In re Light-Roth

200 Wash.App. 149

401 P.3d 459

In the MATTER OF the Personal Restraint of Kevin LIGHT-ROTH, Petitioner.

No. 75129-8-I.

Court of Appeals of Washington, Division 1.

FILED: August 14, 2017

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 S.W., Morrison St., Ste. 1025, Portland, OR, 97205-3813, for Petitioner.

Ann Marie Summers King County Prosecutor's Office 516 3rd Ave Ste W554 Seattle, WA, 98104-2362, for Respondent.

Trickey, A.C.J.¶1 In this personal restraint petition, Kevin Light-Roth challenges his sentence for his 2004 conviction of murder in the second degree. He argues that his sentence is invalid because the trial court did not meaningfully consider whether his youthfulness justified an exceptional sentence below the standard range.

¶2 Although this is Light-Roth's second petition and is beyond the one-year time bar for collateral attacks on the judgment, he argues that we may consider it because of a significant change in the law. He contends that the recent Supreme Court decision in State v. O'Dell significantly broadened the circumstances under which a defendant's youthfulness may justify an exceptional sentence below the standard range. 183 Wash.2d 680, 695-96, 358 P.3d 359 (2015).

¶3 The State responds that O'Dell is not a significant change in the law because the court did not overrule its decision in State v. Ha'mim. O'Dell, 183 Wash.2d at 685, 358 P.3d 359 (citing Ha'mim, 132 Wash.2d 834, 847, 940 P.2d 633 (1997) ). In O'Dell, the court said there was a "clear connection between youth and decreased moral culpability for criminal conduct." 183 Wash.2d at 695, 358 P.3d 359. But in Ha'mim, the court stated that the "age of the defendant does not relate to the crime or the previous record of the defendant," and cited with approval a Court of Appeals decision characterizing as absurd the argument that a defendant's youth might justify imposing a more lenient sentence. 132 Wash.2d at 846-47, 940 P.2d 633 (citing State v. Scott, 72 Wash. App. 207, 218-19, 866 P.2d 1258 (1993), aff'd, State v. Ritchie, 126 Wash.2d 388, 894 P.2d 1308 (1995) ).

¶4 Accordingly, we hold that O'Dell expanded youthful defendants' ability to argue for an exceptional sentence, and was a significant change in the law. Because that change in the law was material to Light-Roth's sentence and applies retroactively, we may consider Light-Roth's petition. We conclude that Light-Roth deserves an opportunity to have a sentencing court meaningfully consider whether his youthfulness justifies an exceptional sentence below the standard range. Therefore, we grant Light-Roth's petition.

FACTS

¶5 In 2003, when he was 19 years old, Light-Roth shot and killed Tython Bonnett.¹

¶6 In 2004, Light-Roth was convicted of murder in the second degree.² Light-Roth asked for a low- or mid-range sentence. He pointed out that he was only 21 years old at the time of sentencing, but he did not seek an exceptional sentence downward on the basis of his youthfulness at the time of the murder. The trial court imposed the maximum standard range sentence of 335 months.³

¶7 In 2008, this court issued its mandate in Light-Roth's direct appeal, and the judgment in his case became final.

¶8 In 2009, Light-Roth brought his first personal restraint petition, alleging numerous errors, none of which related to his sentence or youthfulness. In 2010, this court dismissed that petition.

¶9 In 2015, the Supreme Court issued its opinion in O'Dell, 183 Wash.2d 680, 358 P.3d 359.

¶10 In 2016, Light-Roth filed this second personal restraint petition, challenging his sentence.

ANALYSIS

Timeliness

¶11 The State argues that this court should dismiss Light-Roth's petition as untimely because Light-Roth filed it more than one year after the judgment in his case became final. While this petition would normally be untimely, we hold that we may consider it because of O'Dell, which announced a significant, material change in the law that applies retroactively.

¶12 "No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." RCW 10.73.090(1). A judgment becomes final when an appellate court issues its mandate disposing of the direct appeal. RCW 10.73.090(3)(b).

¶13 But there are exceptions to the one-year time limit. RCW 10.73.100. The one-year limit does not apply to a petition that is based solely on the ground that there has been (1) a significant change in the law, (2) that is material to the defendant's sentence, and (3) applies retroactively. RCW 10.73.100(6).⁴

¶14 Here, Light-Roth's sentence became final in 2008. He filed this petition in 2016. Therefore, he may pursue this petition only if he can satisfy all three prongs of RCW 10.73.100(6). We conclude that he can.

