### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
In the Matter of the Personal Restraint of: No. 53360

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ANDREW KENNEDY, PUBLISHED OPINION Petition er .

S UTTON , A

. C.J.

— In September 2007, Andrew Kennedy was convicted after a bench trial of homicide by abuse of his cousin’s one - year - old daughter

. Kenne d y committed the offense when he was 19 years old. On April 10, 2019, Kennedy filed this personal restraint petition (PRP ), requesting resentencing to allow him to present newly discovered evidence related to the neurodevelopment of late adolescents

. Kenn edy argues that this PRP is not untimely because it is based on the newly discovered evidence exception to the time bar. 1 RCW 10.73.090 (1) ; RCW 10.73.100(1)

. We hold that the evidence related to the neurodevelopment of late adolescents is
not newly disco vered evidence , and thus, we d ismiss Kennedy’s PRP as untimely

.

1 Cowlitz County, as the respondent, seeks clarification as to whether it is the proper respondent in this case, given that the Washington State Attorney General represented the State in Kennedy’s trial due to a conflict of interest. The County represents in its brief that it has acted as the respondent numerous times in cases with Kennedy since Kennedy’s trial, and the attorney who created the conflict no longer works for the County . Because Kennedy does not raise any issue with Cowlitz County being the r espondent, and because the attorney who created the conflict is no longer in the County’s office, we see no conflict of interest. Filed Washington State Court of Appeals Division Two February 9, 2021No. 53360

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2 FACTS In 2004, Kennedy assumed custody of his cousin’s 10

- month

- old daughter , Kieryn Severson. Two months later, Kennedy killed Kieryn by intentionally sw ing ing her head into a stationary object with violent force. Kennedy was 19 years old at the time of Kieryn’s death. Following a bench trial, the trial court found Kennedy guilty of homicide by abuse. O n September 6, 2007, t he court s entenced Kennedy to an exceptional sentence upward of 380 months. We affirmed Kennedy’s conviction and sentence , and the mandate was issued on August 31, 2009

. On April 6, 2018, Kennedy filed a CrR 7.8 motion for relief from judgment and to set a show cause hearing in the su perior court based on Division One’s opinion in In re Personal
Restraint of Light

- Roth , 200 Wn. App. 149, 401 P.3d 459 (2017) , 2 rev ’d , 191 Wn.2d 328, 422 P.3d 444 (2018)

. In his CrR 7.8 motion, Kennedy cite d to studies and articles from 2004, 2009, and 2010 regarding the neurodevelopment of late adolescents

. At the time he filed his CrR 7.8 motion, our Supreme Court had accepted review of Light

Roth

. 189 Wn.2d 1030 (2017). Our Supreme Court ultimately rever sed Division One and held
t hat O’Dell was not a material change in the law. Light

- Roth , 191 Wn.2d at 337

- 38. As a result, the trial court never addressed Kennedy’s CrR 7.8 motion. On April 10, 2019, almost 10 years after his direct appeal mandated, Ke nnedy filed this
PRP alleging “ newly discovered evidence ” regarding neurodevelopment of late adolescents. In

2 In that case, Division One held that State v. O’Dell , 183 W n .2d 680, 358 P.3d 359 (2015) , constituted a significant change in the law, and thus, the petitioner was entitled to a new sentencing proceeding

. Light

- Roth , 200 Wn. App. at 1 60 , 166.No. 53360

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this PRP, Kennedy argues this new scientific evidence was unavailable to him at the time of his sentencing , and thus, his PRP is not time barred and he should be allowed to present this new evidence at a resentencing hearing

. In support of his PRP, Kennedy attaches a n August 29, 2018 , declaration from Dr. Laurence Steinberg, a developmental psychologist specializing in adolescence. Kennedy also attaches his declaration regarding Kieryn’s death and his own behavioral issues as a late adolescent

. In Dr. Steinberg’s declaration, he addresses “whether individuals between 18 and 21 also share the attributes of adolescents under 18 that trigger the constitutional protections the Supreme Court has already recognized for mid

