/mCTEV / IN CLERU OFFICE X This opinion was aUPflSE COURT.8TOE OFIMMNMOICN filed fqrrecord at 8^/tc^n ;ir>^Ln date 3 (j - -d2i em^MsTiGE Susan L. Carlson Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 96709-1 Petitioner,
EN BANC
CRISTIAN DELBOSQUE Filed: 3 0 2020 Respondent.
YU, J. — We have continually recognized that children are different from
adults for the purpose of sentencing. We also recognize that trial judges face an
extraordinarily difficult task when determining whether a child's crime is a
reflection of transient immaturity or permanent incorrigibility. This case requires
us to elaborate on how that determination is made in the context of Miller-fix^
resentencing.
'The Washington Legislature enacted the Miller-fix statutes, RCW 10.95.030 and 10.95.035, in response to the United States Supreme Court's ruling that mandatory life without parole sentences for juveniles are unconstitutional. See Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012). State V. Delbosque, No. 96709-1
In 1994, 17-year-old Cristian J. Delbosque was convicted of aggravated first
degree murder and received a mandatory life sentence without the possibility of
release. Because he was a juvenile at the time of his offense, Delbosque was
resentenced in 2016 in accordance with the Miller-fix statute and received a
minimum term of48 years without the possibility of parole. The Court of Appeals
concluded that Delbosque could seek review of his sentence only through a
personal restraint petition (PRP), rather than direct appeal, but nevertheless
reversed his sentence, holding that the trial court's factual findings were not
supported by substantial evidence.
We affirm the Court of Appeals' holding that the sentencing court's findings
were not supported by substantial evidence, thus remanding for resentencing was
proper. However, we reverse the Court of Appeals' holding that Delbosque was
not entitled to a direct appeal. We therefore affirm in part, reverse in part, and
remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The crime and original sentence
On October 18, 1993, after a period of heavy drinking, 17-year-old
Delbosque brutally murdered Filiberto Sandoval and Kristina Berg. When
questioned by police, Delbosque waived his rights and confessed to the murders,
although he testified at trial that his girlfriend was the one responsible. State V. Delbosque, No. 96709-1
A jury found Delbosque guilty of aggravated first degree murder for the
death of Berg and second degree felony murder for the death of Sandoval.
Delbosque was sentenced to mandatory life without the possibility of parole for
Berg's murder.^
B. 2016 Miller-fix hearing
The Washington Legislature enacted the Miller-fix statute in response to the
United States Supreme Court's decision in Miller, 567 U.S. 460. Miller held the
Eighth Amendment's ban on cruel and unusual punishment prohibits mandatory
life without parole sentences for juveniles and requires sentencing judges to
consider "how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison." Id. at 480; U.S. CONST,
amend. VIII. The Miller-fix amended several RCW chapters relating to juvenile
sentencing; however, this case involves only provisions concerning unlawful
mandatory life without parole sentences for aggravated first degree murder. RCW
10.95.035(1) provides that juveniles who received such sentences 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." Delbosque was a juvenile
eligible to be resentenced.
^ Delbosque's felony murder conviction was later vacated in accordance with In re Personal Restraint ofAndress, 147 Wn.2d 602, 56 P.3d 981 (2002). State V. Delbosque, No. 96709-1
Between June and November 2016, the superior court held a four-day
evidentiary hearing pursuant to the Miller-Tix statute. Both sides presented several
witnesses who testified about the crime, about Delbosque's life experience leading
up to the murders, and about his behavior as an adult. In its oral ruling, the trial
sentenced Delbosque to a minimum term of48 years without the possibility of
release.
1. Evidence presented
The State presented testimony from the officer who investigated the crime,
the juvenile court officer who interviewed Delbosque for his decline determination,
and the unit supervisor of the prison where Delbosque was incarcerated at the time
of his resentencing. While incarcerated, Delbosque received prison infractions for
fighting without a weapon; for extortion; and for possession of a weapon, tattoo
paraphernalia, and another inmate's property. Between the ages of 29 and 32, he
was repeatedly investigated for gang-related violence. His last infraction occurred
in 2010, alleging that Delbosque used his position in a gang to arrange an assault
on another inmate. None ofthe infractions were referred for prosecution. The
con*ections officer also testified that but for Delbosque's life sentence and
immigration detainer, he would be classified as a minimum security prisoner. Six
victim impact statements were offered by Berg's family members. State V. Delbosqiie, No. 96709-1
Delbosque's siblings testified about his childhood experiences of growing up
in extreme poverty and losing his mother as a young child. In addition, Delbosque
confided during his psychiatric evaluations that he was physically and sexually
abused by multiple family members.
