IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 86173-5-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
KIMOTHY MAURICE WYNN,
Appellant.
HAZELRIGG, A.C.J. — Nearly three decades ago, when he was 17 years old,
Kimothy Wynn was charged with unlawful delivery of a controlled substance. The
case was filed in adult court because, for purposes of our criminal statutes, RCW
13.40.020(16) defines “juvenile” in a manner that excludes those previously
prosecuted in adult court and Wynn had been prosecuted as an adult after the
superior court declined juvenile jurisdiction on a different charge less than a year
before the delivery charge. Wynn now challenges the constitutionality of RCW
13.40.020(16), asserting it conflicts with the holding set out by the United States
Supreme Court in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed.
2d 84 (1966). Because Kent is factually distinguishable, as determined years ago
by our state’s Supreme Court, it is not controlling here and Wynn’s challenge fails.
FACTS
Wynn was charged with assault in the first degree based on conduct that
occurred on October 14, 1993, when he was 16 years old. Although the record of
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that proceeding is not before this court, the parties agree that adult court exercised
jurisdiction over the case after juvenile jurisdiction was declined. 1 Wynn resolved
that case by way of a guilty plea to assault in the second degree in adult court and
was sentenced on February 8, 1994. 2
On December 9, 1994, when he was 17 years old, Wynn was charged with
unlawful delivery of a controlled substance, alleged to have occurred on August
24, 1994. Because the adult court had previously obtained jurisdiction in the
assault case, Wynn no longer met the statutory definition of “juvenile” and the adult
court automatically retained jurisdiction over the drug delivery case. The version
of the statute in effect at the time of the offense stated that a juvenile is “any
individual who is under the chronological age of eighteen years and who has not
been previously transferred to adult court pursuant to RCW 13.40.110.” Former
RCW 13.40.020(14) (1994) (emphasis added). 3
Wynn entered into a plea agreement with the State to resolve the delivery
charge whereby he entered a guilty plea in exchange for the prosecutor’s
recommendation of a 36-month prison sentence, community placement, and fines.
In his statement of defendant on plea of guilty, Wynn accepted the following facts
1 Irrespective of the parties’ consensus that a decline hearing must have been conducted,
the version of the Juvenile Justice Act, ch. 13.40 RCW, that was in effect when Wynn was charged
with assault in 1993 directed that, “[u]nless waived by the court, the parties, and their counsel, a
decline hearing shall be held where: . . . [t]he respondent is fifteen, sixteen, or seventeen years of
age and the information alleges a class A felony.” Former RCW 13.40.110(1)(a) (1990). At that
time Title 13 RCW did not contain any provisions that required automatic transfer based on the
particular circumstances alleged in that case.
2 The parties agree to the fact of the guilty plea. The criminal history in the J&S for the
subsequent delivery case lists a conviction for assault in the second degree with a date of violation
in late 1993 and sentencing date of February 8, 1994.
3 The pertinent provision at the time of Wynn’s offense was RCW 13.40.020(14), which
was subsequently modified and renumbered to provision (16). LAWS OF 2021, ch. 328, § 5.
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as true: “On Oct. 25, 1994, in Pierce County, WA, I delivered cocaine to someone
else. I know that it is illegal to deliver cocaine.” The guilty plea does not contain a
stipulation to the facts in the probable cause affidavit, but it does say that “[t]here
is a factual basis for the plea” and Wynn and his attorney both signed it. On
February 6, 1995, the trial court sentenced Wynn to 36 months in prison and
community placement consistent with the agreement of the parties. This sentence
was based, in part, on the criminal history set out in his judgment and sentence
(J&S), which consists of a 1992 juvenile conviction for “UPCS” and the 1994 adult
conviction for assault in the second degree.
In October 2022, Wynn filed a notice of appeal from the 1995 J&S in Division
Two of this court, followed roughly a month later by a memorandum in support of
the untimely notice of appeal. The State filed a response to Wynn’s motion on
November 21 and, on November 23, a commissioner of that division concluded
that the “State has not demonstrated that the [a]ppellant voluntarily waived his right
to [a]ppeal” and accepted the late notice of appeal for filing. On December 28,
2023, the case was transferred to this division. 4
ANALYSIS
Title 13 RCW provides the juvenile division of the superior court with the
authority to hear and decide particular juvenile matters. The Juvenile Justice Act
of 1977 is set out in ch. 13.40 RCW and grants juvenile courts the “exclusive
4 Prior to the transfer, on January 30, 2023, Wynn was granted an extension of time to file
his opening brief. He then filed additional motions to extend time to file on April 10 and May 16,
2023, which the Division Two commissioner granted. The State’s two requests for extensions of
time to file its response brief were also granted.
