case addresses the adequacy of the parole remedy available
under RCW 9.94A.730, the Miller "fix"
statute. Consistent with the Supreme Court's decision in
Montgomery v. Louisiana, ___ U.S. ___, 136
S.Ct. 718, 193 L.Ed.2d 599 (2016), we hold that RCW
9.94A.730's parole provision is an adequate remedy for a
Miller violation, rendering unnecessary the
resentencing of a defendant who long ago received a de facto
life sentence as a juvenile.
Scott was convicted by a jury in 1990 of first degree
premeditated murder for killing his neighbor, a
78-year-old-woman who suffered from Alzheimer's disease.
See State v. Scott, 72 Wn.App. 207, 210, 866 P.2d
1258 (1993), aff'd sub nom. State v. Ritchie,
126 Wn.2d 388, 894 P.2d 1308 (1995). Scott was 17 years old
when he committed the murder. The juvenile court declined
jurisdiction, and Scott was tried, convicted, and sentenced
as an adult.
sentencing, the parties agreed that the standard range was
240 to 320 months, with 240 months being the mandatory
minimum sentence that could be imposed. The State requested
an exceptional sentence above the standard range. The defense
requested the low end of the standard range. The trial court
sentenced Scott to an exceptional sentence of 900 months
based on four independent findings: (1) that Scott's
conduct constituted deliberate cruelty, (2) that his conduct
was an abuse of trust, (3) that the crime involved multiple
injuries, and (4) that the victim was particularly
direct appeal, the Court of Appeals held that the 900-month
sentence imposed was not clearly excessive because the
"aggravating factors are both numerous and individually
and collectively egregious." Id. at 222. The
Court of Appeals also rejected Scott's assertion that his
exceptional sentence was improper in light of his youth at
the time of the crime. This court affirmed in
Ritchie, 126 Wn.2d at 399, which held that the
sentencing court had properly relied on "four horrid
aggravating factors" in imposing the 900-month sentence.
Scott served his sentence, the law of juvenile sentencing
changed dramatically, and in 2012 the Supreme Court decided
Miller, 567 U.S. at 465, which held that a sentence
imposed on a juvenile of mandatory life without parole
violates the prohibition on cruel and unusual punishment
under the Eighth Amendment to the United States Constitution.
Following Miller, this court, in State v.
O'Dell, 183 Wn.2d 680, 696, 358 P.3d 359 (2015),
held that a trial court must be allowed to consider youth as
a mitigating factor when imposing a sentence on a person who
was barely 18 years old at the time of his crime. Two months
later, Division One held, in State v. Ronquillo, 190
Wn.App. 765, 774-77, 361 P.3d 779 (2015), that
Miller applied to juveniles receiving aggregate
sentences that resulted in the equivalent of life without
parole, that is, de facto life sentences.
2016, Scott filed a motion for relief from judgment
requesting a new sentencing hearing. The State asked the
superior court to transfer the untimely motion to the Court
of Appeals for consideration as a personal restraint petition
(PRP) pursuant to CrR 7.8. The court denied the State's
motion and granted Scott's motion for relief from
judgment. The State appealed.
Court of Appeals reversed the trial court's grant of a
new sentencing hearing, finding, "The constitutional
violation identified in the Miller line of cases is
the failure to allow a juvenile offender the opportunity for
release when his or her crime was the result of youthful
traits." State v. Scott, 196 Wn.App. 961, 971,
385 P.3d 783 (2016). The Court of Appeals concluded, "In
Montgomery, the Supreme Court expressly approved of
statutes that provide the opportunity for parole as remedies
for a Miller violation." Id. The Court
of Appeals concluded that due to the enactment of
"Washington's Miller fix statute, "
RCW 9.94A.730,  "Scott is no longer serving a
sentence that is the equivalent of life without parole. As
such, Miller is not a significant change in law that
is material to his sentence." Id. at 972. Scott
sought review, which this court granted. State v.
Scott, 188 Wn.2d 1001');">188 Wn.2d 1001, 393 P.3d 362 (2017).
interpretation is a question of law reviewed de novo.
State v. MacDonald, 183 Wn.2d 1, 8, 346 P.3d 748
(2015). Questions of statutory interpretation are also
reviewed de novo. State v. Bunker, 169 Wn.2d 571,
577, 238 P.3d 487 (2010).
collateral attack on a sentence generally must be brought
within one year after the judgment and sentence become final.
RCW 10.73.090(1), (2). A collateral attack filed more than
one year after the underlying judgment will not be considered
time barred by RCW 10.73.090 when it is based on a
retroactively applicable "significant change in the law,
whether substantive or procedural, which is material to the
conviction, sentence, or other order entered." RCW
10.73.100(6). Here, there is no dispute that Miller
constituted a retroactively applicable, significant change in
the law. See Scott, 196 Wn.App. at 965.
