IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

MICHAEL RANDALL LAUDERDALE,

Appellant.

In the Matter of the Personal Restraint of

MICHAEL RANDALL LAUDERDALE,

Petitioner.

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No. 37141-7-III

(Consolidated with

No. 36744-4-III)

UNPUBLISHED OPINION

SIDDOWAY, J. — Michael Lauderdale appeals the sentence of life without the 

possibility of parole imposed at his 2019 resentencing for an aggravated first degree 

murder he committed in 1994, when he was 19 years old. He contends the trial court 

abused its discretion by failing to recognize its discretion to impose a mitigated 

exceptional sentence, and his lawyer provided ineffective assistance of counsel by failing 

to advocate for such a sentence. 

In a personal restraint petition (PRP) that we consolidated with the appeal, Mr. 

Lauderdale argues that insufficient evidence supported the aggravating factor relied on by 

FILED

DECEMBER 24, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
Nos. 37141-7-III; consol. with No. 36744-4-III

State v. Lauderdale; In re Pers. Restraint of Lauderdale

2

the State in charging aggravated first degree murder: that the murder was committed in 

the course of, in furtherance of, or in immediate flight from the crime of rape in the first 

or second degree. 

The trial court and defense counsel correctly concluded that life without the 

possibility of parole was the only sentence the court could impose. Mr. Lauderdale’s 

PRP fails to present competent evidence that the State’s evidence of aggravated first 

degree murder at his 1995 trial was insufficient. 

We affirm Mr. Lauderdale’s sentence and dismiss his PRP. 

FACTS AND PROCEDURAL BACKGROUND

We draw basic facts about Michael Lauderdale’s crime from this court’s 

unpublished opinion in his original appeal.

On September 17, 1994, a jogger discovered the naked body of Jeremy Wood on 

Canyon Road Number Two in Wenatchee. State v. Lauderdale, 1996 WL 538806, at *1

(Wash. Ct. App. Sept. 24, 1996). There was a couch in the vicinity. The sheriff’s 

investigation collected evidence that included a tire track, drag marks, a condom wrapper, 

the victim’s jeans turned inside out, ligatures on the victim’s legs, and blood on the 

couch.

A sergeant with the Chelan County Sheriff’s Office learned from Mr. Wood’s 

family that he had gone to a party the night before. Persons present at the party reported 

that Mr. Wood left the party with Mr. Lauderdale, who was driving a car borrowed from 
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Brooc Adams. Mr. Lauderdale lived in a trailer in the backyard of Ms. Adams’s family’s 

home.

Mr. Lauderdale agreed to speak with a detective, and initially told him that he had 

driven Mr. Wood to the top of Fifth Street and dropped him off.

In a continued interview with another officer, however, Mr. Lauderdale stated that 

he and Mr. Wood had driven to Canyon Road Number Two, where they kissed and 

eventually had consensual anal sex on a couch they saw through a barbed wire fence. 

Mr. Lauderdale said that Mr. Wood’s death was an accident: that after Mr. Lauderdale

got in the car, Mr. Wood stopped to urinate, and when Mr. Lauderdale revved the engine 

as a joke, he accidentally ran over Mr. Wood. When he discovered Mr. Wood was dead, 

he pulled the body back to the couch to cover up the accident. 

Investigators with the sheriff’s department found Mr. Lauderdale’s story

inconsistent with the evidence and concluded a beating had occurred. Blood on a 

baseball bat later found 50 feet from where Mr. Wood’s body was found proved to match

a blood sample taken from Mr. Wood.

Dr. Gerald Rappe performed an autopsy on Mr. Wood from which he concluded 

that the cause of death was five blows to the head, which was the only significant injury.

There were no marks on Mr. Wood’s legs indicating any struggle against the ligatures. 

There was a bruise on his hand consistent with a defense wound. Dr. Rappe found feces 
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on Mr. Wood’s buttocks and inner thighs. Since Dr. Rappe found no trauma to Mr. 

Wood’s anus or rectum, he believed sex occurred after the victim was dead. 

Ms. Adams’s stepfather, who owned the trailer in which Mr. Lauderdale lived,

eventually identified the bloodied bat as his Louisville Slugger, pointing to his carved-in 

initials, J.S. Shortly before trial the defense received an additional police report revealing 

that Ms. Adams had used the bat the day Mr. Woods was killed, it was not in the car 

when she loaned it to Mr. Lauderdale, and it was not on the back porch when she looked 

for it a few days later. Mr. Lauderdale recognized that this evidence suggesting that he 

took the bat with him when he returned to the party was relevant to the issue of 

premeditation. Claiming surprise, he sought a continuance of trial, which was denied.

A jury found Mr. Lauderdale guilty of both first degree murder with aggravating 

factors and first degree felony murder. He was sentenced to life without the possibility of 

parole. His appeal, in which he claimed only ineffective assistance of counsel, was 

unsuccessful. 

Over 20 years later, in January 2019, Mr. Lauderdale filed a CrR 7.8 motion in 

which he raised two issues. The first was that his conviction for felony murder should be 

vacated on double jeopardy grounds. The second was that insufficient evidence was 

presented in support of the alleged aggravator that he committed the murder in the course 

of, in furtherance of, or in immediate flight from a first or second degree rape. He 
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pointed to the statement in this court’s opinion on appeal that Dr. Rappe believed sex

occurred after Mr. Wood was dead. While a crime, that would not be rape. 

The trial court, the Honorable Lesley Allan, transferred the portion of Mr. 

Lauderdale’s motion challenging evidence sufficiency to this court for consideration as a 

PRP. In moving for such a transfer, the State pointed out that despite an extensive search 

for the trial transcript, it could not be found; that Mr. Lauderdale had not made a 

substantial showing that he was entitled to relief or that resolution of the CrR 7.8 motion 

required a factual hearing; and that under the circumstances CrR 7.8(c)(2) required 

transfer. Judge Allan agreed that the State had made “what appears to be a diligent 

search for the transcript,” “it appears that, based on the passage of time, it has been 

disposed of,” and, “[i]t does not appear that there is any mechanism available now to 

accurately recreate it.” Clerk’s Papers (CP) at 83.

Having concluded that Mr. Lauderdale was entitled to have the felony murder 

conviction removed from his judgment and sentence, Judge Allan directed the State to 

prepare an amended judgment and sentence. In a letter to the parties, she stated that Mr. 

