IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter of the Personal Restraint of: EDUARDO CHAVEZ, Petitioner. ) ) ) ) ) No. 36596-4-III
UNPUBLISHED OPINION

P ENNELL , C.J. — Eduardo Chavez has filed a timely personal restraint pet ition challenging his adult judgment and sentence for second degree r ape. We grant relief on two grounds: (1) deprivation of constitutionally effective a ssistance of counsel when Mr. Chavez’s appellate attorney failed to raise the meritorious claim that the adult division of superior court lacked authority over Mr. Chavez’s c ase, and (2) denial of the constitutional right to have the sentencing court consider miti gating circumstances regarding Mr. Chavez’s youth. We grant Mr. Chavez’s petition an d remand for further proceedings. 

### FILED DECEMBER 31, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 36596-4-III In re Pers. Restraint of Chavez

2 FACTS In October 2015, 17-year-old Eduardo Chavez faced criminal char ges in four separate cases. The first two cases began in juvenile court and were transferred to adult criminal court after decline hearings. The third and four th cases were filed while Mr. Chavez faced pending trials in adult court for the first tw o cases. The third and fourth cases were filed directly in adult court without decline hearin gs. Juries acquitted Mr. Chavez of all charges in his first two cas es before the end of October 2015. Mr. Chavez was not tried for his fourth case unti l December. His third case was resolved the following April when he pleaded guilty to attempted complicity to drive-by shooting. Mr. Chavez’s fourth case involved a charge o f second degree rape. That charge is the subject of the current personal restraint pe tition (PRP). The allegation giving rise to Mr. Chavez’s rape charge occurred shortly before Mr. Chavez’s seventeenth birthday. In brief, Mr. Chavez was all eged to have had sexual intercourse with a 15-year-old girl while she was unconscious d ue to intoxication. Mr. Chavez initially denied sexual contact, but later claimed the e ncounter was consensual. During voir dire on the rape case, Juror 1 acknowledged he knew two of the State’s detectives. Mr. Chavez used a preemptory challenge to s trike Juror 1 from the venire panel. The jury ultimately chosen from the panel convict ed Mr. Chavez as charged.No. 36596-4-III In re Pers. Restraint of Chavez

3 At sentencing, Mr. Chavez’s attorney requested a sentence at th e low end of the adult standard range. He voiced two justifications. First, Mr. Chavez lacked felony criminal history. Second, the attorney claimed Mr. Chavez’s cri me was “not what you would call a horrific act” since the victim “claimed she was as leep or unconscious or whatever and didn’t remember what happened.” PRP, App. G at 2. While the State took “exception to the defense’s characterizati on that rape is not a violent act,” it did not recommend a specific sentence, being “ of two minds.” Id . at 2, 6. The prosecutor noted Mr. Chavez appeared to have been a childho od victim of sexual assault and that he had never received appropriate counseling o r support. The prosecutor deplored asking the court “to sentence a 17-year-old boy to a s ignificant amount of time in prison and possibly for the rest of his life.” Id . at 5. The prosecutor also discussed Mr. Chavez’s responsible but busy parents, his lack of response to rehabilitation services, his attitude about the rape, his gang involvement, and his “lon g history of . . . out of control behavior” Id . at 7. After hearing from Mr. Chavez, who emphasized the sexual assaul t in his past, his family’s support, and his desire to leave a gang, the trial court imposed a minimum term of incarceration in the middle of the standard range. Like the State, the court expressed its difficulty determining an appropriate sentence fo r Mr. Chavez in light of his “age,” “criminal history,” “gang involvement,” “sexual abuse as a child and the chargeNo. 36596-4-III In re Pers. Restraint of Chavez

4 itself.” Id . at 10. The court concluded a midrange sentence was “appropria te” based upon what Mr. Chavez had “been through, the victim and the system.” Id