Nevertheless, the Court of Appeals held that RCW 10.73.100(6)
did not apply because Miller was not
"material" to Scott's unconstitutional sentence
and thus, Scott's motion for resentencing was time
barred. Id. at 972.
court has previously explained:
While litigants have a duty to raise available
arguments in a timely fashion and may later be procedurally
penalized for failing to do so, . . . they should not be
faulted for having omitted arguments that were essentially
unavailable at the time, as occurred here. We hold
that where an intervening opinion has effectively overturned
a prior appellate decision that was originally determinative
of a material issue, the intervening opinion constitutes a
"significant change in the law" for purposes of
exemption from procedural bars.
In re Pers. Restraint of Greening, 141 Wn.2d 687,
697, 9 P.3d 206 (2000) (footnote omitted). Further, in In
re Personal Restraint of Thomas, 180 Wn.2d 951, 953, 330
P.3d 158 (2014), we dismissed a PRP as mixed, but
acknowledged, "We recognize that Thomas's claim
premised on Miller may not be time barred; if we
agreed with Thomas that the rule in Miller applies
retroactively, then that claim satisfies the exception to the
one-year time bar in RCW 10.73.100(6) and we could reach its
Supreme Court has recently declared in Montgomery
that Miller applies retroactively. Nevertheless, as
discussed infra, Montgomery also identifies an
adequate remedy for a Miller violation in the form
of providing a parole opportunity for juvenile defendants.
136 S.Ct. at 736. Consequently, because an adequate
remedy is available to Scott, this court cannot grant
him the collateral relief (via a PRP) that he seeks.
See RAP 16.4(d) ("The appellate court will only
grant relief by a personal restraint petition if other
remedies which may be available to petitioner are inadequate
under the circumstances."). Accordingly, we hold that
the collateral relief Scott seeks (i.e., resentencing) is
unavailable because he has an adequate remedy, which is to
seek parole under RCW 9.94A.730.
and amici contend that in light of the
Miller violation here, the appropriate remedy is to
remand for resentencing and an individualized consideration
of youth. We reject the contentions that resentencing is
Miller, the Supreme Court observed, "The Eighth
Amendment's prohibition of cruel and unusual punishment
'guarantees individuals the right not to be subjected to
excessive sanctions.'" 567 U.S. at 469 (quoting
Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183,
161 L.Ed.2d 1 (2005)). Accordingly, justice requires
that'" punishment for crime should be
[appropriately] graduated and proportioned' to both the
offender and the offense." Id. (internal
quotation marks omitted) (quoting Roper, 543 U.S. at
560). In other words, '"[t]he concept of
proportionality is central to the Eighth
Amendment.'" Id. (alteration in original)
(quoting Graham v. Florida, 560 U.S. 48, 59, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010). And that concept is
viewed "less through a historical prism than according
to 'the evolving standards of decency that mark the
progress of a maturing society.'" Id. at
469-70 (internal quotation marks omitted) (quoting
Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976)). The Court in Miller built on
its prior decisions in Roper and
Graham in concluding that "mandatory
life-without-parole sentences for juveniles violate the
Eighth Amendment." Id. at 470.
Miller, the Court was considering "the
constitutionality of mandatory sentencing schemes-which by
definition remove a [sentencing] judge's . . .
discretion." Id. at 483 n.10. The Court
explained, "Our decision does not categorically bar a
penalty for a class of offenders or type of crime ....
Instead, it mandates only that a sentencer follow a certain
process-considering an offender's youth and attendant
characteristics- before imposing a particular
penalty." Id. at 483 (emphasis added).
Miller held that "the Eighth Amendment forbids
a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders, " the
Court reiterated that '"[a] State is not required to
guarantee eventual freedom, ' but must provide
''some meaningful opportunity to obtain release
based on demonstrated maturity and
rehabilitation.'" Id. at 479 (emphasis
added) (quoting Graham, 560 U.S. at 75).
Court's discussion in Miller, which rejected the
State's argument that sufficient discretion is exercised
in the course of the juvenile transfer decision, is
instructive here. The Court explained as follows:
[T]he question at transfer hearings may differ dramatically
from the issue at a post-trial sentencing. Because many
juvenile systems require that the offender be released at a
particular age or after a certain number of years, transfer
decisions often present a choice between extremes: light
punishment as a child or standard sentencing as an adult
(here, life without parole). In many States, for example, a
child convicted in juvenile court must be released from
custody by the age of 21. Discretionary sentencing in adult
court would provide different options: There, a
judge or jury could choose, rather than a
life-without-parole sentence, a lifetime prison term with
the possibility of parole or a lengthy term of years. It
is easy to imagine a judge deciding that a minor deserves a
(much) harsher sentence than he would receive in juvenile
court, while still not thinking life-without-parole
appropriate. For that reason, the discretion available to a
judge at the transfer stage cannot substitute for discretion
at post-trial sentencing in adult court-and so cannot satisfy
the Eighth Amendment.