Lauderdale could sign and return the State’s proposed amended judgment and sentence 

or, “In the alternative, the court will approve an order to transport Mr. Lauderdale to the 

Chelan County Regional Justice Center to appear for another sentencing hearing.” CP at 

84. 
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Mr. Lauderdale moved for appointment of counsel to represent him at

resentencing. Judge Allan granted the motion. 

The State then moved to limit the resentencing. Specifically, it asked that Mr. 

Lauderdale appear telephonically, that he be precluded from arguing for a change to the 

length of his sentence, and that he be denied allocution. The State’s motion was heard by 

the Honorable Kristine Ferrera. Mr. Lauderdale’s counsel opposed the motion in part, 

stating, “[E]ven if there is nothing the Court can do regarding a punishment as far as how 

much time he can get or anything, he’s still allowed allocution.” Report of Proceedings 

(RP) (May 30, 2019) at 23. Judge Ferrera ordered a resentencing that would include Mr. 

Lauderdale’s right to allocute, but ruled that he was prohibited from arguing for a 

different sentence. 

At a resentencing hearing conducted by Judge Ferrera two weeks later, defense 

counsel agreed that life without parole was the only possible sentence. Mr. Lauderdale 

apologized to the court and to those present for his crime and for reopening old wounds, 

discussed the rough start he had in life, and talked about the progress he had made in 

prison. Judge Ferrera apologized to the victim’s friends and family for subjecting them 

to a second resentencing. She acknowledged that Mr. Lauderdale was doing the best he 

could in prison and encouraged him to stay on that path. An amended judgment and 

sentence was entered that identified only the aggravated first degree murder conviction 

and imposed a sentence of life without the possibility of parole. 
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State v. Lauderdale; In re Pers. Restraint of Lauderdale

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Mr. Lauderdale appealed. This court consolidated Mr. Lauderdale’s PRP with the

appeal.

ANALYSIS

DIRECT APPEAL

Relying on a number of United States Supreme Court and Washington decisions 

that consider current brain science in applying constitutional and statutory provisions to 

criminal sentencing, Mr. Lauderdale asks us to hold that the trial court enjoyed discretion 

to impose a lesser sentence than life without the possibility of parole. His alternative 

argument, that he received ineffective assistance of counsel because his lawyer did not 

advocate for such a sentence, depends on the same premise.

It can be argued from current brain science that Mr. Lauderdale’s offense conduct 

might be partially explained by brain immaturity similar to the juvenile offenders in the 

cases on which he relies. The problem with his argument is that those cases involve 

either protection provided by the Eighth Amendment to the United States Constitution to 

defendants younger than age 18 at the time they committed their crime, or to sentencing

under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, which includes

provisions for mitigated sentencing. Neither applies to Mr. Lauderdale.

Brain science and the Eighth Amendment

The Eighth Amendment to the federal constitution prohibits the infliction of “cruel 

and unusual punishment.” For the most part, the United States Supreme Court’s 
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precedents applying the Eighth Amendment “consider punishments challenged not as 

inherently barbaric but as disproportionate to the crime.” Graham v. Florida, 560 U.S. 

48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Disproportionate punishment was at 

issue in three cases decided by the United States Supreme Court in the last 15 years in 

which, after taking into consideration current brain science, it applied the Eighth 

Amendment to invalidate, respectively, the death penalty for juvenile offenders under age 

18, Roper v. Simmons, 543 U.S. 551, 572-73, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); the 

sentence of life without parole for juvenile nonhomicide offenders, Graham, 560 U.S. at 

88; and any mandatory sentence of life without parole for juvenile homicide offenders,

Miller v. Alabama, 567 U.S. 460, 489, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The 

science relied on in the decisions was summarized in Miller:

Roper and Graham establish that children are constitutionally different 

from adults for purposes of sentencing. Because juveniles have diminished 

culpability and greater prospects for reform, we explained, “they are less 

deserving of the most severe punishments.” Graham, 560 U.S., at 68, 130 

S. Ct., at 2026. Those cases relied on three significant gaps between 

juveniles and adults. First, children have a “‘lack of maturity and an 

underdeveloped sense of responsibility,’” leading to recklessness, 

impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125 S. Ct. 

1183. Second, children “are more vulnerable . . . to negative influences and 

outside pressures,” including from their family and peers; they have limited 

“contro[l] over their own environment” and lack the ability to extricate 

themselves from horrific, crime-producing settings. Id. And third, a 

child’s character is not as “well formed” as an adult’s; his traits are “less 

fixed” and his actions less likely to be “evidence of irretrievabl[e] 

deprav[ity].” Id., at 570, 125 S. Ct. 1183.
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State v. Lauderdale; In re Pers. Restraint of Lauderdale

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567 U.S. at 471 (alterations in original). Miller held that “a judge or jury must have the 

opportunity to consider mitigating circumstance before imposing the harshest possible 

penalty for juveniles.” Id. at 489.

Mr. Lauderdale’s sentence for aggravated murder was imposed under former 

RCW 10.95.030(1) (1993), which provided that “[e]xcept as provided in subsection (2) of 

this section [which imposed the death penalty in cases not meriting leniency], any person 

convicted of the crime of aggravated first degree murder shall be sentenced to life 

imprisonment without possibility of release or parole.” (Emphasis added.) Further 

driving home the mandatory nature of the sentence, the statute continued:

A person sentenced to life imprisonment under this section shall not have 

that sentence suspended, deferred, or commuted by any judicial officer and 

the indeterminate sentence review board or its successor may not parole 

such prisoner nor reduce the period of confinement in any manner 

whatsoever including but not limited to any sort of good-time calculation. 

The department of social and health services or its successor or any 

executive official may not permit such prisoner to participate in any sort of 

release or furlough program.

To comply with Miller, the Washington Legislature amended RCW 10.95.030 in 

2014 to include special provisions for juveniles convicted of aggravated first degree 

murder. As amended, courts sentencing persons convicted of aggravated first degree 

murder for an offense committed prior to the person’s 18th birthday now impose an 

indeterminate sentence, with a maximum term of life imprisonment but a minimum term 

of as little as 25 years. Those committing such a murder before their 16th birthday 
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State v. Lauderdale; In re Pers. Restraint of Lauderdale

10

receive a 25 year minimum term. Those committing such a murder after their 16th 

birthday but before their 18th birthday receive a minimum term of no less than 25 years. 