Two experts testified in support of Delbosque. Dr. Manuel Saint Martin
testified about Delbosque's current psychological state and low propensity for
future dangerousness. He also concluded that Delbosque was likely experiencing
alcohol-induced psychosis at the time of the crime. Dr. Sarah Heavin opined that
Delbosque's executive functioning deficits were likely greater than the average 17-
year-old because of his early childhood traumas. This in turn would have
negatively impacted his development and ability to regulate his behavior.
2. Judgment and sentence
Following closing argument, the superior court judge issued a lengthy oral
decision setting Delbosque's minimum term at 48 years. In arriving at this
sentence, the court explained.
The Court recognizes that this sentence may be considered a de facto life without the possibility of parole sentence. However in reaching this conclusion, the Court considered the factors required by RCW 10.95.030(3)(b) and the Miller factors required for consideration of a life without the possibility of parole sentence, and finds that the crime committed by Mr.[Delbosque] is one ofthose rare cases where a life without the possibility of parole sentence would be appropriate, except for the potential reduction of risk caused by advancing old age.
4 Verbatim Report ofProceedings(VRP)(Nov. 23, 2016) at 662. State V. Delbosque, No. 96709-1
The court then entered an order incorporating a supplemental written
memorandum opinion that set forth the court's findings and conclusions.
C. Appeal and review
Delbosque directly appealed, and the Court of Appeals unanimously
reversed in a published opinion. State v. Delbosque,6 Wn. App. 2d 407, 430 P.3d
1153 (2018). The court held that "the proper method for Delbosque to seek review
of the superior court's order is a PRP," but it decided to "disregard this procedural
defect and review Delbosque's appeal as a PRP." Id. at 413-14.
On the merits, the court held that "(1) the superior court's findings regarding
Delbosque having an attitude toward others reflective of the underlying crime and
of Delbosque's permanent incorrigibility and irretrievable depravity are not
supported by substantial evidence and (2)the superior court failed to comply with
the Miller-fix statute when setting the minimum term." Id. at 414. The court
therefore determined that Delbosque's restraint is unlawful, granted his PRP, and
remanded for resentencing. Id. at 421.
The State filed a petition for review challenging the Court of Appeals'
decision on the merits. Delbosque sought review of the Court of Appeals' decision
to treat his appeal as a PRP. We granted review of both issues.
ISSUES State V. Delbosque, No. 96709-1
A. Were the superior court's findings supported by substantial evidence
in the record?
B. If the findings were not supported by substantial evidence, is the
appropriate remedy to remand for resentencing to give the trial court the benefit of
our subsequent decisions?
C. Does RCW 10.95.035(3), which requires parties seeking review of a
minimum term sentence imposed pursuant to the Miller-fix statute to file a PRP,
violate the right to appeal in criminal cases guaranteed by article I, section 22 of
the Washington Constitution?
ANALYSIS
A. The Court of Appeals was correct in its review ofthe trial court's findings
Three provisions ofthe Miller-fix statute govern Delbosque's resentencing.
First, RCW 10.95.035(1) provides that juveniles who received such sentences 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." Second, RCW
10.95.030(3)(a)(ii) gives 16- to 18-year-old juvenile homicide offenders a chance
to become eligible for parole by requiring that they receive "a maximum term of
life imprisonment and a minimum term of total confinement of no less than
twenty-five years." Third, RCW 10.95.030(3)(b) provides:
In setting a minimum term, the court must take into account mitigating factors that account for the diminished culpability of youth as provided State V. Delbosque, No. 96709-1
in Miller v. Alabama, 132 S.Ct. 2455 (2012) including, but not limited to, the age of the individual, the youth's childhood and life experience, the degree of responsibility the youth was capable of exercising, and the youth's chances of becoming rehabilitated.
We will reverse a sentencing court's decision only if we find '"a clear abuse
of discretion or misapplication of the law.'" State v. Blair, 191 Wn.2d 155, 159,
421 P.3d 937(2018){quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974
(1997)). A trial court abuses its discretion when "its decision 'is manifestly
unreasonable or based upon untenable grounds.'" State v. Lamb, 175 Wn.2d 121,
127, 285 P.3d 27(2012)(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d
615 (1995)). Further, "[t]he 'untenable grounds' basis applies 'if the factual
findings are unsupported by the record.'" Id.(quoting In re Marriage ofLittlefield,
133 Wn.2d 39, 47, 940 P.2d 1362(1997)).
Here, the State contends that the Court of Appeals erred when it held that
two of the superior court's findings were not supported by substantial evidence.