Significant Change in the Law

¶15 Light-Roth argues that O'Dell announced a significant change in the law because it changed "the law regarding the evidence that is relevant to decreased culpability" and changed the showing required to merit a sentencing court's consideration of an offender's youth.⁵ The State argues that O'Dell did not announce a significant change in the law because it did not overrule established precedent. We agree with Light-Roth because defendants could not successfully argue that their youth diminished their culpability before O'Dell.

¶16 A significant change in the law occurs when "an intervening appellate decision overturns a prior appellate decision that was determinative of a material issue." State v. Miller , 185 Wash.2d 111, 114, 371 P.3d 528 (2016). An appellate decision that " ‘settles a point of law without overturning prior precedent’ or ‘simply applies settled law to new facts' " does not constitute a significant change in the law. Miller, 185 Wash.2d at 114-15, 371 P.3d 528 (quoting In re Pers. Restraint of Turay, 150 Wash.2d 71, 83, 74 P.3d 1194 (2003) ). But appellate courts will usually find a significant change in the law when the defendant could not have argued an issue before the new appellate decision was published. Miller, 185 Wash.2d at 115, 371 P.3d 528. The change must be a change in the law itself; a change in counsels' understanding of the law is not enough. Miller, 185 Wash.2d at 116, 371 P.3d 528.

¶17 In State v. Miller, the court held that State v. Mulholland had not announced a significant change in the law because, there, the court stated explicitly that the question it was confronted with was " ‘a question [it had] not directly addressed.’ " 185 Wash.2d at 116, 371 P.3d 528 (quoting State v. Mulholland, 161 Wash.2d 322,328, 166 P.3d 677 (2007) ).

¶18 In In re the Personal Restraint of Flippo, Earl Flippo petitioned the Supreme Court to review the discretionary legal financial obligations (LFOs) imposed on him, arguing that there had been a significant change in the law since his sentence. 187 Wash.2d 106, 108, 385 P.3d 128 (2016) (citing State v. Blazina, 182 Wash.2d 827, 837-38, 344 P.3d 680 (2015) (holding that the trial court must make an "individualized inquiry into the defendant's current and future ability to pay" before imposing discretionary LFOs and that the record must reflect that inquiry)). The court dismissed Flippo's petition because it concluded that Blazina had clarified the trial court's requirements under RCW 10.01.160(3) but had not "change[d] anything about the meaning of that statute or any other material provision of law." Flippo, 187 Wash.2d at 112, 385 P.3d 128. The court reasoned that, "prior to Blazina, a defendant could certainly request that the court perform an individualized inquiry pursuant to the statute." Flippo, 187 Wash.2d at 112, 385 P.3d 128.

¶19 Flippo argued that such a request would have been "futile" because controlling precedent established that the trial court did not need to " ‘enter formal, specific findings regarding a defendant's ability to pay.’ " Flippo, 187 Wash.2d at 112-13, 385 P.3d 128 (quoting State v. Curry, 118 Wash.2d 911, 916, 829 P.2d 166 (1992) ). The court rejected Flippo's argument, holding that, although Blazina explained what the trial court was required to do, "nothing about those requirements changed with Blazina." Flippo, 187 Wash.2d at 113, 385 P.3d 128. The court acknowledged that some practitioners had had a mistaken understanding of the law, but nevertheless, held that there was no significant change in the law. Flippo, 187 Wash.2d at 113, 385 P.3d 128.

¶20 Here, the parties dispute whether O'Dell announced a change in the interpretation of the mitigating factors justifying an exceptional sentence below the standard range under the Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA). The court may impose a sentence below the standard range when the "defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired." RCW 9.94A.535(1)(e).

¶21 The court may also impose an exceptional sentence on the basis of a nonstatutory mitigating factor. RCW 9.94A.535(1). The factor may not be something that "the legislature necessarily considered" when establishing the sentence range and it must be " ‘sufficiently substantial and compelling to distinguish the crime in question from others in the same category.’ " O'Dell, 183 Wash.2d at 690, 358 P.3d 359 (quoting Ha'mim, 132 Wash.2d at 840, 940 P.2d 633 ).

¶22 In 1993, in State v. Scott, the Court of Appeals rejected as bordering "on the absurd" an argument that a 17-year-old murder defendant's youth lessened his culpability.⁶ 72 Wash. App. at 218-19, 866 P.2d 1258. The court acknowledged that "teenagers are more impulsive than adults and lack mature judgment," but stated that "[p]remediated murder is not a common teenage vice." Scott, 72 Wash. App. at 219, 866 P.2d 1258.

¶23 In 1997, in State v. Ha'mim, an 18-year-old defendant requested an exceptional...