Personal Restraint Petition Of Brandon White ( 2019 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    In the Matter of the Personal               No. 76988-0-1
    Restraint of
    DIVISION ONE
    BRANDON KENNETH WHITE,
    UNPUBLISHED OPINION
    Petitioner.     FILED: December 2, 2019
    CHUN, J. — In this personal restraint petition (PRP), Brandon White argues
    he is entitled to resentencing because a significant change in the law of
    sentencing young adults and juveniles renders unconstitutional the statute under
    which he was sentenced, RCW 10.95.030. White also argues the State did not
    present sufficient evidence to support his conviction. Because White's claim of
    unconstitutionality is untimely, we deny the petition in its entirety.
    I. BACKGROUND
    A jury convicted White of aggravated first degree murder, and made
    special findings that he committed the crime with a gun and knife. White was
    19 years old at the time of the crime. The trial court sentenced him to life without
    the possibility of parole(LWOP). White's judgment and sentence became final
    on February 3, 2004, when our Supreme Court denied White's petition for review.
    See State v. White, No. 49825-8-1 (Wash. Ct. App. June 16, 2003)(unpublished),
    No. 76988-0-1/2
    review denied, 
    150 Wash. 2d 1034
    (2004). White initially filed this petition on June
    6, 2017, over 13 years after the judgment reached finality.
    II. ANALYSIS
    A petitioner typically must file a PRP within one year of the final judgment
    of their conviction. RCW 10.73.090. But RCW 10.73.100 provides exceptions to
    the one-year limit. The grounds for relief excepted from the one year time bar
    that are applicable to White's petition are subsections (4) and (6):
    (4) The defendant pled not guilty and the evidence introduced at
    trial was insufficient to support the conviction; . . .
    (6) There has been a significant change in the law, whether
    substantive or procedural, which is material to the conviction,
    sentence, or other order entered in a criminal or civil proceeding
    instituted by the state or local government, and either the legislature
    has expressly provided that the change in the law is to be applied
    retroactively, or a court, in interpreting a change in the law that lacks
    express legislative intent regarding retroactive application,
    determines that sufficient reasons exist to require retroactive
    application of the changed legal standard.
    RCW 10.73.100.
    White argues that a significant change in the law of sentencing juveniles
    and young adults has occurred. Based on this claim, he argues that RCW
    10.95.030, the statute under which the trial court sentenced him, is
    unconstitutional as applied to adult offenders with youthful characteristics. The
    State asserts that his grounds for relief under RCW 10.73.100(6) are time barred,
    because no significant change in law has occurred. Thus, the State argues, his
    2
    No. 76988-0-1/3
    petition must be denied in its entirety because it is mixed. We agree with the
    State.
    A.       RCW 10.73.100(6)
    White argues he is entitled to resentencing because a significant change
    in the law renders unconstitutional the statute under which he was sentenced,
    RCW 10.95.030. He elaborates that the statute is unconstitutional as applied to
    him because the court was unable to consider his youth as a mitigating factor
    and impose a sentence less than life without parole. But no significant change in
    law has occurred, so his claim of unconstitutionality is time barred.
    "A petitioner can overcome the one-year time bar under RCW
    10.73.100(6) if [they] can identify (1) a significant change in the law (2) that is
    material and (3) that applies retroactively." In re Pers. Restraint of Light-Roth,
    
    191 Wash. 2d 328
    , 333, 422 P.3d 444(2018)(internal quotation marks and citation
    omitted). "A significant change in the law occurs when an intervening opinion
    has effectively overturned a prior appellate decision that was originally
    determinative of a material issue." In re Pers. Restraint of Colbert, 
    186 Wash. 2d 614
    , 619, 380 P.3d 504(2016)(internal quotation marks and citation omitted).
    "One test to determine whether an intervening case represents a significant
    change in the law is whether the defendant could have argued this issue before
    publication of the decision." State v. Miller, 
    185 Wash. 2d 111
    , 115, 
    371 P.3d 528
    (2016)(internal quotation marks and citations omitted).
    3
    No. 76988-0-1/4
    In support of his argument that a significant change in law has occurred,
    White points to a constellation of recent federal and state cases that address
    sentencing of juveniles and youthful offenders: Roper v. Simmons, 
    543 U.S. 551
    , 578, 
    125 S. Ct. 1183
    , 161 L. Ed. 2d 1(2005)(holding the United States
    Constitution's Eighth and Fourteenth Amendments prohibit imposition of the
    death penalty on juvenile offenders); Graham v. Florida, 
    560 U.S. 48
    , 82, 130 S.
    Ct. 2011, 176 L. Ed. 2d 825(2010)(holding the United States Constitution's
    Eighth Amendment prohibits LWOP sentences for juveniles who did not commit
    homicide); Miller v. Alabama, 
    567 U.S. 460
    , 502, 
    132 S. Ct. 2455
    , 183 L. Ed. 2d
    407(2012)(holding the United States Constitution's Eighth Amendment bars
    mandatory LWOP sentences for juveniles); State v. O'Dell, 
    183 Wash. 2d 680
    ,
    698-99, 358 P.3d 359(2015)(holding non-juvenile defendants' youthfulness can
    support exceptional sentences below the standard range applicable to adult
    felony defendants); State v. Houston-Sconiers, 
    188 Wash. 2d 1
    , 34, 
    391 P.3d 409
    (2017)(holding that sentencing courts must consider the mitigating qualities of
    youth when sentencing juveniles, and must have discretion to depart from
    mandatory sentence enhancements when sentencing juveniles in adult court);
    and State v. Bassett, 
    192 Wash. 2d 67
    , 91, 428 P.3d 343(2018)(holding LWOP for
    juvenile defendants violates Washington's Constitution).
    4
    No. 76988-0-1/5
    Referring to these cases, White asks the court to infer that a significant
    change in law has occurred that allows sentencing courts to depart from
    mandatory sentence enhancements for "youthful" adult offenders.
    The holdings of Roper, Graham, Miller, Houston-Sconiers, and Bassett
    apply explicitly only to juveniles.1 O'Dell is the only case White cites relating to
    sentencing of "youthful" adult offenders. But in Light-Roth, our Supreme Court
    held O'Dell did not constitute a significant change in law, since sentencing courts
    have always had the discretion to consider a defendant's youthfulness at
    