RCW 10.95.030(3)(a)(ii). The statute provides that in setting the minimum term, the 

court “must take into account mitigating factors that account for the diminished 

culpability of youth as provided in Miller v. Alabama.” RCW 10.95.030(3)(b). 

The legislature also adopted RCW 10.95.035(1), which provides that persons who 

were earlier sentenced to a term of life without the possibility of parole “for an offense 

committed prior to their eighteenth birthday” shall be returned to court for sentencing 

consistent with RCW 10.95.030. The provision plainly does not apply to Mr. Lauderdale, 

who was approaching 19 years and 8 months old when he murdered Mr. Wood.

The United States Supreme Court has consistently drawn a bright line at age 18

for youth-based limitations on sentencing discretion. See Miller, 567 U.S. at 465

(“[M]andatory life without parole for those under the age of 18 at the time of their crimes 

violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”); 

Roper, 543 U.S. at 578 (holding that “[t]he Eighth and Fourteenth Amendments forbid 

imposition of the death penalty on offenders who were under the age of 18 when their 

crimes were committed”; Graham, 560 U.S. at 74 (citing Roper’s recognition of the age 

of 18 as “the point where society draws the line for many purposes between childhood 

and adulthood”). Asked to extend Miller to defendants who were 18 or older at the time 

of their offenses, every federal circuit court to consider the issue has refused. See, e.g.,
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State v. Lauderdale; In re Pers. Restraint of Lauderdale

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United States v. Sierra, 933 F.3d 95, 97 (2d Cir. 2019), cert. denied, 140 S. Ct. 2540, 206 

L. Ed. 2d 480 (2020); United States v. Dock, 541 F. App’x 242, 245 (4th Cir. 2013);

United States v. Chavez, 894 F.3d 593, 609 (4th Cir.), cert. denied, 139 S. Ct. 278, 202 L.

Ed. 2d 184 (2018); In re Frank, 690 F. App’x 146 (5th Cir. 2017); United States v. 

Marshall, 736 F.3d 492, 498-500 (6th Cir. 2013), cert. denied, 573 U.S. 922, 134 S. Ct. 

2832, 189 L. Ed. 2d 795 (2014); Wright v. United States, 902 F.3d 868, 872 (8th Cir. 

2018), cert. denied, 139 S. Ct. 1207, 203 L. Ed. 2d 232 (2019); Melton v. Florida Dep’t 

of Corr., 778 F.3d 1234, 1235, 1237 (11th Cir. 2015).

The Eighth Amendment cases cited by Mr. Lauderdale do not hold or imply that a 

State may not mandate life without possibility of parole sentences on adult murderers.

Brain science as supporting a mitigated exceptional sentence under the SRA

Although citing the Eighth Amendment cases, Mr. Lauderdale principally argues 

that the trial court failed to recognize discretion that exists by virtue of the Washington 

Supreme Court’s decision in State v. O’Dell, 183 Wn.2d 680, 696, 358 P.3d 359 (2015). 

That case involved sentencing under the SRA, however, and specifically whether youth is 

a factor that legally supports a departure from the standard sentence range.

RCW 9.94A.535 provides that the court may impose a sentence outside the 

standard sentence range for an offense if it finds substantial and compelling reasons 

justifying an exceptional sentence. RCW 9.94A.535(1) provides a nonexclusive list of 

mitigating circumstances that justify a sentence below the standard range. To determine 
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State v. Lauderdale; In re Pers. Restraint of Lauderdale

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whether a circumstance that is not on the list supports departure from the standard 

sentence range, courts apply a two-part test. “First, a factor cannot support the 

imposition of an exceptional sentence if the legislature necessarily considered that factor 

when it established the standard sentence range,” and “[s]econd, . . . a factor must be 

‘sufficiently substantial and compelling to distinguish the crime from others in the same 

category.’” O’Dell, 183 Wn.2d at 690 (quoting State v. Alexander, 125 Wn.2d 717, 725, 

888 P.2d 1169 (1995)).

In O’Dell, our state Supreme Court held that youth can qualify as a mitigating 

factor under this test, even for defendants who commit crimes at age 18 or older, and 

even absent evidence that the defendant’s youth actually affected his actions. The court 

reassessed prior decisions holding otherwise because they were made without the benefit 

of the modern scientific literature discussed in Miller. Id. at 695. And see State v. 

Houston-Sconiers, 188 Wn.2d 1, 9, 22, 391 P.3d 409 (2017) (neither the “Miller-fix” nor 

enhancement statutes prevented trial court from imposing exceptional sentences on 

juvenile defendants whose charges brought them automatically into adult court). 

Mr. Lauderdale’s sentence was governed by RCW 10.95.030 rather than the SRA, 

however, so RCW 9.94A.535 has no application. The judicial discretion that the 

legislature has granted to courts sentencing under the SRA has been withheld from courts 

sentencing persons age 18 and older under RCW 10.95.030.
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Article I, section 14 of the Washington Constitution

Finally, Mr. Lauderdale cites State v. Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018), 

in which our Supreme Court held that the greater protection against “cruel punishment” 

provided by article I, section 14 of the Washington Constitution than is provided by the 

Eighth Amendment to the United States Constitution has consequences for RCW 

10.95.030. He quotes Bassett as holding that the Washington constitutional provision

“prohibits sentencing juveniles to life without the possibility of parole, rendering RCW 

10.95.030(a)(ii) unconstitutional,” but without identifying the context. Br. of Appellant 

at 9. Bassett declared the provision unconstitutional in only one respect: for courts 

sentencing juveniles over age 16 for aggravated first degree murder, it invalidated the 

court’s discretion to set life without parole as the minimum term of confinement. Bassett,

192 Wn.2d at 91. Miller had not foreclosed life without parole sentences for juveniles.

Bassett did not hold or imply that RCW 10.95.030 was unconstitutional in 

mandating life without parole for persons who were 18 or older at the time they 

committed aggravated first degree murder.

