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State v. Bassett

Court of Appeals of Washington, Division 2

April 25, 2017

BRIAN M. BASSETT, Appellant.

          JOHANSON, J.

         In 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[1] 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), [2] 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 In the unpublished portion, we reject Bassett's remaining arguments.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.


         I. Background Facts and Procedure

         In 1995, 16-year-old Bassett, who had been '"kicked out'" of his home by his parents, Wendy and Michael Bassett, [3] 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.[4] 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.[5] 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.

         McDonald 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).

         II. Resentencing Mitigation Evidence and Hearing

         In 2015, Bassett, who was then 35 years old, appeared for resentencing under RCW 10.95.030(3) (the Miller-fix. statute) and .035(1).[6] 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 documentation.

         The 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.

         Dr. 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.

         Bassett 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.

         The 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.

         III. Resentencing Court's Conclusions

         The 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.

         The 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.

         When 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.

         The 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.


         I. Bassett's Claims Are Not Procedurally Barred

         As an 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.

         The 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 166(1987).

         In 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.

         To 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 299.

         II. Life Without Parole Sentences For Those Who Committed Crimes as Juveniles Are Unconstitutional

         We are 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.[7] 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 Amendments.[8]

         A. Principles of Law

         A 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).

         B. Evolution of Permissible Juvenile Punishment

         1. Federal Law

         In 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.

         In 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.[9]

         Citing 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 (1989)).

         Thus, 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.

         In 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.

         Although 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 736.

         2. Washington State's Miller-Fix

         In 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 early release.
(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).

         The 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.

         C. Categorical Bar Analysis or Fain' s Proportionality Analysis

         Bassett 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.[10] 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.

         1. Categorical Bar Analysis

         Bassett 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 ...

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