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original jurisdiction over all proceedings . . . [r]elating to juveniles alleged or found
to have committed offenses” unless one of the exceptions applies. RCW
13.04.030(1)(e). “[T]he legislature intended the adult criminal court to have
jurisdiction over a juvenile proceeding only by means of automatic decline based
on the nature of the crime or as the result of an actual decline hearing where the
juvenile court waives its own exclusive jurisdiction.” In re Pers. Restraint of
Dalluge, 152 Wn.2d 772, 781, 100 P.3d 279 (2004). The current definition of
“juvenile” under RCW 13.40.020(16) is
any individual who is under the chronological age of 18 years and
who has not been previously transferred to adult court pursuant to
RCW 13.40.110, unless the individual was convicted of a lesser
charge or acquitted of the charge for which [they were] previously
transferred pursuant to RCW 13.40.110 or who is not otherwise
under adult court jurisdiction. 5
It is this definition, which automatically removes certain youth accused of crimes
from the jurisdiction of juvenile court, that Wynn asserts is unconstitutional.
As a threshold matter, without acknowledging either the similarities or
differences resulting from amendments, Wynn expressly challenges the current
version of the statute, RCW 13.40.020(16), despite the fact that it is not the
provision of the law that was applied to his case in 1994. Well-established case
law limits our review to the pertinent statute in effect at the time of Wynn’s
conviction, which was former RCW 13.40.020(14). See, e.g., In re Pers. Restraint
of Canha, 189 Wn.2d 359, 372, 402 P.3d 266 (2017) (“[W]e apply the law existing
at the time of the conviction.”); State v. Delgado, 148 Wn.2d 723, 726, 63 P.3d 792
5 RCW 13.40.110 provides a list of situations where the adult court may exercise jurisdiction
over a juvenile, including a discretionary decline hearing and a mandatory decline hearing.
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(2003) (“[W]e look to the statute in effect at the time [the defendant] committed the
crimes.”); In re Pers. Restraint of Hartzell, 108 Wn. App. 934, 944, 33 P.3d 1096
(2001) (“The law in effect at the time a criminal offense is committed controls
disposition of the case.”). Given that the central language of the statute at issue
remained largely unchanged from the time when it operated to prevent Wynn’s
prosecution in juvenile court in 1994 to the present, the outcome of our analysis
will achieve Wynn’s stated goal. Compare former RCW 13.40.020(14) (1994)
(“. . . any individual who is under the chronological age of eighteen years and who
has not been previously transferred to adult court pursuant to RCW 13.40.110”),
with RCW 13.40.020(16) (“. . . any individual who is under the chronological age
of 18 years and who has not been previously transferred to adult court pursuant to
RCW 13.40.110”). However, consistent with our case law, we refer to the version
of the statute that applied to Wynn.
While never expressly acknowledging it as such or even setting out the
relevant standard of review, Wynn presents a facial challenge to the
constitutionality of the statute by arguing that its definition of “juvenile” improperly
removes an entire class of minors accused of crimes to adult court. A facial
challenge to the constitutionality of a statute avers that there are no circumstances
in which the statute can be administered constitutionally. State v. Fraser, 199
Wn.2d 465, 486, 509 P.3d 282 (2022). “The remedy for facial unconstitutionality
‘is to render the statute totally inoperative.’” Id. (quoting City of Redmond v. Moore,
151 Wn.2d 664, 669, 91 P.3d 875 (2004)). A statute is presumed to be
constitutional and the challenger must prove its invalidity beyond a reasonable
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doubt. Id. at 475. We review facial constitutional challenges de novo. State v.
Hunley, 175 Wn.2d 901, 908, 287 P.3d 584 (2012).
