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State v. Houston-Sconiers

Supreme Court of Washington, En Banc

March 2, 2017

STATE OF WASHINGTON, Respondent,
v.
ZYION HOUSTON-SCONIERS, Petitioner. STATE OF WASHINGTON, Respondent,
v.
TRESON LEE ROBERTS, Petitioner. In the Matter of the Personal Restraint of ZYION HOUSTON-SCONIERS, Petitioner.

          GORDON McCLOUD, J.

         "[C]hildren are different." Miller v. Alabama, ___U.S.___, 132 S.Ct. 2455, 2470, 183 L.Ed.2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); U.S. Const, amend. VIII.

         The defendants in this case-Zyion Houston-Sconiers and Treson Roberts- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively. They robbed mainly other groups of children, and they netted mainly candy.

         But they faced very adult consequences. They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers. They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules. And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.

         As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. Clerk's Papers (Houston-Sconiers) (CPHS) at 227. Of that, 372 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time, '" meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e). Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154. Of that, 312 months (26 years) would be "'flat time'" attributable to the firearm sentence enhancements. Id.

         To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.

         We now hold that the sentencing judge's hands are not tied. Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there. We affirm all convictions but remand both cases for resentencing.

         FACTS

         On Halloween evening, October 31, 2012, petitioners Houston-Sconiers, then 17, and Roberts, then 16, met up at Roberts's home. 16 Verbatim Report of Proceedings (VRP) (July 22, 2013) at 1437-38. At some point, the two boys were joined by three friends, A.T., L.A., and ZJ. Id. at 1436-38. Together, the teens drank vodka, passed around marijuana, and played basketball. Id. at 1438-40. At trial, L.A. testified that during this time, he saw Houston-Sconiers holding a silver revolver. Id. at 1454-55. According to L.A., Houston-Sconiers also had in his possession a "Jason mask, " a white hockey mask. Id. at 1447. After a few hours, the five teens left the house to walk to Stanley Elementary School across the street. Id. at 1437, 1440. No one else was there, so L.A. and A.T. parted ways with the remaining three boys-petitioners and a 13-year-old boy named Z.J. Id. at 1441, 1443.

         A little later that evening, after dark, Andrew Donnelly, 19, and his 13-year-old brother, S.D., were approached by a group of three boys in the North End neighborhood of Tacoma. 12 VRP (July 16, 2013) at 992-93. One boy held a silver gun and wore a "Jason mask, " "a white hockey mask with holes in it." Id. at 993, 1004, 1020. The boys took the Donnellys' candy and Andrew Donnelly's red devil mask. Id. at 1000. Andrew Donnelly had a cell phone in his possession, but it was not taken. Id. at 997.

         Also out trick-or-treating that night in the North End was a group of five high school students. 11 VRP (July 15, 2013) at 771 -73. After a few hours out, they were approached by three boys wearing black hoodies and masks. Id. at 774-75, 819-20, 832, 871; 12 VRP (July 16, 2013) at 955. One of the masks was the red devil mask that had been taken from Andrew Donnelly. 12 VRP (July 16, 2013) at 956. One of the boys had a silver gun. 11 VRP (July 15, 2013) at 781, 786; 12 VRP (July 16, 2013) at 957. The boys demanded the group's bags of candy and cell phones. 11 VRP (July 15, 2013) at 786, 872; 12 VRP (July 16, 2013) at 954. At least two of the youth had cell phones with them, but did not give them up. 11 VRP (July 15, 2013) at 786, 874. Several of them did, however, give up their bags of candy. 11 VRP (July 15, 2013) at 786, 821, 873; 12 VRP (July 16, 2013) at 958-59.

         One youth, A.G., "hid" her bag of candy, turned, and walked to the nearest house. 11 VRP (July 15, 2013) at 821, 825. She rang the bell "[t]o get some help, " struggling with what to say to the residents before finally telling them to "call the police." Id. at 825-26, 853. A.G. testified that while she was able to speak "with confidence" while trick-or-treating before the robbery, she "wasn't confident" at the house where she asked for help, and "was stuck" on what to say because the event was "unbelievable." Id. at 852, 826. A.G. also acknowledged that while no one in the group was physically hurt, they were "[r]eally scared." Id. at 859. She recognized the voice of one of the robbers as belonging to someone she knew as "Tiny, " and identified "Tiny" at trial as Houston-Sconiers. Id. at 824-25. Although the two girls from the group, A.G. and D.P.M., were "scared to call the police, " D.P.M.'s parents reported the robbery later that night. Id. at 856-57.

