State Of Washington v. Say Sulin Keodara ( 2018 )

TILED
VILICti OF APPEALS DIV I
STATE OF WASHINGTON
2018 HAY -7 AN 8:31
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) No. 76232-0-1 (consol. with
v. ) No. 76333-4-1)
)
SAY SULIN KEODARA, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: May 7, 2018
)
DWYER, J. — Say Keodara committed terrible crimes when he was 17
years old. He was sentenced to a low-end standard range sentence of 831
months of incarceration. Finding that this 69-year, three-month sentence was the
functional equivalent of a life-without-parole sentence, and that the sentencing
court had, at sentencing, treated as immaterial Keodara's youth, we reversed the
sentence and remanded the cause for a new sentencing hearing.
On remand, the court considered Keodara's youth at the time of his
offense, including the particular circumstances of his upbringing and general
circumstances pertaining to youthful offenders. The court concluded that
Keodara had proved by a preponderance of the evidence that he should receive
an exceptional sentence below the standard range. The court imposed a 480-
month sentence. This 40-year sentence is not the equivalent of a life-without-
parole sentence.
No. 76232-0-1/2
Because the sentencing court(1) recognized that no mandatory sentence
provisions were applicable in Keodara's circumstance,(2) recognized that it had
discretion at sentencing to select an appropriate sentence,(3) exercised its
discretion,(4) considered Keodara's youth in determining the appropriate
sentence, and (5) imposed a sentence below the standard range for a lesser
term than life, there was no error. We affirm.
I
In 2013, a jury convicted Keodara for crimes that he committed when he
was 17 years old.1 The crimes of conviction were one count of murder in the first
degree, one count of unlawful possession of a firearm in the first degree, and
three counts of assault in the first degree. The murder conviction and the three
assault convictions included, for sentencing purposes, mandatory firearm
enhancements. Keodara was sentenced to a total of 831 months in prison. This
sentence was at the lowest end of the standard range of 831 months to 1141
months, as set forth in RCW 9.94A.510.
Keodara appealed his convictions and sentence to this court. We affirmed
Keodara's convictions but remanded for resentencing because the sentencing
court had imposed a sentence that was, in effect, a life sentence without first
adequately considering Keodara's youth and individual circumstances, as
required by Eighth Amendment case law. See State v. Keodara, No. 70518-1-1,
1 The crimes are detailed in State v. Keodara, 191 Wn. App. 305, 364 P.3d 777(2015),
review denied, 185 Wn.2d 1028 (2016).
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No. 76232-0-1/3
slip op. at 19(Wash. Ct. App. Nov. 2, 2015)(published in part)
http://www.courts.wa.gov/opinions/pdf/705181.pdf at 19.
On remand, a new sentencing hearing was held. Prior to the hearing,
Keodara submitted 240 pages of mitigation materials. The materials included
Keodara's mental health assessments, details about his difficult childhood, and
educational materials explaining the effects of maltreatment on brain
development. Keodara also presented testimony from his mother and
psychologist, both of whom testified to Keodara's difficult childhood and to the
impact that his difficult childhood had on his psychological health.
Before announcing Keodara's sentence, the trial court emphasized that it
had, on several occasions, reviewed all of the information submitted to the court.
It also explained that it had considered Keodara's age at the time of the crime,
his family and home environment, his susceptibility to influence from older
individuals, and his possibility of rehabilitation in reaching a decision about his
sentence.2 Upon considering Keodara's youth, the court imposed an exceptional
sentence of 480 months in prison.3 The sentence is almost 30 years below the
lowest end of the standard range-831 months.
Keodara again appeals.
2 The trial court entered extensive findings of fact and conclusions of law, as to the
impact of his youth, as supplements to the judgment and sentence.
3 Keodara was sentenced to 240 months for the murder in the first degree conviction. He
was sentenced to 87 months for the unlawful possession of a firearm in the first degree
conviction. He was given three separate 93 month sentences for each of the three convictions for
assault in the first degree. He was also given four separate 60 month sentences for the firearm
enhancements to the murder and the assault convictions. The sentences for the murder,
assaults, and possession of a firearm convictions were ordered to run concurrently (for a total of
240 months.) The sentences for the four firearm enhancements were ordered to run
consecutively (for a total of 240 months.) Thus, the total sentence was for 480 months of
incarceration.
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No. 76232-0-1/4
II
Keodara's primary contention on appeal is that the procedure at his
sentencing hearing fell short of that required by Miller v. Alabama, 567 U.S. 460,
132 S. Ct. 2455, 183 L. Ed. 2d 407(2012). Keodara's assertion reflects a
fundamental misunderstanding of the Miller decision and of the Eighth
Amendment, upon which Miller was grounded.
The Eighth Amendment'concerns itself with actual punishment. It is not a
procedural guarantee.
The import of Miller was explained by the United States Supreme Court in
a later decision. In Miller,
the Court held that a juvenile convicted of a homicide offense could
not be sentenced to life in prison without parole absent
consideration of the juvenile's special circumstances in light of the
principles and purposes of juvenile sentencing.
