State Of Washington, V Malisha Miranda Morales

Filed
Washington State
Court of Appeals
Division Two
December 1, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51279-3-II
Respondent,
v.
UNPUBLISHED OPINION
MALISHA MIRANDA MORALES, REMAND FROM THE
WASHINGTON SUPREME COURT
Appellant.
WORSWICK, J. — Following her guilty plea to second degree murder in superior court,
Malisha Miranda Morales appealed her conviction and sentence. In a previous opinion, State v.
Morales,1 we affirmed her conviction and held that the sentencing court did not abuse its
discretion by inadequately considering youth as a mitigating factor but remanded to the
sentencing court to strike the criminal filing fee and interest accrual provision on nonrestitution
LFOs.
Morales filed a petition for review of youth as a mitigating factor issue in the Supreme
Court. Our Supreme Court granted review and remanded Morales I for this court to reconsider
our decision in light of State v. Delbosque, 195 Wash. 2d 106, 456 P.3d 806 (2020). Because
Delbosque makes clear that sentencing courts must meaningfully consider on the record how the
characteristics of youth may mitigate the culpability of a juvenile offender, we reverse our prior
holding that the sentencing court did not abuse its discretion during sentencing and remand for
1
No. 51279-3-II, (Wash. Ct. App. Apr. 7, 2020) (unpublished),
http://www.courts.wa.gov/opinions/pdf/D2%2051279-3-II%20Unpublished%20Opinion.pdf.
(Morales I).
No. 51279-3-II
the sentencing court to reconsider Morales’s youth. We further direct the sentencing court to
strike the criminal filing fee and interest accrual provision on nonrestitution LFOs on remand.
FACTS
The State charged 16-year-old Morales with one count of first degree murder and five
counts of first degree assault with a deadly weapon, alleging that Morales was an accomplice to
the drive-by shooting death of a 15-year-old boy. Morales ultimately entered a guilty plea to
second degree murder.
The State and defense counsel reminded the trial court that under State v. Houston-
Sconiers,2 it was obligated to consider Morales’s youth as a mitigating factor in determining her
sentence. The parties agreed to recommend the low end of the standard range. The trial court
considered that Morales had no criminal history and noted that, although she did not fire the gun,
she was nonetheless a “critical player” in the murder. Verbatim Report of Proceedings (VRP)
(Nov. 22, 2017) at 18. “So it is only because of the Houston-Sconiers case and the [S]upreme
[C]ourt’s order that the Court must . . . consider your age and the impact that has on your ability
to exercise good judgment that the Court is going to go along with the joint recommendation for
the low end.” VRP (Nov. 22, 2017) at 18-19.
The trial court sentenced Morales to 123 months of confinement—the low end of the
standard range. The trial court also imposed a $500 crime victim assessment, $100 DNA
(deoxyribonucleic acid) database fee, and $200 criminal filing fee and ordered that the LFOs would
bear interest from the date of the judgment until payment in full. The trial court found that Morales
lacked sufficient funds to prosecute an appeal and entered an order of indigency.
2
188 Wash. 2d 1, 21, 391 P.3d 409 (2017).
2
No. 51279-3-II
Morales appealed, and we affirmed her conviction and sentence but remanded to the
sentencing court to strike the criminal filing fee and interest accrual provision on nonrestitution
LFOs. Morales I, slip op. at 10. Morales filed a petition for review by the Supreme Court
arguing that the sentencing court abused its discretion by failing to adequately consider the
characteristics of her youth during sentencing. Our Supreme Court granted review and remanded
Morales I for this court to reconsider our decision in light of State v. Delbosque, 195 Wash. 2d 106.
ANALYSIS
I. YOUTH AS A MITIGATING FACTOR
The Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, prohibits appeal of a
standard range sentence. RCW 9.94A.585(1). However, a defendant may challenge the
procedure by which a standard range sentence is determined. State v. Garcia-Martinez, 88 Wn.
App. 322, 329, 944 P.2d 1104 (1997). Review in such cases “is limited to circumstances where
the court has refused to exercise discretion at all or has relied on an impermissible basis for
refusing to impose an exceptional sentence below the standard range.” Garcia-Martinez, 88 Wn.
App. at 330.
