### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
In the Matter of the Personal Restraint of: No. 52119

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- II ASARIA JUSTICE MILLER, PUBLISHED OPINION

Petitioner,

P RICE , J.

— Asaria J. Miller brings this personal restraint petition (PRP) , arguing that she is entitled to resentencing under State v. Houston

- Sconiers 1 because the sentencing court did not meaningfully consider mitigating factors related to her youth at sentencing. We grant Miller’s petition and order a resentencing.
FACTS In 2012, M iller , a 16

- year - old Black girl, and her boyfriend kill ed her father’s ex - girlfriend. Although Miller’s father was not present at the time of the murder, he recruited her to carry out the act. Miller was charged with first degree burglary with a firearm enhancement , conspiracy to commit first degree murder, and first degre e murder with a firearm enhancement.
M iller reached an agreement with the State whereby , i n exchange for her cooperating, testifying, and pleading guilty , the State amended the charges against her and r ecommended a mid

range sentence

. Miller’s father an d boyfriend were both convicted of the murder.

1 188 Wn.2d 1, 391 P.3d 409 (2017). Filed Washington State Court of Appeals Division Two March 8, 2022No. 52119

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Miller pled guilty in 2013 to the amended charge of first degree murder with a firearm sentencing enhancement. The same judge who presided over the prosecutions of Miller’s father and boyfriend presided ove r her sentencing. Miller had an offender score of 3 due to a prior conviction of first degree assault. Based on Miller’s offender score, t he standard range for first degree murder was 271 to 361 months

. The
S tate and defense counsel both recommended a sentence of 300 months for first degree murder , plus 60 months for the firearm enhancement , for a total of 360 months

. When explaining the recommendation , Miller’s defense counsel briefly mentioned Miller’s youth : There are a lot of reasons why [the sentencing court] should not go to the high end, other than just the facts of the case itself. When I first learned about this case, and then the more I got into it, I was sort of blown away by the facts of this case in the sens e that it was unbelievable and inconceivable to me that not only would a father talk to his daughter about killing his girlfriend/ex

- wife, whatever she was, but would actually recruit her to help do it, and ultimately to find somebody to do it. And then n ot only carry it out with his daughter, but then come to court and try to shift the blame onto his daughter. Oh, it was all her idea. Well that’s ridiculous, and it’s offensive. She was 16 at the time and pregnant. She does have a prior assault. Agai n, and , I

— I almost am relucta nt to say this, but that was

— also involved her as an accomplice with older individuals. She and another girl, I think, were the only two juveniles. The rest of the people that were convicted of that, including the person who actually did it, were adults. Supp l

. Pet. , App

. A at 17

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. Defense counsel also described the action as a “whim [ ] of a 16 year old .” Id. at 18

. No additional statements regarding Miller’s youth were made at sentencing.
The sentencing court rejecte d the joint recommendation and imposed a total sentence of
3 9 0 months, 30 months greater than the recommendation

.No. 52119

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In explaining its decision, t he sentencing court noted that during Miller’s testimony a t her father’s trial , Miller had said that her father had asked for her assistance with the murder because of her history of a prior assault . T he sentencing court stated that it believed there may have been some pride in that statemen t. It also noted that Miller and he r father had justified the m urder to each other by saying , “Millers don’t ge t beat down.” Id. at 21 . The sentencing court briefly referenced Miller’s youth in its decision, saying: [I]n taking into consideration of all the factors the parties have said, and the consideration that [ ] Miller, at the age of 16, committed a violent offense, having already committed a violent offense, has now set her life. Most young people’s lives aren’t set in stone by the time they are 17 years old. Yours is.
Id. More than one year after her convi ction and sentence became final , Miller filed a CrR 7.8 motion for relief from judgment th at was transferred to this court as a PRP

. ANALYSIS
I. U NLAWFUL R ESTRAINT A. L EGAL P RINCIPLES Generally, petitioners have only one year from the date their judgment becomes final to bri ng a PRP . RCW 10.73.090. Petitions filed after the one

- year mark are time barred unless an exception applies. RCW 10.73.100. A petitioner can over come the one

- year time bar if they can identify (1) a significant change
in the law (2) that is material to the conviction or sentence and (3) that applies retroactively. RCW 10.73.100(6); State v. Miller , 185 Wn.2d 111, 114, 371 P.3d 528 (2016). Additionally , to obtain relief in a PRP, t he petitioner must also show actual and s ubstantial prejudice resulting from theNo. 52119

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alleged constitutional errors by a preponderance of the evidence. In re Pers. Restraint of Cook , 114 Wn.2d 80 2, 813

