In re Forcha-Williams

490 P.3d 255

In the MATTER OF the Personal Restraint of Derrius FORCHA-WILLIAMS, Petitioner.

No. 79041-2-I

Court of Appeals of Washington, Division 1.

FILED July 6, 2021

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw Morrison St. Ste. 1025, Portland, OR, 97205-3813, B. Renee Alsept, Attorney at Law, P.o. Box 61712, Vancouver, WA, 98666-1712, for Petitioner(s).

Prosecuting Atty. King Count, Amy R. Meckling, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2390, for Respondent(s).

PUBLISHED OPINION

Coburn, J.

¶1 A jury convicted Derrius Forcha-Williams of committing rape in the second degree when he was 16 years old. The trial court imposed an indeterminate sentence under RCW 9.94A.507 with a midrange sentence of 120 months as the minimum term and life in prison as the maximum term. Forcha-Williams filed a personal restraint petition (PRP)¹ challenging his sentence and arguing the court's decision actually and substantially prejudiced him because it failed to acknowledge its discretion to impose an exceptional sentence in light of any consideration of the mitigating qualities of his youth. This PRP presents an issue of first impression: whether article I, section 14 of the Washington Constitution confers on sentencing courts the discretion to impose a determinate sentence for a crime subject to an indeterminate sentence under RCW 9.94A.507. We conclude it does.

¶2 Although the sentencing court here considered the mitigating qualities of Forcha-Williams's youth, the court understandably but mistakenly assumed, despite mitigating qualities of youth, it had to follow the Sentencing Reform Act (SRA) and impose an indeterminate sentence with a maximum term of life. We grant Forcha-Williams's petition and remand for resentencing.

FACTS

¶3 Under RCW 9.94A.507(1) and (3)(b), nonpersistent offenders convicted of rape in the second degree must be sentenced to an indeterminate sentence of the maximum statutory sentence for the offense and a minimum term within the standard sentence range for the offense. Rape in the second degree is a class A felony and the maximum sentence is life in prison. RCW 9A.44.050(2) ; RCW 9A.20.021(1)(a).

¶4 In 2015, a jury convicted Forcha-Williams of committing rape in the second degree when he was 16 years old. Forcha-Williams committed the rape while in a juvenile drug diversion program (drug court).

¶5 At the sentencing hearing, the King County Superior Court explained, "In anticipation of this hearing, I did review the state's presentence report, the DOC presentence investigation as well as the defense presentence report."²

¶6 The DOC presentence investigation detailed Forcha-Williams's childhood struggles including his frequent suspensions starting in third grade and his ultimate expulsion from high school. It described Forcha-Williams's biological mother as mostly absent from his life, in and out of the criminal justice system, and struggling with substance use. It also described his stepmother as physically abusive and his father as struggling with substance use.

¶7 During the hearing, the victim said she did not want the court to sentence Forcha-Williams to life in prison because of his young age and the opportunity for him to learn from his mistakes. Defense counsel described Forcha-Williams's youthfulness and difficult childhood including "issues of homelessness, parents with problems with the criminal justice system, [and] some really chilling physical and psychological abuse." Defense counsel asked the court to consider the context of Forcha-Williams's adolescent development when it considered his decision-making.

¶8 Forcha-Williams's juvenile probation counselor spoke on his behalf. The counselor said Forcha-Williams "is a young man with much promise." The counselor asked the court to consider Forcha-Williams's age and lack of adult supervision.

¶9 The intensive case management mentor who conducted Forcha-Wililams's drug court intake also spoke on his behalf. The mentor spoke about Forcha-Williams's childhood trauma and prospects for rehabilitation stating, "He is very open to treatment. He was very open to drug court. He's very open to help." The mentor urged the court to find Forcha-Williams redeemable: "As you impose the sentence, I really beg of you to understand that this child is redeemable. He is redeemable."

¶10 The State informed the trial court that Forcha-Williams had to be sentenced to an indeterminate sentence with the maximum term of life and the minimum term falling within his standard sentencing range of 102 to 136 months. The State recommended a minimum term of 136 months to life in prison. Defense counsel requested the low end of the range, 102 months, and did not request an exceptional sentence or suggest that the court had the discretion to sentence Forcha-Williams to a determinate, rather than an indeterminate, sentence.

