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FILE THIS OPINION WAS FILED

FOR RECORD AT 8 A.M. ON

IN CLERK’S OFFICE SEPTEMBER 17, 2020 SUPREME COURT, STATE OF WASHINGTON

SEPTEMBER 17, 2020

SUSAN L. CARLSON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal ) No. 97205-2

Restraint of: )

) EN BANC

ENDY DOMINGO-CORNELIO, )

) Filed :__________________

September 17, 2020

Petitioner. )

______________________________ )

MONTOYA-LEWIS, J.—“‘Children are different.’” State v. Houston-

Sconiers, 188 Wn.2d 1, 8, 391 P.3d 409 (2017) (quoting Miller v. Alabama, 567 U.S. 460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)). The differences between

children’s and adults’ culpability matter on a constitutional level in criminal

sentencing. State v. Ramos, 187 Wn.2d 420, 428, 387 P.3d 650 (2017). In Houston-

Sconiers, we held that the Eighth Amendment to the United States Constitution

requires courts to consider the mitigating circumstances of youth when sentencing

juveniles adjudicated as adults and must have absolute discretion to impose anything

less than the standard adult sentence based on youth. 188 Wn.2d at 19. In this case

and its companion case, In re Personal Restraint of Ali, No. 97205-2, slip op. (Wash.

Sept. 17, 2020), https:/www.courts.wa.gov/opinions/, we consider whether For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Domingo-Cornelio

No. 97205-2

Houston-Sconiers constitutes a significant and material change in the law that

requires retroactive application on collateral review. As in Ali, we hold that it does.

I. FACTS AND PROCEDURAL HISTORY

A. Factual Background

In 2014, Endy Domingo-Cornelio was convicted by a jury of one count of first

degree rape of a child and three counts of child molestation. The crimes took place

over a two-year span when Domingo-Cornelio was between 15-17 years old,1 but

because of delayed reporting, he was not investigated or charged until several years

later, when he was 20 years old. Domingo-Cornelio was convicted and sentenced as

an adult.

Under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, Domingo-

Cornelio faced a sentence between 240 and 318 months. At sentencing, the State

recommended the maximum adult standard range of 318 months, followed by 36

months of community custody. In its recommendation, the State acknowledged that

Domingo-Cornelio was under 18 at the time of the crimes to explain why an

indeterminate sentence would not apply and why it was seeking 36 months of

community custody instead of lifetime community custody.

1

The Court of Appeals erroneously indicated that Domingo-Cornelio was between 14-16

years old at the time of the offenses. In re Pers. Restraint of Domingo-Cornelio, No. 50818-4-II,

slip op. at 2 (Wash. Ct. App. Mar. 8, 2019) (unpublished), https://www.courts.wa.gov/opinions/

pdf/D2%2050818-4-II%20Unpublished%20Opinion.pdf. The offenses occurred between

November 2007 and November 2009, when Domingo-Cornelio was between 15-17 years old.

Clerk’s Papers at 1-2.

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Domingo-Cornelio’s defense counsel requested 240 months, the low end of

the standard range. Defense counsel also mentioned that Domingo-Cornelio was

under 18 at the time of the crimes but did not argue that there were any mitigating

factors due to his youth and did not request an exceptional sentence:

My client has a lot of family support, Your Honor. He was a

juvenile when these incidents took place. I would like the Court to

consider the fact that my client did not take the witness stand at this

trial. He sat through the trial. He heard what was testified to.

The standard range starts out at 20 years, Your Honor, 240

months. Now, I don’t know what benefit to either my client’s

psychological or psychosexual health or to society or to the victim and

their family it would do to give him more than the low end. 20 years,

Your Honor. He is barely 20 himself. 20 years is a very long time in

prison, and yes, the standard range goes above that quite a bit, but I

would ask the Court to consider that the victim seems to be progressing

through school right on time, on course. I believe she has been able to

move on with her life after these acts, and I am glad that she has, and I

hope that she has a decent—better than decent, a good life.

