve just started to talk about, 10.95.030 that our legislature has enacted a quote, fix, unquote, to address the aftermath of the Supreme Court, US Supreme Court Miller case. And so, as I’ve just summarized, that is the set of alternatives that form the framework for a court’s sentencing of an individual such as Mr. Thang. The court has reviewed all the materials, but in reference to, as I speak right now the presentence investigative reports, and particularly the one of 2015, as said, that PSI describes in detail the aggravating and mitigating factors that are present in the case from that person’s point of view.

RP at 57.

The court then recited the mitigating factors in the PSI report followed by the

aggravating factors. The court also found that Thang posed an “escape risk” which was

an additional aggravating factor.

The court ended by summarizing the PSI report’s recommendations and

announcing its ruling:

So, the PSI writer recommends, as we know, a resentencing of 300 months, with credit for time already served, which is about 192 months, and then jurisdiction to be conferred to the Indeterminate Sentence Review Board for further action as deemed appropriate. So, Counsel, I do see that 14 No. 40197-9-III State v. Thang

there is some countervailing points here. One is the offense itself is brutal, a lot of violence involved. Considerable likely agony for an extended period of time on the part of the victim, Ms. Klaus. The other aggravating factors that I’ve identified are present. Contrasted to that is the achievement that Mr. Thang has accomplished in several distinct areas. He has not had infractions, as said, and he’s gone up in esteem of his fellow members of groups in the institution. And beyond that, there has been, in the court’s view, an expression of genuine remorse. And obviously, we’re not talking about an exceptional sentence either up or down, but these are factors, I believe, that Miller v. Alabama urges the Court and requires the Court to consider when sentencing a person who committed a homicide offense as a juvenile, while still a juvenile. And I would not hesitate to observe further that at the time of the offense, Mr. Thang, although still a juvenile, was on the threshold of becoming 18 years of age. So, I have all those factors in mind, Counsel, and your comments, again. And with that in mind, the court would find the following sentence to be appropriate: 420 months to life.

RP at 60-61.

The court imposed an indeterminate sentence of 420 months to life with credit for

time served, ordered community custody for life under the supervision of the

Indeterminate Sentence Review Board (ISRB), and entered a lifetime no contact order

protecting the victim’s family. The court also found Thang indigent and imposed the

$500 victim penalty assessment, $200 criminal filing fee, $100 DNA collection fee, and

restitution. The trial court did not enter written findings and conclusions.

In 2016, Thang filed a PRP challenging the constitutionality of RCW 10.95.030,

arguing its distinction between 15-year-olds and 16- and 17-year olds was arbitrary. In Re

Pers. Restraint of Thang, No. 34798-2-III, slip op at 1-11 (Wash. Ct. App. July 30, 2019)

15 No. 40197-9-III State v. Thang

(unpublished), https://www.courts.wa.gov/opinions/pdf/347982_unp.pdf. This court,

however, dismissed his PRP in 2019 and his conviction became final in July 2020.

Approximately three years later, in January 2024, Thang filed a notice of appeal

from his 2015 felony judgment and sentence. He requested an enlargement of time

because he had not been advised of his right to appeal following resentencing. A

commissioner of this court granted Thang’s request and permitted this appeal to proceed.

Comm’r’s Ruling, No. 40197-9-III (May 23, 2024).

ANALYSIS

1. MITIGATING QUALITIES OF YOUTH

Thang argues the resentencing court erred by balancing mitigating and retributive

factors rather than prioritizing and focusing on the mitigating qualities of youth. The

State responds that the court properly addressed the Miller factors and emphasized the

mitigating factors.

A. Standard of Review

A sentencing court’s decision is reviewed for “ʻclear abuse of discretion or

misapplication of the law.’” State v. Haag, 198 Wn.2d 309, 317, 495 P.3d 241 (2021)

(internal quotation marks omitted) (quoting State v. Delbosque, 195 Wn.2d 106, 116, 456

P.3d 806 (2020)). “ʻA trial court abuses its discretion when its decision is manifestly

unreasonable or based upon untenable grounds.’” Id. (internal quotation marks omitted)

(quoting Delbosque, 195 Wn.2d at 116). “A decision is based on untenable grounds

16 No. 40197-9-III State v. Thang

when its factual findings are unsupported by the record.” Id. “ʻWe review findings of

fact 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.’”