To summarize, Mr. Lauderdale relies on brain science that might ultimately 

persuade the Washington Legislature (for statutory purposes) or lead to a consensus (for 

federal and state constitutional purposes) that characteristics of his 19 year and 8 month 
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brain at the time he murdered Mr. Wood entitle him to resentencing.1 Mr. Lauderdale

fails to identify any legal basis on which Judge Ferrera could have imposed a sentence 

other than life without the possibility of parole, however. Accordingly, the lawyer 

representing Mr. Lauderdale at the resentencing did not provide deficient representation 

in failing to advocate for a different sentence.

STATEMENT OF ADDITIONAL GROUNDS

In a pro se statement of additional grounds, Mr. Lauderdale raises four. His 

second—that his lawyer at the resentencing provided ineffective assistance of counsel by 

failing to advocate for an alternative sentence—was adequately addressed by counsel and 

need not be addressed further. See RAP 10.10(a). We address the remaining three.

Lack of a neutral fact finder. Mr. Lauderdale argues that Judge Ferrera was not a 

neutral fact finder and exhibited bias. He points to (1) the fact that at the hearing on the 

State’s motion to limit his resentencing, Judge Ferrara briefly recessed to consult Judge 

Allan about her intention in ordering the resentencing, and (2) Judge Ferrara’s apologies 

to Mr. Wood’s family and friends for “having to go through this again.” RP (May 30, 

2019) 45.

 

1 Research continues in this important area. See, e.g., Grace Icenogle, et al.,

Adolescents’ Cognitive Capacity Reaches Adult Levels Prior to Their Psychosocial 

Maturity: Evidence for a “Maturity Gap” in a Multinational, Cross-Sectional Sample,

43 L. & HUM. BEHAV. 69, 83 (2019) (“The present study reaffirms the complexity of 

defining ‘maturity’ or ‘adulthood’ based on psychological grounds alone. Developmental 

science ought to inform, but not dictate, where the law sets age boundaries.”).
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With respect to Judge Ferrara consulting Judge Allan, Mr. Lauderdale argues that

defendants have a right “to have factual disputes resolved by a neutral fact finder.” State 

v. Marino, 100 Wn.2d 719, 725, 674 P.2d 171 (1984). Whether the court would conduct 

a full resentencing or make a ministerial correction presented a legal issue, not a factual 

dispute. Mr. Lauderdale does not explain why attempting to discern the meaning of an 

earlier ruling by another judge demonstrates a lack of neutrality. In any event, as Judge 

Ferrera reported after the brief recess, Judge Allan “[did] not feel the need to weigh in.” 

RP (May 30, 2019) at 25. 

Mr. Lauderdale argues Judge Ferrara’s apologies to Mr. Wood’s family and 

friends demonstrated bias and argues that due process, the appearance of fairness doctrine 

and the Code of Judicial Conduct require a judge to disqualify herself if she is biased 

against a party or her impartiality may reasonably be questioned. State v. Dominguez, 81 

Wn. App. 325, 328, 914 P.2d 141 (1996). Prejudice is not presumed, so a party must 

support a claim of bias with evidence. Id. at 328-29; e.g., State v. Gamble, 168 Wn.2d 

161, 188, 225 P.3d 973 (2010) (comments about the strength of the State’s evidence 

made outside the presence of the jury are not evidence of bias). If a party presents 

sufficient evidence of bias, “[t]he test is whether a reasonably prudent and disinterested 

observer would conclude [the party] obtained a fair, impartial, and neutral trial.” 

Dominguez, 81 Wn. App. at 330.
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Mr. Lauderdale made similarly apologetic remarks to Mr. Wood’s family and 

friends during his allocution. See RP (May 30, 2019) at 41. The statements cited by Mr. 

Lauderdale are not evidence of bias. 

“Invited error” and “prosecutorial misconduct.” Mr. Lauderdale argues it is a 

“manifest injustice” that the consideration of youth available to juveniles under the 

Eighth Amendment and to young adults sentenced under the SRA is not given to 

defendants in his situation. While explaining why he believes the law should be 

otherwise, Mr. Lauderdale fails to cite relevant legal authority and provide reasoned 

argument explaining why we can and should disregard plain statutory language and clear 

precedent. RAP 10.3(a)(5); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 

290 (1998) (an argumentative assertion with a lack of reasoned argument does not merit 

judicial consideration).

PERSONAL RESTRAINT PETITION

Finally, we turn to the issue in Mr. Lauderdale’s CrR 7.8 motion that was 

transferred to us for consideration as a PRP.

At the time of Mr. Wood’s murder, and continuing to today, a person is guilty of 

aggravated first degree murder if he or she commits premediated murder as provided by 

RCW 9A.32.030(1)(a) and a statutory aggravating circumstance exists. RCW 10.95.020 

and former RCW 10.95.020 (1994). The aggravating circumstance relied on by the State 

in Mr. Lauderdale’s case was that the murder was committed in the course of, in 
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furtherance of, or in immediate flight from rape in the first or second degree. Former 

RCW 10.95.020(9)(b) (1994). 

Upon transfer to the Court of Appeals, a CrR 7.8 motion becomes subject to the

rigorous pleading standards applicable to personal restraint petitions set forth in RAP 

16.7. In re Pres. Restraint of Ruiz-Sanabria, 184 Wn.2d 632, 639, 362 P.3d 758 (2015). 

We will grant relief if petitioners “show that they were actually and substantially 

prejudiced by constitutional error or that their trials suffered from a fundamental defect of 

a nonconstitutional nature that inherently resulted in a complete miscarriage of justice.” 

In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). “It is the 

petitioner’s burden to establish this ‘threshold requirement.’” In re Pers. Restraint of 

Moncada, 197 Wn. App. 601, 605, 391 P.3d 493 (2017) (quoting In re Pers. Restraint of 

Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005)). 

For a petitioner to meet this burden, “a PRP must present competent evidence in 

support of its claims.” Id. The petitioner is required to “identify ‘the evidence available 

to support the factual allegations’ and why the petitioner is entitled to collateral relief for 

one or more reasons listed in RAP 16.4(c).” Ruiz-Sanabria, 184 Wn.2d at 639 (quoting 

RAP 16.7(a)(2)(i)). It is a well established principle that

“[o]n a partial or incomplete record, the appellate court will presume any 

conceivable state of facts within the scope of the pleadings and not 

inconsistent with the record which will sustain and support the ruling or 

decision complained of; but it will not, for the purpose of finding reversible 

error, presume the existence of facts as to which the record is silent.”
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State v. Jasper, 174 Wn.2d 96, 123-24, 271 P.3d 876 (2012) (alterations in original) 

(quoting Barker v. Weeks, 182 Wash. 384, 391, 47 P.2d 1 (1935)).

