author: MADSEN, J. GORDON McCLOUD, J. (dissenting)

text:
    STATE of Washington, Respondent, v. Ronald Richard BROWN, Petitioner.
    No. 95734-7
    Supreme Court of Washington.
    Argued November 13, 2018 Filed MAY 02, 2019
    Mick Woynarowski, Gordon & Saunders, 1000 2nd Avenue, Suite 3140, Seattle, WA 98104, Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Petitioner.
    Seth Aaron Fine, Snohomish County Prosecutors Office, 3000 Rockefeller Avenue, Everett, WA 98201-4060, for Respondent.
   MADSEN, J.

¶1 Ronald Brown appeals an unpublished Court of Appeals decision affirming his exceptional sentence for two counts of first degree robbery and one count of first degree burglary. At his first sentencing hearing, the trial court decided not to impose an exceptional sentence on his original convictions. On appeal, four of his seven original convictions were vacated. Upon resentencing, the trial court exercised its discretion and imposed an exceptional sentence above the sentencing range for his remaining convictions. Brown argues that the decision to impose an exceptional sentence on remand was collaterally estopped, that the exceptional sentence is the result of judicial vindictiveness, and that the State's recommendation for an exceptional sentence is the result of prosecutorial vindictiveness.

We affirm the Court of Appeals decision and affirm Brown's sentence.

FACTS

¶2 In 2012, Brown was charged with two counts of first degree kidnapping, two counts of first degree robbery, one count of first degree burglary, and two counts of second degree assault, all with a firearm. Brown proceeded to jury trial. At the close of trial, the jury convicted Brown of all seven counts.

¶3 At the sentencing hearing, the State recommended the high end of the sentencing range for Brown's convictions.

The State noted that an exceptional sentence upward would be warranted based on Brown's high offender score but did not recommend an exceptional sentence at the original sentencing. The trial court also declined to impose an exceptional sentence, citing the victims' statements that their lives would have been in danger if not for Brown being present. The trial court ultimately sentenced Brown to the high end of the sentencing range, 638 months in prison.

¶4 On appeal, the Court of Appeals reversed Brown's two kidnapping convictions on instructional error and his two assault convictions on double jeopardy grounds. The court then remanded for resentencing.

¶5 On remand, the State elected to dismiss the two kidnapping charges without prejudice because of the time and effort involved in relocating the victims and codefendants, and the resources spent by the prosecution in retrying Brown. At the resentencing hearing, the State initially recommended a sentence of 351 months-reflecting the high end of the standard sentencing range. However, the State later amended its recommendation to reimpose the original sentence as an exceptional sentence. The court declined to reimpose the original sentence but did impose an exceptional sentence of 399 months. At the resentencing hearing, the judge noted that he did not impose the exceptional sentence at the original sentencing because he felt the 638 months was "legally appropriate and within the law." Verbatim Report of Proceedings, Resentencing & Mot. Hr'g (VRP Mot.) (June 21, 2016) at 34. The judge also noted that imposing the high end of the sentencing range with the remaining charges would give Brown a "free crime[ ]," justifying the imposition of an exceptional sentence. Id. However, the judge stopped short of imposing the original sentencing range. Id.

ANALYSIS

Collateral Estoppel

¶6 Brown first argues the trial court is collaterally estopped from imposing an exceptional sentence at the resentencing hearing when it chose not to impose one at the original sentencing hearing.

¶7 For collateral estoppel to apply, (1) the issue in the prior adjudication must be identical to the issue currently presented for review, (2) the prior adjudication must be a final judgment on the merits, (3) the party against whom the doctrine is asserted must have been a party to or in privity with a party to the prior adjudication, and (4) barring the relitigation of the issue will not work an injustice on the opposing party. State v. Harrison, 148 Wash.2d 550, 561, 61 P.3d 1104 (2003). Courts should not apply collateral estoppel hypertechnically but, rather, with realism and rationality. State v. Tili, 148 Wash.2d 350, 361, 60 P.3d 1192 (2003).

¶8 Brown argues the issue in the prior adjudication is identical to the issue currently presented for review-whether to impose an exceptional sentence based on Brown's offender score. Suppl. Br. of Pet'r 6-7. Specifically, Brown argues because the judge chose not to impose an exceptional sentence at the initial sentencing despite being justified due to his offender score, collateral estoppel applies. Id. at 7.

¶9 His argument is similar to the one made in Tili. In that case, the defendant was initially sentenced to 417 months. 148 Wash.2d at 357, 60 P.3d 1192. The trial court did not impose an exceptional sentence because it treated his offenses as separate and distinct conduct. Id. However, the court indicated that if his ruling was reversed on appeal and the offenses should have been treated as the same criminal conduct, the court would impose the same sentence as an exceptional sentence. Id. The original sentence was reversed, to be treated as same criminal conduct, and the trial court imposed the same 417 month sentence as an exceptional sentence. Id.

¶10 The defendant in Tili argued that the trial court was collaterally estopped from imposing an exceptional sentence on resentencing because it chose not to do so at the original sentencing hearing. Id. at 361, 60 P.3d 1192. This court was not persuaded. We noted that separate and distinct conduct for multiple offenses resulted in a fundamentally different sentence from same criminal conduct-the former resulting in consecutive sentences, while the latter results in concurrent sentences. Id. at 362-63, 60 P.3d 1192. Thus, the issue at resentencing was fundamentally different.

¶11 Despite this, Brown attempts to distinguish Tili because, here, the only relevant change was the dismissal of four charges resulting in a lowered offender score. Suppl. Br. of Pet'r at 7. This is a distinction without effect. Under RCW 9.94A.535(2), a trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under certain circumstances, one of them being that "[t]he defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished." RCW 9.94A.535(2)(c). To justify an exceptional sentence upward, a trial court must first calculate or otherwise determine the defendant's offender score, and based on that factor, the trial court has discretion to impose an exceptional sentence if it deems the defendant's sentence will result in "free crimes."

¶12 Based on Brown's offender score in addition to the firearm enhancements, Brown's original sentence totaled 638 months. The trial court had a question before it at that time: Based on the defendant's high offender score, should it impose an exceptional sentence based on the current range? The court decided the sentence at the time was fair and opted not to impose an exceptional sentence. On appeal, based on the reversal of two convictions on the basis of double jeopardy and the State's decision not to retry two other convictions, Brown was left with three convictions. The question upon resentencing thus fundamentally changed: Was the newly computed sentencing range sufficient based on Brown's offender score? The trial court had a new offender score and a new sentencing range to consider when it decided to impose the exceptional sentence.

Finality under Collateral Estoppel

¶13 Next, Brown argues that the issue of imposing the exceptional sentence was "final" for purposes of collateral estoppel. In support of this position, he cites to State v. Kilgore, 167 Wash.2d 28, 216 P.3d 393 (2009), for the proposition that an unchallenged exceptional sentence on appeal is final and has preclusive effect on remand should any other portion of the judgment and sentence be reversed. Suppl. Br. of Pet'r at 9.

¶14 In Kilgore, the trial court imposed an exceptional sentence of 560 months on seven counts. 167 Wash.2d at 32, 216 P.3d 393. On appeal, two counts were reversed and the other five affirmed. Id. The trial court did not elect to resentence him and instead signed an order striking the two reversed counts and changing his offender score accordingly. Id. at 34, 216 P.3d 393. We held that finality occurs when " 'the availability of appeal' [has] been exhausted." Id. at 43, 216 P.3d 393 (emphasis omitted) (quoting In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 327, 823 P.2d 492 (1992) ). "[A] case has no remaining appealable issues where an appellate court issues a mandate reversing one or more counts and affirming the remaining count, and where the trial court exercises no discretion on remand as to the remaining final count."

Id. at 37, 216 P.3d 393. We noted that "[a]lthough the trial court had discretion ... to revisit Kilgore's exceptional sentence on the remaining five convictions, ... it was not reconsidering the exceptional sentence imposed on each of the remaining counts." Id. at 41, 216 P.3d 393.

¶15 Brown's reliance on Kilgore is misplaced. It does not stand for the proposition that all exceptional sentences are final when they are not appealed. Rather, when a trial court does not exercise its discretion on remanded issues, those issues become final for purposes of reviewability. Here, because the trial court did exercise its discretion on remand to determine whether an exceptional sentence was appropriate, the issue became reviewable and is not "final."

The Effect of Collicott

¶16 Brown also argues that collateral estoppel applies based on State v. Collicott , 118 Wash.2d 649, 827 P.2d 263 (1992). Brown asserts the lead opinion's discussion on collateral estoppel is applicable as it is factually analogous to the instant case. In Collicott , the trial court, in its original sentencing, could have imposed an exceptional sentence but did not. Id. at 652, 827 P.2d 263. The defendant appealed, and the case was remanded to the trial court for resentencing. At the resentencing, the trial court learned that the defendant had a stayed charge pending until resolution of the case. Id. at 653, 827 P.2d 263. The trial court imposed an exceptional sentence at rehearing based on deliberate cruelty. Id. at 653-54, 827 P.2d 263. This court, in its lead opinion, reversed, holding that the defendant's offender score was not properly calculated and the trial court was collaterally estopped from imposing the exceptional sentence. It is the court's discussion that collateral estoppel applies to exceptional sentences that Brown relies on.

¶17 But Brown's reliance on this is misguided. First, the collateral estoppel discussion did not command a majority of the court. As subsequent case law has held, the collateral estoppel analysis is dicta and is not binding on this court. See Harrison, 148 Wash.2d 550, 61 P.3d 1104 ; Tili, 148 Wash.2d 350, 60 P.3d 1192. Second, the facts in Collicott are quite distinct from the instant case.

¶18 In Collicott, the trial court imposed an exceptional sentence upon resentencing based on deliberate cruelty. 118 Wash.2d at 654, 827 P.2d 263. The trial court could have imposed an exceptional sentence based on deliberate cruelty at the initial sentencing but chose not to. Id. at 653, 827 P.2d 263. The lead opinion stated that collateral estoppel applied where the court could have imposed an exceptional sentence based on the same factor that it relied on at resentencing. Id. at 661, 827 P.2d 263.

