In re Pers. Restraint of Frazier

FILE

THIS OPINION WAS FILED

FOR RECORD AT 8 A.M. ON

OCTOBER 31, 2024

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON

OCTOBER 31, 2024 ACTING SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal )

Restraint of ) No. 102295-6

)

CHARLES SCOTT FRAZIER, ) En Banc

)

Petitioner. ) Filed: October 31, 2024

_______________________________)

YU, J. — This case asks whether the “newly discovered evidence”

exemption from the one-year time limit for collateral attacks, RCW 10.73.100(1),

can apply “to new evidence that would likely change a sentencing outcome.” In re

Pers. Restraint of Kennedy, 200 Wn.2d 1, 19, 513 P.3d 769 (2022). We recently

indicated that the answer is yes. Id. at 19-20; In re Pers. Restraint of Davis, 200

Wn.2d 75, 85, 514 P.3d 653 (2022). Today, we reaffirm our prior analysis and

expressly hold that the newly discovered evidence exemption can apply to

sentencing evidence in appropriate cases.

Nevertheless, RCW 10.73.100(1) imposes a stringent test, as it must,

“[g]iven the importance of finality of judgments and sentences.” Kennedy, 200

In re Pers. Restraint of Frazier, No. 102295-6

Wn.2d at 12. A petitioner seeking to overcome the one-year time limit based on

newly discovered evidence faces a high burden. In this case, petitioner Charles

Scott Frazier cannot meet his burden on the record presented.

Frazier was convicted of committing murder and arson against his father at

the age of 18. He was given a 50-year exceptional sentence in 1989. Nearly 30

years later, Frazier sought resentencing, pointing to “new scientific tools [that

have] led to a fundamental shift in the understanding of teenagers’ behavioral

control and capacity for change.” Pet’r’s Suppl. Br. at 1. Based on modern

“empirical evidence documenting adolescent neurological development,” Frazier

argues that his personal restraint petition (PRP) is exempt from the 1-year time

limit pursuant to RCW 10.73.100(1). Id. at 13.

We recognize that the newly discovered evidence exemption can apply to

sentencing evidence, including new scientific developments and advances in social

scientific research that have become generally accepted in the legal community.

However, for purposes of RCW 10.73.100(1), it is not sufficient for a petitioner to

merely identify a change in scientific understanding that has occurred since the

time of their sentencing. The petitioner must also show they “acted with

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

and they must satisfy “the five factors for the newly discovered evidence

exemption” as set forth in our “existing precedent.” RCW 10.73.100(1); Kennedy,

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200 Wn.2d at 19 (citing In re Pers. Restraint of Fero, 190 Wn.2d 1, 15, 409 P.3d

214 (2018) (plurality opinion)). 1 Frazier cannot do so on the record presented

here.

First, Frazier has not met his statutory burden to show reasonable diligence.

Modern scientific studies on adolescent neurodevelopment were certainly not

available when Frazier was sentenced in 1989. However, such studies were cited

as persuasive authority by the United States Supreme Court as early as 2005, and

this court has expressly relied on the same studies since 2015. See Roper v.

Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); State v.

O’Dell, 183 Wn.2d 680, 691-92, 358 P.3d 359 (2015). Yet, Frazier did not file his

collateral attack until 2018. Although Frazier points to personal and institutional

barriers he faced, he does not describe any reasonably diligent efforts he made to

overcome those barriers, discover the new scientific studies, and file his PRP, as

required by the plain language of RCW 10.73.100(1).

In addition, Frazier does not satisfy the five-factor test for newly discovered

evidence because, on the record presented, he cannot show that modern studies on

adolescent neurodevelopment would probably change the result of his sentencing.

1

“To prevail on a claim of newly discovered evidence, a personal restraint petitioner

must show 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.

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Frazier correctly points out that when he was sentenced in 1989, the sentencing

court erroneously treated his youth as an “aggravating factor.” Br. of Pet’r (Wash.

Ct. App. No. 52078-8-II (2023)) (COA Br. of Pet’r), App. at 56. However, the

only aggravators explicitly connected to Frazier’s youth were reversed on direct

appeal; they are not the basis for his exceptional sentence.

Instead of his youth, Frazier’s exceptional sentence is based on the

sentencing court’s findings of cruelty and abuse of trust. These findings are well

supported by the record, which shows that Frazier poured gasoline on his 65-year-

old father, set him on fire, and trapped him in a basement room to prevent him

from escaping or seeking help. Frazier argues that “[h]is young age was the

underlying reason the court construed his actions as more deliberate and cruel,” but

there is no sentencing transcript or other evidence in the record to support this

view. Pet’r’s Suppl. Br. at 29. Therefore, on the record presented, Frazier cannot

show that new studies on adolescent brain development would probably result in a

different sentence.

Thus, Frazier does not satisfy RCW 10.73.100(1). We affirm the Court of

Appeals’ dismissal of his PRP as time barred.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Frazier’s convictions, sentencing, and direct appeal

According to the Department of Corrections’ presentence and intake report,

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Frazier and his adoptive father “had a confrontation” in November 1986, about

one week after Frazier turned 18. COA Br. of Pet’r, App. at 36. His father “had

threatened to kick Charles Frazier out of the family residence due to his inability to

follow the house rules.” Id.

Four days later, there was a fire in the basement of the family home, where

Frazier’s father, “approximately 65 years of age, was found deceased on the bed.”

Id. There were two gasoline cans next to the bed, and Frazier reportedly “boasted”

to multiple people “that he had killed his father by burning him with gasoline.” Id.

Frazier’s version of the offense was “that his father chose to commit suicide by

fire” and that his statements about killing his father with gasoline “were not the

truth.” Id. at 37.

Following a jury trial in 1989, Frazier was convicted of first degree murder

and first degree arson. The presentence investigation report recommended a

sentence at the top of the standard range, but did “not address the issue of an

exceptional sentence.” Id. at 39. However, the State requested an exceptional

sentence above the standard range, alleging two aggravating circumstances:

(1) that Frazier “violated a position of trust” because his father had taken Frazier

“back into the home after having been released from juvenile facilities . . . only a

few weeks prior,” and (2) that Frazier “showed extreme cruelty” in light of

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evidence showing that after Frazier’s father was set on fire, he “attempted to exit

the room but was unable to do so,” and ultimately suffered a “particularly long and

excruciatingly painful” death. Br. of Resp’t (Wash. Ct. App. No. 52078-8-II

(2023)), App. C at 13.

Frazier initially opposed the State’s request for an exceptional sentence, and

he was granted a continuance to prepare for sentencing. However, there is no

indication that he filed a written sentencing brief or any other written opposition to

the State’s sentencing recommendation. There is also no transcript of the

sentencing hearing in the record presented. The sentencing court imposed an

exceptional sentence of 600 months (50 years), approximately 15 years above the

top of the standard range.

In its written findings of fact and conclusions of law, the sentencing court

found four aggravating circumstances justifying the exceptional sentence. Two of

these were the aggravators alleged by the State: “deliberate cruelty” and

“violat[ing] a position of trust.” COA Br. of Pet’r, App. at 56-57.

The other two aggravators both pertained to “‘future dangerousness,’” which

at the time was “‘recognized as an aggravating circumstance justifying an

exceptional sentence.’” Id. at 73 (quoting State v. Wood, 57 Wn. App. 792, 801,

790 P.2d 220 (1990)). First, the sentencing court found that Frazier was “a danger

to the community” because of his “ability to commit such a violent act at such a

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young age,” explicitly treating Frazier’s age as “an aggravating factor to be

considered.” Id. at 56 (emphasis added). Second, the sentencing court found that

despite “prior contact with the juvenile and adult systems,” Frazier had not been

“amenable to change,” and he continued to assert “that he did not commit the

crime,” making him “highly dangerous to himself and to others.” Id. at 57.

On direct appeal, Frazier argued that his sentence “was unjustified and

clearly excessive.” Id. at 68; see former RCW 9.94A.210(4) (1986). In an

unpublished opinion noted at 60 Wn. App. 1066 (1991), the Court of Appeals

rejected the sentencing court’s “determination of future dangerousness” because its

findings were “insufficient to support” consideration of this factor. COA Br. of

Pet’r, App. at 74. Nevertheless, the Court of Appeals affirmed Frazier’s

exceptional sentence, holding that the sentencing court “properly considered”

deliberate cruelty and abuse of trust, and that “[t]he shocking cruelty and

callousness demonstrated by [Frazier] in the commission of these crimes alone

support the sentence.” Id. at 73-75. Frazier did not seek further review, and his

judgment and sentence became final when the mandate issued in June 1991. See

RCW 10.73.090(3)(b).

B. Frazier’s current PRP

In 2018, Frazier filed a CrR 7.8 motion for resentencing, citing our 2015

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opinion in O’Dell, 183 Wn.2d 680.2 Ord. Transferring Def.’s Mot. as a Pers.

Restraint Pet., State v. Frazier, No. 88-1-00470-4, Attach. at 2 (Kitsap County

Super. Ct. June 21, 2018). In accordance with CrR 7.8(c)(2), the superior court

transferred the motion to the Court of Appeals for consideration as a PRP, and

counsel was subsequently appointed to represent Frazier.

