# /mCTEV

/ IN CLERU OFFICE X aUPflSECOURT.8TOEOFIMMNMOICN date 3 (j em^MsTiGE This opinion was 

### filed fqrrecord at8^/tc^n ;ir>^Ln



# - -d 2i Susan L. Carlson Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON,

Petitioner,

CRISTIAN DELBOSQUE

Respondent. No. 96709-1

EN BANC

Filed: 3 0 2020

YU,J. — We have continually recognized that children are different from 

### adults for the purpose ofsentencing. We also recognize that trial judges face an extraordinarily difficult task when determining whether a child's crime is a 

### reflection oftransient immaturity or permanent incorrigibility. This case requires

us to elaborate on how that determination is made in the context ofMiller-fix^ resentencing.

' The Washington Legislature enacted the Miller-fix statutes,RCW 10.95.030 and 10.95.035,in response to the United States Supreme Court's ruling that mandatory life without parole sentences for juveniles are unconstitutional. See Miller v. Alabama,567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).State V. Delbosque,No. 96709-1

In 1994, 17-year-old Cristian J. Delbosque was convicted ofaggravated first degree murder and received a mandatory life sentence without the possibility of release. Because he was a juvenile at the time ofhis offense,Delbosque was resentenced in 2016 in accordance with the Miller-fix statute and received a 

### minimum term of48 years without the possibility ofparole. The Court ofAppeals concluded that Delbosque could seek review ofhis sentence only through a personal restraint petition (PRP),rather than direct appeal,but nevertheless reversed his sentence,holding that the trial court's factual findings were not supported by substantial evidence. 

### We affirm the Court ofAppeals'holding that the sentencing court's findings
were not supported by substantial evidence,thus remanding for resentencing was proper. However,we reverse the Court ofAppeals'holding that Delbosque was 

### not entitled to a direct appeal. We therefore affirm in part,reverse in part, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND A. The crime and original sentence On October 18, 1993,after a period ofheavy drinking, 17-year-old 

### Delbosque brutally murdered Filiberto Sandoval and Kristina Berg. When questioned by police,Delbosque waived his rights and confessed to the murders, 

### although he testified at trial that his girlfriend was the one responsible.State V. Delbosque,No. 96709-1

A jury found Delbosque guilty ofaggravated first degree murder for the death ofBerg and second degree felony murder for the death ofSandoval. 

### Delbosque was sentenced to mandatory life without the possibility ofparole for Berg's murder.^ B. 2016 Miller-fix hearing 

### The Washington Legislature enacted the Miller-fix statute in response to the United States Supreme Court's decision in Miller, 567 U.S. 460. Miller held the 

### Eighth Amendment's ban on cruel and unusual punishment prohibits mandatory 

### life without parole sentences forjuveniles and requires sentencing judges to consider "how children are different,and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480;U.S.CONST, 

### amend.VIII. The Miller-fix amended several RCW chapters relating to juvenile sentencing; however,this case involves only provisions concerning unlawful mandatory life withoutparole sentences for aggravated first degree murder. RCW 10.95.035(1)provides thatjuveniles who received such sentences prior to June 1, 2014 "shall be returned to the sentencing court or the sentencing court's successor for sentencing consistent with RCW 10.95.030." Delbosque was ajuvenile eligible to be resentenced.

^ Delbosque's felony murder conviction was later vacated in accordance with In re PersonalRestraint of

Andress, 147 Wn.2d 602,56 P.3d 981 (2002).State V. Delbosque,No. 96709-1

Between June and November 2016,the superior court held a four-day evidentiary hearing pursuant to the Miller-Tix statute. Both sides presented several witnesses who testified about the crime,about Delbosque's life experience leading up to the murders,and about his behavior as an adult. In its oral ruling,the trial sentenced Delbosque to a minimum term of48 years without the possibility of release. 1. Evidence presented The State presented testimony from the officer who investigated the crime, 

### the juvenile court officer who interviewed Delbosque for his decline determination, and the unit supervisor ofthe prison where Delbosque was incarcerated at the time 

### ofhis resentencing. While incarcerated,Delbosque received prison infractions for 

### fighting without a weapon;for extortion; and for possession ofa weapon,tattoo paraphernalia,and another inmate's property. Between the ages of29 and 32,he
was repeatedly investigated for gang-related violence. His last infraction occurred 

### in 2010,alleging that Delbosque used his position in a gang to arrange an assault on another inmate. None ofthe infractions were referred for prosecution. The con*ections officer also testified that but for Delbosque's life sentence and 

### immigration detainer,he would be classified as a minimum security prisoner. Six victim impact statements were offered by Berg's family members.State V. Delbosqiie,No.96709-1