¶19 Brown argues that the same situation is presented here; the trial court could have imposed an exceptional sentence based on the "free crime" rule but chose not to, triggering collateral estoppel. But Brown overlooks another part of the lead opinion in Collicott in which the court suggested that a trial court may impose an exceptional standard based on the "clearly too lenient" standard (now the "free crime" rule) upon resentencing. Id. at 659-60, 827 P.2d 263.

Judicial Vindictiveness

¶20 Brown next argues that the exceptional sentence imposed by the trial court at the resentencing hearing is presumptively vindictive. Generally, a trial judge may impose a new sentence that is greater or less than the sentence originally imposed based on events subsequent to the first trial that may throw new light on the defendant's life, health, habits, conduct, and mental and moral propensities. North Carolina v. Pearce , 395 U.S. 711, 723, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). But the "imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy [is] a violation of due process of law." Id. at 724, 89 S.Ct. 2072. The Court in Pearce held that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for ... doing so must affirmatively appear." Id. at 726, 89 S.Ct. 2072. Such reasons must be based on "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id.

¶21 For years, Pearce seemed to stand for a sweeping rule that applied a presumption of judicial vindictiveness whenever a new sentence was harsher than the original sentence imposed. However, the scope of the rule set out in Pearce has been substantially narrowed over the years. In Alabama v. Smith , the defendant originally was sentenced based on a guilty plea. 490 U.S. 794, 795, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The defendant successfully had his guilty plea vacated, and the case proceeded to trial. Id. After the trial the defendant was convicted and resentenced, this time to a life sentence. Id. at 796-97, 109 S.Ct. 2201. The defendant argued there was a presumption of vindictiveness under Pearce. The Supreme Court disagreed, stating that "subsequent cases have made clear that [Pearce' s] presumption of vindictiveness 'do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.' " Id. at 799, 109 S.Ct. 2201 (second alteration in original) (quoting Texas v. McCullough , 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) ). Rather, the presumption applies only in "[s]uch circumstances ... in which there is a 'reasonable likelihood' that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." Id. (citation omitted) (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ). When there is no reasonable likelihood, the defendant must prove actual vindictiveness. Id. at 799-800, 109 S.Ct. 2201. The Court later went on to hold that the presumption does not apply where a greater penalty is imposed after trial than was imposed after the guilty plea because "the judge may gather a fuller appreciation of the nature and extent of the crimes charged [at trial]." Id. at 801, 109 S.Ct. 2201.

¶22 The Supreme Court has since declined to apply the Pearce presumption in a number of cases. See, e.g., McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (holding the presumption does not apply where retrial that resulted in the harsher sentence was initiated because the trial judge herself concluded a new trial was warranted based on prosecutorial misconduct); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) ( Pearce presumption does not apply when new jury at retrial imposes a harsher penalty than the original jury); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (presumption does not apply where de novo trial in general criminal jurisdiction courts imposes a harsher sentence than inferior court did at original sentence).

¶23 Under Pearce, it appears the presumption of vindictiveness does not apply since the subsequent aggregate sentence was substantially lower than the original sentence. However, Brown points to federal circuit cases that consider the sentence imposed on each count, not the aggregate sentence. There are essentially two schools of thought in determining whether the presumption applies-whether we compare the overall length of the new sentence to the original sentence or whether we compare the remaining sentence once the dropped convictions are factored out to the new sentence. The overwhelming majority of federal circuits subscribe to the former analysis. See, e.g., United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989) (presumption does not apply when one count is dropped and resentencing judge increases the sentence on remaining count so the overall sentence remains the same); United States v. Nerius, 824 F.3d 29 (3d Cir. 2016) ( Pearce does not apply where the revised sentence is lower than that originally imposed); United States v. Gray, 852 F.2d 136 (4th Cir. 1988) (no possibility or appearance of vindictiveness when the second sentence is shorter overall than the first sentence); United States v. Cataldo, 832 F.2d 869 (5th Cir. 1987) (no presumption when the judge sentences a defendant to the same sentence even though there are fewer remaining convictions); United States v. Rivera, 327 F.3d 612, 615 (7th Cir. 2003) ("we compare the total original punishment to the total punishment after resentencing in determining whether the new sentence is more severe"); United States v. Horob, 735 F.3d 866, 870 (9th Cir. 2013) ("presumption of vindictiveness does not apply ... because ... the [ ] court considered his overall sentence at the time of his original sentence and again on remand, and because his overall sentence was not increased"); United States v. Sullivan, 967 F.2d 370 (10th Cir. 1992).

¶24 Brown advocates for the "aggregate remainder" approach taken by the Second and Eleventh Circuits in United States v. Markus, 603 F.2d 409 (2d Cir. 1979), and United States v. Monaco, 702 F.2d 860 (11th Cir. 1983). In Markus, the defendant was sentenced to a total of 15 years on seven counts. 603 F.2d at 411. On appeal, the judge vacated two counts " 'reluctantly.' " Id. The government filed an additional charge, on which the court sentenced the defendant to 5 years. Id. The defendant argued vindictiveness under the due process clause of the Fourteenth Amendment to the United States Constitution. The Court of Appeals held the appropriate analysis is to disregard the sentence originally imposed by the trial judge on the count dropped and then compare the total remaining sentence imposed to the current sentence. Id. at 413. Since there was no evidence on the record to justify the increase, the court found there to be vindictiveness. Id. at 414.

¶25 Similarly, in Monaco, the Court of Appeals examined a sentence that remained the same after retrial, even though there were fewer counts. Monaco, 702 F.2d at 883. The court in Monaco also subscribed to the approach used in Markus. Id. at 885. Since the trial court did not state any reasons for the increase, the court applied the Pearce presumption. Id. However, more recently, the Eleventh Circuit discussed Monaco in United States v. Fowler , 749 F.3d 1010 (11th Cir. 2014). In Fowler , the court effectively repudiated the "aggregate remainder" approach taken in Monaco , stating, "Monaco's pre-guidelines approach for gauging the severity of a new sentence relative to an old one-the aggregate remainder approach-is not binding in the post-guidelines era, which presents materially different circumstances than those involved in that case." Id. at 1018. That court went on further to say that "[w]hile we are obligated to follow the holdings of an earlier decision, 'the holdings of a prior decision can reach only as far as the facts and circumstances presented to the court in the case which produced that decision.' " Id. at 1020 (quoting Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003) ). "Because Monaco arose and was decided before the sentencing guidelines existed, it could not, and did not purport to, decide what approach should be used to determine when the Pearce presumption applies to a new sentence imposed under the guidelines regime." Id.

¶26 Our court has never considered which approach to adopt in determining a Pearce presumption of vindictiveness. However, Division One of the Court of Appeals faced that issue in State v. Larson, 56 Wash. App. 323, 783 P.2d 1093 (1989). In that case, the defendant's original sentence was for 363 months as a consecutive sentence. Id. at 325, 783 P.2d 1093. After appeal, and upon resentencing, the trial court imposed a concurrent sentence of 360 months. Id. at 326, 783 P.2d 1093. The defendant raised a presumption of vindictiveness argument, and the Court of Appeals rejected it, stating the "revised aggregate sentence [was] less severe than his original aggregate sentence." Id. at 328, 783 P.2d 1093.

¶27 Similarly, Division Two, in State v. Ameline, addressed the Pearce presumption. 118 Wash. App. 128, 75 P.3d 589 (2003). In that case, the defendant was retried three times. The first conviction resulted in a sentence of 164 months. Id. at 130, 75 P.3d 589. After appeal, the second sentence resulted in a conviction, and the court reimposed the same 164 month sentence. Id. at 131, 75 P.3d 589. The defendant appealed a third time, this time on instructional error. The case was remanded for a third trial. After his third conviction, the trial court chose to impose an exceptional sentence of 240 months. Id. To justify it, the trial court made written findings of fact that could have been made at the other two trials. Id. The Court of Appeals found that because the third sentence was harsher than the previous two overall, the Pearce presumption applied. Id. at 133, 75 P.3d 589. The Court of Appeals also determined the presumption was not rebutted based on the justification the trial court made on record. Id. Division Three has not decided a case based on judicial vindictiveness.

¶28 Given that the overwhelming majority of the federal circuits subscribe to the "total aggregate" approach and that Divisions One and Two also adopted the same, we hold the Pearce presumption does not arise when the total sentence upon resentencing is not greater than the original sentence imposed.

Prosecutorial Vindictiveness

¶29 Finally, Brown argues that the State's request for an exceptional sentence on remand is presumptively vindictive. The due process clause is not offended by all possibilities of increased punishment upon retrial after appeal but only those that pose a realistic likelihood of vindictiveness. Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). The Pearce presumption of vindictiveness was extended to the prosecutorial context in Blackledge. In that case, the defendant was charged with a misdemeanor assault in an altercation with another inmate while serving another term. Id. at 22, 94 S.Ct. 2098. After his conviction, he appealed, which under North Carolina law automatically warranted trial de novo. Id. Prior to the trial, the State obtained a felony assault indictment that covered the same conduct as the misdemeanor assault. The defendant pleaded guilty to the felony assault charge. Id. at 23, 94 S.Ct. 2098. The defendant argued the Pearce presumption should apply in his case. Id. at 25, 94 S.Ct. 2098. The Court agreed and held that it was not constitutionally permissible for the State to respond to the defendant's appeal by bringing a more serious charge against him. Id. at 28-29, 94 S.Ct. 2098.

¶30 The Pearce presumption does not apply to all cases where a prosecutor brings more serious charges. In Bordenkircher v. Hayes, the Supreme Court determined that the presumption does not apply in the pretrial context during plea negotiations when the prosecution threatens and executes additional charges when plea negotiations do not result in a guilty plea. 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The Court noted the violation "lay not in the possibility that a defendant might be deterred from the exercise of a legal right, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction." Id. at 363, 98 S.Ct. 663 (citations omitted). Thus, the presumption was inapplicable where there is a " 'give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.' " Id. at 362, 98 S.Ct. 663 (quoting Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970) (Brennan, J., dissenting) ).

¶31 Similarly, in Goodwin, the Supreme Court held that a presumption of vindictiveness was not warranted when a prosecutor brings a more severe charge after a defendant has demanded a jury trial. 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74. The Court noted, "[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified." Id. at 382-83, 102 S.Ct. 2485.

