STATE OF WASHINGTON, Respondent, v. ZYION HOUSTON-SCONIERS, Petitioner. STATE OF WASHINGTON, Respondent, v. TRESON LEE ROBERTS, Petitioner. In the Matter of the Personal Restraint of ZYION HOUSTON-SCONIERS, Petitioner.
NO. 92605-1
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAR 0 2 2017
EN BANC
NOTICE: SLIP OPINION (not the court‘s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court.
A slip opinion is not necessarily the court‘s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court.
The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court‘s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the
GORDON McCLOUD, J.-“[C]hildren are different.” Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: “An offender‘s age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.” Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010);
The defendants in this case-Zyion Houston-Sconiers and Treson Roberts-are children. On Halloween night in 2012, they were 17 and 16 years old, respectively. They robbed mainly other groups of children, and they netted mainly candy.
But they faced very adult consequences. They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers. They had
As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. Clerk‘s Papers (Houston-Sconiers) (CPHS) at 227. Of that, 372 months (31 years) was attributable to the firearm sentence enhancements and would be served as “‘flat time,‘” meaning “in total confinement” without possibility of early release. Id.;
To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.
We now hold that the sentencing judge‘s hands are not tied. Because “children are different” under the Eighth Amendment and hence “criminal procedure laws” must take the defendants’ youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there. We affirm all convictions but remand both cases for resentencing.
FACTS
On Halloween evening, October 31, 2012, petitioners Houston-Sconiers, then 17, and Roberts, then 16, met up at Roberts‘s home. 16 Verbatim Report of Proceedings (VRP) (July 22, 2013) at 1437-38. At some point, the two boys were joined by three friends, A.T., L.A., and Z.J. Id. at 1436-38. Together, the teens drank vodka, passed around marijuana, and played basketball. Id. at 1438-40. At trial, L.A. testified that during this time, he saw Houston-Sconiers holding a silver revolver. Id. at 1454-55. According to L.A., Houston-Sconiers also had in his possession a “Jason mask,” a white hockey mask. Id. at 1447. After a few hours, the five teens left the house to walk to Stanley Elementary School across the street. Id. at 1437, 1440. No one else was there, so L.A. and A.T. parted ways with the remaining three boys-petitioners and a 13-year-old boy named Z.J. Id. at 1441, 1443.
A little later that evening, after dark, Andrew Donnelly, 19, and his 13-year old brother, S.D., were approached by a group of three boys in the North End neighborhood of Tacoma. 12 VRP (July 16, 2013) at 992-93. One boy held a silver gun and wore a “Jason mask,” “a white hockey mask with holes in it.” Id. at 993, 1004, 1020. The boys took the Donnellys’ candy and Andrew Donnelly‘s red devil mask. Id. at 1000. Andrew Donnelly had a cell phone in his possession, but it was not taken. Id. at 997.
Also out trick-or-treating that night in the North End was a group of five high school students. 11 VRP (July 15, 2013) at 771-73. After a few hours out, they were approached by three boys wearing black hoodies and masks. Id. at 774-75, 819-20, 832, 871; 12 VRP (July 16, 2013) at 955. One of the masks was the red devil mask that had been taken from Andrew Donnelly. 12 VRP (July 16, 2013) at 956. One of the boys had a silver gun. 11 VRP (July 15, 2013) at 781, 786; 12 VRP (July 16, 2013) at 957. The boys demanded the group‘s bags of candy and cell phones. 11 VRP (July 15, 2013) at 786, 872; 12 VRP (July 16, 2013) at 954. At least two of the youth had cell phones with them, but did not give them up. 11 VRP (July 15, 2013) at 786, 874. Several of them did, however, give up their bags of candy. 11 VRP (July 15, 2013) at 786, 821, 873; 12 VRP (July 16, 2013) at 958-59.
One youth, A.G., “hid” her bag of candy, turned, and walked to the nearest house. 11 VRP (July 15, 2013) at 821, 825. She rang the bell “[t]o get some help,” struggling with what to say to the residents before finally telling them to “call the police.” Id. at 825-26, 853. A.G. testified that while she was able to speak “with confidence” while trick-or-treating
Some time later, Officer Rodney Halfhill responded to a call at a nearby apartment complex. 12 VRP (July 16, 2013) at 1067. A “frantic” 37-year-old African-American man named James Wright reported that he had just been robbed of his cell phone by “four to five black males,” one of whom carried “a silver revolver” and wore “a Jason-style hockey mask.” Id. at 1071, 1073-74. L.A. testified that when he again met up with petitioners and the third boy, Z.J., at the end of the evening, he watched petitioners steal a “middle age” African-American man‘s cell phone at gunpoint in an apartment complex. 16 VRP (July 22, 2013) at 1456. L.A. said they used the same gun that Houston-Sconiers had earlier that evening. Id. at 1454-55. L.A. also said that Roberts had come into possession of a “devil mask” and that one of the three boys-Roberts, Houston-Sconiers, or Z.J.-reported that they had been up in the North End. Id. at 1448.
