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.
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.
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.
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
their credit, all participants in the system balked at this
result. But they felt their hands were tied by our state
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.)
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.,
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).
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).
EVIDENCE WAS SUFFICIENT TO PROVE SECOND DEGREE ASSAULT OF
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.
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
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)).
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. 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.
EVIDENCE WAS SUFFICIENT TO SUPPORT THE FIREARM ENHANCEMENTS
ON THE CONSPIRACY CONVICTIONS
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
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.
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).
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
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.
TRIAL COURTS HAVE FULL DISCRETION TO IMPOSE SENTENCES BELOW
SRA GUIDELINES AND/OR STATUTORY ENHANCEMENTS BASED ON YOUTH
Eighth Amendment Requires Sentencing Courts To Consider the
Mitigating Qualities of Youth at Sentencing, Even in Adult
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
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).
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).
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.
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).
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 ...