. Mr. Chavez directly appealed his judgment and sentence on one g round. He argued the trial court erred by excluding evidence of the victim’s rep utation at school. A majority of this court affirmed. Mr. Chavez later unsuccessfully moved t o modify or correct his judgment and sentence under CrR 7.8. Although Mr. Chavez appeal ed the denial of this motion, he then moved to voluntarily dismiss the appeal. This c ourt granted his motion. Mr. Chavez timely petitions for relief from his second degree rape conviction.
ANALYSIS Ineffective assistance of appellate counsel Mr. Chavez first challenges the effective assistance of his app ellate counsel. He argues the adult court lacked authority to try him for secon d degree rape in the absence of a decline hearing, and his appellate attorney failed to effectively assist him when the attorney did not raise this issue on appeal. We agree. In Washington, a defendant under the age of 18 can be treated as an adult for purposes of superior court jurisdiction if there has been a pre vious decline hearing and transfer from juvenile court. RCW 13.40.020(15); former RCW 13. 40.110 (2009). However, if the charge for which the defendant was transferred resulted in acquittal, the defendant must again be treated as a juvenile unless there are other reasons for extendingNo. 36596-4-III In re Pers. Restraint of Chavez

5 the adult court’s authority. RCW 13.40.020(15). If no exception applies, the defendant must be returned to juvenile court upon regaining juvenile stat us. See State v. Posey , 161 Wn.2d 638, 647, 167 P.3d 560 (2007). Prior to his second degree rape trial, Mr. Chavez met the defi nition of a “juvenile” set forth in RCW 13.40.020(15). He was under 18 years of age an d had been acquitted of the charges that gave rise to the adult court’s authority. No s eparate basis for proceeding in adult court applied. Mr. Chavez therefore should have been r eturned to juvenile court for further proceedings. A new decline hearing could have taken place at that point. However, without a new decline hearing, the adult division of s uperior court lacked statutory authority to act on Mr. Chavez’s second degree rape c harge. Our case law has recognized the applicability of post-convictio n relief based on ineffective assistance of appellate counsel in circumstances su ch as Mr. Chavez’s, where the attorney on appeal did not address the trial court’s failur e to treat the defendant as a juvenile. See In re Pers. Restraint of Dalluge , 152 Wn.2d 772, 777, 100 P.3d 279 (2004);
see also Dillenburg v. Maxwell , 70 Wn.2d 331, 413 P.2d 940 (1966), amended on reh’g , 70 Wn.2d 331, 422 P.2d 783 (1967). Error preservation is unnece ssary in this context. Dalluge , 152 Wn.2d at 777, 783-84. 1 Nevertheless, Mr. Chavez’s applicable remedy is limited. Because he is now an adult, Mr. Chavez’s immediate rem edy is a substituteNo. 36596-4-III In re Pers. Restraint of Chavez

6 decline hearing in adult court. Id. at 783-84. If, after the hearing, the trial court determines declination would have been appropriate “the conviction stands. ” Id . at 786-87. “[B]ut if not, [Mr. Chavez] is entitled to a new trial.” Id

. The State recognizes Mr. Chavez’s petition states a valid claim for relief. Nevertheless, the State contends Dillenburg and Dalluge were wrongly decided. Whatever the theoretical merits of the State’s arguments, they are not for us to decide. We are bound by Supreme Court precedent. State v. Gore , 101 Wn.2d 481, 487, 681 P.2d 227 (1984). Juror bias Mr. Chavez asserts he was deprived of the right to a fair and i mpartial jury because of Juror 1’s relationship with the State’s detectives. This cla im fails for lack of factual support. The record shows Juror 1 was stricken from the venire panel. Thus, whatever bias Juror 1 may have had did not extend to the jury that decid ed the merits of Mr. Chavez’s case. There is no indication any of the individuals wh o served on the petit jury had a prior relationship with the State’s witnesses. Mr. Chavez is not entitled to relief based on juror bias.

