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FILE THIS OPINION WAS FILED

FOR RECORD AT 8 A.M. ON

IN CLERK’S OFFICE JULY 28, 2022 SUPREME COURT, STATE OF WASHINGTON

JULY 28, 2022

ERIN L. LENNON

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In re Personal Restraint Petition of

NO. 99748-9

ANDREW KENNEDY,

Petitioner. EN BANC

Filed: July 28, 2022

STEPHENS, J.—When Andrew Kennedy was 19 years old, he killed his

cousin’s 11-month-old daughter while she was in his care. Following a bench trial

in 2007, the court convicted Kennedy of homicide by abuse and sentenced him to

380 months in confinement. Kennedy’s judgment and sentence became final after

direct appeal in 2009. In 2019, he filed this personal restraint petition (PRP) seeking

to be resentenced based on “[n]ewly discovered evidence.” RCW 10.73.100(1).

Kennedy argues that advancements in the scientific understanding of adolescent

brain development for young adults since his 2007 sentencing would have probably

changed the trial court’s discretionary sentencing decision by allowing him to argue

for a mitigated sentence based on youthfulness. The Court of Appeals dismissed For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

Kennedy’s PRP as time barred, concluding that scientific evidence supporting such

an argument for young adults Kennedy’s age was available at the time of sentencing.

After we granted Kennedy’s motion for discretionary review, he raised a

second argument for relief based on the “significant change in the law” exemption

to the time bar. RCW 10.73.100(6). He asks us to conclude that the plurality opinion

in In re Pers. Restraint of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021),

constitutes a significant and retroactive change in the law that is material to his

sentence.

We affirm the Court of Appeals and hold that Kennedy’s PRP meets neither

exemption to the time bar. While the declaration of Dr. Laurence Steinberg attached

to Kennedy’s petition identifies recent research that arguably would have

strengthened Kennedy’s argument for a mitigated sentence based on youth, he could

have made his argument at the time of his sentencing and it does not meet the

standard for newly discovered evidence. See In re Pers. Restraint of Light-Roth,

191 Wn.2d 328, 334-38, 422 P.3d 444 (2018). Kennedy also fails to show that he is

entitled to relief based on Monschke’s lead opinion, which concluded that a sentence

of mandatory life without parole (LWOP) under RCW 10.95.030 for the crime of

aggravated first degree murder was unconstitutional as applied to 19- and 20-year-

old defendants. Because Kennedy was neither convicted of aggravated first degree

murder nor sentenced to mandatory LWOP, Kennedy does not show that any change

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In re Pers. Restraint of Kennedy, No. 99748-9

in the law reflected in Monschke is material to his sentence. We therefore dismiss

Kennedy’s PRP as time barred. RCW 10.73.090(1).

FACTS AND PROCEDURAL HISTORY

In June 2004, Kennedy became the primary caregiver of his cousin’s daughter,

K.S. K.S. was a 10 month-old infant, and Kennedy was her godfather. In the

approximately 2 months she was in his care, Kennedy repeatedly physically abused

K.S. Specifically, the trial court found that Kennedy intentionally caused K.S. to

stop breathing on multiple occasions; broke her left arm; hit her on her arm, causing

bruising; and inflicted multiple head injuries evidenced by subdural bleeding. Based

on the evidence, the trial court found that Kennedy “engaged in a pattern or practice

of physically abusing and/or torturing [K.S.]” in the 2 months she was in his care.

Resp’t’s Br., App. B (findings of facts (FF) XLVI) (Wash. Ct. App. No. 53360-0-II

(2019)).

On August 4, 2004, K.S. died from a head injury. Kennedy admitted this

occurred when he was alone with the child in his bedroom. Kennedy later confessed

to his wife and family that K.S.’s death had not been an accident, stating he had

“‘dark thoughts’” and “he knew he was going to hurt her when he took her into his

bedroom on the night of August 1, 2004.” Id. at FF XX-XXI. The trial court found

Kennedy killed K.S. when he “intentionally swung her head into a stationary object

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

with violent force.” Id. at FF XLIII. The trial court further found that Kennedy’s

killing of K.S. showed an “extreme indifference to the life of [K.S.].” Id. at FF XLV.

At the time of her death, K.S. was “362 days old, weighed 23 [pounds], and could

not walk.” Id. at FF XLVIII.

The State charged Kennedy with first degree murder and homicide by abuse,

and further charged three aggravating factors: (1) that Kennedy knew or should have

known K.S. was a particularly vulnerable victim, (2) that Kennedy used a position

of trust or confidence, and (3) that Kennedy showed an egregious lack of remorse.

State v. Kennedy, noted at 150 Wn. App. 1040, 2009 WL 1610171, at *1 (2009)

(citing RCW 9.94A.535(3)(b), (n), (q)). Kennedy waived his right to a jury and

proceeded to a bench trial. Id. at *1-2.

The trial court found him guilty of second degree murder and homicide by

abuse, later dismissing the second degree murder conviction due to double jeopardy

concerns. The court also found the evidence supported two of the aggravating

factors: (1) that Kennedy knew or should have known that K.S. was a particularly

vulnerable victim given that she was an infant and could not walk and (2) that

Kennedy abused a position of trust or confidence in committing the crime.