Frazier’s PRP was stayed at the Court of Appeals pending this court’s

opinions in Kennedy, 200 Wn.2d 1, and Davis, 200 Wn.2d 75. After the stay was

lifted, Frazier’s counsel filed a supplemental brief asserting three exemptions

from the one-year time limit for collateral attacks: (1) “substantial, material

changes in the law,” (2) that “his judgment and sentence is facially invalid,” and

(3) “newly discovered evidence.” COA Br. of Pet’r at 10-11 (citing RCW

10.73.100(6), .090(1), .100(1)). The State filed a responsive brief opposing

resentencing, and the Court of Appeals dismissed Frazier’s PRP as time barred

pursuant to RAP 16.11(b). Ord. Dismissing Pet., In re Pers. Restraint of Frazier,

No. 52078-8-II, at 1 (Wash. Ct. App. July 20, 2023).

2

This appears to be Frazier’s fourth collateral attack. He filed two PRPs in 2004, both of

which were dismissed. Nos. 31510-6-II, 31707-9-II (Wash. Ct. App.). He also filed a PRP in

2018 based on O’Dell, which the Court of Appeals dismissed as time barred. Ord. Granting Mot.

to Suppl. Pet., Lifting Stay, Den. Mot. for Appointment of Counsel & Den. Pet., In re Pers.

Restraint of Frazier, No. 52028-1-II (Wash. Ct. App. Sept. 10, 2018) (citing In re Pers. Restraint

of Light-Roth, 191 Wn.2d 328, 422 P.3d 444 (2018)).

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We granted Frazier’s motion for discretionary review “only on the issue of

newly discovered evidence.” Ord. Granting Rev. (Feb. 8, 2024). Two amici briefs

supporting Frazier were filed, one from the Fred T. Korematsu Center for Law and

Equality and the American Civil Liberties Union of Washington (Korematsu Ctr.

& ACLU), and the other from the Redemption Project of Washington.

ISSUES

A. Does RCW 10.73.100(1), the newly discovered evidence exemption

to the one-year time limit for collateral attacks, apply to evidence that is relevant

only to sentencing?

B. If the newly discovered evidence exemption can apply to sentencing

evidence, does Frazier meet his burden of showing that the exemption applies in

this case?

ANALYSIS

Frazier does not challenge his convictions for murder and arson. He

challenges only his 50-year exceptional sentence, citing “[n]ewly discovered

evidence about teenagers’ brain development.” Pet’r’s Suppl. Br. at 9 (boldface

omitted). However, in the State’s view, it is impossible to seek resentencing

pursuant to RCW 10.73.100(1) because this exemption applies only to “trial facts,”

that is, evidence pertaining to the defendant’s guilt or innocence. Suppl. Br. of

Resp’t at 7 (boldface omitted). Thus, the primary issue presented in this case is a

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narrow, threshold question of law: Is the newly discovered evidence exemption in

RCW 10.73.100(1) limited to evidence pertaining to guilt?

In Kennedy, we unanimously and explicitly “decline[d]” to limit the newly

discovered evidence exemption in this way. 200 Wn.2d at 19-20; see also Davis,

200 Wn.2d at 85 (“assuming, as in Kennedy, that the newly discovered evidence

test applies to sentencing proceedings”). Nevertheless, the State argues that we

should reject Kennedy’s analysis on this point as “dicta.” Suppl. Br. of Resp’t at

10. We decline to do so. Regardless of whether Kennedy’s analysis is dicta, it is

fully supported by principles of statutory interpretation and substantial persuasive

precedent. Therefore, we take this opportunity to expressly hold that the newly

discovered evidence exemption in RCW 10.73.100(1) applies to sentencing

evidence.

Nevertheless, the newly discovered evidence test is very difficult to meet,

particularly in the context of “a judge’s discretionary sentencing decision.”

Kennedy, 200 Wn.2d at 14. In this case, Frazier does not meet his statutory burden

to show that he “acted with reasonable diligence” and, on the minimal record

presented, he cannot show that new scientific evidence on adolescent

neurodevelopment “will probably change the result” of his exceptional sentence.

RCW 10.73.100(1); Fero, 190 Wn.2d at 15. Therefore, the newly discovered

evidence exemption does not apply and Frazier’s PRP is time barred.

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A. The newly discovered evidence exemption can apply to sentencing evidence

in appropriate cases

Ultimately, the question of whether RCW 10.73.100(1) applies to sentencing

evidence is a question of statutory interpretation. This court’s goal in matters of

statutory interpretation is “‘to determine and give effect to the intent of the

legislature.’” State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013) (quoting

State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)). To determine

legislative intent, the court looks at the “the plain language enacted by the

legislature, considering the text of the provision in question, the context of the

statute in which the provision is found, related provisions, and the statutory scheme

as a whole.” Id. (citing Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d

1, 9-10, 43 P.3d 4 (2002)).

As noted above, we have addressed this issue before. In Kennedy, an amicus

brief “urge[d] this court to limit the newly discovered evidence exemption in RCW

10.73.100(1) to evidence of a defendant’s innocence.” 200 Wn.2d at 19. In

rejecting this argument, Kennedy properly interpreted the newly discovered

evidence exemption in accordance with well-established principles of statutory

interpretation. Today, we reaffirm Kennedy’s analysis and expressly hold that

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RCW 10.73.100(1), the newly discovered evidence exemption, applies to

sentencing evidence.

1. Kennedy correctly recognized the legislature’s intent in accordance

with the plain language of the relevant statutes and court rules

The task of interpreting RCW 10.73.100(1) begins with its plain language:

“The time limit specified in RCW 10.73.090 does not apply to a petition or motion

that is based solely on . . . [n]ewly discovered evidence, if the defendant acted with

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

In contrast to the other exemptions listed in RCW 10.73.100, the newly discovered

evidence exemption does not specify whether it applies to convictions, sentences,

or both. See RCW 10.73.100(2)-(7).3 Therefore, to discern the legislature’s intent,

Kennedy appropriately considered the statute in its broader legal context,

concluding that “the newly discovered evidence exemption is properly read in

relation to the definitions of unlawful restraint in RAP 16.4.” 200 Wn.2d at 19.

Today, we reaffirm Kennedy’s approach.

RAP 16.4 provides the grounds on which an appellate court may grant relief

in a PRP. Relief may be granted only if the petitioner is “under a ‘restraint’ . . .

and the petitioner’s restraint is unlawful.” RAP 16.4(a). A person who is

3

As discussed further below, RCW 10.73.100 was amended in 2024 to add a new

exemption for “[a] motion for a modification of conditions of community custody pursuant to

RCW 9.94A.703 and 9.94A.709.” LAWS OF 2024, ch. 118, § 8(6). The language of the newly

discovered evidence exemption was not affected.

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incarcerated pursuant to a criminal judgment and sentence is certainly under a

“restraint,” and there are various reasons such a restraint may be “unlawful.” Id.

§ (b). Relevant to this case, a restraint is unlawful where “‘[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.’” Id. § (c)(3)

(emphasis added). In addition, RAP 16.4(d) explicitly incorporates the statutory

time limit, providing that relief may be granted on a PRP only “if such relief may

be granted under RCW 10.73.090, or .100.”

“Given the intersection of these appellate rules and statutes,” Kennedy

appropriately determined that “the newly discovered evidence exemption is

properly read in relation to” RAP 16.4(c)(3), which explicitly applies to sentences.

200 Wn.2d at 19. Moreover, though courts must faithfully apply “common law

and statutory requirements that protect society’s interest in the finality of

judgments,” the State’s restrictive interpretation of RCW 10.73.100(1) is

unnecessary to accomplish that purpose. In re Pers. Restraint of Garcia-Mendoza,

196 Wn.2d 836, 846, 479 P.3d 674 (2021). To the contrary, as Kennedy observed,

principles of finality are well protected by the stringent newly discovered evidence

test, for which “sufficient guidance is found in RCW 10.73.100(1) and existing

precedent setting out the five factors for the newly discovered evidence

exemption.” 200 Wn.2d at 19.

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Nevertheless, the State argues that Kennedy misinterpreted RCW

10.73.100(1) and that we should now reject Kennedy’s analysis as nonbinding

dicta. We decline to do so. Indeed, far from undermining Kennedy’s analysis, the

State’s arguments in this case reinforce the conclusion that, dicta or not, Kennedy’s

interpretation of RCW 10.73.100(1) was correct.

2. Kennedy correctly interpreted RCW 10.73.100(1) as a matter of first

impression in the context of sentencing evidence

The State’s primary criticism of Kennedy is that “no Washington court has

held that this [newly discovered evidence] exception applies to sentencing.”

Suppl. Br. of Resp’t at 7. This is certainly true; Kennedy expressly acknowledged

“that the newly discovered evidence exemption has never been applied in this

context.” 200 Wn.2d at 19. As a result, Kennedy approached the issue as a matter

of first impression, conducted a careful statutory analysis, as discussed above, and

declined to categorically exclude sentencing evidence from the newly discovered

evidence exemption. Id. at 19-20.

