State v. Gregg

474 P.3d 539, 196 Wash. 2d 473

• Court: Washington Supreme Court
• Decided: September 17, 2020
• Docket: 97517-5
• Status: Published

Opinion

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The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE SEPTEMBER 17, 2020 SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 17, 2020 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 97517-5 Respondent, ) ) v. ) En Banc ) SEBASTIAN MICHAEL GREGG, ) ) Petitioner. ) ) Filed: September 17, 2020

JOHNSON, J.—This case addresses the constitutionality of RCW

9.94A.535(1) placing the burden of establishing mitigating circumstances on

juvenile defendants sentenced in adult court. A second issue is whether a guilty

plea may be withdrawn based on affirmative misinformation of a four-year felony

firearm registration requirement. Sebastian Gregg seeks reversal of a published

Court of Appeals decision affirming his sentence based on convictions of first

degree murder and first degree burglary, both with firearm enhancements, and first

degree arson. We affirm and conclude that the allocation of the burden of proof For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, is

constitutional and that Gregg’s plea was not involuntary.

FACTS AND PROCEDURAL HISTORY

On July 6, 2016, Gregg and Dylan Mullins shot and killed Michael Clayton.

Gregg was 17 years old, Mullins was 18 years old, and Clayton was 19 years old.

Gregg and Mullins entered the home of Clayton through a window while Clayton

and his father were away. Gregg and Mullins broke into a gun safe in the home,

removed weapons, and waited for Clayton to return. While they waited, Gregg and

Mullins discussed killing Clayton and burning the house down after they killed

him. When Clayton came home, both Gregg and Mullins shot him and he died.

Gregg and Mullins then set fire to the home, fleeing the scene. They hid the

weapons behind some bushes and went to a local library with the purpose of

creating an alibi. After spending time at the library, Gregg and Mullins then stole a

Kent parks and recreation department truck and retrieved some of the stashed

firearms. The pair drove to Grays Harbor County, where they were arrested for

possessing a stolen truck. While in custody, both Gregg and Mullins confessed to

the murder.

Gregg was charged with first degree murder and first degree burglary, both

while armed with a firearm, and first degree arson. Under RCW

13.04.030(1)(e)(v)(A) these charges were filed in adult court. Gregg pleaded guilty

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

as charged. In the plea agreement form, the portion regarding the firearm

registration requirement was crossed out. During the plea colloquy, the judge asked

Gregg whether he understood that the crossed out paragraphs did not apply to him,

and Gregg indicated that he understood. Despite this misinformation, the firearm

registration requirement was ordered as part of the sentence as required by RCW

9.41.330(3).

At a sentencing hearing, both the State and Gregg presented substantial

evidence regarding the crime and Gregg’s culpability. Gregg sought an

exceptionally low sentence of 144 months and presented extensive mitigation

evidence regarding his youthfulness and the circumstances of his upbringing,

including expert opinions. The sentencing hearing involved about six days of

testimony. The court rejected Gregg’s arguments in a detailed oral decision and

held that Gregg’s youth in this case did not substantially diminish his culpability

and that no substantial and compelling reason existed to impose a sentence below

the standard range. Gregg was sentenced within the standard range to 37 years,

which included 10 years for firearm enhancements. Gregg appealed, challenging

the constitutionality of RCW 9.94A.535(1) and asserting that the misinformation

as to the firearm registration requirement established grounds for withdrawal of his

plea.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

The Court of Appeals affirmed, holding that the statute was constitutional

under both our state and the federal constitutions. State v. Gregg, 9 Wn. App. 2d

569, 574, 444 P.3d 1219 (2019). The Court of Appeals also held that the firearm

registration requirement was a collateral consequence to the plea, concluding the

affirmative misinformation as to the requirement did not render the plea

involuntary. Gregg petitioned, and this court granted review. 1 State v. Gregg, 194

Wn.2d 1002, 451 P.3d 341 (2019).

