IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 77913-3-I

Respondent,

v. ) ) PUBLISHED OPINION SEBASTIAN MICHAEL GREGG, ) ) FILED: July 8, 2019 Appellant.

VERELLEN, J. — Sebastian Gregg appeals the constitutionality of his

standard range sentence. He contends when sentencing a juvenile in adult court,

the Eighth Amendment to the United States Constitution and article I, section 14 of

the Washington Constitution require a presumption that a juvenile’s youthfulness is

a mitigating factor and the State assumes the burden to overcome the

presumption. Neither the federal nor the Washington case law cited by Gregg

supports his argument or warrants deviating from the Sentencing Reform Act of

1981 (SRA),1 which places the burden of proving mitigating factors on the

defendant.

Gregg also challenges the voluntariness of his guilty plea. Although Gregg

was affirmatively misinformed about his duty to register as a felony firearm

offender, Gregg fails to establish manifest injustice.

1 Ch. 9.94A RCW. No. 77913-7-1/2

Therefore, we affirm.

FACTS

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

The State charged Gregg, along with his codefendant, Dylan Mullins, with

first degree murder with a firearm, first degree burglary with a firearm, and first

degree arson.2 Although Gregg was 17 years old at the time of the murder, he

was “subject to the exclusive original jurisdiction of the adult court” because he

was charged with first degree murder.3

Gregg pleaded guilty as charged. At sentencing, Gregg requested an

exceptional sentence downward based on his youthfulness. Following a six-day

sentencing hearing, the court imposed a standard range of sentence of 444

months.

Gregg appeals.

ANALYSIS

I. Challenge to the Standard Range Sentence

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

The SRA provides that a standard range sentence “shall not be appealed.”4

But a party may still “challenge the underlying legal conclusions and

determinations by which a court comes to apply a particular sentencing

2 Clerk’s Papers (CP) at 14-15. ~ CP at 3. ~ RCW 9.94A.585(1).

2 No. 77913-7-1/3

provision.”5 The SRA provides, “The court may impose a sentence outside the

standard range for an offense if it finds . . . that there are substantial and

compelling reasons justifying an exceptional sentence.”6 Under the SRA, the

defendant has the burden to prove mitigating circumstances by a preponderance

of the evidence.7

Gregg contends the Eighth Amendment to the United States Constitution

and article I, section 14 of the Washington Constitution require a presumption that

a juvenile’s youth is a mitigating factor and that the State assume the burden to

prove otherwise beyond a reasonable doubt. Constitutional interpretation is a

question of law we review de novo.8

Gregg raises these arguments for the first time on appeal. Although “[tjhe

appellate court may refuse to review any claim of error which was not raised in the

trial court,” a party may raise a “manifest error affecting a constitutional right” for

the first time on appeal.9 Gregg’s claimed error implicates his constitutional rights.

And given the State’s lack of briefing on whether the error is manifest, the State

appears to acknowledge this issue is reviewable for the first time on appeal.

~ State v. Ramos,

,

(2017) (quoting State v. Williams,

,

(2003)). 6 RCW 9.94A.535.

~ RCW 9.94A.535(1). 8 Ramos,

.

~ RAP 2.5(a)(3).

3 No. 77913-7-114

a. Eighth Amendment to the United States Constitution

The Eighth Amendment prohibits “cruel and unusual punishment.”10 In the

context of this prohibition, the United States Supreme Court and the Washington

Supreme Court have repeatedly recognized that children are different from adults

and these differences require different sentencing procedures, including full

discretion for the court to consider youthfulness at sentencing and a categorical

bar of certain levels of punishment for juveniles.

In 2005, in Roper v. Simmons, the United States Supreme Court

acknowledged ‘[t]hree general differences between juveniles under 18 and adults

[that] demonstrate that juvenile offenders cannot with reliability be classified

among the worst offenders.”11

First,. “[a] lack of maturity and an underdeveloped sense of . .

responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”. .

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. .

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. . The personality traits of . .

juveniles are more transitory, less fixed.~12]

10U.S. CONST. amend. VIII. ~

,

,

(2005). 12 j4. at 569-70 (alteration in original) (quoting Johnson v. Texas,

,

,

(1993)).