¶11 The court stated,

Mr. Forcha-Williams, I have ... thought a lot about your case, sir. It is incredibly indicative of what happens when kids step out of schooling. I see it time and time again.

You are a young man. You had a lot of support systems around you at the time that -- things were really going down -- expulsion, substance use -- and all of those things are considerations, but ultimately I think in the course of time that this case has pended, and in the course of the trial, you learned a lot more about the consequences of what your actions can do.

I will never know if at the time this happened you thought for a second about what the consequences or results could have been, but that doesn't change the fact that it happened. It just doesn't.

I know that the juvenile system is very different than the adult system -- little discretion, available remedies. And so I want you to understand, and I have no doubt in my mind that Mr. Jursek has explained this to you a lot, but as your sentencing judge, the legislature has passed the Sentencing Reform Act.

What the legislature has done is it tells me what range I have. It tells me what I can do.

I understand that a lot of people think that sentencing is where judges have the most discretion, but I am fairly certain your counsel probably told you about ranges and how in particular with this type of charge it is a life sentence. There is nothing I can do that changes that.

What I do today is set the minimum amount of time that you will serve.

After that, the indeterminate review board decides when you get released.

I have no control over the indeterminate review board. No one in this room does. It is ultimately their decision.

I am encouraged that you do wish to pursue your GED in prison and that you're willing to follow my orders about what you are to do when you are in custody.

I am particularly mindful of [the victim's] comments. Not everyone that comes before this court who is a victim of a crime has anything hopeful to say about the defendant. And she did.

You should think about that, about what that takes to not want someone who has hurt you to be locked away forever. What that takes as a person. And that is something that I hope, as you think about that, you strive to do as well.

You are a young man and I truly hope that you make the best use of your time and become a fully functional member of society, but you have a lot of growth to do.

The court imposed the midrange sentence of 120 months to life in prison. The court further stated,

I ... particularly noticed in your presentence report, Mr. Forcha-Williams, that you're willing to follow this court's order, and that's a good start as to what you should be doing in custody, but checking the box isn't enough.

[...]

It's not easy. I think as you sit here you have seen how not easy it is to go from being a teenager to an adult, from being a kid to an adult. We treat them very differently, don't we?

¶12 Forcha-Williams directly appealed his conviction. We affirmed, and his judgement and sentence became final in June 2017.

¶13 More than one year later, in July 2018, Forcha-Williams filed a PRP challenging his judgment and sentence. RCW 10.73.090 does not bar the PRP as a collateral attack because the Washington Supreme Court announced a significant and material change in the law that applies retroactively to Forcha-Williams. See State v. Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017) ; RCW 10.73.100(6).³

¶14 In Houston-Sconiers, the Supreme Court held that "[b]ecause ‘children are different’ under the Eighth Amendment," sentencing "courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements." 188 Wash.2d at 9, 18, 21, 391 P.3d 409 (emphasis added) (quoting Miller v. Alabama, 567 U.S. 460, 481, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ). Our Supreme Court's decisions in In re Pers. Restraint of Ali, 196 Wash.2d 220, 233-35, 474 P.3d 507 (2020) and In re Pers. Restraint of Domingo-Cornelio, 196 Wash.2d 255, 262, 474 P.3d 524 (2020) provide that Houston-Sconiers is a significant and material change in the law that requires retroactive application on collateral review of "adult standard range sentences as well as mandatory enhancements under the SRA imposed for crimes committed while the defendant was a child." Ali, 196 Wash.2d at 235, 474 P.3d 507.

¶15 Following the court's decision in Ali and Domingo-Cornelio, the State concedes that Houston-Sconiers established a significant and material change in the law that applies retroactively to Forcha-Williams's sentence and his PRP is not time barred.⁴

DISCUSSION

¶16 The question on review is whether Forcha-Williams is entitled to resentencing. A petitioner is entitled to resentencing if he demonstrates "he was actually and substantially prejudiced by the error in sentencing and there are no other adequate remedies available under the circumstances." Ali, 196 Wash.2d at 242, 474 P.3d 507. "A petitioner establishes actual and substantial prejudice when a...