The group of five scattered after taking the phone, then regrouped inside a broken-down, green Cadillac parked in a backyard nearby. Id. at 1457-58. A police K-9 unit found them in that car with candy wrappers strewn on the seats and floor. 11 VRP (July 15, 2013) at 738-40; Trial Ex. P-1. The five boys were ordered out of the car and arrested. 11 VRP (July 15, 2013) at 740-41; 13 VRP (July 17, 2013) at 1148-49.
The officers then got permission from the owner of the property, Dorothy Worthey, to search the Cadillac. 13 VRP (July 17, 2013) at 1155-56, 1171, 1220, 1229. Worthey told the officers that the car, which had three flat tires and was encompassed by vegetation, belonged to her son and had been parked in her yard for some time. Id. at 1156, 1171, 1186, 1224. The search of the Cadillac yielded a number of items, including “[a] white plastic mask,” “a red plastic devil mask,” and a backpack containing candy. 9 VRP (July 10, 2013) at 542, 545, 550. The police also recovered a .32 caliber Harrington & Richardson revolver from under the front passenger seat. Id. at 559-60. The gun was loaded, but with the wrong type of ammunition. 13 VRP (July 17, 2013) at 1281. The detective who tested that gun said that firing it with such mismatched ammunition could cause it to “fail to function and not fire at all” or “com[e] apart.” Id. at 1288-89.
PROCEDURE
The State charged 16-year-old Roberts and 17-year-old Houston-Sconiers each with seven counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, one count of unlawful possession of a firearm in the first degree, and one count of assault in the second degree, plus nine firearm enhancements. The robbery charges triggered Washington‘s mandatory automatic decline statute,
At trial, the State dismissed one count of robbery in the first degree against each defendant for lack of evidence. 21 VRP (July 30, 2013) at 1943. Houston-Sconiers was convicted of six counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, one count of assault in the second degree, and one count of unlawful possession of a firearm in the first degree, plus seven firearm enhancements. CPHS at 234-35. Roberts was acquitted of three of the charges but convicted of four counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, and one count of assault in the second degree, plus six firearm enhancements. 24 VRP (Aug. 2, 2013) at 2372-77; CPR at 162-63.
But the State recommended an exceptional sentence, below the standard range, of zero months on each of the substantive counts of the information. CPHS at 226-28. The State opined that its recommendation was technically unlawful, writing, “What is clear in this case is there are no statutorily legitimate reasons for imposition of an exceptional sentence downward.” CPHS at 227. Nevertheless, it stated, “The rationale for this recommendation is based simply on the State‘s assessment that a 42 to 45 year sentence for Houston-Sconiers and a 37-40 year sentence for Roberts is perhaps excessive ....” CPHS at 228. (The State did not recommend a similar departure below the firearm sentence enhancements. Id. at 227-28.)
The trial court accepted the State‘s recommendation. It imposed no time on the substantive crimes but all the time triggered by the enhancements. This resulted in a total of 312 months of flat time for Roberts and 372 months of flat time for Houston-Sconiers. CPR at 167; CPHS at 239. At sentencing, the judge heard mitigating testimony regarding Houston-Sconiers‘s history of childhood abuse and placement in foster care, the extent to which Roberts may have been influenced by peer pressure or a disability, and both boys’ potential for improving their lives. 24 VRP (Sept. 13, 2013) at 2395-96, 2397-98, 2410-11, 2413, 2416-17. The judge expressed frustration at his inability to exercise greater discretion over the sentences imposed. Id. at 2401-03.
A split Court of Appeals affirmed the convictions and rejected all of petitioners’ claims in a partly published opinion. State v. Houston-Sconiers, 191 Wn. App. 436, 446, 365 P.3d 177 (2015). Judge Bjorgen dissented, finding that the sentences imposed here were the functional equivalent of the mandatory life without parole sentences that Miller rejected. Id. at 453-54. He would also have struck down the automatic decline statute under the Eighth Amendment. Id. at 455 (Bjorgen, J., dissenting).
Houston-Sconiers also filed a timely pro se personal restraint petition (PRP), which the Court of Appeals consolidated with this case. Comm‘r‘s Ruling, State v. Houston-Sconiers, No. 45374-6-II (Wash. Ct. App. Feb. 17, 2015). The Court of Appeals rejected the claims raised in that PRP. Houston-Sconiers, 191 Wn. App. at 439. We granted review of these consolidated cases. State v. Houston-Sconiers, 185 Wn.2d 1032, 377 P.3d 737 (2016).