4 No. 77913-7-115

In consideration of these differences, the Court determined “[t]he Eighth

and Fourteenth Amendments forbid imposition of the death penalty on offenders

who were under the age of 18 when their crimes were committed.”13 In 2010, in

Graham v. Florida, the Court extended the categorical bar from Roper to life

without parole sentences for juveniles convicted of nonhomicide offenses.14

In 2012, in Miller v. Alabama, the Court barred “mandatory” life without

parole sentences for juveniles convicted of any offense.15 The Court did not

completely foreclose a trial court’s ability to impose a life sentence without the

possibility of parole for juvenile offenders convicted of homicide.16 But it did

announce the Eighth Amendment required courts “to take into account how

children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.”17

In 2017, in State v. Ramos, our Supreme Court addressed whether the

requirements of Miller applied to literal and de facto life without parole sentences

for juveniles convicted of homicide.18 To support the court’s determination that a

Miller hearing was required in both circumstances, the court analyzed the Miller

factors:

13 ki. at 578.

,

,

(2010).

, 479,

,

(2012). 16kLat480. 17

18

,

(2017).

5 No. 77913-7-1/6

At the Miller hearing, the court must meaningfully consider how juveniles are different from adults, how those differences apply to the facts of the case, and whether those facts present the uncommon situation where a life-without-parole sentence for a juvenile homicide offender is constitutionally permissible. If the iuvenile proves by a preponderance of the evidence that his or her crimes reflect transient immaturity, substantial and compelling reasons would necessarily justify an exceptional sentence below the standard range because a standard range sentence would be unconstitutional.[191

Our Supreme Court expressly determined “Miller does not require that the State

assume the burden of proving that a standard range sentence should be imposed,

rather than placing the burden on the juvenile offender to prove an exceptional

sentence is justified.”2°

Additionally, although our Supreme Court acknowledged in Ramos, “most

juvenile homicide offenders facing the possibility of life without parole will be able

to meet their burden of proving an exceptional sentence below the standard range

is justified,”21 Gregg is not facing either a literal or a de facto life without parole

sentence. The court sentenced Gregg to 444 months (37 years).

Ramos does not endorse the additional procedural protections Gregg

advocates. In Ramos, the defendant argued the State must assume the burden of

proving the court should impose a standard range sentence. Although the Ramos

court avoided “discount[ing] the potential benefits of such procedural

requirements,” the court determined the defendant had “not shown that the

19 k~. at 434-35 (emphasis added). 20 k1. at 436-37. 21 kI. at 443.

6 No. 77913-7-1/7

specific procedures . . are required as a matter of federal constitutional law.”22

The court’s comment concerning the “potential benefits” of additional procedural

protections is dicta, and it cannot be read as endorsing Gregg’s argument.

Gregg contends our Supreme Court “moved past Ramos”23 in State v.

Houston-Sconiers.24 In Houston-Sconiers, our Supreme Court considered

whether mandatory firearm enhancements for juvenile offenders violated Miller

and the Eighth Amendment. The court held,

In accordance with Miller, sentencing courts must have complete . . .

discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system . . Trial courts must consider mitigating qualities of youth at . .

sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements.~251

Houston-Sconiers addresses the effect of the SRA’s firearm enhancement

provision on the court’s considerable discretion when sentencing a juvenile

defendant in adult court. RCW 9.94A.533(3)(e) provides, “Notwithstanding any

other provision of law, all firearm enhancements under this section are mandatory,

shall be served in total confinement, and shall run consecutively to all other

sentencing provisions, including other firearm or deadly weapon enhancements,

for all offenses sentenced under this chapter.” Our Supreme Court determined a

sentencing court’s discretion to consider the juvenile’s youthfulness is not

22k1.at437. 23 Appellant’s Br. at 24.

24

,

(2017).

25

.

7 No. 77913-7-1/8

constrained by the SRA’s requirement that firearm enhancements are mandatory

and run consecutively.