- 14, 792 P.2d 506 (1990). A petitioner “ ‘must shoulder the burden of showing, not merely that erro rs at [their] trial created a possibility of prejudice,’ but that the outcome would more likely than not have been different had the alleged error not occurred.” In re Pers. Restraint of Meippen , 193 Wn.2d 310, 315

- 16, 440 P.3d 978 (2019) (internal quotat ion marks omitted) (quoting In re Pers. Restraint of Hagler , 97 Wn.2d 818, 825, 650 P.2d 1103 (1982))

. In Houston

- Sconiers , our Supreme Court held that w hen sentencing juveniles, the Eighth Amendment requires courts to consider the “ ‘ hallmark features’ ” of youth and have discretion to impose a sentence below the standard range. 188 Wn.2d 1 at 23 (quoting Miller v. Alabama , 567 U.S. 460, 477, 132 S. Ct. 2455, 183 L. Ed. 407 (2012))

. Following Houston

- Sconiers , our Supreme Court held that “ a petitioner [seeking relief under Houston

- Sconiers ] establishes actual and substantial prejudice when a sentencing court fails to consider mitigating factors relating to the youthfulness of a juvenile tried as an adult and/or does not appreci ate its discretion to imp ose an y exceptional sentence in light of that consideration.” In re Pers. Restraint of Domingo

- Cornelio , 1 96 Wn.2d 255 , 268 , 474 P.3d 524 (2020)

. “U nless the court meaningfully considers youth and knows it has absolute discretio n to impos e a lower
senten ce, we cannot be certain that an adult standard range was imposed ap propriately on a juvenile .” Id. Where a petitioner establishes actual and substantial prejudice, we will remand for resentencing. Id. at 268

- 69. The hall mark features of youth include a juvenile’s “ ‘immaturity, impetuosity, and failure to appreciate risks and consequences,’ ” along with “the nature of the juvenile ’ s surroundingNo. 52119

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environment and family circumstances, the extent of the juvenile’s participation i n the crime, and

‘ the way fa milial and peer pr essures may have affected [them ].’ ” Houston

- Sconiers , 188 Wn.2d
at 23 (alteration in original) (quoting Miller , 567 U.S . at 477 ). Trial courts must also examine factors that indicate a likelihood of rehabilitation and the impact of youth on the juvenile’s legal defense

. Id.
B. A PPLICATION Miller argues she is entitled to resentencing under Houston

- Sconiers

. It is well

- e stablished that Houston

- Sconiers was a significant change in the law that is retroactively app licable and material to cases such as Miller’s where juveniles were sentenced as adults

. Domingo

- Cornelio , 196 Wn.2d at 262

- 65. Thus, Miller’s petition is not time barred. Therefore, the question here is whether Miller has made a showing of actual and s ubstantial prejudice arising from a constitutional error that entitles her to a resentencing. We determine that she has

. As Miller capably presented at oral argument, t he sentencing court did not meaningfully consider Miller’s youth at her sentencing because the sentencing court was not presented with facts

or arguments related to the mitigating qualities of Miller’s youth. Although Miller’s age was mentioned, there was no direct r eference to her maturity or ability to appreciate the conseq uences of her actions. Moreover, the sentencing court did not consider factors related to Miller’s
surround ing environment and family circumstances. Although i t could be argued that defense counsel implied that Miller w as influenced by family pressures a nd was impetuous, counsel did not directly argue the mitigating qualities of Miller’s youth

. And although t he sentencing court referenced Miller’s age once , noting that most individuals’ lives a re not set in stone at such a young age, this sole reference is not enough to show that it meaningfully considered the mitigating factorsNo. 52119

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of Mi ller’s youth. Because facts related to the mitigating qualities of Miller’s youth were n either presented nor discussed at her sentencing, the sentencing court cannot be said to have meaningfully consider ed her youth. 2
T he sentencing court ’s failure to meaningfully consider Miller’s youth at her sentencing,
result ed in actual and substantial prejudice to Miller

. A nd it is more likely than not that Miller would have received a lesser sentence had the sentencing court complied with Houston

- Sconiers

. Because Miller was actually and substantially prejudiced, we find that she is entitled to relief by this PRP

. 3
II

. R EQUESTED S TANDARD OF “P ER S E P REJUDICE ” Miller and amicus curia e also argue that we should apply a standard of “ per se prejudice ” or presumptive prejudice to juvenile resentencing cases because certain groups of children, particularly Black girls, receive disparat e treatment during sentencing. 4 Miller and amic us curi ae maintain that the standard of per se prejudice should b e used because Black children do not receive meaningful consideration of youth at s entencing as compared to their white counterparts . They also argue that the standard of per se prejudice should apply because Miller is required to prove

2 We acknowledge that it would have been difficult for the sentencing court to adequate ly consider Miller’s youth because the law around juvenile sentencing has evolved dramatically since Miller was sentenced in 2013. See State v. O’Dell , 183 Wn.2d 68 0, 688

- 89, 358 P.3d 359 (2015); Houston

- Sconiers , 188 Wn.2d at 19

- 20.