Haag, 198 Wn.2d at 317 (internal quotation marks omitted) (quoting Delbosque, 195

Wn.2d at 116).

B. Legal Principles

Since the enactment of the Miller-fix statutes, the Washington Supreme Court has

issued a series of decisions clarifying the requirements for Miller resentencings.

In State v. Ramos, 187 Wn.2d 420, 437-43, 387 P.3d 650 (2017), the court held

that “Miller applies equally to literal and de facto [LWOP] sentences.” The court

explained that Miller resentencings require more than conclusory recitations about the

differences between juveniles and adults. Id. at 443. Rather, 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 a life-without-

parole sentence for a juvenile homicide offender is constitutionally permissible.” Ramos,

187 Wn.2d at 434-35. More specifically, the Ramos court explained:

The [resentencing] court must receive and consider relevant mitigation evidence bearing on the circumstances of the offense and the culpability of the offender, including both expert and lay testimony as appropriate. The court and counsel have an affirmative duty to ensure that proper consideration is given to the juvenile’s “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” It is also necessary to consider the juvenile’s “family and home environment” and “the circumstances of the 17 No. 40197-9-III State v. Thang

homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” And where appropriate, the court should account for “incompetencies associated with youth” that may have had an impact on the proceedings, such as the juvenile’s “inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.” . . . The 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. While formal written findings of fact and conclusions or law are not strictly required, they are always preferable to ensure that the relevant considerations have been made and to facilitate appellate review. Ramos, 187 Wn.2d at 443-44 (alteration in original) (internal citations omitted) (quoting

Miller, 567 U.S. 477-78).

In 2020, the court clarified that “resentencing courts must consider the measure of

rehabilitation that has occurred since a youth was originally sentenced to life without

parole.” Delbosque, 195 Wn.2d at 121. Accordingly, Miller resentencings must be

forward looking, focusing on rehabilitation rather than the past. See Id. at 122. The court

ultimately reversed the Miller resentencing decision at issue in the case, noting that the

resentencing court did not have the benefit of Ramos or Bassett to guide its decision

because resentencing occurred before those cases were decided. Id. at 120.

Following Delbosque, the Supreme Court issued two opinions that further refined

the standards for effective juvenile sentencing. In Haag, the court reversed a juvenile

sentence upon concluding that the trial court failed to properly consider and emphasize

the mitigating qualities of youth. 198 Wn.2d at 325-26. In State v. Anderson, the court

affirmed a lengthy juvenile sentence, commending the sentencing court for its thorough 18 No. 40197-9-III State v. Thang

and correct application of the mitigating factors. 200 Wn.2d 266, 516 P.3d 1213 (2022).

While these two cases had not yet been published at the time of Thang’s sentencing, they

nevertheless frame our analysis. Thang argues that the sentencing court’s analysis in his

case mirrored Haag, while the State contends the analysis followed Anderson. We

therefore take a close look at these two cases.

In Haag, the supreme court remanded for a second Miller resentencing hearing

after finding that the trial court “improperly placed more emphasis on retribution than on

mitigation.” 198 Wn.2d at 323. Haag was originally sentenced to life without parole for

the aggravated first degree murder of a 7-year-old girl when he was 17 years old. Haag,

198 Wn.2d at 313-14. During the resentencing hearing, Haag presented extensive

mitigating evidence through expert and lay witnesses. Id. at 314-15. The evidence

demonstrated a troubled childhood involving abandonment, bullying, psychological

maltreatment, and difficulty expressing his sexual orientation. Id. Haag also produced

evidence showing that he was capable of rehabilitation, demonstrating that he matured in

prison, had only one infraction since 1997, earned a high school diploma, and had steady

prison employment. Id. Additionally, a prison chaplain described him as “a mature

adult”, and two expert evaluations finding low risk of reoffending and no serious mental

health issues. Id. at 314. Haag also testified, expressed sincere remorse, and requested a

25-year minimum sentence. Id. at 314-15.