Lacking a trial transcript, Mr. Lauderdale places principal reliance on a statement 

in this court’s 1996 opinion and on a copy of Dr. Rappe’s autopsy report. This court 

stated in the opinion, “Since [Dr. Rappe] found no trauma to the anus or rectum the 

doctor believed sex occurred after the victim was dead.” Lauderdale, 1996 WL 538806,

at *2. Dr. Rappe’s autopsy report states in relevant part:

The rather loose bindings to the ankles appear to have been either 

postmortem or else the decedent was voluntarily bound antemortem 

and never struggled against them. There are no abrasions or contusions 

associated with these bindings.

Postmortem anal penetration is quite possible with no signs of injury 

whatever.

CP at 36. Mr. Lauderdale argues that evidence penetration occurred after Mr. Wood was 

dead would not establish first or second degree rape because it would not be a crime 

against a person.

At the time Mr. Wood was killed, first degree rape was defined by former RCW 

9A.44.040(1) (1983), which provided that a person was guilty of first degree rape

when such person engages in sexual intercourse with another person by 

forcible compulsion where the perpetrator or an accessory:

(a) Uses or threatens to use a deadly weapon or what appears to be a 

deadly weapon; or

(b) Kidnaps the victim; or
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(c) Inflicts serious physical injury; or

(d) Feloniously enters into the building or vehicle where the victim 

is situated.

“Forcible compulsion” was then defined to mean, as it does now, “physical force which 

overcomes resistance, or a threat, express or implied, that places a person in fear of death 

or physical injury to herself or himself or another person, or in fear that she or he or 

another person will be kidnapped.” Former RCW 9A.44.010(6) (1993).

Former RCW 9A.44.050(1) (1993) provided that a person was guilty of second 

degree rape in five circumstances, two of which are relevant here:

when, under circumstances not constituting rape in the first degree, the 

person engages in sexual intercourse with another person:

(a) By forcible compulsion;

(b) When the victim is incapable of consent by reason of being 

physically helpless or mentally incapacitated.

The test for sufficiency of the evidence is “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). All reasonable inferences from the evidence are drawn in favor of the State and 

are interpreted strongly against the defendant. Id. 

Contrary to Mr. Lauderdale’s argument, there are conceivable states of fact, not 

inconsistent with the record, which will sustain the jury’s verdict. Mr. Lauderdale told 

police that Mr. Wood was alive when the two had anal intercourse. If Mr. Wood 
Nos. 37141-7-III; consol. with No. 36744-4-III

State v. Lauderdale; In re Pers. Restraint of Lauderdale

20

submitted to anal intercourse because Mr. Lauderdale threatened him with a baseball 

bat—a deadly weapon—the intercourse might not cause injury. Mr. Lauderdale told 

officers that he had used a condom and baby oil as a lubricant, and both were found in the 

vicinity of the couch. If threats of force were used to take Mr. Wood to a remote location 

and tie him up, a finding of kidnaping would support a finding of first degree rape.2 And,

of course, serious physical injury was inflicted on Mr. Wood.

Alternatively, jurors could have concluded that Mr. Wood was incapable of 

consent by being physically helpless. Mr. Lauderdale told officers that Mr. Wood had 

consumed quite a lot of alcohol and smoked marijuana at the party, was quite intoxicated, 

had passed out on the couch, and that Mr. Lauderdale had a hard time getting him awake 

and getting him back through the fence to the pullout area where the car was parked. The 

host of the party Mr. Lauderdale and Mr. Wood attended said that when Mr. Wood left, 

his condition was “shitty,” which he clarified as meaning real intoxicated to the point that 

his eyes would roll back in his head. CP at 40. That Mr. Wood was extremely 

 

2 At the time of the crime, “kidnap” was not defined in the rape statute and first 

and second degree kidnaping were crimes. Former RCW 9A.40.010(1) (1975). In State 

v. Pawling, 23 Wn. App. 226, 229-32, 597 P.2d 1367 (1979), the Washington Supreme 

Court, presented with a challenge to how kidnaping had been defined when charged as an 

element of a first degree rape, had approved the following instruction:

A person commits kidnapping [sic] when he intentionally abducts another 

person. “Abduct means to restrain a person by either (a) secreting or 

withholding the person in a place where that person is not likely to be found 

or (b) using or threatening to use deadly force.”
Nos. 37141-7-III; consol. with No. 36744-4-III

State v. Lauderdale; In re Pers. Restraint of Lauderdale

21

intoxicated is also corroborated by Dr. Rappe’s report that Mr. Wood’s blood ethanol 

level was 0.30 g/100 ml, almost four times the legal limit.

Dr. Rappe’s report merely stated that “[p]ostmortem anal penetration is quite 

possible with no signs of injury whatever.” CP at 36 (emphasis added). His report did 

not address the possibility that there were no signs of injury because Mr. Wood offered 

no resistance, either because he was being threatened with a deadly weapon or because he 

had passed out. 

Mr. Lauderdale fails to present competent evidence that the State failed to prove 

the aggravated first degree murder charge.

Mr. Lauderdale’s 2019 amended judgment and sentence is affirmed. His PRP is 

dismissed.

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_____________________________

Siddoway, J.

I CONCUR:

_____________________________

Korsmo, A.C.J.
No. 37141-7-III cons. with No. 36744-4-III

FEARING, J. (concurring) — Michael Lauderdale’s petition for review raises the 

question: does cruel and unusual punishment clause strictures demand that the sentencing 

court be permitted to consider the youth of a nineteen-year-old convicted of aggravated 

first degree murder, such that the court can impose a sentence other than life without the 

possibility of parole? Conversely, must a Washington State sentencing court, pursuant to 

RCW 10.95.030(1), always sentence an offender who commits aggravated first degree 

murder at the age of 18 or above to a sentence of life without parole? The two questions 

challenge the constitutionally of RCW 10.95.030(1) when applied to a young adult. 

Science supports an affirmative answer to the first question and a negative answer to the 

second question. Principles emanating from United States Supreme Court decisions on 

the subject of youth offenders and rationales behind the Eighth Amendment to the United 

States Constitution and article I, section 14 of the Washington Constitution provide the 

same answers. Case law disagrees. 

