State v. Nevarez, 54259-5-II

519 P.3d 252

STATE of Washington, Respondent,

v.Gabriel Indelicio NEVAREZ, Appellant.

No. 54259-5-II

Court of Appeals of Washington, Division 2.

Filed October 25, 2022

Eric J. Nielsen, Casey Grannis, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Andrew Yi, Pierce County Prosecuting Attorney's Off., 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, for Respondent.

PUBLISHED OPINION

Cruser, A.C.J.

¶ 1 Gabriel Indelicio Nevarez appeals his sentence following his guilty plea to first degree murder with a firearm enhancement. The conviction arose from an incident in which Nevarez shot and killed a bystander while shooting at someone else. Nevarez was 18 years old at the time of the offense. The trial court imposed a sentence that was 36 months above the joint recommendation of the parties but was within the standard range.

¶ 2 Nevarez filed a CrR 7.8(b) motion seeking to withdraw his guilty plea based on ineffective assistance of counsel¹ or, in the alternative, to obtain resentencing because the sentencing court failed to consider the mitigating qualities of youth. After conducting a hearing, the trial court denied Nevarez's motion to withdraw his guilty plea. Nevarez appeals, arguing that resentencing is necessary because under State v. Houston-Sconiers , 188 Wash.2d 1, 391 P.3d 409 (2017), and State v. O'Dell , 183 Wash.2d 680, 358 P.3d 359 (2015), the trial court erroneously failed to consider the mitigating qualities of youth when presented with a sentence jointly recommended by the parties.

¶ 3 We hold that the trial court did not err in denying Nevarez's CrR 7.8 motion to withdraw his guilty plea because Nevarez was 18 years old at the time of the murder, and the trial court, therefore, was permitted but not required to consider the mitigating qualities of Nevarez's youth when sentencing him. Accordingly, we affirm.

FACTS

I. BACKGROUND

¶ 4 Nevarez held a grudge against Juan Carlos Ruiz and had previously threatened to harm him. On February 21, 2007, Nevarez drove by Ruiz, who was standing next to Kyle Grinnell, and fired multiple shots in Ruiz and Grinnell's direction. One of the shots hit and killed Grinnell. Nevarez was 18 years old at the time of the shooting.

¶ 5 The State charged Nevarez with first degree murder with a firearm enhancement, first degree assault with a firearm enhancement, and second degree unlawful possession of a firearm. However, Nevarez fled to Mexico shortly after the shooting and did not return until extradited to Washington in August 2016.

¶ 6 Nevarez entered a plea of guilty to first degree murder with a firearm enhancement in May 2018. As part of the plea agreement, the State filed an amended information dismissing the first degree assault and second degree unlawful possession of a firearm charges. Nevarez and the State agreed to a sentencing recommendation of 271 months of confinement, which was the low end of the standard range, plus a 60-month firearm enhancement. Defense counsel, the State, and the trial court explained to Nevarez that the court was not required to accept the joint recommendation and that it could sentence him to any term within the standard sentencing range of 271 to 361 months.

II. SENTENCING

¶ 7 The parties asked the trial court to adopt the joint recommendation of 271 months plus 60 months for the firearm enhancement. Defense counsel did not ask the court to impose an exceptional sentence below the standard range and did not ask the court to consider his youth at the time he committed the offense.

¶ 8 At sentencing, immediately following a statement from Nevarez, the trial court asked how old Nevarez was at the time of the shooting, and the parties confirmed that he was 18.

¶ 9 The trial court then gave its reasoning and stated:

Having reviewed all of these letters and the criminal history of Mr. Nevarez, I am not going to adopt the joint recommendation of the parties, which is my normal course. But I am going to add to the 271 low-end recommendation an additional 36 months, plus the 60 months of firearm sentencing enhancement, 36 months of community custody.

Verbatim Report of Proceedings (VRP) (June 29, 2018) at 38.

III. MOTIONS TO WITHDRAW GUILTY PLEA

¶ 10 Nevarez filed several pro se motions to withdraw his guilty plea. One of these motions, filed in May 2019 under CrR 7.8, sought to withdraw Nevarez's plea on the basis that he was denied effective assistance of counsel or, alternatively, requested resentencing because the trial court did not consider the mitigating qualities of youth when it imposed his sentence. The trial court ordered a merits hearing on Nevarez's motion. Regarding the issue of Nevarez's age as a mitigating factor, the court stated that it confirmed Nevarez's age at sentencing and continued:

So the Court had no legal obligation under the case law in the State of Washington to go through any type of Houston-Sconiers analysis. At the time of the offense he was three months shy of his 19th birthday, and we confirmed the age at the time.

