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State v. Gilbert

Supreme Court of Washington, En Banc

April 4, 2019


          JOHNSON, J.

         This case concerns the scope of discretion a judge has in resentencing pursuant to RCW 10.95.035. In 1992, when Jeremiah Gilbert was a juvenile, he was charged and convicted of aggravated murder, premeditated murder, and multiple other crimes. He was sentenced to life without parole for the aggravated murder along with a consecutive sentence for the premeditated murder, as required under the laws in effect at that time. When RCW 10.95.035 was enacted, Gilbert became entitled to a new sentencing hearing. During his resentencing, Gilbert argued that the judge should restructure his two sentences such that they would run concurrently. However, the judge ruled that he lacked statutory authority to address anything other than Gilbert's sentence for aggravated murder and imposed a sentence of 25 years to life, leaving intact the consecutive sentence of 280 months for the premeditated murder conviction. The Court of Appeals affirmed. We reverse and remand for resentencing.


         When Gilbert was 15, he murdered two men and attempted to murder a third. He and a companion had run away from home, journeying on foot to Klickitat County, where they attempted to steal a Ford Bronco owned by Farrell Harris. Harris, who was hunting nearby, returned and tried to halt the theft; however, Gilbert opened fire on him with a rifle. Harris was able to retreat to the woods where he found cover. Robert Gresham came upon the scene on a motorcycle shortly after and stopped. Gilbert shot Gresham twice in the shoulder and then proceeded to shoot him in the head, killing Gresham. Another person, Loren Evans, approached the scene in his truck, and Gilbert shot him in the head through the windshield, instantly killing him. The two young men disabled the Bronco they had been trying to steal and left in Evans's truck. Harris was able to drive Gresham's motorcycle to a nearby home, and he alerted law enforcement, who were able to apprehend Gilbert and his companion soon after.

         The State charged Gilbert in adult court with six offenses: first degree murder of Gresham, aggravated first degree murder of Evans, second degree assault, first degree burglary, first degree theft, and first degree robbery. The jury convicted him on all charges and Gilbert was sentenced to life in prison without parole for the aggravated first degree murder conviction along with a consecutive sentence of 280 months for first degree murder. The sentences for the remaining four convictions were to run concurrent with the aggravated murder sentence.

         Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Washington amended RCW 10.95.030 and enacted RCW 10.95.035, eliminating mandatory sentences of life without parole for juvenile offenders and requiring resentencing for those who had previously received such sentences. In accordance with the new and amended statutes, the trial court held a resentencing hearing for Gilbert on September 21, 2015. Defense counsel argued for the court to go beyond merely adjusting Gilbert's sentence of life without parole and to restructure his first degree murder sentence such that it would run concurrently. However, the judge rejected this argument, holding that he lacked the authority to do anything other than adjust the sentence for aggravated murder. The court imposed a sentence of 25 years to life for aggravated murder and left intact the 280 month consecutive sentence for first degree murder. Gilbert appealed, and the Court of Appeals affirmed his sentence. State v. Gilbert, No. 33794-4-III (Wash.Ct.App. Apr. 3, 2018) (unpublished),

         Gilbert petitioned this court, and we granted review.[1] State v. Gilbert, 191 Wn.2d 1012, 426 P.3d 735 (2018).


         Whether a judge performing a resentencing pursuant to RCW 10.95.035 has discretion to impose an exceptional downward sentence.


         In 2005, the United States Supreme Court decided Roper v. Simmons, in which it held, "The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Then, in 2010, the Court held that the United States Constitution also forbids the imposition of life without parole on a juvenile offender who did not commit homicide. Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Finally, in 2012, the Court decided Miller, in which it expanded on Graham, holding it unconstitutional to require a life without parole sentence on a juvenile offender for any crime. The Court did not completely foreclose life sentences for juvenile offenders, but it held that at the very least, courts must have the opportunity to consider mitigating circumstances of youth before imposing a life without parole sentence. Miller, 567 U.S. 460.

         The Washington Legislature responded to Miller by enacting Second Substitute Senate Bill 5064, 63d Leg., Reg. Sess. (Wash. 2014) (SSSB 5064). The bill amended RCW 10.95.030, the sentencing statute for aggravated first degree murder, to eliminate mandatory life sentences for juvenile offenders and, instead, establish mandatory minimum sentences of at least 25 years with a maximum sentence of life in prison. The bill also created RCW 10.95.035, which required resentencing for any juvenile offender sentenced to life without parole prior to passage of SSSB 5064. The statute requires resentencing of these offenders to be performed consistent with the amended RCW 10.95.030. Finally, the bill enacted RCW 9.94A.73O, which allows most juvenile offenders to petition for release once they have served 20 years in prison.[2]

         Under RCW 10.95.035, Gilbert was entitled to a resentencing hearing. At the resentencing hearing, defense counsel argued that aside from adjusting his aggravated murder sentence, the court should restructure Gilbert's sentences such that they would run concurrently. The State argued that the only issue before the court was adjusting the minimum term for Gilbert's aggravated murder conviction because the statute "did not include authority . . . that allows the court to reconsider the concurrent/consecutive nature of the sentences." Clerk's Papers at 29. The State also asserted that even if the court revisited the issue of consecutive or concurrent sentences, RCW 9.94A.589 required consecutive sentences because Gilbert's crimes involved two or more serious violent offenses arising from separate and distinct criminal conduct. The court adopted the State's argument in toto, agreeing with its analysis of the law and the statute. Report of Proceedings at 20.

         Gilbert argued to the Court of Appeals that the resentencing judge erred in this determination and that the judge did have discretion to consider an exceptional downward sentence. The Court of Appeals rejected this argument and affirmed his sentence. The court held that reconsideration of the other sentences is not part of RCW 10.95.035 and that the only issues presented in the resentencing were those related to the aggravated murder sentence. The court recognized that our recent holding in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), may entitle Gilbert to consideration of an exceptional sentence; however, it held that such relief would be available to him only through a timely personal ...

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