Kennedy’s standard sentencing range was 240 to 320 months, but the court

considered an exceptional upward sentence based on its findings on two of the

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In re Pers. Restraint of Kennedy, No. 99748-9

aggravating factors. The State recommended an exceptional sentence of 480

months. The prosecutor read a letter to the court from Kennedy’s ex-wife stating

that the severity of Kennedy’s abuse of K.S. intensified as it continued and that

Kennedy admitted abusing K.S. because he enjoyed it and “wanted to do it.” 17

Verbatim Report of Proceedings (VRP) at 1645. A number of Kennedy’s family

members spoke in favor of a lower sentence, claiming that Kennedy was innocent,

that he loved and cared for K.S., and that he never would have hurt her. In his

allocution, Kennedy described K.S. as “a light in my life” and stated, “I’ve never hit

anyone in my life and I will stand very firmly with my not guilty and I refuse to go

down without a fight for something I did not do.” 17 VRP at 1667.

Kennedy’s counsel argued that Kennedy’s youth supported a sentence at the

low end of the standard range. Although counsel did not argue for an exceptional

mitigated sentence, he spoke of the impact a long sentence would have on a young

person like Kennedy:

The other thing to think about with respect to sentencing, I

believe to a large degree is Mr. Kennedy’s age. At the time this

occurred, he is in his early twenties. He is still in the same ball park

and we look at the reasons for sentencing. . . .

....

The question then becomes is he going to get out sometime when

he is in his forties or is he going to be pushing sixty when he gets out.

And, I think it is important to think about the person that we are going

to be releasing from our correctional facility in the future, years from

now. If someone has to think and ponder and think about the condition

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In re Pers. Restraint of Kennedy, No. 99748-9

they are going to be in physically, mentally. What they are going to

have left in terms of friends and family that are still alive at the age of

sixty when you are still in your twenties that seems bleak. You are

picturing something that you really can’t even put your head around at

that age. And it can become—it can become disparaging . . . . And, it

is going to release someone out at that point without really anything

much to look forward to and not really any real reason to educate

themselves, to rehabilitate themselves, to do the things that they can do

while serving their time to improve themselves and step out and say, “I

still have half a life left. I still can make something of myself. I can be

a productive member of society. I can find a relationship and I can

move on with my life.

The penalty that he suffers is going to be significant whether he

serves twenty years or forty years but if he gets out after twenty years

of serving time, as he walks out of this courtroom, as he goes to Shelton,

as he is processed through, he sees a light at the end of the tunnel. There

is a reason for him to keep his hope alive, to keep his faith alive, to keep

everything that he has with respect to the church and his family intact,

maintain relationships and continue to be a healthy individual and try

to come out with some sense of ability to pick up pieces and take the

half of a life that he has left and make the right decisions to do the things

that he needs to do, to pay taxes, to be a productive member o[f] society

and presumably a member of his church again. And, I fear that a

sentence akin to what the prosecutor is asking for his going to strip him

of that, strip his family of that and when there is a release some years

from now, the consequences of that doubling of his sentence could be

so devastating to him at this point that it doesn’t allow him or anyone

else the opportunity to recover from that situation and move on. So on

behalf of Mr. Kennedy . . . , we are asking that the Court impose the

low end of the standard range which again is a significant amount of

time.

17 VRP at 1663, 1665-67. At the conclusion of the hearing, the court imposed an

exceptional upward sentence of 380 months of confinement.

Kennedy appealed, arguing primarily that his waiver of the right to a jury trial

was invalid because the trial court did not advise him he was waiving a jury on the

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In re Pers. Restraint of Kennedy, No. 99748-9

aggravating circumstances. The Court of Appeals rejected Kennedy’s arguments

and affirmed his judgment and sentence. Kennedy, 2009 WL 1610171 at *3. His

judgment and sentence became final in July 2009.

In 2018, Kennedy filed a CrR 7.8 motion seeking resentencing to consider the

mitigating qualities of youth in light of Division One’s opinion in In re Pers.

Restraint of Light-Roth, 200 Wn. App. 149, 401 P.3d 459 (2017). In that opinion,

the Court of Appeals concluded that State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359

(2015), was a significant and retroactive change in law that provided an exemption

to the one-year time bar under RCW 10.73.100(6). Light-Roth, 200 Wn. App. at

154-63. Kennedy’s motion was stayed after this court granted review in Light-Roth.

We later reversed Division One’s decision and concluded that O’Dell was not a

significant change in the law. Light-Roth, 191 Wn.2d at 330.

It appears the trial court never addressed or transferred Kennedy’s CrR 7.8

motion, though it was not withdrawn. Instead, in 2019, Kennedy filed this PRP

seeking a resentencing hearing to consider the mitigating qualities of youth. His

petition argues for an exemption from the one-year time bar based on newly

discovered evidence concerning the neurodevelopment of young adults that was not

available at the time of his sentencing. RCW 10.73.100(1). In support, Kennedy

attaches to his PRP his own declaration and a declaration from Dr. Laurence

Steinberg, a developmental psychologist specializing in adolescent brain

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In re Pers. Restraint of Kennedy, No. 99748-9

development. Dr. Steinberg’s declaration traces developments in the understanding

of neuroscience of juveniles, as relied on by the United States Supreme Court in

holding that adolescents in general have immature characteristics that can render

