In re Light-Roth

422 P.3d 444

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

No. 94950-6

Supreme Court of Washington.

Oral Argument Date: March 20, 2018

Filed AUGUST 02, 2018

Reconsideration Denied August 28, 2018

Ann Marie Summers, Amy R. Meckling, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for petitioner.

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 S W Morrison Street, Suite 1025, Portland, OR 97205-3813, Robert S. Chang, Melissa R. Lee, Seattle University School of Law, 901 12th Avenue, Seattle, WA 98122-4411, for respondent.

Nancy Lynn Talner, Vanessa Torres Hernandez, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2008, Eric Riley Nusser, Terrell Marshall Law Group, 936 N. 34th Street, Suite 300, Seattle, WA 98103-8869, for Amicus Curiae (American Civil Liberties Union of Washington).

Thomas E. Weaver, Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA 98337-0221, for Amicus Curiae (Washington Association of Criminal Defense Lawyers)

MADSEN, J.

¶ 1 Kevin Light-Roth was convicted of second degree murder in 2004, and the trial court sentenced him to 335 months’ confinement. In an untimely personal restraint petition (PRP), Light-Roth argued that State v. O’Dell , 183 Wash.2d 680, 358 P.3d 359 (2015), constitutes a significant and material change in the law that applies retroactively to his sentence, excepting him from RCW 10.73.100 ’s time bar. In O’Dell , this court held while "age is not a per se mitigating factor," a sentencing court "must be allowed to consider youth as a mitigating factor when" relevant. Id. at 695-96, 358 P.3d 359.

¶ 2 The Court of Appeals granted Light-Roth’s PRP and remanded for resentencing. We reverse the Court of Appeals and hold that O’Dell does not provide an exception to the time bar.

FACTS

¶ 3 On February 5, 2003, Light-Roth, who was 19 years old at the time, shot and killed Tython Bonnett. At that time, Light-Roth was living with Chris Highley and dealing methamphetamine. The evening that he was shot, Bonnett came to Light-Roth and Highley’s apartment. Convinced that Bonnett stole his shotgun, Light-Roth confronted Bonnett and subsequently shot him in the chest. Light-Roth then told Curtis Stream, another friend who was present and witnessed the murder, " ‘[I]f you don’t want to be a part of this, you can go ahead and leave. But if you say anything ....’ Light-Roth then showed him his gun and made a slicing gesture across his throat." Mot. for Discr. Review, App. at 23 (alterations in original). Moments later Light-Roth enlisted the help of Highley to dispose of Bonnett’s body. Highley followed Light-Roth’s instruction, though he later testified that he did so only because he feared for his life.

¶ 4 Hoping to avoid any suspicion, the next morning Light-Roth told Bonnett’s girlfriend that he believed Bonnett had moved to New Mexico. Bonnett’s body was subsequently found and Light-Roth was taken into custody. After detectives interviewed him, Light-Roth attempted to escape by using a pen to remove his leg shackles and handcuffs.

¶ 5 On June 1, 2004, a jury convicted Light-Roth of murder in the second degree while armed with a firearm and unlawful possession of a firearm. At sentencing, the State requested a maximum standard range sentence of 335 months’ confinement. In justifying its recommendation the State said,

Here we have a Defendant who basically in cold blood murdered an acquaintance, or perhaps even a friend of his, for really no good reason at all, if ever you could have a good reason for taking the life of another human being.

After doing so, he demonstrated a complete disregard not only for human life but also just a considerable amount of contempt by the manner in which he disposed of Tython Bonnett’s body and how he conducted himself in the six to seven days following the murder.

There is absolutely nothing redeeming about this man.

Id. at 45. Defense counsel requested that the court "impose the sentence in the mid to low range." Id. at 50. In support of his request, defense counsel added that Light-Roth was only 21 years old at the time of sentencing and that attention deficit disorder"has plagued him throughout his life." Id. at 50-51.

¶ 6 The court sentenced Light-Roth to 335 months’ confinement. The sentencing judge explained his decision, stating,

I am satisfied that Mr. Light-Roth demonstrates classic sociopathic behavior, didn’t care about anybody but himself, and I am satisfied he is dangerous. I am satisfied, as I pointed out, if he makes it out of prison and does not somehow change his life, then he is going to get his third strike, or try to escape and be killed by the police or run into somebody who is tougher than him who will take his life.