With regard to the -- any obligation of [defense counsel], I suppose she could have argued for the low end, used it to argue for the low end. Although, what I heard from the testimony today was that really wasn't the basis for the parties reaching the agreement that they reached ...

So I'm not sure that that would have made -- well, I can tell you it wouldn't have made any difference in my opinion, but I don't think she had a duty or an obligation to argue age at the time of the offense as a factor in requesting the low end.

VRP (Nov. 18, 2019) 70.

¶ 11 The court denied Nevarez's motion to withdraw his guilty plea and entered extensive findings of fact and conclusions of law. The court made a finding that it inquired of Nevarez's age at the time of the shooting before accepting his guilty plea, and stated that "the court understood the defendant was three months shy of his 19th birthday and the defendant's [sic] knowledge of the defendant's youth was factored into the court's ultimate sentence it imposed on him." Clerk's Papers at 126.

¶ 12 Nevarez appeals the court's order denying his motion to withdraw his guilty plea and the associated findings of fact and conclusions of law.²

DISCUSSION

¶ 13 Nevarez argues that we should remand for resentencing because the trial court failed to fully consider the mitigating qualities of his youth based on the fact that he was 18 years old at the time he committed the offense. Specifically, Nevarez argues that the trial court "erroneously believed it had no obligation to conduct such [an] analysis before sentencing" him. Br. of Appellant at 35. We disagree.

YOUTH AS A MITIGATING FACTOR

¶ 14 In general, a defendant cannot appeal a sentence that is within the standard range. RCW 9.94A.585(1) ; State v. Osman , 157 Wash.2d 474, 481, 139 P.3d 334 (2006). "However, a defendant may appeal the process by which a trial court imposes a sentence."

In re Pers. Restraint of Marshall , 10 Wash. App. 2d 626, 635, 455 P.3d 1163 (2019) (emphasis omitted). This allows the defendant to challenge the trial court's refusal to exercise its discretion or the legal conclusions underlying the trial court's decision. State v. McFarland , 189 Wash.2d 47, 56, 399 P.3d 1106 (2017).

¶ 15 Nevarez challenges the trial court's process in imposing a sentence that was within the standard range but above the joint recommendation. See Marshall , 10 Wash. App. 2d at 635-36, 455 P.3d 1163. He relies in part on the directive in Houston-Sconiers that trial courts must consider the mitigating qualities of youth when sentencing a juvenile defendant. 188 Wash.2d at 21, 391 P.3d 409. When sentencing an adult defendant, however, trial courts are merely "allowed to consider youth as a mitigating factor." O'Dell , 183 Wash.2d at 696, 358 P.3d 359 (emphasis added). O'Dell does not compel a trial court, to do so, however. Therefore, Nevarez's assertion that O'Dell and Houston-Sconiers required the trial court to consider the mitigating qualities of youth at his sentencing is without merit.

¶ 16 Notably, in In re Personal Restraint of Monschke , 197 Wash.2d 305, 306, 482 P.3d 276 (2021) (plurality opinion), defendants who were 19 and 20 years old were convicted of aggravated first degree murder and given mandatory sentences of life without the possibility of parole (LWOP) under RCW 10.95.030. The lead opinion by our supreme court concluded that the aggravated murder statute was unconstitutional as applied to defendants between the ages of 18 and 20 years old because it required a LWOP sentence for all defendants with no discretion for the trial court to consider individual characteristics at sentencing. Monschke , 197 Wash.2d at 326, 482 P.3d 276. The court reasoned "that no meaningful neurological bright line exists between age 17 and age 18." Id. A more recent supreme court decision explained the fractured nature of the Monschke opinion and cabined its holding ("if Monschke ’s lead opinion could be read as announcing a holding of this court") to 18 to 20-year-old perpetrators convicted of aggravated first degree murder and sentenced to a mandatory LWOP under RCW 10.95.030. In re Pers. Restraint of Kennedy , 200 Wash.2d 1, 24, 513 P.3d 769 (2022). Because Nevarez did not receive a mandatory LWOP sentence, the court's conclusion in Monschke is inapplicable here. Id. at 23-24, 513 P.3d 769.³

¶ 17 Nevarez did not request an exceptional sentence below the standard range based on his youth. Rather, he and the State submitted a joint recommendation. The court was not required , on its own, to consider the mitigating qualities of youth because Nevarez was 18 years old at the time of the murder. See O'Dell , 183 Wash.2d at 696, 358 P.3d 359 (trial court "allowed to consider youth as a mitigating factor" for defendants 18 and older). Therefore, we reject Nevarez's challenge to the trial court's order denying his CrR 7.8 motion.

CONCLUSION

¶ 18 We affirm the trial court's order denying Nevarez's request for...