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State v. Gregg

Court of Appeals of Washington, Division 1

July 8, 2019

STATE OF WASHINGTON, Respondent,
v.
SEBASTIAN MICHAEL GREGG, Appellant.

          Verellen, J.

         Sebastian Gregg appeals the constitutionality of his standard range sentence. He contends when sentencing a juvenile in adult court, the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington Constitution require a presumption that a juvenile's youthfulness is a mitigating factor and the State assumes the burden to overcome the presumption. Neither the federal nor the Washington case law cited by Gregg supports his argument or warrants deviating from the Sentencing Reform Act of 1981 (SRA), [1] which places the burden of proving mitigating factors on the defendant.

         Gregg also challenges the voluntariness of his guilty plea. Although Gregg was affirmatively misinformed about his duty to register as a felony firearm offender, Gregg fails to establish manifest injustice.

         Therefore, we affirm.

         FACTS

         The facts of the underlying crimes are not at issue or in dispute.

         The State charged Gregg, along with his codefendant, Dylan Mullins, with first degree murder with a firearm, first degree burglary with a firearm, and first degree arson.[2] Although Gregg was 17 years old at the time of the murder, he was "subject to the exclusive original jurisdiction of the adult court" because he was charged with first degree murder.[3]

         Gregg pleaded guilty as charged. At sentencing, Gregg requested an exceptional sentence downward based on his youthfulness. Following a six-day sentencing hearing, the court imposed a standard range of sentence of 444 months.

         Gregg appeals.

         ANALYSIS

         I. Challenge to the Standard Range Sentence

         Gregg challenges the trial court's imposition of a standard range sentence.

         The SRA provides that a standard range sentence "shall not be appealed."[4] But a party may still '"challenge the underlying legal conclusions and determinations by which a court comes to apply a particular sentencing provision.'"[5] The SRA provides, "The court may impose a sentence outside the standard range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence."[6] Under the SRA, the defendant has the burden to prove mitigating circumstances by a preponderance of the evidence.[7]

         Gregg contends the Eighth Amendment to the United States Constitution and article I, section 14 of the Washington Constitution require a presumption that a juvenile's youth is a mitigating factor and that the State assume the burden to prove otherwise beyond a reasonable doubt. Constitutional interpretation is a question of law we review de novo.[8]

         Gregg raises these arguments for the first time on appeal. Although "[t]he appellate court may refuse to review any claim of error which was not raised in the trial court," a party may raise a "manifest error affecting a constitutional right" for the first time on appeal.[9] Gregg's claimed error implicates his constitutional rights. And given the State's lack of briefing on whether the error is manifest, the State appears to acknowledge this issue is reviewable for the first time on appeal.

         a. Eighth Amendment to the United States Constitution

         The Eighth Amendment prohibits "cruel and unusual punishment."[10] In the context of this prohibition, the United States Supreme Court and the Washington Supreme Court have repeatedly recognized that children are different from adults and these differences require different sentencing procedures, including full discretion for the court to consider youthfulness at sentencing and a categorical bar of certain levels of punishment for juveniles.

         In 2005, in Roper v. Simmons, the United States Supreme Court acknowledged "[t]hree general differences between juveniles under 18 and adults [that] demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders."[11]

First, . . . "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions."....
The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. . . .
The third broad difference is that the character of a juvenile is not as well formed as that of an adult. . . . The personality traits of juveniles are more transitory, less fixed.[12]

         In consideration of these differences, the Court determined "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed."[13] In 2010, in Graham v. Florida, the Court extended the categorical bar from Roper to life without parole sentences for juveniles convicted of nonhomicide offenses.[14]

         In 2012, in Miller v. Alabama, the Court barred "mandatory" life without parole sentences for juveniles convicted of any offense.[15] The Court did not completely foreclose a trial court's ability to impose a life sentence without the possibility of parole for juvenile offenders convicted of homicide.[16] But it did announce the Eighth Amendment required courts "to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."[17]

         In 2017, in State v. Ramos, our Supreme Court addressed whether the requirements of Miller applied to literal and de facto life without parole sentences for juveniles convicted of homicide.[18] To support the court's determination that a Miller hearing was required in both circumstances, the court analyzed the Miller factors:

