1996, a jury found Brian M. Bassett guilty of three counts of
aggravated first degree murder committed when he was 16 years
old. The trial court imposed three "life without
parole" sentences. In 2015, after a.
Miller hearing, the resentencing court again
imposed three life without parole sentences. Bassett appeals
his new sentence and successfully argues that a provision of
the Miller-fix. statute, RCW 10.95.030(3)(a)(ii),
violates our State's constitutional prohibition against
cruel punishment. In the published portion of this opinion,
we waive procedural defects and treat Bassett's claim as
a personal restraint petition (PRP). We hold that under a
categorical bar analysis, the statutory Miller-fix.
provision that allows 16- to 18-year-old offenders convicted
of aggravated first degree murder to be sentenced to life
without parole or early release violates article I, section
14 of the state constitution prohibiting cruel punishment. In
the unpublished portion, we reject Bassett's remaining
arguments. Because Bassett shows that grounds exist to
challenge the legality of his restraint, we reverse
Bassett's sentence and remand for resentencing in
accordance with this opinion.
Background Facts and Procedure
1995, 16-year-old Bassett, who had been '"kicked
out'" of his home by his parents, Wendy and Michael
Bassett,  stole a rifle and placed a soda bottle
over the gun barrel as a '"silencer."'
State v. McDonald, 138 Wn.2d 680, 683, 981 P.2d 443
(1999); State v. Bassett, noted at 94 Wn.App. 1017,
1999 WL 100872, at *3. Several days later, Bassett broke into his
parents' home and shot them multiple times.
Bassett, 1999 WL 100872, at *1. Meanwhile,
17-year-old Nicholaus McDonald disabled the Bassetts'
phone line so that they could not call for help and waited
outside. Bassett, 1999 WL 100872, at * 1;
McDonald, 138 Wn.2d at 683. McDonald then entered
the home and shot Michael, who was still breathing after
Basset had shot him, in the head. McDonald, 138
Wn.2d at 684. Basset's five-year-old brother, Austin
Bassett, witnessed the shootings; Bassett or McDonald then
drowned Austin in a bathtub. McDonald, 138 Wn.2d at
683- 84. McDonald hid Austin's and
Michael's bodies away from the home. McDonald,
138 Wn.2d at 684. McDonald and Bassett hid Wendy's body
in the Bassetts' pump house, and McDonald cleaned the
home. McDonald, 138 Wn.2d at 684-85.
turned himself in to the police the next day and implicated
himself and Bassett in the killings. McDonald, 138
Wn.2d at 683; Bassett, 1999 WL 100872, at *1. The
State charged Bassett with three counts of aggravated first
degree murder. At trial, the State introduced Bassett's
statement to the police that he and McDonald had tried to
kill Bassett's parents twice before the crimes, but their
attempts were foiled. Bassett, 1999 WL 100872, at
*1. A jury convicted Bassett of three counts of aggravated
first degree murder, and the trial court sentenced Bassett to
three consecutive terms of life without the possibility of
parole. Former RCW 10.95.030(1) (1993).
Resentencing Mitigation Evidence and Hearing
2015, Bassett, who was then 35 years old, appeared for
resentencing under RCW 10.95.030(3) (the Miller-fix.
statute) and .035(1). Bassett argued that the
Miller-fix. statute was unconstitutional under
Miller and requested that he be resentenced to three
25-year concurrent sentences for each crime and allowed
earned early release credit. In support of these arguments,
Bassett offered mitigation information including evidence of
rehabilitation and submitted over 100 pages of supporting
mitigation evidence documented Bassett's home life, high
school education, and general lack of a criminal history. The
mitigation evidence also included evidence of Bassett's
rehabilitation during imprisonment, including his
participation in various workshops and counseling programs,
educational achievements including attaining honor roll in
community college and various trade certifications, marriage,
infraction-free prison record since 2003, and mentorship of
other inmates. Eighteen inmates and six noninmates wrote
letters that supported mitigation of Bassett's sentence,
including a letter that noted Bassett was a teacher's
assistant in a prison community college program.
Jeffrey Hansen, who had counseled Bassett in 1995, testified
at the resentencing hearing. Dr. Hansen reported that around
1995, Bassett ran away from home sometimes to hurt his
mother, was still trying to establish his identity, had
average cognitive ability, had suffered a self-induced
alcohol overdose at age 15, had ongoing relational issues
with his parents and felt hopeless, and had an adjustment
disorder resulting in poor emotional behavioral responses to
stress. Dr. Hansen further testified that Bassett faced the
stressors of homelessness, joblessness, and possibly having
had an unwanted sexual relationship with McDonald.
stated that when he entered prison as a juvenile, he first
thought of how much trouble he would be in when his parents
learned that he was in prison because the reality of his
crimes "didn't click." Report of Proceedings
(RP) (Jan. 30, 2015) at 80. Three weeks after the murders,
Bassett had written, "I wish I hadn't done anything
because now I think of all the good times that my dad and me
had. Before I was just thinking about all of the things they
did to piss me off." Clerk's Papers (CP) at 294.
