THE STATE OF WASHINGTON, Respondent, v. BRIAN KEITH RONQUILLO, Appellant.
No. 71723-5-I
Division One
October 26, 2015
190 Wn. App. 765
Daniel T. Satterberg, Prosecuting Attorney, and Deborah A. Dwyer, Deputy, for respondent.
¶1 BECKER, J. — At issue is a sentence of 51.3 years imposed for murder and other violent crimes the offender committed in a gang-motivated drive-by shooting when he was 16 years old. We reverse and remand for resentencing because the trial court erroneously concluded there was no legal basis for an exceptional sentence. This is a de facto life sentence governed by Miller v. Alabama.1 Under our sen-
FACTS
¶2 This case arises from the resentencing of appellant Brian Ronquillo for crimes he committed in 1994. Ronquillo was 16 years old at the time. Riding in a car with other gang members, he fired at least six shots at a group of students who were standing in front of Ballard High School. He missed two intended targets, but one of his shots killed innocent bystander Melissa Fernandes. Another student was injured by a bullet fragment.
¶3 Ronquillo was initially charged in juvenile court. The State initiated decline proceedings. The court determined that Ronquillo would be tried as an adult, concluding that his “maturity and sophistication weighed heavily in favor of decline” and the juvenile corrections system, which could not keep him past age 21, would not have sufficient time to rehabilitate him if he were convicted. State v. Ronquillo, noted at 89 Wn. App. 1037, 1998 WL 87641, at *3, 1998 Wash. App. LEXIS 334, at *9, review denied, 136 Wn.2d 1018 (1998).2
¶4 Ronquillo was tried with two codefendants. Ronquillo, 1998 WL 87641, at *1 n.1, 1998 Wash. App. LEXIS 334, at *4 n.1. A jury convicted him on four counts: one count of first degree murder, two counts of attempted first degree murder, and one count of second degree assault while armed with a firearm. The trial judge sentenced Ronquillo to the bottom of the standard range for each count. This produced a sentence of 621 months: 261 months for the murder and 180 months for each of the attempted murders, all to be served consecutively, with a concurrent
¶5 Ronquillo‘s defense counsel Anthony Savage had argued that such a long sentence for a teenager was “morally wrong and legally unnecessary.” He asked the court to impose an exceptional sentence by running the sentences concurrently. Savage argued that the operation of the multiple offense policy “results in a presumptive sentence that is clearly excessive.” The request for a concurrent sentence was rejected, and Ronquillo was sentenced to 51.75 years in prison.
¶6 This court affirmed Ronquillo‘s conviction on direct appeal. Ronquillo, noted at 89 Wn. App. 1037. Three years later, Ronquillo returned to this court with a personal restraint petition, claiming, among other things, that the trial court erred by concluding it was required to impose consecutive sentences. Ronquillo‘s petition was denied. In re Pers. Restraint of Ronquillo, noted at 109 Wn. App. 1025, 2001 WL 1516938, at *8, 2001 Wash. App. LEXIS 2615, at *25-28.
¶7 In 2012, this court held that the statute setting forth the multiple offense policy,
¶9 Ronquillo presented two alternative grounds for an exceptional sentence. First, he argued that youth alone can be a mitigating factor. As he recognized, this argument was not readily reconcilable with Washington statutes that govern the sentencing of persons convicted of felonies. Generally, a trial court must impose a sentence within the standard range. State v. Law, 154 Wn.2d 85, 94, 110 P.3d 717 (2005). The court has discretion to depart from the standard range either upward or downward. But this discretion may be exercised only if (1) the asserted aggravating or mitigating factor is not one necessarily considered by the legislature in establishing the standard sentence range and (2) it is sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Law, 154 Wn.2d at 95. A factor is sufficiently substantial and compelling to justify departure only if it relates “directly to the crime or the defendant‘s culpability for the crime committed.” Law, 154 Wn.2d at 95. At the time of Ronquillo‘s resentencing, a defendant‘s youthfulness was not, by itself, a mitigating factor that could justify a downward departure. Law, 154 Wn.2d at 97-98; State v. Ha‘mim, 132 Wn.2d 834, 847, 940 P.2d 633 (1997).
¶10 In recent years, the law governing the sentencing of juveniles has been significantly informed and in some respects unequivocally altered by the Eighth Amendment jurisprudence of the United States Supreme Court. Ronquillo
¶11 Roper and Graham v. Florida established that juvenile offenders “are constitutionally different from adults for purposes of sentencing.” Miller, 132 S. Ct. at 2464. The constitutional difference arises from a juvenile‘s lack of maturity; underdeveloped sense of responsibility; greater vulnerability to negative outside influences, including peer pressure; and the less fixed nature of the juvenile‘s character traits. Miller, 132 S. Ct. at 2464. Because juveniles have diminished culpability and greater prospects for reform, they are less deserving of the most severe punishments. Miller, 132 S. Ct. at 2464.