At the Miller hearing, the court must meaningfully consider how juveniles are different from adults, how those differences apply to the facts of the case, and whether those facts present the uncommon situation where a life-without-parole sentence for a juvenile homicide offender is constitutionally permissible. If the juvenile proves by a preponderance of the evidence that his or her crimes reflect transient immaturity, substantial and compelling reasons would necessarily justify an exceptional sentence below the standard range because a standard range sentence would be unconstitutional.[19]

         Our Supreme Court expressly determined "Miller does not require that the State assume the burden of proving that a standard range sentence should be imposed, rather than placing the burden on the juvenile offender to prove an exceptional sentence is justified."[20]

         Additionally, although our Supreme Court acknowledged in Ramos, "most juvenile homicide offenders facing the possibility of life without parole will be able to meet their burden of proving an exceptional sentence below the standard range is justified, "[21] Gregg is not facing either a literal or a de facto life without parole sentence. The court sentenced Gregg to 444 months (37 years).

         Ramos does not endorse the additional procedural protections Gregg advocates. In Ramos, the defendant argued the State must assume the burden of proving the court should impose a standard range sentence. Although the Ramos court avoided "discounting] the potential benefits of such procedural requirements," the court determined the defendant had "not shown that the specific procedures . . . are required as a matter of federal constitutional law."[22] The court's comment concerning the "potential benefits" of additional procedural protections is dicta, and it cannot be read as endorsing Gregg's argument.

         Gregg contends our Supreme Court "moved past Ramos"[23] in State v. Houston-Sconiers.[24] In Houston-Sconiers, our Supreme Court considered whether mandatory firearm enhancements for juvenile offenders violated Miller and the Eighth Amendment. The court held,

In accordance with Miller, . . . sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system .... Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements.[25]

         Houston-Sconiers addresses the effect of the SRA's firearm enhancement provision on the court's considerable discretion when sentencing a juvenile defendant in adult court. RCW 9.94A.533(3)(e) provides, "Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter." Our Supreme Court determined a sentencing court's discretion to consider the juvenile's youthfulness is not constrained by the SRA's requirement that firearm enhancements are mandatory and run consecutively.

         Houston-Sconiers neither mentions nor imposes the additional procedural protections Gregg requests. Although Houston-Sconiers does not cite Ramos or discuss the burden of proof, we reject Gregg's contention that this omission leaves the issue open. We are bound by our Supreme Court's holding in Ramos.[26]

         In 2019, in State v. Gilbert, our Supreme Court further emphasized the discretion provided to the court to consider youthfulness when sentencing juveniles in adult court.[27] Gilbert "concem[edj the scope of discretion a judge has in resentencing pursuant to RCW 10.95.035," the "Miller-fix" statute.[28] As to Houston-Sconiers, the Gilbert court stated,

Our opinion in that case cannot be read as confined to the firearm enhancement statutes as it went so far as to question any statute that acts to limit consideration of the mitigating factors of youth during sentencing. Nor can it be read as confined to, or excluding, certain types of sentencing hearings as we held that the courts have discretion to impose downward sentences "regardless of how the juvenile got there."[29]

         The United States and the Washington Supreme Court cases cited by Gregg do not support his proposition that the court is required to presume youthfulness and the State assumes the burden of overcoming this presumption. In fact, with the exception of Ramos, none of these cases mention the additional procedural protections requested by Gregg. And in Ramos, our Supreme Court explicitly determined Miller and the Eighth Amendment do not require the additional procedural protections at issue. Neither federal nor Washington Eighth Amendment case law warrant deviating from the basic structure of the SRA, which places the burden of proving the existence of substantial and compelling reasons to support an exceptional sentence on the defendant.

         Gregg also cites to several out-of-state cases. Similar to Ramos and several of the cases discussed above, these out-of-state cases interpret Miller as requiring a presumption against life without parole sentences for juvenile offenders.[30] As mentioned above, Gregg is not subject to a life without parole sentence. And even if the out-of-state cases were analogous to these facts, we cannot ignore the binding precedent from our Supreme Court in Ramos.

         Gregg has not shown that the Eighth Amendment requires a presumption that a juvenile's youth is a mitigating factor or that the State assumes the burden to prove otherwise beyond a reasonable doubt.

         b. Article I, Section 14 of the ...


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