We review findings of fact for substantial evidence. State v. Dobbs, 180 Wn.2d 1,
10, 320 P.3d 705 (2014). "Substantial evidence 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." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We
affirm that the Court of Appeals properly held that substantial evidence did not
support the following findings:(1)that Delbosque continues to exhibit an attitude
toward others that is reflective of the underlying murder where he chooses to State V. Delbosque, No. 96709-1
advance his own needs over others and (2)that the crime was not symptomatic of
transient immaturity, but has proven over time to be a reflection of iiTeparable
corruption, permanent incorrigibility, and irretrievable depravity. Accordingly, we
hold that the trial court abused its discretion, reverse Delbosque's sentence, and
1. Substantial evidence does not support the finding that Delbosque continues to exhibit an ongoing attitude toward others that is reflective of Berg's murder
The trial court cited three factors in support ofthis finding: the nature of the
crime, Delbosque's attempt at trial to implicate his girlfriend in Berg's murder, and
his institutional record. With respect to this third factor, the trial court focused on
an infraction Delbosque received in 2010 for allegedly arranging an assault on
another inmate. Delbosque was 34 at the time.
As the Court of Appeals pointed out,"the court's only example of this
attitude was Delbosque's 2010 infraction for attempting to arrange an assault,
which occurred six years prior to the evidentiary hearing." Delbosque, 6 Wn. App.
2d at 418. In other words, two of the court's three examples of an ongoing pattern
of predatory behavior relate back to the crime and prosecution, which occurred
over 20 years before Delbosque was resentenced. The Court of Appeals thus
determined that "to whatever extent Delbosque's infraction history does exhibit a State V. Delbosque, No. 96709-1
pattern related to the murder he committed, that pattern is not continuing or
cuiTent." Id.
Furthermore, while discussing Delbosque's 2010 infraction as evidence of
an ongoing attitude reflective of the murder, the sentencing judge declared that
"[tjhere is no identified program or treatment presented to deal with this negative
attribute." 4 VRP (Nov. 23, 2016) at 660. But this overlooks the fact that certain
programs, such as substance abuse treatment and anger management programs,
were not available to Delbosque because they are reserved only for people with
release dates. Moreover, Delbosque "demonstrated a desire to engage in
programming that's not available to him as someone who's classified as a life
without possibility of parole inmate," and he actually took advantage of those
opportunities when available.^ 3 VRP (Nov. 1, 2016) at 490.
Because the trial court's "only example" of an ongoing attitude reflective of
the murder is Delbosque's 2010 infraction, the Court of Appeals correctly
determined that there is insufficient evidence to support this finding. Delbosque, 6
Wn. App. 2d at 418.
2. Substantial evidence does not support the finding that Delbosque's crime was a reflection of"iiTcparable corruption, permanent incorrigibility, and iiTetrievable depravity"
^ For example, Delbosque took a parenting class, despite not being a parent, because "he wanted to understand how his parents had influenced his development." 3 VRP (Nov. 1, 2016) at 519.
10 State V. Delbosque, No. 96709-1
In its oral decision, the trial court analyzed whether Delbosque's crime was
"a reflection of transient immaturity associated with youth, or something more
heinous, often characterized by words such as irreparable corruption, permanent
inconigibility, irretrievable depravity, such that rehabilitation is impossible,
making life without parole justified." 4 VRP (Nov. 23, 2016) at 655. This analysis
"consider[ed] the actual crime, as well as the life and actions of[Delbosque] after
he committed the crime." Id. Yet the primary evidence for this finding was, as
with the prior finding, based on the crime, Delbosque's attempt to implicate his
girlfriend, and his 2010 infraction. Accordingly, the Court of Appeals properly
determined that "Delbosque's infraction is not evidence of irreparable corruption
proven over time. Delbosque had been in prison for approximately 15 years before
the 2010 infraction, and the infraction took place 6 years before the evidentiary
hearing." Delbosque,6 Wn. App. 2d at 418.
The Court of Appeals further considered that the trial court "failed to
address the greater prospects for reform from a crime committed while Delbosque
was a child. . . . The court's rationale is also inconsistent with Miller's recognition
that incorrigibility is inconsistent with youth." Id. at 420. This reasoning is
consistent with our case law indicating that irreparable corruption should be rare.