I think that society, in general, does not demand acts that a

teenager did, which weren’t reported for four or five years, should result

in more than 20 years in prison, and I’m asking that the Court consider

all of the facts here, the lack of information from the family of the

victim in the Presentence Investigation, and consider that Endy

Domingo[-]Cornelio will be in prison for a minimum for 240 months,

and that is long enough, Your Honor.

7 Verbatim Report of Proceedings (Sept. 25, 2014) (VRP) at 731-32. In addition to

the presentence investigation report mentioned in the excerpt above, the sentencing

judge considered several letters written in support of Domingo-Cornelio.

The court sentenced Domingo-Cornelio to the low end of 240 months of

incarceration and 36 months of community custody supervision upon release. The

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sentencing judge said that she had read the letters from friends and family and

imposed this sentence “considering all of the information before the Court,” but she

made no mention of Domingo-Cornelio’s youth in her ruling. 7 VRP at 733.

B. Procedural History

Domingo-Cornelio appealed unsuccessfully, and we denied discretionary

review on August 31, 2016. We decided Houston-Sconiers on March 2, 2017, after

Domingo-Cornelio’s judgment and sentence became final. Domingo-Cornelio filed

his personal restraint petition (PRP) in the Court of Appeals on August 30, 2017.

In his PRP, Domingo-Cornelio argued ineffective assistance of counsel and

significant changes in the law relating to juvenile sentencing. The Court of Appeals

retained the PRP for consideration on the merits but ultimately denied relief.

Domingo-Cornelio, No. 50818-4-II, slip op. at 1. Relevant here, the Court of

Appeals held that Houston-Sconiers did not constitute a significant change in the

law because it did not overturn a prior appellate decision that was determinative of

a material issue. Id. at 34. The court did not address materiality or retroactivity.

We granted review only on the issue of the applicability and effect of

Houston-Sconiers. We also set a companion case, Ali, slip op. at 6, for consideration.

II. ANALYSIS

Domingo-Cornelio filed his PRP within one year after his judgment and

sentence became final, so his PRP is timely. RCW 10.73.090. The court will grant

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In re Pers. Restraint of Domingo-Cornelio

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appropriate relief if his restraint is unlawful for one or more reasons specified under

RAP 16.4(c). RAP 16.4(a). Under RAP 16.4(c)(4), continued restraint is unlawful if

“[t]here has been a significant change in the law, whether substantive or procedural,

which is material to the . . . sentence, . . . and sufficient reasons exist to require

retroactive application of the changed legal standard.”

A. Unlawful Restraint

In Houston-Sconiers, we held that when sentencing juveniles in adult court,

“courts must consider mitigating qualities of youth” and “must have discretion to

impose any sentence below the otherwise applicable SRA range and/or sentence

enhancements.”2 188 Wn.2d at 21. Although there are several factual and procedural

differences between Domingo-Cornelio’s case and the companion case, Ali, we

conclude that Houston-Sconiers constitutes a significant change in the law material

to both cases and that it requires retroactive application. 3

1. Significant Change in the Law

Houston-Sconiers represents a significant change in the law. Ali, slip op. at

11-13. “‘One test to determine whether an [intervening case] represents a significant

2

We rely on the summary of Houston-Sconiers in the companion case, Ali, slip op. at 7-

10, for the animating principles of Houston-Sconiers.

3

Because the requirements for a significant, material, and retroactive change in the law

under RCW 10.73.100(6) are echoed in RAP 16.4(c)(4), we rely on our analysis of those

requirements in Ali, slip op. at 11-23. However, since Domingo-Cornelio’s petition is timely, he

does not need to meet the requirements of RCW 10.73.100(6) for us to consider his petition; he

needs only to establish that his restraint is unlawful under RAP 16.4(c).

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change in the law is whether the defendant could have argued this issue before

publication of the decision.’” State v. Miller, 185 Wn.2d 111, 115, 371 P.3d 528

(2016) (alteration in original) (internal quotation marks omitted) (quoting In re Pers.