Houston-Sconiers neither mentions nor imposes the additional procedural

protections Gregg requests. Although Houston-Sconiers does not cite Ramos or

discuss the burden of proof, we reject Gregg’s contention that this omission leaves

the issue open. We are bound by our Supreme Court’s holding in Ramos.26

In 2019, in State v. Gilbert, our Supreme Court further emphasized the

discretion provided to the court to consider youthfulness when sentencing

juveniles in adult court.27 Gilbert “concern[ed] the scope of discretion a judge has

in resentencing pursuant to RCW 10.95.035,” the “Miller-fix” statute.28 As to

Houston-Sconiers, the Gilbert court stated,

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

The United States and the Washington Supreme Court cases cited by

Gregg do not support his proposition that the court is required to presume

26 See Ramos,

(“Miller does not require that the State assume the burden of proving that a standard range sentence should be imposed, rather than placing the burden on the juvenile offender to prove an exceptional sentence is justified.”). 27

,

(2019).

2~

. 29 kI. at 175-76 (quoting Houston-Sconiers,

).

8 No. 77913-7-1/9

youthfulness and the State assumes the burden of overcoming this presumption.

In fact, with the exception of Ramos, none of these cases mention the additional

procedural protections requested by Gregg. And in Ramos, our Supreme Court

explicitly determined Miller and the Eighth Amendment do not require the

additional procedural protections at issue. Neither federal nor Washington Eighth

Amendment case law warrant deviating from the basic structure of the SRA, which

places the burden of proving the existence of substantial and compelling reasons

to support an exceptional sentence on the defendant.

Gregg also cites to several out-of-state cases. Similar to Ramos and

several of the cases discussed above, these out-of-state cases interpret Miller as

requiring a presumption against life without parole sentences for juvenile

offenders.3° As mentioned above, Gregg is not subject to a life without parole

sentence. And even if the out-of-state cases were analogous to these facts, we

cannot ignore the binding precedent from our Supreme Court in Ramos.

Gregg has not shown that the Eighth Amendment requires a presumption

that a juvenile’s youth is a mitigating factor or that the State assumes the burden

to prove otherwise beyond a reasonable doubt.

b. Article I, Section 14 of the Washington Constitution

Gregg also argues article I, section 14 of the Washington Constitution

independently requires his requested procedural protections.

30State v. Riley,

,

(2015); State v. Hart,

(Mo. 2013); Commonwealth v. Batts,

,

(2017); Davis v. State,

(Wyo. 2018).

9 No. 77913-7-Ul0

Our Supreme Court has “‘repeated[Iy] recogni[zed] that the Washington

State Constitution’s cruel punishment clause often provides greater protection than

the Eighth Amendment.”31 But “[e]ven where it is already established that the

Washington Constitution may provide enhanced protections on a general topic,

parties are still required to explain why enhanced protections are appropriate in

specific applications.”32

In Ramos, although the defendant was seeking similar procedural

protections, our Supreme Court declined to decide “whether article I, section 14 of

the Washington Constitution requires greater procedural protections than the

Eighth Amendment when a juvenile homicide offender faces life without parole”

because the defendant did not provide any explanation for why enhanced

protections were appropriate under the circumstances.33

Gregg relies on State v. Bassett from Division Two of this court to argue

enhanced protections are appropriate in these circumstances.34 In Bassett,

Division Two criticized the Miller analysis as “speculative” and ‘uncertain [in]

nature.”35 Expanding on this criticism, Gregg contends the Miller factors create a

risk that “the juvenile will not receive the possibility of mitigation and will be subject

31State v. Bassett, 1 92 Wn.2d at 78 (alterations in original) (quoting State v. Roberts,

,

(2000)). 32 Ramos, 182 Wn.2d at 454 (quoting State v. Pugh,

,

(2009)). ~

~

,

(2017). 35k1.at743.

10 No. 77913-7-I/Il

to the same mandatory ranges and enhancements applied to adults.”36 Gregg

argues the presumption and burden shift would mitigate the risk identified in

Bassett. But at most, Bassett’s critique of Miller could support more precise

youthfulness factors. Nothing in Bassett suggests the State should have the

burden of overcoming a presumption of youthfulness. And Gregg fails to provide

any compelling argument to support such an assertion.

Here, the trial court fully considered all of the youthfulness arguments

presented by Gregg.

Mr. Gregg is arguing his youthfulness is a mitigating factor justifying an exceptional sentence below the standard range. .