ANALYSIS
I. THE EVIDENCE WAS SUFFICIENT TO PROVE SECOND DEGREE ASSAULT OF A.G.
Petitioners were convicted of one count each of second degree assault of A.G. in violation of
Petitioners contend that the State failed to prove that A.G. “[i]n fact” experienced “‘reasonable apprehension and imminent fear of bodily injury.‘” Suppl. Br. of Pet‘r at 9-10. They point to A.G.‘s actions in hiding-rather than handing over-her bag of candy as she walked away from the robbery, as well as her testimony regarding her feelings after the event. Petitioners further argue that the Court of Appeals erred in
In reviewing convictions for sufficiency of the evidence, we ask “whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980) (plurality opinion)). The challenge “admits the truth of the State‘s evidence and all inferences that reasonably can be drawn therefrom,” id., and leaves determinations of witness credibility to the fact finder, State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
We need not address whether presence of a firearm alone suffices to prove the apprehension element of assault. Here, there was more. A.G. testified that as her friends were being robbed, she went to the nearest house for help. 11 VRP (July 15, 2013) at 825-26. As discussed above, she said that the events affected her confidence and manner at that particular house and she agreed with counsel for Houston-Sconiers that the group of friends as a whole were “[r]eally scared.” Id. at 852, 859.2 Viewing this evidence in the light most favorable to the State, a rational fact finder could determine that A.G. took these actions out of fear that she would
be harmed. The evidence was therefore sufficient to support the two assault convictions.
II. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE FIREARM ENHANCEMENTS ON THE CONSPIRACY CONVICTIONS
Petitioners were also convicted of conspiracy to commit robbery in the first degree in violation of
The first challenge fails because conspiracy is not just an agreement-it‘s an agreement to commit a crime plus “a substantial step in pursuance of such agreement.”
The first challenge also fails because the legislature intended to enhance conspiracy sentences if a firearm was used.
The petitioners’ second argument on this point is that the evidence was insufficient to support the required nexus between the firearm and the conspiracy. That nexus requirement is rooted in the firearm enhancement statute, our constitution, and our case law. The firearm statute increases the sentence for an underlying felony “if the offender or an accomplice was armed with a firearm” during the course of that crime.
The State proved such a nexus here. It charged petitioners with a conspiracy occurring on October 31, 2012. CPHS at 21; CPR at 19. Both the agreement and the crime itself-including its “substantial steps“-occurred on that day. There is also circumstantial evidence that petitioners had access to the firearm at the very time they made the agreement to commit robbery. Based on witness testimony at trial, a rational fact finder could infer that petitioners, having taken the gun that L.A. saw in their possession at Roberts‘s house, made the agreement to commit armed robbery at some point between their arrival at Stanley Elementary School and their commission of the first robbery. This would put petitioners “within proximity of an easily and readily available deadly weapon,” O‘Neal, 159 Wn.2d at 503-04, with the weapon available for offensive or defensive use at the time they made the agreement itself. The evidence was sufficient to support these two firearm enhancements.
III. TRIAL COURTS HAVE FULL DISCRETION TO IMPOSE SENTENCES BELOW SRA GUIDELINES AND/OR STATUTORY ENHANCEMENTS BASED ON YOUTH
A. The Eighth Amendment Requires Sentencing Courts To Consider the Mitigating Qualities of Youth at Sentencing, Even in Adult Court
Petitioners argue that children are different from adults. They conclude that those differences render their mandatory transfer to adult court, their lengthy adult sentences, and their mandatory, consecutive, flat time firearm enhancements unlawful.3
They have considerable support for their arguments. The Supreme Court‘s recent decisions explicitly hold that the Eighth Amendment to the United States Constitution compels us to recognize that children are different. E.g., Miller, 132 S. Ct. at 2470 (“children are different“); Graham, 560 U.S. at 68-70 (differences between children and adults are constitutional in nature and implicate Eighth Amendment and sentencing practices); Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
The Supreme Court has already applied that holding about the differences between children and adults in several specific contexts: the death penalty, Roper, 543 U.S. at 574; life without parole sentences for nonhomicide offenses, Graham, 560 U.S. at 79; mandatory life without parole sentences for any offense, Miller, 132 S. Ct. at 2469; and confessions, J.D.B. v. North Carolina, 564 U.S. 261, 277, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011).
Critically, the Supreme Court has also explained how the courts must address those differences in order to comply with the Eighth Amendment: with discretion to consider the mitigating qualities of youth.4
In each case, the Court found that legitimate penological goals failed to justify the sentences being invalidated as applied to youth. It noted that the goal of retribution was diminished because Roper‘s three key differences between children and adults made children less blameworthy at sentencing. Id. at 2465. Likewise, the “immaturity, recklessness, and impetuosity” of youth diminished the goal of deterrence. Id. And the penological goals of rehabilitation and incapacitation were incompatible with mandatory, lengthy sentences for juveniles because of their inherent “capacity for change.” Id.