In the present case, as noted by amicus, “the State does not cite any cases

where the ‘newly discovered evidence’ test was held inapplicable to sentencing.”

Amicus Br. of Redemption Project of Wash. at 6 (emphasis added). Thus, the

State does not ask us to reject Kennedy based on contrary precedent that we

overlooked; the State cites no contrary precedent. Instead, the State argues that we

should reject Kennedy because that opinion approached the application of RCW

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10.73.100(1) to sentencing as a matter of first impression. According to the State,

there are no matters of first impression in this context because the scope of the

newly discovered evidence exemption was definitively “‘settled,’” for all purposes

and in all contexts, “by 1935,” over 50 years before RCW 10.73.100 was enacted.

Suppl. Br. of Resp’t at 13 (citing State v. Adams, 181 Wash. 222, 229-230, 43 P.2d

1 (1935); Libbee v. Handy, 163 Wash. 410, 418, 1 P.2d 312 (1931)).

The State is certainly correct that preexisting case law applying the newly

discovered evidence test is relevant to our interpretation of RCW 10.73.100(1). As

we have often recognized, “[t]he legislature is presumed to know the law in the

area in which it is legislating,” which includes existing precedent. Wynn v. Earin,

163 Wn.2d 361, 371, 181 P.3d 806 (2008). However, by focusing exclusively on

precedent that supports its interpretation, the State paints an incomplete and

misleading picture of the relevant legal landscape.

First, as discussed above, Kennedy correctly recognizes that RAP 16.4(c)(3)

was a key feature of the law governing newly discovered evidence when RCW

10.73.100(1) was enacted. 200 Wn.2d at 19-20. This rule explicitly allows a

petitioner to seek relief from an unlawful “‘sentence,’” and “the newly discovered

evidence exemption is properly read in relation to” this language. Id. at 19

(quoting RAP 16.4(c)(3)). In this case, the State argues that Kennedy improperly

relied on the language of RAP 16.4(c)(3) to “expand the scope of the newly-

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discovered evidence rule.” Suppl. Br. of Resp’t at 16. However, the State’s

argument explicitly starts from the premise that newly discovered evidence does

not apply to sentencing. In other words, the State assumes the very point it seeks

to prove. This circular argument does not provide an adequate basis to reject

Kennedy’s thoughtfully reasoned analysis.

Moreover, the State overlooks the ways in which criminal sentencing has

changed over time, which is highly relevant to our interpretation of RCW

10.73.100(1) as applied to sentencing. As noted, the State argues that the meaning

of the newly discovered evidence rule was conclusively settled by 1935 and, at that

time, it did not include sentencing evidence. Id. at 13. However, prior to the

Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentencing evidence, as

we know it today, largely did not exist. Instead, the sentencing court’s role was

typically limited “to ‘fix[ing] the maximum term,’” a task in which “[t]he court

had no discretion.” State v. Cyr, 195 Wn.2d 492, 499, 461 P.3d 360 (2020)

(quoting RCW 9.95.010). Thus, as amicus correctly argues, “[t]here is an obvious

reason for the dearth of ‘new evidence’ cases involving resentencing. In the

decades preceding the [SRA] . . . there were no sentencing facts to contest.”4

Amicus Br. of Redemption Project of Wash. at 6.

4

One exception may be the penalty phase of a capital case. The State observes that

“[n]ot even in death penalty cases has this exemption been applied to sentencing.” Suppl. Br. of

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In addition, although the State cites early civil cases to support its argument,

the State fails to acknowledge the broad scope of the newly discovered evidence

test in the civil context. See Suppl. Br. of Resp’t at 13 (citing Libbee, 163 Wash.

410). Although civil cases are not controlling here, they are subject to the same,

well-established five-factor test:

A new trial will not be granted on that ground unless the moving party

demonstrates that the evidence (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.

State v. Williams, 96 Wn.2d 215, 222-23, 634 P.2d 868 (1981); cf. Kurtz v. Fels, 63

Wn.2d 871, 874, 389 P.2d 659 (1964).

If this five-factor test were limited to evidence of guilt in the criminal

context, as the State contends, one might expect it to be similarly limited to

evidence of liability in the civil context. It is not. To the contrary, we have

expressly applied the newly discovered evidence test to grant a new civil trial

“limited to the issue of damages,” even where “[t]he issue of defendants’

negligence ha[d] been finally resolved as a matter of law.” Kurtz, 63 Wn.2d at

Resp’t at 10. Again, however, the State does not cite any case holding that the newly discovered

evidence exemption cannot apply to capital sentencing. Contrary to the State’s view, the fact

that an argument has not been considered in a previous case does not prove that the argument

must be rejected the first time it is raised.

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878, 875. Though not definitive, this suggests that the scope of the newly

discovered evidence test has never been as narrow as the State now claims.

Thus, the State’s criticisms of Kennedy are misplaced. No prior case law has

categorically excluded sentencing evidence from the newly discovered evidence

rule, and we decline to do so in this case.

3. Persuasive precedent and legislative history show that the newly

discovered evidence exemption applies to sentencing evidence

As discussed above, Kennedy’s statutory interpretation is consistent with

RCW 10.73.100(1)’s plain language and broader legal context. However, to the

extent there is any remaining ambiguity, years of persuasive precedent and

legislative history compel the same conclusion.

First looking to persuasive precedent, youthful and juvenile offenders are

regularly resentenced where the original sentencing court failed to adequately

consider the defendant’s youth. There is considerable variation in these cases, of

course. Sometimes, the failure to consider youth amounts to constitutional error;

in other cases, it merely represents a failure to exercise statutory discretion. E.g.,

Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012); State

v. Delbosque, 195 Wn.2d 106, 456 P.3d 806 (2020); O’Dell, 183 Wn.2d 680.

Nevertheless, all such cases are united by the common theme of “science

and social science,” consistent with “what ‘any parent knows,’” regarding the

immaturity, vulnerability, and potential for reform shared by juveniles and young

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adults. Miller, 567 U.S. at 471 (quoting Roper, 543 U.S. at 569). Our long-

standing application of scientific evidence to the sentencing of youthful offenders

is fully consistent with applying the newly discovered evidence exemption to

sentencing evidence in appropriate cases. The State’s contrary interpretation is in

tension, if not actual conflict, with these principles.

In addition, legislative history strongly supports the analysis and

interpretation set forth in Kennedy. Prior to 1989, there was “no time limit on

filing a [PRP].” FINAL B. REP. SUBSTITUTE H.B. 1071, at 2, 51st Leg., Reg. Sess.

(Wash. 1989). In 1989, the legislature enacted a statutory one-year time limit,

RCW 10.73.090, along with the exemptions listed in RCW 10.73.100. LAWS OF

1989, ch. 395, §§ 1-2.

The final bill report accompanying the 1989 legislation notes that “[c]ourt

rules” had already established the substantive grounds for relief in a PRP, which

should inform the exemptions to the statutory one-year time limit. FINAL B. REP.,

SUBSTITUTE H.B. 1071, at 1, 51st Leg., Reg. Sess. (Wash. 1989). Although the bill

report does not explicitly state which court rules it refers to, the grounds for relief

listed in the bill report closely mirror the language of RAP 16.4(c). Id. Thus,

Kennedy was clearly correct to conclude that the legislature did rely, at least in

part, on RAP 16.4(c) in enacting RCW 10.73.100. As discussed above, the newly

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discovered evidence provision in RAP 16.4(c)(3) explicitly applies to sentences, as

well as convictions.

Finally, the legislature’s actions after we decided Kennedy confirm that our

interpretation is consistent with legislative intent. Our legislature wisely, and

regularly, exercises its authority to correct this court’s statutory interpretations by

“amending the specific section in question” or otherwise “making clear” its intent

with revised statutory language. Friends of Snoqualmie Valley v. King County

Boundary Rev. Bd., 118 Wn.2d 488, 496, 825 P.2d 300 (1992). Indeed, it has done

so very recently in response to State v. Hubbard, 1 Wn.3d 439, 527 P.3d 1152

(2023). Hubbard was decided less than a year after our opinion in Kennedy,

addressing a different issue relating to the same newly discovered evidence

exemption.

In Hubbard, we declined to apply RCW 10.73.100(1) to a defendant’s

motion to modify court-imposed community custody conditions based on a change

in circumstances that arose after sentencing. Id. at 451-52. The legislature quickly

responded to correct our interpretation, but it did not amend the language of RCW

10.73.100(1). Instead, the legislature added an entirely new exemption to RCW

10.73.100, specifically applicable to “[a] motion for a modification of conditions

of community custody.” LAWS OF 2024, ch. 118, § 8(6); see FINAL B. REP.,

20

In re Pers. Restraint of Frazier, No. 102295-6

ENGROSSED SUBSTITUTE H.B. 2303, at 2, 68th Leg., Reg. Sess. (Wash. 2024)

(citing Hubbard, 1 Wn.3d 439).

This 2024 amendment was the first time the legislature amended RCW

10.73.100 since its enactment in 1989. The legislature amended other statutes in

the same bill, but it made no changes to the newly discovered evidence exemption.

