### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, 

### ) No. 77913-3-I

Respondent,
v. 

### ) ) PUBLISHED OPINION SEBASTIAN MICHAEL GREGG, 

### ) ) FILED: July 8, 2019 Appellant.
VERELLEN, J.

—Sebastian Gregg appeals the constitutionality of his standard range sentence. He contends when sentencing ajuvenile in adult court, the Eighth Amendmentto the United States Constitution and article I, section 14 of the Washington Constitution require a presumption that ajuvenile’s youthfulness is a mitigating factorand the State assumes the burden to overcome the presumption. Neitherthe federal northe Washington case law cited by Gregg supports his argument orwarrants deviating from the Sentencing Reform Act of 1981 (SRA),1 which places the burden of proving mitigating factors on the defendant. Gregg also challenges the voluntariness of his guilty plea. Although Gregg was affirmatively misinformed about his dutyto registeras afelonyfirearm offender, Gregg fails to establish manifest injustice.

1 Ch. 9.94A RCW.No. 77913-7-1/2
Therefore, we affirm. FACTS The facts ofthe underlying crimes are not at issue or in dispute. The State charged Gregg, along with his codefendant, Dylan Mullins, with first degree murderwith a firearm, first degree burglarywith a firearm, and first degree arson.2 Although Gregg was 17 years old atthe time ofthe murder, he was “subjectto the exclusive originaljurisdiction ofthe adult court” because he was charged with first degree murder.3 Gregg pleaded guilty as charged. At sentencing, Gregg requested an exceptional sentence downward based on his youthfulness. Following a six-day sentencing hearing, the court imposed a standard range ofsentence of444 months. Gregg appeals. ANALYSIS I. Challenge to the Standard Range Sentence Gregg challenges the trial court’s imposition ofa standard range sentence. The SRA provides that a standard range sentence “shall not be appealed.”4 But a party maystill “challenge the underlying legal conclusions and determinations bywhich a court comes to apply a particularsentencing

2 Clerk’s Papers (CP) at 14-15.

~ CP at 3.

~ RCW 9.94A.585(1).

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provision.”5 The SRA provides, “The court may impose a sentence outside the standard range foran offense if itfinds

. . . thatthere are substantial and compelling reasonsjustifying an exceptional sentence.”6 Underthe SRA, the defendant has the burden to prove mitigating circumstances by a preponderance ofthe evidence.7 Gregg contends the Eighth Amendmentto the United States Constitution and article I, section 14 oftheWashington Constitution require a presumption that ajuvenile’s youth is a mitigating factorand thatthe State assume the burden to prove otherwise beyond a reasonable doubt. Constitutional interpretation is a question of lawwe reviewde novo.8 Gregg raises these arguments forthe firsttime on appeal. Although “[tjhe appellate court may refuse to review any claim oferrorwhich was not raised in the trial court,” a party may raise a “manifest erroraffecting a constitutional right” for the firsttime on appeal.9 Gregg’s claimed error implicates his constitutional rights. And given the State’s lack of briefing on whetherthe error is manifest, the State appears to acknowledge this issue is reviewable forthe firsttime on appeal.

~ State v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650 (2017) (quoting State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003)). 6 RCW 9.94A.535.

~ RCW 9.94A.535(1). 8 Ramos, 187 Wn.2d at433.

~ RAP 2.5(a)(3).

3No. 77913-7-114

a. Eighth Amendmentto the United States Constitution The Eighth Amendment prohibits “cruel and unusual punishment.”10 In the context ofthis prohibition, the United States Supreme Court and the Washington Supreme Court have repeatedly recognized that children are differentfrom adults and these differences require different sentencing procedures, including full discretion forthe courtto consideryouthfulness at sentencing and a categorical barofcertain levels of punishmentforjuveniles. In 2005, in Roperv. Simmons, the United States Supreme Court acknowledged ‘[t]hree general differences between juveniles under 18 and adults [that] demonstrate thatjuvenile offenders cannotwith reliability be classified among the worst offenders.”11 First,

. . . “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”.

. The second area ofdifference is thatjuveniles are more vulnerable orsusceptible to negative influences and outside pressures, including peer pressure.

. The third broad difference is thatthe character ofajuvenile is not as well formed as that ofan adult.