RCW 10.95.030(1) governs this appeal. The statute declares:

Except as provided in subsections (2) and (3) of this section, any 

person convicted of the crime of aggravated first degree murder shall be 

sentenced to life imprisonment without possibility of release or parole. A 
No. 37141-7-III consolidated with No. 36744-4-III

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2

person sentenced to life imprisonment under this section shall not have that 

sentence suspended, deferred, or commuted by any judicial officer and the 

indeterminate sentence review board or its successor may not parole such 

prisoner nor reduce the period of confinement in any manner whatsoever 

including but not limited to any sort of good-time calculation. The 

department of social and health services or its successor or any executive 

official may not permit such prisoner to participate in any sort of release or 

furlough program.

(Emphasis added.) RCW 10.95.030(3), in turn, allows a sentence lesser in degree than 

life for one, who, while under the age of eighteen, commits the aggravated murder. 

When sentencing a juvenile convicted of aggravated first degree murder, the court must 

consider:

mitigating factors that account for the diminished culpability of 

youth as provided in Miller v. Alabama, [567 U.S. 460,] 132 S. Ct. 2455 

[183 L. Ed. 2d 407] (2012) including, but not limited to, the age of the 

individual, the youth’s childhood and life experience, the degree of 

responsibility the youth was capable of exercising, and the youth’s chances 

of becoming rehabilitated.

RCW 10.95.030(3)(b). 

Petitioner Michael Lauderdale committed aggravated first degree murder at age 

19. He requests, however, that we reverse his life without the possibility of parole 

sentence and remand for the resentencing court to consider reducing his sentence because 

of his youthful age. 

The United States Supreme Court has announced various underlying principles for 

the assessment of when a punishment violates the Eighth Amendment. I mention two of 

those guiding conventions. First, the Eighth Amendment’s cruel and unusual punishment 

clause prohibits grossly disproportionate sentences based on the nature of the offense or 
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3

the characteristics of the offender. Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 

544, 54 L. Ed. 793 (1910). A sentence disproportionate to the crime or undeserving of 

the offender constitutes cruel and unusual punishment. Second, a sentence that serves no 

penological purpose constitutes cruel and unusual punishment. Graham v. Florida, 560 

U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 

571, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Stated differently, a sanction is beyond the 

State’s authority to inflict if it makes no measurable contribution to acceptable penal 

goals. Weems v. United States, 217 U.S. at 367. Life sentences for those age 19 at the 

time of the crime, even aggravated first degree murder, will generally contravene both of 

these rationales behind the cruel and unusual punishment clause because of the 

characteristic of the offender and a disconnect with goals behind punishment. 

The United States Supreme Court has declared that children are “constitutionally 

different” from adults for purposes of sentencing. Miller v. Alabama, 567 U.S. 460, 471, 

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In Miller, the Court strongly inferred, if not 

held, that no juvenile could receive a lifetime sentence for any crime unless the 

sentencing court finds the juvenile to be a “rare juvenile offender whose crime reflects 

irreparable corruption.” Miller v. Alabama, 567 U.S. at 479-80. Because of the 

constitutional nature of children, including teenagers, the Miller Court mandated that a 

sentence follow a process that incorporates consideration of the offender’s chronological 

age and its hallmark features and other mitigating features before imposing life without 

parole. The attended characteristics include: chronological age, immaturity, impetuosity, 
No. 37141-7-III consolidated with No. 36744-4-III

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failure to appreciate risks and consequences, the surrounding family and home 

environment, the circumstances of the homicide offense, including the extent of the 

offender’s participation in the conduct and any pressures from friends or family affecting 

him, the inability to deal with police officers and prosecutors, incapacity to assist an 

attorney in his or her defense, and the possibility of rehabilitation. Miller v. Alabama, 

567 U.S. at 477; State v. Houston-Sconiers, 188 Wn.2d 1, 23, 391 P.3d 409 (2017). The 

United States Supreme Court did not rule that any one factor controls. 

The United States Supreme Court, in Miller v. Alabama and other decisions, has 

explained the reason behind distinctive sentencing for youth. Adolescent brains are not 

yet fully mature in regions and systems related to higher order executive functions such 

as impulse control, planning, and risk avoidance. Miller v. Alabama, 567 U.S. at 475 n.5. 

Children’s lack of maturity and an underdeveloped sense of responsibility lead to 

recklessness, impulsivity, and heedless risk taking. Miller v. Alabama, 567 U.S. at 471. 

Children are more vulnerable to negative influence and outside pressure from family and 

peers, have limited control over their environments, and lack the ability to extricate 

themselves from horrific, crime-producing settings. Miller v. Alabama, 567 U.S. at 471. 

Because a child’s character is not as well-formed as an adult’s, the child’s traits are less 

fixed, and his actions are less likely to be evidence of irretrievable depravity. Miller v. 

Alabama, 567 U.S. at 471. Only a relatively small proportion of adolescents who engage 

in illegal activity develop entrenched patterns of problem behavior. Roper v. Simmons, 

543 U.S. at 570 (2005). 
No. 37141-7-III consolidated with No. 36744-4-III

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Because of the nature of adolescence, lifetime sentences of juvenile offenders, 

even when committing a horrible crime, do not further penological goals. Miller v. 

Alabama, 567 U.S. at 472. Deterrence supplies a flawed rationale for punishment 

because of juveniles’ impulsivity and inability to consider the consequences of their 

actions. Miller v. Alabama, 567 U.S. at 472. Retribution’s focus on blameworthiness 

does not justify a life without parole sentence because juveniles have severely diminished 

moral culpability. Miller v. Alabama, 567 U.S. at 472. Incapacitation fails to justify a 

long sentence because adolescent development diminishes the likelihood that an offender 

forever will be a danger to society. Miller v. Alabama, 567 U.S. at 472-73. Finally, 

rehabilitation does not justify a life without parole sentence because such a sentence 

precludes hope for a child’s ultimate rehabilitation. Miller v. Alabama, 567 U.S. at 473. 

A lifetime sentence not only conflicts with the rationales behind criminal justice, 

but also thwarts the aims of punishment. For youth, life without parole presents an 

especially harsh punishment because the juvenile will almost inevitably serve more years 

and a greater percentage of his life in prison than an adult offender. In Graham v. 

