In the Matter of the Personal Restraint of KEVIN LIGHT-ROTH, Petitioner.
personal restraint petition, Kevin Light-Roth challenges his
sentence for his 2004 conviction of murder in the second
degree. He argues that his sentence is invalid because the
trial court did not meaningfully consider whether his
youthfulness justified an exceptional sentence below the
this is Light-Roth's second petition and is beyond the
one-year time bar for collateral attacks on the judgment, he
argues that we may consider it because of a significant
change in the law. He contends that the recent Supreme Court
decision in State v. O'Dell significantly
broadened the circumstances under which a defendant's
youthfulness may justify an exceptional sentence below the
standard range. 183 Wn.2d 680, 695-96, 358 P.3d 359 (2015).
State responds that O'Dell is not a significant
change in the law because the court did not overrule its
decision in State v. Ha'mim O'Dell,
183 Wn.2d at 685 (citing Ha'mim. 132 Wn.2d 834,
847, 940 P.2d 633 (1997)). In O'Dell. the court
said there was a "clear connection between youth and
decreased moral culpability for criminal conduct." 183
Wn.2d at 695. But in Ha'mim, the court stated
that the "age of the defendant does not relate to the
crime or the previous record of the defendant, " and
cited with approval a Court of Appeals decision
characterizing as absurd the argument that a defendant's
youth might justify imposing a more lenient sentence. 132
Wn.2d at 846-47 (citing State v. Scott, 72 Wn.App.
207, 218-19, 866 P.2d 1258 (1993), affd, State v.
Ritchie. 126 Wn.2d 388, 894 P.2d 1308 (1995)).
we hold that O'Dell expanded youthful
defendants' ability to argue for an exceptional sentence,
and was a significant change in the law. Because that change
in the law was material to Light-Roth's sentence and
applies retroactively, we may consider Light-Roth's
petition. We conclude that Light-Roth deserves an opportunity
to have a sentencing court meaningfully consider whether his
youthfulness justifies an exceptional sentence below the
standard range. Therefore, we grant Light-Roth's
2003, when he was 19 years old, Light-Roth shot and killed
2004, Light-Roth was convicted of murder in the second
degree. Light-Roth asked for a low- or mid-range
sentence. He pointed out that he was only 21 years old at the
time of sentencing, but he did not seek an exceptional
sentence downward on the basis of his youthfulness at the
time of the murder. The trial court imposed the maximum
standard range sentence of 335 months.
2008, this court issued its mandate in Light-Roth's
direct appeal, and the judgment in his case became final.
2009, Light-Roth brought his first personal restraint
petition, alleging numerous errors, none of which related to
his sentence or youthfulness. In 2010, this court dismissed
2015, the Supreme Court issued its opinion in
O'Dell. 183 Wn.2d 680. In 2016, Light-Roth filed
this second personal restraint petition, challenging his
State argues that this court should dismiss Light-Roth's
petition as untimely because Light-Roth filed it more than
one year after the judgment in his case became final. While
this petition would normally be untimely, we hold that we may
consider it because of O'Dell. which announced a
significant, material change in the law that applies
petition or motion for collateral attack on a judgment and
sentence in a criminal case may be filed more than one year
after the judgment becomes final if the judgment and sentence
is valid on its face and was rendered by a court of competent
jurisdiction." RCW 10.73.090(1). A judgment becomes
final when an appellate court issues its mandate disposing of
the direct appeal. RCW 10.73.090(3)(b).
there are exceptions to the one-year time limit. RCW
10.73.100. The one-year limit does not apply to a petition
that is based solely on the ground that there has been (1) a
significant change in the law, (2) that is material to the
defendant's sentence, and (3) applies retroactively. RCW
Light-Roth's sentence became final in 2008. He filed this
petition in 2016. Therefore, he may pursue this petition only
if he can satisfy all three prongs of RCW 10.73.100(6). We
conclude that he can.
Change in the Law
argues that O'Dell announced a significant
change in the law because it changed "the law regarding
the evidence that is relevant to decreased culpability"
and changed the showing required to merit a sentencing
court's consideration of an offender's
youth. The State argues that O'Dell
did not announce a significant change in the law because it
did not overrule established precedent. We agree with
Light-Roth because defendants could not successfully argue
that their youth diminished their culpability before
significant change in the law occurs when "an
intervening appellate decision overturns a prior appellate
decision that was determinative of a material issue."
State v. Miller, 185 Wn.2d 111, 114, 371 P.3d 528
(2016). An appellate decision that "'settles a point
of law without overturning prior precedent' or
'simply applies settled law to new facts'" does
not constitute a significant change in the law.
Miller. 185 Wn.2d at 114-15 (quoting In re Pers.
Restraint of Turay, 150 Wn.2d 71, 83, 74 P.3d 1194
(2003)). But appellate courts will usually find a significant
change in the law when the defendant could not have argued an
issue before the new appellate decision was published.
Miller. 185 Wn.2d at 115. The change must be a
change in the law itself; a change in counsels'
understanding of the law is not enough. Miller, 185
Wn.2d at 116.
State v. Miller, the court held that State v.
Mulholland had not announced a significant change in the
law because, there, the court stated explicitly that the
question it was confronted with was "'a question [it
had] not directly addressed.'" 185 Wn.2d at 116
(quoting Mulholland. 161 Wn.2d 322, 328, 166 P.3d
In re the Personal Restraint of Flippo. Earl Flippo
petitioned the Supreme Court to review the discretionary
legal financial obligations (LFOs) imposed on him, arguing
that there had been a significant change in the law since his
sentence. 187Wn.2d 106, 108, 385 P.3d 128 (2016) (citing
State v. Blazina. 182Wn.2d 827, 837-38, 344 P.3d 680
(2015) (holding that the trial court must make an
"individualized inquiry into the defendant's current
and future ability to pay" before imposing discretionary
LFOs and that the record must reflect that inquiry)). The
court dismissed Flippo's petition because it concluded
that Blazina had clarified the trial court's
requirements under RCW 10.01.160(3) but had not
"change[d] anything about the meaning of that statue or
any other material provision of law." Flippo.
187 Wn.2d at 112. The court reasoned that, "prior to
Blazina. a defendant could certainly request that
the court perform an individualized inquiry pursuant to the
statute." Flippo. 187 Wn.2d at 112.
argued that such a request would have been "futile"
because controlling precedent established that the trial
court did not need to "'enter formal, specific
findings regarding a defendant's ability to
pay."' Flippo. 187 Wn.2d at 112-13 (quoting
State v. Curry. 118 Wn.2d 911, 916, 829 P.2d 166
(1992)). The court rejected Flippo's argument, holding
that, although Blazina explained what the trial
court was required to do, "nothing about those
requirements changed with Blazina."
Flippo. 187 Wn.2d at 113. The court acknowledged
that some practitioners had had a mistaken understanding of
the law, but nevertheless, held that there was no significant
change in the law. Flippo, 187 Wn.2d at 113.
the parties dispute whether O'Dell announced a
change in the interpretation of the mitigating factors
justifying an exceptional sentence below the standard range
under the Sentencing Reform Act of 1981, chapter 9.94A RCW
(SRA). The court may impose a sentence below the standard
range when the "defendant's capacity to appreciate
the wrongfulness of his or her conduct, or to conform ...