. . . The personalitytraits of juveniles are more transitory, less fixed.~12]

10 U.S. CONST. amend. VIII.

~ 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1(2005). 12

### j4. at 569-70 (alteration in original) (quoting Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)).

4No. 77913-7-115
In consideration ofthese differences, the Court determined “[t]he Eighth and Fourteenth Amendmentsforbid imposition ofthe death penalty on offenders who were underthe age of 18 when their crimes were committed.”13 In 2010, in Graham v. Florida, the Court extended the categorical barfrom Roperto life without parole sentencesforjuveniles convicted of nonhomicide offenses.14 In 2012, in Millerv. Alabama, the Court barred “mandatory” life without parole sentences forjuveniles convicted ofany offense.15 The Court did not completelyforeclose a trial court’s abilityto impose a life sentence without the possibility of parole forjuvenile offenders convicted of homicide.16 But it did announce the Eighth Amendment required courts “to take into account how children are different, and howthose differences counsel against irrevocably sentencing them to a lifetime in prison.”17 In 2017, in State v. Ramos, our Supreme Court addressed whetherthe requirements of Millerapplied to literal and de facto life without parole sentences forjuveniles convicted of homicide.18 To supportthe court’s determination that a Miller hearing was required in both circumstances, the court analyzed the Miller factors:

13 ki. at 578. 14560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). 15567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). 16kLat480. 17 Id. 18 187 Wn.2d 420, 434, 387 P.3d 650 (2017).

5No. 77913-7-1/6

Atthe Miller hearing, the court must meaningfully consider how juveniles are differentfrom adults, howthose differences applyto the facts ofthe case, and whetherthose facts presentthe uncommon situation where a life-without-parole sentence forajuvenile homicide offender is constitutionally permissible. Ifthe iuvenile proves by a preponderance ofthe evidence that his or hercrimes reflecttransient immaturity, substantial and compelling reasons would necessarily justify an exceptional sentence belowthe standard range because a standard range sentence would be unconstitutional.[191 Our Supreme Court expressly determined “Millerdoes not require thatthe State assume the burden of proving that a standard range sentence should be imposed, ratherthan placing the burden on thejuvenile offenderto prove an exceptional sentence isjustified.”2° Additionally, although our Supreme Court acknowledged in Ramos, “most juvenile homicide offenders facing the possibility of life without parole will be able to meettheir burden of proving an exceptional sentence belowthe standard range isjustified,”21 Gregg is notfacing eithera literal ora de facto life without parole sentence. The courtsentenced Gregg to 444 months (37 years). Ramos does not endorse the additional procedural protections Gregg advocates. In Ramos, the defendant argued the State must assume the burden of proving the court should impose a standard range sentence. Although the Ramos court avoided “discount[ing] the potential benefits ofsuch procedural requirements,” the court determined the defendant had “not shown thatthe

19 k~. at434-35 (emphasis added). 20 k1. at436-37. 21 kI. at 443.

6No. 77913-7-1/7

specific procedures

. . are required as a matteroffederal constitutional law.”22 The court’s comment concerning the “potential benefits” ofadditional procedural protections is dicta, and it cannot be read as endorsing Gregg’s argument. Gregg contends ourSupreme Court “moved past Ramos”23 in State v. Houston-Sconiers.24 In Houston-Sconiers, our Supreme Court considered whether mandatoryfirearm enhancements forjuvenile offenders violated Miller and the Eighth Amendment. The court held, In accordance with Miller,

. . . sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth ofanyjuvenile defendant, even in the adult criminaljustice system

. . . . Trial courts must consider mitigating qualities ofyouth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/orsentence enhancements.~251 Houston-Sconiers addresses the effect ofthe SRA’s firearm enhancement provision on the court’s considerable discretion when sentencing ajuvenile defendant in adult court. RCW 9.94A.533(3)(e) provides, “Notwithstanding any other provision of law, all firearm enhancements underthis section are mandatory, shall be served in total confinement, and shall run consecutivelyto all other sentencing provisions, including otherfirearm ordeadlyweapon enhancements, for all offenses sentenced underthis chapter.” Our Supreme Court determined a sentencing court’s discretion to considerthejuvenile’s youthfulness is not
22k1.at437. 23Appellant’s Br. at 24. 24 188 Wn.2d 1, 391 P.3d 409 (2017). 25 Id. at 21.