¶32 This court has decided the issue of prosecutorial vindictiveness in the pretrial context. See State v. Korum, 157 Wash.2d 614, 141 P.3d 13 (2006) (plurality opinion). Similar to Goodwin and Bordenkircher, Korum involved guilty pleas. In that case, the prosecution threatened 32 additional charges if he did not plead guilty. Id. at 620-21, 141 P.3d 13. This court held that adding 15 counts did not constitute prosecutorial vindictiveness, finding the case was similar to Bordenkircher and Goodwin, where the defendants chose to walk away from plea negotiations. Id. at 635-36, 141 P.3d 13. Later, in State v. Gamble, 168 Wash.2d 161, 187, 225 P.3d 973 (2010), this court noted that the Blackledge presumption was inapplicable where, as a result of case law, the conviction was necessarily vacated, requiring the prosecution to reevaluate what charges to bring against the defendant.

¶33 Unlike cases where the prosecution chooses to add charges after a defendant exercises his right of appeal and succeeds, this case involves a sentencing recommendation. Courts should be cautious when expanding the scope of prophylactic rules. While it is possible that the prosecution decided to recommend the original sentence as an exceptional sentence out of spite, the presumption does not apply simply because there is an opportunity for vindictiveness.

There must be a realistic likelihood of vindictiveness. Here, the State was faced with a decision-was the length of a standard range sentence sufficient given the facts of the case?

¶34 Unlike a charging decision, imposing a sentence does not fall under the core responsibilities of a prosecutor. Ultimately, a trial court determines what sentence is appropriate. The State merely recommends what it believes to be an appropriate sentence based on the crimes. Given this important distinction, we decline to extend the Blackledge presumption in this context.

CONCLUSION

¶35 We hold that collateral estoppel does not apply when a court imposes an exceptional sentence at resentencing based on the "free crime" aggravator when it chose not to impose an exceptional sentence at the first sentencing. Further, we hold that a presumption of vindictiveness is not triggered when a judge imposes a shorter overall sentence than the original or when a prosecutor recommends an exceptional sentence at resentencing when it did not recommend such a sentence at the original sentencing. We affirm the Court of Appeals.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Yu, J.

GORDON McCLOUD, J. (dissenting)

¶36 The majority accurately recites the rules about the presumption of vindictiveness that arises when a postappeal sentence for a crime exceeds the preappeal sentence for that crime. But it applies those rules incorrectly. It errs by failing to recognize that at sentencing hearings in Washington, judges can consider only the facts of the crime of conviction-not the facts of other acquitted conduct, dismissed charges, or reversed convictions. This is "offense specific" sentencing as mandated by the state legislature. Since the legislature has mandated such offense specific sentencing, it necessarily follows that the only offense conduct that can be considered in comparing the length of a preappeal sentence for a crime to the length of the postappeal sentence for the exact same crime is the conduct specific to that crime-not the conduct specific to other dismissed or acquitted crimes.

¶37 The majority makes a different comparison; it compares the preappeal sentence for seven crimes to the postappeal sentence for just three of those crimes, even though convictions for four of the seven crimes were reversed. That flawed comparison leads the majority to approve postappeal sentences on the three remaining convictions that far exceed the sentences originally imposed on those same convictions, despite the absence of any new postappeal evidence to justify them.

¶38 I therefore respectfully dissent.

FACTUAL AND PROCEDURAL HISTORY

¶39 A jury found Ronald Richard Brown guilty of two counts of first degree kidnapping, two counts of first degree robbery, two counts of second degree assault, and one count of first degree burglary in 2013. Clerk's Papers (CP) at 89 (initial judgment and sentence). The superior court imposed a standard-range sentence on each of those seven counts. Id. at 91, 93. It explicitly declined to impose an exceptional sentence above the standard range on any count under RCW 9.94A.535(2)(c) (permitting use of high offender score as aggravating factor in certain circumstances). See id. at 116-18 (State's initial sentencing memorandum); Verbatim Report of Proceedings (June 21, 2016) (VRP) at 33-34.

¶40 Brown appealed. In 2015, the Court of Appeals reversed four of the seven convictions. State v. Brown, No. 70148-7-1, slip op. at 12-17, 2015 WL 4513877 (Wash. Ct. App. July 27, 2015) (unpublished), https://www.courts.wa.gov/opinions/pdf/701487.pdf. That court ruled that an error in the jury instructions for the kidnapping charges violated Brown's article I, section 22 and Sixth Amendment rights to notice of the charged crimes. Id. at 7-9 ; WASH. CONST. art. I, § 22 ; U.S. CONST. amend. VI. It also held that convicting and sentencing Brown for both assault and robbery (of each of the two victims) violated his article I, section 9 and Fifth Amendment rights. Brown, slip op. at 12-17 ; WASH. CONST. art. I, § 9 ; U.S. CONST. amend. V. In other words, it reversed four of Brown's convictions due to constitutional error.

¶41 On remand, the State declined to try Brown again on the kidnapping charges, even though those charges carried the highest seriousness level under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. VRP at 3-4; CP at 91 (initial judgment and sentence). See generally RCW 9.94A.515 (ascribing seriousness levels to offenses). Instead, it moved to dismiss those charges without prejudice, and the superior court granted that motion. VRP at 4-5; CP at 26 (motion), 25 (order).

¶42 Thus, at Brown's resentencing in 2016, only three convictions remained. The offender scores for each of the three convictions decreased from 19 at the first sentencing hearing to 11 at resentencing. Compare CP at 91 (initial judgment and sentence), with id. at 9 (judgment and sentence on remand).

And at the resentencing hearing, the State presented no new facts. VRP at 19-27.

¶43 Nevertheless, the State argued that the court should impose the same total period of confinement that it had previously imposed because that period of confinement "adequately represented the facts in this case." Id. at 21-22; see also CP at 32-36 (State's amended sentencing memorandum on remand). But because that total period of confinement was greater than the top of the standard ranges for the three remaining convictions, the State sought exceptional sentences above the range-something it had not done at the first sentencing hearing.

¶44 The State did not focus on Brown's individual offenses when it made this argument about "the facts of this case." CP at 32-36. Rather, the State focused on reaching a predetermined total period of confinement for all of the three remaining convictions. Id. It offered the court multiple ways to impose a total period of confinement equivalent to the one that Brown had originally received, id. at 34, thus indicating that it believed "the facts of this case" included the facts of the seven original crimes.

¶45 Specifically, when the State did discuss specific facts to be considered at resentencing, it did not limit its discussion to the conduct underlying the remaining robbery and burglary convictions. It also relied on conduct underlying the reversed-and consequently unproven-kidnapping counts. For example, in arguing for the same total period of confinement, the State asserted that Brown was "the one who's responsible in this case for the fact that [the alleged kidnapping victims] had to endure the hours of confinement and the hours of fear and anxiety on the night in question and following." VRP at 25.

¶46 Brown argued against exceptional sentences. He explained that "there have been no new facts or identifiable conduct by the defendant, besides succeeding on appeal, that this court or the State could use to justify an exceptional sentence." CP at 29 (Brown's sentencing memorandum on remand).

¶47 The superior court declined to impose the same total period of confinement. But it did grant the State's request for exceptional sentences above the standard range. Id. at 21-22 (findings of fact and conclusions of law). The court concluded that the sentencing range resulting from Brown's number of convictions together with his criminal history did not adequately reflect his criminality, and, hence, it found "substantial and compelling reasons" to depart from the standard range for each conviction. Id. ;

RCW 9.94A.535(2)(c). As a result, Brown's sentences for the two robbery convictions increased from 231 months to 279 months, and his sentence for the burglary conviction increased from 176 months to 204 months. Compare CP at 93 (initial judgment and sentence), with id. at 11 (judgment and sentence after remand).

¶48 Brown appealed the sentences. The Court of Appeals affirmed. State v. Brown , No. 75458-1-1, 2018 WL 1275932 (Wash. Ct. App. Mar. 12, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/754581.pdf. This court granted review. State v. Brown , 190 Wash.2d 1025, 421 P.3d 460 (2018).

DISCUSSION

Judicial Vindictiveness Presumptively Infected Brown's Resentencing-and the State Has Not Rebutted That Presumption

¶49 A court violates a defendant's right to due process under the Fourteenth Amendment when it imposes a "penalty upon the defendant for having successfully pursued a statutory right of appeal." North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) ; U.S. CONST. amend. XIV. Because "[t]he existence of a retaliatory motivation would, of course, be extremely difficult to prove in any individual case," Pearce, 395 U.S. at 725 n.20, 89 S.Ct. 2072, a presumption of judicial vindictiveness applies when "there is a 'reasonable likelihood' that [an] increase in [the] sentence is the product of actual vindictiveness on the part of the sentencing authority." Smith, 490 U.S. at 799, 109 S.Ct. 2201 (quoting United States v. Goodwin, 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ). When the record allows, however, the State may rebut that presumption.

Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986).

¶50 Here, there is a reasonable likelihood that Brown's increased sentences were a response to-and therefore a penalty for-his success on appeal. Consequently, the presumption of judicial vindictiveness applies. And the State has not rebutted that presumption.

A. Brown Got Longer Sentences on His Convictions after His Successful Appeal

¶51 The first step in this analysis is to determine whether the postappeal sentences were really longer than the preappeal sentences. To do that, we look to Washington sentencing law.

¶52 Our state legislature requires offense-specific sentencing. See ch. 9.94A RCW; WASH. STATE CASELOAD FORECAST COUNCIL, 2017 WASHINGTON STATE ADULT SENTENCING GUIDELINES MANUAL 63, https://www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentencing_Manual_2017.pdf [https://perma.cc/78SQ-AK9G] ("For multiple current offenses, separate sentence calculations are necessary for each offense because the law requires that each receive a separate sentence."). In furtherance of that policy decision, Washington's SRA requires trial courts to consider only "real facts" of the crimes of conviction at sentencing. RCW 9.94A.530(2) ; State v. Houf, 120 Wash.2d 327, 332-34, 841 P.2d 42 (1992). In this respect, Washington's SRA differs from the federal sentencing guidelines, which permit consideration of other factors, including acquitted conduct. 18 U.S.C. § 3661 ; United States v. Watts, 519 U.S. 148, 151-54, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam).