Bassett expressed remorse at resentencing and explained the
challenges that he faced as a homeless youth at 16.
State did not rebut Bassett's evidence; rather, the State
argued that compared to the severity of Bassett's crimes,
the mitigation evidence did not show that Bassett should be
considered for parole or early release. The State opposed a
reduction in Bassett's sentence and argued that
Bassett's crimes were premeditated, calculated acts and
that no evidence demonstrated an acceptable explanation or
excuse for the crimes.
Resentencing Court's Conclusions
resentencing court acknowledged that it had a duty to
consider the Miller factors and not to make a
decision based upon the horrific circumstances of the crime
alone. Further, the resentencing court noted that it had to
assess Bassett's degree of responsibility and whether
Bassett's crimes were the result of immaturity,
impulsiveness, and emotion stimuli that caused Bassett to
"snap." RP (Jan. 30, 2015) at 85.
resentencing court concluded that Bassett's two previous
attempts to commit the crimes and his stealing a gun in
advance, fashioning a silencer, and cutting the phone lines
evinced that Bassett had not acted from emotion or impulse.
Bassett appreciated his actions' risks and consequences
because he "did several things to try to reduce his
risk" and fled after the crimes. RP (Jan. 30, 2015) at
89. The resentencing court noted Bassett's strained
relationship with his family, which it determined was by
Bassett's choice, and found no evidence of abuse or
neglect. Further, Bassett's homelessness meant that he
was potentially more responsible and in control of his
behaviors than other 16-year-olds. In the resentencing
court's view, teenage homelessness "cause[s] 15 and
16-year-olds to grow up pretty quickly" and to
"gain a level of maturity much quicker than kids who are
not in that situation." RP (Jan. 30, 2015) at 88-89.
the resentencing court considered the Miller
factors, it concluded that Bassett's infraction-free
record did not carry "much weight in terms of assessing
the likelihood that he can be rehabilitated or has
been." RP (Jan. 30, 2015) at 90. Bassett's
educational endeavors and trade certificates were "less
evidence of rehabilitation and more evidence that [Bassett
was] simply doing things to make his time in prison more
tolerable" and to pass the time, and Bassett's
marriage was "certainly not evidence of
rehabilitation." RP (Jan. 30, 2015) at 91.
resentencing court found that the evidence about the
crimes' commission outweighed the mitigating nature of
Bassett's adolescence. In doing so, the resentencing
court concluded that Bassett's crimes "were the
result of a cold and calculated and very well planned goal of
eliminating his family from his life. And I don't believe
that any amount of time in prison is going to ever result in
his being rehabilitated such that he could safely return to
any community." RP (Jan. 30, 2015) at 93. The
resentencing court imposed three consecutive life without
parole sentences. Bassett appeals.
Bassett's Claims Are Not Procedurally Barred
initial matter, the State argues that a PRP, not a direct
appeal, was the proper method for Bassett to seek review of
his resentencing. The State acknowledges that we may waive
this procedural defect to reach the merits of Bassett's
claims but argues that Bassett's claims must meet the PRP
standards of RAP 16.4. We agree.
legislature provided for certain juveniles sentenced to life
without release or parole before June 1, 2014 to be
resentenced consistently with RCW 10.95.030. RCW 10.95.035.
RCW 10.95.030(3)(b) requires a court setting a minimum term
for a 16- to 18-year-old offender who committed aggravated
first degree murder to take into account "mitigating
factors that account for the diminished culpability of youth
as provided in Miller.'" "The
court's order setting a minimum term is subject to review
to the same extent as a minimum term decision by the parole
board before July 1, 1986." RCW 10.95.035(3). Before
July 1, 1986, review of a parole board decision setting a
minimum term was obtained by filing a PRP. In re Pers.