ANALYSIS

I. Burden of Proving Mitigating Circumstances

We review questions of constitutional law de novo. State v. Ramos, 187

Wn.2d 420, 433, 387 P.3d 650 (2017). The Eighth Amendment to the United

States Constitution prohibits “cruel and unusual punishments.” Article I, section 14

of our state constitution contains a similar provision that prohibits “cruel

punishment.” The statutory provision at issue here provides that “[t]he court may

impose an exceptional sentence below the standard range if it finds that mitigating

circumstances are established by a preponderance of the evidence.” RCW

9.94A.535(1). Both the State and Gregg agree that a defendant bears the burden of

proving that there are substantial and compelling reasons justifying an exceptional

1 The Fred T. Korematsu Center for Law and Equality and the Juvenile Law Center both filed amicus briefs in support of Gregg.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

sentence downward under this provision, which we have recognized in Ramos, 187

Wn.2d at 445. We also have held that youth is not a per se mitigating factor in the

context of sentencing young adults. In re Pers. Restraint of Light-Roth, 191 Wn.2d

328, 330, 422 P.3d 444 (2018).

In Ramos, we considered whether the SRA provision at issue here placing

the burden on a juvenile defendant in adult court to establish mitigation violated

the Eighth Amendment—noting that the United States Supreme Court disavowed

this argument in Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718, 735, 193

L. Ed. 2d. 599 (2016) (discussing Miller v. Alabama, 567 U.S. 460, 466, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012)). Ramos, 187 Wn.2d at 445. We reasoned:

[Ramos] argues that the State must carry the burden of proving life without parole is appropriate in each individual case. We do not question the logical appeal of this reasoning. However, it attaches a procedural significance to Miller’s holding that the Court expressly disavowed. Montgomery, 136 S. Ct. at 735. .... Miller does not authorize this court to mandate sentencing procedures that conflict with the SRA unless it is shown that the SRA procedures so undermine Miller’s substantive holding that they create an unacceptable risk of unconstitutional sentencing. Ramos has not made this showing as to the SRA’s allocation of the burden of proving that an exceptional sentence below the standard range is justified. We thus decline to hold that this allocation is unconstitutional as applied to juvenile homicide offenders.

Ramos, 187 Wn.2d at 445-46 (emphasis added). While Gregg does not assert that

his sentence of 37 years is unconstitutional, he asserts that it is unconstitutional for

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

a standard range sentence to be presumptively valid for a juvenile sentenced in

adult court and the burden should be on the State to prove that youth was not a

mitigating circumstance in every case. Ramos expressly rejected this argument

under an Eighth Amendment analysis, and Gregg’s assertion that the State should

bear the burden because children are less likely to be deserving of standard range

sentences mirrors the argument rejected in Ramos. Gregg cites no intervening

United States Supreme Court authority that would question our holding in Ramos

that the allocation of the burden of proof under RCW 9.94A.535 is constitutional

under the Eighth Amendment as applied to juveniles.

Although Ramos based its holding on the Eighth Amendment, we have not

addressed whether the statutory burden of proof is constitutional under article I,

section 14 of our state constitution. Gregg notes in his briefing that we have found

our state constitution to be more protective in some circumstances. Gregg does not

seek to have the sentence he received declared as categorically barred; instead,

Gregg seeks a procedural change aiming to reduce the risk that a juvenile will be

sentenced in adult court without appropriate consideration of the juvenile’s

youthfulness. However, as in Ramos, neither party here has offered an analysis of

how our constitution should be interpreted differently than the federal constitution

with respect to this unique claim using our analysis set out in State v. Gunwall, 106

Wn.2d 54, 720 P.2d 808 (1986). What Gregg seems to seek is a rewrite of SRA

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

procedures by this court specific to juvenile sentencing in adult court. Gregg cites

no persuasive authority that would support this court rewriting the statutory

provisions at issue here.