See LAWS OF 2024, ch. 118. The legislature’s prompt action in response to

Hubbard, with no corresponding action in response to Kennedy, strongly indicates

the legislature agrees with Kennedy’s interpretation. Indeed, we generally

“presume[ ] that the legislature is aware of judicial interpretations of its enactments

and take[ ] its failure to amend a statute following a judicial decision interpreting

that statute to indicate legislative acquiescence in that decision.” City of Federal

Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009).

Thus, RCW 10.73.100(1), the newly discovered evidence exemption to the

one-year time limit for collateral attacks, can apply to sentencing evidence in

appropriate cases. The State’s contrary reading of the statute is not supported by

principles of statutory interpretation, legislative history, or persuasive authority.

Moreover, the State’s narrow interpretation of RCW 10.73.100(1) is unnecessary

to protect the strong interest in finality of judgments and sentences, due to the high

burden petitioners must meet to satisfy the newly discovered evidence exemption.

Indeed, as we have already recognized, this burden is particularly difficult to

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satisfy in the context of “a judge’s discretionary sentencing decision.” Kennedy,

200 Wn.2d at 14.

4. Guidelines for applying the newly discovered evidence exemption to

sentencing evidence

Although RCW 10.73.100(1) can apply to newly discovered sentencing

evidence, it does not create a per se rule entitling any petitioner to relief. To the

contrary, a person seeking resentencing based on the newly discovered evidence

exemption must satisfy a stringent test. First, to avoid the time bar, the petitioner

must meet the statutory diligence requirements of RCW 10.73.100(1) and the five-

factor test for newly discovered evidence set forth in our case law. Kennedy, 200

Wn.2d at 19. Then, to obtain relief, they must “establish actual prejudice arising

from a constitutional error or a nonconstitutional error that constitutes a

fundamental defect resulting in a complete miscarriage of justice.” Davis, 200

Wn.2d at 86.

These are the same requirements that apply when a person challenges their

conviction based on newly discovered evidence. Nevertheless, the analysis

warrants special consideration in the context of sentencing, particularly as applied

to evidence of new scientific developments and social science research. We

therefore take this opportunity to provide general guidelines for applying the newly

discovered evidence exemption in this context.

22

In re Pers. Restraint of Frazier, No. 102295-6

a. Statutory diligence

First, RCW 10.73.100(1) requires the petitioner to show that they “acted

with reasonable diligence in discovering the evidence and filing the petition or

motion.” If the petitioner does not satisfy this statutory diligence requirement,

then the newly discovered evidence exemption does not apply, regardless of the

five-factor test. State v. Wheeler, 183 Wn.2d 71, 80-81, 349 P.3d 820 (2015).

This result may appear harsh in some cases, but we must “‘give effect to the intent

of the legislature’” as reflected by the plain statutory language. Evans, 177 Wn.2d

at 192 (quoting Sweany, 174 Wn.2d at 914). Here, RCW 10.73.100(1)’s plain

language places an affirmative burden on petitioners to show they acted with

reasonable diligence.

The term “acted with reasonable diligence” is not statutorily defined.

However, similar to the one-year time bar for collateral attacks, the statutory

diligence requirement is clearly intended to promote “principles of finality.”

Wheeler, 183 Wn.2d at 81. Yet, in contrast to the one-year time bar, the statutory

diligence requirement is not phrased in terms of any specific time frame.

Compare RCW 10.73.090, with RCW 10.73.100(1). Thus, the inquiry cannot be

reduced to the simple question of whether a petition was filed “too late.” Contra

concurrence in dissent at 7. Instead, courts must consider evidence of the

petitioner’s actions and circumstances to determine whether they “acted with

reasonable diligence,” both “in discovering the evidence” and in “filing the

23

In re Pers. Restraint of Frazier, No. 102295-6

petition or motion.” RCW 10.73.100(1).

Plainly, to show they “acted” with reasonable diligence, a petitioner must

show they made some sort of active efforts; passively waiting for new evidence

to come along is not sufficient. In addition, although “a person does not need to

be exceptionally diligent or go to extreme lengths,” the statute explicitly requires

“reasonable diligence.” Pet’r’s Suppl. Br. at 23; RCW 10.73.100(1). Thus, the

petitioner must provide some evidence that they made reasonable efforts to

discover the new evidence and file their collateral attack, given the limitations of

their circumstances. Finally, because RCW 10.73.100(1) requires reasonable

diligence in discovering the evidence and filing the petition, “the act of filing

itself” is typically not sufficient. Contra concurrence in dissent at 7. The

petitioner must also show reasonable diligence in discovering the evidence.

Additional considerations arise in the context of new scientific evidence or

social science research, such as the adolescent neurodevelopmental research at

issue in this case.5 Scientific understanding is, by its nature, constantly evolving.

5

We agree with many of the points raised in the dissent’s thoughtful discussion of “the

framework of intersectionality.” Dissent at 4. However, we must respectfully observe that Dr.

Michael Stanfill’s forensic psychological evaluation is not the alleged “newly discovered

evidence” at issue here. Contra id. at 1, 11, 13-14, 17-19. To the contrary, Frazier consistently

describes the “newly discovered evidence” in this case as “neurodevelopmental evidence

documenting the immature brains of youth.” Br. of Pet’r at 12 (Wash. Ct. App. 2023)

(underlining omitted); see also id. at 2, 11-20; Pet’r’s Reply Br. at 2, 5-9 (Wash. Ct. App. 2023);

24

In re Pers. Restraint of Frazier, No. 102295-6

This can make it difficult to determine whether the petitioner was reasonably

diligent because, in some cases, the appropriate starting point for measuring the

petitioner’s diligence may not be clear.

Frazier and allied amici suggest that reasonable diligence should be

measured from the time the individual petitioner subjectively became aware of the

new scientific studies, pointing to the structural, institutional, and individual

barriers faced by many incarcerated individuals filing collateral attacks. See

Pet’r’s Suppl. Br. at 24-28; Amicus Br. of Redemption Project of Wash. at 11-15.

The concurrence in dissent suggests Frazier may have faced additional barriers that

are not discussed in the record or briefing, including “prison policies and the

material realities of incarceration.” Concurrence in dissent at 2.

We recognize that a person can only be as diligent as their circumstances

allow. Cf. In re Pers. Restraint of Fowler, 197 Wn.2d 46, 57, 479 P.3d 1164

(2021) (discussing equitable tolling). Therefore, a petitioner’s individual

circumstances are highly relevant in assessing the reasonable diligence of their

actions. However, if the starting point for reasonable diligence were measured

entirely from the petitioner’s subjective viewpoint, the statutory diligence

Mot. for Discr. Rev. at 3, 11-19; Pet’r’s Reply at 6-7; Pet’r’s Suppl. Br. at 1-2, 9-19, 22-27. He

offers Dr. Stanfill’s evaluation in an attempt to connect this newly discovered evidence to

“Frazier’s functioning at the time of the offense,” relying in part on debunked “criminal justice

theories of the early 1990s of juvenile ‘super predators.’” Br. of Pet’r, App. at 61, 66 (Wash. Ct.

App. 2023); see also Pet’r’s Suppl. Br. at 6-7.

25

In re Pers. Restraint of Frazier, No. 102295-6

requirement would be virtually meaningless, contrary to the legislature’s intent.

“[W]e must not interpret a statute in a way that renders any portion of it

meaningless or superfluous” but, instead, we must give effect to the statute’s

“‘plain meaning as an expression of legislative intent.’” Kellogg v. Nat’l R.R.

Passenger Corp., 199 Wn.2d 205, 221, 504 P.3d 796 (2022) (quoting Campbell &

Gwinn, 146 Wn.2d at 9-10).

Therefore, when a petitioner seeks resentencing based on a new scientific

theory or social science research, there must be an objective starting point for

measuring reasonable diligence pursuant to RCW 10.73.100(1). Nevertheless, we

recognize that many petitioners are incarcerated, with law library access to “case

law and court rules, not scientific journals.” Pet’r’s Suppl. Br. at 26. As a result,

we hold that when a petitioner invokes RCW 10.73.100(1) based on new scientific

developments or social science research, the objective starting point for measuring

reasonable diligence is the point at which the new scientific development became

generally known and accepted in the legal community.

General knowledge and acceptance in the legal community occurs when the

relevant studies are cited as persuasive authority in a published, final opinion of a

Washington appellate court or the United States Supreme Court. However, we

must emphasize that RCW 10.73.100(1) provides an exemption for newly

discovered evidence, not newly recognized legal theories. There is a separate

26

In re Pers. Restraint of Frazier, No. 102295-6

statutory exemption for significant, material, retroactive changes in the law, which

should not be conflated with the newly discovered evidence exemption. See RCW

10.73.100(7). As a result, courts applying RCW 10.73.100(1) must focus on when

the evidence became generally known and accepted, not when courts recognized

the legal significance of such evidence as applied to a particular fact pattern.

Contra concurrence in dissent at 1-4.

b. Five-factor test

In addition to showing reasonable diligence, a petitioner relying on the

newly discovered evidence exemption must show that the evidence “(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.

