IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

No. 77489-1-1

Appellant, c=3

DIVISION ONE >:71,

rn

v.

UNPUBLISHED OPINION 

-0r• JAMES ALFRED GRAY,

• (Arid => •

Respondent. FILED: June 17, 2019

• rw3 • -1 al

APPELWICK, J. — A court sentenced Gray to 335 months of confinement

upon multiple convictions in 2006. In 2017, Gray filed a CrR 7.8 motion to vacate

the judgment and sentence. He sought a new sentencing hearing, in view of

recent caselaw addressing the sentencing of youthful offenders. The trial court

denied Gray's motion. Gray appeals. We vacate the order denying Gray's

motion, convert the matter to a personal restraint petition, and dismiss the

untimely petition.

FACTS

In May 2006, James Gray pleaded guilty to robbery in the first degree with

a firearm, burglary in the first degree, and solicitation to commit murder in the first

degree. Gray was 20 years old when he committed the crimes. Both the

presentence investigation report and Gray's counsel recommended a sentence

at the low end of the standard range based, in part, on Gray's age and lack of

maturity. While awaiting sentencing, Gray attempted to bribe one of the victims
No. 77489-1-1/2

to urge the prosecutor not to pursue the charges. Upon learning of this conduct,

the State recommended a higher midrange sentence. In July 2006, the

sentencing court followed the State's recommendation and imposed midrange

sentences on each count, weighing Gray's "extreme youth" against the severity

of the conduct. The court also applied a 60 month firearm enhancement,

resulting in a total sentence of 335 months. Gray did not appeal.

More than 10 years later, in August 2017, Gray filed a CrR 7.8 motion to

vacate his judgment and sentence. Relying on the Washington State Supreme

Court's decision in State v. O'Dell, 183 Wn.2d 680, 697, 358 P.3d 359 (2015),

Gray argued that his sentence was unlawful because the sentencing court failed

to consider his relative youth as a possible mitigating factor. Gray further argued

that his motion was not time barred under RCW 10.73.090(1) because O'Dell is

material to his conviction and the decision represents a significant change in the

law that applies retroactively to his case. See RCW 10.73.100(6). The State

argued that the trial court should transfer Gray's motion to this court under CrR

7.8(c)(2).

The trial court denied the motion.1 In its order, the court concluded that

Gray "failed to demonstrate that the court did not take Gray's age into

consideration when imposing a standard range sentence."

1 In the same order, the court also denied Gray's motion to strike a

condition of community custody and motions for the appointment of counsel and

for transport. Gray does not appeal these rulings.

2
No. 77489-1-1/3

DISCUSSION

As below, Gray relies on O'Dell to argue that the sentencing court in 2006

failed to meaningfully consider his age, because it lacked the benefit of the

evolving scientific understanding of adolescent brain development. Regardless

of the merits of his argument, after the trial court denied Gray's motion and after

Gray filed his opening brief in this appeal, the Supreme Court rendered its

decision in In re Personal Restraint of Light-Roth, 191 Wn.2d 328, 422 P.3d 444

(2018). In Light-Roth, the court held that O'Dell did not change the law. LightRoth, 191 Wn.2d at 338. Gray's motion is therefore, not exempt from the time

bar.

Under CrR 7.8(c)(2), the superior court "shall" transfer a CrR 7.8 motion to

this court unless it is timely and "the defendant has made a substantial showing

that he or she is entitled to relief" or "resolution of the motion will require a factual

hearing." A trial court may retain a CrR 7.8 motion only where it makes these

enumerated threshold determinations. State v. Smith, 144 Wn. App. 860, 863,

184 P.3d 666 (2008). Gray's untimely motion should have been transferred to

this court for consideration as a personal restraint petition.2 Accordingly, we

vacate the order denying Gray's motion, convert the matter to a personal

restraint petition, and dismiss the untimely petition.

2 Even if timely, the trial court was required to transfer Gray's motion in the

absence of a finding that Gray made a substantial showing that he was entitled to

relief or a finding that resolution of his motion would require a factual hearing.

The trial court here made no such findings and in fact, made a contrary finding

that Gray failed to demonstrate a basis for relief.

3
No. 77489-1-1/4

The petition is dismissed.

WE CONCUR:

Gtg......., V.

4