In deciding this issue, I have considered a number of factors, including but not limited to, whether Mr. Gregg’s youth, age 17, reduced his sense of responsibility. Did he understand the significance of his actions? Whether he was impetuous, unusually impulsive, had an increased susceptibility to others, including peer pressures, specifically that of Mr. Mullins. His truthfulness, or lack thereof, his level of maturity, and whether he had a genuine sense of remorse before, during, and after the murderJ371

Nothing in the record suggests the court misunderstood the full discretion it

had to consider Gregg’s youthfulness. And the court did not lean on the burden of

proof when it determined there were no “substantial and compelling reasons to

justify a sentence below the standard range.”38

And having looked at all of the evidence and listening carefully, taking more notes than I probably should have taken, but tons of

36Appellant’s Br. at 28. ~ Report of Proceedings (RP) (Dec. 14, 2017) at 675-77. 38k1.at688.

11 No. 77913-7-1/12

notes, I find that this is not about youthful disobedience as it relates to Mr. Gregg. This is not youthful impulsivity. Mr. Gregg knew the consequences of his actions.t39~

Gregg has not shown that article I, section 14 requires a presumption that a

juvenile’s youth is a mitigating factor or that the State assumes the burden to

prove otherwise beyond a reasonable doubt.

II. Plea Agreement

Gregg contends his plea is involuntary because he was affirmatively

misinformed that he would not be required to register as a felony firearm offender.

Gregg raises this issue for the first time on appeal.4° Because “{d]ue

process requires that a guilty plea be knowing, intelligent, and voluntary,”41

Gregg’s claimed error implicates a constitutional right. But to obtain review, Gregg

must still establish the error is manifest.42 To establish an error is manifest, the

~

40 See RAP 2.5(a)(3) (“The appellate court may refuse to review any claim

of error which was not raised in the trial court,” but a party may raise a “manifest error affecting a constitutional right” for the first time on appeal.). 41 In re Pers. Restraint of Stoudmire,

,

(2001) (citing U.S. CONST. amend. 14; Boykin v. Alabama,

,

,

(1969)). 42 We are not compelled to analyze this issue under ineffective assistance

of counsel, as suggested by the State. First, Gregg does not allege ineffective assistance of counsel. And second, Gregg was arguably misled by the court and the prosecutor, not defense counsel. We rely on the “manifest injustice” analysis rather than the prejudice prong from ineffective assistance of counsel.

12 No. 77913-7-1/13

defendant must show “‘the asserted error had practical and identifiable

consequences in the trial of the case.’”43

In addition to the constitutional requirements, CrR 4.2(f) governs criminal

pleas: “The court shall allow a defendant to withdraw the defendant’s plea of guilty

whenever it appears that the withdrawal is necessary to correct a manifest

injustice.”44 Prior to the acceptance of a guilty plea, a defendant “must be

informed of all the direct consequences of his plea.”45 “A direct consequence of

pleading guilty is one having a definite, immediate, and largely automatic effect on

the sentence.”46 On the other hand, “[c]onsequences that are not ‘automatically

imposed’ by the sentencing court, that do not ‘automatically enhance’ the

sentence, or that do ‘not alter the standard of punishment’ are collateral.”47 A

manifest injustice occurs if the defendant materially relied on affirmative

~ State v. Kirkman,

,

(2007) (internal quotation marks omitted) (quoting State v. WWJ Corp.,

,

(1999)). ~ (Emphasis added.) Although most cases addressing affirmative misinformation involve defense counsel, the duty to inform the defendant is not limited to defense counsel. We reject the State’s suggestion that an appellant must raise this issue under ineffective assistance of counsel. Gregg does not allege ineffective assistance of counsel. And Gregg was arguably misled by the court and the prosecutor, not defense counsel. We rely on the “manifest injustice” analysis rather than the prejudice prong from ineffective assistance of counsel. ~ A.N.J., 168 Wn.2d at 113-14 (quoting State v. Barton,

,

(1980)). 46 In re Pers. Restraint of Reise,

,

(2008). (quoting State v. Ward,

,

(1994)).

