IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Appellant,

v. No. 75168-9-1 DIVISION ONE !-~l , ,, cr ;j>

O
JAI'MAR SCOTT, PUBLISHED OPINION CJ1 ::,v; Respondent. FILED: December 5. 2016 IX> cr> O o r>0 :;:: Spearman. J.

— In Miller v. Alabama, 

### _U.S._, 132 S. Ct. 2455, 183 L. 

### Ed. 2d 407 (2012), the United States Supreme Court determined that a sentence 

### oflifewithoutparole isunconstitutionalfor mostjuvenile offenders. PriortoMiller, Jai'Mar Scott received a de facto life sentence for a crime he committed as a 

### juvenile. Scottfiled a motion for relieffromjudgment, arguing thatMiller mandated resentencing. Thetrial court granted Scott's motion and ordered a new 

### sentencing date. Butbecause Washington's Millerfix statute, RCW9.94A.730, provides the opportunityfor parole and cures anyMillerviolation, we reverse.

FACTS 

### Ajury convicted Scott ofbrutally murdering hisneighbor, a 78 yearold

woman who suffered from Alzheimer's disease. Scottwas 17 years old atthe time ofthe murder.No. 75168-9-1/2 At sentencing, the parties agreed that the mandatory minimum sentence
was 240 months and the standard range was 240 to 320 months. Scott argued for a sentence atthe low end ofthe standard range based, in part, on his youth. The State requested an exceptional sentence of 1,028 months based on several 

### aggravating factors. The sentencing courtfound four aggravating factors: deliberate cruelty, multiple injuries, particularvulnerability, and abuse oftrust. The court imposed an exceptional sentence of900 months. 

### Scott appealed his sentence to this court. State v. Scott, 72 Wn. App. 207, 866 P.2d 1258 (1993). He asserted, among other arguments, that his age was a 

### mitigating factor that rendered the exceptional sentence improper. Id. at 218. We 

### rejected the argument as "bordering] on the absurd" and affirmed. Id.The Supreme Court also upheld Scott's sentence. State v. Ritchie, 126 Wn.2d 388, 399, 894 P.2d 1308 (1995).The court held that the "four horrid aggravating factors" demonstrated thatthe trial court did not abuse its discretion in imposing the exceptional sentence, jd. In2016, Scottfiled a CrR 7.8 motion for relieffrom judgment, asserting that Miller, 132 S. Ct. 2455, announced a significant change in law concerning 

### the sentencing ofjuvenile offenders. Scott contended thatthis change inthe law allowed him to challenge his sentence despite the general one yeartime baron collateral attacks. The trial court granted Scott's motion and ordered a new sentencing hearing. The State appeals.No. 75168-9-1/3
DISCUSSION The State contends that the trial court erred in granting Scott's motion for relief from judgment and ordering a new sentencing hearing. The State asserts that Scott's motion was untimely and should have been transferred to this court for consideration as a personal restraint petition. 

### A collateral attack must generally be broughtwithin one year afterthe 

### judgmentbecomes final. RCW 10.73.090(1). When a defendantfiles an untimely motion to challenge his sentence, the motion must be transferred to this courtfor consideration as a personal restraint petition. State v. Flaherty, 177 Wn.2d 90, 92-93, 296 P.3d 904 (2013). An exception to the one yeartime barexists when 

### there has been (1) a significant change inthe law (2)that is material to the order being challenged and (3) applies retroactively. RCW 10.73.100(6). The parties agree that Miller constitutes a significant change in the law that applies retroactively. The only point at issue iswhetherthe change in law is material to Scott's sentence. Whetherthe Miller line ofcases announced a 

### change in lawthat is material to Scott's sentence is a question of law that we review de novo. Ameriquest Mortq. Co. v. Office ofAttorney Gen, ofWashington, 

### 177 Wn.2d 467, 478, 300 P.3d 799 (2013) (citing State v. Willis, 151 Wn.2d 255, 261,87P.3d 1164(2004)). 

### The United States Supreme Court has considered the sentencing of 

### juvenile offenders in fourrecent cases. In 2005, the Supreme Court held the death penalty unconstitutional for juvenile offenders in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L Ed. 2d 1 (2005). The Roper court relied onNo. 75168-9-1/4 