Restraint of Lavery, 154 Wn.2d 249, 258-59, 111 P.3d 837 (2005)). 4 Here, even if

Domingo-Cornelio’s sentencing court had discretion to impose a lower sentence

prior to Houston-Sconiers, Domingo-Cornelio could not have argued that it must

consider his youth before imposing a standard range sentence. Domingo-Cornelio

could have, and did, argue for a low end standard range sentence based, in part, on

his youth. However, he could not have argued that the sentencing court must consider

mitigating factors relating to his youth in light of its absolute discretion to impose

any lesser sentence. Therefore, Houston-Sconiers constitutes a significant change in

the law. 5

4

See also In re Pers. Restraint of Greening, 141 Wn.2d 687, 697 & n.9, 9 P.3d 206 (2000)

(“While litigants have a duty to raise available arguments in a timely fashion and may later be

procedurally penalized for failing to do so, . . . they should not be faulted for having omitted

arguments that were essentially unavailable at the time.” “While the State correctly notes that

‘Washington case law is replete with examples of defendants challenging standing case law and

succeeding in reversing that law,’ we do not believe procedural restrictions should penalize

litigants who fail to do so.” (citation omitted)).

5

Unlike in Ali, State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999), would not have

applied to Domingo-Cornelio because he was not sentenced to any weapon enhancements.

However, Houston-Sconiers nevertheless meets the test for a significant change in the law under

the above test.

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2. Materiality

Houston-Sconiers is material to Domingo-Cornelio’s case. Domingo-

Cornelio was sentenced to a standard adult range under the SRA for crimes he

committed as a child, one of the types of sentences that required the consideration

of youth in Houston-Sconiers. 188 Wn.2d at 21. The sentencing court imposed a low

end standard adult sentence—which defense counsel characterized as the

“minimum” sentence—for crimes Domingo-Cornelio committed as a child. 7 VRP

at 732. Under Houston-Sconiers, the sentencing court had discretion to impose an

exceptional downward sentence and it was required to consider mitigating

circumstances of youth at sentencing, which it appears it did not do.

The State argues that Houston-Sconiers is a significant change in the law only

because it permits sentencing courts to depart from mandatory firearm enhancements

that would deny a juvenile offender meaningful opportunity for release in their

lifetime, and that the significant change is not material to Domingo-Cornelio because

he was not sentenced to any weapon enhancements and did not receive a de facto

life sentence. As we stated in Ali, slip op. at 13, this is wrong. We stated explicitly

in Houston-Sconiers that “[t]rial courts must consider the mitigating qualities of

youth at sentencing and must have discretion to impose any sentence below the

otherwise applicable SRA range and/or sentence enhancements.” 188 Wn.2d at 21

(emphasis added). In that case, the State recommended a sentence below the SRA

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range—zero months on the substantive crimes that otherwise would have carried

SRA ranges but the full time for mandatory weapon enhancements—which it

believed to be “just” but “technically illegal.” Id. We disagreed with the State’s and

sentencing judge’s belief that it was illegal to impose zero months for the substantive

crimes instead of a sentence within the SRA range and held that sentencing courts

must have discretion to impose any sentence below the otherwise applicable SRA

range in light of the mitigating circumstances of the defendant’s youth. Id. Thus, the

fact that the defendants in Houston-Sconiers were sentenced to time only for the

weapon enhancements does not mean that the case was limited to such

enhancements. We made clear that our holdings applied equally to any otherwise

applicable SRA range or enhancement. Id. 6

Domingo-Cornelio received the kind of sentence that implicates Houston-

Sconiers; thus, that case is material. The change in the law is material to adult

standard range sentences imposed for crimes the defendant committed as a child.