¶12 With Miller as a backdrop, Ronquillo argued that his youth at the time of the crime should be considered as a mitigating factor that would permit a departure from the strict application of the adult sentencing statutes. Ronquillo‘s sentencing memorandum described stressors in his
¶13 As an alternative ground for a reduced sentence, Ronquillo invoked the statute that permits a downward departure from the standard range if “the operation of the multiple offense policy of
¶14 At resentencing on March 21, 2014, the court concluded that Miller had no application in Ronquillo‘s case. In Miller, the two petitioners were convicted of murder and sentenced to a mandatory term of life without parole. The Supreme Court held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 132 S. Ct. at 2469. Because Ronquillo was not facing a mandatory term of life without parole, the court concluded Miller did not supply a constitutional basis compelling consideration of Ronquillo‘s youth as a mitigating factor. Accordingly, the court looked only to Washington‘s sentencing statutes and determined that under Law and Ha‘mim, age alone cannot be a lawful mitigating factor in a felony sentence. The court also concluded state sentencing law did not permit a finding that Ronquillo‘s sentence was “clearly excessive.”
I appreciate the presentation on brain research. I find the science incredibly compelling. We certainly know much more about juveniles’ brain development today than we did in 1994. And the research does tell us that juveniles’ brains have not—usually have not, developed fully at age 16 and that impulsivity, irresponsibility, and vulnerability to peer pressure can be the product of neurological immaturity. It thus provides a very strong basis for the legislature to revisit current laws relating to the punishment of juvenile offenders.
But this Court has concluded that ultimately what is the appropriate use of that juvenile research in criminal sentenc-
ing is a decision for the legislature to make and not one this Court can make.
....
[Ronquillo‘s] post-conviction behavior is, as the State points out, not related to the crime he committed in 1994 and thus not something that I can legally turn to when imposing a sentence. As I said earlier, this is not in question of what I personally believe is a good sentence for a 16-year-old.
If the law were different, I might be making a different decision. But I do feel that because of the law, I am constrained by how I rule today. For these reasons, I deny the request for an exceptional sentence.3
¶15 Having rejected both bases offered by Ronquillo for an exceptional sentence, the court resentenced him to 615.75 months in prison. This was the same sentence as before, minus 5.25 months to correct for the Breaux error.
¶16 Ronquillo appeals. He contends that he is eligible for an exceptional sentence both under the Eighth Amendment as interpreted by Miller and because running his sentences consecutively makes his total sentence “clearly excessive” under
¶17 Whether a particular factor can justify an exceptional sentence is a question of law, which we review de novo. State v. O‘Dell, 183 Wn.2d 680, 688, 358 P.3d 359 (2015).
MILLER APPLIES TO DE FACTO LIFE SENTENCES
¶18 The State asks us to affirm the sentence and hold that Miller does not apply to a term-of-years sentence.
¶19 A sentence of 51.3 years is not necessarily a life sentence for a 16-year-old, but it is a very severe sentence. A question that has emerged is whether Miller‘s mandates “apply not only to mandatory life sentences without parole, but also to the practical equivalent of life-without-parole
¶20 Under the Eighth Amendment, the “imposition of a State‘s most severe penalties on juvenile offenders cannot proceed as though they were not children.” Miller, 132 S. Ct. at 2466. The Eighth Amendment requires courts to consider a juvenile‘s chronological age “and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller, 132 S. Ct. at 2468.
¶21 In a persuasive opinion by the Iowa Supreme Court, the issue was whether a 52.5-year aggregate prison term imposed on a juvenile for second degree murder and first degree robbery triggered Miller-type protections. State v. Null, 836 N.W.2d 41, 71-75 (Iowa 2013). The court did not regard the juvenile‘s “potential future release in his or her late sixties after a half century of incarceration” sufficient to escape the rationales of Graham v. Florida or Miller. Null, 836 N.W.2d at 71. The court concluded that ”Miller‘s principles are fully applicable to a lengthy term-of-years sentence” where the juvenile offender would otherwise face “the prospect of geriatric release.” Null, 836 N.W.2d at 71-72; see also Casiano v. Comm‘r of Correction, 317 Conn. 52, 72-80, 115 A.3d 1031 (2015) (imposition of a 50-year sentence without the possibility of parole on a juvenile offender was subject to the sentencing procedures set forth in Miller).
