Personal Restraint Petition Of Matthew Dewayne Dubois

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint
of
MATTHEW DEWAYNE DUBOIS,
Petitioner.
No. 81182-7-I
DIVISION ONE
UNPUBLISHED OPINION
CHUN, J. — In 2011, Matthew DeWayne DuBois pleaded guilty to murder
in the second degree and unlawful possession of a firearm in the second degree.
He was 16 years old when he committed the crimes. The State and defense
jointly recommended the lowest standard range sentence of 165 months. The
sentencing court followed their recommendation.
As explained below, given State v. Houston-Sconiers, 188 Wn.2d 1, 391
P.3d 409 (2017), DuBois filed this personal restraint petition1 (PRP), challenging
his sentence and arguing the sentencing court erred by failing to consider the
mitigating qualities of his youth and to appreciate its discretion to impose an
exceptional sentence below the standard range given that consideration. For the
reasons discussed below, we grant DuBois’s PRP and remand for resentencing.
I. BACKGROUND
On the evening of December 31, 2009, 16-year-old DuBois, his girlfriend
Mikarah Sanders, and his brother’s girlfriend Carolyn Tolliver, were in DuBois’s
1 DuBois at first filed a motion for relief from judgment in the King County
Superior Court. The superior court transferred the motion to this court for consideration
as a PRP under CrR 7.8(c)(2).

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living room. DuBois pulled out his gun and said he wanted “to shoot [it] off at
midnight.”
Later that evening, DuBois and Sanders went into his bedroom, and
Tolliver stayed in the living room. Tolliver heard DuBois and Sanders argue
about comments an ex-boyfriend posted on Sanders’s MySpace2 page. DuBois
fatally shot Sanders in the head.
Tolliver heard the shot and then heard DuBois ask her to call 911. DuBois
told Tolliver that “she needed to say someone shot them,” and then he shot
himself in the shoulder. They told law enforcement that an armed man with a
blue bandana shot DuBois and Sanders. Tolliver later confessed that she lied
because she was afraid of DuBois and his brother.
The State charged DuBois with (1) murder in the second degree with
domestic violence and firearm allegations and (2) unlawful possession of a
firearm in the second degree. The charges triggered the automatic decline
statute, RCW 13.04.030, meaning DuBois proceeded as an adult in King County
Superior Court. Based on DuBois’s offender score, the standard sentencing
range for murder in the second degree was between 165 and 265 months.
The State and DuBois entered into a plea agreement. The agreement
provides, “The parties agree that neither party will seek an exceptional
sentence.” The State agreed to dismiss the domestic violence and firearm
allegations and to recommend 165 months in prison, the low end of the standard
range. DuBois pleaded guilty to murder in the second degree and unlawful
2 MySpace is a social networking website.

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possession of a firearm in the second degree and joined the State’s
recommendation of 165 months.
During the sentencing hearing, the court heard from various individuals:
Sanders’s great aunt Marisha Margette Chappel said, “I ask the Court that he get
what he needs. And I don’t mean just punishment, but this child needs
psychiatric help, and he needs to be rehabilitated so that he doesn’t repeat this
offense.” Sanders’s grandmother Mary Love-Shavers asked the sentencing
court to consider imposing the high end of the standard range because “[h]e shot
her in the face, and then he tried to cover up the incident,” “did not appear
concerned about her welfare,” and “had a criminal history.” Love-Shavers said
that DuBois “was a young man” and “his environment also contributed to his
delinquency.” Sanders’s mother Zakiya Sanders asked the court to impose an
exceptional sentence of 365 months because DuBois “shot her point blank with
no remorse.” While advocating for an exceptional sentence, Zakiya Sanders
alluded to DuBois’s childhood circumstances, youthfulness, and criminal history.
She said, “You were allowed to possess and store guns and ammos in your
home.” She said, “You lack the problem solving skills it takes to productively
deal with situations that a normal life brings.” She also said, “His normal thinking
is irrational. He doesn’t possess healthy, problem solving capabilities. His
emotions are out of control.” She said DuBois “was failing UAs[3] and not
attending school or counseling . . . [and] his criminal history was so repetitious.”
The State recommended the low end of the sentencing range because of
3 A "UA" is a urine analysis.