Restraint of Rolston, 46 Wn.App. 622, 623, 732P.2d
order to facilitate review of a minimum term decision on the
merits, we may disregard a filing defect and treat a direct
appeal as a PRP. Rolston, 46 Wn.App. at 623. Thus,
although a PRP is the proper method for Bassett to seek
review of his resentencing, we disregard this procedural
defect and treat Bassett's appeal as a PRP. See
RCW 10.93.035(3); Rolston, 46 Wn.App. at 623.
obtain relief under a PRP where no prior opportunity for
judicial review was available, a petitioner must show that he
is restrained under RAP 16.4(b) and that the restraint is
unlawful under RAP 16.4(c). In re Pers. Restraint of
Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004). Bassett
has had no prior opportunity for judicial review of these
claims; accordingly, we consider whether Bassett's
restraint is unlawful. See Isadore, 151 Wn.2d at
Life Without Parole Sentences For Those Who Committed Crimes
as Juveniles Are Unconstitutional
asked to decide whether the Miller-fix statute, RCW
10.95.030(3)(a)(ii), violates article I, section 14 of the
Washington State Constitution. We conclude that sentences
providing for life without parole or early release under the
relevant portion of the Miller-fix. statute are
unconstitutional for juveniles who commit crimes when they
are under the age of 18. Because we agree that the
Miller-fix. statute violates the Washington State
Constitution, we do not reach Bassett's alternative
arguments that the statute is unconstitutional under the
federal constitution's Eighth and Sixth
Principles of Law
statute's constitutionality is a question of law, which
we review de novo. State v. Hunley, 175 Wn.2d 901,
908, 287 P.3d 584 (2012). We presume statutes are
constitutional, and the party challenging a statute's
constitutionality has the burden of proving otherwise beyond
a reasonable doubt. Hunley, 175 Wn.2d at 908. The
Washington Constitution, article I, section 14, prohibits the
infliction of "cruel punishment." The state cruel
punishment proscription affords greater protection than its
federal counterpart. State v. Manussier, 129 Wn.2d
652, 674, 921 P.2d 473 (1996).
Evolution of Permissible Juvenile Punishment
Roper v. Simmons, the United States Supreme Court
banned the death penalty for juvenile offenders. 543 U.S.
551, 578-79, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). And in
Graham v. Florida, it banned life without parole
sentences for juveniles who did not commit homicides. 560
U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In both
cases, the Court stated that "[i]t is difficult even for
expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption." Roper, 543
U.S. at 573; Graham, 560 U.S. at 73 (quoting
Roper, 543 U.S. at 573). The Graham court
stated that some juvenile offenders have sufficient
psychological maturity and demonstrate sufficient depravity
to merit a life without parole sentence. 560 U.S. at 77. But
"it does not follow that courts taking a case-by-case
proportionality approach could with sufficient accuracy
distinguish the few incorrigible juvenile offenders from the
many that have the capacity for change."
Graham, 560 U.S. at 77.
2012, in Miller, the Supreme Court banned mandatory
life without parole sentences for juvenile homicide
offenders. 132 S.Ct. at 2475. Referring to Roper and
Graham, the Court stated that it has been
established that children are "constitutionally
different from adults for purposes of sentencing."
Miller, 132 S.Ct. at 2464. The Court reiterated the
findings from Roper and Graham that
children's lack of maturity and underdeveloped sense of
responsibility lead to recklessness, impulsivity, and
heedless risk taking. Miller, 132 S.Ct. at2464.
Children are also more vulnerable to negative influence and
outside pressure from family and peers, have limited control
over their environments, and lack the ability to extricate
themselves from horrific, crime-producing settings.
Miller, 132 S.Ct. at 2464. Further, because a
child's character is not as well formed as an
adult's, the child's traits are less fixed, and his
actions are less likely to be evidence of irretrievable
depravity. Miller, 132 S.Ct. at2464.
Graham, Miller noted that for youth, life without
parole is an especially harsh punishment because the juvenile
will almost inevitably serve more years and a greater
percentage of his life in prison than an adult offender. 132
S.Ct. at 2466. Graham also likened life without
parole sentences to the death penalty for juveniles, stating
that a life without parole sentence '"means denial
of hope; it means that good behavior and character
improvement are immaterial; it means that whatever the future
might hold in store for the mind and spirit of [the convict],
he will remain in prison for the rest of his days.'"
560 U.S. at 70 (alteration in original) (quoting
Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944
the Miller Court mandated that "a sentencer
[must] follow a certain process- considering an
offender's youth and attendant characteristics-before
imposing a particular penalty." 132 S.Ct. at 2471. The
characteristics to be considered include: chronological age,
"immaturity, " "impetuosity, "
"failure to appreciate risks and consequences, "
the surrounding family and home environment, "the
circumstances of the homicide offense, including the extent
of his participation in the conduct" and any pressures
from friends or family affecting him, the inability to deal
with police officers and prosecutors, incapacity to assist an
attorney in his defense, and the possibility of
rehabilitation. Miller, 132 S.Ct. at 2468. But
Miller "d[id] not categorically barapenalty for a
class of offenders or type of crime." 132 S.Ct. at2471.