Courts have “an affirmative duty to ensure that proper consideration is given to the
juvenile’s ‘chronological age and its hallmark features.’” State v. Ramos, 187 Wash. 2d 420, 443,
387 P.3d 650 (2017) (quoting Miller v. Alabama, 567 U.S. 460, 477, 132 S. Ct. 2455, 183 L. Ed.
2d 407 (2012) (plurality opinion)). Those features include (1) mitigating circumstances of youth,
including the juvenile’s “‘immaturity, impetuosity, and failure to appreciate risks and
consequences’”; (2) the juvenile’s environment and family circumstances, the juvenile’s
participation in the crime, or the effect of familial and peer pressure; and (3) how youth impacts
3
No. 51279-3-II
any legal defense, as well as any factors suggesting that the child might be rehabilitated.
Houston-Sconiers, 188 Wash. 2d at 23 (quoting Miller, 567 U.S. at 477).
Courts are required to consider these differences during sentencing in order to comply
with the Eighth Amendment. Houston-Sconiers, 188 Wash. 2d at 19. When doing so, courts must
“fully and meaningfully” inquire into the individual circumstances of the particular juvenile
offender. State v. Solis-Diaz, 194 Wash. App. 129, 141, 376 P.3d 458 (2016), rev’d in part on
other grounds, 187 Wash. 2d 535 (2017). However, “age is not a per se mitigating factor
automatically entitling every youthful defendant to an exceptional sentence.” State v. O’Dell,
183 Wash. 2d 680, 695, 358 P.3d 359 (2015). Trial courts retain full discretion when considering
the imposition of an exceptional sentence based on mitigating circumstances associated with
youth. In re Pers. Restraint of Meippen, 193 Wash. 2d 310, 314, 440 P.3d 978 (2019).
Delbosque involved a resentencing hearing pursuant to the Miller-fix statute. 195 Wash. 2d
106 (citing RCW 10.95.030, .035). In sentencing Delbosque to a minimum term of 48 years in
prison, the sentencing court stated that it considered the appropriate factors but determined that
Delbosque’s attitude toward others was “reflective of the underlying crime,” and that the crime
“was not symptomatic of transient immaturity, but has proven over time to be a reflection of
irreparable corruption, permanent incorrigibility, and irretrievable depravity.” Delbosque, 195
Wash. 2d at 114, 116. On appeal, this court held that insufficient evidence supported the trial
court’s findings, and the Supreme Court affirmed. Delbosque, 195 Wash. 2d at 120. The Supreme
Court reiterated that when considering a defendant’s youth at a Miller hearing, a sentencing court
“‘must meaningfully consider how juveniles are different from adults.’” Delbosque, 195 Wash. 2d
at 121 (emphasis omitted) (quoting Ramos, 187 Wash. 2d at 434-35).
4
No. 51279-3-II
Here, the sentencing court acknowledged the application of Houston-Sconiers to
Morales’s sentencing, but did not expressly discuss any of the features of youth on the record.
Rather, the sentencing court focused on the fact that Morales was a “critical player” in the
murder. Although Morales did not request an exceptional downward sentence, and the
sentencing court said on the record that it considered Houston-Sconiers, our Supreme Court
precedent demands a more meaningful consideration of the Houston-Sconiers factors on the
record when sentencing a juvenile in adult court.
This case is similar to the recent Supreme Court decision in In re Pers. Restraint of
Domingo-Cornelio, 196 Wash. 2d 255, 474 P.3d 524 (2020). There, our Supreme Court held that a
petitioner proved he was actually and substantially prejudiced by the sentencing court’s failure to
consider mitigating circumstances related to his youth even though his appointed counsel did not
request an exceptional downward sentence. Domingo-Cornelio, 196 Wash. 2d at 268-69. The
Supreme Court reasoned, “Unless the court meaningfully considers youth and knows it has
absolute discretion to impose a lower sentence, we cannot be certain that an adult standard range
was imposed appropriately on a juvenile under Houston-Sconiers.” Domingo-Cornelio 196
Wash. 2d at 268. As was the case in Domingo-Cornelio, remand for meaningful consideration of
Morales’s youth on the record and resentencing if warranted is appropriate.
We reverse our prior holding and hold that the sentencing court abused its discretion by
not meaningfully considering Morales’s youth. Accordingly, we remand to the sentencing court
5
No. 51279-3-II
to fully consider the features of youth identified in Houston-Sconiers at resentencing and to
strike the $200 criminal filing fee and interest accrual provision on nonrestitution LFOs.3
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.
______________________________
Worswick, J.
______________________________
Lee, C.J.
______________________________
Melnick J.
3
In our previous opinion, we accepted the State’s concession that the sentencing court erred by
imposing a criminal filing fee and interest accrual provision on nonrestitution LFOs under State
v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018). We reiterate that holding.
6