There is substantial case law addressing the proper application of this five-factor

test, which generally provides “sufficient guidance” as applied to sentencing

evidence. Kennedy, 200 Wn.2d at 19. However, two factors warrant additional

discussion in this context.

First, showing that new evidence “will probably change the result” of a “trial

court’s discretionary sentencing decision” is exceedingly difficult. Fero, 190

Wn.2d at 15; Kennedy, 200 Wn.2d at 20. If the new evidence supports a theory of

mitigation that was raised at the original sentencing hearing, the petitioner is

27

In re Pers. Restraint of Frazier, No. 102295-6

unlikely to meet their burden because “strengthening the defense’s trial theory is

not the standard for newly discovered evidence.” Fero, 190 Wn.2d at 18. By

contrast, if the new evidence supports a theory of mitigation that was not raised at

the original sentencing hearing, then it may be “entirely speculative whether the

additional studies . . . would have persuaded the trial court” to impose a lesser

sentence. Kennedy, 200 Wn.2d at 20. Thus, “in light of the broad range of

information that might support mitigation and could have been argued at

sentencing,” courts must be extremely cautious in applying this factor to

sentencing evidence. Id.

In addition, showing that new evidence is “material” may be difficult to

satisfy in the sentencing context, particularly as applied to evidence of new

scientific developments or social science research. Fero, 190 Wn.2d at 15. It is

not sufficient to cite new scientific research that could be relevant to sentencing a

similar person for a similar offense. Instead, the “materiality” of newly discovered

evidence must be determined in accordance with a sentencing court’s duty to

consider mitigating evidence in each specific case.

As we have already recognized in the context of modern studies on

adolescent neurodevelopment, a sentencing court “‘must do far more than simply

recite the differences between juveniles and adults and make conclusory

statements’” about the defendant’s culpability. Delbosque, 195 Wn.2d at 121

28

In re Pers. Restraint of Frazier, No. 102295-6

(quoting State v. Ramos, 187 Wn.2d 420, 443, 387 P.3d 650 (2017)). “Instead, the

court must ‘receive and consider relevant mitigation evidence bearing on the

circumstances of the offense and the culpability of the offender, including both

expert and lay testimony as appropriate.’” Id. (emphasis added) (quoting Ramos,

187 Wn.2d at 443).

Thus, to show that newly discovered scientific studies on adolescent brain

development are material to their sentence, a petitioner cannot simply cite the

studies and note their age at the time of the offense. Instead, they must show that

their specific offense reflects specific attributes of youth, such as “impulsive

judgment” or “susceptib[ility] to peer pressure.” Davis, 200 Wn.2d at 86. In other

words, the petitioner must show that there is a direct connection between the new

scientific evidence and their offense. See id. at 85-86. Although “lay testimony

may be sufficient” in some cases, expert testimony may be needed to draw a direct

connection between the petitioner’s specific offense and novel scientific theories

about general patterns of adolescent neurodevelopment. O’Dell, 183 Wn.2d at

697; see also Davis, 200 Wn.2d at 85-86.

In sum, on the primary issue presented in this case, we expressly hold that

the newly discovered evidence exemption can apply to sentencing evidence,

subject to the guidance provided above. Nevertheless, on the minimal record

29

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presented here, we must conclude that Frazier does not meet his burden of showing

that the newly discovered evidence exemption applies to his PRP.

B. Frazier does not satisfy the newly discovered evidence exemption

Frazier argues that his PRP is exempt from the one-year time limit because

new scientific evidence on adolescent brain development qualifies as “newly

discovered evidence” in accordance with RCW 10.73.100(1). Frazier must carry

the burden of proving he is entitled to relief by a preponderance of the evidence.

In re Pers. Restraint of Brooks, 197 Wn.2d 94, 99-100, 480 P.3d 399 (2021). He

cannot do so on the record presented here.

1. Frazier does not satisfy RCW 10.73.100(1)’s reasonable diligence

requirement

First, Frazier fails to show that he “acted with reasonable diligence in

discovering the evidence and filing the petition.” RCW 10.73.100(1).

As discussed above, the objective starting point for measuring Frazier’s

diligence is the point at which studies on late adolescent neurodevelopment

became generally known and accepted in the legal community. This occurred as

early as 2005, when the United States Supreme Court’s opinion in Roper cited as

persuasive authority “scientific and sociological studies” demonstrating the

diminished culpability of juveniles, explicitly noting that “[t]he qualities that

30

In re Pers. Restraint of Frazier, No. 102295-6

distinguish juveniles from adults do not disappear when an individual turns 18.”

543 U.S. at 569, 574. Indeed, this court frequently cites Roper as the seminal case

recognizing “studies that establish a clear connection between youth and decreased

moral culpability for criminal conduct” that “may persist well past an individual’s

18th birthday.” O’Dell, 183 Wn.2d at 695 (citing Roper, 543 U.S. at 574); see also

Kennedy, 200 Wn.2d at 15-17 (discussing O’Dell and Roper).

The concurrence in dissent agrees that a petitioner’s reasonable diligence

must be measured from an “objective starting point.” Concurrence in dissent at 1.

However, it asserts that the appropriate starting point occurred in 2017, when the

Court of Appeals’ opinion in Light-Roth gave Frazier “notice that courts would

apply advances in juvenile brain science to cases like his own.” Id. at 2 (citing In

re Pers. Restraint of Light-Roth, 200 Wn. App. 149, 401 P.3d 459 (2017), rev’d,

191 Wn.2d 328, 422 P.3d 444 (2018)). This approach improperly conflates newly

discovered evidence with significant changes in the law.

As discussed above, RCW 10.73.100(1) addresses newly discovered

evidence, not newly recognized legal theories. The Court of Appeals’ opinion in

Light-Roth did not cite new evidence on adolescent neurodevelopment; it merely

advanced a new theory about the legal significance of such evidence, which

31

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ultimately proved erroneous.6 Here, Frazier relies on the newly discovered

evidence exemption, not the exemption for significant changes in the law.

Therefore, we must measure his diligence from when he had notice of the

evidence, not its legal significance.

In this case, Frazier filed his CrR 7.8 motion in 2018.7 He does not show

that he acted with reasonable diligence since the time Roper was decided in 2005.

He does not even show that he acted with reasonable diligence since the time

O’Dell was decided in 2015. Instead, Frazier describes personal and institutional

barriers he faced due to “a lifelong intellectual disability and long-term

incarceration.” Pet’r’s Suppl. Br. at 25. The concurrence in dissent raises

additional barriers sua sponte, asserting that Department of Corrections policies

must have “hamstrung” Frazier in his legal research efforts. Concurrence in

dissent at 6.

6

In Light-Roth, the Court of Appeals held that O’Dell, 183 Wn.2d 680, was a significant

change in the law, opining that young adult defendants “could not successfully argue that their

youth diminished their culpability before O’Dell.” Light-Roth, 200 Wn. App. at 154. This court

reversed because the SRA “has always provided the opportunity to raise youth for the purpose of

requesting an exceptional sentence downward.” Light-Roth, 191 Wn.2d at 336. The Court of

Appeals subsequently dismissed Frazier’s PRP, in which he asserted that O’Dell was a

“significant change in the law.” Ord. Granting Mot. to Suppl. Pet., Lifting Stay, Den. Mot. for

Appointment of Counsel & Den. Pet., In re Pers. Restraint of Frazier, No. 52028-1-II, at 1

(Wash. Ct. App. Sept. 10, 2018). Thus, as stated in our order granting review, Frazier’s only

remaining claim for relief in his current PRP is based on the newly discovered evidence

exemption.

7

Frazier does not claim that he was previously unaware of the procedure for filing

collateral attacks, and he acknowledges filing at least one PRP in 2004. Pet’r’s Suppl. Br. at 25

(citing Court of Appeals No. 31510-6-II).

32

In re Pers. Restraint of Frazier, No. 102295-6

We recognize that such evidence, when asserted by a petitioner and

supported by evidence in the record, is highly relevant to assessing the reasonable

diligence of the petitioner’s actions. Indeed, we agree with Frazier that the

statutory diligence requirement should be viewed “as a flexible concept of

reasonable behavior depending on the circumstances of the case.” Pet’r’s Suppl.

Br. at 24. However, this inquiry explicitly requires evidence of an individual’s

circumstances and their behavior. Here, Frazier provides evidence of his

circumstances, but not his behavior.

Simply put, we cannot know whether Frazier acted with reasonable diligence

because we know nothing about his actions. We do not know how he discovered

the case law cited in his original CrR 7.8 motion. We do not know if he diligently

attempted to conduct legal research but encountered delays due to institutional

policies, disability, or other hardships. We do not know if he sought assistance in

interpreting relevant case law or drafting his CrR 7.8 motion. We do not know

how long he was working on his CrR 7.8 motion before it was filed. We know

only that Frazier filed a CrR 7.8 motion for resentencing in 2018, and that his

request for appointed counsel was subsequently granted. See concurrence in

dissent at 5; Letter Ruling, In re Pers. Restraint of Frazier, No. 52078-8-II (Wash.

Ct. App. Oct. 12, 2021).