13 No. 77913-7-1/14

misinformation concerning a collateral consequence when deciding to plead

guilty.48

Here, the plea agreement included the following provision:

This offense is a felony firearm offense. and the judge may . .

impose a requirement that I register with the sheriff in the [c]ounty where I reside . .If this offense, or an offense committed in . .

conjunction with this offense . was committed against a child . .

under 18, or was a serious violent offense, the judge must impose this registration requirement.~49]

This provision was crossed out and signed by Gregg. At the plea hearing, the

State asked Gregg, “There are a number of paragraphs throughout this document

that have been crossed out and you have initialed. Do you understand that that

means that these paragraphs, they do not apply to you?”5° Gregg answered in the

affirmative. At sentencing, the court imposed a requirement that Gregg register as

a felony firearm offender.51

On this record, it is clear that Gregg was affirmatively misinformed about his

duty to register as a felony firearm offender. To determine whether registration is

a direct or collateral consequence, we turn to cases addressing the analogous sex

offender registration.

In State v. Ward, one of the defendants challenged the sex offender

registration statute, arguing he was not informed of the requirement in his plea

48

49CPat22. 50 RP (Aug. 18, 2017) at 15.

51 CP at 137.

14 No. 77913-7-1/15

agreement.52 The defendant was released from confinement before the

registration statute went into effect. Our Supreme Court considered whether there

was a constitutional duty to advise a defendant of the requirement to register as a

sexual offender at the time of his guilty plea.53 The court concluded there was no

duty because “[a]lthough the duty to register flows from [the defendant’s]

conviction for a felony sex offense, it does not enhance [the defendant’s] sentence

or punishment.”54 “Because registration as a sex offender does not alter the

standard of punishment, we hold the duty to register is a collateral, and not a

direct, consequence of a guilty plea.”55 Consistent with Ward, registration as a

felony firearm offender does not alter the standard of punishment. The duty to

register is a collateral, and not a direct, consequence of a guilty plea.

Gregg relies on A.N.J. to argue the question whether registration

requirements are direct or collateral consequences is unresolved.56 In A.N.J., the

defendant sought to withdraw his guilty plea “because, he contends, his counsel

misled him about the consequences of his plea.”57 Our Supreme Court

determined although the defendant was informed that he had an obligation to

52

,

(1994). 53kLat513. ~

k~. at 513-14. 56 Appellant’s Br. at 37 (citing A.N.J., 168 Wn.2d at 114).

57A.N.J., 168 Wn.2d at 114.

15 No. 77913-7-1/16

register as a sex offender, he was misinformed that his conviction could be

removed from his record.

In A.N.J., our Supreme Court acknowledged, “This court has never held

that a preexisting automatic statutory requirement of sex offender registration is

not a direct consequence of a plea, though we decided a related but different issue

in State v. Ward.”58 The court distinguished Ward on the basis that “Ward

considered a statutory consequence that came into existence only after the

conviction, not an existing, automatic statutory consequence.”59

But ultimately the court determined “since [the defendant in A.N.J.] was

correctly informed that he had an obligation to register as a sex offender, it is

unnecessary for us to decide whether a current statutory duty to register as a sex

offender is a direct consequence of a plea for the purposes of establishing whether

a plea was involuntarily made.”6° In these circumstances, Ward’s thoughtful

emphasis on whether the consequence enhances the sentence or punishment is

compelling. Registration as a felony firearm offender does not alter the standard

of punishment, even when automatically imposed. The felony firearm registration

requirement is a collateral consequence of pleading guilty.

Gregg contends “regardless of whether the registration requirement is

characterized as a ‘direct’ or ‘collateral consequence,’ the result is the same

58 Id. 59ki.at 115. 60 Id.

16 No. 77913-7-1/17

because [Gregg] was positively misinformed.”61 But affirmative misinformation

about a collateral consequence does not automatically render a guilty plea

involuntary. Affirmative misinformation about a collateral consequence may create

a manifest injustice “if the defendant materially relied on that misinformation when

deciding to plead guilty.”62

Gregg does not claim that the misinformation concerning the firearm

registration requirement materially influenced his decision to plead guilty. And the

record on appeal does not include any facts regarding how he arrived at his

decision to plead guilty. We conclude, on this record, this misinformation did not

render Gregg’s plea involuntary and does not constitute manifest constitutional

error.

Therefore, we affirm.

WE CONCUR:

__ •1 I

61 Appellant’s Br. at 37. 62 Reise,

.