Florida, 560 U.S. 48 (2010), the Court likened life without parole sentences to the death 

penalty for juveniles. The Graham Court observed: 

[A] categorical rule [barring life without parole sentences] gives all 

juvenile nonhomicide offenders a chance to demonstrate maturity and 

reform. The juvenile should not be deprived of the opportunity to achieve 

maturity of judgment and self-recognition of human worth and potential.

. . . Life in prison without the possibility of parole gives no chance for 

fulfillment outside prison walls, no chance for reconciliation with society, 

no hope. Maturity can lead to that considered reflection which is the 
No. 37141-7-III consolidated with No. 36744-4-III

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6

foundation for remorse, renewal, and rehabilitation. A young person who 

knows that he or she has no chance to leave prison before life’s end has 

little incentive to become a responsible individual. In some prisons, 

moreover, the system itself becomes complicit in the lack of development.

. . . A categorical rule against life without parole for juvenile nonhomicide 

offenders avoids the perverse consequence in which the lack of maturity 

that led to an offender’s crime is reinforced by the prison term.

Graham v. Florida, 560 U.S. at 79. 

Graham v. Florida noted that corrections facilities often deny defendants serving 

life without parole with access to vocational training and other rehabilitative services that 

are available to other inmates. For juvenile offenders, who are most in need of and 

receptive to rehabilitation, the absence of rehabilitative opportunities or treatment makes 

the disproportionality of the sentence all the more evident. Graham v. Florida, 560 U.S. 

at 74. 

As a general rule under Washington precedent, sentencing courts, in order to 

comply with the Eighth Amendment, must consider the mitigating qualities of youth in 

order to impose a proportional punishment based on immature qualities. State v.

Houston-Sconiers, 188 Wn.2d 1, 19 n.4 (2017). In turn, sentencing courts must exercise 

discretion, and they hold authority, to impose any sentence below the otherwise 

applicable Sentencing Reform Act of 1981 (SRA), ch. 9.94a RCW, range or sentence 

enhancements. In re Personal Restraint of Ali, 196 Wn.2d 220, 226, 474 P.3d 507 

(2020). 

Michael Lauderdale was age 19 at the time of his crime. Science and legal 

decisions recognize that the cognitive traits that distinguish juveniles from adults do not 
No. 37141-7-III consolidated with No. 36744-4-III

State v. Lauderdale; Pers. Restraint Pet. Of Lauderdale

7

disappear when an individual turns 18. Roper v. Simmons, 543 U.S. 551, 574 (2005); 

United States v. Chavez, 894 F.3d 593, 609 (4th Cir. 2018). Immaturity and childishness 

do not end at age seventeen. The parts of the brain involved in behavioral control 

continue to develop well into a person’s twenties. State v. O’Dell, 183 Wn.2d 680, 692 

n.5, 358 P.3d 359 (2015). The dorsal lateral prefontal cortex, important for controlling 

impulses, is among the latest brain regions to mature without reaching adult dimensions 

until the early twenties. State v. O’Dell, 183 Wn.2d at 692 n.5. 

In State v. O’Dell, 183 Wn.2d 680 (2015), the Washington high court directed that 

the sentencing court consider the youth of an 18-year old, despite his being of the age of 

majority, when sentencing for the crime of child rape. The court ruled that, even if the 

offender is eighteen years to some unidentified age in his or her twenties, the sentencing 

court must consider the youth of the offender regardless of the standard range imposed by 

the SRA. State v. O’Dell, 183 Wn.2d at 693. In such circumstances, the age of the 

offender can support an exceptional sentence below the standard range applicable to an 

adult felony defendant. State v. O’Dell, 183 Wn.2d at 698-99. 

Despite the same considerations being relevant to one committing murder at age 

19 as to one committing the horrific crime at age 17, courts have arbitrarily limited the 

Miller v. Alabama sentencing considerations for youth to those under the age of 18 when 

prosecuted for murder. This practice follows contemporary society’s drawing of a line 

for many purposes between childhood and adulthood at 18 years old. Roper v. Simmons, 

543 U.S. 551, 574 (2005); United States v. Chavez, 894 F.3d 593, 609. Despite noting 
No. 37141-7-III consolidated with No. 36744-4-III

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8

the continued formation of the brain into a person’s twenties, the Washington Supreme 

Court has not accepted the need and benefit of allowing one age 18 and above to present 

evidence of immaturity and impulsiveness when being sentenced for aggravated murder. 

This court’s majority cites a number of decisions wherein federal appeals courts 

held that a sentencing court need not consider the offender’s youth beyond the age of 17

no matter the nature of the crime. Numerous state appellate decisions also follow this 

rule: Commonwealth v. Johnson, 486 Mass. 51, 155 N.E.3d 690 (2020); People v. 

Montelongo, 55 Cal. App. 5th 1016, 269 Cal. Rptr. 3d 883 (2020); State v. Barnett, 598 

S.W.3d 127 (Mo. 2020); State v. Perkins, 600 S.W.3d 838 (Mo. Ct. App. 2020); Geoppo 

v. State, 283 So.3d 852 (Fla. Dist. Ct. App. 2019); Commonwealth v. Blount, 2019 Pa 

Super 108, 207 A.3d 925; Schuler v. State, 112 N.E.3d 180 (Ind. 2018); State v. 

Mukhtaar, 179 Conn. App. 1, 177 A.3d 1885 (2017); Alexander v. Kelley, 2017 Ark. 130, 

516 S.W.3d 258; People v. Thomas, 2017 IL App (1st) 142557, 74 N.E.3d 127, 411 Ill. 

Dec. 818 (2017); State v. Bates, 464 S.W.3d 257 (Mo. Ct. App. 2015); People v. Benson, 

119 A.D.3d 1145, 990 N.Y.S.2d 321 (2014); Romero v. State, 105 So.3d 550 (Fla. Dist. 

Ct. App. 2012). 

Even under the circumstances when a disabled eighteen-year-old possessed child 

pornography, one federal court refused to consider the offender a youth for purposes of 

the Eighth Amendment. United States v. Marshall, 736 F.3d 492, 499 (6th Cir. 2013). 