I. Statute Does Not Conflict with United States Supreme Court Authority
Wynn contends that the definition of “juvenile” in former RCW 13.40.020(14)
directly contradicts the holding in Kent that underage offenders must be afforded
specific due process protections before their case may be transferred to adult
court. Kent was arrested when he was 16 years old and subject to the exclusive
jurisdiction of the juvenile court under the District of Columbia Code. Kent, 383
U.S. at 543. At the time of arrest, he was still on probation for a previous offense
committed when he was 14. Id. After learning of the possibility that the juvenile
court could decline jurisdiction of the new case and remove it to adult court,
defense counsel arranged for Kent to undergo a psychological evaluation to
support a motion to oppose transfer. Id. at 545. The defense also moved to
request access to Kent’s social service file, which had been created by the juvenile
court. Id.
The juvenile court judge waived jurisdiction over Kent’s pending case
without a hearing, a statement of findings, or a reason for the waiver. Id. at 546.
The judge did not rule on Kent’s motions. Id. Nonetheless, the order stated the
judge had conducted a “full investigation” as required by the Juvenile Court Act. 6
Id. at 546-48. The United States Supreme Court granted certiorari to address
Kent’s due process challenges to the proceedings. Id. at 552. The Court
recognized that the statute conveys to the juvenile court a “substantial degree of
6 Former D.C. Code § 11-914 (1961).
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discretion as to the factual considerations to be evaluated, the weight to be given
them and the conclusion to be reached,” but that the statutory scheme “does not
confer upon the [j]uvenile [c]ourt a license for arbitrary procedure.” Id. at 553.
Because a transfer to adult court has “tremendous consequences,” it reasoned
there must be a hearing, effective assistance of counsel, and a statement of
reasons for the transfer. Id. at 554.
There are two critical and related distinctions between Wynn’s case and the
facts of Kent. The first is that Kent expressly addresses the “statutory rights of the
juvenile” under the D.C. code and explains that the “[j]uvenile [c]ourt is vested with
‘original and exclusive jurisdiction’ of the child.” Id. at 556. This is not the case in
Washington. See RCW 13.04.030(1)(e) (“Except as provided in this section, the
juvenile courts in this state shall have exclusive original jurisdiction over all
proceedings: . . . Relating to juveniles alleged or found to have committed offenses
. . . as provided in RCW 13.40.020 through 13.40.230.” (emphasis added)).
Second, a difference that naturally flows from the divergence in statutes at issue,
is that the direction of procedural steps outlined in Kent necessarily applies to
situations where juvenile jurisdiction is the starting point and the juvenile court has
discretion to decide whether or not to transfer jurisdiction to adult court, not where
there was never juvenile jurisdiction to begin with, as is the case under our
statutory framework. Again, Wynn is attacking the particular provision of the
statute that exempts certain youth from juvenile jurisdiction based on their previous
prosecution in adult court. Under the statutory scheme established by our
legislature, a juvenile court in Washington is not required, and in fact is unable to
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No. 86173-5-I/8
conduct a hearing or make a record of the reasons for transfer for juveniles with
previous adult prosecutions, as occurred in Kent, because there is no transfer of
jurisdiction; the statute expressly exempts this category of young defendants from
juvenile jurisdiction from the inception of their case. Because former RCW
13.40.020(14), as well as the current version, conveys no discretion to the juvenile
court, Kent is not controlling here.
Wynn’s counsel’s vehement assertion during oral argument before this
court that “[Kent] never says discretion”7 is simply inaccurate. The plain language
of that opinion clearly establishes that the question of whether the juvenile court
has discretion to decline jurisdiction was a pivotal factor in the Court’s reasoning.
The majority in Kent begins its analysis by explaining,
We agree with the Court of Appeals that the [D.C.] statute
contemplates that the Juvenile Court should have considerable
latitude within which to determine whether it should retain jurisdiction
over a child or—subject to the statutory delimitation—should waive
jurisdiction. But this latitude is not complete. . . . The [D.C.] statute
gives the Juvenile Court a substantial degree of discretion as to the
factual considerations to be evaluated, the weight to be given them
and the conclusion to be reached. It does not confer upon the
Juvenile Court a license for arbitrary procedure.
383 U.S. at 552-53 (emphasis added). The analysis focuses on determining the
scope of the discretion conferred to the juvenile court by the statute and the
manner by which it is exercised. The Court therefore also identifies the rights of
the juvenile during that process. Later in Kent, the Court considered an earlier
case arising out of the same D.C. Code provision which also addressed waiver of
7 Wash. Ct. of Appeals oral argument, State v. Wynn, No. 86173-5-I (Mar. 12, 2024), at 16
min., 43 sec., video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-2024031221/.