State V. Bassett, 192 Wn.2d 67, 89, 428 P.3d 343 (2018). Indeed, Bassetfs
11 State V. Delbosque, No. 96709-1
prohibition on juvenile life without parole sets a high standard for concluding that
a juvenile is permanently incorrigible.
Furthermore, the trial court's oral ruling oversimplified and sometimes
disregarded Delbosque's mitigation evidence. For example, the Court of Appeals
considered the following testimony from Dr. Heavin, who evaluated whether youth
was a factor in Delbosque's case: '"[Yjouthfulness, combined with trauma, made
him less likely to monitor his own behavior responsibly, inhibit aggressive
behavior,"' and '"his relative risk taking was greater than a typically developing
youth without those same risk factors.'" Delbosque,6 Wn. App. 2d at 411. Yet
the trial court recharacterized Dr. Heavin's conclusions by stating that "these risk
factors had the potential for a significant impact on [Delbosque's] ability as a
juvenile to appropriately respond to his surroundings and appreciate the
ramifications of his actions." 4 VRP (Nov. 23, 2016) at 645 (emphasis added). In
fact. Dr. Heavin asserted that "lack of good decision making was a cumulative
effect ofthe various traumas he'd experienced, the poverty he'd experienced, his
lack of education, his lack of relative social support and his alcohol dependence."
3 VRP (Nov. 1, 2016) at 510. In other words. Dr. Heavin did not testify that
Delbosque's life experiences merely had the potential to have a negative impact on
his decisions, but that they actually did have such an impact. The court also
12 State V. Delbosque, No. 96709-1
minimized expert testimony about Delbosque's alcohol addiction at the time of the
crime and how alcohol uniquely impacts the developing teenage brain.
Similarly, the oral ruling does little to acknowledge Delbosque's mitigation
evidence demonstrating his capacity for change. The Court of Appeals highlighted
testimony that Delbosque "would qualify for minimum security except for the term
of his sentence and an immigration detainer." Delbosque, 6 Wn. App. 2d at 410.
In addition, Dr. Saint Martin testified that Delbosque's relatively few infractions
over a 23-year period, coupled with his progressive decrease in security level, were
proof that he was not iiTeparable and in fact could safely be released. He further
opined that Delbosque's risk for future dangerousness would be low. This
evidence, however, was not addressed in the trial court's analysis.
These examples suggest that the trial judge did not adequately consider
mitigation evidence that would support a finding of diminished culpability, rather
than irretrievable depravity. Miller hearings require sentencing courts to
meaningfully consider "mitigating factors that account for the diminished
culpability of youth," including "the youth's chances of becoming rehabilitated."
RCW 10.95.030(3)(b). Moreover, the trial court concluded that Delbosque is
irretrievably depraved without reconciling, much less aclcnowledging, significant
evidence to the contrary. We therefore affirm the Court of Appeals' conclusion
that substantial evidence does not support a finding of permanent incorrigibility.
13 State V. Delbosque, No. 96709-1
B. Given the lack of substantial evidence, we remand for resentencing to give the trial court the benefit of our subsequent decisions
After Delbosque's 2016 resentencing hearing, this court decided two cases
that significantly altered juvenile sentencing in Washington. The first was State v.
Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017). There, we outlined considerations
that trial courts must take into account when conducting a Miller hearing. Bassett
followed shortly thereafter, categorically eliminating juvenile life without parole.
Bassett, 192 Wn.2d at 91. In light of these cases, a remand for resentencing is
appropriate so the superior court may have the benefit of recent, relevant precedent
when resentencing Delbosque.
1. The trial court did not have the benefit ofRamos or Bassett to guide its decision
Delbosque's resentencing hearing occurred in 2016, before this court
decided either Ramos or Bassett. Although neither case directly applied RCW
10.95.035, both discuss issues that are highly relevant to what is required when
setting a minimum term pursuant to the Miller-fix statute. Much of their analysis
therefore applies to this case and to Miller hearings pursuant to RCW 10.95.030.
First, Ramos clarified that 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,
14 State V. Delbosque, No. 96709-1
187 Wn.2d at 434-35 (emphasis added). This means a court "must do far more
than simply recite the differences between juveniles and adults and make
conclusory statements that the offender has not shown an exceptional downward
sentence is justified." Id. at 443. Instead, the 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." Id.