         Some time later, Officer Rodney Halfhill responded to a call at a nearby apartment complex. 12 VRP (July 16, 2013) at 1067. A "frantic" 37-year-old African-American man named James Wright reported that he had just been robbed of his cell phone by "four to five black males, " one of whom carried "a silver revolver" and wore "a Jason-style hockey mask." Id. at 1071, 1073-74. L.A. testified that when he again met up with petitioners and the third boy, Z.J., at the end of the evening, he watched petitioners steal a "middle age" African-American man's cell phone at gunpoint in an apartment complex. 16 VRP (July 22, 2013) at 1456. L.A. said they used the same gun that Houston-Sconiers had earlier that evening. Id. at 1454-55. L.A. also said that Roberts had come into possession of a "devil mask" and that one of the three boys-Roberts, Houston-Sconiers, or Z.J.-reported that they had been up in the North End. Id. at 1448.

         The group of five scattered after taking the phone, then regrouped inside a broken-down, green Cadillac parked in a backyard nearby. Id. at 1457-58. A police K-9 unit found them in that car with candy wrappers strewn on the seats and floor. 11 VRP (July 15, 2013) at 738-40; Trial Ex. P-l. The five boys were ordered out of the car and arrested. 11 VRP (July 15, 2013) at 740-41; 13 VRP (July 17, 2013) at 1148-49.

         The officers then got permission from the owner of the property, Dorothy Worthey, to search the Cadillac. 13 VRP (July 17, 2013) at 1155-56, 1171, 1220, 1229. Worthey told the officers that the car, which had three flat tires and was encompassed by vegetation, belonged to her son and had been parked in her yard for some time. Id. at 1156, 1171, 1186, 1224. The search of the Cadillac yielded a number of items, including "[a] white plastic mask, " "a red plastic devil mask, " and a backpack containing candy. 9 VRP (July 10, 2013) at 542, 545, 550. The police also recovered a .32 caliber Harrington & Richardson revolver from under the front passenger seat. Id. at 559-60. The gun was loaded, but with the wrong type of ammunition. 13 VRP (July 17, 2013) at 1281. The detective who tested that gun said that firing it with such mismatched ammunition could cause it to "fail to function and not fire at all" or "com[e] apart." Id. at 1288-89.

         PROCEDURE

         The State charged 16-year-old Roberts and 17-year-old Houston-Sconiers each with seven counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, one count of unlawful possession of a firearm in the first degree, and one count of assault in the second degree, plus nine firearm enhancements. The robbery charges triggered Washington's mandatory automatic decline statute, RCW 13.04.030(1)(e)(v)(C), which mandates automatic transfer of a case from juvenile to adult court without the hearing that is otherwise typically held to determine whether such transfer is appropriate.

         At trial, the State dismissed one count of robbery in the first degree against each defendant for lack of evidence. 21 VRP (July 30, 2013) at 1943. Houston-Sconiers was convicted of six counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, one count of assault in the second degree, and one count of unlawful possession of a firearm in the first degree, plus seven firearm enhancements. CPHS at 234-35. Roberts was acquitted of three of the charges but convicted of four counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree, and one count of assault in the second degree, plus six firearm enhancements. 24 VRP (Aug. 2, 2013) at 2372-77; CPR at 162-63.

         As discussed above, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. CPHS at 227. Of that, 372 months (31 years) was attributable to the firearm sentence enhancements, and would be served as '"flat time, '" meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e). Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. CPR at 154. Of that, 312 months (26 years) would be "flat time" attributable to the firearm sentence enhancements. Id.

         But the State recommended an exceptional sentence, below the standard range, of zero months on each of the substantive counts of the information. CPHS at 226-28. The State opined that its recommendation was technically unlawful, writing, "What is clear in this case is there are no statutorily legitimate reasons for imposition of an exceptional sentence downward." CPHS at 227. Nevertheless, it stated, "The rationale for this recommendation is based simply on the State's assessment that a 42 to 45 year sentence for Houston-Sconiers and a 37-40 year sentence for Roberts is perhaps excessive . . . ." CPHS at 228. (The State did not recommend a similar departure below the firearm sentence enhancements. Id. at 227-28.)

         The trial court accepted the State's recommendation. It imposed no time on the substantive crimes but all the time triggered by the enhancements. This resulted in a total of 312 months of flat time for Roberts and 372 months of flat time for Houston-Sconiers. CPR at 167; CPHS at 239. At sentencing, the judge heard mitigating testimony regarding Houston-Sconiers's history of childhood abuse and placement in foster care, the extent to which Roberts may have been influenced by peer pressure or a disability, and both boys' potential for improving their lives. 24 VRP (Sept. 13, 2013) at 2395-96, 2397-98, 2410-11, 2413, 2416-17. The judge expressed frustration at his inability to exercise greater discretion over the sentences imposed. Id., at 2401-03.