### research indicating thatjuveniles are differentfrom adults because oftheir immaturity, susceptibility to outside pressures, and unformed character. Id at 569-70. These differences mean thatthe twojustifications for the death penalty, retribution and deterrence, apply with less force to ajuvenile than to an adult, id at 571-72. The Roper court held that imposing the death penalty on ajuvenile is 

### disproportionate and constitutes cruel and unusual punishment, id. at 578. In2010, the Supreme Court considered life without parole forjuveniles convicted of nonhomicide crimes in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 

### 2011, 176 L. Ed. 2d 825 (2010). Relying on Roper, the Graham court noted that 

### "developments in psychology and brain science continue to show fundamental differences betweenjuvenile and adult minds." \± at 68. In particular, a juvenile is more capable ofchange than an adult, id The Graham court held that, while a 

### juvenile offender mayserve life behind bars, the Eighth Amendmentprohibits states from determining at the outsetthat a juvenile offenderwill neverbe fitto reenter society. \± at 75. States mustprovide "'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" \± 

### Next, in 2012, the Supreme Court considered mandatory sentencing 

### schemes as applied to juveniles inMiller. In a sentencing scheme that mandates 

### life without parole, the trial court has no discretion to consider the defendant's 

### age andmaturity, the specific circumstances ofthe crime, or thepossibility of rehabilitation, id, at 2467. Relying on Graham and Roper, the Millercourt 

### declared mandatory life without parole unconstitutional for juvenile offenders,id at 2463-64. The Millercourt stated thatthe sentencing court must "take intoNo. 75168-9-1/5 account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." \d. at 2469. (Footnote omitted). In response to the Millerdecision, the Washington legislature enacted RCW 9.94A.730 as a statutory "Millerfix" in 2014. See State v. Ronquillo, 190 Wn. App. 765, 778, 361 P.3d 779 (2015) (discussing statute). Underthe statute,
an offenderwho committed crimes as a juvenile may petition the indeterminate sentence review board (ISRB) for early release after serving at leasttwenty years. RCW 9.94A.730(1). Early release is presumptive. RCW 9.94A.730(3). To deny the petition, the ISRB must determine that the offender is more likelythan not to reoffend, id The Washington Supreme Court also acted in response to Miller. In2015, 

### the Supreme Court considered age as a mitigating factor in State v. O'Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). Inthat case, an 18-year-old defendantwas convicted of second degree rape of a child, id at 683. The defendant requested


### an exceptional sentence based on his age and immaturity. \± at 685. The sentencing court determined that it could not considerthe defendant's age as a 

### mitigating factor and imposed a standard range sentence, id at 686. Relying on the line of United States Supreme Court cases discussed above, our Supreme Court overturned O'Dell's sentence and remanded for resentencing, id at 699. The O'Dell court noted that, prior to the Miller line of cases, courts did not have the benefit of studies proving thatthere are fundamental differences 

### betweenjuvenile and adult brains, id at 691-92. As an example ofthe law'sNo. 75168-9-1/6 previous faulty understanding, the O'Dell court quoted this court's opinion in 

### Scott's direct appeal, id at 694-95. Scott argued that his age atthe time ofthe crime limited his capacity to understand the wrongfulness of his conduct, id at 694. We rejected the argument as "'bordering] on the absurd.'" id (quoting Scott, 72 Wn. App. at 218). According to the O'Dell court, our decision in Scott reflected the reasoning that youth could not mitigate culpability. l± at 695. Because that reasoning has been disproven by the scientific studies underlying the Miller line ofcases, the O'Dell court held that "a trial court must be allowed to consideryouth as a mitigating factor. ..." id at 696. A few months after O'Dell, this court applied Miller to de facto life sentences. Ronquillo, 190 Wn. App. at 768-69. In Ronquillo, a juvenile was convicted ofmultiple offenses including murder. Id at 769. At sentencing, the 

### juvenile argued for an exceptional sentence downward based on Millerand based on the excessive nature ofthe aggregate sentence, id at 773. The 

### sentencing courtfound that Miller did not apply because the sentence at issue

was not mandatory lifewithout parole. \j± at 773-74. The sentencing court also 

### concluded that age could not be considered as a basis for finding the aggregate sentence excessive, id The court imposed the bottom ofthe standard range for each count, resulting in a sentence of 621 months to be served consecutively, id

at 769-70. 