33

In re Pers. Restraint of Frazier, No. 102295-6

On this record, we cannot hold that Frazier met his burden to show that he

acted with reasonable diligence. Instead, like the concurrence in dissent, Frazier

appears to argue that his “substantial barriers” and “the act of filing itself” should

be sufficient to excuse him from the statutory diligence requirement. Concurrence

in dissent at 7; see Pet’r’s Suppl. Br. at 23-28. However, no authority allows us to

disregard the plain statutory language, and doing so would “undermine principles

of finality” our legislature sought to promote. Wheeler, 183 Wn.2d at 81.

Moreover, as amicus points out, the substantial barriers cited in this case would be

“true for virtually every indigent inmate.” Amicus Br. of Redemption Project of

Wash. at 13. As a result, excusing Frazier from the statutory diligence requirement

would be both arbitrary and unfair to countless others like him, who overcame

their own barriers to file PRPs seeking resentencing but were denied relief because

they did not satisfy a statutory exemption to the time bar. E.g., Kennedy, 200

Wn.2d 1; Light-Roth, 191 Wn.2d 328.

In this case, Frazier does not meet his burden to show he acted with

reasonable diligence in discovering the evidence and filing his PRP, as required by

the plain language of RCW 10.73.100(1).

2. Frazier does not meet his burden to show that new evidence would

probably change his sentence

Finally, even if Frazier could show reasonable diligence, the newly

discovered evidence exemption does not apply because he cannot satisfy the five-

34

In re Pers. Restraint of Frazier, No. 102295-6

factor test. Specifically, on the record presented, Frazier does not show that new

studies on adolescent neurodevelopment would “probably change the result” of his

sentence. Fero, 190 Wn.2d at 15.

Frazier argues that the sentencing court “believ[ed] his young age made him

more dangerous and blameworthy.” Suppl. Br. of Pet’r at 2. He is certainly

correct that the sentencing court erroneously treated his young age as an

“aggravating factor.” COA Br. of Pet’r, App. at 56. Frazier is also correct that

sentencing practices have evolved significantly since 1989, due in large part to new

studies on adolescent neurodevelopment. We now know that “‘[t]he distinctive

attributes of youth diminish the penological justifications for imposing the harshest

sentences,’” contrary to the sentencing court’s view in 1989. O’Dell, 183 Wn.2d at

692 (emphasis added) (quoting Miller, 567 U.S. at 472). Thus, when youth is

considered in sentencing, it must be considered as a mitigating factor, not an

aggravating one.

However, as discussed above, it is not sufficient to show that new scientific

studies would be relevant in sentencing an 18-year-old for a serious criminal

offense. As this court has emphasized, “youth is not a per se mitigating factor”

even for juvenile offenders, much less for young adults like Frazier. State v.

Anderson, 200 Wn.2d 266, 285, 516 P.3d 1213 (2022). Therefore, Frazier must

show that his sentence would probably change with the benefit of these new

35

In re Pers. Restraint of Frazier, No. 102295-6

studies because his offense reflected the attributes of youth. Kennedy, 200 Wn.2d

at 20; Davis, 200 Wn.2d at 85-86. On the record presented, he cannot do so.

As discussed above, the aggravators based on Frazier’s youth do not form

the basis for his exceptional sentence; those aggravators were explicitly reversed

on appeal. COA Br. of Pet’r, App. at 73-74. Instead, Frazier’s exceptional

sentence is based on the sentencing court’s findings of his “abuse of trust,” as well

as “[t]he shocking cruelty and callousness” that Frazier demonstrated in murdering

his father, which “alone support the sentence.” Id. at 73-75. These remaining

aggravators do not appear to reflect the distinctive attributes of Frazier’s youth, but

the horrifying nature of his offenses.

We must acknowledge, as the sentencing court did, the abuse of trust and

extreme cruelty Frazier showed in pouring gasoline on his 65-year-old father in the

basement of the family home, lighting him on fire, and then blocking the door so

his father could not escape or seek help. Given these aggravating circumstances

and “the broad range of information that might support mitigation and could have

been argued at sentencing,” Frazier cannot show that he would probably receive a

lower sentence with the benefit of modern studies on adolescent

neurodevelopment. Kennedy, 200 Wn.2d at 20.

Nevertheless, Frazier and allied amici invite us to assume that all of the

aggravating circumstances found in this case were improperly influenced by the

36

In re Pers. Restraint of Frazier, No. 102295-6

sentencing court’s erroneous view that Frazier’s youth increased his culpability.

See Suppl. Br. of Pet’r at 29; Br. of Amici Curiae Korematsu Ctr. & ACLU in

Supp. of Pet’r at 22. We decline to do so. There is no sentencing transcript or

other evidence in the record to indicate that the sentencing court relied on Frazier’s

youth to find that his actions were deliberately cruel and an abuse of trust. We also

have no record of any arguments or evidence that Frazier may have presented to

the sentencing court. Thus, it is “entirely speculative” whether Frazier would

receive a lower sentence with the benefit of modern science on adolescent brain

development. Kennedy, 200 Wn.2d at 20. Such speculation does not satisfy the

newly discovered evidence test because, as we have repeatedly emphasized, “‘the

standard is probably change, not just possibly change the outcome.’” Fero, 190

Wn.2d at 18 (internal quotation marks omitted) (quoting State v. Gassman, 160

Wn. App. 600, 609, 248 P.3d 155 (2011)).

In sum, Frazier fails to show “reasonable diligence,” as required by RCW

10.73.100(1), and the limited record is insufficient to show that new scientific

studies would probably change the result of his sentence. Therefore, we need not

reach the issue of prejudice; we affirm the Court of Appeals and hold that Frazier’s

PRP was correctly dismissed as time barred.

37

In re Pers. Restraint of Frazier, No. 102295-6

CONCLUSION

We expressly hold that RCW 10.73.100(1), the newly discovered evidence

exemption to the one-year time limit for collateral attacks, can apply to

sentencing evidence in appropriate cases. However, Frazier does not meet his

burden to show that RCW 10.73.100(1) applies in this case. Therefore, we affirm

the Court of Appeals order dismissing his PRP as time barred.

WE CONCUR:

Chung, J.P.T.

38

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

No. 102295-6

WHITENER, J. (dissenting) –– I agree with the majority that RCW

10.73.100(1), the “newly discovered evidence” exemption to the one-year time limit

for collateral attacks, applies to sentencing evidence in appropriate cases. Majority

at 21. However, the majority takes a narrow and unrealistic view of not only what

“reasonable diligence” constitutes for someone in Frazier’s circumstances but also

what produced Frazier’s exceptional upward sentence and what exactly the “newly

discovered evidence” rebuts. I part with the majority as under the facts of this case,

Frazier has met his burden of showing that the newly discovered evidence exemption

applies to his petition. Therefore, I would reverse the Court of Appeals and remand

to the superior court for resentencing.

Frazier is Black. The majority’s holding rests on a narrow reading of Dr.

Stanfill’s forensic psychological evaluation of Frazier, reading it solely as a

recitation on “[m]odern scientific studies on adolescent neurodevelopment” that

were unavailable at the time of Frazier’s sentencing. Majority at 3. The evaluation

prepared by Dr. Stanfill not only rebuts misconceptions and stereotypes concerning

Frazier’s youth, it rebuts misconceptions and stereotypes concerning Frazier’s youth

and race when they intersect. It is true, finality of criminal cases is appropriate in

many cases; however, when we know better, we must do better. See State v.

1

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

Wallahee, 3 Wn.3d 179, 189, 548 P.3d 200 (2024); State v. Towessnute, 197 Wn.2d

574, 486 P.3d 111 (2020); Letter from Wash. State Sup. Ct. to Members of Judiciary

& Legal Cmty. (June 4, 2020),

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Ju

diciary%20Legal%20Community%20SIGNED%20060420.pdf

[https://perma.cc/QNT4-H5P7].

ANALYSIS

Frazier turned 18 one week prior to the murder of his father. After a jury trial,

Frazier was convicted of first degree murder and first degree arson. The standard

range Frazier faced for first degree murder was 312 to 416 months and 33 to 43

months for first degree arson. The presentence report recommended “Frazier be

sentenced to the maximum amount of time within the sentencing range of his

offender score” and described Frazier as ethnically “African,” despite being born

and raised in Bremerton, and as unable to “seek obtainable employment,” despite

his youth. Br. of Pet’r (Wash. Ct. App. No. 52078-8-II (2023)), App. at 35-39. The

sentencing court imposed 600 months of confinement for first degree murder and 43

months for first degree arson. To justify the exceptional upward sentence, the

sentencing court made four findings of fact.

2

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

[I.] The defendant’s age is an aggravating factor to be considered. At

the age of eighteen (18), the defendant is willing to take a life. Because

the defendant has demonstrated the ability to commit such a violent act

at such a young age the defendant poses a danger to the community.

[II.] The defendant’s conduct during the commission of the crime

manifested deliberate cruelty to the victim. The method of murder was

particularly cruel in nature to the victim, WALTER FRAZIER.

[III.] The defendant violated a position of trust in the commission of

the First Degree Murder, because of the son/father relationship of he

and his father and sharing his father’s home.