It is a shame that Mr. Light-Roth at such a young age is basically wasting his life. But at this point I am satisfied, having listened to the trial, and listened to the pre-trial, looking at the record, that Mr. Light-Roth’s return to society, if he makes it out, ... needs to be delayed as long as possible.

Id. at 57-58.

¶ 7 The Court of Appeals affirmed that judgment and sentence on direct appeal, and this court denied review on April 30, 2008. The United States Supreme Court subsequently denied a petition for a writ of certiorari on October 6, 2008. In 2016, Light-Roth filed a PRP, arguing that he was entitled to a resentencing under O’Dell. The Court of Appeals granted Light-Roth’s PRP in a published decision and remanded for resentencing. In re Pers. Restraint of Light-Roth , 200 Wash. App. 149, 401 P.3d 459 (2017). The State sought review of the Court of Appeals decision.

ANALYSIS

¶ 8 In bringing a PRP, "a petitioner is entitled to full collateral review of a conviction or sentence if the petitioner proves actual prejudice from a constitutional error, or nonconstitutional error which inherently results in a complete miscarriage of justice." In re Pers. Restraint of Gronquist , 138 Wash.2d 388, 396, 978 P.2d 1083 (1999) (citing In re Pers. Restraint of Cook , 114 Wash.2d 802, 813, 792 P.2d 506 (1990) ).

¶ 9 A PRP must not 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). Because Light-Roth filed his PRP more than one year after his judgment and sentence became final, he must assert solely grounds for relief exempt from the one-year limit under RCW 10.73.100. In re Pers. Restraint of Adams , 178 Wash.2d 417, 422, 309 P.3d 451 (2013).

¶ 10 A petitioner can overcome the one-year time bar under RCW 10.73.100(6) if he can identify "(1) a [significant] change in the law (2) that is material and (3) that applies retroactively." In re Pers. Restraint of Colbert , 186 Wash.2d 614, 619, 380 P.3d 504 (2016). There is no requirement in statute or case law that these elements must be considered in a specific order. We can resolve this case by deciding whether our decision in O’Dell constitutes a "significant change in the law."

¶ 11 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 "intervening 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." Id. at 114-15, 371 P.3d 528 (quoting In re Pers. Restraint of Turay , 150 Wash.2d 71, 83, 74 P.3d 1194 (2003) ). A "significant change in the law" is likely to have occurred if the defendant was unable to argue the issue in question before publication of the intervening decision. Id. at 115, 371 P.3d 528. The pertinent inquiry here is whether our decision in State v. Ha’mim , 132 Wash.2d 834, 940 P.2d 633 (1997), precluded Light-Roth from raising or the trial court from considering Light-Roth’s youthfulness as a mitigating factor to support an exceptional sentence downward.

¶ 12 In Ha’mim , the defendant, who was 18 years old at the time of her crime, was convicted of first degree robbery. Id. at 836, 940 P.2d 633. The sentencing court imposed an exceptional sentence below the standard range, taking into "account the Defendant’s age and the fact she had no prior offenses." Id. at 837, 940 P.2d 633. The Court of Appeals reversed. Id. at 838, 940 P.2d 633. In affirming the Court of Appeals, this court held that the defendant’s "age is not alone a substantial and compelling reason to impose an exceptional sentence." Id. at 847, 940 P.2d 633. While the court held that in general, "[t]he age of the defendant does not relate to the crime or the previous record of the defendant," it also explained that

[t ]he [Sentencing Reform Act of 1981 ] does include a factor for which age could be relevant. RCW 9.94A.390^{[1 ]} provides a nonexclusive list of illustrative factors a court may consider when imposing an exceptional sentence and includes as a mitigating factor that 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.390(1)(e).

Id. at 847, 846, 940 P.2d 633 (emphasis added).

¶ 13 Eleven years after Light-Roth’s sentencing, this court, in O’Dell , again addressed whether youthfulness may be considered to support a departure from the standard sentencing range. In O’Dell , the defendant was convicted of second degree rape of a child. 183 Wash.2d at 683, 358 P.3d 359. At sentencing, the defendant requested an exceptional sentence below the standard range because his youthfulness impaired his " ‘capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law.’ " Id. at 685, 358 P.3d 359. The sentencing judge denied the defendant’s request, holding that Ha’mim precluded him from considering age as a mitigating factor. Id. This...