### On appeal, this court relied on O'Dell to hold thatthe trial courterred in 

### concluding that it could not consider age as a basis for an exceptional sentence, id at 783. We also held that Ronquillo's aggregate sentence was a de facto lifeNo. 75168-9-1/7 without parole sentence to which Millerapplied, id at 774-75. Relying on the Miller line ofcases, the Ronquillo court stated that "[b]efore imposing a term-of

### years sentence that is the functional equivalent of a lifesentence for crimes committed when the offenderwas a juvenile, the court must 'take into account how children are different, and how those differences counsel against irrevocably 

### sentencing them to a lifetime inprison.'" id at 775 (quoting Miller, 132 S. Ct. at 2469). Because the trial court erroneously believed that Millerdid not apply and that age could not be considered as a basis for an exceptional sentence, we 

### remanded for a new sentencing hearing.1 id at 783-85. Finally, inMontgomery v. Louisiana, _ U.S. _, 136 S. Ct. 718, 736, 193 L. Ed. 2d 599 (2016), the United States Supreme Court considered whether 

### Miller applied retroactively. The Montgomery court summarized Millerby stating that "life without parole is excessive for all but 'the rarejuvenile offenderwhose crime reflects irreparable corruption.'" id at 734 (quoting Miller, 132 S. Ct. at 

### 2469). Accordingly, life withoutparole is an unconstitutional penalty for "'juvenile offenders whose crimes reflectthe transient immaturity ofyouth.'" ]&. (quoting Penrvv.Lvnauqh, 492 U.S. 302, 305, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335

1 The State asserts that inRonquillo we held that the statutory Millerfix, RCW9.94A. 730, did not cure a Millerviolation and thatthe holding was later overruled by Montgomery v. Louisiana, _ U.S. 136S. Ct. 718, 736, 193 L. Ed. 2d 599 (2016). The State misapprehends our holding inRonquillo. There, we held that the Millerfix statute did not apply in the circumstances of that case. Ronquillo, 190 Wn. App. at 778. Due to a sentencing error, Ronquillo was returned to the trialcourtfor resentencing post-Miller. Id But at resentencing, the trial court mistakenly believed that itcould not applyMiller. Id,at 779. We concluded that this was an error "not contemplated by the Millerfix." id at 786.No. 75168-9-1/8 (2002)). The Court concluded that "[a]s a result, Millerannounced a substantive 

### rule ofconstitutional law[]" that applies retroactively. l± But the Montgomery court also held that applying Millerretroactively "does not require States to relitigate sentences, let alone convictions, inevery case where ajuvenile offender received mandatory lifewithout parole." id at 736. A Millerviolation may be remedied "by permittingjuvenile homicide offenders to be considered for parole, rather than by resentencing them." id. The Montgomery 

### court noted with approval Wyoming's Millerfixstatute, underwhich juveniles sentenced to life are eligible for parole after serving 25 years, id Allowing juvenile offenders the opportunityfor parole "ensures thatjuveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence inviolation ofthe Eighth Amendment." id. Inthis case, the State argues that the change in law announced in Miller is
not material to Scott's sentence because there was no Miller violation or, 

### alternatively, any violation was cured by the statutory Millerfix. The State first asserts that Miller is not material because that case addressed mandatory life without parole forjuvenile offenders. The State contends that, because Scott's 

### exceptional sentence was not mandatory but was an exercise ofthe trial court's discretion, there was no Miller violation. We disagree. 