         A split Court of Appeals affirmed the convictions and rejected all of petitioners' claims in a partly published opinion. State v. Houston-Sconiers, 191 Wn.App. 436, 446, 365 P.3d 177 (2015). Judge Bjorgen dissented, finding that the sentences imposed here were the functional equivalent of the mandatory life without parole sentences that Miller rejected. Id., at 453-54. He would also have struck down the automatic decline statute under the Eighth Amendment. Id. at 455 (Bjorgen, J., dissenting).

         Houston-Sconiers also filed a timely pro se personal restraint petition (PRP), which the Court of Appeals consolidated with this case. Comm'r's Ruling, State v, Houston-Sconiers, No. 45374-6-II (Wash.Ct.App. Feb. 17, 2015). The Court of Appeals rejected the claims raised in that PRP. Houston-Sconiers, 191 Wn.App. at 439. We granted review of these consolidated cases. State v. Houston-Sconiers, 185 Wn.2d 1032, 377 P.3d 737 (2016).

         ANALYSIS

         I. THE EVIDENCE WAS SUFFICIENT TO PROVE SECOND DEGREE ASSAULT OF A.G.

         Petitioners were convicted of one count each of second degree assault of A.G. in violation of RCW 9A.36.021(1)(c). One of the elements of assault as charged here is that the act is "done with the intent to create in another apprehension and fear of bodily injury, and . . . in fact creates in another a reasonable apprehension and imminent fear of bodily injury . . . ." CPHS at 183 (emphasis added) (Instr. 33).[1]

         Petitioners contend that the State failed to prove that A.G. "[i]n fact" experienced '"reasonable apprehension and imminent fear of bodily injury.'" Suppl. Br. of Pet'r at 9-10. They point to A.G.'s actions in hiding-rather than handing over-her bag of candy as she walked away from the robbery, as well as her testimony regarding her feelings after the event. Petitioners further argue that the Court of Appeals erred in ruling that A.G.'s fear could be inferred from the mere presence of a firearm, when A.G.'s words and actions indicate she experienced no such fear. Suppl. Br. of Pet'r at 10; Shortened Suppl. Br. on behalf of Pet'r Treson Roberts at 4.

         In reviewing convictions for sufficiency of the evidence, we ask "whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980) (plurality opinion)). The challenge "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom, " id., and leaves determinations of witness credibility to the fact finder, State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).

         We need not address whether presence of a firearm alone suffices to prove the apprehension element of assault. Here, there was more. A.G. testified that as her friends were being robbed, she went to the nearest house for help. 11 VRP (July 15, 2013) at 825-26. As discussed above, she said that the events affected her confidence and manner at that particular house and she agreed with counsel for Houston-Sconiers that the group of friends as a whole were "[r]eally scared." Id. at 852, 859.[2] Viewing this evidence in the light most favorable to the State, a rational fact finder could determine that A.G. took these actions out of fear that she would be harmed. The evidence was therefore sufficient to support the two assault convictions.

         II. THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE FIREARM ENHANCEMENTS ON THE CONSPIRACY CONVICTIONS

         Petitioners were also convicted of conspiracy to commit robbery in the first degree in violation of RCW 9A.28.040(1), along with a firearm sentence enhancement on that conviction. They challenge this firearm enhancement for two reasons: first, that it is illogical to impose firearm sentence enhancements on any charge of conspiracy because conspiracy is just an agreement, not an act, and second, that the agreement here to use a firearm in the future is insufficient to support the firearm sentence enhancements on the conspiracy charges.

         The first challenge fails because conspiracy is not just an agreement-it's an agreement to commit a crime plus "a substantial step in pursuance of such agreement." RCW 9A.28.040(1); see also State v. Dent, 123 Wn.2d 467, 475, 869 P.2d 392 (1994) (quoting Yates v. United States, 354 U.S. 298, 334, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 2, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). Obtaining or brandishing a gun can certainly be considered such a substantial step.

         The first challenge also fails because the legislature intended to enhance conspiracy sentences if a firearm was used. RCW 9.94A.533 specifically describes how to apply firearm enhancements to sentences for conspiracy and other inchoate crimes, demonstrating that the legislature contemplated this situation. See RCW 9.94A.533(3).