No. 81182-7-I/4
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the nature of the “admissible evidence that would be presented at trial.” But the
State also said, “[L]et us be clear, this wasn’t some innocent child who stumbled
upon a gun that was improvidently left around for somebody to pick up. You only
have to look at the defendant’s extensive criminal history.”
Defense counsel said DuBois accidentally shot Sanders. Counsel said
DuBois and Sanders “loved each other in their own way, both as children acting
as adults in a very conflicted and difficult community,” and both had disruptive
family experiences. Counsel also said,
In this case, young Matthew Dubois was a child who had the
tools of an adult without the ability to use them. He did not have the
abilities—as we know now, from all the studies that have been done,
his brain just doesn’t work the way a 25 or a 30-year-old man’s brain
would work.
He was still a 16-year-old boy. No matter how much he
strutted, no matter how much his friends and he wanted to act tough,
he was still a boy.
DuBois’s grandmother Pastor Gwen Johnson talked about rehabilitation
and said DuBois is “still a young man, and he needs a chance at life.” DuBois’s
mother Mozelle DuBois said,
I believe that my son should get the low end of the sentence,
because I know that he’s hurt a lot of people here, but I believe that
my son deserves a chance to give back what he took.
. . .
He can’t give back to Mikarah, but he can help others so that
this doesn’t happen to them.
About his attempt to cover-up the crime, she said, “[H]e was 16. He was scared.”
The sentencing court said, “I have no doubt that the recommendation that
has been made by both parties is based upon the evaluation of the evidence
and/or lack thereof. And it is for this reason that I am going to follow the agreed

No. 81182-7-I/5
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recommendation.” It imposed the joint recommendation of 165 months for
murder in the second degree and 12 months for unlawful possession of a firearm
in the second degree to run concurrently. The sentencing court dismissed the
deadly weapon and domestic violence allegations. It imposed 36 months of
community custody.
About six years later, in 2017, our Supreme Court decided Houston-
Sconiers, holding “[b]ecause ‘children are different’ under the Eighth
Amendment,[4]” “[t]rial courts must consider mitigating qualities of youth at
sentencing and must have discretion to impose any sentence below the
otherwise applicable SRA[5] range and/or sentence enhancements.” 188 Wn.2d
at 9, 21 (emphasis added). DuBois moved for relief from judgment,6 citing
Houston-Sconiers as a significant change in the law that provides a basis for
relief.
This court stayed consideration of DuBois’s motion until our Supreme
Court’s decision in Ali and its companion case, Domingo-Cornelio. In re Pers.
Restraint of Ali, 196 Wn.2d 220, 474 P.3d 507 (2020); In re Pers. Restraint of
Domingo-Cornelio, 196 Wn.2d 255, 262, 474 P.3d 524 (2020). In Ali and
4 U.S. CONST., amend. VIII.
5 Sentencing Reform Act of 1981, ch. 9.94A RCW
6 Before initiating this matter, DuBois moved for relief from judgment, citing this
court’s determination in Light-Roth that State v. O’Dell, 183 Wn.2d 680, 689, 358 P.3d
359 (2015), was a significant and material change in the law that provides a basis for
remanding for the sentencing court to consider his youthfulness. In re Pers. Restraint of
Light-Roth, 200 Wn. App. 149, 154, 401 P.3d 459 (2017), reversed, 191 Wn.2d 328, 422
P.3d 444 (2018). The State moved to transfer DuBois’s initial motion to this court as a
PRP. While Light-Roth was pending in our Supreme Court, the superior court
transferred DuBois’s motion as a PRP to this court. Our Supreme Court held in Light-
Roth that O’Dell was not a significant change in the law. 191 Wn.2d at 338. This court
then dismissed DuBois’s petition addressing Light-Roth.

