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This opinion was

filed for record

on AfrU 'i. Z^

Ptisan L. Carlson

'Supreme Court Clerk

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 of discretion a judge has in

resentencing pursuant toRCW 10.95.035. In 1992, when Jeremiah Gilbert was a

juvenile, he was charged and convicted of aggravated 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 lacked
State V. Gilbert, No. 95814-9

Statutory authority to address anything other than Gilbert's sentence for aggravated

murder and imposed a sentence of 25 years to life, leaving intact the consecutive

sentence of 280 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 of Gresham, aggravated first degree murder of Evans, second degree
State 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 of 280 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 of life 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 of 25 years to life

for aggravated murder and left intact the 280 month consecutive sentence for first

degree murder. Gilbert appealed, and the Court of Appeals 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

Gilbert petitioned 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 of the

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

of life without parole 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 of Appeals and then

to this court. Because the State did not raise the issue of whether 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 of youth 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 of at least 25 years with a maximum

sentence of life 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 of SSSB 5064. The statute requires resentencing of these offenders to be

performed consistent with the amended RCW 10.95.030. Finally, the bill enacted

RCW 9.94A.730, which allows most juvenile 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 of RCW 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 of the sentences." Clerk's Papers at 29. The

State also asserted that even if the court revisited the issue of consecutive 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 of the law and the statute. Report of Proceedings at

20;

Gilbert argued to the Court of Appeals that the resentencing judge erred in

this determination and that the judge did have discretion to consider an exceptional

downward sentence. The Court of Appeals rejected this argument and affirmed his

sentence. The court held that reconsideration of the other sentences is not part 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 of an exceptional sentence; however, it held that

such relief would 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 of youth and have absolute discretion to consider an exceptional

downward sentence in light of such mitigating factors. We held that sentencing

courts possess this discretion to consider downward sentences for juvenile

offenders regardless of any 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 of the

mitigating factors of youth during sentencing. Nor can it be read as confined to, or

excluding, certain types of sentencing hearings as we held that the courts have

7
State V. Gilbert, No. 95814-9

discretion to impose downward sentences "regardless of how the juvenile got

there." Houston-Sconiers, 188 Wn.2d at 9.

Thus, even if the resentencing court here was correct in its conclusion that

RCW 10.95.035, on its face, limits the scope of a resentencing hearing to merely

adjusting aggravated murder sentences—it was, 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 of the juvenile's surrounding environment and family

circumstances, the extent of the 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 of fact and
State V. Gilbert, No. 95814-9

conclusions of law 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, 387 P.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 of years, 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 of Gilbert's

youth might warrant an exceptional sentence. We hold this to be error. Gilbert

was entitled at his resentencing to consideration of an exceptional sentence in light

of the potential mitigating factors of youth. Therefore, we reverse and remand for

^ In Ramos, we confronted the issue of what procedures are required before sentencing a

juvenile offender to a sentence that is the functional equivalent of life 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.

10