Montgomery v. Louisiana, U.S. , 136 S. Ct. 718, 725, 193 L. Ed. 2d
599 (2016). More specifically,
Miller held that mandatory life without parole for juvenile homicide
offenders violates the Eighth Amendment's prohibition on "cruel
and unusual punishments." Id., at_, 132 S. Ct., at 2460. "By
making youth (and all that accompanies it) irrelevant to imposition
of that harshest prison sentence," mandatory life without parole
"poses too great a risk of disproportionate punishment." Id., at ,
132 S. Ct., at 2469. Miller required that sentencing courts consider
a child's "diminished culpability and heightened capacity for
change" before condemning him or her to die in prison. Ibid.Although Miller did not foreclose a sentencer's ability to impose life
without parole on a juvenile, the Court explained that a lifetime in
prison is a disproportionate sentence for all but the rarest of
children, those whose crimes reflect "irreparable corruption." Ibid."Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. CONST. amend. VIII.
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No. 76232-0-1/5
(quoting Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005)).
Montgomery, 136 S. Ct. at 726.
In Montgomery, the high court made explicit that Miller announced
"a new substantive rule of constitutional law." Montgomery, 136 S. Ct. at
729. Such rules, the Court cautioned, are to be distinguished from
"procedural rules." Montgomery, 136 S. Ct. at 729. To be sure, Miller
conferred a "substantive constitutional right." Montgomery, 136 S. Ct. at
732. The right was substantive, the Montgomery Court explained,
because "[p]rotection against disproportionate punishment is the central
substantive guarantee of the Eighth Amendment." Montgomery, 136 S.
Ct. at 732.
These considerations underlay the Court's holding in Miller
that mandatory life-without-parole sentences for children "pos[e] too
great a risk of disproportionate punishment." 567 U.S., at_, 132
S. Ct., at 2469. Miller requires that before sentencing a juvenile to
life without parole, the sentencing judge take into account "how
children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison." Ibid. The Court
recognized that a sentencer might encounter the rare juvenile
offender who exhibits such irretrievable depravity that rehabilitation
is impossible and life without parole is justified. But in light of
"children's diminished culpability and heightened capacity for
change," Miller made clear that "appropriate occasions for
sentencing juveniles to this harshest possible penalty will be
uncommon." Ibid.Montgomery, 136 S. Ct. at 733-34. The Court then explained,
[b]ecause Miller determined that sentencing a child to life without
parole is excessive for all but "the rare juvenile offender whose
crime reflects irreparable corruption," 567 U.S., at_, 132 S. Ct., at
2469 (quoting Roper, supra, at 573, 125 S. Ct. 1183), it rendered
life without parole an unconstitutional penalty for "a class of
defendants because of their status"—that is, juvenile offenders
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No. 76232-0-1/6
whose crimes reflect the transient immaturity of youth. As a result,
Miller announced a substantive rule of constitutional law.
Montgomery, 136 S. Ct. at 734 (citation omitted).
But there is even more to be learned about Miller from the
Montgomery opinion.
To be sure, Miller's holding has a procedural component.
Miller requires a sentencer to consider a juvenile offender's youth
and attendant characteristics before determining that life without
parole is a proportionate sentence... . Those procedural
requirements do not, of course, transform substantive rules into
procedural ones.
The procedure Miller prescribes is no different. A hearing
where "youth and its attendant characteristics" are considered as
sentencing factors is necessary to separate those juveniles who
may be sentenced to life without parole from those who may not.
567 U.S., at_, 132 S. Ct., at 2460. The hearing does not replace
but rather gives effect to Miller's substantive holding that life without
parole is an excessive sentence for children whose crimes reflect
transient immaturity.
Montgomery, 136 S. Ct. at 734-35 (emphasis added).
Miller thus established two inter-related, substantive constitutional
rules. The Eighth Amendment prohibits both (1) the mandatory imposition
of a life-without-parole sentence on a juvenile offender, and (2)the
imposition of a life-without-parole sentence on a juvenile offender whose
crime reflects transient immaturity, as opposed to irretrievable depravity.
Our Supreme Court undertook an application of Miller just last year.
In State v. Ramos, the court held that "Miller applies equally to literal and
de facto life-without-parole sentences." 187 Wn.2d 420, 437, 387 P.3d
650, cert. denied, 138 S. Ct. 467(2017). The court described a de facto
6
No. 76232-0-1/7
life sentence as follows: "a total prison term exceeding the average human
life-span—that is, a de facto life sentence." Ramos, 187 Wn.2d at 434.
The Supreme Court then applied the Miller guarantees to the de
facto life sentence imposed on Ramos. In so doing, it set forth the rule of
Miller: "Miller establishes a substantive rule that a life-without-parole
sentence cannot be imposed on a juvenile homicide offender whose
crimes reflect transient immaturity." Ramos, 187 Wn.2d at 436(emphasis
added). Applying this to Ramos's situation, the court explained that
Ramos was in fact sentenced to die in prison for homicide offenses
he committed as a juvenile. Miller plainly provides that a juvenile
homicide offender cannot be sentenced to die in prison without a
meaningful opportunity to gain early release based on
demonstrated rehabilitation unless the offender first receives a
constitutionally adequate Miller hearing.