### Delbosque's siblings testified about his childhood experiences ofgrowing up in extreme poverty and losing his mother as a young child. In addition,Delbosque confided during his psychiatric evaluations that he was physically and sexually abused by multiple family members. Two experts testified in support ofDelbosque. Dr.Manuel Saint Martin 

### testified about Delbosque's current psychological state and low propensity for future dangerousness. He also concluded that Delbosque was likely experiencing 

### alcohol-induced psychosis at the time ofthe crime. Dr. Sarah Heavin opined that Delbosque's executive functioning deficits were likely greater than the average 17- year-old because ofhis early childhood traumas. This in turn would have 

### negatively impacted his development and ability to regulate his behavior. 2. Judgment and sentence 

### Following closing argument,the superior courtjudge issued a lengthy oral decision setting Delbosque's minimum term at 48 years. In arriving at this sentence,the court explained. The Court recognizes that this sentence may be considered a de facto life 

### without the possibility ofparole sentence. However in reaching this conclusion,the Court considered the factors required by RCW 10.95.030(3)(b)and the Miller factors required for consideration ofa life without the possibility ofparole sentence, and finds that the crime committed by Mr. [Delbosque] is one ofthose rare cases where a life 

### without the possibility ofparole sentence would be appropriate,except for the potential reduction ofrisk caused by advancing old age. 4 Verbatim Report ofProceedings (VRP)(Nov. 23,2016)at 662.State V. Delbosque,No. 96709-1



### The court then entered an order incorporating a supplemental written memorandum opinion that set forth the court's findings and conclusions. C. Appeal and review 

### Delbosque directly appealed,and the Court ofAppeals unanimously reversed in a published opinion. State v. Delbosque,6 Wn.App. 2d 407,430 P.3d 1153 (2018). The court held that "the proper method for Delbosque to seek review 

### ofthe superior court's order is a PRP,"but it decided to "disregard this procedural defect and review Delbosque's appeal as a PRP." Id. at 413-14. 

### On the merits,the court held that "(1)the superior court's findings regarding Delbosque having an attitude toward others reflective ofthe underlying crime and ofDelbosque's permanent incorrigibility and irretrievable depravity are not supported by substantial evidence and (2)the superior court failed to comply with the Miller-fix statute when setting the minimum term." Id. at 414. The court 

### therefore determined that Delbosque's restraint is unlawful,granted his PRP,and remanded for resentencing. Id. at 421. 

### The State filed a petition for review challenging the Court ofAppeals' decision on the merits. Delbosque sought review ofthe Court ofAppeals' decision to treat his appeal as a PRP. We granted review ofboth issues.
ISSUESState V. Delbosque,No.96709-1



### A. Were the superior court's findings supported by substantial evidence in the record? B. Ifthe findings were not supported by substantial evidence,is the 

### appropriate remedy to remand for resentencing to give the trial court the benefit of
our subsequent decisions? C. Does RCW 10.95.035(3),which requires parties seeking review ofa minimum term sentence imposed pursuant to the Miller-fix statute to file a PRP, violate the right to appeal in criminal cases guaranteed by article I, section 22 of the Washington Constitution?
ANALYSIS A. The Court ofAppeals was correct in its review ofthe trial court's findings Three provisions ofthe Miller-fix statute govern Delbosque's resentencing. First,RCW 10.95.035(1)provides thatjuveniles who received such sentences prior to June 1, 2014 "shall be returned to the sentencing court or the sentencing court's
successor for sentencing consistent with RCW 10.95.030." Second,RCW 10.95.030(3)(a)(ii)gives 16- to 18-year-old juvenile homicide offenders a chance to become eligible for parole by requiring that they receive "a maximum term of life imprisonment and a minimum term oftotal confinement ofno less than twenty-five years." Third,RCW 10.95.030(3)(b)provides: In setting a minimum term,the court must take into account mitigating factors that account for the diminished culpability ofyouth as providedState V. Delbosque,No. 96709-1

in Miller v. Alabama, 132 S.Ct. 2455 (2012)including, but not limited to,the age ofthe individual,the youth's childhood and life experience, the degree of responsibility the youth was capable of exercising, and the youth's chances ofbecoming rehabilitated. We will reverse a sentencing court's decision only ifwe find '"a clear abuse ofdiscretion or misapplication ofthe law.'" State v. Blair, 191 Wn.2d 155, 159, 421 P.3d 937 (2018){quoting State v. Porter, 133 Wn.2d 177, 181,942 P.2d 974 

### (1997)). A trial court abuses its discretion when "its decision 'is manifestly unreasonable or based upon untenable grounds.'" State v. Lamb, 175 Wn.2d 121, 127,285 P.3d 27 (2012)(quoting State v. Powell, 126 Wn.2d 244,258,893 P.2d 

### 615 (1995)). Further,"[t]he 'untenable grounds' basis applies 'ifthe factual 

### findings are unsupported by the record.'" Id.(quoting In re Marriage of Littlefield, 133 Wn.2d 39,47,940 P.2d 1362 (1997)). 