These cases make two substantive rules of law clear: first, “that a sentencing rule permissible for adults may not be so for children,” id. at 2470, rendering certain sentences that are routinely imposed on adults disproportionately too harsh when applied to youth, and second, that the Eighth Amendment requires another protection, besides numerical proportionality, in juvenile sentencings-the exercise of discretion.
Further, the Eighth Amendment requires trial courts to exercise this discretion whether the youth is sentenced in juvenile or adult court and whether the transfer to adult court is discretionary or mandatory. Miller, 132 S. Ct. at 2461-62 (appellants Jackson and Miller both had benefit of discretionary transfer hearing; rule barring mandatory life without parole sentence or juvenile death penalty for capital murder still applied to them); Graham, 560 U.S. at 53 (Graham was charged as an adult, at prosecutor‘s discretion); Roper, 543 U.S. at 557 (Simmons was tried as an adult following mandatory transfer).
Critically, the Eighth Amendment requires trial courts to exercise this discretion at the time of sentencing itself, regardless of what opportunities for discretionary release may occur down the line. See, e.g., Miller, 132 S. Ct. at 2468-72 (listing reasons why certain mitigating factors had to be considered at the time of child‘s initial sentencing); Graham, 560 U.S. at 69-70 (Eighth Amendment bars imposition of life without parole sentence on juvenile nonhomicide offender, despite the fact that Graham might be eligible for executive clemency). Indeed, the only time the Supreme Court has spoken approvingly of a postsentencing Miller “fix” such as extending parole eligibility to juveniles is when addressing how to remedy a conviction and sentence that were long final. Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 736, 193 L. Ed. 2d 599 (2016). Roberts‘s and Houston-Sconiers‘s convictions are on appeal; they are not even final.
To be sure, the Supreme Court has not applied the rule that children are different and require individualized sentencing consideration of mitigating factors in exactly this situation, i.e., with sentences of 26 and 31 years for Halloween robberies. But we see no way to avoid the Eighth Amendment requirement to treat children differently, with discretion, and with consideration of mitigating factors, in this context.
The sentencing judge did not do that here. Indeed, he believed that he was precluded from exercising discretion. Addressing Houston-Sconiers, the sentencing judge stated:
[Judges] don‘t have the discretion we had 30 years ago in terms of sentencing.
And it frustrates me because as I‘m sitting here, I wouldn‘t tell you I wouldn‘t exercise more discretion in your favor if I
had that opportunity to do so. But the law is an oath that I took to enforce. And in this particular case, I don‘t have any option because if I did do something different than what the law requires me to do, it would simply be overturned by another court, and we‘d be back here for resentencing.
25 VRP (Sept. 13, 2013) at 2401-02. Later, addressing Roberts, the judge continued:
The only mercy I have has already been executed by the prosecutor in recommending a zero sentence on the underlying crimes ....
Three-hundred and twelve months [on the firearm sentence enhancements] is what I‘m compelled to sentence you to ....
Id. at 2418.
Even the State contended that its recommendation for a sentence below the SRA range, while just, was technically illegal. CPHS at 227. The judge agreed. 25 VRP (Sept. 13, 2013) at 2418.
We disagree. In accordance with Miller, we hold that sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system, regardless of whether the juvenile is there following a decline hearing or not. To the extent our state statutes have been interpreted to bar such discretion with regard to juveniles,5 they are overruled. Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements.6
B. Our Holding Is Not Affected by Subsequent Legislative Enactments That Allow Petitions for Early Release
In 2014, the legislature passed an act to allow inmates who are serving sentences for crimes committed as a juvenile to petition for early release after serving 20 years. See
We disagree for two reasons. First, there has been no showing that the legislature intended the Miller fix to be the exclusive means of taking youth into account in sentencing. In fact, in In re Personal Restraint of McNeil, 181 Wn.2d 582, 589, 334 P.3d 548 (2014). This was because the Miller fix was just one possible remedy for McNeil on postconviction review.
Second, Miller is mainly concerned with what must happen at sentencing because Miller‘s holding rests on the insight that youth are generally less culpable at the time of their crimes and culpability is of primary relevance in sentencing. See Miller, 132 S. Ct. at 2464. But the part of the Miller fix statute that is applicable to this case,
Miller requires such discretion and provides the guidance on how to use it. It holds that in exercising full discretion in juvenile sentencing, the court must consider mitigating circumstances related to the defendant‘s youth—including age and its “hallmark features,” such as the juvenile‘s “immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller, 132 S. Ct. at 2468. It must also consider factors like the nature of the juvenile‘s surrounding environment and family circumstances, the extent of the juvenile‘s participation in the crime, and “the way familial and peer pressures may have affected him [or her].” Id. And it must consider how youth impacted any legal defense, along with any factors suggesting that the child might be successfully rehabilitated. Id.
This is what the sentencing court should have done in this case, and this is what we remand for it to do.