Predicting a juvenile's future dangerousness is extremely difficult. As the
United States Supreme Court has acknowledged,"The reality that juveniles still
struggle to define their identity means it is less supportable to conclude that even a
heinous crime committed by a juvenile is evidence of irretrievably depraved
character." Roper v. Simmons, 543 U.S. 551, 570, 125 S. Ct. 1183, 161 L. Ed. 2d
1 (2005). Miller further attests that "a child's character is not as 'well formed' as
an adult's; his traits are 'less fixed.'" Miller, 567 U.S. at 471 (quoting Roper, 543
U.S. at 570). For this reason, resentencing courts must consider the measure of
rehabilitation that has occun-ed since a youth was originally sentenced to life
without parole.
Indeed, other courts have also continued to refine their review of Miller
hearings in this regard. For instance, the Ninth Circuit Court of Appeals recently
remanded a Miller resentence to the district court based on the "district court's
15 State V. Delbosque, No. 96709-1
heavy emphasis on the nature of[the defendant's] crime, coupled with [the
defendant's] evidence that his is not one of those rare and uncommon cases for
which LWOP [life without parole] is a constitutionally acceptable sentence."
United States v. Briones, 929 F.3d 1057, 1067 (9th Cir. 2019). In clarifying what
is required in a Miller hearing, the Ninth Circuit declared that sentencing courts
"must reorient the sentencing analysis to a forward-looking assessment of the
defendant's capacity for change or propensity for incorrigibility, rather than a
backward-focused review of the defendant's criminal history." Id. at 1066. "The
key question is whether the defendant is capable of change. If subsequent events
effectively show that the defendant has changed or is capable of changing, LWOP
is not an option." Id. at 1067 (citation omitted). These observations are highly
relevant in light of the evidence Delbosque presented at his resentencing hearing.
Next, Bassett held that ROW 10.95.030(3)(a)(ii) is unconstitutional to the
extent that it allows any juvenile to be sentenced to life without parole. Bassett,
192 Wn.2d at 91. Consequently, every judge conducting a Miller sentencing in
Washington must set a minimum term that is less than life. In Ramos, we stated
that a "standard range consecutive sentencing may, and in this case did, result in a
total prison term exceeding the average human life-span—^that is, a de facto life
sentence." Ramos, 187 Wn.2d at 434. However, we did not define "de facto life
sentence" as a "total prison term exceeding the average human life-span." Id.
16 State V. Delbosque, No. 96709-1
Rather, we explicitly stated, "It is undisputed that Ramos' 85-year aggregate
sentence is a de facto life sentence, so the question of precisely how long a
potential sentence must be in order to trigger Miller's requirements is not before
us. We reserve ruling on that question until we have a case in which it is squarely
presented." Id. at 439 n.6 (emphasis added). Although the trial court clearly
intended to impose a life sentence when setting Delbosque's 48-year minimum
term, the question of whether this amounts to a de facto life sentence is not
squarely presented here, either. We therefore decline to address the issue.
In sum, Bassett has narrowed the available sentences under the Miller-fix
statute, while Ramos and other courts have clarified what a meaningful
consideration of youth requires in terms of procedure. The superior court would
benefit from such precedent in making its resentencing decision.
2. The Court of Appeals rightly did not allocate a burden of proof or treat age as a per se mitigating factor
The State contends that a remand for resentencing is nevertheless
inappropriate for two reasons. First, the State asserts that the Court of Appeals
"misallocat[ed] the burden of proof and persuasion" when it "seemed to allocate
the burden of proof on the State." Mot. for Review at 6. Contrary to the State's
17 State V. Delbosque, No. 96709-1
position, the Court of Appeals properly did not assign a burden of proofto either
the State or Delbosque when reviewing the trial court's decision.'^
The State's argument is grounded in its incorrect belief that Delbosque
"bears the burden of proving that his crime was the result of transient immaturity."^
Id. at 5 (citing Ramos, 187 Wn.2d at 434-37). The State misinterprets Ramos.
There, we held that in the context ofthe Sentencing Reform Act of 1981 (SKA),
ch. 9.94A RCW,a juvenile bears the burden of proving by a preponderance of
evidence that an exceptional sentence below the standard range is justified.
