State of Washington v. John T. McWhorter ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
April 23, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 55774-6-II
Appellant,
v.
JOHN T. MCWHORTER UNPUBLISHED OPINION
Respondent,
LEE, J. — The State appeals the superior court’s order denying its motion to transfer John
T. McWhorter’s motion to modify his judgment and sentence to consider youth as a mitigating
factor to this court for consideration as a personal restraint petition (PRP) and ordering a
resentencing hearing. After we dismissed this appeal, our supreme court reversed, holding that
the superior court’s order was appealable under RAP 2.3(b)(3) because the superior court
necessarily vacated McWhorter’s judgment and sentence by ordering resentencing. Our supreme
court remanded to this court for further proceedings.
On remand, based on the current law regarding juvenile sentencing, we hold the superior
court should have transferred McWhorter’s motion to this court for consideration as a PRP.
However, for the sake of judicial economy, rather than reversing the superior court’s order and
remanding with instructions to transfer McWhorter’s motion back to this court for consideration
as a PRP, we convert McWhorter’s motion to a PRP and dismiss the PRP as untimely.
No. 55774-6-II
FACTS
In 1997, McWhorter participated in a gang rape where the victim was raped multiple times
by multiple people, including McWhorter, over several hours.1 McWhorter pleaded guilty to first
degree rape, second degree rape, and first degree robbery, all with firearm sentencing
enhancements. McWhorter was 17 years old at the time of the crimes.
The sentencing court imposed an exceptional sentence of 496 months total confinement,
which included an exceptional sentence of 316 months and three consecutive 60 month firearm
sentencing enhancements. In 1999, on remand following appeal, the sentencing court amended
McWhorter’s sentence by ordering the firearm sentencing enhancements to run concurrent to each
other but consecutive to the exceptional upward sentence. This resulted in 376 months of total
confinement.
In August 2016, McWhorter filed a motion to modify his judgment and sentence to
consider youth as a mitigating factor. The motion was transferred to this court for consideration
as a PRP because the superior court determined the motion was time barred. We stayed
consideration of the PRP pending the outcome of various cases addressing juvenile sentencing.
Order Remanding CrR 7.8(c) Transfer Order, In re Pers. Restraint of McWhorter, No. 49557-1-II
(Wash. Ct. App. Nov. 3, 2020). We then remanded the case back to the superior court for further
consideration in light of recent supreme court opinions addressing juvenile sentencing. Order
Remanding CrR 7.8(c) Transfer Order, McWhorter, No. 49557-1-II.
1
The full facts of the rape are set out in this court’s unpublished opinion affirming his exceptional
sentence in part and reversing in part. State v. McWhorter, noted at 95 Wn. App. 1020, 1999 WL
239443 (1999). Due to the nature of the incident we do not repeat the details again here.
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No. 55774-6-II
McWhorter filed a memorandum arguing that he was entitled to resentencing because the
sentencing court failed to comply with Houston-Sconiers’s2 requirement that the sentencing court
consider the mitigating qualities of youth and recognize that it had the discretion to impose any
sentence below the applicable standard sentencing range. The State moved to transfer
McWhorter’s motion back to this court because McWhorter could not make a substantial showing
that he was entitled to relief. The State argued that McWhorter was unable to make a substantial
showing that he is entitled to relief because he could not show actual and substantial prejudice.
The superior court concluded that McWhorter’s motion was not time barred. The superior
court also concluded that McWhorter had made a substantial showing that he was entitled to relief
because it was clear his youth was not considered at his sentencing. The superior court denied the
State’s motion to transfer McWhorter’s CrR 7.8 motion and ordered a resentencing hearing.
The State appealed. Initially, this court dismissed the State’s appeal because an order
denying a CrR 7.8 transfer is not appealable. However, our supreme court held that, because the
superior court ordered resentencing, the order necessarily vacated McWhorter’s judgment and
sentence. State v. McWhorter, 2 Wn.3d 324, 328, 535 P.3d 880 (2023). Therefore, our supreme
court held that the order was appealable under RAP 2.3(b)(3) and remanded the matter back to this
court for further proceedings. Id.ANALYSIS
The State argues that the superior court erred by denying its motion to transfer
McWhorter’s motion to modify his judgment and sentence to this court because McWhorter failed
to make a substantial showing that he was entitled to relief. Based on our Supreme Court’s recent
2
State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).
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No. 55774-6-II
decisions regarding juvenile sentencing, it is clear that McWhorter’s petition is time barred.
However, for the sake of judicial economy, rather than reversing the superior court’s order and
remanding with instructions to transfer McWhorter’s motion back to this court for consideration
as a PRP, we convert McWhorter’s motion to a PRP and dismiss it as untimely.
A motion that seeks resentencing is a collateral attack on a judgment and sentence. State
v. Molnar, 198 Wn.2d 500, 508, 497 P.3d 858 (2021); RCW 10.73.090(2) (“‘[C]ollateral attack’
means any form of postconviction relief other than a direct appeal.”). Under RCW 10.73.090(1),
“[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be
filed more than one year after the judgment becomes final if the judgment and sentence is valid on
its face and was rendered by a court of competent jurisdiction.”
RCW 10.73.100(6) provides an exception to the one year time bar when
[t]here 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.
Our supreme court has held that Houston-Sconiers was a significant change in the law that applied
retroactively, satisfying the exception to the one year time bar in RCW 10.73.100(6). In re Pers.