¶53 "Real facts" are those that the State has proved or that the defendant has affirmatively admitted. RCW 9.94A.530(2) ; State v. Hunley, 175 Wash.2d 901, 287 P.3d 584 (2012) (holding that a defendant's silence does not relieve the State of its burden of proving sentence-enhancing facts). "The 'real facts' or 'established facts' concept excludes consideration of either uncharged crimes or of crimes that were charged but later dismissed."

State v. McAlpin, 108 Wash.2d 458, 466, 740 P.2d 824 (1987) (collecting cases). Conduct that has "not resulted in convictions ... may not be considered at all." Id. at 467, 740 P.2d 824. Thus, the SRA precludes a sentencing court from considering reversed convictions when it imposes a sentence because reversed convictions are not convictions. See Pearce, 395 U.S. at 721, 89 S.Ct. 2072 (observing that overturning a conviction results in "the slate [being] wiped clean").

¶54 The four reversed convictions in this case fall outside the definition of "real facts." Those convictions were not just "wiped clean"; they were reversed due to unconstitutionality. Under United States Supreme Court precedent, a sentencing court cannot consider an unconstitutionally obtained conviction for any purpose. In other words, under controlling law, Brown's sentences for his three remaining convictions could be based on only those three convictions. It is indisputable that the superior court imposed longer sentences on each of these three convictions after Brown's successful appeal than it did before.

B. Because Brown's Three Sentences Were Longer after Appeal Than They Were Before, Pearce's Holding-That a Presumption of Judicial Vindictiveness Arises When the Same Sentencing Court Increases a Sentence after Appeal without Any New Factual Basis-Applies in This Case

¶55 Pearce makes clear that a presumption of judicial vindictiveness applies when, as here, postappeal sentences exceed preappeal sentences. Pearce also makes clear that such vindictiveness violates the defendant's right to due process under the Fourteenth Amendment.

¶56 Pearce was convicted of assault with intent to commit rape and sentenced to 12 to 15 years in prison.

395 U.S. at 713, 89 S.Ct. 2072. His conviction was later reversed by a state appellate court, and the State decided to retry him. Id. Pearce was convicted again, and the court imposed an 8-year prison sentence. Id. But "when added to the time Pearce had already spent in prison, the parties agree[d the new sentence] amounted to a longer total sentence than that originally imposed." Id.

¶57 The United States Supreme Court viewed the second sentence as a "more severe punishment," despite its facial appearance of leniency. Id. at 716, 89 S.Ct. 2072. Yet the sentencing court's reasons, if any, for imposing the increased sentence were "not so dramatically clear." Id. at 726, 89 S.Ct. 2072. And "the State [had not] offered any reason or justification for that sentence beyond the naked power to impose it." Id. The Court therefore presumed that the sentencing court had imposed the "heavier sentence" in response to the defendant's "having succeeded in getting his original conviction set aside." Id. at 723-24, 89 S.Ct. 2072.

¶58 That presumptively vindictive response violated the defendant's right to due process. "Due process of law ... requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725, 89 S.Ct. 2072. The Supreme Court therefore affirmed the grant of the writ of habeas corpus, holding that Pearce could not be imprisoned under the unconstitutional sentence. Id.

¶59 The Court also made clear, however, that an increased sentence will not always violate the defendant's right to due process. It stated, "A trial judge is not constitutionally precluded ... from imposing a new sentence, whether greater or less than the original sentence., in the light of events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities,' " which are all permissible sentencing factors in the federal system. Id. at 723, 89 S.Ct. 2072 (quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ). The Court noted that "[s]uch information may come to the judge's attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant's prison record, or possibly from other sources." Id. Thus, new information could justify a sentence increase, but when no new information exists, a presumption of judicial vindictiveness arises.

¶60 No relevant new information about Brown or his crimes was presented at his resentencing, though it certainly could have been. The presumption of judicial vindictiveness therefore applies in this case.

¶61 The majority holds to the contrary because it concludes that Brown's sentences were not really increased. The majority reaches that conclusion by comparing Brown's new total period of confinement to his initial total period of confinement. Majority at 969-70.

¶62 But that is not the correct comparison to make in Washington. Instead, as discussed in Part A above, Washington courts must impose a specific sentence for each specific offense of conviction based on "real facts" proved (or admitted) about that specific offense. Thus, as a matter of state law, Brown's punishment did increase because the comparison runs from a given conviction's initial sentence to the same conviction's new sentence. And because the punishment increased under state law, federal law requires that we presume that vindictiveness motivated the harsher punishment, unless the sentencing court relied on new information to justify the harsher punishment.

¶63 The majority follows federal circuit courts of appeals that compare the "total aggregate" of prison time imposed at the two sentencing hearings. Majority at 969. But those decisions are inapt because they are based on a fundamentally different sentencing scheme-one in which the sentencing court may consider uncharged conduct, e.g., UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL 2018 § 1B1.3(a), http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2018/GLMFull.pdf [https://perma.cc/V43L-MQP6] as well as acquittals and reversed convictions. See Watts, 519 U.S. at 151-54, 117 S.Ct. 633. Under that sentencing scheme, federal courts consider sentences a package penalty for the crimes of conviction. See United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir. 1989) ; United States v. Gray, 852 F.2d 136, 138 (4th Cir. 1988) ; United States v. Shue, 825 F.2d 1111, 1114-15 (7th Cir. 1987) ; United States v. Bay, 820 F.2d 1511, 1513-14 (9th Cir. 1987). Contrary to the federal model, where the "factors underlying the original sentence in a multiple count case are not necessarily altered when a defendant successfully appeals his conviction on one count," Pimienta-Redondo, 874 F.2d at 14, the facts are necessarily altered in Washington when a conviction is overturned. RCW 9.94A.530(2) ; McAlpin, 108 Wash.2d at 465-67, 740 P.2d 824.

C. Subsequent Decisions Narrowed Pearce -But It Still Applies with Full Force to This Exact Type of Case

¶64 It is true that subsequent United States Supreme Court decisions have limited Pearce. But those decisions reinforce, not undermine, the conclusion that the presumption of judicial vindictiveness applies here.

¶65 The earliest post- Pearce Supreme Court decisions held that a presumption of judicial vindictiveness does not arise when the second sentencer, whether it be judge or jury, differs from the first sentencer. See Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) ; Colten v. Kentucky , 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The Court noted that there is less risk of vindictiveness when the second sentencer "is not the court that is asked to do over what it thought it had already done correctly." Colten , 407 U.S. at 116-17, 92 S.Ct. 1953 ; see also Chaffin , 412 U.S. at 27, 93 S.Ct. 1977. In some instances, the second sentencer may not even have knowledge of the initial sentence. Chaffin, 412 U.S. at 26-27, 93 S.Ct. 1977. Accordingly, no reasonable likelihood-and therefore no presumption-of vindictiveness exists in those situations.

¶66 Two later decisions, McCullough and Smith, underscored Pearce's cautionary statement that no presumption of judicial vindictiveness arises when the sentencing court relies on new, previously unavailable information to impose a harsher sentence at resentencing.

¶67 In McCullough, a defendant received a 20-year prison sentence after his first trial for murder, but a 50-year prison sentence after his second trial. 475 U.S. at 135-36, 106 S.Ct. 976. But the Court upheld the longer sentence against the defendant's Pearce challenge. Reviewing the record, the Court noted that the trial judge explained that she had imposed a 50-year sentence partly because of "the testimony of two new witnesses" at the second trial that had cast the defendant's conduct in a worse light. Id. at 143, 106 S.Ct. 976. The Court held that that testimony and other new information about the defendant's criminal history permissibly supported the increased sentence. Id. at 144, 106 S.Ct. 976. Thus, McCullough clarified that the Pearce presumption does not apply when there is "new, probative evidence" to support the imposition of a harsher sentence at the second proceeding. Id. at 143, 106 S.Ct. 976.

¶68 Smith bolstered that conclusion. In that case, a defendant pleaded guilty to burglary and rape and received two concurrent 30-year prison sentences for the two convictions.

490 U.S. at 795-96, 109 S.Ct. 2201. The defendant later argued that his plea was not knowing and voluntary, and an appellate court permitted him to withdraw the plea. Id. at 796, 109 S.Ct. 2201.

¶69 The State then prosecuted the defendant for burglary, rape, and sodomy. Id. At the trial, a cacophony of terrible facts emerged:

[T]he victim testified that respondent had broken into her home in the middle of the night, clad only in his underwear and a ski mask and wielding a kitchen knife. Holding the knife to her chest, he had raped and sodomized her repeatedly and forced her to engage in oral sex with him. The attack, which lasted for more than an hour, occurred in the victim's bedroom, just across the hall from the room in which her three young children lay sleeping.

Id. On those facts, "[t]he jury returned a verdict of guilty on all three counts." Id.

¶70 At sentencing, "the trial judge imposed a term of life imprisonment for the burglary conviction, plus a concurrent term of life imprisonment on the sodomy conviction and a consecutive term of 150 years' imprisonment on the rape conviction." Id. Thus, the sentences for the burglary and rape convictions increased as compared to the initial sentences imposed for those crimes under the plea bargain. And the life sentence for the new sodomy conviction far outstripped the 30-year prison terms that the defendant had initially received for the other two convictions.

¶71 But the Supreme Court upheld the longer sentences against a Pearce challenge, even though the same judge had imposed both sets of sentences. The Court pointed out that "[t]he trial court [had] explained that it was imposing a harsher sentence than it had imposed following [the defendant's] guilty plea because the evidence presented at trial, of which it had been unaware at the time it imposed sentence on the guilty plea, convinced it that the original sentence had been too lenient." Id. at 796-97, 109 S.Ct. 2201. And just as the new information made a difference to the trial court, it made a difference to the Supreme Court's Pearce analysis. "As this case demonstrates, in the course of the proof at trial the judge may gather a fuller appreciation of the nature and extent of the crimes charged," it observed. Id. at 801, 109 S.Ct. 2201 (citation omitted). The Court therefore held that when new information about the defendant's conduct comes into the record, the Pearce presumption does not apply. Id. at 802, 109 S.Ct. 2201.