[IV.] The defendant’s prior contact with the juvenile and adult systems

is an aggravating factor. That conduct has been substantial. The

defendant’s contact with the justice system has not resulted in any

substantial change of behavior. The defendant is not amenable to

change. The defendant did not change as a result of either treatment, his

incarceration at Green Hill, or straight incarceration … as an adult. He

therefore presents [a] … risk to the community.

The defendant has convinced himself that he did not commit the

crime. The evidence of the defendant’s guilt of the crime charged was

overwhelming. The defendant, because of his current belief that he did

not commit the crime, is therefore more dangerous and in fact highly

dangerous to himself and to others.

Id., App. at 56-57.

In preparing the forensic psychological evaluation of Frazier, Dr. Stanfill

performed a clinical interview and mental health examination of Frazier and looked

at several documents, including the presentence report and the findings of fact used

to justify the exceptional upward sentence. In Frazier’s evaluation, Dr. Stanfill noted

that

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Whitener, J., dissenting

[a]t the time he was sentenced, Mr. Frazierʼs age at the time of the

offense (18) was specifically identified as an aggravating factor in his

case. This practice was consistent with commonly held theories at the

time that young offenders that engaged in perceived serious or heinous

offenses were potentially more dangerous, ultimately resulting in the

criminal justice theories of the early 1990s of juvenile "super

predators." However, in the subsequent 30+ years, a large body of

research has come to light that consistently demonstrated not only that

these theories were wrong, but were based on racist underpinnings that

propagated race-based discriminatory criminal justice practices for the

next several decades.1

Id., App. at 66.

“[C]ommonly held theories” that “were wrong” and “based on racist underpinnings”

had impacted Frazier’s sentencing. Today we better understand the error of those

“commonly held theories” through the framework of intersectionality.

Professor Kimberlé Crenshaw created the sociological analytical framework

called intersectionality to address the problems inherent in the traditional “single-

axis” framework, where one analyzes discrimination caused by one identity in

isolation from other simultaneously held identities. Kimberlé Crenshaw,

Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of

Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, UNIV. CHI.

LEGAL F. 139 (1989). Intersectionality is a lens to better understand the ways

1

Dr. Stanfill also includes a citation “for broad overview” of the “race-based discriminatory criminal justice practices”

in a footnote, pointing to The Myth of the Juvenile Superpredator, authored by Victor E. Kappeler, Karen S. Miller,

and Gary Potter, found in Handbook of Juvenile Justice: Theory and Practice (Barbara Sims & Pamela Preston eds.,

2006).

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Whitener, J., dissenting

systems and structures of power interact with our multiple and simultaneously held

identities. Identities include characteristics such as race, sex, gender, sexual

orientation, age, and disability. Professor Crenshaw first used intersectionality to

analyze the double layer of discrimination of race and gender Black women faced

that would be largely invisible in the “single-axis framework that is dominant in

antidiscrimination law.” Id. For example, Black women who faced discrimination in

hiring from an employer that never hired Black women but readily hired white

women and Black men would fail to receive protection under the “single-axis

analysis” used in Title VII, because the employer hired women, even if only white,

and hired Blacks, even if only men. See id. at 141-49.

Similarly, the majority uses a “single-axis” framework in the instant case.

Majority at 3, 30-34. Looking solely at Frazier’s youth, it ignores how, at the time,

the intersection of Frazier’s youth and race affected his sentencing. This narrow and

unrealistic view ignores the “basic truth that young peopleʼs experiences are shaded

by a societal structure where race matters.” Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll., 600 U.S. 181, 364, 143 S. Ct. 2141, 216 L.

Ed. 2d 857 (2023) (Sotomayor, J., dissenting). Today we are learning about the

pervasive adultification, 2 otherization, or dehumanization of Black youth.

2

“‘[I]t is well established by empirical literature and has been acknowledged by [this court] that Black children are

prejudiced by … “adultification,” or the tendency of society to view Black children as older than similarly aged

5

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

Misconceptions and stereotypes lead to implicit biases against youth of color. All of

which must be disavowed. See Letter from Wash. State Sup. Ct., supra.

In the 1980s, an increase in juvenile crime metrics led state legislatures to pass

laws limiting the jurisdiction of juvenile courts and increase punishments for

juveniles. CONG. RSCH. SERV., JUVENILE JUSTICE: OVERVIEW OF LEGISLATIVE

HISTORY AND FUNDING TRENDS 1 (Jan. 2007). Washington State was not immune

from the fears of a growing juvenile crime wave, as members of the legislature

described “the escalating incidence of violence in the United States, particularly

violence among juveniles,” as a “‘tidal wave,’” an “‘epidemic,’” and

“‘unprecedented.’” H.B. REP. ON ENGROSSED SUBSTITUTE H.B. 2906, 53rd Leg.,

Reg. Sess. (Wash. 1994). The consequences of these fears fell disproportionately on

youth of color. In 1995, the cultural climax of these fears of youth of color would be

captured in John DiIulio Jr’s The Coming of the Super-Predators. DiIulio would

describe an upcoming wave “of youth crime and violence” that would sweep big

cities. John DiIulio, The Coming of the Super-Predators, WASHINGTON EXAMINER

(Nov. 27, 1995, 5:00 a.m.),

https://www.washingtonexaminer.com/magazine/1558817/the-coming-of-the-

youths.’” State v. Anderson, 200 Wn.2d 266, 312, 516 P.3d 1213 (2022) (Yu, J., dissenting) (first and second

alterations in original) (quoting In re Pers. Restraint of Miller, 21 Wn. App. 2d 257, 265, 505 P.3d 585 (2022)). “There

can be no doubt that ‘adultification is real and can lead to harsher sentences for children of color if care is not taken

to consciously avoid biased outcomes.’” Id. at 313 (Yu, J., dissenting) (quoting Miller, 21 Wn. App. 2d at 267).

6

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

super-predators/ [https://perma.cc/2CHD-MC49]. He warned of “boys whose voices

have yet to change … who have absolutely no respect for human life and no sense

of the future.” Id. DiIulio believed that the “trouble will be greatest in [B]lack inner-

city neighborhoods” and that the root cause of this upcoming wave was “moral

poverty,” mired in racist tropes about Blacks, such as the Black family being

fatherless. Id. The “superpredator” was not a new concept, just the most recent

iteration of othering and dehumanizing youth of color.

The “superpredator” was constructed as the ultimate other, as

possessing all the characteristics that innocent young children do not.

The “superpredator” was “brutally remorseless,” incorrigible, and

savage. And because the “superpredator” was the antithesis of

childhood, it was slyly constructed as young, Black, and male. This

racially characterized “superpredator” was in fact a monster, and only

the most serious and determined efforts could address the threat that the

“superpredator” posed.

Kenneth B. Nunn, The Child as Other: Race and Differential Treatment in the

Juvenile Justice System, 51 DEPAUL L. REV. 679, 713 (2002). While DiIulio’s

hypothesis of an upcoming juvenile crime wave was ultimately wrong, as crime

metrics persistently dropped in the 1990s, the beliefs that his theory were premised

on and the laws that they were premised on show his theory still exists. OFF. OF JUV.

JUST. & DELINQUENCY PREVENTION, U.S. DEP’T OF JUST., CHALLENGING THE

MYTHS, 1999 NATIONAL REPORT SERIES: JUVENILE JUSTICE BULLETIN (Feb. 2000),

https://www.ojp.gov/pdffiles1/ojjdp/178993.pdf [https://perma.cc/78PW-N8L6].

7

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

DiIulio’s article The Coming of the Super-Predators was not the inception of these

“commonly held theories” concerning Black youth, it simply tapped into and

amplified racial stereotypes that date back to the founding of our nation. State v.

Belcher, 342 Conn. 1, 17, 268 A.3d 616 (2022). These stereotypes, often coded in

pseudoscience, justified treating youth of color as beneath white youth. THE

CAMPAIGN FOR FAIR SENT’G OF YOUTH, THE ORIGINS OF THE SUPERPREDATOR: THE

CHILD STUDY MOVEMENT TO TODAY 2 (May 2021).

“Adolescence” as a concept did not exist in the United States until

approximately 1830, where childhood was finally viewed as “a distinct stage of life

committed to learning and development.” Nunn, supra, at 680. The concept of

“adolescence” would soon inspire the first child labor laws in the nation. Id.

However, while “adolescence began for white children in 1830,” Black children,

being born directly into bondage, remained slaves. Id. The different perception and

treatment of youth of color persisted post-emancipation. Academic works of the

early 20th century would perpetuate the “otherness” of youth of color in the

wrappings of pseudoscience. Lewis Terman, a pioneer of educational psychology

and an often-cited psychologist, relating “feeble-mindedness” of Black youth and

youth of color to criminality, wrote:

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In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

But why do the feeble-minded tend so strongly to become delinquent?

The answer may be stated in simple terms. Morality depends upon two

things: (a) the ability to foresee and to weigh the possible consequences

for self and others of different kinds of behavior; and (b) upon the

willingness and capacity to exercise self-restraint. That there are many

intelligent criminals is due to the fact that (a) may exist without (b). On

the other hand, (b) presupposes (a). In other words, not all criminals are

feeble-minded, but all feeble-minded are at least potential criminals.