19 No. 40197-9-III State v. Thang

Although acknowledging that the State had failed to rebut Haag’s evidence of

rehabilitation, the superior court nonetheless found that Haag had not shown he had

addressed or overcome the factors that led to the crime. Id. at 312-15. The court then

imposed a 46-year minimum sentence, explaining:

So the Court is faced with the daunting task of properly weighing a multiplicity of factors, which include a vile, cowardly, and particularly heinous multi-step strangulation and drowning of a defenseless, sixty-five pound little girl committed by a three hundred pound[,] seventeen-year-old young man that resulted in a convict[ion] for aggravated murder in the first degree. I’m also to consider the then-youthful brain of Mr. Haag with diminished decision-making capacity, who simultaneously lived through some very difficult circumstances while still enjoying a supportive relationship and activities. And also, a man convicted of murder who has exhibited a stellar track record in prison and has been assessed as a low risk for violently re-offending. In balancing these pieces of the puzzle, the Miller court and the statutory factors, and all the other factors that I mentioned earlier, the Court does now hereby impose a sentence—a minimum sentence of forty-six years in prison and a maximum of life in prison.

Id. at 315-16.

The supreme court reversed Haag’s sentence, holding that the sentencing court

“placed more emphasis on retribution than mitigation.” Id. at 317. In particular, the

court noted that the resentencing court’s focus on retribution was “stark” based on its

statement that “rehabilitation is not the sole measure in sentencing” and that under the

“retributive theory, severity of the punishment is calculated by the gravity of the wrong

committed.” Id. at 323.

20 No. 40197-9-III State v. Thang

Analyzing the mitigating factors of youth, the supreme court noted that the

resentencing court made only cursory references to the defendant’s youth, while focusing

primarily on the victim’s age. Id. at 323-24. Furthermore, the resentencing court

overlooked voluminous and uncontroverted evidence that the defendant was capable of

rehabilitation. Id. at 324. The court concluded that the resentencing court’s explanation

of its sentence, set forth above, “shows its focus was backward looking, driven by

retribution and not mitigation.” Id. at 323. The court held that “retributive factors must

count for less than mitigating factors.” While this does not prohibit courts from taking

into account retributive factors, the key question is whether the juvenile is capable of

change. Haag, 198 Wn.2d at 325.

One year later, in Anderson, the Supreme Court again addressed a Miller-fix

resentencing, this time affirming the juvenile’s 61-year sentence. 200 Wn.2d 266. In

Anderson the defendant was convicted of two counts of aggravated first degree murder

for killing witnesses during a planned robbery. Id. at 271. Although Anderson was 17½

years old when the crimes were committed, he was not identified or apprehended until

several years later. Id.

At his resentencing, Anderson argued that his crimes were the result of impulsivity

and immaturity. Anderson, 200 Wn.2d at 273. In support of a lower sentence, Anderson

submitted evidence on the general brain development of juveniles and his poor decision-

making skills as a teenager. He also allocuted, admitting responsibility for the first time

21 No. 40197-9-III State v. Thang

and described a difficult family life growing up. Finally, Anderson submitted supportive

letters, dozens of certificates of participation, proficiency, completion, recognition, and

achievement for various programs he participated in while incarcerated. Id. at 273.

The resentencing court began by explaining the purpose of a Miller resentencing

in light of the supreme court’s decision in Ramos, discussing juvenile brain development

and the specific factors to consider. Id. at 275. The court then noted that while most

adolescents were not as culpable as adults, this case was different. Here, in the years

between committing these murders and being charged with them, Anderson continued

committing assaultive offenses even after spending time in a structured environment with

treatment at juvenile rehabilitation and after reaching adulthood. Id. at 275. The

sentencing court then addressed each Miller factor, applied it to the facts of the case, and

ultimately concluded that significant evidence undermined Anderson’s claims that he was

impetuous when he committed the crime, remorseful following the crime, and capable of

rehabilitation. Id. at 276.

First, the court found that although Anderson claimed to have acted impulsively,

the record contradicted his claim and demonstrated that the murders were planned in

advance. Id. Second, the court determined that Anderson had not shown that immaturity

was a factor in the crimes as he was 17½ years old, living in his own apartment, and in

control of his environment. Id. Next, the court found that Anderson understood the

consequences of his actions, noting that he bragged about his crimes in letters to various

22 No. 40197-9-III State v. Thang

girlfriends while incarcerated on other crimes. Id. In the letters the defendant admitted

the murders were premeditated and even enclosed pictures of his victims. Id. at 276-77.