- adolescents. ” PRP , Decl. of Laurence Steinberg (Steinberg Decl.) at 3. Dr. Steinberg states that over the last 20 years , there has been considerable scientific development estab lishing that “ adolescents are more impulsive, prone to engage in risky and reckless behavior, motivated more by reward than punishment, and less oriented to the future and more to the present ” than adults. PRP , Steinberg Decl. at 3. He further states tha t “[i]n the past ten years , additional scientific evidence has accrued ” suggesting that these same characteristics are also characteristic of late adolescents, a category that includes 19

- year olds. P RP , Steinberg Decl

. at 3. Dr. Steinberg also provide s a history of the neuro science regarding brain maturation for late adolescents up to at least 21 yea r s of age

. His declaration states, Further study of brain maturation conducted during the past decade has revealed that several aspects of brain developmen t affecting judgment and decision

- making are not only ongoing during early and middle adolescence but continue at least until age 21. As more research confirming this conclusion has accumulated, the notion that brain maturation continues into late adolesc ence became widely acceptedNo. 53360

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among neuroscientists by 2015 . This contemporary view of brain development as ongoing at least until age 21 stands in marked contrast to the view held by scientists as recently as 15 years ag o. We now know that, in many respec ts , individuals in their late teens and early 20s are more neurobiologically similar to younger teenagers than had previously been thought.
PRP , Steinberg Decl. at 5

- 6 ( foot note omitted)

. Dr. Steinberg opines that “the main underlying cause of psycholo gical immaturity during adolescence and the early 20s is the different timetables along which two important brain systems change during this period, sometimes referred to as a ‘maturational imbalance.’ ” PRP , Steinberg Decl. at 11

. Dr. Steinberg states, [ A]lthough the development of the prefrontal cortex is largely complete by the end of middle adolescence, the maturation of connections between this region and regions that govern self

- regulation and the brain’s emotional centers, facilitated by the continu ed myelination of these connections, continues into late adolescence and may not be complete until the mid

- 20s. As a consequence, late adolescents often have difficulty controlling their impulses, especially in emotionally arousing situations.
PRP , Steinberg Decl. at 12 ( footnote omitted)

. Dr. Steinberg reached the following conclusions: Many of the same immaturities that characterize the brains of individuals younger than 18, and that have been found to mitigate their criminal culpability, are ch aracteristic of the brains of individuals between 18 and 2 1

. Criminal acts committed by adolescents, even those past the age of majority, are best understood in light of their neurobiological and psychological immaturity. For this reason, it is inappropr iate to assign the same degree of culpability to criminal acts committed at this age to that which would be assigned to the behavior of a fully mature and responsible adult.
PRP , Steinberg Decl. at 13 ( boldface omitted)

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5 ANALYSIS
I. PRP P RINCIPLES We have three options when reviewing a PRP: “‘ (1) dismiss the petition, (2) transfer the petition to the superior court for a full determination on the merits or a reference hearing, or (3) grant the petition

. ’ ” In re Pers. Restraint of Ali , 196 Wn.2d 220, 2 42, 474 P.3d 507 (2020) , pet. for cert. filed , No. 20

- 280 (U.S. Dec. 16, 2020) (quoting In re Pers. Restraint of Yates , 177 Wn.2d 1, 17, 296 P.3d 872 (2013 ) ). We may grant a PRP if “[m]aterial facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the

. . . sentence .” RAP 16.4(c)(3). To obtain relief, a petitioner must show either “(1) a constitutiona l error that resulted in actual and substantial prejudice or (2) a nonconstitutional error that ‘constitutes a fundamental defect which inherently results in a complete miscarriage of justice.’” In re Pers. Restraint of Meredith , 191 Wn.2d 300, 306, 422 P .3d 458 (2018) (internal quotation marks omitted) (quoting In re Pers. Restraint of Davis , 152 Wn.2d 647, 671

- 72, 101 P.3d 1 (2004)).
II

. T IMELINESS Kennedy filed this PRP on April 10, 2019, almost 10 years after his judgment and sentence became final on August 31 , 2009