¶72 Colten , Chaffin , McCullough , and Smith confirm that the Pearce presumption applies in this case. The same superior court judge sentenced Brown both times. VRP at 33-34. The State presented no new facts at the resentencing to support the harsher exceptional sentences. In fact, Washington's "real facts" doctrine provided that there were fewer inculpatory facts than existed at the initial sentencing.

¶73 Although the superior court complied with Pearce 's mandate to affirmatively identify its reason for imposing harsher sentences on remand, 395 U.S. at 726, 89 S.Ct. 2072, its explanation of its decision did not-and could not-generate any new facts about the crime. The court stated only a general basis for imposing sentences above the standard range, and it was a basis that was even more justified at the first sentencing when the offender scores were far higher: "I don't think it's appropriate for you to have free crimes in relation to what happened here." VRP at 34. So that's not a new fact, either.

¶74 Neither Brown's mitigating conduct-ensuring that one of the victims received medication during the criminal episode, id. at 24, 33-nor the existence of "free crimes" changed from one proceeding to the next. If anything, the "number" of Brown's "free crimes" decreased when his offender score dropped from 19 to 11 for the robbery and burglary convictions. In the absence of any new additional inculpatory information, Pearce 's presumption of judicial vindictiveness applies.

¶75 The State has made no effort to rebut that presumption. See Suppl. Br. of Resp't at 8-11 (arguing only that the presumption does not apply). Accordingly, we must presume that Brown's right to due process has been violated, and I would reverse the decision of the Court of Appeals and remand the case for resentencing on that basis.

CONCLUSION

¶76 The Court of Appeals reversed four of Brown's seven convictions due to constitutional error. The judge then imposed a higher sentence on each of his three remaining convictions. There were no new facts to justify the new, higher, sentences. We must therefore apply the Pearce presumption of judicial vindictiveness. The State offers only the facts of reversed convictions to rebut that presumption, and that does not suffice.

¶77 I respectfully dissent.

      The trial judge took into account that one of Brown's codefendants, Johnathan Frohs, accepted a plea deal and received his sentence during the interim. Although the trial judge never specified the length of Frohs' sentence, he did articulate that when he looked at "[Brown's] original sentence ... compared to what Mr. Frohs got ... I think it's too far out of the lines of being reasonable." VRP Mot. at 34. Presumably, Frohs' guilty plea sentencing resulted in a shorter sentence than Brown's original sentence.

      Brown also seeks clarification as to the weight that should be placed on the lead opinion in Collicott. The lead opinion in Collicott stated that the court should be collaterally estopped in imposing an exceptional sentence on resentencing.

      Only four justices of this court, Justices Smith, Utter, and Dolliver, and Chief Justice Dore, subscribed to this holding. Five justices, Justices Durham, Andersen, Brachtenbach, and Guy, and Justice Pro Tem Callow, specifically disavowed the collateral estoppel holding as "go[ing] beyond what is necessary to resolve this case." Collicott, 118 Wash.2d at 670, 827 P.2d 263 (Durham, J., concurring).

      The dissent argues we should apply the Pearce presumption because our Sentencing Reform Act of 1981(SRA) requires courts to consider only the "real facts" of the crimes at sentencing, RCW 9.94A.530(2), distinct from the federal sentencing guidelines, which allow courts to consider acquitted conduct. Dissent at 974 (citing 18 U.S.C. § 3661 ). In essence, the dissent asserts that it was improper for the sentencing court to consider the facts and circumstances of the entire criminal transaction because some of those facts could support elements of the charges that were reversed on appeal. But the "real facts" doctrine does not require a trial court to wholly disregard facts simply because they may be used to support elements of crimes that were not charged. Rather, "[t]he SRA structures the sentencing decision to consider only the actual crime of which the defendant has been convicted, his or her criminal history, and the circumstances surrounding the crime ." State v. Houf, 120 Wash.2d 327, 333, 841 P.2d 42 (1992) (emphasis added).
      In any event, the "real facts" doctrine does not apply here. The trial court, after reviewing the new offender score, found that the standard sentencing range would clearly be too lenient and would result in "some of the current offenses going unpunished." RCW 9.94A.535(2)(c). An offender score above 9 warrants an exceptional sentence. Since Brown's adjusted offender score after the reversed convictions was 11, the trial court determined an exceptional sentence was warranted. The trial court's finding did not require an examination of the facts underlying the reversed convictions.

      Brown characterizes the two different approaches as the "total aggregate" approach and the "modified aggregate," or "aggregate remainder," approach, respectively, in his briefing. Suppl. Br. of Pet'r at 18.

      This reasoning was later affirmed in United States v. Dominguez, 951 F.2d 412 (1st Cir. 1991).

      Faced with essentially the same argument presented by Brown, the Fourth Circuit affirmed its adherence to the "total aggregate" approach in United States v. De Jesus Ventura, 864 F.3d 301 (4th Cir. 2017).

      Offender scores reflect prior criminal history and other current convictions. A score is calculated for each offense, and the score for one offense might differ from the score for another offense. See RCW 9.94A.525 ; Wash. State Caseload Forecast Council, 2017 Washington State Adult Sentencing Guidelines Manual 63, https://www.cfc.wa.gov/PublicationSentencing/SentencingManual/Adult_Sentencing_Manual_2017.pdf [https://perma.cc/78SQ-AK9G].

      United States v. Tucker, 404 U.S. 443, 448-49, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ; Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) ; State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796 (1986).

      As discussed above, the SRA's "real facts" doctrine places additional limits on what can be considered at sentencing under the SRA.

      RCW 9.94.530(2) provides that "[o]n remand for resentencing following appeal or collateral attack, the parties shall have the opportunity to present and the court to consider all relevant evidence regarding criminal history, including criminal history not previously presented." RCW 9.94A.525(22) further provides that "[p]rior convictions that were not included in criminal history or in the offender score shall be included upon any resentencing to ensure imposition of an accurate sentence."

      Additionally, as in Colten and Chaffin , Pearce's, "presumption [was] inapplicable because different sentencers assessed the varying sentences that [the defendant] received." McCullough, 475 U.S. at 140, 106 S.Ct. 976. A jury initially determined the defendant's sentence, but on retrial, the judge determined the sentence. Id. at 136, 106 S.Ct. 976.

      RCW 9.94A.535(2)(c) permits an exceptional sentence above the standard range when "[t]he defendant has committed multiple current offenses and the defendant's offender score results in some of the current offenses going unpunished"-or, in more common parlance, when the defendant gets "free crimes." See State v. Alvarado, 164 Wash.2d 556, 567, 192 P.3d 345 (2008).
      The Court of Appeals explained how RCW 9.94A.535(2)(c) operates in State v. Newlum :
      If the number of current offenses, when applied to the sentencing grid, results in the legal conclusion that the defendant's presumptive sentence is identical to that which would be imposed if the defendant had committed fewer current offenses, then an exceptional sentence may be imposed.
      142 Wash. App. 730, 743, 176 P.3d 529 (2008) ; see also RCW 9.94A.510 (providing sentencing grid).

      Division Two has reached the same conclusion. See State v. Ameline, 118 Wash. App. 128, 133, 75 P.3d 589 (2003). "If the only new fact is that [the defendant] has again succeeded on appeal, the new sentence may not be more harsh than the first and second ones." Id. at 134, 75 P.3d 589.


source: Caselaw Access Project

author: OWENS, J. WIGGINS, J. (dissenting)

license: Public Domain

text:
    In the MATTER OF the Personal Restraint of: Time Rikat MEIPPEN, Petitioner.
    No. 95394-5
    Supreme Court of Washington.
    Argued November 15, 2018 Filed: MAY 09, 2019
    Gregory Charles Link, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-1683, for Petitioner.
    Amy R. Meckling, Ann Marie Summers, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2390, for Respondent.
    Eric Riley Nusser, Terrell Marshall Law Group, 936 N. 34th Street, Suite 300, Seattle, WA 98103-8869, Nancy Lynn Talner, Attorney at Law, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, Vanessa Torres Hernandez, Northwest Justice Project, 401 2nd Avenue S., Suite 407, Seattle, WA 98104-3811, for Amicus Curiae (American Civil Liberties Union of Washington).
    Teymur Gasanovich Askerov, Black Law PLLC, 705 2nd Avenue, Suite 1111, Seattle, WA 98104-1720, Rita Joan Griffith, Attorney at Law, 4616 25th Avenue NE, PMB 453, Seattle, WA 98105-4523, for Amicus Curiae (Washington Association of Criminal Defense Lawyers).
   OWENS, J.

¶ 1 Time Rikat Meippen was a juvenile when he was convicted in adult court of first degree assault, first degree robbery, and second degree unlawful possession of a firearm. The trial court sentenced Meippen to the top of the standard sentencing range and imposed a firearm sentence enhancement. Several years after Meippen's sentencing, this court decided State v. Houston-Sconiers . In Houston-Sconiers , this court held that when sentencing a juvenile in adult court, a trial court has absolute discretion to depart from the standard sentencing ranges and mandatory sentence enhancements prescribed by the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. 188 Wash.2d at 9, 391 P.3d 409. Meippen subsequently filed an untimely personal restraint petition (PRP), arguing that Houston-Sconiers constitutes a significant and material change in the law that should apply retroactively.

¶ 2 Even assuming Meippen can show that Houston-Sconiers is a significant, material change in the law that applies retroactively, we hold that he is not entitled to collateral relief because he does not demonstrate that any error actually and substantially prejudiced him. Meippen does not show by a preponderance of the evidence that his sentence would have been shorter if the trial court had absolute discretion to depart from the SRA at the time of sentencing. The trial court had the discretion to impose a lesser sentence under the SRA at the time and instead sentenced Meippen at the top of the standard sentencing range. Accordingly, Meippen cannot make a threshold showing of actual and substantial prejudice, and we dismiss his PRP. Thus, we decline to consider whether Houston-Sconiers is a significant, material change in the law that applies retroactively to cases on collateral review, and we save the question for another day.

