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cms=jus7Ke This opinion was filed for record on AfrU 'i. Z^ Ptisan L.Carlson 'Supreme CourtClerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

V. JEREMIAH JAMES GILBERT, Petitioner. No. 95814-9

En Banc

Filed 

### APR 0 4 2019 JOHNSON,J.—This case concerns the scope ofdiscretion a judge has in resentencing pursuant toRCW 10.95.035. In 1992,when Jeremiah Gilbert was a juvenile,he was charged and convicted ofaggravated murder,premeditated murder,and multiple other crimes. He was sentenced to life without parole for the aggravated murder along with a consecutive sentence for the premeditated murder,
as required under the laws in effect at that time. When ROW 10.95.035 was enacted,Gilbert became entitled to a new sentencing hearing. During his resentencing, Gilbert argued that the judge should restructure his two sentences such that they would run concurrently. However,the judge ruled that he lackedState V. Gilbert,No. 95814-9



### Statutory authority to address anything other than Gilbert's sentence for aggravated murder and imposed a sentence of25 years to life,leaving intact the consecutive sentence of280 months for the premeditated murder conviction. The Court of 

### Appeals affirmed. We reverse and remand for resentencing.
FACTS When Gilbert was 15,he murdered two men and attempted to murder a third. He and a companion had run away from home,journeying on foot to Klickitat County,where they attempted to steal a Ford Bronco owned by Farrell Harris. Harris,who was hunting nearby,returned and tried to halt the thefl; however,Gilbert opened fire on him with a rifle. Harris was able to retreat to the woods where he found cover. Robert Gresham came upon the scene on a motorcycle shortly after and stopped. Gilbert shot Gresham twice in the shoulder and then proceeded to shoot him in the head,killing Gresham. Another person, Loren Evans,approached the scene in his truck,and Gilbert shot him in the head through the windshield,instantly killing him. The two young men disabled the Bronco they had been trying to steal and left in Evans's truck. Harris was able to drive Gresham's motorcycle to a nearby home,and he alerted law enforcement, who were able to apprehend Gilbert and his companion soon after. The State charged Gilbert in adult court with six offenses: first degree murder ofGresham,aggravated first degree murder ofEvans,second degreeState V. Gilbert,No. 95814-9



### assault,first degree burglary,first degree theft,and first degree robbery. The jury convicted him on all charges and Gilbert was sentenced to life in prison without 

### parole for the aggravated first degree murder conviction along with a consecutive sentence of280 months for first degree murder. The sentences for the remaining four convictions were to run concurrent with the aggravated murder sentence. 

### Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.Ed. 2d 407 (2012),Washington amended ROW 10.95.030 and enacted RCW 10.95.035, eliminating mandatory sentences of 

### life without parole for juvenile offenders and requiring resentencing for those who had previously received such sentences. In accordance with the new and amended statutes,the trial court held a resentencing hearing for Gilbert on September 21, 2015. Defense counsel argued for the court to go beyond merely adjusting Gilbert's sentence oflife without parole and to restructure his first degree murder sentence such that it would run concuiTently. However,the judge rejected this argument,holding that he lacked the authority to do anything other than adjust the sentence for aggravated murder. The court imposed a sentence of25 years to life for aggravated murder and left intact the 280 month consecutive sentence for first 

### degree murder. Gilbert appealed,and the Court ofAppeals affirmed his sentence. State V. Gilbert,No.33794-4-III (Wash. Ct. App.Apr. 3,2018)(unpublished), https://www.courts.wa.gov/opinions/pdf/337944_unp.pdf.State V. Gilbert,No. 95814-9



### Gilbertpetitioned this court,and we granted review.'State v. Gilbert, 191 Wn.2d 1012,426 P.3d 735 (2018). ISSUE 

### Whether a judge performing a resentencing pursuant to RCW 10.95.035 has discretion to impose an exceptional downward sentence. ANALYSIS 