Ramos, 187 Wn.2d at 435. This reasoning does not extend to sentencing hearings
pursuant to the Miller-fix statute, which unlike the SRA,does not impose a burden
of proof on either party. Indeed, the trial court rightly stated that although Miller
and RCW 10.95.030(3)(b)"provide factors and guidelines for the court to consider
during the resentencing hearing ... they do not establish any presumptions to be
created or rebutted by any party." Clerk's Papers(CP)at 238. We agree with the
Aniici in support of Delbosque propose that "[t]he State must have the burden to prove by clear and convincing evidence that the child is incorrigible to justify a minimum sentence over 25 years." Br. of Fred T. Korematsu Ctr. for Law & Equality et al. as Amici Curiae at 13. We appreciate amici's thoughtful consideration ofthe appropriate burden of proof and understand the desire for a clear benchmark. However, the statute is silent and thus does not provide for siieh a result. ^ The State's briefing is inconsistent on this point. While its petition for review argues that Delbosque has the burden of proving his crime was the result oftransient immaturity, its response to the joint amici brief supporting Delbosque recognizes that"RCW 10.95.030 does not allocate or define the burden of proof applicable at a Miller-fa. hearing." Br. ofPet'r in Resp. to Br. of Amici Curiae at 14.
18 State V. Delbosque, No. 96709-1
trial court that the statute does not allocate a burden of proof, and we decline to
write one in.
The State further asserts that the Court of Appeals "treat[ed] age as a per se
mitigating factor," going so far as to characterize the opinion as "say[ing] that all
children, all the time, no matter the conduct and irrespective of the facts of the
crime, are entitled to a mitigated sentence." Mot. for Review at 6. Far from this,
the Court of Appeals merely emphasized the central tenets of Graham^ and Miller.
Children are '"less deserving of the most severe punishments' . . . and their traits
are less likely to be evidence of iiTetrievable depravity." Delbosque,6 Wn. App.
2d at 419 (internal quotation marks omitted)(quoting Miller, 567 U.S. at 471).
Thus, the State's arguments that the Court of Appeals misallocated the
burden of proof and improperly treated age as a per se mitigating factor are not
supported by the record or the law. In addition, our cases decided after
Delbosque's resentencing provide significant guidance on the standards that
sentencing courts should apply at Miller hearings. We therefore hold that the
Court of Appeals correctly reversed Delbosque's sentence and remanded for a new
Miller hearing.
C. The Court of Appeals incoiTectly held that Delbosque may seek review of his resentence only by PRP, in violation of article I, section 22
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
19 State V. Delbosque, No. 96709-1
We now consider whether RCW 10.95.035(3) violates article I, section 22 of
the Washington Constitution. Article I, section 22 of the Washington Constitution
provides,"In criminal prosecutions the accused shall have ... the right to appeal in
all cases." Meanwhile, RCW 10.95.035(3) provides,"The court's order setting a
minimum term is subject to review to the same extent as a minimum term decision
by the parole board before July 1, 1986." We review a statute's constitutionality
de novo and presume that the statute is constitutional. Bassett, 192 Wn.2d at 77.
To prevail, Delbosque must show the statute is unconstitutional beyond a
reasonable doubt. Id.
Parole board decisions setting minimum terms before July 1, 1986 were
reviewed by PRP,thus the Court of Appeals determined that Delbosque's appeal
was improper and treated it as a PRP. Delbosque,6 Wn. App. 2d at 413-14.
Delbosque argued to the Court of Appeals that allowing review only by PRP
violates article I, section 22, but the Court of Appeals declined to consider his
argument, concluding that he raised it too late. Id. at 413 n.3. We exercise our
discretion to reach the merits of Delbosque's argument because it is an important
constitutional issue that is likely to recur.
With few exceptions, our case law is clear that criminal defendants have the
right to appeal sentences and to correct legal errors and abuses of discretion.
Whether Delbosque has a right to appeal turns on whether the Miller-fix remedy
20 State V. Delbosque, No. 96709-1
provides only for an amended sentence or requires an actual resentencing. The
plain language of RCW 10.95.035(3) and Washington precedent suggest that a
Miller hearing results in a new, appealable sentence. We therefore reverse the
Court of Appeals on this issue and hold that RCW 10.95.035(3) violates article I,
section 22 of the Washington Constitution.
1. Washington law broadly guarantees the right to appeal sentences, even after resentencing
As a general rule, the Washington Constitution guarantees criminal
defendants the right to appeal "in all cases." CONST, art. I, § 22. There are limited
exceptions to this rule; specifically, standard range sentences pursuant to the SRA
are not appealable. RCW 9.94A.585(1). This provision of the SRA does not
violate the constitutional right to appeal because "[wjhen the sentence given is
within the presumptive sentence range then as a matter of law there can be no
abuse of discretion." State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718
P.2d 796 (1986).