At most, Gregg quotes language and discussion from cases to support his

constitutional arguments. Gregg quotes and cites State v. Houston-Sconiers, 188

Wn.2d 1, 9, 391 P.3d 409 (2017), to support his assertion that our constitution

requires shifting the burden of proving mitigation. In Houston-Sconiers, we held

that the Eighth Amendment provides sentencing courts with discretion to consider

the mitigating qualities of youth and impose sentences below SRA guidelines for

juvenile offenders in adult court. That case, however, was decided on Eighth

Amendment grounds, not independently under article I, section 14. Further, Gregg

seemingly concedes that Houston-Sconiers did not cite Ramos or mention the

burden of proving mitigation at sentencing or the statutory provision at issue here.

Houston-Sconiers cannot be read to have overturned Ramos or to have required

invalidation of the statute.

Gregg also quotes State v. Bassett for the assertion that we have found

article I, section 14 to be more protective of juveniles than the federal constitution.

192 Wn.2d 67, 82, 428 P.3d 343 (2018). In Bassett, we engaged in a Gunwall

analysis to determine if and how article I, section 14 was more protective than the

Eighth Amendment in the context of juvenile sentences of life without the

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

possibility of parole, concluding that it was more protective in this context and

such sentences were categorically barred. We also recognized in Bassett that a

categorical bar analysis offers the better framework compared to a proportionality

analysis for analyzing cruel punishment claims made by juveniles under article I,

section 14. Though a categorical bar analysis is generally better suited for

analyzing cruel punishment claims made by juveniles, it offers a poor framework

for analyzing the procedural burden-shifting claim made by Gregg.

Yet, even applying a categorical bar framework, Gregg’s claim fails. Under

that analysis we first consider “whether there is objective indicia of a national

consensus against the sentencing practice at issue,” then the court applies its own

independent judgment to determine whether the practice is unconstitutional based

on precedent from our cases and the court’s own understanding and interpretation

of article I, section 14. Bassett, 192 Wn.2d at 83.

Turning first to the national consensus prong, we find no support. The out-

of-state cases Gregg cites to support his position are less helpful and

distinguishable. These cases deal with the allocation of the burden of proof in the

context of life without parole sentences and do not relate to the procedural

requirements in the context of mitigation for juveniles not facing life without the

possibility of parole. See State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015);

State v. Hart, 404 S.W.3d 232, 241 (Mo. 2013); Commonwealth v. Batts, 640 Pa.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

401, 163 A.3d 410 (2017); Davis v. State, 2018 WY 40, 415 P.3d 666, 681. Gregg

has cited no cases suggesting that a national consensus exists for a burden-shifting

presumption in favor of mitigation for all juveniles when sentenced in adult court.

As to the second prong, Gregg asserts that it is unconstitutional for a

juvenile to bear the burden of proving mitigation because children are different.

This claim appears to be based on the risk that a trial court will fail to appropriately

take youth into account when sentencing juveniles in adult court. Under Gregg’s

argument, any categorical bar would be as to sentences where youth is not

appropriately taken into consideration.

As a whole, our cases recognize that children are different and procedural

differences exist for juveniles sentenced in adult court. We have held that trial

courts, when sentencing juveniles, have discretion to impose a sentence below the

standard range and may, where required, disregard mandatory enhancements when

supported by evidence presented at sentencing as to mitigating qualities of youth.

Houston-Sconiers, 188 Wn.2d at 21. We have gone further and held that sentences

of life without the possibility of parole are categorically barred for juveniles in

adult court. Bassett, 192 Wn.2d at 73. However, those principles do not support

invalidating the statutory procedure required to be applied nor the burden to

present evidence and testimony to support the relief sought.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

Gregg offers no helpful analytical framework that would assist and guide

sentencing courts to better identify what sentences would be appropriate in light of

a juvenile’s youthfulness. Instead, he asserts that trial courts should engage in a

case-by-case analysis, much like they already do, but must start with a general

presumption that a mitigated sentence is required unless the State proves

otherwise. Without explicitly stating as much, Gregg asks this court to rewrite the

SRA and declare standard range sentences to be exceptional sentences when

applied to juveniles. To reach this result, we would not only need to declare the

SRA structure partially unconstitutional but we would also need to overrule some

of our cases. We disagree with the arguments made by Gregg, and he has not

shown that such relief is appropriate in this case.