Ramos, 187 Wn.2d at 440(emphasis added).
The import of the discussions in Montgomery and Ramos is that
they make clear that Miller, as an Eighth Amendment case, is concerned
with the punishment imposed. The Miller rule is applicable when a
juvenile offender is sentenced to die in prison (as a result of the imposition
of either a literal or a de facto life-without-parole sentence).
Here, Keodara was not sentenced to die in prison. The sentencing
judge found that he had proved that he deserved an exceptional sentence
below the standard range. Such a sentence was imposed. The 40-year
sentence imposed is not a de facto life sentence. Should Keodara serve
7
No. 76232-0-1/8
the full sentence, he will be age 58 upon release.5 His life expectancy, as
predicted by official state records, is 77 years.6
Because Keodara did not receive a literal or a de facto life-without-
parole sentence, Miller does not apply to appellate review of his
sentence.7
Ill
The fact that Keodara was not sentenced to die in prison does not mean
that the Eighth Amendment has no applicability to the sentence imposed upon
him. In fact, as the recipient of a less-than-life sentence, Keodara's sentence, on
appellate review, is measured against the requirements of State v. Houston-
Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). In that decision, our Supreme
Court noted that
"[C]hildren are different." Miller v. Alabama, 567 U.S. 460, 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); U.S. CONST. amend. VIII.
5 If he earns early release, Keodara may be released as early as age 39.
6 When life expectancy is at issue in litigation, the Washington Pattern Jury Instructions
contain a suggested pattern jury instruction addressing the issue. That instruction, WPIC 34.04
(6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 34.04 (6th ed. 2012)),
allows the jury to be instructed on a person's life expectancy based on data routinely gathered by
the Washington Insurance Commissioner. See 6A WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CIVIL APPENDIX B LIFE EXPECTANCY TABLE, at 665-68 (6th ed. 2012). Our
statement as to Keodara's life expectancy is based on that data. See Life-expectancy table,
Office of the Insurance Commissioner Washington State (April 18, 2018, 10:46 a.m.),
https://insurance.wa.gov/life-expectancy-table.
7 Keodara's appellate contention is that Miller set forth a procedural right. That right,
Keodara avers, is to have his sentencing hearing proceed in a particular fashion, with the court
considering certain factors, regardless of the sentence actually imposed. This is wrong. Miller
ensures that only juveniles who manifest irretrievable depravity are sentenced to die in prison.
The Eighth Amendment does not require an inquiry into irretrievable depravity as a precursor to a
sentence such as that imposed on Keodara.
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No. 76232-0-1/9
Houston-Sconiers, 188 Wn.2d at 8. Thus, a rule was announced.
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.
Houston-Sconiers, 188 Wn.2d at 9. This rule led to the court's holding.
[W]e 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, 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.
Houston-Sconiers, 188 Wn.2d at 21 (footnote omitted). Accordingly, the
Supreme Court ruled, the court that sentenced Houston-Sconiers had erred by
reasoning that, in sentencing him, it was statutorily required to impose mandatory
firearm enhancements to be served consecutively. Houston-Sconiers, 188
Wn.2d at 25-26.
No such error occurred herein. At Keodara's sentencing hearing, the
court considered extensive written submittals. It considered, and entered
findings and conclusions describing, the impact of his youth on his criminal
culpability. It found that Keodara proved by a preponderance of the evidence
that he was entitled to an exceptional sentence below the standard range. And it
imposed just such a sentence.
9
No. 76232-0-1/10
The standard range sentence applicable to Keodara was 831 months to
1141 months in prison. The superior court sentenced him to an exceptional
sentence downward: a total of 480 months. The sole reason given for this
sentence was Keodara's youth.
On appeal, Keodara mistakenly claims that the trial court erred by
imposing four consecutive 60-month firearm enhancements. This is not so. The
trial court plainly understood that it had the discretion not to do so. However, it
chose to structure its leniency by drastically reducing the period of incarceration it
imposed on the murder conviction—reducing that part of the sentence to 240
months. It then ordered that the base sentences for Keodara's four other
convictions be served concurrently with the murder sentence. "[A]n exceptional
sentence may be for a reduced term of years, for concurrent rather than
consecutive sentences, or both." Ramos, 187 Wn.2d at 434.
The trial court exercised its discretion, based solely on Keodara's youth,
and determined that he should receive an exceptional sentence below the
standard range. The trial court then again exercised its discretion, based solely
on Keodara's youth, and structured the exceptional sentence so that it totaled
480 months-351 months below the lowest end of the standard range. By
recognizing that it had such discretion—and by exercising that discretion in good
faith—the sentencing court fully complied with the requirements of Houston-
Sconiers.
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No. 76232-0-1/1 1
Affirmed.
We concur:
cer