C. The SRA Allows Sentencing Courts To Consider the Mitigating Qualities of Youth at Sentencing, Even in Adult Court
Our Eighth Amendment holding certainly prevails over any statutes to the contrary. We emphasize, however, that we do not read our state statutes as contrary to our Eighth Amendment holding. In State v. O‘Dell, 183 Wn.2d 680, 688-89, 358 P.3d 359 (2015), we held that a sentencing court may consider a defendant‘s youth as a mitigating factor justifying an exceptional sentence below the sentencing guidelines under the SRA. The trial court in this case did not have the benefit of the O‘Dell decision at the time of petitioners’ sentencing, and that accounts for its belief that its exceptional sentence below the SRA range on the case crimes was technically illegal under state law. We clarify that it was not. O‘Dell makes clear that the exceptional sentences of zero incarceration on the base substantive offenses that the State proposed and the court accepted in this case were lawful, based on petitioners’ youth at the time of the crimes.
D. The Enhancement Statutes Do Not Bar Sentencing Courts from Considering the Mitigating Qualities of Youth at Sentencing, Even in Adult Court
The enhancement statutes, when read together with our juvenile jurisdiction statutes, do not conflict with this result, either. In State v. Furman, 122 Wn.2d 440, 457-58, 858 P.2d 1092 (1993), this court addressed a similar interaction between a juvenile court statute and an adult sentencing statute:
The same logic applies here. We have upheld statutes like the one at issue in this case,
122 Wn.2d at 458. We have also held that our firearm enhancement statutes require a sentencing court to impose separate sentence enhancements consecutive to the substantive crime and to other enhancements for each firearm or deadly weapon used, but without referring to juveniles. State v. DeSantiago, 149 Wn.2d 402, 416, 420-21, 68 P.3d 1065 (2003). This means that the “enhancement” portion of a sentence—the portion that is absolutely mandatory, from which the trial court has no discretion to depart—may be as long as or even vastly exceed the portion imposed for the substantive crimes,8 reaching lengths of 50 years or more.9 The mandatory nature of these enhancements violates the Eighth Amendment protections discussed above. See also Casiano v. Comm‘r of Corr., 317 Conn. 52, 75, 115 A.3d 1031 (2015) (court may not impose 50-year sentence on juvenile offender without exercising Miller discretion), cert. denied, 136 S. Ct. 1364 (2016); State v. Null, 836 N.W.2d 41, 73-74 (Iowa 2013) (52.5 year sentence triggered Miller‘s protections); Bear Cloud v. State, 2014 WY 113, 334 P.3d 132, 141 (“the teachings of the
Roper/Graham/Miller trilogy” require remand for resentencing on 45-year mandatory concurrent sentence). This violation, just like the violation discussed in Furman, results from the interaction of two distinct statutes that contain no explicit reference to the other. Here, as in Furman, we cannot conclude that our legislature intended this result.
E. Petitioners’ Challenge To Our Decision in In re Boot
Petitioners also argue that we should overrule In re Boot, 130 Wn.2d 553, 925 P.2d 964 (1996), and declare the automatic decline statute,
Petitioners, however, made this argument in the court below to address the length of their sentences—not the proper court to impose those sentences. In fact, in the Court of Appeals, petitioners requested the relief of resentencing to a juvenile sentence—but in adult court. Indeed, they appear to agree that, four years past their 16th and 17th birthdays, this case should be remanded to adult court for resentencing. See Opening Br. of Appellant Roberts at 16, 18; Opening Br. of Appellant Houston-Sconiers at 47-48 (incorporating Roberts‘s argument by reference).10
This is essentially the relief that our Eighth Amendment holding accords them today. Because we invalidate petitioners’ sentences on these grounds, we decline to address
IV. THE COURT OF APPEALS CORRECTLY DENIED HOUSTON-SCONIERS‘S PRP
Finally, we consider Houston-Sconiers‘s PRP, which was consolidated with this case by the Court of Appeals. Houston-Sconiers raises claims regarding his pretrial motion to suppress evidence, his right to be present at all critical stages of his trial, his right to a missing witness instruction, and prosecutorial misconduct. We affirm the Court of Appeals’ decision to deny those claims.
A. The Trial Court Correctly Denied the Motion To Suppress
Before trial, Houston-Sconiers moved to suppress the evidence found in the green Cadillac and proffered testimony from Worthey‘s son in support of that motion. 6 VRP (June 27, 2013) at 223. According to defense counsel, Worthey‘s son would have testified that he owned the car and gave the boys permission to use it. Id. The trial court denied the request to hear Worthey‘s son‘s testimony. It ruled that even if Worthey‘s son were the vehicle‘s true owner, Worthey still had authority to consent to the search of her property, including the inoperable vehicles on it. Id. at 244-47.