them less culpable and therefore less deserving of the most severe punishments. See,

e.g., Miller v. Alabama, 567 U.S. 460, 471-75, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012). Dr. Steinberg’s declaration identifies research recognizing that the immature

characteristics of adolescents can continue until age 21. For example, Dr. Steinberg

points to studies showing that juveniles as well as people in their early 20s

underestimate risks and negative consequences of their actions, focus more on

potential rewards of risky behavior, lack control of their impulses, are less able to

consider future consequences, respond worse in emotionally arousing situations, and

are more susceptible to peer pressure. Dr. Steinberg concludes that “[r]ecent

discoveries in psychological science and in brain science” make clear “that

neurobiological and psychological immaturity of the sort that the Supreme Court

references in its opinions on the diminished culpability of minors is also

characteristic of individuals in their late teens and early 20s.” PRP, Decl. of

Steinberg at 14 (Wash. Ct. App. No. 53360-0-II (2019)).

To explain how his own youthful characteristics impacted his crime,

Kennedy’s declaration characterizes his killing of K.S. as resulting from an

emotional response. He states he had trouble controlling his emotions when he was

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In re Pers. Restraint of Kennedy, No. 99748-9

younger: “Growing up, I had difficulty controlling my emotions. I was often anxious

and when stressed I would lose control.” PRP, Decl. of Kennedy (Wash. Ct. App.

No. 53360-0-II (2019)). Contrary to the evidence credited at trial that Kennedy

“knew he was going to hurt [K.S.] when he took her into his bedroom on the night

of August 1, 2004,” Resp’t’s Br., App. B (FF XX), his declaration states that he did

not act with intent, was not thinking, and “just acted like I was on some sort of

terrible and harmful auto-pilot.” PRP, Decl. of Kennedy (Wash. Ct. App. No.

53360-0-II (2019)). And Kennedy contends that he can better control his emotions

and consider the consequences of his actions now that he is older.

The Court of Appeals concluded that Kennedy’s proffered evidence did not

meet the requirements of the newly discovered evidence exemption in RCW

10.73.100(1), and it dismissed his PRP as time barred. In re Pers. Restraint of

Kennedy, 16 Wn. App. 2d 423, 480 P.3d 498 (2021). Notably, picking up on a quote

in Kennedy’s briefing, the court described the newly discovered evidence exception

as requiring a showing that new evidence “‘(1) will probably change the result of the

[sentencing], (2) was discovered since the [sentencing], (3) could not have been

discovered before [sentencing] by the exercise of due diligence, (4) is material, and

(5) is not merely cumulative or impeaching.’” Id. at 428-29 (alterations in original)

(quoting In re Pers. Restraint of Fero, 190 Wn.2d 1, 15, 409 P.3d 214 (2018)

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In re Pers. Restraint of Kennedy, No. 99748-9

(plurality opinion)). 1 The court concluded that Kennedy’s petition failed the third

factor because the argument about mitigating qualities of youth and the science

supporting such an argument for young adults was available when Kennedy was

sentenced in 2007. Id. at 429.

The Court of Appeals pointed to Dr. Steinberg’s declaration, which stated that

the research about the mitigating qualities of youth for late adolescents existed as

early as 2003. Id. at 429 (quoting PRP, Decl. of Steinberg at 6 (Wash. Ct. App. No.

53360-0-II (2019)). The court also referenced Kennedy’s previous CrR 7.8 motion

seeking resentencing based on Division One’s decision in Light-Roth, which

referenced studies and research available at the time of Kennedy’s 2007 sentencing.

Id. Last, the Court of Appeals emphasized this court’s recognition of youth as a

potentially mitigating factor in State v. Ha’mim, 132 Wn.2d 834, 846, 940 P.2d 633

(1997), and O’Dell, 183 Wn.2d 680. In O’Dell, we agreed with Ha’mim that youth

is not a per se mitigating factor, but we described that case as stating that youth can

be a mitigating factor if a young adult can show how their youthfulness impacted

1

While the Court of Appeals added brackets around “sentencing,” Kennedy’s PRP did not.

Instead, his PRP misquoted the newly discovered evidence standard as requiring evidence

that “‘“(1) will probably change the result of the sentencing; (2) was discovered since

sentencing . . .”’” without inserting brackets indicating that “sentencing” replaced “trial”

in his articulation of the standard. PRP at 3 (quoting In re Pers. Restraint of Brown, 143 Wn.2d 431, 453, 21 P.3d 687 (2001) (quoting State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981))). In his supplemental brief in this court, Kennedy’s counsel inserts

brackets. Pet’r’s Suppl. Br. at 13-14. And in his answer to amicus, he acknowledges the

earlier misquote and “regrets the error.” See Pet’r’s Answer to Amicus at 3 n.2.

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In re Pers. Restraint of Kennedy, No. 99748-9

their crime. O’Dell, 183 Wn.2d at 698. The Court of Appeals in Kennedy

highlighted that O’Dell cited research about the mitigating qualities of young adults

from 2004. Kennedy, 16 Wn. App. 2d at 430. All of this demonstrated that “the

research regarding neurodevelopment of late adolescents was available in 2007

when Kennedy was sentenced, although it has evolved over time.” Id.

