State v. Gregg

196 Wash.2d 473

474 P.3d 539

STATE of Washington, Respondent,

v.Sebastian Michael GREGG, Petitioner.

No. 97517-5

Supreme Court of Washington.

Argued February 25, 2020

Filed: September 17, 2020

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Petitioner.

James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

Melissa R. Lee, Jessica Levin, Seattle University School of Law, 901 12th Ave., Korematsu Center For Law & Equality, Robert S. Chang, Seattle University School of Law, 901 12th Ave., Seattle, WA, 98122-4411, for Amicus Curiae Fred T. Korematsu Center for Law and Equality.

Kimberly Noel Gordon, Law Offices of Gordon & Saunders PLLC, 1000 2nd Ave., Suite 3140, Seattle, WA, 98104, Marsha L. Levick, Juvenile Law Center, 1800 Jfk Boulevard, Suite 1900 B, Philadelphia, PA, 19103, for Amicus Curiae Juvenile Law Center Out of Time.

JOHNSON, J.

¶ 1 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 A second issue is whether a guilty plea may be withdrawn based on affirmative misinformation of a four-year felony firearm registration requirement.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 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

¶ 2 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.

¶ 3 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 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).

¶ 4 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.

¶ 5 The Court of Appeals affirmed, holding that the statute was constitutional under both our state and the federal constitutions. State v. Gregg , 9 Wash. 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 Wash.2d 1002, 451 P.3d 341 (2019).

ANALYSIS

I. Burden of Proving Mitigating Circumstances

¶ 6 We review questions of constitutional law de novo. State v. Ramos , 187 Wash.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 sentence downward under this provision, which we have recognized in Ramos , 187 Wash.2d at 445, 387 P.3d 650. 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 Wash.2d 328, 330, 422 P.3d 444 (2018).

¶ 7 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 Wash.2d at 445, 387 P.3d 650. 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 Wash.2d at 445-46, 387 P.3d 650 (emphasis added). While Gregg does not assert that his sentence of 37 years is unconstitutional, he asserts that it is unconstitutional for 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.

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

¶ 9 At most, Gregg quotes language and discussion from cases to support his constitutional arguments. Gregg quotes and cites State v. Houston-Sconiers , 188 Wash.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...