### Here,the State contends that the Court ofAppeals erred when it held that 

### two ofthe superior court's findings were not supported by substantial evidence. 

### We review findings offact for substantial evidence. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705 (2014). "Substantial evidence exists where there is a sufficient 

### quantity ofevidence in the record to persuade a fair-minded,rational person ofthe truth ofthe finding." State v. Hill, 123 Wn.2d 641,644,870 P.2d 313 (1994). We affirm that the Court ofAppeals properly held that substantial evidence did not support the following findings: (1)that Delbosque continues to exhibit an attitude toward others that is reflective ofthe underlying murder where he chooses toState V. Delbosque,No. 96709-1

advance his own needs over others and (2)that the crime was not symptomatic of transient immaturity,but has proven over time to be a reflection ofiiTeparable corruption,permanent incorrigibility, and irretrievable depravity. Accordingly,we hold that the trial court abused its discretion,reverse Delbosque's sentence,and remand for resentencing. 

### 1. Substantial evidence does not support the finding that Delbosque continues to exhibit an ongoing attitude toward others that is reflective ofBerg's murder The trial court cited three factors in support ofthis finding: the nature ofthe 

### crime,Delbosque's attempt at trial to implicate his girlfriend in Berg's murder,and his institutional record. With respect to this third factor,the trial court focused on 

### an infraction Delbosque received in 2010 for allegedly arranging an assault on another inmate. Delbosque was 34 at the time. 

### As the Court ofAppeals pointed out,"the court's only example ofthis attitude was Delbosque's 2010 infraction for attempting to arrange an assault, 

### which occurred six years prior to the evidentiary hearing." Delbosque,6 Wn.App. 2d at 418. In other words,two ofthe court's three examples ofan ongoingpattern ofpredatory behavior relate back to the crime and prosecution,which occurred
over 20 years before Delbosque was resentenced. The Court ofAppeals thus determined that "to whatever extent Delbosque's infraction history does exhibit aState V. Delbosque,No.96709-1

pattern related to the murder he committed,that pattern is not continuing or cuiTent." Id. Furthermore,while discussing Delbosque's 2010 infraction as evidence of
an ongoing attitude reflective ofthe murder,the sentencing judge declared that 

### "[tjhere is no identified program or treatment presented to deal with this negative attribute." 4 VRP (Nov. 23,2016)at 660. But this overlooks the fact that certain 

### programs,such as substance abuse treatment and anger management programs, were not available to Delbosque because they are reserved only for people with release dates. Moreover,Delbosque "demonstrated a desire to engage in programming that's not available to him as someone who's classified as a life 

### withoutpossibility ofparole inmate," and he actually took advantage ofthose 

### opportunities when available.^ 3 VRP (Nov. 1, 2016)at 490. Because the trial court's "only example" ofan ongoing attitude reflective of 

### the murder is Delbosque's 2010 infraction,the Court ofAppeals correctly determined that there is insufficient evidence to support this finding. Delbosque,6 Wn.App. 2d at 418. 

### 2. Substantial evidence does not support the finding that Delbosque's crime was a reflection of"iiTcparable corruption,permanent incorrigibility, and iiTetrievable depravity"



### ^ For example,Delbosque took a parenting class,despite not being aparent,because "he wanted to understand how his parents had influenced his development." 3 VRP (Nov. 1,2016) at 519.

10State V. Delbosque,No. 96709-1

In its oral decision,the trial court analyzed whether Delbosque's crime was "a reflection oftransient immaturity associated with youth,or something more heinous,often characterized by words such as irreparable corruption,permanent inconigibility, irretrievable depravity,such that rehabilitation is impossible, making life without parole justified." 4 VRP (Nov.23,2016)at 655. This analysis 

### "consider[ed]the actual crime,as well as the life and actions of[Delbosque]after he committed the crime." Id. Yet the primary evidence for this finding was,as 

### with the prior finding,based on the crime,Delbosque's attempt to implicate his girlfriend, and his 2010 infraction. Accordingly,the Court ofAppeals properly determined that "Delbosque's infraction is not evidence ofirreparable corruption proven over time. Delbosque had been in prison for approximately 15 years before the 2010 infraction,and the infraction took place 6 years before the evidentiary hearing." Delbosque,6 Wn.App. 2d at 418. The Court ofAppeals further considered that the trial court "failed to 