Because Kennedy’s PRP presented evidence that could have been discovered

before sentencing, the court concluded that he could have argued for consideration

of youthfulness as a mitigating factor based on then available science. Id. It

therefore held that Kennedy failed to present new evidence that could not have been

discovered before trial by the exercise of due diligence, and it dismissed Kennedy’s

PRP as time barred. Id.

Kennedy moved for discretionary review of the Court of Appeals’ decision,

which we granted. In his supplemental briefing, Kennedy raised for the first time

another statutory basis for exempting his PRP from the one-year time bar.

Specifically, he argues that this court’s decision in Monschke is a significant and

retroactive change in the law that is material to his sentence. RCW 10.73.100(6).

After granting review, we accepted an amicus brief from Washington Association

of Prosecuting Attorneys (WAPA).

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In re Pers. Restraint of Kennedy, No. 99748-9

ANALYSIS

Society has a significant interest in the finality of criminal convictions. That

is why collateral attacks on convictions made through a PRP are allowed only in

“extraordinary” circumstances. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132,

267 P.3d 324 (2011). Given the importance of finality of judgments and sentences,

“[t]he bar facing a petitioner is high, and overcoming it is necessary before this court

will disturb a settled judgment.” Fero, 190 Wn.2d at 14-15. To gain relief through

a PRP, a petitioner must make a heightened showing of “actual and substantial

prejudice” for a constitutional error or “‘a complete miscarriage of justice’” for a

nonconstitutional error. Light-Roth, 191 Wn.2d at 333. (quoting In re Pers.

Restraint of Gronquist, 138 Wn. 2d 388, 396, 978 P. 2d 1083 (1999)).

A PRP must generally be filed within one year of the petitioner’s judgment

and sentence becoming final. RCW 10.73.090(1). Because Kennedy filed his PRP

more than a year after his judgment and sentence became final, his PRP is

procedurally barred unless his judgment and sentence is facially invalid or presents

solely grounds for relief that are exempt from the time bar under RCW 10.73.100.

Id. As noted, Kennedy argues his PRP is exempt under two statutory exemptions:

(1) “newly discovered evidence” consisting of advancements in adolescent

neuroscience that Kennedy contends would have changed the outcome of the

sentencing court’s discretion and (2) this court’s plurality decision in Monschke,

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In re Pers. Restraint of Kennedy, No. 99748-9

which Kennedy argues is a significant and retroactive change in law that is material

to his sentence. RCW 10.73.100(1), (6). Because Kennedy’s PRP does not meet

the requirements of either exemption, we affirm the Court of Appeals and hold that

Kennedy’s PRP is time barred.

I. Kennedy’s PRP Does Not Present Newly Discovered Evidence That

Would Have Probably Changed the Outcome

RCW 10.73.100(1) provides that a PRP is exempt from the one-year time bar

when it presents “[n]ewly discovered evidence, if the defendant acted with

reasonable diligence in discovering the evidence and filing the petition or motion.”

To meet the newly discovered evidence exemption, a petitioner must present

evidence that “(1) will probably change the result of the trial, (2) was discovered

since the trial, (3) could not have been discovered before trial by the exercise of due

diligence, (4) is material, and (5) is not merely cumulative or impeaching.” Fero,

190 Wn.2d at 15 (citing State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)).

Kennedy offers Dr. Steinberg’s declaration describing the evolving research

of adolescent brain development since Kennedy was sentenced as “newly discovered

evidence” that exempts his PRP from the time bar under RCW 10.73.100(1).2

2

Kennedy does not argue that his own declaration is newly discovered evidence for

purposes of exempting his PRP from the one-year time bar. Nor does he address how

this testimony should be considered in light of the trial court’s findings of fact as well as

his statements and those of his family members during his sentencing hearing.

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In re Pers. Restraint of Kennedy, No. 99748-9

Kennedy argues that the new research and studies outlined in Dr. Steinberg’s

declaration would have allowed him to argue for a mitigated sentence and probably

would have changed a judge’s discretionary sentencing decision.

We disagree and hold that Dr. Steinberg’s declaration does not qualify as

newly discovered evidence. At the time Kennedy was sentenced, courts including

this one, recognized that juvenile brain science supported arguments for leniency

based on the mitigating qualities of young adults. While the research and studies

supporting that argument for young adults Kennedy’s age are more complete today,

Kennedy fails to present “new” evidence within the meaning of the newly discovered

evidence exemption. Kennedy further fails to show how his proffered evidence

would probably change the result at trial, as it relates solely to the trial court’s

discretionary sentencing decision.

The newly discovered evidence exemption requires proof that the proffered

evidence “could not have been discovered before trial by the exercise of due

diligence.” Williams, 96 Wn.2d at 223. This proof is essential to showing something

“new,” rather than merely presenting additional evidence that further supports an

available argument. Kennedy fails to show that his proffered scientific evidence

supporting a mitigated sentence was unavailable at the time of his sentencing.