Rather, the Court noted that the appropriate occasion for
sentencing a juvenile homicide offender to life without
parole will be "uncommon." Miller, 132
S.Ct. at 2469.
Montgomery v. Louisiana, the Court held that
Miller applied retroactively to offenders who were
juveniles when they committed their crimes and who have
challenged life sentences under the Eighth Amendment of the
federal constitution.___ U.S.___, 136 S.Ct. 718, 725, 736,
193 L.Ed.2d 599 (2016). The Court stated that Miller did not
require a finding of fact regarding a child's
irreparable corruption before a juvenile could be sentenced
to life without parole. Montgomery, 136 S.Ct. at
735. Rather, Miller established a substantive rule
that juveniles whose crimes reflect "only transient
immaturity-and who have since matured-will not be forced to
serve" a life without parole sentence.
Montgomery, 136 S.Ct. at 736. Life without parole is
constitutional only for "the rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility." Montgomery, 136 S.Ct. at 734.
Thus, "prisoners who have shown an inability to reform
will continue to serve life sentences."
Montgomery, 136 S.Ct. at 736. "The opportunity
for release will be afforded to those who demonstrate the
truth of Miller's central intuition-that
children who commit even heinous crimes are capable of
change." Montgomery, 136 S.Ct. at 736.
the Montgomery Court did not determine whether the
defendant was eligible for parole consideration or
resentencing, the Court noted that the type of evidence that
the defendant submitted was an example of the "kind of
evidence that prisoners might use to demonstrate
rehabilitation." Montgomery, 136 S.Ct. at 736.
This evidence included submissions showing the petitioner to
be a "model member of the prison community" who
established a boxing team of which he became a trainer and
coach, contributed time and labor to the prison silkscreen
department, and strived to offer advice and to be a role
model to other inmates. Montgomery, 136 S.Ct. at
Washington State's Miller-Fix
Washington, before Miller, life without possibility
of release or parole was the mandatory sentence for
aggravated first degree murder regardless of the
offender's age. Former RCW 10.95.030 (1993). In response
to Miller, the legislature amended RCW 10.95.030
(the "Miller-fix" statute) to state,
(3)(a)(i) Any person convicted of the crime of aggravated
first degree murder for an offense committed prior to the
person's sixteenth birthday shall be sentenced to a
maximum term of life imprisonment and a minimum term of total
confinement of twenty-five years.
(ii) Any person convicted of the crime of aggravated first
degree murder for an offense committed when the person is at
least sixteen years old but less than eighteen years old
shall be sentenced to a maximum term of life imprisonment and
a minimum term of total confinement of no less than
twenty-five years. A minimum term of life may be imposed,
in which case the person will be ineligible for parole or
(b) In setting a minimum term, the court must take into
account mitigating factors that account for the diminished
culpability of youth as provided in [Miller]
including, but not limited to, the age of the individual, the
youth's childhood and life experience, the degree of
responsibility the youth was capable of exercising, and the
youth's chances of becoming rehabilitated.
RCW 10.95.030 (emphasis added).
legislature also enacted RCW 10.95.035(1), which provided
that persons sentenced before June 1, 2014 to life without
parole or early release for aggravated murder committed when
they were under the age of 18 would be resentenced
consistently with RCW 10.95.030.
Categorical Bar Analysis or Fain' s
argues that the imposition of life without parole or early
release sentences on juvenile offenders under the
Miller-fix. statute violates the cruel punishment
clause in article I, section 14 of the Washington
Constitution. Bassett urges us to apply the categorical bar
analysis, as used in State v. Sweet, 879 N.W.2d 811
(Iowa 2016), to determine the Miller-fix.
statute's constitutionality, rather than the traditional
proportionality analysis from State v.
Fain. The State argues that Iowa's
Sweet decision is not binding on Washington courts,
so that we are confined to applying the Fain
analysis. We disagree with the State and adopt and apply the
categorical bar analysis from Sweet.
Categorical Bar Analysis
urges us to follow the reasoning found in Sweet. See879 N.W.2d 811. Thus, we begin by examining
Sweet's distillation of the categorical bar
analysis. In Sweet, the Iowa Supreme Court held that
juvenile life without parole sentences categorically violate
article I, section 17 of the Iowa Constitution. 879 N.W.2d at
839. Article I, section 17 of the Iowa Constitution matches
the federal Eighth Amendment-both ban "cruel and unusual
punishment." The Sweet court stated that as a
general rule, "[w]hen a different standard is not
presented under the Iowa Constitution, . . . we apply the
federal framework, reserving the right to apply that
framework in a fashion different from federal