FACTS

¶ 3 In 2006, Meippen robbed a tobacco store and shot the store clerk in the head, inflicting nonlethal injuries. Meippen was 16 years old. Meippen was automatically transferred to adult court, where a jury convicted him of first degree assault and first degree robbery, plus one firearm enhancement. See former RCW 13.04.030(1)(e)(v)(A) (2005). Meippen was also convicted of second degree unlawful possession of a firearm in a concurrent bench trial.

¶ 4 At sentencing, Meippen's counsel recommended that Meippen receive a bottom-end standard range sentence. Meippen's counsel argued that Meippen was too young to appreciate the nature and consequences of his actions and that he "lack[ed] an understanding ... of the seriousness of the situation he involved himself in." State's Resp. to PRP, App. at 27-28. Meippen's counsel also noted that Meippen was "very immature in his thought processes and beliefs" and opined that due to Meippen's age, a lengthy prison sentence would be especially difficult. Id. at 27; see id. at 28. The trial court rejected counsel's recommendation, stating, "I find [Meippen's] behavior cold, calculated, and it showed complete indifference towards another human being." Order Transferring Mot. for Relief from J. to Court of Appeals, State v. Meippen , No. 06-1-05905-7-SEA, App. A at 17 (King County Super. Ct. Oct. 20, 2017). The court imposed a top-end standard range sentence of 231 months in confinement, including a 60-month firearm sentence enhancement. Meippen appealed. The Court of Appeals affirmed his convictions and sentence and issued its mandate in 2009. State v. Meippen , noted at 149 Wash. App. 1014, 2009 WL 597290 (2009).

¶ 5 Nearly eight years after Meippen's judgment and sentence became final, this court decided Houston-Sconiers . In Houston-Sconiers , this court noted that the Eighth Amendment to the United States Constitution requires courts to recognize that "children are different." 188 Wash.2d at 18, 391 P.3d 409. This court reasoned that because children are different, the Eighth Amendment mandates that trial courts have absolute discretion to impose sentences below the SRA standard sentencing ranges and mandatory sentence enhancements when sentencing a juvenile in adult court. Id. at 9, 391 P.3d 409. This court further held that to comply with the Eighth Amendment's mandate, trial courts must have complete discretion to consider the mitigating qualities associated with youth at sentencing. Id. at 21, 391 P.3d 409. These mitigating qualities include a juvenile defendant's age, immaturity, and failure to appreciate risks and consequences. Id. at 23, 391 P.3d 409.

¶ 6 In 2017, Meippen filed a pro se motion for relief from judgment, requesting a new sentencing hearing. The trial court transferred Meippen's untimely motion to the Court of Appeals for consideration as a PRP. Soon after, Meippen filed an amended PRP, arguing that his petition was timely because Houston-Sconiers represents a significant and material change in the law that should apply retroactively to his sentence. The Court of Appeals transferred Meippen's amended PRP to this court as a successive petition that raised new grounds. This court retained the petition for consideration on the merits.

ISSUE

¶ 7 Does Meippen demonstrate that the trial court's alleged sentencing error actually and substantially prejudiced him such that this court will consider whether Houston-Sconiers is a significant, material change in the law that applies retroactively to cases on collateral review?

ANALYSIS

¶ 8 Meippen argues that the one-year time bar does not apply to his PRP because Houston-Sconiers constitutes a significant and material change in the law that should apply retroactively to cases on collateral review. We hold that Meippen fails to demonstrate that the trial court actually and substantially prejudiced him because he does not show by a preponderance of the evidence that his sentence would have been shorter if the trial court had absolute discretion to depart from the SRA at the time of his sentencing. Because Meippen does not meet his threshold burden of showing actual and substantial prejudice, we must dismiss his petition. Accordingly, we decline to consider whether Houston-Sconiers is a significant, material change in the law that applies retroactively.

¶ 9 A petitioner is generally barred from filing a PRP "more than one year after [his] 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 petitioner can overcome the one-year time bar if he can identify (1) a significant change in the law, (2) that is material to his conviction or sentence, and (3) that applies retroactively. RCW 10.73.100(6) ; State v. Miller , 185 Wash.2d 111, 114, 371 P.3d 528 (2016). However, a petitioner must show not only error but also a threshold showing of harm to obtain relief on a PRP. In re Pers. Restraint of McNeil , 181 Wash.2d 582, 589, 334 P.3d 548 (2014) ; see State v. Buckman , 190 Wash.2d 51, 65, 409 P.3d 193 (2018). "These threshold requirements are justified by the court's interest in finality, economy, and integrity of the trial process and by the fact that the petitioner has already had an opportunity for judicial review." In re Pers. Restraint of Isadore , 151 Wash.2d 294, 298, 88 P.3d 390 (2004).

¶ 10 A petitioner alleging constitutional error has the threshold, prima facie burden of showing by a preponderance of the evidence that he was actually and substantially prejudiced by the alleged error. In re Pers. Restraint of Davis , 152 Wash.2d 647, 671-72, 101 P.3d 1 (2004). In doing so, the petitioner " 'must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice,' " but that the outcome would more likely than not have been different had the alleged error not occurred. In re Pers. Restraint of Hagler , 97 Wash.2d 818, 825, 650 P.2d 1103 (1982) (quoting United States v. Frady , 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L.Ed. 2d 816 (1982) ); see Buckman , 190 Wash.2d at 60, 409 P.3d 193. If the petitioner fails to make the threshold, prima facie showing of actual and substantial prejudice, we must dismiss his PRP. In re Pers. Restraint of Yates , 177 Wash.2d 1, 17, 296 P.3d 872 (2013) ; see In re Pers. Restraint of Khan , 184 Wash.2d 679, 686, 363 P.3d 577 (2015) (plurality opinion) (stating that a PRP may be dismissed without addressing a debatable legal issue that was properly raised).

¶ 11 Meippen contends that Houston-Sconiers renders his sentence unconstitutional. Because Meippen alleges a constitutional error, he must show that he was actually and substantially prejudiced by the trial court's alleged error to obtain collateral relief. Meippen fails to meet this threshold, prima facie burden for the following reasons.

¶ 12 To begin with, Meippen does not show by a preponderance of the evidence that his sentence would have been shorter if Houston-Sconiers was a significant, material change in the law that applied retroactively. At sentencing, Meippen's counsel argued that mitigating qualities of youth-Meippen's age, immaturity, and failure to appreciate the consequences of his actions-supported a sentence at the bottom of the standard range. The trial court considered these mitigating qualities and, nevertheless, imposed a top-end standard range sentence.

¶ 13 Significantly, the trial court already possessed the discretion to depart from the SRA standard sentencing ranges at the time of Meippen's sentencing. The trial court had the discretion to impose an exceptional sentence downward based on Meippen's youth, but it declined to do so. In re Pers. Restraint of Light-Roth , 191 Wash.2d 328, 336, 422 P.3d 444 (2018) ("[The SRA] has always provided the opportunity to raise youth for the purpose of requesting an exceptional sentence downward, and mitigation based on youth is within the trial court's discretion."). Nothing in our record suggests that the trial court would have exercised its discretion to depart from the SRA sentence enhancement guidelines. The trial court determined that Meippen's actions were cold and calculated, and it clearly intended to impose a sentence at the top of the standard range despite Meippen's youth.

¶ 14 Finally, although there is a mere possibility that the trial court could have departed from the SRA in light of Houston-Sconiers , mere possibilities do not establish a prima facie showing of actual and substantial prejudice. Meippen does not present any evidence that the trial court would have imposed a lesser sentence if it had the discretion to depart from the SRA standard sentencing ranges and mandatory sentence enhancements. The trial court already had the discretion to impose a lesser sentence but declined to do so. Accordingly, Meippen fails to show by a preponderance of the evidence that he was actually and substantially prejudiced by the trial court's alleged error. Because Meippen does not make a threshold, prima facie showing of actual and substantial prejudice, he is not entitled to collateral relief. Thus, we dismiss his PRP and decline to consider whether Houston-Sconiers represents a significant, material change in the law that should apply retroactively to cases on collateral review.

CONCLUSION

¶ 15 Meippen does not show by a preponderance of the evidence that his sentence would have been shorter if the trial court had absolute discretion to depart from the SRA at the time of his sentencing. As a result, Meippen fails to show that he was actually and substantially prejudiced during sentencing, and we dismiss his PRP. We decline to consider whether Houston-Sconiers is a significant, material change in the law that applies retroactively to cases on collateral review and save the question for another day.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Stephens, J.

WIGGINS, J. (dissenting)

¶ 16 Today the court avoids answering whether State v. Houston-Sconiers , 188 Wash.2d 1, 391 P.3d 409 (2017), applies retroactively when a prisoner collaterally attacks a final judgment. The majority asserts that because Time Rikat Meippen cannot show actual and substantial prejudice, we need not reach the retroactivity question. Majority at 980, 982. But we must decide whether Houston-Sconiers applies retroactively before we reach the issue of actual and substantial prejudice. Further, I conclude that Houston-Sconiers is a significant change of law, material to Meippen's case, and applies retroactively on collateral review under Montgomery v. Louisiana , --- U.S. ----, 136 S. Ct. 718, 193 L.Ed. 2d 599 (2016). I conclude that Meippen makes a prima facie showing of actual and substantial prejudice entitling him to a reference hearing. Therefore, I respectfully dissent.

ANALYSIS

I. Retroactivity must be resolved before the question of prejudice

¶ 17 When deciding a personal restraint petition (PRP), we first look to see if the petition was properly brought and, if so, then decide the merits of the petition. The majority does not follow this order. Instead, it concludes that we need not "consider whether Houston-Sconiers represents a significant, material change in the law that should apply retroactively to cases on collateral review"

because Meippen has not made "a threshold, prima facie showing of actual and substantial prejudice." Majority at 982. This is backward. The question of Houston-Sconiers ' retroactivity on collateral review is part of the threshold procedural question.

It is not substantive. Conversely, the question whether Meippen showed actual prejudice goes to the substantive merits of his case.