Washington courts recognize the “common authority rule,” according to which more than one person may have the authority to consent to the search of shared property. State v. Morse, 156 Wn.2d 1, 7, 123 P.3d 832 (2005). The trial court here concluded that Worthey had at least some authority over the vehicle parked in her yard—a vehicle that had been parked there, inoperable, for at least a year before the time of the search—and that this authority was sufficient to reduce others’ reasonable expectations of privacy in that vehicle. 6 VRP (June 27, 2013) at 245. This is consistent with our application of the common authority rule. Morse, 156 Wn.2d at 7-8.
B. The Record Does Not Support Houston-Sconiers‘s Claim That He Was Denied the Right To Presence
Houston-Sconiers contends he was absent from two critical court proceedings: (1) a session of jury selection on the morning of July 8, 2013, and (2) a “hearing [later that same day] on whether or not [defense] counsel would be able to continue due to [an] injury.” PRP at 13-14 (citing 7 VRP (July 8, 2013) at 257-71 (citing 8 VRP (July 9, 2013) at 279-80). He argues that this violated his right to presence at trial. Id. at 12.
The record does not support this claim. It shows that some voir dire occurred on the morning of July 8, but there is no indication that Houston-Sconiers was absent from these proceedings. 7 VRP (July 8, 2013) at 259-71. This defeats the first part of his claim. State v. Koss, 181 Wn.2d 493, 503-04, 334 P.3d 1042 (2014) (appellant bears the burden of providing record adequate to show that claimed error occurred).
The next part of Houston-Sconiers‘s claim relies on the transcript from the following day. 8 VRP (July 9, 2013) at 275. There, the trial court made a record of what occurred on the afternoon of July 8. Id. at 275-78. It indicates that defense counsel called the court on the afternoon of July 8 to say that she had struck her knee on a filing cabinet and needed to go to the hospital. Id. at 275. Per the court‘s instructions, defense counsel called in later that day with an update on her condition. She said that she would not be able to come to court that afternoon. Id. at 276. So the court cancelled the afternoon‘s proceedings. Id. at 275-79. Houston-Sconiers was not present for either telephone conversation. Id. at 275-79. When defense
The trial court was correct. A criminal defendant has a fundamental right to presence at all “critical stages of a trial.” State v. Irby, 170 Wn.2d 874, 880-81, 246 P.3d 796 (2011) (citing Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983)). A “critical stage” is one at which the defendant‘s presence “‘has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.‘” Id. at 881 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934)). The conversations that took place in Houston-Sconiers‘s absence dealt exclusively with defense counsel‘s knee and what to do about it. This did not constitute a “critical stage” to which the right to presence attaches.
C. The Trial Court Did Not Err in Denying Houston-Sconiers‘s Requested Missing Witness Instruction
Before Officer Rodney Halfhill testified, Houston-Sconiers moved for a court order preventing the prosecutor from eliciting testimony about what victim Wright told Halfhill regarding the robberies. PRP at 15 (citing 12 VRP (July 16, 2013) at 1044). The trial court denied the motion because Wright‘s statements fell within the excited utterance exception to the hearsay rule and presented no confrontation clause problem. 12 VRP (July 16, 2013) at 1061-64;
The Court of Appeals rejected a similar argument made on appeal because it determined after a detailed analysis that Wright‘s statements were nontestimonial. State v. Houston-Sconiers, No. 45374-6-II, slip op. at 20-22 (Wash. Ct. App. Nov. 24, 2015), http://www.courts.wa.gov/opinions/pdf/45374-6.15.pdf. In his PRP, Houston-Sconiers does not argue that Wright‘s statements were testimonial—instead, he argues only that he was entitled to a missing witness instruction regarding Wright. PRP at 17. But he cites no authority in support of this argument. A missing witness instruction is appropriate when the witness is “particularly under the control of [one party] rather than being equally available to both parties.” State v. Montgomery, 163 Wn.2d 577, 598-99, 183 P.3d 267 (2008). The record indicates that the trial court issued a material witness warrant for James Wright but that neither party knew whether he would appear. 12 VRP (July 16, 2013) at 1044. It does not indicate that he was particularly available to the State.
D. Houston-Sconiers Does Not Meet His Burden To Show Prosecutorial Misconduct
Houston-Sconiers contends that the prosecutor committed misconduct in seven different ways. I address each claim separately.
First, Houston-Sconiers argues that the prosecuting attorney overcharged him and refused to reduce the charges because he believed that Houston-Sconiers came from a bad family. PRP at 18 (citing App. to PRP (declaration of trial defense counsel Barbara Corey)). And Houston-Sconiers presents evidence in support of this claim: his lawyer‘s declaration that the deputy prosecutor in charge of the case explicitly told her that he would not reduce the charges because the client was from a “bad family,” and that the deputy prosecutor said this to her personally as well as to both her and Houston-Sconiers together when the three of them met. Id. He appears to argue that the prosecutor‘s charging decision warrants reversal of his conviction.