1 There is no argument Mr. Chavez affirmatively waived review.No. 36596-4-III In re Pers. Restraint of Chavez

7 Failure to consider exceptional mitigated sentence for youth Should his conviction stand, Mr. Chavez argues he is entitled t o resentencing because the trial court failed to consider mitigating factors r egarding his youth, as required by State v. Houston-Sconiers , 188 Wn.2d 1, 391 P.3d 409 (2017). We agree.
Houston-Sconiers announced a new rule regarding juvenile sentencing with two separate but important components. First, courts “ must consider mitigating qualities of youth at sentencing.” Id . at 21 (emphasis added). Second, courts “ must have discretion to impose any sentence below the otherwise applicable” sentenci ng range. Id. (emphasis added). Both components apply retroactively to individuals like Mr. Chavez who were sentenced prior to issuance of the Supreme Court’s decision. See In re Pers. Restraint of
Ali , 196 Wn.2d 220, 226, 474 P.3d 507 (2020). The first component of Houston-Sconiers is at issue here. Compliance with this component requires a sentencing court to acknowledge that child ren are different. To that end, the court must consider: mitigating circumstances related to the defendant's youth—inclu ding age and its ‘hallmark features,’ such as the juvenile's ‘immaturity , impetuosity, and failure to appreciate risks and consequences.’ It must also consider factors like the nature of the juvenile's surrounding environme nt and family circumstances, the extent of the juvenile's participation in th e crime, and ‘the way familial and peer pressures may have affected him [or her.]’ And it must consider how youth impacted any legal defense, along with any factors suggesting that the child might be successfully rehabil itated.No. 36596-4-III In re Pers. Restraint of Chavez

8 Houston-Sconiers , 188 Wn.2d at 23 (alteration in original) (citations omitted) (quoting
Miller v. Alabama , 567 U.S. 460, 477, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012))

. Unsurprisingly, the record here shows the trial court did not predict the new rule established by Houston-Sconiers . Although the court noted Mr. Chavez’s age, it did not address the issues related to juvenile brain science and develo pment as set forth above. Nor did counsel bring these matters to the court’s attention. G iven this record, it is apparent Mr. Chavez’s sentencing did not meet the constitutiona l requirements of
Houston-Sconiers

. The court’s failure to comply with Houston-Sconiers does not necessarily entitle Mr. Chavez to relief; Mr. Chavez must also establish prejudice. In re Pers. Restraint of Domingo-Cornelio , 196 Wn.2d 255, 268, 474 P.3d 524 (2020). To meet this burden, Mr. Chavez must show by a preponderance of the evidence that his se ntence would have been shorter if the sentencing judge had complied with the dictates of Houston-Sconiers

. See In re Pers. Restraint of Meippen , 193 Wn.2d 310, 317, 440 P.3d 978 (2019). Merely raising the “possibility” of a different sentence is inadequate. Id

. Mr. Chavez has met his burden of showing prejudice. There is n o evidence the sentencing judge considered whether Mr. Chavez’s offense conduc t was impacted by the mitigating qualities of his youth. Cf. id . at 316 (no prejudicial error under HoustonSconiers where defense counsel argued mitigating factors based on youth , but court stillNo. 36596-4-III In re Pers. Restraint of Chavez

9 imposed a high-end sentence). While the court here did not sele ct a sentence at the low end of Mr. Chavez’s standard range, the court made plain that i t had struggled finding an appropriate sentence. The court expressed concern over whether Mr. Chavez’s actions had been impacted by his experiences as a child victim of sexua l assault. Had the sentencing court had the benefit of Houston-Sconiers and considered Mr. Chavez’s history of abuse together with the brain science regarding age, there is a substantial likelihood the trial court would have opted for something less than a sentence at the midpoint of the adult standard range. Mr. Chavez has therefore met the standard for relief based on prejudice.
CONCLUSION Mr. Chavez’s petition for relief from personal restraint is gra nted. This matter is remanded for further proceedings. On remand, the trial court sh all conduct a substitute decline hearing pursuant to Dillenburg . If, after considering the matter de novo, the court determines declination was appropriate, Mr. Chavez’s conviction will stand, but he will be entitled to resentencing consistent with the terms of this d ecision and HoustonSconiers . If declination is determined to have been inappropriate, Mr. Chavez will be entitled to a new trial.No. 36596-4-III In re Pers. Restraint of Chavez

10 A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for publ ic record pursuant to
RCW 2.06.040.

_________________________________ Pennell, C.J. I CONCUR:

Siddoway, J.No. 36596-4-III
K ORSMO , J. (dissenting) — I disagree with the majority’s decision to ac cept the State’s concession here. 1 This primarily is a timing pr oblem, and existing case law establishes that Mr. Chavez’s ar gument looks to the wrong time. He was a former “juvenile” whose first two cases p roperly had been declined at the time that this rape prosecution was filed in adult co urt. The ensuing acquittals o n the earlier cases would only have impacted any future c rimes committed while still a ju venile, but not this or another already charged case. 2 Mr. Chavez was not considered a juvenile at the time the rape case was filed in adult cour t under the plain language of the statute. In addition, this case is not an automatic declin e case and does not suffer from the defects identified by In re Personal Restraint of Dalluge , 152 Wn.2d 772, 100 P.3d 279 (2004).