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original juvenile jurisdiction, noting “‘waiver can be ordered only after ‘full
investigation,’ and by guarding against action of the Juvenile Court beyond its
discretionary authority.’” Id. at 559 (quoting Watkins v. United States, 119 U.S.
App. D.C. 409, 413, 343 F.2d 278 (1964)). The majority then moves on to explain
what an appropriate exercise of this discretion requires in order to protect the rights
of the juvenile offender, but again frames it in terms of the relevant statute that
confers original jurisdiction over juveniles.
Meaningful review requires that the reviewing court should
review. It should not be remitted to assumptions. It must have before
it a statement of the reasons motivating the waiver [of original
juvenile jurisdiction under the D.C. Code] including, of course, a
statement of the relevant facts. It may not ‘assume’ that there are
adequate reasons, nor may it merely assume that ‘full investigation’
has been made. Accordingly, we hold it is incumbent upon the
Juvenile Court to accompany its waiver order with a statement of the
reasons or considerations therefor. We do not read the statute as
requiring that this statement must be formal or that it should
necessarily include conventional findings of fact. But the statement
should be sufficient to demonstrate that the statutory requirement of
‘full investigation’ has been met; and that the question has received
the careful consideration of the Juvenile Court; and it must set forth
the basis for the order with sufficient specificity to permit meaningful
review.
Id. at 561. Again, the plain language of Kent establishes that the Supreme Court
was considering the scope of due process protections afforded to juveniles
“suspected of serious offenses” within a statutory scheme that conferred both
original jurisdiction and discretion to waive or transfer that jurisdiction. Id. at 543.
Wynn challenges the statutory definition of “juvenile” set out in former RCW
13.40.020(14), and the current version, within our Juvenile Justice Act. That
section exempted him from the jurisdiction of the juvenile court such that it had no
discretion to exercise. Kent simply does not control here.
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More critically with regard to the procedural posture of this case, our state
Supreme Court has already engaged in a similar analysis of our distinct statutory
scheme in State v. Watkins, which is binding authority on this court and the trial
courts. 8 191 Wn.2d 530, 423 P.3d 830 (2018). In Watkins, our Supreme Court
concluded that automatic declination of jurisdiction pursuant to the Juvenile Justice
Act does not violate Kent. Id. at 533. Although the court in that case was asked
to determine whether the auto-decline procedure set out under a different section 9
of the chapter now challenged was constitutional, that statute involves a similar
operation of law regarding adult court jurisdiction over juveniles. Accordingly, we
may reasonably rely on the analysis provided by Watkins to guide our review in
the instant case.
The court in Watkins highlighted that the D.C. code at issue in Kent granted
the juvenile court jurisdiction over all juvenile proceedings, along with the discretion
to waive it for certain defendants. Id. at 540. In contrast, the Washington statute
requires automatic transfer in specific circumstances and a prerequisite hearing
within the framework of these statutory requirements would be “absurd” because
the juvenile court is precluded from presiding over the case from its inception. Id.
at 541. Based on the crucial difference between discretionary and automatic
declination, the court concluded that “Kent’s holding must be limited to
8 State v. Pedro, 148 Wn. App. 932, 950, 201 P.3d 398 (2009) (“A decision by the Supreme
Court is binding on all lower courts in the state. It is error for the Court of Appeals not to follow
directly controlling authority by the Supreme Court.” (citations omitted)).
9 Former RCW 13.04.030(1) (2009) provided exceptions to the juvenile court’s exclusive
jurisdiction and specifically directs the automatic decline to adult court for 16- and 17-year-old
individuals charged with specific offenses.
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circumstances where a juvenile court has statutory authority to hear a particular
case.” Id.
There is functionally no distinction between the statute under review in
Watkins and former RCW 13.40.020(14), which Wynn challenges here. When
asked at oral argument how an intermediate appellate court such as this one could
disregard controlling precedent of our state Supreme Court, Wynn’s counsel
repeatedly asserted, without citation to any other authority, that the supremacy
clause of the United States Constitution requires this court to overrule Watkins on
the basis of Kent 10 and consequently disregard the well-established hierarchy of
our state courts. In addition to being a gross oversimplification of the operation of
the supremacy clause, this assertion is, again, plainly incorrect. See, e.g., State
v. Jussila, 197 Wn. App. 908, 931, 392 P.3d 1108 (2017) (“We must follow
[Washington] Supreme Court precedence, regardless of any personal
disagreement with its premise or correctness.”); State v. Brown, 13 Wn. App. 2d
288, 291, 466 P.3d 244 (2020) (“[A] decision by the Washington Supreme Court is
binding on all lower courts of the state.”); State v. Gore, 101 Wn.2d 481, 487, 681
P.2d 227 (1984) (“[O]nce [the Washington Supreme Court] has decided an issue
of state law, that interpretation is binding on all lower courts until it is overruled by
[the Washington Supreme Court].”). We are bound by the controlling authority of
our Supreme Court in Watkins, the holding of which necessarily requires rejection
of Wynn’s challenge based on Kent.