No. 81182-7-I/6
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Domingo-Cornelio, our Supreme Court held that Houston-Sconiers is a
significant and material change in the law that requires retroactive application on
collateral review of “adult standard range sentences as well as mandatory
enhancements under the SRA imposed for crimes committed while the defendant
was a child.” Ali, 196 Wn.2d at 235.
We consider DuBois’s PRP given these decisions.
II. ANALYSIS
DuBois seeks resentencing, asserting the sentencing court failed to
consider the mitigating qualities of his youth and to appreciate its discretion to
impose an exceptional sentence given that consideration as required by
Houston-Sconiers. The State responds that DuBois’s petition is time-barred and
he fails to demonstrate actual and substantial prejudice. We grant DuBois’s PRP
and remand for resentencing in accordance with Houston-Sconiers.
Preliminarily, the State disagrees with the Supreme Court’s decisions in
Ali and Domingo-Cornelio and contends DuBois’s petition is time-barred under
RCW 10.73.090(1). But the State “recognizes that this Court is constrained to
follow the decisions in Domingo-Cornelio and Ali.” Those binding decisions hold
that Houston-Sconiers is a significant and material change in the law that applies
retroactively to DuBois’s sentence. Thus, his petition is not time-barred.
“A petitioner must demonstrate by a preponderance of the evidence that
[they were] actually and substantially prejudiced by the [claimed] constitutional
error in order to obtain relief on collateral review.” Ali, 196 Wn.2d at 242–43. “A
petitioner establishes actual and substantial prejudice when a sentencing court

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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.” Domingo-Cornelio, 196 Wn.2d at 267–
68; see also Ali, 196 Wn.2d at 241–42.
The State says this court should dismiss DuBois’s PRP because he fails
to demonstrate by a preponderance of the evidence that his sentence would
have been shorter if the sentencing court had the benefit of Houston-Sconiers.
The State’s argument hinges on In re Pers. Restraint of Meippen, which
provides,
[A]lthough there is a mere possibility that the trial court could have
departed from the SRA in light of Houston-Sconiers, mere
possibilities do not establish a prima facie showing of actual and
substantial prejudice. Meippen does not present any evidence that
the trial court would have imposed a lesser sentence if it had the
discretion to depart from the SRA standard sentencing ranges and
mandatory sentence enhancements.
193 Wn.2d 310, 317, 440 P.3d 978 (2019).
But Domingo-Cornelio, which the Supreme Court decided after Meippen,
holds:
[A]ctual 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. 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

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of that consideration.[7]
196 Wn.2d at 267–68 (emphasis added).8 To demonstrate actual and
substantial prejudice, DuBois must show that the sentencing court failed to
consider the mitigating qualities of youth or failed to appreciate its discretion to
impose any exceptional sentence given that consideration.
The State also says DuBois fails to show he would have requested an
exceptional sentence downward. But again, his burden was to demonstrate
actual and substantial prejudice through the sentencing court’s failure to consider
the dual mandates of Houston-Sconiers.
1. Mitigating Qualities of Youth
To comply with the Eighth Amendment and Houston-Sconiers, courts
sentencing juveniles as adults must consider
age and its “hallmark features,” such as the juvenile’s “immaturity,
impetuosity, and failure to appreciate risks and consequences.” It
must also consider factors like the nature of the juvenile’s
surrounding environment and family circumstances, the extent of the
juvenile’s participation in the crime, and “the way familial and peer
pressures may have affected [them].” And it must consider how
7 Despite announcing this rule, in the same opinion, after it determined there was
no evidence that the sentencing judge considered the mitigating qualities of youth or
recognized her discretion to impose an exceptional sentence, the court wrote, “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.” Id. at 268. But it did not say that whether a
lesser sentence is “more likely than not” is the standard for prejudice.
8 In Wortham, the court did not reach this issue because the State conceded that
“Ms. Wortham has demonstrated actual and substantial prejudice because the trial court
did not recognize its discretion to impose a sentence below the standard range.” In re
Pers. Restraint of Wortham, No. 37529-3-III, slip op. at 1 (Wash. Ct. App. Aug. 3, 2021)
(unpublished), https://www.courts.wa.gov/opinions/
pdf/375293_unp.pdf. See GR 14.1(c) (“Washington appellate courts should not, unless
necessary for a reasoned decision, cite or discuss unpublished opinions in their
opinions.”).