¶ 18 Whether Houston-Sconiers applies retroactively is clearly the threshold procedural question. When a petitioner files a PRP more than one year after a judgment becomes final (as was the case here), RCW 10.73.090 bars it as untimely, exceptions aside. " RCW 10.73.090 presents 'a procedural bar, not a substantive bar.' " In re Pers. Restraint of Finstad , 177 Wash.2d 501, 301 P.3d 450 (2013) (emphasis added) (quoting In re Pers. Restraint of Coats , 173 Wash.2d 123, 145, 267 P.3d 324 (2011) (Madsen, C.J., concurring)); see also In re Pers. Restraint of Schorr , 191 Wash.2d 315, 320, 422 P.3d 451 (2018) ("[Resolving the time bar] is a threshold inquiry; we do not have to decide whether the entire claim is completely meritorious in order to decide whether it fits within an exception to the time bar.").

¶ 19 Meippen argues that RCW 10.73.100(6) exempts him from the time bar. He must prove Houston-Sconiers is retroactive for that exception to apply. In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d 91, 103, 351 P.3d 138 (2015). Thus, the question of retroactivity is also procedural because it relates to whether he overcomes the procedural time bar.

¶ 20 Rather, it is the issue of actual prejudice that goes to the substantive merits of the petition. The majority treats this question as merely preliminary. Majority at 982. But as we wrote in In re Personal Restraint of Davis , on which the majority relies, "To actually obtain relief on collateral review based on a constitutional error[,] the petitioner must demonstrate by a preponderance of the evidence that petitioner was actually and substantially prejudiced by the error." 152 Wash.2d 647, 671-72, 101 P.3d 1 (2004) (emphasis added) (footnote omitted). Given that "[g]ranting the petition is appropriate if the petitioner has proved actual prejudice," prejudice clearly deals with the merits of the petition. In re Pers. Restraint of Yates , 177 Wash.2d 1, 17, 296 P.3d 872 (2013) (citing In re Pers. Restraint of Pierce , 173 Wash.2d 372, 377, 268 P.3d 907 (2011) ).

¶ 21 Resolving whether to grant a petitioner relief necessarily comes after resolving the procedural question of whether the PRP is time-barred. RAP 16.4(d) ("The appellate court will only grant relief by a personal restraint petition if ... such relief may be granted under RCW 10.73.090 or .100."). By reversing this order, the majority avoids the threshold procedural question and preemptively dismisses the case on the merits.

¶ 22 This is more than semantics. By confusing our collateral attack procedure, the majority does disservice not only to Meippen but to all incarcerated persons. The personal restraint petition remains one of the few means available to incarcerated individuals to seek further judicial review of their predicament. We must clarify which aspects of seeking collateral relief are procedural, which are substantive, and in what order these questions must be resolved. Given that many prisoners bring PRPs pro se, such clarity is particularly necessary. See Houston v. Lack , 487 U.S. 266, 271, 108 S. Ct. 2379, 101 L.Ed. 2d 245 (1988) (detailing challenges facing pro se prisoner litigants in filing appeals); State v. Marintorres , 93 Wash. App. 442, 452, 969 P.2d 501 (1999) (demonstrating how pro se briefs are held to the same standard as those written by counsel). The consequences of incarceration and complexities of our system of collateral attack demand clarity on our part.

II. Meippen overcomes the time bar because Houston-Sconiers is a significant and material change in law that applies retroactively

¶ 23 In light of the above, before considering the merits of Meippen's case, we must consider whether he overcomes the one-year limitation barring untimely personal restraint petitions. RCW 10.73.090, .100. Meippen argues that he overcomes the time bar because Houston-Sconiers satisfies the requirements of RCW 10.73.100(6). I agree.

¶ 24 " ' RCW 10.73.100(6) sets forth three conditions that must be met before a petitioner can overcome the one-year time bar: (1) a [significant] change in the law (2) that is material and (3) that applies retroactively.' " In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d at 103, 351 P.3d 138 (alteration in original) (quoting In re Pers. Restraint of Gentry , 179 Wash.2d 614, 625, 316 P.3d 1020 (2014) ). Houston-Sconiers meets these requirements.

¶ 25 In Houston-Sconiers , we analyzed juvenile sentencing in the context of the Eighth Amendment to the United States Constitution. 188 Wash.2d at 18, 391 P.3d 409. Reasoning that "children are different," we held that "sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant" and that "the Eighth Amendment requires sentencing courts to consider the mitigating qualities of youth at sentencing, even in adult court." Id. at 18, 21, 391 P.3d 409 (emphasis added) (capitalization omitted). This rule prevents children from facing disproportionate sentencing ranges in violation of the Eighth Amendment. Id. at 18-21, 19 n.4, 391 P.3d 409.

¶ 26 Houston-Sconiers meets each of the requirements of RCW 10.73.100(6). First, Houston-Sconiers is a significant change in the law. See In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d at 103, 351 P.3d 138. "[W]here 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.' " In re Pers. Restraint of Greening , 141 Wash.2d 687, 697, 9 P.3d 206 (2000) (quoting RCW 10.73.100(6) ). Houston-Sconiers expressly overruled State v. Brown , 139 Wash.2d 20, 983 P.2d 608 (1999). Houston-Sconiers , 188 Wn.2d at 21 n.5, 391 P.3d 409. Brown indicated that judges had no discretion to depart from the requirements of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW. 139 Wash.2d at 29, 983 P.2d 608. Given that Meippen's sentencing occurred entirely within the framework of the SRA, without any indication in the record that anyone believed it possible to go outside that range (indeed, defense counsel recommended a sentence only at the low end of the SRA range, Brown effectively controlled a material issue in Meippen's case. By overturning Brown , Houston-Sconiers was a significant change in the law.

¶ 27 Another " 'test to determine whether an [intervening case] represents a significant change in the law is whether the defendant could have argued this issue before publication of the decision.' " State v. Miller , 185 Wash.2d 111, 115, 371 P.3d 528 (2016) (alteration in original) (internal quotation marks omitted) (quoting In re Pers. Restraint of Lavery , 154 Wash.2d 249, 258-59, 111 P.3d 837 (2005) ). Houston-Sconiers held that at sentencing the judge must consider the mitigating factors of youth. 188 Wash.2d at 18, 391 P.3d 409. Meippen's counsel made the only argument then feasible: that the low end of the sentencing range was "appropriate" for Meippen because of "his youth." He did not, because he could not, argue that the judge was required to take youth into account. See id. By providing defendants with the argument that a sentencing judge must consider youth, when this argument did not before exist (at least not in any fashion endorsed or legitimated by this court), Houston-Sconiers was a significant change in law. 188 Wash.2d at 18, 391 P.3d 409.

¶ 28 Second, Houston-Sconiers is material to Meippen's case. See In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d at 103, 351 P.3d 138. Houston-Sconiers requires that a court take youth into account at sentencing. 188 Wash.2d at 18, 21, 391 P.3d 409. Despite defense counsel's invocation of Meippen's youth, the court did not take his youth into account. On the contrary, in response to these arguments, the court said only, "Thank you" and immediately imposed a sentence at the high end of the sentencing range. By way of explanation, the judge simply stated, "I find the defendant's behavior cold, calculated, and it showed complete indifference towards another human being." Without a clearer indication that the sentencing court actually considered Meippen's youth, it cannot be said that the sentencing court behaved as Houston-Sconiers commands. We cannot presume that the sentencing court took Meippen's youth into account when it gave absolutely no indication of having done so. Silence does not constitute reasoning. See State v. Ramos , 187 Wash.2d 420, 444, 387 P.3d 650 (2017) (requiring courts sentencing juveniles to life without parole to "thoroughly explain [their] reasoning" as to why a juvenile deserves such a sentence, "specifically considering the differences between juveniles and adults" in the process).

¶ 29 Further, neither the sentencing court nor Meippen's counsel indicated that it was possible for Meippen to be sentenced below the standard range. Had Houston-Sconiers been decided, all participants in sentencing would have known such discretionary sentencing was possible and Meippen's counsel could have argued for sentencing below the standard range. 188 Wash.2d at 21, 391 P.3d 409. This, too, makes Houston-Sconiers material to Meippen's case.

¶ 30 Third, Houston-Sconiers applies retroactively. See In re Pers. Restraint of Yung-Cheng Tsai , 183 Wash.2d at 103, 351 P.3d 138. This court decides whether a rule applies retroactively in collateral review under the framework of Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060, 103 L.Ed. 2d 334 (1989). In re Pers. Restraint of Colbert , 186 Wash.2d 614, 623, 380 P.3d 504 (2016). The United States Supreme Court recently made clear that Teague identified "new substantive rules of constitutional law" as retroactive on collateral review. Montgomery , 136 S. Ct. at 728. By contrast, most procedural rules (except watershed rules of criminal procedure) are not retroactive on collateral review. Id. at 728, 730. This matters in the case before us for two reasons. First, Montgomery applies the Teague framework, which this court follows. Id. at 728 ; In re Pers. Restraint of Colbert , 186 Wash.2d at 623, 380 P.3d 504. Second, and more importantly, the Supreme Court held that "when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule." Montgomery , 136 S. Ct. at 729. I conclude that Houston-Sconiers applies retroactively because it is a new, substantive rule of constitutional law.

¶ 31 There is no question that the rule in Houston-Sconiers is a rule of constitutional law. The entire case was premised on the dictates of the Eighth Amendment. Houston-Sconiers , 188 Wash.2d at 8, 18-21, 391 P.3d 409. In particular, it was focused on the Eighth Amendment's guaranty of proportionate sentencing. Id. at 19 n.4, 391 P.3d 409. The questions are therefore only whether it is a new rule and whether it is substantive. Montgomery , 136 S. Ct. at 728.

¶ 32 The rule in Houston-Sconiers is a new rule. A new rule is one that "breaks new ground or 'was not dictated by precedent existing at the time the defendant's conviction became final.' " In re Pers. Restraint of Colbert , 186 Wash.2d at 623, 380 P.3d 504 (internal quotation marks omitted) (quoting In re Pers. Restraint of Haghighi , 178 Wash.2d 435, 443, 309 P.3d 459 (2013) ). The rule in Houston-Sconiers expressly overruled prior cases that indicated the inflexibility of the SRA. 188 Wash.2d at 21 n.5, 391 P.3d 409. Further, in holding that a juvenile defendant's youth must be considered at every sentencing, it went beyond even Supreme Court cases like Miller v. Alabama (which required consideration of youth when the sentence was life without parole). Houston-Sconiers , 188 Wash.2d at 18, 391 P.3d 409 ; Miller v. Alabama , 567 U.S. 460, 479-80, 132 S. Ct. 2455, 183 L.Ed. 2d 407 (2012). It is therefore a new rule.