However, even RCW 9.94A.585(1)"does not bar a party's right to challenge
the underlying legal conclusions and determinations by which a court comes to
apply a particular sentencing provision." State v. Williams, 149 Wn.2d 143, 147,
65 P.3d 1214(2003). Indeed,"appellate review is still available for the correction
of legal errors or abuses of discretion in the determination of what sentence
21 State V. Delbosque, No. 96709-1
applies." Id. Thus, even where a statute appears to broadly prohibit any direct
appeal, certain appeals must be allowed pursuant to article I, section 22.
In the context of resentencing, the right to appeal may depend on the nature
and scope of the errors in the original sentence. The Court of Appeals has held that
[rjemand to correct a scrivener's error does not result in a new final judgment and sentence and, accordingly, the court's action to correct the error is not appealable as a matter of right. But remand for resentencing renders the prior judgment and sentence void and results in a new final judgment, which is appealable as a matter of right.
State V. Amos, 147 Wn. App. 217, 224 n.l, 195 P.3d 564(2008)(citations omitted).
Our cases likewise recognize that remand and resentencing means that a
defendant's "entire sentence [is] reversed, or vacated . . . the finality of the
judgment is destroyed." State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104
(2003)(finding collateral estoppel did not apply because the defendant's prior
sentence "ceased to be a final judgment on the merits").
Thus, to determine whether there is a constitutional right to directly appeal
from a sentence imposed pursuant to the Miller-fix statute, we must consider
whether the statute requires only an amendment of the original sentence or the
entry of an entirely new sentence.
2. The Miller-fix statute requires resentencing to remedy erroneous mandatory life without parole sentences
The very purpose ofthe Miller-fix statute is to correct unconstitutional
mandatory life without parole sentences in accordance with Miller. In re Pers.
22 State V. Delbosque, No. 96709-1
Restraint ofMcNeil, 181 Wn.2d 582, 590, 334 P.3d 548 (2014)("The Miller fix
remedies the unlawfulness of the petitioners' sentences by providing they must be
resentenced in a manner that does not violate the Eighth Amendment, consistent
with Miller"). When an apparently legal sentence is later held unconstitutional, as
here, the remedy is to "remand[] to the superior court, with instructions to
resentence appellants in accordance with law." State v. Lindsey, 194 Wash. 129,
130, 77 P.2d 596(1938)(emphasis added); see also State v. Mehlhorn, 195 Wash.
690, 692-93, 82 P.2d 158 (1938). Such resentencing is subject to direct appeal.
Lindsey and Mehlhorn illustrate how we have long treated resentences as
appealable. Both cases concerned an ex post facto law overturned by the United
States Supreme Court. Lindsey, 194 Wash, at 130; Mehlhorn, 195 Wash, at 691.
The invalid sentences did not '"necessitate the granting of a new trial, or vacation
of the verdict found,'" but rather served as '"a ground for reversing the erroneous
judgment or sentence, leaving the verdict to stand as a basis for a new and proper
sentence.'" Lindsey, 194 Wash, at 131 (quoting 8 RULING Case Law Criminal
Law § 237, at 237 (1915)). Mehlhorn further explained that the erroneous sentence
was "void as to offenses committed prior to its enactment" and thus required
resentencing. Mehlhorn, 195 Wash, at 691. In both instances, the defendants
directly appealed their resentencing decisions.
23 State V. Delbosque, No. 96709-1
Resentencing in accordance with the Miller-fix statute is consistent with the
resentencing at issue in Lindsey and Mehlhorn. In both situations, the defendant
was given a sentence that was later held unconstitutional, and in both situations the
defendant was given a new, appealable sentence. The Miller-fix statute itself
describes the process as "resentencing" that, like the resentencing in Lindsey, does
not require a new trial on the defendant's underlying conviction. RCW
10.95.035(4)("A resentencing under this section shall not reopen the defendant's
conviction to challenges that would otherwise be barred by RCW 10.73.090,
10.73.100, 10.73.140, or other procedural bamers."). Thus, like the defendants in
Lindsey and Mehlhorn, individuals sentenced pursuant to the Miller-fix statute are
constitutionally entitled to direct appeal.
Nevertheless, because the Miller-fix statute provides that sentences will be
"subject to review to the same extent as a minimum term decision by the parole
board before July 1, 1986," one might presume that the two situations are similar.
RCW 10.95.035(3). This is not the case. Sentences imposed pursuant to the
Miller-fix statute are procedurally and constitutionally distinct from minimum term
sentences set by the parole board before July 1, 1986.