The State argues that this claim is more appropriately analyzed under a due

process lens. However, Gregg acknowledges that he is not bringing a due process

claim. While a due process analysis under procedural or substantive due process

offers a framework for analyzing whether shifting the burden of proof is

appropriate, Gregg does not assert a due process claim, thus we will not reach this

issue.

II. Misinformation

The second issue addresses whether Gregg’s plea was involuntary because

he was affirmatively misinformed about a consequence of his plea, a four-year

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

firearm registration requirement. We conclude that his plea was voluntary because,

as the Court of Appeals correctly reasoned under our cases, this firearm

registration requirement is not punishment, thus it does not enhance Gregg’s

sentence. Also, the circumstances do not rise to the level of a manifest injustice

such to require allowing the withdrawal of a plea.

A plea must be knowing, voluntary, and intelligent to be valid. State v.

Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). Before a guilty plea is

accepted, the defendant must be informed of all direct consequences of the plea.

Mendoza, 157 Wn.2d at 588. Whether a consequence is direct turns on whether

“‘the result represents a definite, immediate and largely automatic effect on the

range of the defendant's punishment’.” State v. Ross, 129 Wn.2d 279, 284, 916

P.2d 405 (1996) (emphasis added) (internal quotation marks omitted) (quoting

State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Collateral

consequences are consequences that are not direct. Under CrR 4.2(f) “[t]he court

shall allow a defendant to withdraw the defendant’s plea of guilty whenever it

appears that the withdrawal is necessary to correct a manifest injustice.”2

Affirmative misinformation as to a direct consequence renders a plea

constitutionally invalid. Mendoza, 157 Wn.2d at 589. We have not, however,

2 Oddly, Gregg does not seek to withdraw his plea but asks this court to remand with the direction that Gregg may withdraw his plea if he so chooses.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

adopted a per se rule for affirmative misinformation as to collateral consequences.

Gregg asserts that the firearm registration requirement is a direct consequence

because it flows directly from the conviction. But the question as to whether a

consequence is direct also turns on whether it enhances the sentence or

punishment.

We determined that a similar, though more severe, sex offender registration

requirement was a collateral consequence in State v. Ward, 123 Wn.2d 488, 493,

869 P.2d 1062 (1994). In Ward, we analyzed whether a sex offender registration

requirement was an ex post facto law and whether the registration requirement was

a direct or collateral consequence of the plea. In our ex post facto analysis, we

reasoned that the registration requirement was not punitive because it did not

impose any significant burden and the restrictions the legislature placed on

disclosure of the information indicated the legislative intent was regulatory and not

punitive. From this analysis we held that the registration requirement was not a

direct consequence because it was not “punishment,” thus “it does not enhance

[the] sentence or punishment.” Ward, 123 Wn.2d at 513.

The Court of Appeals here found the analysis in Ward to be instructive and

concluded that the firearm registration requirement was a collateral consequence.

We agree. Here, any burden imposed by the firearm registration requirement is not

burdensome because RCW 9.41.333(2) lists six pieces of information a registrant

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

must supply. Further, the firearm registration information is not available to the

public, which suggests a regulatory legislative intent. This regulatory intent and

minor burden establishes that the registration requirement is not punitive, thus not

a direct consequence.

Gregg also argues that affirmative misinformation concerning a collateral

consequence should always render a plea involuntary. For support, Gregg cites two

cases: State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003), and State v.

A.N.J., 168 Wn.2d 91, 116, 225 P.3d 956 (2010). These cases do not support his

proposition.