### In 2005,the United States Supreme Court decided Roper v. Simmons,in which it held,"The Eighth and Fourteenth Amendments forbid imposition ofthe death penalty on offenders who were under the age of 18 when their crimes were committed." 543 U.S. 551,578, 125 S. Ct. 1183, 161 L.Ed. 2d 1 (2005). Then,in 2010,the Court held that the United States Constitution also forbids the imposition oflife withoutparole on a juvenile offender who did not commit homicide. Graham v. Florida,560 U.S. 48, 82, 130 S. Ct. 2011, 176 L.Ed. 2d 825 (2010). Finally, in 2012,the Court decided Miller,in which it expanded on Graham, holding it unconstitutional to require a life without parole sentence on a juvenile offender for any crime. The Court did not completely foreclose life sentences for juvenile offenders,but it held that at the very least, courts must have the

'Gilbert challenged his resentencing in a direct appeal to the Court ofAppeals and then to this court. Because the State did not raise the issue ofwhether a direct appeal is the proper method for challenging the resentencing,we do not address it. See RCW 10.95.035(3).State V. Gilbert,No. 95814-9



### opportunity to consider mitigating circumstances ofyouth before imposing a life without parole sentence. Miller,567 U.S.460. 

### The Washington Legislature responded to Miller by enacting Second Substitute Senate Bill 5064,63d Leg.,Reg. Sess.(Wash.2014)(SSSB 5064). The bill amended RCW 10.95.030,the sentencing statute for aggravated first degree 

### murder,to eliminate mandatory life sentences for juvenile offenders and,instead, establish mandatory minimum sentences ofat least 25 years with a maximum 

### sentence oflife in prison. The bill also created RCW 10.95.035,which required resentencing for any juvenile offender sentenced to life without parole prior to passage ofSSSB 5064. The statute requires resentencing ofthese offenders to be performed consistent with the amended RCW 10.95.030. Finally,the bill enacted RCW 9.94A.730,which allows mostjuvenile offenders to petition for release once 

### they have served 20 years in prison.^ Under RCW 10.95.035, Gilbert was entitled to a resentencing hearing. At the resentencing hearing,defense counsel argued that aside from adjusting his aggravated murder sentence,the court should restructure Gilbert's sentences such that they would run concurrently. The State argued that the only issue before the court was adjusting the minimum term for Gilbert's aggravated murder conviction
^ We requested supplemental briefing on the applicability ofRCW 9.94A.730 to Gilbert's sentence. Both parties seem to agree the statute does not apply, so we do not address it.State V. Gilbert,No. 95814-9



### because the statute "did not include authority . . . that allows the court to reconsider the concurrent/consecutive nature ofthe sentences." Clerk's Papers at 29. The State also asserted that even ifthe court revisited the issue ofconsecutive or 

### concurrent sentences,ROW 9.94A.589 required consecutive sentences because Gilbert's crimes involved two or more serious violent offenses arising from 

### separate and distinct criminal conduct. The court adopted the State's argument in toto,agreeing with its analysis ofthe law and the statute. Report ofProceedings at 20; Gilbert argued to the Court ofAppeals that the resentencing judge erred in this determination and that the judge did have discretion to consider an exceptional downward sentence. The Court ofAppeals rejected this argument and affirmed his sentence. The court held that reconsideration ofthe other sentences is notpart of RCW 10.95.035 and that the only issues presented in the resentencing were those related to the aggravated murder sentence. The court recognized that our recent holding in State v. HoMston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017),may entitle Gilbert to consideration ofan exceptional sentence;however,it held that such reliefwould be available to him only through a timely personal restraint petition. Gilbert,No.33794-4-III, slip op. at 8. This conclusion mischaracterizes Houston-Sconiers and misreads the statutory resentencing requirements under
RCW 10.95.035 and .030.State V. Gilbert,No. 95814-9



### In Houston-Sconiers,we recognized the discretion a judge possesses during 

### juvenile sentencing when,similar to Gilbert's case,mandatory firearm enhancements were required by statute to be served consecutively. In that case, 