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It is undisputed that the mitigating qualities of youth support an argument for

an exceptional downward sentence for young adults as well as juveniles. In O’Dell,

this court considered whether a young adult defendant above the age of 18 could

argue that their youth warranted an exceptional mitigated sentence. 183 Wn.2d at 689. The State had argued that our precedent did not allow for consideration of

youth, but we rejected this argument and made clear that our previous decision in

Ha’mim, 132 Wn.2d 834, “held only that the trial court may not impose an

exceptional sentence automatically on the basis of youth, absent any evidence that

youth in fact diminished a defendant’s culpability.” Id. (emphasis added). Ha’mim

recognized that youth could relate to a youthful defendant’s “capacity to appreciate

the wrongfulness of his or her conduct, or to conform his or her conduct to the

requirements of the law,” RCW 9.94A.535(1)(e), but held that age alone is not a

mitigating factor because it “does not relate to the crime.” 132 Wn.2d at 847. Our

decision in O’Dell therefore disavowed Ha’mim to the extent that it could be read as

concluding that youth could never warrant an exceptional sentence. O’Dell, 183 Wn.2d at 694-95.

As highlighted by Kennedy in his briefing, a main part of O’Dell’s

characterization of Ha’mim had to do with advances in the understanding of

adolescent brain development explained in the United States Supreme Court’s cases

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

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In re Pers. Restraint of Kennedy, No. 99748-9

v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Miller, 567 U.S. 460. O’Dell, 183 Wn. 2d at 691-95. Although those cases all discussed the

mitigating qualities of youth for juvenile offenders, O’Dell explained their reasoning

rests on “psychological and neurological studies showing that the ‘“parts of the brain

involved in behavior control”’continue to develop well into a person’s 20s.” Id. at 691-92 (footnote omitted) (quoting Miller, 567 U.S. at 472 (quoting Graham, 560

U.S. at 68)). As an example of such studies, the court relied on an article from 2004

that found that “‘[t]he dorsal lateral prefrontal cortex, important for controlling

impulses, is among the latest brain regions to mature without reaching adult

dimensions until the early 20s.’” Id. at 692 n.5 (alteration in original) (quoting Jay

N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021

ANN. N.Y. ACAD. SCI. 77 (2004)). O’Dell also relied on Roper in which the United

States Supreme Court stated that “‘[t]he qualities that distinguish juveniles from

adults do not disappear when an individual turns 18 [just as] some under 18 have

already attained a level of maturity some adults will never reach.’” Id. at 695 (second

alteration in original) (quoting Roper, 543 U.S. at 574).

Given the advances in neuroscience as recognized by the United States

Supreme Court, this court concluded that youth may provide a basis for an

exceptional mitigated sentence for young adults as well as juveniles. Id. at 695-96.

We explained that the trial court abused its discretion by completely failing to

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In re Pers. Restraint of Kennedy, No. 99748-9

recognize its discretion to consider youth as a mitigating factor under Ha’mim. Id. at 697. Last, the court in O’Dell highlighted that a defendant need not present expert

testimony about the mitigating qualities of youth at sentencing, stating instead that

“lay testimony may be sufficient.” Id.

The availability of an argument for mitigating a young adult’s sentence based

on youthful characteristics was further explained in Light-Roth. In that case, this

court considered whether O’Dell was a significant retroactive change in the law that

was material to Light-Roth’s sentence, thereby exempting Light-Roth’s PRP from

the one-year time bar under RCW 10.73.100(6). Light-Roth, 191 Wn.2d at 330.

Analyzing whether O’Dell marked a significant change in the law for the purposes

of the exemption, the court stated that “[t]he pertinent inquiry here is whether our

decision in State v. Ha’mim, 132 Wn.2d 834, 940 P.2d 633 (1997), precluded Light-

Roth from raising or the trial court from considering Light-Roth’s youthfulness as a

mitigating factor to support an exceptional sentence downward.” Id. at 334. Based

on O’Dell, we determined that Ha’mim did not prevent a defendant from arguing

youth as a mitigating factor; instead, Ha’mim “held that the defendant must show

that his youthfulness relates to the commission of the crime.” Id. at 336. Thus, this

court recognized that trial courts have long had the discretion to impose an

exceptional mitigated sentence based on youth. Id. Because Light-Roth could have

argued that youth was a mitigating factor for his crimes under Ha’mim, this court

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In re Pers. Restraint of Kennedy, No. 99748-9

concluded that O’Dell was not a significant change in law to exempt Light-Roth’s

PRP from the one-year time bar. Id.3

The holding in Light-Roth is directly applicable to Kennedy’s case. Indeed,

Kennedy initially brought a CrR 7.8 motion for resentencing based on the Court of

Appeals opinion in Light-Roth, which had held that O’Dell announced a new rule

that applied retroactively. Resp’t’s Br., App. D. (Wash. Ct. App. No. 53360-0-II

(2019)). Dr. Steinberg’s declaration reviews the many studies and articles showing

that young adults can have the same mitigating qualities of youth as juveniles,

supporting an argument for finding them less criminally culpable and deserving of

lesser punishment than more mature adults. Significant research supported such an

argument at the time Kennedy was sentenced in 2007. O’Dell cited an article as

early as 2004 for that proposition, 183 Wn.2d at 692 n.5, and Roper in 2005

recognized that immature characteristics can continue beyond the age of 18. 543 U.S. at 574.

3

In a footnote, the court also explained that Roper could have provided a basis for Light-

Roth to seek a mitigated sentence. 191 Wn.2d at 338 n.3 (”Notably, in 2005, the United

States Supreme Court, in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), held that it was unconstitutional to impose the death penalty on individuals under

the age of 18. . . . Even assuming Ha’mim precluded Light-Roth from arguing youth as a

mitigating factor, which it did not, Light-Roth still could have raised the argument on

appeal by invoking Roper.”).