1 While I understand the State’s desire to revisit In re Personal Restraint of Dalluge , 152 Wn.2d 772, 100 P.3d 279 (20 04), its argument fails to acc ount for the changes that have occurred to t he declination statutes subseque nt to that case. This is the wrong case, as well as the wrong court, in which to make its ar gument. 2 I also fail to see how Mr. Chave z can show prejudice here. Hi s guilty plea in adult court on the fourth case for a crime committed while he w as a juvenile also would require the trial court to recogn ize that this case properly wa s in adult court even apart from the Dillenburg hearing. Nor can he show that he would likely prevail on a de cline hearing before a court that had just declined him for two other cases.No. 36596-4-III In re Pers. Restraint of Chavez (Dissent)

2 The law of this state has been summarized in short hand as “on ce declined, always declined,” based on a statement from State v. Sharon , 100 Wn.2d 230, 232, 668 P.2d 584 (1983) (“ Kent does not mandate an additional de cline hearing on subsequent o ffenses.”) That policy made eminent sense for cases declin ed from juvenile court pursuant to Kent v. United States , 383 U.S. 541, 86 S. C t. 1045, 16 L. Ed. 2d 84 (1966). Once t he juvenile court already had determined t hat it no longer had the services or ability to rehabilitate the youthful offender, there was n o reason to return the youth for another decline hearing merely because he continue d his criminal behavior. See Sharon , 100 Wn.2d at 232. The
Kent decline authority was codified in RCW 13.40.110. But in addition to the offender-oriented Kent declination process, a second method was created in 1994 to put certa in serious offenses in adult co urt regardless of the age of the offender. Specifi ed offenses and offenders of certain ages were excluded from the juvenile court’s otherwise excl usive jurisdiction over youthful offenders. L AWS OF 1994, 1st Spec. Sess., ch. 7, § 519. O ne result of the “automatic de cline” process that focused on the offense instead of the offe nder was that young offenders no longer were necessarily subjected to the juve nile court’s weighing of the o ffender’s rehabilitative needs and its ability to provid e them. Because it was treated as a charge-specific exclusion from juvenile jurisdict ion, an adult court verdict on a lesser offense created a situation where the adult court no longer had authority to sent ence in light of the juvenileNo. 36596-4-III In re Pers. Restraint of Chavez (Dissent)

3 court’s exclusive jurisdiction over the offense. Dalluge , 152 Wn.2d 782-787. 3 Another consequence of a crime-centric approach is that an acquittal li kewise would result in a youthful offender still being subj ect to juvenile court jurisdi ction for future offenses. The legislature since has narrowed the class of offenders and the types of cases that are subject to automatic decline. See L AWS OF 2019, ch. 322, § 9; L AWS OF 2018, ch. 162, § 2; L AWS OF 2009, ch. 454, § 1. In addition, the legislature has narrowed the discretion of juvenile courts to send youthful offenders to adu lt court and has treated juveniles who were acquitted in adult court or were convicted o f lesser charges following discretionary declinations in th e same manner as similarly situ ated automatically declined offenders. See L AWS OF 2018, ch. 162, §4; L AWS OF 2009, ch. 454. In light of those changes, the l egislature currently has redef ined the term “juvenile” to mean: any individual who is under the c hronological age of eighteen y ears and who has not been previously trans ferred to adult court pursuant to RCW 13.40.110, unless the individual was convicted of a lesser char ge or acquitted of the charge for which he or she was previously tran sferred

3 This is the reason that Dalluge has no significant relations hip to this case. There the 17-year-old defendant was in adult court due to being autom atically declined on a charge of first degree rape. 152 Wn.2d at 776. The charge was amended to second degree rape, an offense not subje ct to automatic decline, and t he jury returned verdicts on two counts of third degree rape. Id . The court concluded that adult court lacked jurisdiction over the case and re manded to the juvenile court t o determine whether it would have declined the case to a dult court in accordance with Dillenburg v. Maxwell , 70 Wn.2d 331, 422 P .2d 783 (1967). Dalluge , 152 Wn.2d at 782-787. Unlike Dalluge , this is not an automatic decline case , but is a straight forward Dillenburg issue resulting from a discretionary declination.No. 36596-4-III In re Pers. Restraint of Chavez (Dissent)