Restraint of Ali, 196 Wn.2d 220, 233, 474 P.3d 507 (2020), cert. denied, 141 S. Ct. 1754 (2021).
However, our Supreme Court has since clarified that Houston-Sconiers established both a
substantive and a procedural rule, and only the substantive rule applies retroactively. In re Pers.
Restraint of Hinton, 1 Wn.3d 317, 328-29, 525 P.3d 156 (2023). “Houston-Sconiers established
the substantive rule that courts may not impose ‘certain adult sentences . . . on juveniles who
possess such diminished culpability that the adult standard [Sentencing Reform Act of 1981
4
No. 55774-6-II
(SRA), chapter 9.94A RCW] ranges and enhancements would be disproportionate punishment.’”
Id. (first alteration in original) (quoting Houston-Sconiers, 188 Wn.2d at 239). “Houston-Sconiers
‘also established a mechanism necessary to effectuate that substantive rule: sentencing courts must
consider the mitigating qualities of youth and have discretion to impose sentences below what the
SRA mandates.’” Id. at 329 (quoting Houston-Sconiers, 188 Wn.2d at 237). These dual mandates
of Houston-Sconiers’s procedural rule effectuate the substantive rule. Id.; In re Pers. Restraint of
Carrasco, 1 Wn.3d 224, 237, 525 P.3d 196 (2023) (the dual mandates of Houston-Sconiers’s
procedural rule require sentencing courts to consider the mitigating qualities of youth and
appreciate their discretion to depart from the standard ranges; the dual mandates of the procedural
rule implement Houston-Sconiers’s substantive rule). “Ali and Domingo-Cornelio[3] gave only
Houston-Sconiers’s substantive rule retroactive effect.” Hinton, 1 Wn.3d at 330-31.
Here, McWhorter’s judgment and sentence was final, at the latest, in 1999. See RCW
10.73.090(3)(a). Therefore, McWhorter’s CrR 7.8 motion, filed in August 2016, is time barred
unless it is based on a ground that meets an exception in RCW 10.73.100.4
RCW 10.73.100(6) provides an exception to the time bar for collateral attacks based on a
significant, material, retroactive change in the law. But McWhorter’s CrR 7.8 motion alleged only
a violation of the procedural rule in Houston-Sconiers. Because Houston-Sconiers’s procedural
rule is not retroactive, McWhorter’s motion was not based on a significant, material, retroactive
3
In re Pers. Restraint of Domingo-Cornelio, 196 Wn.2d 255, 474 P.3d 524 (2020), cert. denied,
141 S. Ct. 1753 (2021).
4
McWhorter does not argue that his judgment and sentence is facially invalid or rendered by a
court without competent jurisdiction. See RCW 10.73.090(1).
5
No. 55774-6-II
change in the law. See Hinton, 1 Wn.3d at 330-31; Carassco, 1 Wn.3d at 237. Accordingly.
McWhorter’s CrR 7.8 motion is time barred.
Under CrR 7.8(c)(2), the superior court must transfer a CrR 7.8 motion to this court for
consideration as a personal restraint petition unless it is not time barred and the defendant has made
a substantial showing that they are entitled to relief or a factual hearing is required to resolve the
motion.5 Based on recent case law clarifying that McWhorter’s motion is time barred, the superior
court did not have authority to retain jurisdiction and decide the motion. Instead, the superior
should have transferred the motion to this court for consideration as a PRP. However, for the sake
of judicial economy, rather than remand this matter to the superior court with instructions to
transfer the matter to this court for consideration as a PRP, we convert McWhorter’s motion to a
personal restraint petition.6 See State v. Smith, 144 Wn. App. 860, 863-64, 184 P.3d 666 (2008).
Generally, a PRP that is barred by RCW 10.73.090 will be dismissed. See RAP 16.8.1. As
explained above, McWhorter’s petition is based on a violation of Houston-Sconiers’s procedural
rule, which is not retroactive. Therefore, the exception to the time bar in RCW 10.73.100(6) does
5
CrR 7.8(c)(2) provides:
The court shall transfer a motion filed by a defendant to the Court of Appeals for
consideration as a personal restraint petition unless the court determines that the
motion is not barred by RCW 10.73.090 and either (i) the defendant has made a
substantial showing that they are entitled to relief or (ii) resolution of the motion
will require a factual hearing.
6
The alternative remedy would require reversing the superior court’s order and remanding back
to the superior court to transfer McWhorter’s motion to this court for consideration as a PRP.
McWhorter’s motion has been pending since it was originally filed in 2016 and has already been
remanded to the superior court once. And because McWhorter’s motion is time barred, the result
would be the same—dismissal—after the motion is transferred back to this court. Therefore,
judicial economy clearly favors converting McWhorter’s motion to a PRP.
6
No. 55774-6-II
not apply and McWhorter’s petition is time barred under RCW 10.73.090. Accordingly,
McWhorter’s petition must be dismissed.
CONCLUSION
The superior court should have transferred McWhorter’s motion to this court for
consideration as a PRP. However, rather than reverse the superior court’s order and remand with
instructions to transfer the case to this court for consideration as a PRP, we convert McWhorter’s
motion to a PRP and dismiss the PRP as untimely.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J.
We concur:
Cruser, C.J.
Che, J.
7