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

Kennedy points to other parts of the 2004 article indicating that the link

between the neuroscience of young adults and their behavior remained to be more

fully developed. But the same can be said of almost any scientific theory, and

Kennedy admits in his briefing and through Dr. Steinberg’s declaration that studies

were available at the time he was sentenced explaining that brains continue to mature

at least through age 19 and even into one’s early 20s. In fact, Dr. Steinberg’s

declaration shows that the research and relevant understanding about the

neurodevelopment of those above the age of 18 existed as early as 2003, which is 15

years before his declaration in aid of Kennedy’s PRP was filed in 2018. PRP, Decl.

of Steinberg at 6 (Wash. Ct. App. No. 53360-0-II (2019)) (“This contemporary view

of brain development as ongoing at least until age 21 stands in marked contrast to

the view held by scientists as recently as 15 years ago.”).

At sentencing, Kennedy’s counsel argued that his youth warranted a low end

standard range sentence. Although he did not ask for an exceptional mitigated

sentence on that basis nor frame his argument in terms of neuroscience, it cannot be

said that the argument Kennedy now seeks to make was unavailable to him in the

exercise of reasonable diligence. See RCW 10.73.100(1); Light-Roth, 191 Wn.2d at

334-38. Importantly, O’Dell holds that a defendant need not present expert

testimony setting out the scientific basis for recognizing similarities in the

neurodevelopment of juveniles and emerging adults in order to argue for a mitigated

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

sentence. 183 Wn.2d at 697. Lay testimony about Kennedy’s youthfulness—

including statements such as those made in his 2019 declaration—could have been

presented by Kennedy and considered by the sentencing court in 2007. Id. For this

reason, Kennedy fails to satisfy the “newly discovered evidence” test. RCW

10.73.100(1).

Furthermore, Kennedy does not establish that his proffered new evidence

would have changed the outcome in his case. The newly discovered evidence

exemption under RCW 10.73.100(1) requires the petitioner to show that the new

evidence would probably have changed the result at trial; such evidence typically

relates to a defendant’s guilt or innocence. See Williams, 96 Wn.2d at 223. But

Kennedy argues that the recent neuroscientific evidence outlined in Dr. Steinberg’s

declaration would have allowed him to make a stronger argument for a mitigated

sentence and, in that way, would probably have changed the court’s discretionary

sentencing decision. Kennedy recognizes that the newly discovered evidence

exemption has never been applied in this context, and the Court of Appeals decision

below appears to be the only case in which the standard for the newly discovered

evidence rule is stated as applying to new evidence that would likely change a

sentencing outcome. Kennedy, 16 Wn. App. 2d at 428-29. In its amicus brief,

WAPA urges this court to limit the newly discovered evidence exemption in RCW

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

10.73.100(1) to evidence of a defendant’s innocence that could have changed the

outcome at the guilt phase of a trial. Br. of Amicus Curiae WAPA at 7-21.

We believe sufficient guidance is found in RCW 10.73.100(1) and existing

precedent setting out the five factors for the newly discovered evidence exemption.

See Fero, 190 Wn.2d at 15. The statute follows earlier precedent that had allowed

for postjudgment collateral attacks based on new evidence that probably would have

changed the result of the trial. See, e.g., Libbee v. Handy, 163 Wash. 410, 418, 1 P.2d 312 (1931); State v. Adams, 181 Wash. 222, 229-30, 43 P.2d 1 (1935). Because

RCW 10.73.100(1) provides an exemption to the one-year time bar and allows for

an otherwise untimely showing of unlawful restraint, the newly discovered evidence

exemption is properly read in relation to the definitions of unlawful restraint in RAP

16.4. More specifically, the newly discovered evidence rule relates to RAP

16.4(c)(3), which provides that restraint is unlawful when “[m]aterial facts exist

which have not been previously presented and heard, which in the interest of justice

require vacation of the conviction, sentence, or other order entered in a criminal

proceeding or civil proceeding instituted by the state or local government.” And

RAP 16.4(d) references the exemptions in RCW 10.73.100, stating that a court can

grant relief in a PRP only when “such relief may be granted under RCW 10.73.090,

or .100.”

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

Given the intersection of these appellate rules and statutes, we decline

WAPA’s invitation to narrowly define the reach of the newly discovered evidence

exemption. Even if we apply the newly discovered evidence exemption to

sentencing proceedings, Kennedy has not made a sufficient showing that his

proffered new evidence would have changed the trial court’s discretionary

sentencing decision. As noted, evidence supporting Kennedy’s argument for a

mitigated sentence based on his youthful characteristics was available at the time of

sentencing, as confirmed by Dr. Steinberg’s declaration and the relevant precedent

at the time. It is entirely speculative whether the additional studies Kennedy points

to would have persuaded the trial court to impose a mitigated sentence below the

standard range, particularly in light of the aggravating circumstances the trial court

found. 4 Moreover, in light of the broad range of information that might support

4

While a trial court’s complete failure to consider an available mitigating factor such as

youthfulness is appealable and represents an abuse of discretion, O’Dell, 183 Wn.2d at 697-98, Kennedy does not argue that the sentencing court failed to recognize its