The court took this evidence to show awareness of consequences and lack of remorse.

Id.. The court also emphasized that Anderson had denied responsibility for years, and

only admitted involvement at resentencing, undermining his claim of genuine remorse.

Id. at 277. Last, the court acknowledged his accomplishments in prison, praised them,

and encouraged continued progress. Id.

Ultimately, the resentencing court found that Anderson presented no evidence

supporting the assertion that he acted impetuously, was immature, or did not understand

the consequences of his actions. Id. It concluded that, under Ramos, Anderson failed to

meet his burden of proof to show immaturity at the time of the offense and resentenced

him to the original 736 month sentence. Id.

On appeal, the supreme court praised the resentencing court’s application of the

Miller factors. Id. at 278-80. It held that the resentencing court individually addressed

each of the Miller factors and “considered how those differences applied to this case.”

Id. at 290. Unlike the resentencing in Haag, the resentencing court in Anderson did not

place more emphasis on retribution and focused on Anderson’s youthfulness, not the

victim’s age. Id. at 290-91. Instead of balancing rehabilitation against mitigation, the

Anderson court properly weighed competing evidence, determined that Anderson’s

mitigating evidence was drastically undermined by other evidence, and concluded that

23 No. 40197-9-III State v. Thang

Anderson failed met his burden of demonstrating that his “crimes reflected youthful

immaturity, impetuosity, or failure to appreciate risks and consequences.” Id. at 291.

C. Application

Thang equates his case to Haag. He contends the resentencing court did not focus

primarily on mitigating factors but instead weighed aggravation and mitigation as

countervailing considerations. The State compares Thang’s case to Anderson and argues

the trial court meaningfully considered mitigation evidence and imposed a sentence

substantially below the State’s request of life without parole. In his reply brief, Thang

maintains that Anderson is distinguishable.

As a preliminary matter, we acknowledge the unique procedural posture of this

case. Thang was resentenced in 2015 but is on direct appeal from that resentencing

because he was not advised of his appellate rights. Although the trial court did not have

the benefit of Ramos, 187 Wn.2d 420, Delbosque, 195 Wn.2d 106, Haag, 198 Wn.2d

309, and Anderson, 200 Wn.2d 266, at the time of resentencing, those cases still applied.

Collectively, these cases reaffirm that courts conducting a Miller resentencing “‘“must

meaningfully consider how juveniles are different from adults[ and] how those

differences apply to the facts of the case.”’” Haag at 320 (alteration in original) (quoting

Delbosque, 195 Wn.2d at 121 (quoting Ramos, 187 Wn.2d at 434-35)). In this case, we

conclude that the resentencing court’s analysis fell short of that requirement.

24 No. 40197-9-III State v. Thang

Here, like in Haag, the trial court began with a focus on the brutality of the crime,

the victim’s suffering, and the impact on the family. Only after reciting these retributive

considerations did the court recite the Miller factors it was to consider. This initial

framing suggested that punishment and victim impact were the lens through which the

court viewed mitigation, rather than the other way around.

The court gave only cursory treatment to the hallmark features of youth:

immaturity, impetuosity, and failure to appreciate risks and consequences. Ramos, 187

Wn.2d at 443. Indeed, the court acknowledged the factors and then simply stated that it

had considered them without any further analysis or application.

Although the State argues the court considered these features of youth when it

described Thang’s escape as unplanned, the court never connected that observation to

culpability or the features of youth. Nor did it meaningfully analyze how peer pressure or

immaturity influenced Thang’s choices, such as the pressure from a friend challenging

his masculinity before the escape, or his decision to steal in order to repay friends for

housing him in Spokane. Instead, the court collapsed its analysis into whether the murder

was “premeditated” or not, sidestepping the inquiry into immaturity, impulsivity, and

appreciation of risks and consequences. By contrast, in Anderson, the resentencing court

explicitly rejected the defendant’s claims of immaturity, impetuosity, and failure to

appreciate consequences only after a thorough, factor-by-factor analysis supported by the

record. 200 Wn.2d at 276-77.