Prior to Houston-Sconiers, Domingo-Cornelio could not have argued that the court

was required to consider his youth at sentencing or that it had to consider whether

6

See also State v. Gilbert, 193 Wn.2d 169, 175-76, 438 P.3d 133 (2019) (“We held [in

Houston-Sconiers] that sentencing courts possess this discretion to consider downward sentences

for juvenile offenders regardless of any sentencing provision to the contrary. . . . Our opinion in

that case cannot be read as confined to the firearm enhancement statutes as it went so far as to

question any statute that acts to limit consideration of the mitigating factors of youth during

sentencing.”) (first emphasis added).

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his youth justified any exceptional sentence downward in light of its absolute

discretion.

3. Retroactivity

A new rule applies retroactively on collateral review only if it is a new

substantive rule of constitutional law or a watershed rule of criminal procedure. See

Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599 (2016)

(citing Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)).

As we held in Ali, “Houston-Sconiers applies retroactively because it announced (1)

a new rule (2) of constitutional magnitude (3) that is substantive.” Ali, slip op. at 15.

First, Houston-Sconiers announced a new rule, holding that the Eighth

Amendment requires sentencing courts to consider mitigating circumstances of

youth and to have absolute discretion to impose any sentence below the SRA range

or enhancements in order to protect juveniles who lack adult culpability from

disproportionate punishment. 188 Wn.2d at 19-21; Ali, slip op. at 15. The

requirement that sentencing courts must consider youth and must have discretion to

impose any exceptional sentence downward based on youth were not dictated by

existing precedent at the time Domingo-Cornelio’s sentence became final, so

Houston-Sconiers announced a new rule. Ali, slip op. at 15; In re Pers. Restraint of

Yung-Cheng Tsai, 183 Wn.2d 91, 104, 351 P.3d 138 (2015).

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Second, we decided Houston-Sconiers on constitutional grounds. 188 Wn.2d at 18-19; Ali, slip op. at 16. Houston-Sconiers followed a line of United States

Supreme Court cases holding “that the Eighth Amendment to the United States

Constitution compels us to recognize that children are different.” 188 Wn.2d at 18

(citing Miller, 567 U.S. at 480; Graham v. Florida, 560 U.S. 48, 68-70, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)); see also Ali, slip op. at 8, 16.

Third, Houston-Sconiers announced a substantive constitutional rule. Ali, slip

op. at 16-23. Substantive rules include “‘rules prohibiting a certain category of

punishment for a class of defendants because of their status or offense.’”

Montgomery, 136 S. Ct. at 729 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated on other grounds by Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)). Houston-

Sconiers identified a category of punishments that are beyond courts’ authority to

impose: adult standard SRA ranges and enhancements for juveniles who possess

such diminished culpability that those sentences would be disproportionate

punishment. Ali, slip op. at 17; Houston-Sconiers, 188 Wn.2d at 19-21. It also

established the mechanism necessary to effectuate that substantive rule. The Eighth

Amendment requires trial courts to exercise discretion to consider the mitigating

qualities of youth at sentencing in order to protect the substantive constitutional

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guaranty of punishment proportionate to culpability. Ali, slip op. at 17; Houston-

Sconiers, 188 Wn.2d at 19-20; see also Montgomery, 136 S. Ct. at 732-33.

Houston-Sconiers constitutes a significant change in the law that is material

to Domingo-Cornelio’s sentence and requires retroactive application. Ali, slip op. at

23. Domingo-Cornelio is entitled to resentencing if he demonstrates actual and

substantial prejudice and there are no other adequate remedies available. RAP 16.4.

B. Prejudice

A petitioner must demonstrate by a preponderance of the evidence that he was

actually and substantially prejudiced by the constitutional error in order to obtain

relief on collateral review. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72,

101 P.3d 1 (2004). In Houston-Sconiers, we explained that Miller requires discretion

to impose any sentence below the SRA range or enhancements based on youth, and

“provides the guidance on how to use it.” 188 Wn.2d at 23 (listing mitigating

circumstances of youth that courts must consider). Here, there is no evidence to

suggest that the sentencing court considered any mitigating circumstances relating

to Domingo-Cornelio’s youth. Instead, the only relevant information presented to

the sentencing court was Domingo-Cornelio’s age at the time of the crimes.