3 Although Miller’s sentence was the result of a plea agreement, we note that the State confirmed at oral argument that it would not accuse Miller of breaching the plea agreement if the ma tter were remanded for resentencing to address the mitigating factors of youth

.
4 Miller also argues that the standard of per se prejudice should apply more broadly to children of color.No. 52119

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actual and subs tantial prejudice from the sentencing court’s failure to consider her youth , a high barrier, especially considering that the sentencing court was no t initiall y required to consider youth

. A micus curiae argues that it is well

- established by empirical literature and has been acknowledged by our Supreme Court that Black children are prejudiced by, in addition to other stereotypes, “ adultification ” or t he tendency of society to view Black children as older than similarly aged youths. T his results in harsher punishments for Black children in the criminal justice system. Additionally, Black girls are also prejudiced by gender bias , further creating a
pun itive discrepancy between Black girls and their peers. A micus curiae argues that the superior court demonstrat ed adultification bias at Miller ’s sentencing when the judge noted the “hint of pride” in Miller ’s testimony and told her, “Most young people’s l ives aren’t set in stone by the time they are 17 years old. Yours is.” Supp l . Pet., App. A at 20

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. A micus curiae also argues that a conclusive presumption of prejudice should apply in cases such as this one where a Miller 5 hearing has not occurred becau se that is an error implicating a core constitutional procedural right. They argue that a conclusive presumption of prejudice was effectively recognized in Domingo

- Cornelio because the rule articulated in that case was “functionally equivalent to a per se prejudice rule

. ” Br. of Amicus Curiae at 18. We agree that adultification may detrimentally affect children of color at criminal sentencings. In a recent, comprehensive study of bias in the justice system , Washington’s Gender
and Justice Commission explained that s tudies involving justice officials, as well as studies

5 Miller , 567 U.S. 460.No. 52119

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involving the general population, “have shown that girls of color are perceived differently than white girls.” G ENDER & J USTICE C OMM ’ N , W ASH
. C OURTS , 2021: H OW G ENDER AND R ACE A FFECT J USTICE N OW at 453 (Sept. 2021), 6 For example , compared with their white counterparts, “Black girls are seen as more adult, needing less protection and nurturing, and being more knowledgeable about sex; and juvenile offenders of color are seen as more blam eworthy and deserving of harsher punishment.” Id

. [A] nationally

- representative survey of white Americans found that when pr imed to think about Black juvenile offenders, participants were more likely to support the most severe penalty of life without paro le in non

- homicide cases as compared to priming for a white juvenile offender; and participants perceived youth as more similar to adults in blameworthiness when primed to think of Black juvenile offenders than white juvenile offenders. Id. at 453 n. 97. In Washington, Indigenous and Black girls were overrepresented in juvenile detention in every county with populations high enough to report in 2019. Id. at 456. 7 Thus, we recognize that adultification is real and can lead to harsher sentences for children of color if care is not taken to consciously avoid biased outcomes

. Notwithstanding our agreement that courts at all levels must remain vigilant when sentencing B lack, I ndigenous, and children of color to avoid the r eal bias that has long plagued our justice system , it remains that actual and substantial prejudice is the established standard to be followed by this court. Neither Miller nor amicus curiae offer an example of a Miller resentencing

6 https://www.courts.wa.gov/subsite/gjc/do cuments/2021_Gender_Justice_Study_Report.pdf

.
7 In 2019, Black girls were 4.9 percent of the female youth population in Washington, but 14.6 percent of the female juvenile detention admissions.
2021: H OW G ENDER AND R ACE A FFECT J USTICE N OW , supra , tbl.1, at 455.No. 52119

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where a standard other than actual and substantial prejudice has been applied. Creating a new standard, however desirable from a policy perspective, would require us to depart from clearly established standard s for PRPs. We decline to do so. Nevertheless, in the face of thi s convincing information about disparities in sentencing, trial courts should consider , in addition to issues common with all youths set forth in Houston

Sconiers , these potential biases when sentencing children of color.
CONCLUSION
We g rant Miller’s pet ition and order resentencing consistent with Houston

- Sconiers

.

P RICE , J. We concur:

G LASGOW , A.C.J.

W ORSWICK , J.