7No. 77913-7-1/8

constrained bythe SRA’s requirementthatfirearm enhancements are mandatory and run consecutively. Houston-Sconiers neither mentions nor imposes the additional procedural protections Gregg requests. Although Houston-Sconiers does not cite Ramos or discuss the burden of proof, we reject Gregg’s contention thatthis omission leaves the issue open. We are bound by our Supreme Court’s holding in Ramos.26 In 2019, in State v. Gilbert, our Supreme Courtfurtheremphasized the discretion provided to the courtto consideryouthfulnesswhen sentencing juveniles in adult court.27 Gilbert “concern[ed] the scope ofdiscretion ajudge has in resentencing pursuantto RCW 10.95.035,” the “Miller-fix” statute.28 As to Houston-Sconiers, the Gilbert court stated, Our opinion in that case cannot be read as confined to the firearm enhancement statutes as itwent so faras to question

## ~.oy statute that acts to limit consideration ofthe mitigating factors ofyouth during sentencing. Norcan it be read as confined to, orexcluding, certain types ofsentencing hearings as we held thatthe courts have discretion to impose downward sentences “regardless of howthe juvenile gotthere.”~29~ The United States and the Washington Supreme Court cases cited by Gregg do not support his proposition thatthe court is required to presume

26 See Ramos, 187 Wn.2d at436-37 (“Miller does not require thatthe State assumethe burden of proving that a standard range sentence should be imposed, ratherthan placing the burden on thejuvenile offenderto prove an exceptional sentence isjustified.”). 27 193 Wn.2d 169, 438 P.3d 133 (2019). 2~ Id. at 171. 29 kI. at 175-76 (quoting Houston-Sconiers, 188 Wn.2d at 9).

8No. 77913-7-1/9

youthfulness and the State assumes the burden ofovercoming this presumption. In fact, with the exception of Ramos, none ofthese cases mention the additional procedural protections requested by Gregg. And in Ramos, our Supreme Court explicitly determined Millerand the Eighth Amendmentdo not require the additional procedural protections at issue. Neitherfederal norWashington Eighth Amendment case lawwarrant deviating from the basicstructure ofthe SRA, which places the burden of proving the existence ofsubstantial and compelling reasons to support an exceptional sentence on the defendant. Gregg also cites to several out-of-state cases. Similarto Ramos and several ofthe cases discussed above, these out-of-state cases interpret Milleras requiring a presumption against life without parole sentences forjuvenile offenders.3° As mentioned above, Gregg is not subjectto a life without parole sentence. And even ifthe out-of-state cases were analogous to these facts, we cannot ignore the binding precedentfrom our Supreme Court in Ramos. Gregg has not shown thatthe Eighth Amendment requires a presumption that ajuvenile’s youth is a mitigating factororthatthe State assumes the burden to prove otherwise beyond a reasonable doubt. b. Article I, Section 14 ofthe Washington Constitution Gregg also argues article I, section 14 ofthe Washington Constitution independently requires his requested procedural protections.

30 State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015); State v. Hart, 404 S.W.3d 232 (Mo. 2013); Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410 (2017); Davis v. State, 415 P.3d 666 (Wyo. 2018).

9No. 77913-7-Ul0

Our Supreme Court has “‘repeated[Iy] recogni[zed] thatthe Washington State Constitution’s cruel punishment clause often provides greater protection than the Eighth Amendment.”31 But “[e]ven where it is already established thatthe Washington Constitution may provide enhanced protections on a general topic, parties are still required to explain why enhanced protections are appropriate in specific applications.”32 In Ramos, although the defendantwas seeking similar procedural protections, our Supreme Court declined to decide “whetherarticle I, section 14 of the Washington Constitution requires greater procedural protectionsthan the Eighth Amendmentwhen ajuvenile homicide offenderfaces life without parole” because the defendant did not provide any explanation forwhy enhanced protections were appropriate underthe circumstances.33 Gregg relies on State v. Bassettfrom Division Two ofthis courtto argue enhanced protections are appropriate in these circumstances.34 In Bassett, Division Two criticized the Miller analysis as “speculative” and ‘uncertain [in] nature.”35 Expanding on this criticism, Gregg contends the Millerfactors create a riskthat “thejuvenilewill not receive the possibility of mitigation and will be subject

31 State v. Bassett, 1 92 Wn.2d at 78 (alterations in original) (quoting State v. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713 (2000)).

32 Ramos, 182 Wn.2d at454 (quoting State v. Pugh, 167 Wn.2d 825, 835, 225 P.3d 892 (2009)).

~ Id.

~ 198 Wn. App. 714, 394 P.3d 430 (2017). 35k1.at743.

10No. 77913-7-I/Il

to the same mandatory ranges and enhancements applied to adults.”36 Gregg argues the presumption and burden shiftwould mitigate the risk identified in Bassett. But at most, Bassett’s critique of Miller could support more precise youthfulnessfactors. Nothing in Bassett suggests the State should have the burden ofovercoming a presumption ofyouthfulness. And Gregg fails to provide any compelling argument to support such an assertion. Here, the trial courtfully considered all ofthe youthfulness arguments presented by Gregg. Mr. Gregg is arguing his youthfulness is a mitigating factorjustifying an exceptional sentence belowthe standard range.

