IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON,
No. 77489-1-1
Appellant, c=3
DIVISION ONE >:71,
rn
v.
UNPUBLISHED OPINION
JAMES ALFRED GRAY, -0r•
• (Arid
=> •
Respondent. FILED: June 17, 2019 • rw3
• -1al
APPELWICK, J. — A court sentenced Gray to 335 months of confinement
upon multiple convictions in 2006. In 2017, Gray filed a CrR 7.8 motion to vacate
the judgment and sentence. He sought a new sentencing hearing, in view of
recent caselaw addressing the sentencing of youthful offenders. The trial court
denied Gray's motion. Gray appeals. We vacate the order denying Gray's
motion, convert the matter to a personal restraint petition, and dismiss the
untimely petition.
FACTS
In May 2006, James Gray pleaded guilty to robbery in the first degree with
a firearm, burglary in the first degree, and solicitation to commit murder in the first
degree. Gray was 20 years old when he committed the crimes. Both the
presentence investigation report and Gray's counsel recommended a sentence
at the low end of the standard range based, in part, on Gray's age and lack of
maturity. While awaiting sentencing, Gray attempted to bribe one of the victims
No. 77489-1-1/2
to urge the prosecutor not to pursue the charges. Upon learning of this conduct,
the State recommended a higher midrange sentence. In July 2006, the
sentencing court followed the State's recommendation and imposed midrange
sentences on each count, weighing Gray's "extreme youth" against the severity
of the conduct. The court also applied a 60 month firearm enhancement,
resulting in a total sentence of 335 months. Gray did not appeal.
More than 10 years later, in August 2017, Gray filed a CrR 7.8 motion to
vacate his judgment and sentence. Relying on the Washington State Supreme
Court's decision in State v. O'Dell, 183 Wn.2d 680, 697, 358 P.3d 359 (2015),
Gray argued that his sentence was unlawful because the sentencing court failed
to consider his relative youth as a possible mitigating factor. Gray further argued
that his motion was not time barred under RCW 10.73.090(1) because O'Dell is
material to his conviction and the decision represents a significant change in the
law that applies retroactively to his case. See RCW 10.73.100(6). The State
argued that the trial court should transfer Gray's motion to this court under CrR
7.8(c)(2).
The trial court denied the motion.1 In its order, the court concluded that
Gray "failed to demonstrate that the court did not take Gray's age into
consideration when imposing a standard range sentence."
1 In the same order, the court also denied Gray's motion to strike a
condition of community custody and motions for the appointment of counsel and
for transport. Gray does not appeal these rulings.
2
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DISCUSSION
As below, Gray relies on O'Dell to argue that the sentencing court in 2006
failed to meaningfully consider his age, because it lacked the benefit of the
evolving scientific understanding of adolescent brain development. Regardless
of the merits of his argument, after the trial court denied Gray's motion and after
Gray filed his opening brief in this appeal, the Supreme Court rendered its
decision in In re Personal Restraint of Light-Roth, 191 Wn.2d 328, 422 P.3d 444
(2018). In Light-Roth, the court held that O'Dell did not change the law. Light-
Roth, 191 Wn.2d at 338. Gray's motion is therefore, not exempt from the time
bar.
Under CrR 7.8(c)(2), the superior court "shall" transfer a CrR 7.8 motion to
this court unless it is timely and "the defendant has made a substantial showing
that he or she is entitled to relief" or "resolution of the motion will require a factual
hearing." A trial court may retain a CrR 7.8 motion only where it makes these
enumerated threshold determinations. State v. Smith, 144 Wn. App. 860, 863,
184 P.3d 666 (2008). Gray's untimely motion should have been transferred to
this court for consideration as a personal restraint petition.2 Accordingly, we
vacate the order denying Gray's motion, convert the matter to a personal
restraint petition, and dismiss the untimely petition.
2 Even if timely, the trial court was required to transfer Gray's motion in the
absence of a finding that Gray made a substantial showing that he was entitled to
relief or a finding that resolution of his motion would require a factual hearing.
The trial court here made no such findings and in fact, made a contrary finding
that Gray failed to demonstrate a basis for relief.
3
No. 77489-1-1/4
The petition is dismissed.
WE CONCUR:
Gtg......., V.
4