10 Wash. Ct. of Appeals oral argument, supra, at 3 min., 54 sec.
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II. Definition of Juvenile in RCW 13.40.020 Does Not Violate Due Process
Wynn distinguishes his challenge to former RCW 13.40.020(14) under Kent
from his argument that the statute separately violates the due process protections
of the Fifth and Fourteenth Amendments to the United States Constitution, but
again fails to set out the legal test for such a challenge, much less apply it.
Consequential to this aspect of his argument, due process was expressly part of
the analysis in Watkins. There, our Supreme Court plainly held that “automatic
decline does not violate due process because juveniles do not have a
constitutional right to be tried in juvenile court.” Watkins, 191 Wn.2d at 533. That
holding is premised on a wealth of case law. See, e.g., State v. Salavea, 151
Wn.2d 133, 140, 86 P.3d 125 (2004) (“[T]he right to be tried in a juvenile court is
not constitutional and the right attaches only if a court is given statutory discretion
to assign juvenile or adult court jurisdiction.”); In re Pers. Restraint of Boot, 130
Wn.2d 553, 571, 925 P.2d 964 (1996) (“‘There is no constitutional right to be tried
in a juvenile court.’” (quoting State v. Dixon, 114 Wn.2d 857, 860, 792 P.2d 137
(1990))); State v. Maynard, 183 Wn.2d 253, 259, 351 P.3d 159 (2015) (“[A]
defendant has no constitutional right to be tried as a juvenile.”). The automatic
decline statute has the same practical effect as the definitional statute Wynn
challenges: by operation of the plain language set out by our legislature, certain
classes of juveniles are excluded from juvenile jurisdiction, either because of their
age and the nature of their charges, or because they were previously prosecuted
in adult court. Because of this functional similarity, and the nature of this challenge,
Watkins controls our analysis. We are bound by the holding in Watkins that a
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statute declining to extend juvenile jurisdiction in certain circumstances does not
violate due process because there is no right to be tried in juvenile court.
III. Failure To Establish Racial Disproportionality
Finally, Wynn avers that this court must take judicial notice of the racially
disproportional effects of former RCW 13.40.020(14), and the current version , on
youth who are Black, Indigenous, and People of Color (BIPOC). He references
previous judicial acknowledgment of racial bias against Black defendants in other
opinions and cites a single study conducted by the University of Washington
written over fifteen years after Wynn’s conviction that demonstrated that BIPOC
children are overrepresented in adult court. We certainly do not deny the
systematic racism embedded in our criminal legal system and the importance of
recognizing bias in the disproportionate outcomes among particular communities,
whether they result from over policing, charging decisions of individual
prosecutors, or other decisions within the courts. However, in order to address
these concerns in the context of statutory exclusion from juvenile jurisdiction based
on a prior prosecution in adult court, as Wynn is requesting, we must have a record
which includes comprehensive, robust, conclusive data contemporaneous to the
time the statute in question applied to the defendant through the present. That
data must make a sufficient connection between former RCW 13.40.020(14), and
the current version, and racially disproportionate outcomes of BIPOC children
appearing in adult court such that we are confident that the statute is facially
unconstitutional. Again, Wynn’s burden in presenting a facial challenge to a statute
is to demonstrate that there are no circumstances where it can be applied in a
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constitutional manner. Fraser, 199 Wn.2d at 486. In the context of a record devoid
of transcripts of any proceedings or facts to connect the claims to himself
specifically, the single sentence citation to a study conducted over 15 years after
his conviction that Wynn relies on to support his efforts to deem a statute
unconstitutional, is plainly insufficient to carry his burden on appeal with regard to
this aspect of his challenge.
Finding no error, we affirm.
WE CONCUR:
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State Of Washington, V. Kimothy Maurice Wynn
Combined Opinion