. In deciding this issue, I have considered a numberoffactors, including but not limited to, whether Mr. Gregg’s youth, age 17, reduced his sense of responsibility. Did he understand the significance of his actions? Whether he was impetuous, unusually impulsive, had an increased susceptibilityto others, including peer pressures, specificallythat of Mr. Mullins. His truthfulness, or lack thereof, his level of maturity, and whether he had a genuine sense of remorse before, during, and afterthe murderJ371 Nothing in the record suggests the court misunderstood the full discretion it had to consider Gregg’s youthfulness. And the court did not lean on the burden of proofwhen it determined there were no “substantial and compelling reasons to justify a sentence belowthe standard range.”38 And having looked at all ofthe evidence and listening carefully, taking more notes than I probably should have taken, buttons of

36Appellant’s Br. at 28.

~ Report of Proceedings (RP) (Dec. 14, 2017) at 675-77. 38k1.at688.

11No. 77913-7-1/12
notes, I find thatthis is not about youthful disobedience as it relates to Mr. Gregg. This is notyouthful impulsivity. Mr. Gregg knewthe consequences of his actions.t39~ Gregg has not shown that article I, section 14 requires a presumption that a juvenile’s youth is a mitigating factororthatthe State assumes the burden to prove otherwise beyond a reasonable doubt. II. Plea Agreement Gregg contends his plea is involuntary because he was affirmatively misinformed that he would not be required to registeras a felonyfirearm offender. Gregg raises this issue forthe firsttime on appeal.4° Because “{d]ue process requires that a guilty plea be knowing, intelligent, and voluntary,”41 Gregg’s claimed error implicates a constitutional right. Butto obtain review, Gregg muststill establish the error is manifest.42 To establish an error is manifest, the

~ Id. 40 See RAP 2.5(a)(3) (“The appellate court may refuse to review any claim oferrorwhich was not raised in the trial court,” but a party may raise a “manifest erroraffecting a constitutional right” forthe firsttime on appeal.).

41 In re Pers. Restraint ofStoudmire, 145 Wn.2d 258,266,36 P.3d 1005 (2001) (citing U.S. CONST. amend. 14; Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)).

42 We are not compelled to analyze this issue under ineffective assistance ofcounsel, as suggested bythe State. First, Gregg does not allege ineffective assistance ofcounsel. And second, Gregg was arguably misled bythe court and the prosecutor, not defense counsel. We rely on the “manifest injustice” analysis ratherthan the prejudice prong from ineffective assistance ofcounsel.

12No. 77913-7-1/13

defendant must show “‘the asserted error had practical and identifiable consequences in the trial ofthe case.’”43 In addition to the constitutional requirements, CrR 4.2(f) governs criminal pleas: “The court shall allow a defendantto withdrawthe defendant’s plea ofguilty whenever it appears thatthe withdrawal is necessaryto correct a manifest injustice.”44 Priorto the acceptance ofa guilty plea, a defendant “must be informed of all the direct consequences of his plea.”45 “A direct consequence of pleading guilty is one having a definite, immediate, and largely automaticeffect on the sentence.”46 On the other hand, “[c]onsequences that are not ‘automatically imposed’ bythe sentencing court, that do not ‘automatically enhance’ the sentence, orthat do ‘not alterthe standard of punishment’ are collateral.”47 A manifest injustice occurs ifthe defendant materially relied on affirmative

~ State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007) (internal quotation marks omitted) (quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)).

~ (Emphasis added.) Although most cases addressing affirmative misinformation involve defense counsel, the dutyto inform the defendant is not limited to defense counsel. We rejectthe State’s suggestion that an appellant must raise this issue under ineffective assistance ofcounsel. Gregg does not allege ineffective assistance ofcounsel. And Gregg was arguably misled bythe court and the prosecutor, not defense counsel. We rely on the “manifest injustice” analysis ratherthan the prejudice prong from ineffective assistance ofcounsel.

~ A.N.J., 168 Wn.2d at 113-14 (quoting State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). 46 In re Pers. Restraint of Reise, 146 Wn. App. 772, 787, 192 P.3d 949 (2008). (quoting State v. Ward, 123 Wn.2d 488, 513-14, 869 P.2d 1062 (1994)).

13No. 77913-7-1/14

misinformation concerning a collateral consequencewhen deciding to plead guilty.48 Here, the plea agreement included the following provision: This offense is afelonyfirearm offense.