    sentencing. 191 Wash. 2d at 336-38
    .
    White asks the court to examine these cases cumulatively, not
    individually. White offers no legal authority in support of his proposition that the
    court may examine an array of cases, and from such, infer a significant change in
    law has occurred. Indeed, the test for determining whether there has been a
    significant change in law asks the court to examine if the defendant could have
    made their argument before the publication of a given decision—not before a
    trend of decisions. See 
    Miller, 185 Wash. 2d at 115
    . And when courts analyze
    whether a significant change in law has occurred, the focus of their analysis is
    whether a single case has changed Washington law in some way. See, e.q.,
    
    Miller, 185 Wash. 2d at 115
    -16 (analyzing whether In re Pers. Restraint of
    1 In a statement of additional authority, White also asks the court to address
    State v. Gilbert, 
    193 Wash. 2d 169
    , 438 P.3d 133(2019). But similarly, Gilbert's holding
    addresses only resentencing procedures for juveniles.
    5
    No. 76988-0-1/6
    Mulholland, 
    161 Wash. 2d 322
    , 166 P.3d 677(2007), significantly changed the law
    of concurrent sentencing); 
    Colbert, 186 Wash. 2d at 619
    (analyzing whether State v.
    W.R., 
    181 Wash. 2d 757
    , 
    336 P.3d 1134
    (2014), significantly changed the law
    regarding the burden of proof of consent in second degree rape cases); In re
    Pers. Restraint of Yung-Chenq Tsai, 
    183 Wash. 2d 91
    , 105-07, 
    351 P.3d 138
    (2015)(analyzing whether Padilla v. Kentucky, 
    559 U.S. 356
    , 
    130 S. Ct. 1473
    ,
    176 L. Ed. 2d 284(2010), significantly changed the law regarding ineffective
    assistance of counsel). White bases his argument on an erroneous
    understanding of the manner in which a "significant change in law" occurs.
    Because White cannot satisfy the significant change in law element of
    RCW 10.73.100(6), we need not address whether the materiality and retroactivity
    elements are satisfied.
    Because White cannot satisfy RCW 10.73.100(6), his claim of
    unconstitutionality is time barred, and we will not consider it.
    B.     Mixed Petition
    Because his claim of unconstitutionality is time barred, we must deny
    White's entire petition:
    [I]f a personal restraint petition claiming multiple grounds for relief is
    filed after the one-year period of RCW 10.73.090 expires, and the
    court determines that at least one of the claims is time barred, the
    petition must be [denied]. Under such circumstances the court will
    not analyze every claim that is raised in order to determine or advise
    which claims are time barred and which are not, nor will it decide
    claims under RCW 10.73.100 that are not time barred.
    6
    No. 76988-0-1/7
    In re Pers. Restraint of Hankerson, 
    149 Wash. 2d 695
    , 702-03, 
    72 P.3d 703
    (2003). White's petition is mixed. Thus, we deny White's petition without
    consideration of his "sufficiency of the evidence" claim.2
    Denied.
    WE CONCUR:
    nirtAel el,   tiC.:
    ,r
    2 As the State conceded at oral argument, White may file a PRP in the future
    bringing other claims he believes fall within the exceptions of RCW 10.73.100. While
    RAP 16.4(d) bars a second petition claiming similar relief without a showing of good
    cause, a successive petition will be dismissed on these grounds only where the prior
    application was denied after being heard and determined on the merits. In re Pers.
    Restraint of Stoudmire, 
    141 Wash. 2d 342
    , 350, 5 P.3d 1240(2000)(rev'd on other grounds
    by In re Pers. Restraint of Turav, 
    153 Wash. 2d 44
    , 
    101 P.3d 854
    (2004)). Where claims
    are dismissed because they are contained in a mixed petition, the dismissal is on
    procedural grounds and the court has not considered the claims on the merits.
    
    Stoudmire, 141 Wash. 2d at 350-51
    .
    7
    

Document Info

Docket Number: 76988-0

Filed Date: 12/2/2019

Precedential Status: Non-Precedential

Modified Date: 12/2/2019