Turley involved misinformation as to a direct consequence. There we

addressed, for the purposes of withdrawal of a plea, whether a plea agreement is

treated as indivisible or may be separated if misinformation is given only with

respect to one charge and not other charges. We held that a mandatory community

placement requirement was a direct consequence of a plea and misinformation

rendered the plea invalid. Turley, 149 Wn.2d at 399. Turley did not discuss or

involve collateral consequences and does not control the analysis here.

As to A.N.J., we did not hold that affirmative misinformation as to a

collateral consequence renders a plea involuntary per se. Instead, we reasoned that

if the trial court found on remand that A.N.J. was misinformed that he could have

his sex offender conviction removed from his record, such misinformation rose to

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5

the level of a manifest injustice in the context of an ineffective assistance of

counsel claim. A.N.J., 168 Wn.2d at 116. This reasoning was not as to whether

A.N.J. would have to register as a sex offender, as was the case in Ward, but was

as to whether that conviction would follow A.N.J. forever. Here, the difference is

that Gregg was not misinformed that he could have his felony conviction removed

from his record, but he was given incorrect information about a firearm registration

requirement. We agree with the holding of the Court of Appeals that the

misinformation in Gregg’s case does not rise to the level of a manifest injustice.

CONCLUSION

We affirm the Court of Appeals. RCW 9.94A.535(1) placing the burden on

juvenile defendants in adult court to prove mitigating circumstances is

constitutional under article I, section 14 of our state constitution. Further, the

affirmative misinformation as to a four-year firearm registration requirement does

not render Gregg’s plea involuntary because the registration requirement under

RCW 9.41.330(3) is a collateral consequence and the circumstances in this case do

not rise to the level of a manifest injustice.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No 97517-5

WE CONCUR:

______________________________________

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (González, J., dissenting)

No. 97517-5

GONZÁLEZ, J. (dissenting) — I respectfully dissent. Science, Washington law, and the United States Constitution recognize that children are different from adults. See ch. 13.40 RCW; State v. Houston-Sconiers, 188 Wn.2d 1, 8, 391 P.3d 409 (2017) (quoting Miller v. Alabama, 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)). Because of those differences, children are presumed to have diminished culpability for their misdeeds and much greater capacity for growth and redemption. Miller, 567 U.S. at 479. Our juvenile justice system, however imperfectly, recognizes this and gives children far more opportunities for redemption and rehabilitation than our criminal justice system offers to adults. RCW 13.40.010, .080; State v. B.O.J., 194 Wn.2d 314, 330-31, 449 P.3d 1006 (2019). An adjudication of guilt in juvenile court is not, as a matter of law, a conviction of a crime. RCW 13.04.240. But children do commit violent acts, some of which, like the one committed here, are reprehensible. Over the years, our legislature has decided that some children charged with certain offenses should be tried in

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (González, J., dissenting)

adult court and subject to adult sentences, regardless of the individual child’s culpability and capacity. See, e.g., LAWS OF 1997, ch. 338, § 7; RCW 13.04.030(1)(e)(v)(A)-(C). Many of the statutes that effectively recategorized some children as adults were predicated on the discredited theory that some children were “juvenile superpredators.” S.B. REP. ON ENGROSSED SECOND SUBSTITUTE S.B. 6160, 65th Leg., Reg. Sess. (Wash. 2018); State v. Watkins, 191 Wn.2d 530, 550, 423 P.3d 830 (2018) (Yu, J., dissenting). “Juvenile superpredators were characterized as ruthless sociopaths who lacked a moral conscience and were unconcerned about the consequences of their actions and undeterred by punishment.” Br. of Jeffrey Fagan et al. as Amici Curiae in Supp. of Pet’rs at 8 (U.S. No. 10-9647 (2012)) (Fagan Brief). Based on that pernicious theory, states across the nation, including ours, removed many young people from the juvenile justice system and locked them away in adult prisons for very long sentences—or even the rest of their lives. Id. at 15-16 (citing PATRICIA TORBET ET AL., OFFICE OF JUV. JUST. & DELINQ. PREVENTION, U.S. DEP’T OF JUST., STATE RESPONSES TO SERIOUS AND VIOLENT JUVENILE CRIME, xv (July 1996), www.ncjrs.gov/pdffiles/statresp.pdf [https://perma.cc/K3U5-FL4T]), 20. The theory that our nation was beset by “juvenile superpredators” was at best wrong and at worst deeply racist. Jane Rutherford, Juvenile Justice Caught between the Exorcist and A Clockwork Orange, 51 DEPAUL L. REV. 715, 721-22 (2002). To his credit, Professor Dilulio, the scholar who had originally popularized the term, has disavowed the theory before the United