discretion to impose a mitigated sentence. See RCW 9.94A.535(1) (recognizing court’s

broad authority to impose a mitigated sentence). He instead contends that defense

counsel failed to ask the court to impose a mitigated sentence, arguing only for a sentence

at the bottom of the standard range in light of Kennedy’s youth. A standard range

sentence is generally unappealable, RCW 9.94A.585(1), and a trial court can consider a

wide range of information in setting that sentence. See ER 1101(c)(3) (exempting

sentencing from evidence rules). Nor does Kennedy argue that his proffered new

evidence provides a basis to challenge his exceptional sentence. See State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991); RCW 9.94A.585(4) (“To reverse a sentence

which is outside the standard sentence range, the reviewing court must find: (a) Either

that the reasons supplied by the sentencing court are not supported by the record which

was before the judge or that those reasons do not justify a sentence outside the standard

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

mitigation and could have been argued at sentencing, allowing an exemption from

the time bar on this basis would unjustifiably undermine the finality of criminal

convictions and sentences. See State v. Shove, 113 Wn.2d 83, 88, 776 P.2d 132

(1989) (“Final judgments in both criminal and civil cases may be vacated or altered

only in those limited circumstances where the interests of justice most urgently

require.”). We therefore reject Kennedy’s argument to exempt his PRP from the

one-year time bar based on the newly discovered evidence exemption in RCW

10.73.100(1).

We turn next to the new argument raised in Kennedy’s supplemental brief:

that this court’s decision in Monschke, 197 Wn.2d 305, provides a basis to exempt

his PRP from the time bar under RCW 10.73.100(6).

II. Kennedy’s Petition Is Not Exempt Based on RCW 10.73.100(6) Because

Monschke Is Not Material to His Sentence

Kennedy did not raise an argument based on RCW 10.73.100(6) until his

supplemental brief, so a preliminary question is whether the court should consider

it. Kennedy raised this argument in as timely a manner as possible, as the Monschke

decision that he contends entitles him to relief under 10.73.100(6) was issued after

Kennedy filed his PRP in the Court of Appeals. Therefore, while we often avoid

sentence range for that offense; or (b) that the sentence imposed was clearly excessive or

clearly too lenient.”).

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

reaching issues that were not raised below, we find it appropriate to address

Kennedy’s argument that Monschke exempts his PRP from the one-year time bar.

In order to show a significant and retroactive change in law that justifies

collateral relief, RCW 10.73.100(6) requires a petitioner to show “‘(1) a [significant]

change in the law (2) that is material and (3) that applies retroactively.’” Light-Roth,

191 Wn.2d at 333 (alteration in original) (quoting In re Pers. Restraint of Colbert,

186 Wn.2d 614, 619, 380 P.3d 504 (2016)). Because we can address these three

requirements in any order, id., our analysis will focus on the second requirement,

which is dispositive. For this court to grant relief, Monschke must be “determinative

of a material issue” at Kennedy’s sentencing. State v. Miller, 185 Wn.2d 111, 114,

371 P.3d 528 (2016). In other words, Monschke must have changed the law in a way

that entitles Kennedy to relief. It does not.

In Monschke, this court considered whether the sentencing statute for

aggravated first degree murder, RCW 10.95.030, was unconstitutional under the

Eighth Amendment or article I, section 14 as applied to 19- and 20-year-olds. 197 Wn.2d at 306-07; U.S. CONST. amend. VIII; WASH. CONST. art. I, § 14. There was

no majority opinion, and the court fractured on the threshold issue of which statutory

exemption in RCW 10.73.100 applied so that the petitioners’ otherwise untimely

claims could be considered. The lead opinion, authored by Justice Gordon

McCloud, garnered four votes for its conclusion that the petitions were exempt from

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

the one-year time bar because the “statute that the defendant was convicted of

violating was unconstitutional on its face or as applied to the defendant’s conduct.”

RCW 10.73.100(2). Reasoning that RCW 10.95.030 requires a defendant convicted

of aggravated first degree murder to receive an LWOP sentence, the lead opinion

concluded that the first degree aggravated murder sentencing statute was part of the

conviction itself. Monschke, 197 Wn.2d at 309-10. The lead opinion expressly

differentiated the aggravated murder sentencing statute from other sentencing

statutes: “[T]he petitioners challenge not a regular sentencing statute but the

aggravated murder statute. The aggravated murder statute is different from other

sentencing statutes—it requires the State to charge and the jury (or other trier of fact)

to find the defendant ‘guilty’ of that very same aggravated murder charge.” Id. at 310.

Chief Justice González’s concurring opinion disagreed with the lead opinion

on this analysis. Id. at 329 (González, C.J., concurring). The concurrence instead

agreed with the dissent’s reasoning that RCW 10.73.100(2) does not apply to

sentencing statutes. Id. at 334-36 (Owens, J., dissenting). Together, the concurrence

and the dissent make a total of five votes for the conclusion that RCW 10.73.100(2)

did not provide an exemption for the petitioners in Monschke. But unlike the dissent,

the concurrence would have found the petitions exempt under RCW 10.73.100(6)

on the separate ground that O’Dell was a retroactive and significant change in law

25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

material to the petitioner’s sentences. Id. at 329 (González, C.J., concurring). Chief

Justice González would have overruled Light-Roth to reach this holding. Id.