There are certainly constitutional limits on the prosecutor‘s charging discretion. “In particular, the decision to prosecute may not be ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ including the exercise of protected statutory and constitutional
Second, Houston-Sconiers argues that the prosecutor committed misconduct by implying that defense counsel was dishonest. PRP at 18 (citing 8 VRP (July 9, 2013) at 302). He cites the prosecutor‘s comments during a hearing outside the presence of the jury on a defense motion to dismiss. 8 VRP (July 9, 2013) at 289-302. But as Houston-Sconiers notes in his PRP, to obtain relief for prosecutorial misconduct, a defendant must show a substantial likelihood that the misconduct affected the jury‘s verdict. PRP at 20; State v. Thorgerson, 172 Wn.2d 438, 452, 258 P.3d 43 (2011). There is no possibility that the prosecutor‘s comments during the hearing that occurred outside the jury‘s presence affected the jury‘s verdict.
Third, Houston-Sconiers argues that the prosecutor committed misconduct warranting reversal when he pointed out that certain witnesses did not come to court. PRP at 18 (citing 23 VRP (Aug. 1, 2013) at 2240). With respect to this allegation, Houston-Sconiers cites a portion of closing argument during which the prosecutor noted that Treson Roberts‘s mother did not testify. 23 VRP (Aug. 1, 2013) at 2240. In fact, the prosecutor mentioned this missing testimony at several different points during closing arguments and defense counsel objected each time. Id. at 2240, 2347, 2355. The trial court sustained the final objection. Id. at 2355. Given these objections, the defendant must prove “both that the prosecutor made improper statements and that ... [there is] a substantial likelihood that the prosecutor‘s statements affected the jury‘s verdict” to prevail. State v. Lindsay, 180 Wn.2d 423, 440, 326 P.3d 125 (2014) (citing State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012)). Houston-Sconiers has not attempted to meet that burden here.
Fourth, Houston-Sconiers claims that the prosecutor misstated the evidence and argued facts not in evidence. PRP at 18 (citing 23 VRP (Aug. 1, 2013) at 2239, 2340-41, 2343, 2350). He cites several pages from the transcript, but does not explain how those comments misstate the evidence. With the exception of the first citation, the record contains no contemporaneous objections. As with the previous claim (regarding Roberts‘s mother), Houston-Sconiers does not explain how these allegedly improper statements affected the verdict.
Fifth, Houston-Sconiers argues that the prosecutor committed misconduct warranting reversal when he suggested that witnesses were covering for the defendants because black people observe “a snitch code,” and used “racial words such as ‘n*****.‘” PRP at 18 (citing 23 VRP (Aug. 1, 2013) at 2347, 2348, 2350). Of the three transcript pages Houston-Sconiers cites, only one contains explicit “racial words” and references to snitching: there, the prosecutor comments that Houston-Sconiers was “so incredibly unlucky that he chose to make phone calls to his buddies and say niggas be snitching.” 23 VRP (Aug. 1, 2013) at 2350. Houston-Sconiers relies on State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), to support this argument, but Monday is distinguishable. There, the prosecutor made racially inflammatory arguments, based on stereotypes rather than evidence, to discredit black witnesses who would not provide the testimony the State sought. Id. at 678. In this case, the prosecutor quoted Houston-Sconiers‘s own words, in which he apparently acknowledged committing the charged crimes, in order to refute the defense theory that he had been framed. See Houston-Sconiers, slip op. at 49; 23 VRP (Aug. 1, 2013) at 2307.
Sixth, Houston-Sconiers claims the prosecutor committed misconduct warranting reversal when he used two pieces of evidence, the Halloween mask and gun, and had the courtroom lights dimmed to illustrate the scene of the crimes. PRP at 18 (citing 13 VRP (July 17, 2013) at 1190-1212). In the portion of the transcript that Houston-Sconiers
Finally, Houston-Sconiers argues that the prosecutor committed reversible misconduct when he said he was advocating on the public‘s behalf. Id. at 18. Houston-Sconiers offers no citation—either to the record or to case law—to support this argument.
Accordingly, we affirm the Court of Appeals’ decision to deny Houston-Sconiers‘s PRP.
CONCLUSION
We hold that in sentencing juveniles in the adult criminal justice system, a trial court must be vested with full discretion to depart from the sentencing guidelines and any otherwise mandatory sentence enhancements, and to take the particular circumstances surrounding a defendant‘s youth into account. We affirm Houston-Sconiers‘s and Roberts‘s convictions, but we reverse their sentences and remand for resentencing in accordance with this opinion.
WE CONCUR:
Fairhurst, C.J.
Stephens, J.
Wiggins, J.
Gonzalez, J.
Yu, J.
State v. Houston-Sconiers (Zyion), et al.
No. 92605-1
MADSEN, J.