¶22 Ronquillo‘s sentence contemplates that he will remain in prison until the age of 68. This is a de facto life sentence. It assesses Ronquillo as virtually irredeemable. This is inconsistent with the teachings of Miller and its predecessors. Before imposing a term-of-years sentence that is the functional equivalent of a life sentence for crimes committed when the offender was a juvenile, the court must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 132 S. Ct. at 2469. The trial court erred in concluding that only a literally mandatory life sentence falls within the ambit of Miller.
¶23 The State emphasizes that Ronquillo is serving four separate sentences for crimes against four different victims, not a single lengthy sentence for a single conviction. According to the State, the Eighth Amendment is not implicated by separate sentences for separate crimes. For this proposition, the State relies on State v. Kasic, 228 Ariz. 228, 265 P.3d 410 (Ct. App. 2011); Walle v. State, 99 So. 3d 967 (Fla. Dist. Ct. App. 2012); and Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert. denied, 133 S. Ct. 1996 (2013).
¶24 The State‘s cases do not persuasively show that Eighth Amendment analysis does not apply to aggregate or consecutive sentencing of juveniles. In Kasic, a case that is both pre-Miller and factually dissimilar to Ronquillo‘s, the offender was sentenced to 139.75 years on 32 counts relating to a 1-year spree of arsons, most of them committed after he turned 18. Kasic, 228 Ariz. at 229-31. The court concluded the sentences were not categorically barred under Graham v. Florida. Kasic, 228 Ariz. at 232-33. In Walle, the Florida District Court of Appeal interpreted Graham v. Florida and Miller narrowly and in doing so relied on another Court of Appeal opinion that has since been called into question by the Florida Supreme Court. Walle, 99 So. 3d at 971, citing Henry v. State, 82 So. 3d 1084 (Fla. Dist. Ct. App. 2012), decision quashed, 175 So. 3d 675 (Fla. 2015). Bunch, a habeas matter, is unhelpful because of the restricted standard of review. Bunch, 685 F.3d at 550 (Graham v. Florida did not “clearly establish” that consecutive, fixed-term sentences for juveniles are unconstitutional when they amount to “the practical equivalent of life without parole“).
¶25 In Miller, one of the petitioners, Kuntrell Jackson, was convicted of felony murder and aggravated robbery. Miller, 132 S. Ct. at 2461. The Supreme Court reversed his
THE “MILLER FIX” DOES NOT MAKE RESENTENCING UNNECESSARY
¶26 The State also argues that Ronquillo‘s sentence need not be reversed because a new statute known as the “Miller fix” provides a possibility of early release. The legislature enacted the statute in March 2014 with the intention of bringing Washington‘s sentencing framework into conformity with Miller.4 See In re Pers. Restraint of McNeil, 181 Wn.2d 582, 588-89, 334 P.3d 548 (2014) (summarizing the new sentencing guidelines for aggravated first
¶27 This is not an appeal from a proceeding under
¶28 The distinction is illustrated by an analogous case not cited by the parties. Ragland, 836 N.W.2d at 110. The juvenile offender in Ragland was serving a mandatory term
¶29 Ragland is persuasive, and we apply its reasoning here. Ronquillo‘s sentence of 51.3 years is not a constitutional sentence because the trial court erroneously concluded it could not apply Miller. The Miller fix does not correct the error. The error must be corrected in the trial court. We leave it to the trial court to determine what significance, if any, should be given to the potential of early release under the new statute.
YOUTH RELATES TO A JUVENILE OFFENDER‘S CULPABILITY
¶30 One of the State‘s concerns in this appeal is that opening the door for Ronquillo to get an exceptional sen-
¶31 At Ronquillo‘s resentencing, the trial court relied heavily on Ha‘mim as the basis for refusing his request for an exceptional sentence. “I cannot rely on Mr. Ronquillo‘s age and the juvenile brain science to impose an exceptional sentence unless there‘s a demonstration that he lacked the neurological development to—at the time of his crime such that he did not understand right from wrong or that it impaired his ability to conform his conduct to the law. And reluctantly, the court concludes that that showing has not been made.”6
¶32 A recent opinion by our Supreme Court has significantly revised the interpretation of Ha‘mim relied on by the trial court. O‘Dell, 183 Wn.2d 680. In O‘Dell, the
¶33 The first part of the two-part test is whether the asserted mitigating factor was necessarily considered by the legislature when it established the standard sentence range for the crime in question. Ha‘mim, 132 Wn.2d at 840. In O‘Dell, the court held that while the legislature has determined that all defendants 18 or over “in general” are equally culpable for equivalent crimes, the legislature could not have considered “particular vulnerabilities—for example, impulsivity, poor judgment, and susceptibility to outside influences—of specific individuals.” O‘Dell, 183 Wn.2d at 691. In addition, the legislature did not have the benefit of the relatively recent psychological and neurological studies discussed in Miller. “These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure.” O‘Dell, 183 Wn.2d at 692 (footnotes omitted). And it is “precisely these differences that might justify a trial court‘s finding that youth diminished a defendant‘s culpability.” O‘Dell, 183 Wn.2d at 693. In O‘Dell, these observations were applied to an adult defendant who was barely over the age of 18 when his crime was committed. They must necessarily apply even more forcefully to juvenile offenders.