Kennedy relies on the reasoning of the lead opinion, which concluded that

imposing mandatory LWOP on young adults is unconstitutional under article I,

section 14 as applied to 19- and 20-year-olds because the mandatory nature of the

LWOP sentence under the statute “creates an unacceptable risk that youthful

defendants without fully developed brains will receive a cruel LWOP sentence.” Id. at 325. The lead opinion noted that neuroscience does not support any meaningful

difference between those who are 17 and those who are 18; therefore, drawing the

line at 18 for a mandatory LWOP sentence is arbitrary. Id. at 321-25. The lead

opinion was careful to note it was not concluding that LWOP is categorically barred

for young adults and was therefore not announcing a decision similar to State v.

Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018). Id. at 325-27. Instead, the lead opinion

primarily relied on the United States Supreme Court’s holdings that the Eighth

Amendment bars mandatory LWOP for juvenile homicide offenders where the

sentencing court lacks discretion to sentence juveniles with meaningful

consideration of the mitigating qualities of youth. Id. at 327-28 (citing Miller, 567

26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

U.S. at 483); see also Montgomery v. Louisiana, 577 U.S. 190, 206-12, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016).5

Even if Monschke’s lead opinion could be read as announcing a holding of

this court, Kennedy cannot show that such a holding is material to his sentence

because he was neither convicted of aggravated first degree murder under RCW

10.95.020 nor sentenced to mandatory LWOP under RCW 10.95.030. Instead,

Kennedy was convicted of and sentenced for homicide by abuse under RCW

9A.32.055, and the court imposed a term of years sentence of 380 months that was

not mandated by any sentencing statute. The Monschke lead opinion addressed only

sentences under RCW 10.95.030, stating that its conclusion “‘flow[ed]

straightforwardly from our precedents’” like Miller’s holding, and therefore related

specifically to the constitutional concerns about the mandatory nature of an LWOP

5

Kennedy also argues for an expansion of the reasoning of Monschke’s lead opinion by

relying on this court’s decision in State v. Houston-Sconiers, 188 Wn.2d 1, 8, 391 P.3d 409 (2017). He argues “that the requirements of Houston-Sconiers apply with equal

force to an 18-year-old” and that “the ‘children are different’ rule must be extended not

just to 18, but up until at least 21 years of age.” Pet’r’s Suppl. Br. at 17-18. But

Kennedy does not argue that Houston-Sconiers, which discusses the mitigating qualities

of youth only for juveniles being sentenced as adults, is a significant and retroactive

change in law that is material to his sentence under RCW 10.73.100(6). Nor could he

given that Kennedy was a young adult at time of the crime. To the extent Kennedy

suggests that Monschke announced a broad principle requiring the consideration of youth

at all sentences received by young adults under the Sentencing Reform Act of 1981, ch.

9.94A RCW, he identifies no reasoning in Monschke that extends its holding beyond the

context of mandatory LWOP sentences or any reasoning that extends Houston-Sconiers’s

holding.

27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

sentence. Monschke, 197 Wn.2d at 328 (quoting Miller, 567 U.S. at 483). The lead

opinion recognized that the mandatory nature of LWOP under RCW 10.95.030

makes that statute different from other sentencing statutes and thus subject to the

exemption in RCW 10.73.100(2). See id. at 310.

Kennedy’s sentence was not mandatory in any respect and is not akin to an

LWOP sentence. Under the applicable Sentencing Reform Act of 1981, ch. 9.94A

RCW, provisions, the sentencing judge exercised discretion without any prohibition

on going below the standard range for Kennedy’s crime. And he imposed an

exceptional upward sentence based on findings on two of three charged aggravating

factors. The complete lack of discretion that the lead opinion found rendered RCW

10.95.030 unconstitutional as to young adults is not present here; Kennedy was

sentenced under a “regular sentencing statute” that allows for discretion and does

not implicate the same concerns under the Eighth Amendment or article I, section

14. Id. at 310, 325-28. Stated differently, discretion such as the trial court exercised

in Kennedy’s case is the solution to the constitutional problem identified by the lead

opinion in Monschke. See Miller, 567 U.S. at 476-77, 483; Jones v. Mississippi, __

U.S. __, 141 S. Ct. 1307, 1313, 209 L. Ed. 2d 390 (2021) (emphasizing that under

Miller a “State’s discretionary sentencing system is both constitutionally necessary

and constitutionally sufficient.”). Accordingly, because Kennedy does not show

28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

how Monschke is material to his case, we hold that Kennedy’s PRP does not meet

the exemption to the one-year time bar in RCW 10.73.100(6).

CONCLUSION

We affirm the Court of Appeals and hold that Kennedy’s PRP is not exempt

from the one-year time bar under RCW 10.73.090(1). The declaration of Dr.

Steinberg does not meet the requirements of the newly discovered evidence

exemption. RCW 10.73.100(1). Nor does Kennedy demonstrate that this court’s

decision in Monschke constitutes a significant and retroactive change in law that is

material to his sentence. RCW 10.73.100(6). His PRP is therefore subject to the

general rule that a criminal judgment and sentence is final after one year, and it was

properly dismissed.

29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Kennedy, No. 99748-9

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WE CONCUR:

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