In re the Personal Restraint of: JARRELL MAURICE MARSHALL, Petitioner.
personal restraint petition (PRP), Jarrell Marshall seeks
freedom from restraint imposed by the sentence following his
2007 guilty plea for one count of second degree murder and
two counts of first degree robbery. Marshall committed these
crimes when he was 16 years old, but he was sentenced in
adult court. He asserts that the sentencing court erred in
failing to consider the mitigating qualities of his youth
when he was sentenced.
argues that even though his PRP was filed more than one year
after his conviction became final, his PRP is not time barred
under RCW 10.73.100(6) because State v.
Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017),
represented a significant change in the law that was material
to his sentence and that must be applied retroactively. Our
Supreme Court in Houston-Sconiers stated that the
Eighth Amendment requires sentencing courts to
consider mitigating qualities of youth when sentencing
juvenile offenders. Id. at 21, 23.
that Marshall's PRP claim was untimely. Although the
directive in Houston-Sconiers that sentencing courts
must consider the mitigating qualities of youth when
sentencing juvenile offenders represented a significant
change in the law that is material to Marshall's
sentence, it stated a procedural rule that does not apply
retroactively. Accordingly, we deny Marshall's
2007, Marshall pleaded guilty to second degree murder and to
two counts of first degree robbery after he was part of a
group who killed one person and robbed two others. He was 16
years old when he committed the crimes.
standard range sentence was 165-265 months for the murder
charge and 51-68 months for the robbery charges. The State
and defense counsel made a joint recommendation of a 165
month sentence on the murder charge. The court instead
sentenced Marshall to 189 months on the murder charge and 51
months on the robbery charges to run concurrently. Marshall
did not file a direct appeal.
2016, Marshall filed a PRP based on various grounds.
Following subsequent developments in the law, he ultimately
focused on an argument that the sentencing court violated the
Eighth Amendment and Houston-Sconiers by failing to
consider the mitigating qualities of youth when imposing a
sentence above the joint recommendation.
ordered a reference hearing to determine what had happened at
the 2007 sentencing hearing. The trial court concluded that
the sentencing court did not consider Marshall's youthful
qualities as required under Houston-Sconiers and
that Marshall suffered actual prejudice as the result of that
constitutional error. The State has challenged both findings.
argues that the RCW 10.73.100(6) exception to the one-year
time bar for PRPs applies because Houston-Sconiers
resulted in a significant change in the law by requiring
sentencing courts to consider mitigating qualities of youth
when sentencing juvenile offenders, which was not required
under prior law. Our Supreme Court recently declined to
address this issue. In re Pers. Restraint of
Meippen, 193 Wn.2d 310, 317-18, 440 P.3d 978 (2019). We
hold that although Houston-Sconiers constituted a
significant change in the law that was material to his
sentence, that case stated a procedural rule that
cannot be applied retroactively. Therefore, we hold that the
RCW 10.73.100(6) exception to the PRP time bar does not apply
and that Marshall's PRP is untimely.
Timeliness of PRPs
RCW 10.73.090(1), a petitioner generally must file a PRP
within one year after a trial court judgment becomes final. A
judgment is final on the date it is filed with the clerk of
the trial court. RCW 10.73.090(3)(a). Here, Marshall's
judgment and sentence became final in 2007. But he did not
file his PRP until 2016.
10.73.100 lists six exceptions to the one-year limit. The
exception potentially applicable here is RCW 10.73.100(6),
which states that the time bar does not apply if
[t]here has been a significant change in the law, whether
substantive or procedural, which is material to the
conviction, sentence, or other order entered in a criminal or
civil proceeding instituted by the state or local government,
and either the legislature has expressly provided that the
change in the law is to be applied retroactively, or a court,
in interpreting a change in the law that lacks express
legislative intent regarding retroactive application,
determines that sufficient reasons exist to require
retroactive application of the changed legal standard.
other words, an exception exists when (1) there has been a
"significant change in the law, " (2) the change is
"material to the . . . sentence, " and (3)
"sufficient reasons exist to require retroactive
application." RCW 10.73.100(6); see In re Pers.
Restraint of Colbert, 186 Wn.2d 614, 619, 380 P.3d 504
issue here is whether Houston-Sconiers satisfied all
three requirements of RCW 10.73.100(6). B. O
'Dell and Houston-Sconiers
the last 15 years, courts increasingly have considered the
impact of age on juvenile defendants' culpability. In a
series of opinions, the United States Supreme Court held that
the Eighth Amendment prohibited sentencing juveniles to
death, Roper v. Simmons, 543 U.S. 551, 578, 125
S.Ct. 1183, 161 L.Ed.2d 1 (2005); sentencing juveniles to
life sentences without the possibility of parole in
non-homicide cases, Graham v. Florida, 560 U.S. 48,
81-82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); and mandatory
sentencing of juveniles to life without parole in all cases.
Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct.
2455, 183 L.Ed.2d 407 (2012). The Court in Montgomery v.
Louisiana held that Miller stated a substantive
rule that must be applied retroactively. __U.S.__, 136 S.Ct.
718, 732-36, 193 L.Ed.2d 599 (2016).
on that line of cases, our Supreme Court addressed
consideration of an offender's youth in State v.
O'Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). In that
case, the defendant was convicted of second degree rape of a
child, committed 10 days after his 18th birthday.
Id. at 683-84. At sentencing, the defendant
requested an exceptional sentence below the standard range.
Id. at 685. He argued that he was still in high
school, that he would have received a significantly lower
sentence in the juvenile system, and that research showed
that juveniles are more susceptible to negative influences
and impulsive behavior. Id. The trial court
acknowledged the argument but ruled that it could not
consider age as a mitigating circumstance. Id. at
Supreme Court noted that research showed "a clear
connection between youth and decreased moral culpability for
criminal conduct." Id. at 695. That connection
may relate to the crime and diminish the defendant's
culpability, even if it is not a "per se mitigating
factor automatically entitling every youthful defendant to an
exceptional sentence." Id. at 695. Accordingly,
the court held that trial courts "must be allowed to
consider youth as a mitigating factor" in sentencing a
youthful defendant. Id. at 696.
Supreme Court applied similar principles under the Eighth
Amendment in Houston-Sconiers, 188 Wn.2d 1. In
Houston-Sconiers, the defendants were juveniles who
had carried a gun while stealing candy from Halloween
trick-or-treaters. Id. at 9-11. They both were
convicted of multiple counts of robbery plus multiple firearm
sentence enhancements. Id. at 12. The trial court
imposed no incarceration on the underlying crimes but
believed that the law compelled the imposition of mandatory
consecutive sentences for the firearm enhancements.
Id. at 12-13. The Supreme Court noted that the trial
court had no opportunity to exercise discretion regarding the
appropriateness of the sentence enhancements. Id. at
Supreme Court stated that the trial court was required to
consider a juvenile defendant's youth in sentencing, even
for statutorily mandated sentences. Id. at 8-9, 21.
The court stated that to comply with the Eighth Amendment,
courts must address the differences between children and
adults by exercising "discretion to consider the
mitigating qualities of youth." Id. at 19. The
[W]e hold that 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, regardless of whether the juvenile
is there following a decline hearing or not. To the extent
our state statutes have been interpreted to bar such
discretion with regard to juveniles, they are overruled.
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
Id. at 21 (emphasis added).
on Miller, the court also provided guidance to trial
courts on how to exercise their discretion in juvenile
sentencing. Houston-Sconiers, 188 Wn.2d at 23. The
court emphasized that the sentencing court "must
consider" the following factors:
1. "[M]itigating circumstances related to the
defendant's youth - including age and its 'hallmark
features, ' such as the juvenile's 'immaturity,
impetuosity, and failure to appreciate risks and
consequences.' " Id. (quoting
Miller, 567 U.S. at 477).
2. "[F]actors like the nature of the juvenile's
surrounding environment and family circumstances, the extent
of the juvenile's participation in the crime, and
'the way familial and peer pressures may have affected
him [or her].' " Houston-Sconiers, 188
Wn.2d at 23 (quoting Miller, 567 U.S. at 477).
3. "[H]ow youth impacted any legal defense, along with
any factors suggesting that the child might be successfully
rehabilitated." Houston-Sconiers, 188 Wn.2d at
court concluded, "This is what the sentencing court
should have done in this case, and this is what we remand for
it to do." Id.
recently, our Supreme Court - in a unanimous opinion -
characterized the mandatory consideration of youthful
qualities ordered in Houston-Sconiers as follows:
We also recognized that the court must consider the
mitigating circumstances related to the defendant's
youth, including, but not limited to, the juvenile's
immaturity, impetuosity, and failure to appreciate risks and
consequences – the nature of the juvenile's
surrounding environment and family circumstances, the extent
of the juvenile's participation in the crime, the way
familial and peer pressures may have affected him or her, how
youth impacted any legal defense, and any factors suggesting
that the juvenile might be successfully rehabilitated.
State v. Gilbert,
193 Wn.2d 169, 176, 438 P.3d 133
(2019). C. Ability to Challenge Standard ...