Id. at 488-89 (emphasis added) (citations omitted).
Notably, the circumstance that the Miller court
cites with approval in the above passage is precisely the
circumstance Scott finds himself in by operation of the
Miller fix statute in this case-he has a de facto
lifetime prison term with the possibility of parole.
This meets Miller's requirement that the State
provide '"some meaningful opportunity to obtain
release based on demonstrated maturity and
rehabilitation.'" Id. at 479 (quoting
Graham, 560 U.S. at 75).
argues that this court's recent decision in State v.
Houston-Sconiers, 188 Wn.2d 1, 20, 391 P.3d 409 (2017),
supports resentencing in his case. We disagree. Applying
Miller, this court held that "[t]rial courts
must consider mitigating qualities of youth at
sentencing and must have discretion to impose any
sentence below the otherwise applicable SRA [(Sentencing
Reform Act of 1981, ch. 9.94A RCW)] range and/or sentence
enhancements." Id. at 21 (emphasis added). This
court explained in Houston- Sconiers,
"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."
Id. at 20 (emphasis added). In Houston-
Sconiers, this court was addressing the appeal of a
juvenile offender's sentence that was not yet final. The
Houston-Sconiers court acknowledged that the Supreme
Court had approved a postsentencing Miller fix
of extending parole eligibility to juveniles as a
remedy where an offending juvenile conviction and sentence
are "long final." Id. at 20 (citing
Montgomery, 136 S.Ct. at 736).
as noted, Montgomery held that Miller
announced a new substantive rule of constitutional law that
is "retroactive in cases on collateral review." 136
S.Ct. at 732. The Montgomery Court acknowledged that
“Miller held that mandatory life without
parole for juvenile homicide offenders violates the Eighth
Amendment's prohibition on 'cruel and unusual
punishments.'" Id. at 726 (internal
quotation marks omitted) (quoting Miller, 567 U.S.
at 465). The Montgomery Court stated:
Miller required that sentencing courts consider a
child's "diminished culpability and heightened
capacity for change" before condemning him or
her to die in prison. Although Miller did not foreclose a
sentencer's ability to impose life without parole on a
juvenile, the Court explained that a lifetime in prison is a
disproportionate sentence for all but the rarest of children,
those whose crimes reflect" 'irreparable
Id. at 726 (emphasis added) (citation omitted)
(quoting Miller, 567 U.S. at 479-80 (quoting
Roper, 543 U.S. at 573)). The Montgomery
Miller, it is true, did not bar a punishment for all
juvenile offenders, . . . Miller did bar life
without parole, however, for all but the rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility. . . . Before Miller, every juvenile
convicted of a homicide offense could be sentenced to life
without parole. After Miller, it will be the rare
juvenile offender who can receive that same sentence. . . .
Miller drew a line between children whose crimes reflect
transient immaturity and those rare children whose crimes
reflect irreparable corruption.
Id. at 734. The Montgomery Court explained
that procedurally, "Miller requires a
sentencer to consider a juvenile offender's
youth and attendant characteristics before
determining that life without parole is a proportionate
sentence." Id. (emphasis added). Such a hearing
"where 'youth and its attendant characteristics'
are considered as sentencing factors is necessary to separate
those juveniles who may be sentenced to life without parole
from those who may not." Id. at 735 (quoting
Miller, 567 U.S. at 465).
Montgomery Court observed,
"Miller's conclusion that the sentence of
life without parole is disproportionate for the vast majority
of juvenile offenders raises a grave risk that many are being
held in violation of the Constitution." Id. at
736. While acknowledging the potential scope of the
Court's retroactive application of Miller, the
Montgomery Court proceeded to explain the
appropriate remedy, stating:
Giving Miller retroactive effect. . . does not
require States to relitigate sentences, let alone
convictions, in every case where a juvenile offender received
mandatory life without parole. A State may remedy a
Miller violation by permitting juvenile homicide offenders to
be considered for parole, rather than by resentencing
them. See, e.g., Wyo. Stat. Ann. §
6-10-301(c) (2013) (juvenile homicide offenders eligible for
parole after 25 years). Allowing those offenders to be
considered for parole ensures that juveniles whose crimes
reflected only transient immaturity-and who have since
matured-will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not
impose an onerous burden on the States, nor does it disturb
the finality of state convictions. Those prisoners who
have shown an inability to reform will continue to serve life
sentences. The opportunity for release will be afforded
to those who demonstrate the truth of Miller's