MADSEN, J. (concurring in result only)—The majority relies on the Eighth Amendment to the United States Constitution to find that the sentencing court in these consolidated cases had the discretion to impose an exceptional sentence downward based on Zyion Houston-Sconiers’ and Treson Roberts’ youth. I would resolve this case on different, nonconstitutional grounds.1 In my view, the discretion vested in sentencing courts under the
I recognize that this court has held that sentencing courts do not have the discretion to depart from mandatory firearm sentencing enhancements because of the legislature‘s “absolute language.” State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999). But in the 18 years since the Brown decision, I have maintained my position that this court wrongly deprived sentencing judges of the discretion expressly provided to
them under the SRA in order to fulfill the purposes of that act. And our cases in recent years have continued to recognize the discretion that sentencing courts have for otherwise mandatory sentences when they are imposing exceptional sentences. This case provides an illustrative example of exactly why we erred in Brown and an opportunity for us to align firearm enhancements with the rest of our sentencing jurisprudence.
In enacting the SRA, the legislature set forth its purposes, emphasizing the importance
The purpose of this chapter is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences, and to:
(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.
Although the SRA explicitly gives sentencing courts the discretion to impose exceptional sentences, it also sets forth certain crimes with mandatory minimum sentences from which sentencing courts have no discretion to depart.
The mandatory firearm sentencing enhancements found in
Further, unlike the mandatory minimum provision,
The circumstances of this case highlight the purpose of that discretion and the need to preserve it. Houston-Sconiers was 17 years old when he committed this crime, and Roberts was only 16 years old. Under their current sentences, both will be in their forties when released. We have held that a defendant‘s youthfulness can support an exceptional sentence below the standard range applicable to an adult felony defendant. State v. O‘Dell, 183 Wn.2d 680, 698-99, 358 P.3d 359 (2015). And a sentencing court must exercise
This reading is also consistent with the fundamental nature of sentencing enhancements. An enhancement increases the presumptive or standard sentence; it is not a separate sentence. State v. Silva-Baltazar, 125 Wn.2d 472, 475, 886 P.2d 138 (1994); see also
Recognizing that sentencing courts have the discretion to modify firearm enhancements when imposing an exceptional sentence would align these cases with the rest of our sentencing jurisprudence. In In re Personal Restraint of Mulholland, 161 Wn.2d 322, 331, 166 P.3d 677 (2007), we found that sentencing courts have the discretion to impose an exceptional sentence—by running the sentences concurrently—for multiple serious violent offenses. See
Under
In this case, the sentencing court erroneously believed that the firearm enhancements robbed it of the ability to impose an exceptional sentence. The sentencing court told Houston-Sconiers:
[Judges] don‘t have the discretion we had 30 years ago in terms of sentencing.
And it frustrates me because as I‘m sitting here, I wouldn‘t tell you I wouldn‘t exercise more discretion in your favor if I had that opportunity to do so. But the law is an oath that I took to enforce. And in this particular case, I don‘t have any option because if I did do something different than what the law requires me to do, it would simply be overturned by another court, and we‘d be back here for resentencing.
25 Verbatim Report of Proceedings (Sept. 13, 2013) at 2401-02. Similarly, the sentencing court told Roberts:
The only mercy I have has already been executed by the prosecutor in recommending a zero sentence on the underlying crimes ....
Three-hundred and twelve months [on the firearm enhancements] is what I‘m compelled to sentence you to.
Id. at 2418. The sentencing court‘s failure to recognize its discretion was an abuse of that discretion.
As we have said before, “[w]hile no defendant is entitled to an exceptional sentence ... every defendant is entitled to ask the trial court to consider such a sentence and to have the alternative actually considered.” Grayson, 154 Wn.2d at 342 (citing State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)). And where an appellate court “‘cannot say
As I said in Brown, the court‘s decision to transform a sentence enhancement into a mandatory minimum has robbed judges of the discretion that the legislature, through the SRA, expressly gives them in order to fulfill the purposes of the act. And denying judges the discretion in this context is inconsistent with our recognition of discretion for similar sentences. Proportionality, equality, and justice demand that we preserve judicial discretion to impose exceptional sentences. Because these consolidated cases highlight the travesty of this court‘s decision in Brown, I would resolve this case by holding that sentencing courts have the discretion to depart from the mandatory firearm enhancements when imposing exceptional sentences. Because the sentencing judge in these cases failed to recognize that discretion, we should remand the cases for resentencing.
For those reasons, I respectfully concur in result only.
Madsen, J.
Johnson, J.
Notes
11 VRP (July 15, 2013) at 859. Petitioners assert that A.G.‘s testimony indicates that the only thing she feared was calling the police. Id. at 856, 860. But even if this is a plausible interpretation of A.G.‘s statements, there are other plausible interpretations. A reasonable jury could interpret this exchange as evidence that A.G. feared harm from Houston-Sconiers.Counsel: No one was hurt?
A.G.: No.
Counsel: Really scared, but hurt [sic]?
A.G.: Yeah.