25 No. 40197-9-III State v. Thang

The resentencing court did consider Thang’s family background. The court

acknowledged Thang’s family’s traumatic flight from Cambodia and his mother’s

repeated efforts to drown him as an infant but contrasted this with the lack of evidence

that Thang’s household included any physical abuse and substance use. On appeal,

Thang contends that the sentencing court improperly minimized the effect of his

traumatic childhood and diminished its relevance to his culpability, but this argument

misconstrues our role on appeal. While we review the sentencing court’s application of

mitigating factors to determine if the court properly emphasized mitigation over

retribution, a sentencing court retains discretion to determine whether youthful factors

contributed to the offense. Haag, 198 Wn.2d at 326.

Finally, a court conducting a Miller resentencing must also consider whether the

juvenile has demonstrated progress, rehabilitation, and the capacity for change since their

original sentence. Delbosque, 195 Wn.2d at 121. This requires a forward-looking focus

on rehabilitation, rather than emphasis on retribution. Haag, 198 Wn.2d at 321.

Here, after identifying Thang’s accomplishments and work ethic while in prison,

the court stated that it saw “a number of countervailing interpretations here applying the

factors.” RP at 57. The court then listed out the mitigating and aggravating factors listed

in the PSI, then again stated:

So, Counsel, I do see that there is [sic] some countervailing points here. One is the offense itself is brutal, a lot of violence involved. Considerable likely agony for an extended period of time on the part of the victim . . . . The other aggravating factors that I’ve identified are present. Contrasted to 26 No. 40197-9-III State v. Thang

that is the achievement that Mr. Thang has accomplished in several distinct areas. He has not had infractions, as said, and he’s gone up in esteem of his fellow members of groups in the institution. And beyond that, there has been, in the court’s view, an expression of genuine remorse.

RP at 60 (emphasis added).

We agree with Thang that this analysis shows that the sentencing court balanced

rehabilitation against retribution and improperly emphasized the brutal and violent nature

of the offense over Thang’s demonstrated capacity for change. In a Miller-fix hearing,

retribution and rehabilitation are not equal factors to be balanced against each other.

While a court conducting a Miller resentencing can still consider the nature of the

offense, the “retributive factors must count for less than mitigating factors.” Haag, 198

Wn.2d at 325.

We conclude that the resentencing court’s focus on the brutality of the crime, its

cursory treatment of youth-related features, and its balancing of mitigation against

aggravation show a misapplication of the law. Accordingly, we vacate Thang’s sentence

and remand for a new Miller resentencing. Following the hearing, the resentencing court

should enter written findings and conclusions to facilitate appellate review.2

2 Thang also challenges several of the resentencing court’s oral findings as unsupported by substantial evidence, the court’s term of community custody, and the imposition of fines and fees. Appellant’s Br. at 40, 42, 44. Because the court will enter new findings and conclusions on remand, we decline to address these challenges.

27 No. 40197-9-III State v. Thang

2. CRUEL AND UNUSUAL PUNISHMENT

Thang argues that RCW 10.95.030 imposes unconstitutional cruel punishment on

Miller-class juvenile offenders. He points out that unlike Monschke3-class defendants

resentenced under RCW 10.95.035, Miller-class defendants face additional burdens

including: mandatory community custody, potential lifetime supervision by the ISRB,

and denial of earned early release credits. Thang contends that these features create

harsher punishment for Miller-class juveniles.

As a threshold matter, the State responds that this issue is not preserved for

review. It emphasizes that Thang did not raise a constitutional challenge to RCW

10.95.030 in the trial court, nor did he argue in his opening brief that review is warranted

under RAP 2.5(a)(3). Resp’t’s Br. at 67-70. Thang replies that this issue is reviewable

under RAP 2.5(a)(3). Alternatively, he argues that issue preservation principles do not

apply or that we should exercise our discretion to review this issue.

We generally decline to review an issue raised for the first time on appeal. See

RAP 2.5(a). “The rule reflects a policy of encouraging the efficient use of judicial

resources. The appellate courts will not sanction a party’s failure to point out at trial an

error which the trial court, if given the opportunity, might have been able to correct to

avoid an appeal and a consequent new trial.” State v. Scott, 110 Wn.2d 682, 685, 757

3 In re Pers. Restraint of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021) (plurality opinion). 28 No. 40197-9-III State v. Thang

P.2d 492 (1988). The rule derives from the principle that trial counsel is obligated to

seek a remedy to errors as they occur, or shortly thereafter. See City of Seattle v.