### during sentencing the judge expressed frustration at being unable to impose an exceptional downward sentence to avoid consecutive sentences. We disagreed with the judge's conclusion that he lacked such discretion and reversed,remanding for resentencing and holding that sentencing courts must account for the mitigating 

### qualities ofyouth and have absolute discretion to consider an exceptional downward sentence in light ofsuch mitigating factors. We held that sentencing courts possess this discretion to consider downward sentences for juvenile offenders regardless ofany sentencing provision to the contrary. HoustonSconiers, 188 Wn.2d at 21. Although Houston-Sconiers did not involve a resentencing under RCW 10.95.035,it did address and resolve the discretion judges have in sentencing for crimes committed by juveniles and,important to the issue here,the discretion to consider exceptional sentencing even where statutes would otherwise limit it. Our opinion in that case cannot be read as confined to the firearm enhancement statutes as it went so far as to question any statute that acts to limit consideration ofthe mitigating factors ofyouth during sentencing. Nor can it be read as confined to, or excluding,certain types ofsentencing hearings as we held that the courts have

7State V. Gilbert,No. 95814-9



### discretion to impose downward sentences "regardless ofhow the juvenile got there."Houston-Sconiers, 188 Wn.2d at 9. 

### Thus,even ifthe resentencing court here was correct in its conclusion that RCW 10.95.035,on its face,limits the scope ofa resentencing hearing to merely 

### adjusting aggravated murder sentences—itwas,nevertheless,required to consider Gilbert's youth as a mitigating factor and had discretion to impose a downward sentence. RCW 10.95.035 cannot act to limit that discretion. We also recognized that the court must consider the mitigating circumstances related to the defendant's youth,including,but not limited to,the 

### juvenile's immaturity,impetuosity,and failure to appreciate risks and 

### consequences—the nature ofthe juvenile's surrounding environment and family circumstances,the extent ofthe juvenile's participation in the crime,the way 

### familial and peer pressures may have affected him or her,how youth impacted any 

### legal defense,and any factors suggesting that the juvenile might be successfully rehabilitated. Houston-Sconiers, 188 Wn.2d at 23 (quoting and citing Mz7/er, 567 U.S. at 477.) The sentencing court should consider these circumstances,the convictions at issue,the standard sentencing ranges,and any other relevant factors—and should then determine whether to impose an exceptional sentence,taking care to thoroughly explain its reasoning. "While formal written findings offact andState V. Gilbert,No. 95814-9



### conclusions oflaw are not strictly required,they are always preferable to ensure that the relevant considerations have been made and to facilitate appellate review." State V. Ramos, 187 Wn.2d 420,444,387P.3d 650,cert, denied, 138 S. Ct. 467 

### (2017).^ If, after considering such factors,the trial court does find an exceptional sentence is warranted,it may adjust the standard sentence to provide for a reduced 

### term ofyears,for concurrent rather than consecutive sentences,or for both. Because the judge presiding over Gilbert's resentencing believed he did not have discretion to consider anything other than an adjustment to the aggravated murder sentence,he did not consider whether the mitigating factors ofGilbert's 

### youth might warrant an exceptional sentence. We hold this to be error. Gilbert
was entitled at his resentencing to consideration ofan exceptional sentence in light 

### ofthe potential mitigating factors ofyouth. Therefore,we reverse and remand for

^ In Ramos,we confronted the issue ofwhat procedures are required before sentencing a juvenile offender to a sentence that is the functional equivalent oflife without parole. The trial court that sentenced Ramos followed procedures closely mirroring those we have outlined here and in Houston-Sconiers,and we held this to be adequate to uphold the sentence imposed by the court. Ramos, 187 Wn.2d at 450-53.State V. Gilbert,No. 95814-9

resentencing.^

WE CONCUR: 

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Gilbert also sought relief on claims that he faces an unconstitutional de facto life sentence and that his sentence constitutes an equal protection violation. Because we reverse and remand for resentencing,we do not reach these claims.
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