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youth impacted any legal defense, along with any factors suggesting
that the child might be successfully rehabilitated.
Houston-Sconiers, 188 Wn.2d at 23 (citations omitted) (quoting Miller v.
Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2468, 183 L. Ed. 407 (2012)).
In Domingo-Cornelio, the sentencing court said it considered the
presentence report and letters submitted in support of Domingo-Cornelio. 196
Wn.2d at 261, 267. But our Supreme Court saw “no evidence that the
sentencing judge considered any mitigating qualities of Domingo-Cornelio’s
youth”; instead, it saw only “that she was aware of his age at the time of the
crimes.” Id. at 268. It said, “The sentencing judge said nothing about whether
Domingo-Cornelio’s youth mitigated his culpability. But silence does not
constitute reasoning.” Id. (citing State v. Ramos, 187 Wn.2d 420, 444, 387 P.3d
650 (2017) (requiring sentencing courts “thoroughly explain [their] reasoning”
when sentencing juveniles to life without parole)).9
In Forcha-Williams, a panel of this court determined that the sentencing
court considered mitigating qualities of youth when that court stated on the
record that it “reviewed the presentence reports and recognized the similarity
between Forcha-Williams’s case and that of similarly situated youth,” and
acknowledged his tough past and prospects for rehabilitation. In re Pers.
Restraint of Forcha-Williams, 18 Wn. App. 2d 167, 183, 490 P.3d 255 (2021).
DuBois says there is no evidence that the sentencing court considered
any mitigating qualities of his youth. The State says, “The sentencing court was
9 See also State v. Morales, noted at 15 Wn. App. 2d 1038, 2020 WL 7040658, at
*2 (2020) (remanded for resentencing when the sentencing court did not discuss any
mitigating qualities of youth on the record). See GR 14.1(c).

No. 81182-7-I/10
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aware of the mitigating qualities of youth. However, the State contested
DuBois’[s] claims that youth mitigated his culpability for the offense.” As in
Domingo-Cornelio and unlike in Forcha-Williams, the sentencing court did not
make a record demonstrating it considered those statements. It said,
“Mr. Dubois has chose[n] to plead guilty. . . . I respect and I honor the hours and
hours that I know were spent in reaching this agreement.” The sentencing court
also said, “I have no doubt that the recommendation that has been made by both
parties is based upon the evaluation of the evidence and/or lack thereof. And it
is for this reason that I am going to follow the agreed recommendation.” It did not
mention DuBois’s age. The sentencing court did not make a record showing that
it considered any possible mitigating qualities of DuBois’s youth. Because
“silence does not constitute reasoning,” we cannot say that the sentencing court
considered any possible mitigating qualities of DuBois’s youth. See e.g.,
Domingo-Cornelio, 196 Wn.2d at 268 (“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.”).
2. Discretion
“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 guaranty of punishment proportionate to culpability.”
Id. at 266. To establish prejudice, DuBois must demonstrate that the sentencing
court did not appreciate its “absolute discretion to depart as far as they want

No. 81182-7-I/11
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below otherwise applicable SRA ranges and/or sentencing enhancements.”
Houston-Sconiers, 188 Wn.2d at 9; see also Domingo-Cornelio, 196 Wn.2d at
268 (same).
DuBois says the sentencing court failed to appreciate its full discretion.
During the sentencing hearing, counsel asked the court to “exercise your
discretion” by “following the recommendation of both counsel[s].” Counsel did
not suggest that the court had the discretion to deviate from the standard range.
And the court did not mention its discretion or mention it was considering any
sentence other than the joint recommendation.
Again, DuBois’s sentencing hearing predated Houston-Sconiers, Ali, and
Domingo-Cornelio. DuBois demonstrated actual and substantial prejudice by
showing the sentencing court did not express any consideration of the possible
mitigating qualities of his youth or of its appreciation of its discretion to impose an
exceptional sentence given that consideration.
We thus grant DuBois’s PRP and remand for resentencing.
WE CONCUR: