IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the Personal Restraint of: No. 53360-0-II

ANDREW KENNEDY,

PUBLISHED OPINION

Petitioner.

SUTTON, 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. Kennedy 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. Kennedy 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 discovered evidence, and thus, we dismiss 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 respondent, 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, 2021
No. 53360-0-II

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FACTS

In 2004, Kennedy assumed custody of his cousin’s 10-month-old daughter, Kieryn 

Severson. Two months later, Kennedy killed Kieryn by intentionally swinging 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. On 

September 6, 2007, the court sentenced 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 superior 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 cited 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 LightRoth. 189 Wn.2d 1030 (2017). Our Supreme Court ultimately reversed Division One and held 

that 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, Kennedy 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 Wn.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 160, 166.
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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 an 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 establishing 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 that “[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. PRP, Steinberg Decl.

at 3.

Dr. Steinberg also provides a history of the neuroscience regarding brain maturation for 

late adolescents up to at least 21 years of age. His declaration states,

Further study of brain maturation conducted during the past decade has revealed 

that several aspects of brain development 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 adolescence became widely accepted 
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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 ago. We now know that, in many respects, 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 (footnote omitted). 

Dr. Steinberg opines that “the main underlying cause of psychological 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 continued 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 

characteristic of the brains of individuals between 18 and 21.

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 inappropriate 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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ANALYSIS

I. PRP PRINCIPLES

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, 242, 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 constitutional 

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. TIMELINESS

Kennedy filed this PRP on April 10, 2019, almost 10 years after his judgment and sentence 

became final on August 31, 2009. Therefore, his petition is subject to the one-year time bar unless 

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 since 
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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) (plurality decision). The third requirement is 

determinative here because the evidence upon which Kennedy relies was available at the time of 

his sentencing. 

Kennedy argues that the neurodevelopment 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 

Contrary to Kennedy’s argument, research on the neurodevelopment 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 states that “[t]his 

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 ago.” PRP, Steinberg Decl. at 6. In addition, 

we 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. In State v. Ha’mim, our Supreme Court 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 would have been admissible under Frye 

v. United 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 sentencing, so the Frye standard is irrelevant. 

ER 1101(c)(3).
No. 53360-0-II

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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 to 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 age was a mitigating factor in that case. Ha’mim, 132 

Wn.2d at 846. Subsequently in O’Dell, our Supreme Court 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 Court 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 discussion above demonstrates that the research regarding neurodevelopment 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 oneyear time bar and is untimely. 

 

4

See, e.g., Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 

ANN. N.Y. ACAD. SCI. 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.”).
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CONCLUSION

We dismiss Kennedy’s PRP as time-barred.

SUTTON, A.C.J.

We concur:

WORSWICK, J.

MAXA, J.