Harclaon, 56 Wn.2d 596, 597, 354 P.2d 928 (1960).

However, an exception to RAP 2.5 permits a party to raise a “manifest error

affecting a constitutional right” for the first time on appeal. RAP 2.5(a)(3). This

exception is narrow and “does not permit all asserted constitutional claims to be raised

for the first time on appeal.” State v. Kirkman, 159 Wn.2d 918, 934, 155 P.3d 125 (2007)

(quoting Scott, 110 Wn.2d at 688). Rather, the asserted error must be “manifest,” which

“requires a showing of actual prejudice.” Kirkman, 159 Wn.2d at 935 (quoting State v.

Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001)) To demonstrate actual prejudice, there must

be a plausible showing by the appellant that the asserted error had practical and

identifiable consequences during trial. State v. WWJ Corp., 138 Wn.2d 595, 603, 980

P.2d 1257 (1999). “[T]he focus of the actual prejudice must be on whether the error is so

obvious on the record that the error warrants appellate review.” State v. O’Hara, 167

Wn.2d 91, 99-100, 217 P.3d 756 (2009).

In his opening brief, Thang failed to address whether the issue was preserved. The

State argues that while this issue is constitutional in nature, the alleged error is not

29 No. 40197-9-III State v. Thang

manifest. In his reply brief, Thang argues for the first time that this error is reviewable

for the first time on appeal as a manifest constitutional error. But an issue raised 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).

Even so, we conclude that this error is not manifest. Thang’s argument relies on

In re Personal Restrain of Monschke, 197 Wn.2d 305 (plurality opinion), where the

Washington Supreme Court held that mandatory life without parole sentences for

offenders who committed aggravated first degree murder between the ages of 18 and 20

were unconstitutional and that courts must consider those offenders’ youthfulness during

resentencing. But Monschke’s ruling would not have been obvious on the record to the

resentencing court in 2015. As a result, the alleged error is not manifest.

Thang alternatively argues that issue preservation principles do not apply to this

issue. Principles of issue preservation do not apply where the following four conditions

are met:

(1) a court issues a new controlling constitutional interpretation material to the defendant’s case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation.

State v. Robinson, 171 Wn.2d 292, 305, 253 P.3d 84 (2011).

30 No. 40197-9-III State v. Thang

Thang contends that State v. Carter, 3 Wn.3d 198, 548 P.3d 935 (2024)4 is

material to his case because it “changes the landscape of what is considered cruel

punishment when it comes to Miller-class defendants.” Reply Br. at 14. He argues that

Carter applies to his appeal and points out that his trial was completed prior to that

decision. But again, Thang raises this issue for the first time in his reply brief, which is

too late for this court to consider. Cowiche Canyon, 118 Wn.2d at 809. Addressing

issues raised for the first time in a reply brief is unfair to the other party who was not

given the opportunity to respond. Ainsworth v. Progressive Casualty Insurance Co., 180

Wn. App. 52, 78 n.20, 322 P.3d 6 (2014). Regardless, Thang’s argument that Carter

changes the landscape for Miller-class defendants is unpersuasive. Carter concerned a

resentencing court’s discretion regarding Monschke-class defendants, not Miller-class

defendants. Carter, 3 Wn.3d at 216.

Last, Thang contends that this court retains discretion to review errors not

appealed as a matter of right. Under RAP 2.5(a), this court has the discretion to accept

review of claimed errors not appealed as a matter of right. See State v. Blazina, 182

Wn.2d 827, 834-35, 344 P.3d 680 (2015). But again, Thang raises this argument for the

first time in his reply brief.

4 In Carter, the supreme court held that, under RCW 10.95.030(1), when resentencing based on Monschke, the trial court has discretion to impose a determinate sentence of any length or life without the possibility of parole. 3 Wn.3d at 216. However, a sentence of life with the possibility of parole is not authorized. Id. at 216-17. 31 No. 40197-9-III State v. Thang

Considering our conclusion that the issue was not preserved and the record was

not developed, along with our decision to remand for resentencing, we decline review of

this issue at this time. Thang is free to raise the issue below and develop the record.

We reverse Thang’s sentence and remand for resentencing.

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

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

2.06.040.

_________________________________ Staab, J.

WE CONCUR:

_________________________________ Lawrence-Berrey, C.J.

_________________________________ Murphy, J.