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (González, J., dissenting)

States Supreme Court. State v. Null, 836 N.W.2d 41, 56 (Iowa 2013) (citing Fagan Brief at 14-19). We now know that children are different, that the human brain continues to mature into the mid-20s, and that many teenagers simply “lack the ability to properly assess risks and engage in adult-style self-control” that would make an adult sanction appropriate. Null, 836 N.W.2d at 55 (citing ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 34 (2008)). At least some of these facts have constitutional significance under the Eighth Amendment, and some legislation predicated on that old discredited criminological theory are being significantly revised. See Miller, 567 U.S. at 476-77; LAWS OF 2018, ch. 162. Now, as a matter of constitutional law, trial judges must meaningfully consider the fact that children are different when determining the just sentence for crimes they committed as children. In re Pers. Restraint of Domingo-Cornelio, No. 97205-2, slip op. at 1 (Wash. Sept. 17, 2020), https://www.courts.wa.gov/opinions/; In re Pers. Restraint of Ali, No. 95578-6, slip op. at 1 (Wash. Sept. 17, 2020), https://www.courts.wa.gov/opinions/; Houston-Sconiers, 188 Wn.2d at 21; Miller, 567 U.S. at 480. Now, only “the rarest of children, those whose crimes reflect ‘irreparable corruption,’” may be sentenced to die in prison. Montgomery v. Louisiana, 577 U.S __, 136 S. Ct. 718, 726, 193 L. Ed. 2d 599 (2016) (internal quotation marks omitted) (quoting Miller, 567 U.S. at 479-80). Such sentences must be carefully considered and rarely imposed. Id. (citing Miller, 567 U.S. at 479-80). Similarly, judges must meaningfully

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (González, J., dissenting)

consider a child’s culpability and capacity for change before imposing a standard range sentence designed for adults. Houston-Sconiers, 188 Wn.2d at 9; State v. Ramos, 187 Wn.2d 420, 428, 387 P.3d 650 (2017). We find these requirements to be a significant and material change in the law requiring retroactive application. Domingo-Cornelio, slip op. at 1-2; Ali, slip op. at 2. While Houston-Sconiers was discussed at sentencing, I have significant doubt whether the trial court fully appreciated its obligation to consider youth as a mitigator. 6 Report of Proceedings (Dec. 14, 2017) at 677-88. Instead, the court seemed to discount the possibility that youth played a role and declined to depart from an adult standard range. Id. at 688. The Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, was written long before Professor Dilulio repudiated the “juvenile superpredator” theory and Miller held that children could not be constitutionally subject to mandatory life sentences. LAWS OF 1981, ch. 137; Miller, 567 U.S. at 479. The SRA contemplates that the defendant, in every case, has the burden of showing that a downward departure from the sentencing guidelines is appropriate. RCW 9.94A.535(1). But given what we now know, only in rare cases is it appropriate to sentence juveniles as if they were adults. This must be included in how we approach and structure sentencing for children. I am deeply troubled by amicus’s conclusion that the vast majority of children who have been transferred to adult court since Houston-Sconiers are receiving standard sentences designed for adults. Br. of Fred T. Korematsu Center for Law and Equality as Amicus Curiae in Supp. of Pet’r at 8-9 (citing WASH. STATE CASELOAD FORECAST COUNCIL, STATISTICAL