¶ 33 The Houston-Sconiers rule is also substantive. A substantive rule of constitutional law, in retroactivity doctrine, is one that "forbids 'criminal punishment of certain primary conduct' " or prohibits " 'a certain category of punishment for a class of defendants because of their status or offense.' " Montgomery , 136 S. Ct. at 732 (quoting Penry v. Lynaugh , 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L.Ed. 2d 256 (1989) ). The key example is Montgomery . In Montgomery , the Supreme Court held that Miller announced a substantive rule of constitutional law. Id. at 734. Miller prohibited sentences of mandatory life without parole for juvenile offenders without consideration of their youth at the time of the offense. Miller , 567 U.S. at 479-80, 132 S.Ct. 2455. The Montgomery Court reasoned that Miller's rule guarded against disproportionate punishment for juveniles and that "[p]rotection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment and goes far beyond the manner of determining a defendant's sentence." 136 S. Ct. at 732-33. The Montgomery Court concluded that Miller's rule was a "substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity." Id. at 735. Montgomery acknowledged that Miller did not categorically prohibit life without parole for juvenile defendants but held that irrelevant. Id. By barring life without parole "for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility," Miller created a substantive rule of constitutional law that states are constitutionally required to give retroactive effect on collateral review. Id. at 734.

¶ 34 Houston-Sconiers is substantive for the same reasons. Houston-Sconiers protects juveniles from facing certain disproportionate sentencing ranges. 188 Wash.2d at 18-20, 391 P.3d 409. This parallels Miller's rule, which prevents juveniles from facing disproportionate life without parole sentences. 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ; accord Montgomery , 136 S. Ct. at 726. In this way, like Miller , Houston-Sconiers "prohibits 'a certain category of punishment for a class of defendants because of their status or offense.' " Montgomery , 136 S. Ct. at 732 (quoting Penry , 492 U.S. at 330, 109 S.Ct. 2934 ). Like Miller , Houston-Sconiers was premised on the "central substantive guarantee of the Eighth Amendment": the prohibition against disproportionate punishment. Id. at 732-33 ; Houston-Sconiers , 188 Wash.2d at 19 n.4, 391 P.3d 409. "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." Montgomery , 136 S. Ct. at 734. Before Houston-Sconiers , every juvenile convicted of certain offenses faced certain sentencing ranges, while after Houston-Sconiers , juveniles no longer necessarily face those ranges now that sentencing courts not only have the discretion to go outside the bounds of the SRA but are required to consider the mitigating qualities of youth. 188 Wash.2d at 18, 21, 391 P.3d 409. Just as Montgomery considered Miller a substantive change in the law, so too should we hold that Houston-Sconiers is a substantive change of constitutional law.

¶ 35 Houston-Sconiers itself indicated that its holding was substantive. We relied heavily on Roper , Graham , and Miller , noting that those cases

[made] two substantive rules of law clear: first, "that a sentencing rule permissible for adults may not be so for children," rendering certain sentences that are routinely imposed on adults disproportionately too harsh when applied to youth, and second, that the Eighth Amendment requires another protection, besides numerical proportionality, in juvenile sentencings-the exercise of discretion.

Houston-Sconiers , 188 Wash.2d at 19 n.4, 391 P.3d 409 (emphasis added) (citation omitted) (quoting Miller , 567 U.S. at 481, 132 S.Ct. 2455 ). Houston-Sconiers is based on the same federal decisions that Montgomery made clear were substantive. Id . ; Montgomery , 136 S. Ct. at 734. Houston-Sconiers itself also referred to them as substantive. 188 Wash.2d at 19 n.4, 391 P.3d 409. In so doing, Houston-Sconiers all but stated that it also announced a substantive rule of constitutional law applicable retroactively on collateral review.

¶ 36 That the rule in Houston-Sconiers has a procedural component, requiring sentencing courts to take into account the youth of the defendant, does not prevent it from being a substantive rule. Miller had an identical procedural component, yet the Supreme Court in Montgomery still held Miller was substantive. Montgomery , 136 S. Ct. at 735. "There are instances in which a substantive change in the law must be attended by a procedure that enables a prisoner to show that he falls within the category of persons whom the law may no longer punish." Id. Such is the case here. Houston-Sconiers' substantive change in law-preventing juvenile defendants from facing disproportionate sentencing ranges-was accomplished by procedurally requiring sentencing courts to take youth into account. 188 Wash.2d at 19-20, 391 P.3d 409. Thus, Houston-Sconiers' procedural component does not prevent it from being retroactive on collateral review.

¶ 37 For these reasons, I would hold Houston-Sconiers is retroactive. Meippen therefore overcomes the time bar.

III. We should order a reference hearing to determine whether the sentencing court's failure to consider youth actually and substantially prejudiced Meippen

¶ 38 Having established that Houston-Sconiers applies retroactively to Meippen's case, permitting Meippen to overcome the time bar, I now turn to the question of relief. I conclude that we should transfer the case to superior court for a reference hearing because Meippen has made a prima facie showing of actual and substantial prejudice.

¶ 39 "We have three available options when reviewing a personal restraint petition: (1) dismiss the petition, (2) transfer the petition to a superior court for a full determination on the merits or a reference hearing, or (3) grant the petition." In re Pers. Restraint of Yates , 177 Wash.2d at 17, 296 P.3d 872 (citing In re Pers. Restraint of Hews , 99 Wash.2d 80, 88, 660 P.2d 263 (1983) ; RAP 16.11(b), 16.12 ). To obtain relief in a personal restraint petition asserting constitutional error, the petitioner must show, by a preponderance of the evidence, that he or she was actually and substantially prejudiced by the error. In re Pers. Restraint of Davis , 152 Wash.2d at 671-72, 101 P.3d 1 (citing In re Pers. Restraint of Cook , 114 Wash.2d 802, 810, 792 P.2d 506 (1990) ; In re Pers. Restraint of Crabtree , 141 Wash.2d 577, 587, 9 P.3d 814 (2000) ). If the petitioner makes such a showing, we grant relief. Id . ; In re Pers. Restraint of Yates , 177 Wash.2d at 18, 296 P.3d 872. If the petitioner does not make even a prima facie showing of actual and substantial prejudice, we dismiss the PRP. In re Pers. Restraint of Yates , 177 Wash.2d at 17, 296 P.3d 872. If the petitioner makes a prima facie showing of actual and substantial prejudice, but the record is insufficient to entitle him or her to relief, we order a reference hearing. Id. at 18, 296 P.3d 872.

¶ 40 Meippen has made a prima facie showing of actual and substantial prejudice. Houston-Sconiers held that the Eighth Amendment requires a sentencing court to consider a juvenile defendant's youth at sentencing. 188 Wash.2d at 18, 19 n.4, 391 P.3d 409. The sentencing court failed to consider Meippen's youth at sentencing. Rather than engaging in any way with the fact that Meippen was only 16 years old at the time of the crime, the court sentenced him within the standard sentencing range (indeed, at its upper limits) irrespective of those factors. The sentencing court thereby failed to adhere to the procedural component that protects Meippen's substantive Eighth Amendment guaranty of proportionate sentencing. Houston-Sconiers , 188 Wash.2d at 18-20, 19 n.4, 391 P.3d 409.

¶ 41 However, we cannot tell from the record whether Meippen was actually prejudiced. The record does not reveal whether taking Meippen's youth into account would have led to a different sentence. In light of this, I conclude that we should order a reference hearing. Meippen was sentenced, for a crime committed at the age of 16, to 231 months in prison-over 17 years. As a matter of fundamental fairness, we should order a reference hearing so the superior court can determine whether he was prejudiced when sentenced to serve more years in jail than he had then been alive.

¶ 42 The majority disagrees, concluding that Meippen cannot prove actual and substantial prejudice, and dismisses his PRP. Majority at 8. But that is not the correct response. When a petitioner offers " 'the facts underlying the claim of unlawful restraint and the evidence available to support the factual allegations' " so that they go beyond " 'bald assertions and conclusory arguments,' " a reference hearing is justified. In re Pers. Restraint of Yates , 177 Wash.2d at 18, 296 P.3d 872 (quoting In re Pers. Restraint of Rice , 118 Wash.2d 876, 885-86, 828 P.2d 1086 (1992) ). Meippen has done just that. Meippen's constitutional rights were violated. There is no evidence in the record that shows the sentencing judge considered Meippen's youth. The only question is whether his sentence would have been different had the judge taken his youth into account. Thus, we should order a reference hearing to determine if his sentence would have been different if the sentencing judge had had the benefit of Houston-Sconiers at the time of sentencing.

CONCLUSION

¶ 43 Today the majority improperly avoids addressing Houston-Sconiers' retroactivity. But we must reach the issue of retroactivity, and we should hold that Houston-Sconiers applies retroactively on collateral review. The majority also incorrectly dismisses Meippen's petition. I would hold instead that Meippen has made a prima facie showing of actual and substantial prejudice entitling him to a reference hearing to determine whether Meippen can prove, by the preponderance of the evidence, that the sentencing court's failure to consider youth actually and substantially prejudiced him. Accordingly, I respectfully dissent.

González, J.

Yu, J.

Gordon McCloud, J.

      188 Wn.2d 1, 391 P.3d 409 (2017).

      While Ramos does not require thorough justification when a juvenile faces a sentence shorter than life without parole, it nevertheless suggests that we cannot presume that a sentencing court has considered youth merely because defense counsel has invoked it. Some indication that the juvenile's youth was evaluated by the sentencing court is required.

      Roper v. Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L.Ed. 2d 1 (2005).

      Graham v. Florida , 560 U.S. 48, 130 S. Ct. 2011, 176 L.Ed. 2d 825 (2010).