4 pursuant to RCW 13.40.110 or who is not otherwise under adult c ourt jurisdiction. RCW 13.40.020(15). This current d efinition was adopted by Laws of 2009, ch. 454, § 2, making it the law in effect at th e time of Chavez’s crimes. Th at definition also establishes that Mr. Chavez was properly in adult court on the rape allegation. Since, at the time the rape cha rges were filed, Mr. Chavez pre viously had been transferred to adult court pursu ant to the decline provisions o f RCW 13.40.110, he was no longer a “juvenile” and was beyond the authority of the juve nile court. The parties, and the majority, reason that the subsequent ac quittals on the first two cases brought his situation within the acquittal exception to the definition. Ho wever, our case law very clearly states that adult court authority to act is based on th e circumstances existent at the time of declination. On point are Sharon and State v. Oreiro , 73 Wn. App. 868, 871 P.2d 666 (1994).
In Sharon , the defendant was declined to adult court by the Lewis County Juvenile Court on a charge of second degree assa ult; seven months later the Ki ng County prosecutor filed burglary charges in that county’s juvenile court. 100 Wn .2d at 231. Upon learning of the Lewis County action, the p rosecutor sought to dismiss th e charges for refiling in adult court. The trial court deni ed the motion, but the Court of Appeals reversed. Id

. Affirming this court, the Washing ton Supreme Court noted the un ambiguous statutory command that one transferred to a dult court no longer is a juve nile. Id . The court alsoNo. 36596-4-III In re Pers. Restraint of Chavez (Dissent)

5 pointedly noted that due process did not require a second decli nation hearing once a proper hearing had been held. Id . at 232. Even more firmly on point is Oreiro , an action arising in Pierce County. Six felony charges were filed in t he juvenile court in late 1990. 73 Wn. App. at 870. The court granted the State’s request to decline jurisdiction of th e three most recent crimes to adult court; the other three charg es were dismissed without pre judice. Id . The three offenses that had led to the dec lination hearing were filed in adult court; the following month, the three dismissed counts were added by an amended info rmation. Id . The trial court rejected the defendant’s m otion to dismiss the most recen tly added counts. Id . at 870-871. A jury convicted him on two of the three challenged c ounts and Mr. Oreiro appealed to this court. Id . at 871. This court began its analysis o f the timing problem presented by the case by stating that it involved “past offenses (using the date of decl ination as a point of reference).” Id . at 872. The court recognized: “ Jurisdiction over an offense committed by a juvenile is determined at the time proceedings are initiat ed against the alleged offender.” Id . (emphasis added). From that pre mise, this court determined t hat even though the original offenses pre dated the declination ruling, t he dismissal divested the juvenile court of its jurisdiction. Id . The charges were properly refiled in adult court. Id

. As Oreiro notes, jurisdiction is determi ned at the time of initiation. Here, the rape charge was filed after two othe r cases recently had been declin ed to adult court. TheNo. 36596-4-III In re Pers. Restraint of Chavez (Dissent)

6 transfer of those two cases mean t that Mr. Chavez no longer was a juvenile at the time the rape charge was filed. Juvenile court had no jurisdiction over him. The fact that both of the origi nal cases ended in acquittal is of no consequence here since those events postdat ed the charging of this case. A t the time the rape case was filed in adult court, it was in t otal compliance with the statu te and there was no reason to have a third declination heari ng concerning Mr. Chavez’s suitab ility for juvenile court. Our case law dictates that initia tion of charges is the relevan t date. Nothing in the legislative history suggests tha t the definition of “juvenile” can change during the course of the case, let alone that any change would be applied retroac tively. 4 The acquittal has consequences for future cases tha t have not been initiated, but it has no effect on a case properly initiated in adult court. Accordingly, I dissent from the ma jority’s uncritical acceptan ce of the State’s concession.

________________ _________________ Korsmo, J.

4 It is likely that the legislatu re did not consider the problem of serial prosecutions resulting in mixed verdicts of c onviction and ac quittal when it adopted the definition.