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (González, J., dissenting)

SUMMARY OF ADULT FELONY SENTENCING FISCAL YEAR 2018, at 71 (2018), www.cfc.wa.gov/PublicationSentencing/StatisticalSummary/Adult_Stat _Sum_FY_2018.pdf [https://perma.cc/24ME-BNR5], and WASH. STATE CASELOAD FORECAST COUNCIL, STATISTICAL SUMMARY OF ADULT FELONY SENTENCING YEAR 2019, at 72 (2019), www.cfc.wa.gov/PublicationSentencing/StatisticalSummary/Adult_Stat _Sum_FY_2019.pdf [https://perma.cc/6S4Z-VCH9]). Our juvenile justice system is focused on accountability and rehabilitation, not retribution. TODD DOWELL, THE JUVENILE OFFENDER SYSTEM IN WASHINGTON STATE 2 (2019) (citing RCW 13.40.010(2)).1 It cannot be the case that the diminished culpability of a child does not warrant a routine downward departure from an adult standard range sentence. See generally Roper v. Simmons, 543 U.S. 551, 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). But data collected by the forecast council suggests the opposite is happening. The promise of the Eighth Amendment, Miller, and Houston-Sconiers must not be merely rhetorical. We are better than that. Since, as a matter of fact and law, children are different, trial judges must start from the presumption that a downward departure from the standard range is appropriate. Cf. Ramos, 187 Wn.2d at 436; Montgomery, 136 S. Ct. at 726 (citing Miller, 567 U.S. at 479-80). That presumption should be followed unless the judge is persuaded that the case before them is one of the rare cases where a standard range adult sentence is appropriate. If it is one of

1 http://waprosecutors.org/wp-content/uploads/2019/09/Understanding-the-Juvenile-System-in -WA-2019-Edition-rev.-08-26-2019.pdf [https://perma.cc/Z2HT-H6B9]

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (González, J., dissenting)

those rare cases where a standard range adult sentence is appropriate, that should be explained on the record. I respectfully dissent.

_______________________________

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (Yu, J., concurring in dissent)

YU, J. (concurring in dissent) — I agree with the majority that State v.

Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017), based its holding on the Eighth

Amendment to the United States Constitution and that we have not addressed

whether the statutory burden of proof provided by the Sentencing Reform Act of

1981 (SRA), ch. 9.94A RCW, is constitutional as applied to juveniles in

accordance with article I, section 14 of the Washington Constitution.

I also do not disagree with the majority’s summary of our cases on juvenile

culpability. However, I join the dissent today because we have enough guidance

from our cases and scientific data to reach the question before us without having to

strike down the SRA, a sentencing scheme designed for adults. The lack of robust

briefing on the state constitutional question is disappointing, but it does not

preclude us from holding that youth is a mitigating factor when juveniles are For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Gregg, No. 97517-5 (Yu, J., concurring in dissent)

sentenced in adult court. Indeed, a Gunwall 1 analysis is not always required for us

to reach a state constitutional question, so long as there is a “principled basis for

departing from federal law.” Chong Yim v. City of Seattle, 194 Wn.2d 682, 692,

451 P.3d 694 (2019).

The question before us is whether there is a procedural presumption that

should be afforded to youth declined from juvenile court. The fact of youthfulness

does not fade away because the prosecutor has opted to try an individual in adult

court. As noted by Justice González, Miller2 recognizes that children are

constitutionally different from adults for the purposes of sentencing juvenile

offenders in adult court. See Ramos, 187 Wn.2d at 428. I therefore share the

conclusion that children in adult court should not have to prove their youthful

characteristics in order to receive a sentence below the standard range, and I

respectfully concur in the dissent.

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1 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). 2 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).