Moreover, defense counsel erroneously characterized the low end of the adult

standard range as the “minimum” sentence for Domingo-Cornelio. 7 VRP at 732.

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In Ali, we found that the petitioner had established actual and substantial

prejudice by a preponderance of the evidence when the sentencing court was

presented with significant evidence of mitigating circumstances of the petitioner’s

youth, defense counsel requested an exceptional sentence based on youth, and the

court imposed the low end of the SRA range, believing it lacked discretion to impose

anything less. Ali, slip op. at 25-26. There, the evidence of prejudice was

overwhelming. However, actual and substantial prejudice is not limited to

circumstances where defense counsel makes an argument that is not legally available

and the sentencing judge explicitly states that they would deviate from the SRA on

that basis if they could.

We do not expect lawyers to make every conceivable argument on the

possibility that it may someday be recognized as a basis for an exceptional sentence.7

Nor do we expect sentencing judges to always signal in their oral rulings that they

would exercise more discretion if they felt they had the authority to do so. Instead,

a petitioner establishes actual and substantial prejudice when a sentencing court fails

to consider mitigating factors relating to the youthfulness of a juvenile tried as an

adult and/or does not appreciate its discretion to impose any exceptional sentence in

light of that consideration.

7

See Greening, 141 Wn.2d at 697 & n.9 (litigants should not be penalized for failing to

raise unavailable arguments).

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Unless the court meaningfully considers youth and knows it has absolute

discretion to impose a lower sentence, we cannot be certain that an adult standard

range was imposed appropriately on a juvenile under Houston-Sconiers. Here, there

is no evidence that the sentencing judge considered any mitigating qualities of

Domingo-Cornelio’s youth or that she knew she had discretion to impose an

exceptional sentence based on youth, just that she was aware of his age at the time

of the crimes. Domingo-Cornelio’s counsel did not argue any mitigating factors

relating to youthfulness or request an exceptional sentence. The sentencing judge

said nothing about whether Domingo-Cornelio’s youth mitigated his culpability. But

silence does not constitute reasoning. See Ramos, 187 Wn.2d at 444 (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). That Domingo-Cornelio’s

sentencing judge imposed the lowest standard range sentence when the State

recommended the high end sentence is evidence that the judge was willing to

consider mitigating factors that justify a lower sentence. More likely than not,

Domingo-Cornelio would have received a lesser sentence had the court complied

with the dual mandates of Houston-Sconiers.

Domingo-Cornelio has met his burden to establish prejudice. He has

established that his sentencing did not comply with Houston-Sconiers and that more

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likely than not, he would have received a lesser sentence if it had. Domingo-Cornelio

is entitled to relief by this PRP because his restraint is unlawful, he has been actually

and substantially prejudiced, and the State does not dispute that the other remedies

are inadequate under the circumstances.8

III. CONCLUSION

Houston-Sconiers announced a significant change in the law, which is

material to Domingo-Cornelio’s sentence and requires retroactive application.

Domingo-Cornelio was actually and substantially prejudiced by the sentencing

court’s failure to meaningfully consider youth and to appreciate its absolute

discretion to impose a sentence below the adult SRA range for crimes he committed

as a child. Domingo-Cornelio’s PRP is granted, and we order resentencing consistent

with Houston-Sconiers.

8

The court “will only grant relief by a [PRP] if other remedies which may be available to

the petitioner are inadequate under the circumstances.” RAP 16.4(d). Unlike in Ali, the State does

not contend that the Miller-fix statute, RCW 9.94A.730, could provide adequate relief to Domingo-

Cornelio. That statute would permit Domingo-Cornelio to petition for early release after he serves

20 years—the full term of the sentence he originally received in violation of Houston-Sconiers—

which is no relief at all.

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WE CONCUR:

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