¶35 The second part of the two-part test is whether the asserted mitigating factor is “sufficiently substantial and compelling to distinguish the crime in question from others in the same category.” Ha‘mim, 132 Wn.2d at 840. With this part of the test in mind, the O‘Dell court critiqued and revised Ha‘mim‘s reasoning:
Having embraced this reasoning—that it is “absurd” to believe that youth could mitigate culpability—this court went on to explain that youth alone could not be a nonstatutory mitigating factor under the SRA because “[t]he age of the defendant does not relate to the crime or the previous record of the defendant.”
When our court made that sweeping conclusion, it did not have the benefit of the studies underlying Miller, Roper, and Graham—studies that establish a clear connection between youth and decreased moral culpability for criminal conduct. And as the United States Supreme Court recognized in Roper, this connection may persist well past an individual‘s 18th birthday: “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18 [just as] some under 18 have already attained a level of maturity some adults will never reach.”
Today, we do have the benefit of those advances in the scientific literature. Thus, we now know that age may well mitigate a defendant‘s culpability, even if that defendant is over the age of 18. It remains true that age is not a per se
mitigating factor automatically entitling every youthful defendant to an exceptional sentence. In this respect, we adhere to our holding in Ha‘mim, 132 Wn.2d at 847. But, in light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, ” ‘relate to [a defendant‘s] crime, ‘” id. (quoting
RCW 9.94A.340 ); that it is far more likely to diminish a defendant‘s culpability than this court implied in Ha‘mim; and that youth can, therefore, amount to a substantial and compelling factor, in particular cases, justifying a sentence below the standard range.For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O‘Dell, who committed his offense just a few days after he turned 18. To the extent that this court‘s reasoning in Ha‘mim is inconsistent, we disavow that reasoning.
O‘Dell, 183 Wn.2d at 695-96 (alterations in original) (footnote and some citations omitted) (quoting Ha‘mim, 132 Wn.2d at 847; Roper, 543 U.S. at 574).
¶36 Following O‘Dell, we conclude it does not compromise the fundamental principles of our statutory felony sentencing regime to hold that Miller is relevant to Ronquillo‘s request for an exceptional sentence. The trial court erroneously believed Ronquillo‘s age could not be considered as a possible mitigating factor, whereas we now know from O‘Dell that it can be. As in O‘Dell, we remand for a new sentencing hearing. O‘Dell, 183 Wn.2d at 691, 697. At that hearing the trial court will consider, in light of Miller and O‘Dell, whether youth diminished Ronquillo‘s culpability. See O‘Dell, 183 Wn.2d at 695-96.
ARGUABLY, RONQUILLO‘S SENTENCE WAS “CLEARLY EXCESSIVE”
¶37 As a second basis for requesting an exceptional sentence, Ronquillo invoked the statutory mitigating factor that may be considered when the operation of the multiple offense policy of
¶39 As directed by the plain language of
(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender‘s criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve himself or herself;
(6) Make frugal use of the state‘s and local governments’ resources; and
(7) Reduce the risk of reoffending by offenders in the community.
¶40 Here, these purposes should be examined in light of Miller in the same manner that the exceptional sentencing framework in O‘Dell was examined in light of Miller. In that light, many if not all of the seven statutory purposes will point toward a mitigated sentence. On remand, the trial court shall let Miller inform and illuminate its consideration of whether Ronquillo‘s presumptive aggregate sentence for multiple offenses is clearly excessive in light of the purposes of the Sentencing Reform Act.
¶41 The sentence is reversed and remanded for further proceedings not inconsistent with this opinion.7
SPEARMAN, C.J., and SCHINDLER, J., concur.