### address the greater prospects for reform from a crime committed while Delbosque
was a child. . . . The court's rationale is also inconsistent with Miller's recognition that incorrigibility is inconsistent with youth." Id. at 420. This reasoning is consistent with our case law indicating that irreparable corruption should be rare. State V. Bassett, 192 Wn.2d 67, 89,428 P.3d 343 (2018). Indeed,Bassetfs

11State V. Delbosque,No. 96709-1

prohibition on juvenile life without parole sets a high standard for concluding that
a juvenile is permanently incorrigible. Furthermore,the trial court's oral ruling oversimplified and sometimes 

### disregarded Delbosque's mitigation evidence. For example,the Court ofAppeals considered the following testimony from Dr.Heavin,who evaluated whether youth
was a factor in Delbosque's case: '"[Yjouthfulness,combined with trauma,made 

### him less likely to monitor his own behavior responsibly, inhibit aggressive 

### behavior,"'and '"his relative risk taking was greater than a typically developing youth without those same risk factors.'" Delbosque,6 Wn.App.2d at 411. Yet the trial court recharacterized Dr.Heavin's conclusions by stating that "these risk 

### factors had thepotential for a significant impact on [Delbosque's]ability as a juvenile to appropriately respond to his surroundings and appreciate the ramifications ofhis actions." 4 VRP (Nov.23,2016)at 645 (emphasis added). In fact. Dr.Heavin asserted that "lack ofgood decision making was a cumulative effect ofthe various traumas he'd experienced,the poverty he'd experienced,his lack ofeducation,his lack ofrelative social support and his alcohol dependence." 3 VRP (Nov. 1, 2016)at 510. In other words.Dr.Heavin did not testify that 

### Delbosque's life experiences merely had thepotential to have a negative impact on his decisions,but that they actually did have such an impact. The court also

12State V. Delbosque,No.96709-1

minimized expert testimony about Delbosque's alcohol addiction at the time ofthe crime and how alcohol uniquely impacts the developing teenage brain. Similarly,the oral ruling does little to acknowledge Delbosque's mitigation 

### evidence demonstrating his capacity for change. The Court ofAppeals highlighted testimony that Delbosque "would qualify for minimum security except for the term 

### ofhis sentence and an immigration detainer." Delbosque,6 Wn.App. 2d at 410. In addition,Dr. Saint Martin testified that Delbosque's relatively few infractions over a 23-year period, coupled with his progressive decrease in security level, were proofthat he was not iiTeparable and in fact could safely be released. He further opined that Delbosque's risk for future dangerousness would be low. This 

### evidence,however,was not addressed in the trial court's analysis. These examples suggest that the trial judge did not adequately consider 

### mitigation evidence that would support a finding ofdiminished culpability,rather than irretrievable depravity. Miller hearings require sentencing courts to meaningfully consider "mitigating factors that account for the diminished 

### culpability ofyouth," including "the youth's chances ofbecoming rehabilitated." RCW 10.95.030(3)(b). Moreover,the trial court concluded that Delbosque is irretrievably depraved without reconciling, much less aclcnowledging, significant evidence to the contrary. We therefore affirm the Court ofAppeals' conclusion that substantial evidence does not support a finding ofpermanent incorrigibility.

13State V. Delbosque,No. 96709-1

B. Given the lack ofsubstantial evidence,we remand for resentencing to give the trial court the benefit ofour subsequent decisions After Delbosque's 2016 resentencing hearing,this court decided two cases that significantly altered juvenile sentencing in Washington. The first was State v. Ramos, 187 Wn.2d 420,387 P.3d 650 (2017). There,we outlined considerations that trial courts must take into account when conducting a Miller hearing. Bassett 

### followed shortly thereafter, categorically eliminating juvenile life without parole. Bassett, 192 Wn.2d at 91. In light ofthese cases,a remand for resentencing is 

### appropriate so the superior court may have the benefit ofrecent,relevant precedent when resentencing Delbosque. 

### 1. The trial court did not have the benefit ofRamos or Bassettto guide its decision Delbosque's resentencing hearing occurred in 2016,before this court 

### decided either Ramos or Bassett. Although neither case directly applied RCW 10.95.035,both discuss issues that are highly relevant to what is required when setting a minimum term pursuant to the Miller-fix statute. Much oftheir analysis therefore applies to this case and to Miller hearings pursuant to RCW 10.95.030. First,Ramos clarified that courts "must meaningfully consider how juveniles
are different from adults,how those differences apply to the facts ofthe case, and whether those facts present the uncommon situation where a life-without-parole sentence for a juvenile homicide offender is constitutionally permissible." Ramos,