. . and thejudge may impose a requirementthat I registerwith the sheriff in the [c]ounty where I reside

. . . . Ifthis offense, or an offense committed in conjunction with this offense

. . . was committed against a child under 18, orwas a serious violent offense, thejudge must impose this registration requirement.~49] This provision was crossed out and signed by Gregg. Atthe plea hearing, the State asked Gregg, “There are a numberof paragraphs throughoutthis document that have been crossed out and you have initialed. Do you understand thatthat means thatthese paragraphs, they do not applyto you?”5° Gregg answered in the affirmative. At sentencing, the court imposed a requirementthat Gregg register as a felonyfirearm offender.51 On this record, it is clearthat Gregg was affirmatively misinformed about his dutyto registeras a felonyfirearm offender. To determine whether registration is a direct orcollateral consequence, we turn to cases addressing the analogous sex offender registration. In State v. Ward, one ofthe defendants challenged the sex offender registration statute, arguing he was not informed ofthe requirement in his plea

48 Id. 49CPat22. 50 RP (Aug. 18, 2017) at 15. 51 CP at 137.

14No. 77913-7-1/15

agreement.52 The defendantwas released from confinement before the registration statute went into effect. Our Supreme Court considered whetherthere was a constitutional dutyto advise a defendant ofthe requirementto register as a sexual offenderatthe time of his guilty plea.53 The court concluded there was no duty because “[a]lthough the dutyto registerflows from [the defendant’s] conviction for afelony sex offense, it does not enhance [the defendant’s] sentence or punishment.”54 “Because registration as a sex offenderdoes not alterthe standard of punishment, we hold the dutyto register is a collateral, and not a direct, consequence ofa guilty plea.”55 Consistentwith Ward, registration as a felonyfirearm offenderdoes not alterthe standard of punishment. The dutyto register is a collateral, and not a direct, consequence ofa guilty plea. Gregg relies on A.N.J. to argue the question whether registration requirements are direct orcollateral consequences is unresolved.56 In A.N.J., the defendantsoughtto withdraw his guilty plea “because, he contends, his counsel misled him aboutthe consequences of his plea.”57 Our Supreme Court determined although the defendantwas informed that he had an obligation to

52 123 Wn.2d 488, 494, 869 P.2d 1062 (1994). 53kLat513.

~ Id. k~. at 513-14. 56Appellant’s Br. at 37 (citing A.N.J., 168 Wn.2d at 114). 57A.N.J., 168 Wn.2d at 114.

15No. 77913-7-1/16

registeras a sex offender, he was misinformed that his conviction could be removed from his record. In A.N.J., our Supreme Court acknowledged, “This court has never held that a preexisting automatic statutory requirement ofsex offender registration is not a direct consequence ofa plea, though we decided a related but different issue in State v. Ward.”58 The court distinguished Ward on the basis that “Ward considered a statutory consequence that came into existence onlyafterthe conviction, not an existing, automatic statutory consequence.”59 But ultimatelythe court determined “since [the defendant in A.N.J.] was correctly informed that he had an obligation to registeras a sex offender, it is unnecessaryfor us to decide whether a current statutory dutyto register as a sex offender is a direct consequence ofa plea forthe purposes ofestablishing whether a pleawas involuntarily made.”6° In these circumstances, Ward’s thoughtful emphasis on whetherthe consequence enhances the sentence or punishment is compelling. Registration as a felonyfirearm offenderdoes not alterthe standard of punishment, even when automatically imposed. The felonyfirearm registration requirement is a collateral consequence of pleading guilty. Gregg contends “regardless ofwhetherthe registration requirement is characterized as a ‘direct’ or ‘collateral consequence,’ the result is the same

58 Id. 59ki.at 115. 60 Id.

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because [Gregg] was positively misinformed.”61 But affirmative misinformation about a collateral consequence does not automatically rendera guilty plea involuntary. Affirmative misinformation about a collateral consequence may create a manifest injustice “ifthe defendant materially relied on that misinformation when deciding to plead guilty.”62 Gregg does not claim thatthe misinformation concerning the firearm registration requirement materially influenced his decision to plead guilty. And the record on appeal does not include anyfacts regarding how he arrived at his decision to plead guilty. We conclude, on this record, this misinformation did not render Gregg’s plea involuntary and does not constitute manifest constitutional error. Therefore, we affirm.

WE CONCUR:

__ 

# I •1

61 Appellant’s Br. at 37. 62 Reise, 146 Wn. App. at 787.