         The petitioners' second argument on this point is that the evidence was insufficient to support the required nexus between the firearm and the conspiracy. That nexus requirement is rooted in the firearm enhancement statute, our constitution, and our case law. The firearm statute increases the sentence for an underlying felony "if the offender or an accomplice was armed with a firearm" during the course of that crime. RCW 9.94A.533(3). To prove that a defendant is "armed, " the State must show that '"he or she is within proximity of an easily and readily available deadly weapon for offensive or defensive purposes and [that] a nexus is established between the defendant, the weapon, and the crime.'" State v. O'Neal, 159 Wn.2d 500, 503-04, 150 P.3d 1121 (2007) (quoting State v. Schelin, 147 Wn.2d 562, 575-76, 55 P.3d 632 (2002) (plurality opinion)). Such a nexus exists when the defendant and the weapon are "in close proximity" at the relevant time. State v. Gurske, 155 Wn.2d 134, 141-42, 118 P.3d 333 (2005). Sufficient evidence of nexus exists "[s]o long as the facts and circumstances support an inference of a connection between the weapon, the crime, and the defendant." State v. Easterlin, 159 Wn.2d 203, 210, 149 P.3d 366 (2006).

         The State proved such a nexus here. It charged petitioners with a conspiracy occurring on October 31, 2012. CPHS at 21; CPR at 19. Both the agreement and the crime itself-including its "substantial steps"-occurred on that day. There is: also circumstantial evidence that petitioners had access to the firearm at the very time they made the agreement to commit robbery. Based on witness testimony at trial, a rational fact finder could infer that petitioners, having taken the gun that L.A. saw in their possession at Roberts's house, made the agreement to commit armed robbery at some point between their arrival at Stanley Elementary School and their commission of the first robbery. This would put petitioners "within proximity of an easily and readily available deadly weapon, " O 'Neal, 159 Wn.2d at 503-04, with the weapon available for offensive or defensive use at the time they made the agreement itself. The evidence was sufficient to support these two firearm enhancements.

         III. TRIAL COURTS HAVE FULL DISCRETION TO IMPOSE SENTENCES BELOW SRA GUIDELINES AND/OR STATUTORY ENHANCEMENTS BASED ON YOUTH

         A. The Eighth Amendment Requires Sentencing Courts To Consider the Mitigating Qualities of Youth at Sentencing, Even in Adult Court I

         Petitioners argue that children are different from adults. They conclude that those differences render their mandatory transfer to adult court, their lengthy adult sentences, and their mandatory, consecutive, flat time firearm enhancements unlawful.[3]

         They have considerable support for their arguments. The Supreme Court's recent decisions explicitly hold that the Eighth Amendment to the United States Constitution compels us to recognize that children are different. E.g., Miller, 132 S.Ct. at 2470 ("children are different"); Graham, 560 U.S. at 68-70 (differences between children and adults are constitutional in nature and implicate Eighth Amendment and sentencing practices); Roper v. Simmons, 543 U.S. 551, 569-70, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

         The Supreme Court has already applied that holding about the differences between children and adults in several specific contexts: the death penalty, Roper, 543 U.S. at 574; life without parole sentences for nonhomicide offenses, Graham, 560 U.S. at 79; mandatory life without parole sentences for any offense, Miller, 132 S.Ct. at 2469; and confessions, J.D.B. v. North Carolina, 564 U.S. 261, 277, 131 S.Ct. 2394, 180 L, Ed. 2d 310 (2011).

         Critically, the Supreme Court has also explained how the courts must address those differences in order to comply with the Eighth Amendment: with discretion to consider the mitigating qualities of youth.[4]

         Further, the Eighth Amendment requires trial courts to exercise this discretion whether the youth is sentenced in juvenile or adult court and whether the transfer to adult court is discretionary or mandatory. Miller, 132 S.Ct. at 2461-62 (appellants Jackson and Miller both had benefit of discretionary transfer hearing; rule barring mandatory life without parole sentence or juvenile death penalty for capital murder still applied to them); Graham, 560 U.S. at 53 (Graham was charged as an adult, at prosecutor's discretion); Roper, 543 U.S. at 557 (Simmons was tried as an adult following mandatory transfer).

         Critically, the Eighth Amendment requires trial courts to exercise this discretion at the time of sentencing itself, regardless of what opportunities for discretionary release may occur down the line. See, e.g., Miller, 132 S.Ct. at 2468-72 (listing reasons why certain mitigating factors had to be considered at the time of child's initial sentencing); Graham, 560 U.S. at 69-70 (Eighth Amendment bars imposition of life without parole sentence on juvenile nonhomicide offender, despite the fact that Graham might be eligible for executive clemency). Indeed, the only time the Supreme Court has spoken approvingly of a postsentencing Miller "fix" such as extending parole eligibility to juveniles is when addressing how to remedy a conviction and sentence ...


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