14State V. Delbosque,No. 96709-1

187 Wn.2d at 434-35 (emphasis added). This means a court "must do far more than simply recite the differences between juveniles and adults and make conclusory statements that the offender has not shown an exceptional downward sentence is justified." Id. at 443. Instead,the court must "receive and consider relevant mitigation evidence bearing on the circumstances ofthe offense and the 

### culpability ofthe offender,including both expert and lay testimony as appropriate." Id. 

### Predicting ajuvenile's future dangerousness is extremely difficult. As the 

### United States Supreme Court has acknowledged,"The reality thatjuveniles still struggle to define their identity means it is less supportable to conclude that even a 

### heinous crime committed by a juvenile is evidence ofirretrievably depraved character." Roper v. Simmons,543 U.S. 551,570, 125 S. Ct. 1183, 161 L.Ed. 2d 1 (2005). Miller further attests that "a child's character is not as 'well formed' as 

### an adult's; his traits are 'less fixed.'" Miller, 567 U.S. at 471 (quoting Roper,543 U.S. at 570). For this reason,resentencing courts must consider the measure of 

### rehabilitation that has occun-ed since a youth was originally sentenced to life without parole. Indeed, other courts have also continued to refine their review ofMiller 

### hearings in this regard. For instance,the Ninth Circuit Court ofAppeals recently remanded a Miller resentence to the district court based on the "district court's

15State V. Delbosque,No. 96709-1

heavy emphasis on the nature of[the defendant's] crime,coupled with [the defendant's] evidence that his is not one ofthose rare and uncommon cases for 

### which LWOP [life without parole] is a constitutionally acceptable sentence." United States v. Briones,929 F.3d 1057, 1067 (9th Cir. 2019). In clarifying what is required in a Miller hearing,the Ninth Circuit declared that sentencing courts "must reorient the sentencing analysis to a forward-looking assessment ofthe 

### defendant's capacity for change or propensity for incorrigibility,rather than a backward-focused review ofthe defendant's criminal history." Id. at 1066. "The 

### key question is whether the defendant is capable ofchange. Ifsubsequent events effectively show that the defendant has changed or is capable ofchanging,LWOP is not an option." Id. at 1067 (citation omitted). These observations are highly relevant in light ofthe evidence Delbosque presented at his resentencing hearing. Next,Bassett held thatROW 10.95.030(3)(a)(ii)is unconstitutional to the 

### extent that it allows any juvenile to be sentenced to life without parole. Bassett, 192 Wn.2d at 91. Consequently,every judge conducting a Miller sentencing in Washington must set a minimum term that is less than life. In Ramos,we stated that a "standard range consecutive sentencing may,and in this case did,result in a total prison term exceeding the average human life-span—^that is, a de facto life sentence." Ramos, 187 Wn.2d at 434. However,we did not define "de facto life 

### sentence" as a "total prison term exceeding the average human life-span." Id.

16State V. Delbosque,No.96709-1

Rather,we explicitly stated, "It is undisputed that Ramos' 85-year aggregate sentence is a de facto life sentence, so the question ofprecisely how long a potential sentence must be in order to trigger Miller's requirements is not before 

### us. We reserve ruling on that question until we have a case in which it is squarely presented." Id. at 439 n.6 (emphasis added). Although the trial court clearly intended to impose a life sentence when setting Delbosque's 48-year minimum term,the question ofwhether this amounts to a de facto life sentence is not squarely presented here, either. We therefore decline to address the issue. In sum,Bassett has narrowed the available sentences under the Miller-fix 

### statute,while Ramos and other courts have clarified what a meaningful 

### consideration ofyouth requires in terms ofprocedure. The superior court would benefit from such precedent in making its resentencing decision. 

### 2. The Court ofAppeals rightly did not allocate a burden ofproofor treat age as a per se mitigating factor The State contends that a remand for resentencing is nevertheless 

### inappropriate for two reasons. First,the State asserts that the Court ofAppeals "misallocat[ed]the burden ofproofand persuasion" when it "seemed to allocate the burden ofproofon the State." Mot.for Review at 6. Contrary to the State's

17State V. Delbosque,No. 96709-1



### position,the Court ofAppeals properly did not assign a burden ofproofto either 

### the State or Delbosque when reviewing the trial court's decision.'^ The State's argument is grounded in its incorrect beliefthat Delbosque 