. T herefore, his petition is subject to the one

- year time bar u nless it is facially invalid or based solely on a statutory exception to the time bar. RCW 10.73. 090 (1), (3)(b); RCW 10.73.100

. Kennedy relies on the statutory exception for newly discovered evidence under RCW 10.73.100(1)

. To be entitled to relief based on “newly discovered evidence,” a petitioner must establish that the evidence “ (1) will probably change the result of the [sentencing ], (2) was discovered si nceNo. 53360

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the [sentencing ], (3) could not have been discovered before [sentencing] by the exercise of due diligence , (4) is material , and (5) is not merely cumulative or impeaching. ” In re Pers. Restraint of Fero , 190 Wn.2d , 1, 15 , 409 P.3d 214 (2018) ( pluralit y decision)

. The thir d requirement is determinative here because the evidence upon which Kennedy relies was available at the time of his sentencing.
K e nnedy argues that the neuro development of late adolescents was not widely accepted until 2015, and thus, this “ newly discovered evidence ” was not available at the time of his sentencing in September 2007. 3
C ontrary to Kennedy’s argument, research on the neuro d e velopment of late adolescents existed at the time of Kennedy’s sentencing in 2007

. Dr. Steinberg’s August 2018 declaration acknowledges that such research existed in 2003

. Specifically, Dr. Steinberg state s that “ [t] his contemporary view of brain development as ongoing at least until age 21 stands in marked contrast to the view held by sci entists as recently as 15 years ago.” PRP , Steinberg Decl

. at 6

. In addition,

w e note that Kennedy’s pending CrR 7.8 motion filed in 2018 cites research that was available at the time of his sentencing in 2007

. Further, courts began to recognize the difference in late adolescents as early as the late 1990s. I n State v. Ha’mim , our S upreme C ourt rejected the defendant’s argument that “age alone may be used as a factor to impose an exceptional sentence outside of the standard range for the crime.” 132 Wn.2d 834, 846, 940 P.2d 633 (1997), abrogated by O’Dell , 183 Wn.2d at 680 , 358

3 Kennedy phrases the issue in terms of when the research w ould have been admissible under Frye v. Un ited States , 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923). However, that is not the issue we are deciding and the rules of evidence do not apply at senten c ing , so the Frye standard is irrelevant. ER 1101(c)(3).No. 53360

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P.3d 359 (2015)

. The Ha’mim court cited to RCW 9.94A.390 to show that age could be a mitigating factor “that the defendant’s capacity t o appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law was significantly impaired.” Ha’mim , 132 Wn.2d at 846. However, no such finding was made in Ha’mim ’s case, and the Supreme Court found no evidence that a g e was a mitigating factor in that case. Ha’mim , 132 Wn.2d at 846. S ubsequently in O’Del l , our S upreme C ourt clarified that Ha’mim did not “absolutely bar[]” a sentencing court from considering age as a mitigating factor. O’Dell , 183 Wn.2d at 698. There, the Supreme C ourt cited to numerous studies addressing neurodevelopment in late adolescents from as early as 2004

. See O’Dell , 183 Wn.2d at 692 n.5. 4
The discuss ion above demonstrates that the research regarding neuro develop ment of late adolescents was available in 2007 when Kennedy was sentenced , although it has evolved over time . Thus, at his sentencing hearing, Kennedy could have cited this research to argue that his youthfulness was a mitigating factor.
We hold that because the evidence regarding the neurodevelopment of late adolescents is
not newly discovered evidence under RCW 10.73.100(1) , Kennedy’s PRP is subject to the one

year time bar and is un timely

.

4 See , e.g. , Jay N. Giedd, Structural Magnet ic Resonance Imaging of the Adolescent Brain , 1021 A NN
. N.Y. A CAD
. S CI
. 77 (June2004) (“The dorsal lateral prefrontal cortex, important for controlling impulses, is among the latest brain regions to mature without reaching adult dimensions until the early 20s.”).No. 53360

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8 CONCLUSION
We d ismiss Kennedy’s PRP as time

- barred

.

S UTTON , A.C.J. We concur:

W ORSWICK , J.

M AXA , J.