### Miller specifically addressed sentencing schemes that mandate lifewithout 

### parole and held such schemes unconstitutional for juvenile offenders. Miller, 132 S. Ct. at 2460. But later case law indicates that Miller's holding is not limited to

8No. 75168-9-1/9 mandatory sentencing schemes. In Montgomery, the court observed that, before sentencing a juvenile to lifewithout parole, Millerrequires that "the sentencing judge take into account 'how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.'" Montgomery, 136 S. Ct. at at 733 (quoting Miller, 132 S. Ct. at 2469). "Even if a court considers a child's age before sentencing him or herto a lifetime in prison, that sentence still violates the Eighth Amendmentfor a child whose crime reflects 'unfortunate yet transient immaturity.'" Jd at 734 (internal quotation marks 

### omitted). Thus, Montgomery clearly indicates that lifewithout parole is unconstitutional for mostjuveniles, whether imposed under a mandatory or a discretionary sentencing scheme. The State does not dispute that Scott received a de facto life sentence. And because it is clear, after O'Dell, that Scott's sentencingjudge did not 

### meaningfully consider Scott's age as a mitigating factor, the sentence imposed falls squarely withinthe constitutional concerns expressed inMiller. Accordingly,
we rejectthe State's argumentthat Miller is immaterial because Scott's sentence
was not the result of a mandatory sentencing scheme. The State next asserts that Miller is immaterial because, ifthe sentencing 

### court failed to adequately consider Scott's youth, any violation has been cured through Washington's Millerfix statute. Scott contends that Miller requires resentencing despite the Millerfixstatute. We agree withthe State. The constitutional violation identified in the Miller line ofcases is the failure 

### to allow a juvenile offenderthe opportunity forrelease when his or her crime wasNo. 75168-9-1/10 

### the result of youthful traits. Miller held thatthe Eighth Amendment prohibits mandatory "life in prison without possibility ofparole forjuvenile offenders." Miller, 132 S.Ct. at 2469. Similarly, the Graham court held thatjuveniles convicted ofnonhomicide crimes must have "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham, 560 U.S. at 75. And the Montgomery court held that the opportunity for parole "ensures thatjuveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence. . .." Montgomery, 136 S. Ct. at 736. In Montgomery, the Supreme Court expressly approved of statutes that provide the opportunityfor parole as remedies for a Miller violation. ]&. The Montgomery court noted with approval the Wyoming Miller fixstatute, 

### id Underthat statute, ajuvenile sentenced to lifeimprisonment is eligible for parole after serving 25 years, provided that he has not committed any 

### disqualifying offenses since reaching 18 years ofage. Wyo. Stat. Ann. § 6-10- 301(c) (2013). UnderWashington's Millerfix statute, ajuvenile offenderis presumptively eligible forearly release after serving no less than 20 years. RCW 9.94A.730. An offender may not petition for early release if he has been convicted of a crime committed after his eighteenth birthday or has committed a 

### disqualifying infraction in the twelve previous months.2 RCW 9.94A.730(1). Washington's Millerfixstatute is substantially similarto the Wyoming statute

2Scottpetitionedforearly releaseunderRCW9.94A.730 in 2015. TheState asserts that the ISRB denied Scott's petition and that he may petition again in2019. Scottdoes not address his petition.
10No. 75168-9-1/11 expressly approved by the Montgomery court. We conclude thatWashington's Miller fixstatute, likeWyoming's, remedies a Millerviolation. Atoral argument, however, Scott asserted that Millerrequires the sentencing courtto make an individualized determination considering the offender's youth and make a finding ofirreparable incorrigibility before sentencing a juvenile to lifewithout parole. Failure to meet either ofthese requirements, he argued, mandates resentencing. But Montgomery expressly 

### holds thatthe opportunity for parole cures a Millerviolation. Montgomery, 136 S. Ct. at 736 ("AState may remedy a Millerviolation by permittingjuvenile homicide offenders to be considered for parole, ratherthan by resentencing them."). We reject Scott's argument. We conclude thatthe trial court erred ingranting Scott's motion for relief 

### fromjudgment. Scott's motion was only timely if itwas based on a significant change inthe law thatwas material to his sentence. But under Montgomery, as a 

### result ofthe statutory Millerfix, Scott is no longer serving a sentence that is the 

### equivalent oflife without parole. As such, Milleris not a significant change in law that is material to his sentence. Reversed. 

# X XDC^f/^o^.

WE CONCUR: 

# %cdk.L

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