### "bears the burden ofproving that his crime was the result oftransient immaturity."^ Id. at 5 (citing Ramos, 187 Wn.2d at 434-37). The State misinterprets Ramos. There,we held that in the context ofthe Sentencing Reform Act of 1981 (SKA), ch. 9.94A RCW,a juvenile bears the burden ofproving by a preponderance of evidence that an exceptional sentence below the standard range is justified. Ramos, 187 Wn.2d at 435. This reasoning does not extend to sentencing hearings pursuant to the Miller-fix statute,which unlike the SRA,does not impose a burden ofproofon either party. Indeed,the trial court rightly stated that although Miller and RCW 10.95.030(3)(b)"provide factors and guidelines for the court to consider during the resentencing hearing . . .they do not establish any presumptions to be created or rebutted by any party." Clerk's Papers (CP)at 238. We agree with the

Aniici in support ofDelbosque propose that "[t]he State musthave the burden to prove by clear and convincing evidence that the child is incorrigible to justify a minimum sentence over 25 years." Br. ofFred T.Korematsu Ctr. for Law & Equality et al. as Amici Curiae at 13. We appreciate amici's thoughtful consideration ofthe appropriate burden ofproofand understand the desire for a clear benchmark. However,the statute is silent and thus does not provide for siieh a result. ^ The State's briefing is inconsistent on this point. While its petition for review argues that Delbosque has the burden ofproving his crime was the result oftransient immaturity,its response to the joint amici briefsupporting Delbosque recognizes that "RCW 10.95.030 does not allocate or define the burden ofproofapplicable at a Miller-fa.hearing." Br. ofPet'r in Resp. to Br. ofAmici Curiae at 14.

18State V. Delbosque,No. 96709-1

trial court that the statute does not allocate a burden ofproof,and we decline to write one in. The State further asserts that the Court ofAppeals "treat[ed] age as a per se mitigating factor," going so far as to characterize the opinion as "say[ing]that all children, all the time,no matter the conduct and irrespective ofthe facts ofthe crime,are entitled to a mitigated sentence." Mot. for Review at 6. Far from this, 

### the Court ofAppeals merely emphasized the central tenets ofGraham^ and Miller. Children are '"less deserving ofthe most severe punishments' . . . and their traits 

### are less likely to be evidence ofiiTetrievable depravity." Delbosque,6 Wn.App. 2d at 419 (internal quotation marks omitted)(quoting Miller, 567 U.S. at 471). Thus,the State's arguments that the Court ofAppeals misallocated the 

### burden ofproofand improperly treated age as a per se mitigating factor are not supported by the record or the law. In addition, our cases decided after Delbosque's resentencing provide significant guidance on the standards that sentencing courts should apply at Miller hearings. We therefore hold that the Court ofAppeals correctly reversed Delbosque's sentence and remanded for a new Miller hearing. C. The Court ofAppeals incoiTectly held that Delbosque may seek review of his resentence only by PRP,in violation ofarticle I, section 22

Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

19State V. Delbosque,No. 96709-1

We now consider whether RCW 10.95.035(3)violates article I, section 22 of the Washington Constitution. Article I, section 22 ofthe Washington Constitution provides,"In criminal prosecutions the accused shall have . . . the right to appeal in all cases." Meanwhile,RCW 10.95.035(3)provides, "The court's order setting a minimum term is subject to review to the same extent as a minimum term decision 

### by the parole board before July 1, 1986." We review a statute's constitutionality de novo and presume that the statute is constitutional. Bassett, 192 Wn.2d at 77. 

### To prevail,Delbosque must show the statute is unconstitutional beyond a reasonable doubt. Id. 

### Parole board decisions setting minimum terms before July 1, 1986 were 

### reviewed by PRP,thus the Court ofAppeals determined that Delbosque's appeal was improper and treated it as a PRP. Delbosque,6 Wn.App.2d at 413-14. Delbosque argued to the Court ofAppeals that allowing review only by PRP violates article I, section 22,but the Court ofAppeals declined to consider his argument, concluding that he raised it too late. Id. at 413 n.3. We exercise our 

### discretion to reach the merits ofDelbosque's argument because it is an important constitutional issue that is likely to recur. With few exceptions, our case law is clear that criminal defendants have the right to appeal sentences and to correct legal errors and abuses ofdiscretion. 

