Category Archives: Eighth Amendment

Youth as Mitigating Factor

In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

State v. Keodara: Overbroad Search Warrant for Cell Phone

In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop.  Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia.  An officer submitted an affidavit in support of a search warrant for the contents of the cell phone. The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations.  Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Keodara was charged with Murder in the First Degree, three counts of Assault in the First Degree (each with a separate firearm enhancement), and Unlawful Possession of a Firearm in the First Degree. He was convicted on all counts and sentenced to 831 months of prison (69.25 years).

On appeal, Keodara argued that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, §7 of the Washington State Constitution. He also argued that his substantial prison sentence violated the Eighth Amendment.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

Cruel & Unusual Punishment?

In State v. Schmeling, the WA Court of Appeals Division II decided that Felony Possession of a Controlled Substance is constitutional as applied under the Eighth Amendment and under the Fourteenth Amendment’s due process clause even though the statute makes possession of very small amounts of a controlled substance a felony without knowledge of possession or intent to possess.

Here, as part of a theft investigation, law enforcement officers searched Richard Schmeling’s car and uncovered two small baggies that contained white residue. The residue was tested and turned out to be methamphetamine. The State charged Schmeling with Felony Possession of a Controlled Substance under RCW 69.50.4013. Schmeling’s first trial ended in a mistrial because of a hung jury. On retrial, the jury convicted Schmeling. He appealed his conviction on the argument that RCW 69.50.4013 violates the Eighth Amendment prohibition of cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process because it makes possession of drug residue a felony without requiring any culpable mental state.

The Court of appeals reasoned that Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The basic concept of the Eighth Amendment is that punishment for a crime must be proportionate to the offense. There are two types of Eighth Amendment analysis: (1) determining whether a sentence is disproportionate to the particular crime, and (2) using categorical rules to define constitutional standards for certain classes of crimes or offenders.

  1. WAS SCHMELING’S SENTENCE PROPORTIONATE TO HIS CRIME?

The Court gave historical background showing that many Eighth Amendment cases address whether a particular punishment is disproportionate to the crime. The Eighth Amendment does not require strict proportionality between crime and sentence and forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Most courts have shown a reluctance to review legislatively mandated sentences. As a result, successful challenges to the proportionality of sentences are exceedingly rare.

Here, Schmeling argues that classifying possession of small amounts of a controlled substance as a felony without a knowledge or intent constitutes cruel and unusual punishment. However, the Court of Appeals reasoned that the WA Supreme Court rejected a similar argument in State v. Smith. In that case, Smith was convicted of possession of more than 40 grams of marijuana, which was punished as a felony. He argued that the seriousness of the offense did not warrant classifying his crime as a felony. The court rejected Smith’s argument, noting that it was unaware of any authority supporting the proposition that classification alone could constitute cruel and unusual punishment. The court also held that Smith’s actual sentence was not grossly disproportionate to his offense. Consequently, under the traditional proportionality analysis, Smith controls. Therefore, classification of a crime as a felony despite the absence of a knowledge or intent requirement does not result in grossly disproportionate punishment.

2. WAS SCHMELING’S SENTENCE UNCONSTITUTIONAL GIVEN THE NATURE OF THE OFFENSE OR THE CHARACTERISTICS OF THE OFFENDER?

This analysis involves two steps. First, the reviewing court considers “objective indicia of society’s standards (categorical approach), as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Second, the reviewing court considers precedent and its own understanding and interpretation of the Eighth Amendment to determine in the exercise of its own independent judgment whether the punishment is unconstitutional.

The Court acknowledged that Schmeling wanted them to apply a categorical approach. However, the Court of Appeals declined to apply the categorical approach to punishment of adult drug offenders like Schmeling. It held that under State v. Smith, RCW 69.50.4013 does not violate the Eighth Amendment even though it punishes the possession of small amounts of controlled substances as a felony without imposing a knowledge or intent element.

3. DID SCHMELING’S SENTENCE VIOLATE DUE PROCESS?

In short, the Court held that RCW 69.50.4013 does NOT violate due process even though it makes possession of drug residue a crime without requiring any culpable mental state.

The court reasoned that Strict Liability Crimes – crimes with no knowledge or intent  requirement – do not necessarily violate due process. “We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”

The Court of Appeals further reasoned that WA’s Supreme Court repeatedly has stated that the legislature has the authority to create strict liability crimes that do not include a culpable mental state. Also, our Supreme Court twice has directly addressed in two other cases whether the elements of possession of a controlled substance under prior versions of RCW 69.50.4013 contains a knowledge or intent element. Those cases were State v. Bradshaw and State v. Cleppe. In both cases, the court held that the legislature deliberately omitted knowledge and intent as elements of the crime and that it would not imply the existence of those elements.

Here, Schmeling cites two cases from other jurisdictions holding that a strict liability offense violated due process. However, given our Supreme Court’s repeated approval of the legislature’s authority to adopt strict liability crimes, the Court found Schmelling’s arguments unpersuasive.

In sum, the Court of Appeals held that RCW 69.50.4013 does NOT violate due process even though it does not require the State to prove intent or knowledge to convict an offender of possession of a small amount of a controlled substance. It affirmed Schmeling’s conviction and sentence.