Dylan Marshall suffered from a growth hormone deficiency, and, as a result, he faced 

both physiological and psychological deficits. One psychologist, who tested Marshall, 
No. 37141-7-III consolidated with No. 36744-4-III

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concluded he had a mental age of 15 1/2. The district court explicitly found him to be a 

mental and physical juvenile. United States v. Marshall conflicts with our high court’s 

decision in State v. O’Dell, 183 Wn.2d 680 (2015). 

Based on current Washington law, a person, who commits aggravated murder at

age 17 and 364 days, receives the benefit of scientific advances in brain science, but not 

one age 18. Life without the possibility of parole could depend on whether the crime 

occurs at the stroke of midnight on the offender’s birthday, rather than at 11:59 p.m. on 

birthday eve. But the Eighth Amendment abhors such arbitrary sentencing distinctions. 

The law should be changed. RCW 10.95.030(1) should be declared unconstitutional as 

applied to a youth above the age of 17. 

A developmentally disabled individual, despite being over 18 years of age, cannot 

be executed under cruel and unusual punishment principles. Atkins v. Virginia, 536 U.S. 

304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). The Supreme Court grounds its youth 

principles on the proposition that the diminished mental capabilities of juveniles and 

mentally retarded persons as the central justification for its categorical restrictions on 

types of sentences for classes of individuals. This rationale applies to youth over the age 

of 17. 

One of the goals of the SRA is consistency in punishment of those committing 

similar offenses. RCW 9.94A.010(3). Still, at least in the context of capital punishment, 

the Eighth Amendment compels the jury to ponder the uniqueness of each individual 

defendant. Kansas v. Marsh, 548 U.S. 163, 205, 126 S. Ct. 2516, 165 L. Ed. 2d 429 
No. 37141-7-III consolidated with No. 36744-4-III

State v. Lauderdale; Pers. Restraint Pet. Of Lauderdale

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(2006); Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). 

Arbitrary sentencing decisions based on chronological age, as demanded by RCW 

10.95.030(1), violate the constitutional demand of individualized treatment. 

In reaction to concerns about life sentences for youth above the age of 18, courts 

respond that the line must be drawn somewhere. But it does not need to be drawn at 17, 

when science unmistakably considers older individuals to hold the same characteristics as 

teenagers. The sentencing court could entertain evidence presented by the parties and 

weigh the various Miller factors to determine if the offender above age 17 qualifies as a 

youth for purposes of sentencing. 

Courts sentencing youth 18 years of age or older emphasize historically common 

distinctions made by the law at age 18, including requirements for driving, drinking 

alcohol, registering for the draft, voting, holding certain public offices, and marrying, 

among other things. United States v. Chavez, 894 F.3d 593, 609 (4th Cir. 2018); United 

States v. Marshall, 736 F.3d 492, 499. Interestingly, courts offer imbibing of alcohol as 

an example, but in Washington State the legal age for drinking is 21. RCW 66.44.270. 

Courts also answer that some individuals under age 18 have already attained a 

level of maturity some adults will never reach. United States v. Chavez, 894 F.3d 593, 

609; United States v. Marshall, 736 F.3d 492, 499. Assuming this factual contention to 

be true, the argument goes nowhere in discounting the propriety of imposing a life 

without the possibility of parole sentence to one above the age of 18 who has not reached

an adult’s development. In the rare instance when a 17-year-old has reached adult 
No. 37141-7-III consolidated with No. 36744-4-III

State v. Lauderdale; Pers. Restraint Pet. Of Lauderdale

11

maturation, the sentencing court has discretion, after reviewing the circumstances of the 

crime and the psychological profile of the offender, to impose a sentence of life without 

the possibility of parole if the court finds the juvenile to be irretrievably depraved. 

Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 733, 193 L. Ed. 2d 599 (2016). 

If the court remains free to assess the maturity of an offender under the age of 18, the 

court should possess discretion to weigh maturity after the age of 17. The arbitrary 

milepost of age 18 should not work only in one direction. 

One court has deemed assessing the maturation of one above the age of seventeen 

to be unmanageable. United States v. Marshall, 736 F.3d 492, 499 (6th Cir. 2013). The 

federal court of appeals complained that, before a court could impose on a defendant over 

18, those punishments constitutionally barred from being imposed on juveniles, the court 

would first have to wade through “tedious expert testimony” to determine whether the 

defendant’s mental age was commensurate with his chronological age. United States v. 

Marshall, 736 F.3d 492, 499. I do not understand why the court characterized the 

evidence as “tedious,” when courts frequently review psychological testimony. I 

recognize sentencing courts would need to spend additional time when conducting a 

sentencing hearing under my proposed rule, but Washington State has diligent trial court 

judges. Washington’s excellent superior courts will not shy from their responsibilities of 

applying constitutional provisions because of the time-consuming nature of the task. 

Even if the Eighth Amendment to the United States Constitution does not preclude 

a life without the possibility of parole for a nineteen-year-old, at least the Washington 
No. 37141-7-III consolidated with No. 36744-4-III

State v. Lauderdale; Pers. Restraint Pet. Of Lauderdale

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constitution should. The Eighth Amendment reads: “Excessive bail shall not be required, 

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The 

Washington Constitution provides that “[e]xcessive bail shall not be required, excessive 

fines imposed, nor cruel punishment inflicted.” WASH. CONST. art. I, § 14. The 

Washington provision echoes the Eighth Amendment but omits the words “and unusual.” 

This difference indicates that article I, section 14, on its face, offers greater protection 

than the Eighth Amendment, because the former prohibits conduct that is merely cruel. 

State v. Bassett, 192 Wn.2d 67, 80, 428 P.3d 343 (2018). The Washington proviso does 

not require that the punishment be both cruel and unusual. State v. Dodd, 120 Wn.2d 1, 

21, 838 P.2d 86 (1992). Sentencing one to a lifetime in confinement for even a dreadful 

crime committed as a youth may be usual, but it is cruel. 

As a Court of Appeals judge, I am bound by the decisions of the United States 

Supreme Court and the state Supreme Court. I do not know if the United States Supreme 

Court will accept the proposition that a sentencing court must consider the immaturity of 

a 19-year-old before dispensing a life without parole sentence. Also, I anticipate that, 

based on its current jurisprudence, the Washington Supreme Court will not declare

RCW 10.95.030(1) unconstitutional as applied to youth above the age of 17. Therefore, I 

concur in the majority’s decision. 

I CONCUR:

_________________________________

Fearing, J.