### Whether Delbosque has a right to appeal turns on whether the Miller-fix remedy

20State V. Delbosque,No. 96709-1

provides only for an amended sentence or requires an actual resentencing. The plain language ofRCW 10.95.035(3)and Washington precedent suggest that a Miller hearing results in a new,appealable sentence. We therefore reverse the Court ofAppeals on this issue and hold that RCW 10.95.035(3)violates article I, section 22 ofthe Washington Constitution. 1. Washington law broadly guarantees the right to appeal sentences, even after resentencing As a general rule, the Washington Constitution guarantees criminal defendants the right to appeal "in all cases." CONST,art. I, § 22. There are limited 

### exceptions to this rule; specifically, standard range sentences pursuant to the SRA are not appealable. RCW 9.94A.585(1). This provision ofthe SRA does not 

### violate the constitutional right to appeal because "[wjhen the sentence given is within the presumptive sentence range then as a matter oflaw there can be no abuse ofdiscretion." State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719,718 P.2d 796 (1986). However,even RCW 9.94A.585(1)"does not bar a party's right to challenge the underlying legal conclusions and determinations by which a court comes to apply a particular sentencing provision." State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003). Indeed,"appellate review is still available for the correction oflegal errors or abuses ofdiscretion in the determination ofwhat sentence

21State V. Delbosque,No.96709-1

applies." Id. Thus,even where a statute appears to broadly prohibit any direct appeal, certain appeals must be allowed pursuant to article I, section 22. 

### In the context ofresentencing,the right to appeal may depend on the nature and scope ofthe errors in the original sentence. The Court ofAppeals has held that [rjemand to correct a scrivener's error does not result in a new final judgment and sentence and,accordingly,the court's action to correct the 

### error is not appealable as a matter ofright. Butremand for resentencing renders the prior judgment and sentence void and results in a new final judgment,which is appealable as a matter ofright. 

### State V. Amos, 147 Wn.App.217,224 n.l, 195 P.3d 564 (2008)(citations omitted). Our cases likewise recognize that remand and resentencing means that a defendant's "entire sentence [is]reversed, or vacated . . . the finality ofthe judgment is destroyed." State v. Harrison, 148 Wn.2d 550,562,61 P.3d 1104 

### (2003)(finding collateral estoppel did not apply because the defendant's prior sentence "ceased to be a final judgment on the merits"). 

### Thus,to determine whether there is a constitutional right to directly appeal from a sentence imposed pursuant to the Miller-fix statute, we must consider 

### whether the statute requires only an amendment ofthe original sentence or the entry ofan entirely new sentence. 2. The Miller-fix statute requires resentencing to remedy erroneous mandatory life without parole sentences The very purpose ofthe Miller-fix statute is to correct unconstitutional mandatory life without parole sentences in accordance with Miller. In re Pers.

22State V. Delbosque,No. 96709-1

Restraint of

McNeil, 181 Wn.2d 582,590,334 P.3d 548 (2014)("The Miller fix remedies the unlawfulness ofthe petitioners' sentences by providing they must be resentenced in a manner that does not violate the Eighth Amendment,consistent with Miller"). When an apparently legal sentence is later held unconstitutional, as here,the remedy is to "remand[]to the superior court, with instructions to 

### resentence appellants in accordance with law." State v. Lindsey, 194 Wash. 129, 130,77 P.2d 596 (1938)(emphasis added);see also State v. Mehlhorn, 195 Wash. 

### 690,692-93, 82P.2d 158 (1938). Such resentencing is subject to direct appeal. Lindsey and Mehlhorn illustrate how we have long treated resentences as 

### appealable. Both cases concerned an ex post facto law overturned by the United States Supreme Court. Lindsey, 194 Wash,at 130; Mehlhorn, 195 Wash,at 691. 

### The invalid sentences did not '"necessitate the granting ofa new trial, or vacation 

### ofthe verdict found,'" but rather served as '"a ground for reversing the erroneous 

### judgment or sentence,leaving the verdict to stand as a basis for a new and proper sentence.'" Lindsey, 194 Wash,at 131 (quoting 8 RULING Case Law Criminal Law § 237,at 237 (1915)). Mehlhorn further explained that the erroneous sentence 

### was "void as to offenses committed prior to its enactment" and thus required resentencing. Mehlhorn, 195 Wash,at 691. In both instances,the defendants directly appealed their resentencing decisions.

23State V. Delbosque,No.96709-1

Resentencing in accordance with the Miller-fix statute is consistent with the resentencing at issue in Lindsey and Mehlhorn. In both situations,the defendant
was given a sentence that was later held unconstitutional, and in both situations the defendant was given a new,appealable sentence. The Miller-fix statute itself 

### describes the process as "resentencing" that, like the resentencing in Lindsey,does not require a new trial on the defendant's underlying conviction. RCW 

### 10.95.035(4)("A resentencing under this section shall not reopen the defendant's conviction to challenges that would otherwise be barred by RCW 10.73.090, 10.73.100, 10.73.140,or other procedural bamers."). Thus,like the defendants in 

### Lindsey and Mehlhorn,individuals sentenced pursuant to the Miller-fix statute are constitutionally entitled to direct appeal. Nevertheless,because the Miller-fix statute provides that sentences will be 

### "subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986," one might presume that the two situations are similar. 