The imposition of a minimum term sentence prior to July 1, 1986 occurred
in an administrative setting where the parole board "relie[d] on standardized
guidelines and inform[ed] an inmate of the reasons for his or her minimum term
24 State V. Delbosqiie, No. 96709-1
when outside the guideline range." In re Pers. Restraint ofSinka, 92 Wn.2d 555,
565-66, 599 P.2d 1275 (1979). Consequently, this court determined that "the
setting of a minimum term is not part of a criminal prosecution and the full
panoply of rights due a defendant in such a proceeding does not apply to a
minimum term setting." Id. at 566.
A resentencing pursuant to the Miller-fix statute is entirely different. Unlike
a parole board hearing, a Miller hearing is adversarial, involves arguments from
both the defendant and the State, and mandates that a sentencing judge consider
specific criteria that account for the diminished culpability of youth. These
differences demand more stringent due process protections than the "minimal due
process" at stake in a minimum term hearing before the parole board. Id. at 556.
Whereas review by PRP is appropriate for a minimum term sentence imposed by
the parole board, the same cannot be said for a sentence pursuant to Miller.
Thus, both the procedures involved and the statutory language itself strongly
indicate that the Miller-fix statute requires the trial court to vacate the eiToneous
life without parole sentence and impose a new minimum term consistent with the
statutory criteria. Such resentencing necessarily results in a new, appealable
sentence.^
^ The trial judge proceeded as though this was the case, explaining in his memorandum opinion that "[t]he Order and Judgment will reflect. . . that the sentence set forth . . . will be
25 State V. Delbosque, No. 96709-1
3. A PRP is not a substitute for appeal
It is essential to preserve the right to appeal in criminal cases because a PRP
does not, and is not meant to, afford the same protections as an appeal. See In re
Pers. Restraint ofHagler, 97 Wn.2d 818, 824, 650 P.3d 1103 (1982). On appeal,
the standard of review is more favorable to criminal defendants, as the State has
the burden to prove beyond a reasonable doubt that a constitutional error is
harmless. Id. at 825. In contrast, a personal restraint petitioner claiming a
constitutional violation must establish that they were actually and substantially
prejudiced. In re Pers. Restraint ofBenn, 134 Wn.2d 868, 884-85, 952 P.2d 116
(1998).
The State contends that review of a Miller resentencing will not be subject to
this heightened standard because "the petitioner will have 'had no previous or
alternative avenue for obtaining state judicial review' in such cases." Second
Suppl. Br. of Pet'r at 3 (quoting In re Pers. Restraint ofCashaw, 123 Wn.2d 138,
149, 866 P.2d 8 (1994)). However, the State's reliance on Cashaw is questionable
because the decision in that case was made by the Indeterminate Sentence Review
Board, while Miller-fix sentences are imposed by trial courts. Moreover, even if
Cashaw''s lower standard of review were to apply, a PRP is not an adequate
vacated and the court will impose a new term of confinement consistent with the court's decision after the resentencing proceeding." CP at 240.
26 State V. Delbosque, No. 96709-1
substitute for an appeal because it provides limited bases for relief. See RAP
16.4(c).
These heightened protections of a direct appeal as compared to a PR? are
especially significant in the context ofjuvenile sentencing. Indeed, we have
recognized that "[wjhen a juvenile offender is sentenced in adult court, youth
matters on a constitutional level." Ramos, 187 Wn.2d at 428. Prohibiting
juveniles from appealing their Miller sentences not only violates their right to
appeal, but runs contrary to our cases that bolster protections for juvenile offenders
facing lengthy sentences. E.g., Bassett, 192 Wn.2d 67; Ramos, 187 Wn.2d 420;
State V. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409(2017)(holding
sentencing courts must have complete discretion to consider mitigating
circumstances associated with the youth of any juvenile defendant).
The fact that Delbosque could seek review by PRP is therefore insufficient.
The Miller-f\x statute requires a full resentencing, and the sentence imposed must
be subject to direct appeal. RCW 10.95.035(3) therefore violates the right to
appeal in criminal cases guaranteed by article 1, section 22.
CONCLUSION
We affirm the Court of Appeals' holding that the trial court's findings were
not supported by substantial evidence and hold that the Court of Appeals properly
remanded Delbosque's case for resentencing. However, we reverse the Court of
27 State V. Delbosqiie, No. 96709-1
Appeals' determination that the only avenue to review a Miller resentencing is by
PRP. We therefore affirm in part, reverse in part, and remand for resentencing.
28 State V. Delbosque, No. 96709-1
WE CONCUR:
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