### RCW 10.95.035(3). This is not the case. Sentences imposed pursuant to the Miller-fix statute are procedurally and constitutionally distinct from minimum term sentences set by the parole board before July 1, 1986. 

### The imposition ofa minimum term sentence prior to July 1, 1986 occurred in an administrative setting where the parole board "relie[d] on standardized guidelines and inform[ed]an inmate ofthe reasons for his or her minimum term

24State V. Delbosqiie,No. 96709-1

when outside the guideline range." In re Pers. Restraint ofSinka,92 Wn.2d 555, 565-66,599 P.2d 1275 (1979). Consequently,this court determined that "the setting ofa minimum term is not part ofa criminal prosecution and the full panoply ofrights due a defendant in such a proceeding does not apply to a minimum term setting." Id. at 566. A resentencing pursuant to the Miller-fix statute is entirely different. Unlike
a parole board hearing,a Miller hearing is adversarial, involves arguments from both the defendant and the State, and mandates that a sentencing judge consider specific criteria that account for the diminished culpability ofyouth. These 

### differences demand more stringent due process protections than the "minimal due process" at stake in a minimum term hearing before the parole board. Id. at 556. 

### Whereas review by PRP is appropriate for a minimum term sentence imposed by the parole board,the same cannot be said for a sentence pursuant to Miller. Thus,both the procedures involved and the statutory language itselfstrongly indicate that the Miller-fix statute requires the trial court to vacate the eiToneous life without parole sentence and impose a new minimum term consistent with the 

### statutory criteria. Such resentencing necessarily results in a new,appealable sentence.^

^ The trialjudge proceeded as though this was the case,explaining in his memorandum opinion that "[t]he Order and Judgment will reflect. . . that the sentence set forth . . . will be

25State V. Delbosque,No. 96709-1

3. A PRP is not a substitute for appeal It is essential to preserve the right to appeal in criminal cases because a PRP does not,and is not meant to, afford the same protections as an appeal. See In re Pers. Restraint ofHagler, 97 Wn.2d 818, 824,650 P.3d 1103 (1982). On appeal, the standard ofreview is more favorable to criminal defendants, as the State has the burden to prove beyond a reasonable doubt that a constitutional error is harmless. Id. at 825. In contrast, a personal restraint petitioner claiming a constitutional violation must establish that they were actually and substantially prejudiced. In re Pers. Restraint of Benn, 134 Wn.2d 868, 884-85,952 P.2d 116 (1998). 

### The State contends that review ofa Miller resentencing will not be subject to this heightened standard because "the petitioner will have 'had no previous or alternative avenue for obtaining state judicial review' in such cases." Second Suppl.Br. ofPet'r at 3 (quoting In re Pers. Restraint ofCashaw, 123 Wn.2d 138, 149, 866 P.2d 8 (1994)). However,the State's reliance on Cashaw is questionable because the decision in that case was made by the Indeterminate Sentence Review Board,while Miller-fix sentences are imposed by trial courts. Moreover,even if Cashaw''s lower standard ofreview were to apply, a PRP is not an adequate

vacated and the court will impose a new term ofconfinement consistent with the court's decision after the resentencing proceeding." CP at 240.

26State V. Delbosque,No. 96709-1

substitute for an appeal because it provides limited bases for relief. See RAP 16.4(c). These heightened protections ofa direct appeal as compared to a PR? are especially significant in the context ofjuvenile sentencing. Indeed, we have recognized that "[wjhen a juvenile offender is sentenced in adult court, youth 

### matters on a constitutional level." Ramos, 187 Wn.2d at 428. Prohibiting 

### juveniles from appealing their Miller sentences not only violates their right to appeal,but runs contrary to our cases that bolster protections for juvenile offenders facing lengthy sentences. E.g.,Bassett, 192 Wn.2d 67;Ramos, 187 Wn.2d 420; 

### State V. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409 (2017)(holding 

### sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth ofany juvenile defendant). The fact that Delbosque could seek review by PRP is therefore insufficient. 

### The Miller-f\x statute requires a full resentencing,and the sentence imposed must be subject to direct appeal. RCW 10.95.035(3)therefore violates the right to appeal in criminal cases guaranteed by article 1, section 22.
CONCLUSION We affirm the Court ofAppeals'holding that the trial court's findings were not supported by substantial evidence and hold that the Court ofAppeals properly remanded Delbosque's case for resentencing. However,we reverse the Court of

27State V. Delbosqiie,No. 96709-1



### Appeals'determination that the only avenue to review a Miller resentencing is by PRP. We therefore affirm in part,reverse in part,and remand for resentencing.

28State V. Delbosque,No. 96709-1

WE CONCUR:

VJi

Z

J-LU

29