LEWIS M. TERMAN, THE MEASUREMENT OF INTELLIGENCE 11 (1916). Beliefs that

“one could predict criminal behavior [in youth] by race and body type,” would

spread. JAMES BELL, W. HAYWOOD BURNS INST. FOR YOUTH JUST. FAIRNESS &

EQUITY, REPAIRING THE BREACH: A BRIEF HISTORY OF YOUTH IN THE JUSTICE

SYSTEM 7-8, https://burnsinstitute.org/wp-content/uploads/2020/09/Repairing-the-

Breach-BI_compressed.pdf [https://perma.cc/A5YZ-RA25]. Youth would be

divided into “normal” or “feeble-minded.” Id. Those who were deemed “feeble-

minded” were believed to be “unredeemable,” and unsurprisingly those deemed

“feeble-minded” were also disproportionately Black and youth of color. Id. The

impact of these stereotypes is seen in Washington. Black youth are 9 percent of

Washington’s youth population, but they are 18 percent of youth adjudications and

33 percent of juvenile declines, where they are treated as adults. HEATHER EVANS &

EMILY KNAPHUS-SORAN, THE PERSISTENCE OF RACIAL DISPARITIES IN JUVENILE

DECLINE IN WASHINGTON STATE 2009-2022, at ii (Apr. 9, 2024),

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In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

https://courts.wa.gov/subsite/mjc/docs/2024/2.4%20The%20Persistence%20of%20

Juvenile%20Declines%20in%20Washington%20State_4_9_2024.pdf.

Studies using the intersectional analytical framework have only recently

considered youth and race in criminal sentencing, allowing us to now see the

consequences of the misconceptions and stereotypes youth of color face in the

criminal legal system. One recent study concerning sentencing generally found that

“race and gender differences are smaller among older defendants and greater among

younger defendants … [where] young [B]lack … and Hispanic males … have the

highest odds of incarceration and that, in general, [B]lack and Hispanic males overall

receive longer sentence lengths.” Darrell Steffensmeier et al., Intersectionality of

Race, Ethnicity, Gender, and Age on Criminal Punishment, 60 SOCIOLOGICAL

PERSPECTIVES 810, 812 (2017). “It is reasonable to assume that judges, both as

citizens and as elected officials, may share in the general stereotyping in the

community, and that group-based attributions (e.g., based on race, ethnicity, gender,

or age) will intertwine with [sentencing considerations such as culpability,

protecting the community, and practical implications] to influence judges’

sentencing decisions.” Id. at 815. The study’s authors conclude that

[t]he joint constellations of certain offender characteristics, therefore,

result in compounded sentence severity for some defendants but greater

leniency for others. These social statuses and their intersectionality are

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In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

not just individual attributes but cultural categories that shape the

distribution of sanctions and criminal punishment. … Our findings

demonstrate that these statuses cannot be studied alone but rather

interact to produce disparate outcomes by race/ethnicity and gender and

age simultaneously, and they show that intersectionality effects are apt

to be responsive to cultural contexts of social differentiation.

Id. at 830. These studies lay bare the “race-based discriminatory criminal justice

practices” that were born from the “commonly held theories” concerning Black

youth and youth of color mentioned by Dr. Stanfill. Frazier seeks to rebut these

“theories” that he was continuously sentenced under with “newly discovered

evidence,” as we now know that these “‘[t]heories’ were wrong.” Br. of Pet’r (Wash.

Ct. App. No. 52078-8-II (2023)), App. at 66.

No petition to collaterally attack a judgment and sentence may be filed more

than one year after the judgment becomes final. RCW 10.73.090. However, the one

year time bar of RCW 10.73.090 does not apply if the petition fits within one of the

exemptions listed in RCW 10.73.100. Most important to the instant case is the

“newly discovered evidence” exemption of RCW 10.73.100(1), which states:

The time limit specified in RCW 10.73.090 does not apply to a petition

or motion that is based solely on … [n]ewly discovered evidence, if the

defendant acted with reasonable diligence in discovering the evidence

and filing the petition or motion.

Frazier filed a petition in 2018 to collaterally attack his 1989 sentence. He seeks the

help of the “newly discovered evidence” exemption of RCW 10.73.100(1) to escape

11

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

the one year time bar. The majority is correct, to benefit from this exemption, Frazier

must first show that he “acted with reasonable diligence in discovering the evidence

and filing the petition.” RCW 10.73.100(1). Second, Frazier must satisfy a five-part

test establishing that his “newly discovered evidence,” specifically the contents of

Dr. Stanfill’s evaluation, (1) will probably change the result of 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. RCW 10.73.100(1); State v. Wheeler, 183 Wn.2d 71, 80-

82, 349 P.3d 820 (2015); In re Pers. Restraint of Kennedy, 200 Wn.2d 1, 13, 513

P.3d 769 (2022); majority at 25-29. Lastly, Frazier must establish “actual prejudice

arising from a constitutional error or a nonconstitutional error that constitutes a

fundamental defect resulting in a complete miscarriage of justice.” In re Pers.

Restraint of Davis, 200 Wn.2d 75, 86, 514 P.3d 653 (2022).

The plain language and ordinary meaning must be the starting point when

determining what constitutes “reasonable diligence” under RCW 10.73.100(1).

Spokane County v. Depʼt of Fish & Wildlife, 192 Wn.2d 453, 457, 430 P.3d 655

(2018). Rather than a narrow or bright line rule, the legislature explicitly adopted a

standard of “reasonable diligence,” a standard that takes one’s circumstances into

account. Cornelius v. Wash. Depʼt of Ecology, 182 Wn.2d 574, 601, 344 P.3d 199

12

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

(2015) (“What constitutes reasonable diligence depends on the circumstances.”);

Langlois v. BNSF Ry. Co., 8 Wn. App. 2d 845, 856-57, 441 P.3d 1244 (2019) (When

determining reasonable diligence, courts consider the litigant’s overall level of care

and caution in light of their particular circumstances.). Here, the majority adopts a

bright line rule, contrary to the statute’s plain language, where the

objective starting point for measuring reasonable diligence is the point

at which the new scientific development became generally known and

accepted in the legal community.

General knowledge and acceptance in the legal community

occurs when the relevant studies are cited as persuasive authority in a

published, final opinion of a Washington appellate court or the United

States Supreme Court.

Majority at 26.

Frazier filed his petition in 2018. When determining the timeliness of

Frazier’s petition under its “objective starting point” analysis, the majority uses a

“single-axis” framework for what Frazier’s “newly discovered evidence” is and

focuses only on the issue of Frazier’s youth at sentencing. Using the years when

O’Dell 3 and Roper4 were decided, cases concerning the mitigating qualities of youth,

in relation to when Frazier filed his petition, the majority holds that Frazier did not

exercise “reasonable diligence” in the filing of his petition. Majority at 30-32.

3

State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015).

4

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

13

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

However, the “newly discovered evidence” in the instant case, the contents of Dr.

Stanfill’s evaluation, concerns not only misconceptions and stereotypes of Frazier’s

youth but also the intersecting of Frazier’s simultaneously held identities of youth

and race. Using the majority’s “objective starting point” analysis, Frazier filed his

petition with “reasonable diligence” as required by RCW 10.73.100(1). In 2022, four

years after Frazier filed his petition, Division Two in Miller cited studies on how

adultification can lead to harsher sentences for youth of color. 21 Wn. App. 2d at

267.

Taking Frazier’s circumstances into account, as a reasonableness standard

requires, it is also clear that Frazier exercised reasonable diligence in the filing of

his petition. Frazier is incarcerated, with lifelong intellectual disabilities and a

seventh grade education. He is dependent on the help of counsel but is without funds

to hire one, so he is also dependent on the court to appoint him one. He filed pro se

what eventually became the personal restraint petition for this instant case in 2018

and the Court of Appeals appointed him counsel in 2021.

Frazier’s petition satisfies the five-part test required for analyzing “newly

discovered evidence.” The information contained in Dr. Stanfill’s evaluation (1) will

probably change the result of sentencing, (2) was discovered since the sentencing,

(3) could not have been discovered before sentencing by the exercise of due

14

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

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

200 Wn.2d at 13; majority at 27.

Frazier has established that the “newly discovered evidence” he offers will

“probably change the result” of his sentencing. Kennedy, 200 Wn.2d at 13. Dr.

Stanfill, in his evaluation of Frazier, notes that he was sentenced consistent with

“commonly held theories” that were not only “wrong, but were based on racist

underpinnings.” Br. of Pet’r (Wash. Ct. App. No. 52078-8-II (2023)), App. at 66.

Those “racist underpinnings” are the result of misconceptions, stereotypes,

otherization, dehumanization, and adultification that Black, Indigenous and youth of

color uniquely suffer apart from white youth. To justify the exceptional upward

sentence, the sentencing court made four findings. The court discussed Frazier’s

youth, the “deliberate cruelty” of the crime, Frazier’s “position of trust” over his

father, and Frazier’s lack of amenability. The findings that discussed Frazier’s youth

and lack of amenability were reversed on direct appeal. The majority declines to

consider them here. Majority at 36. However, all four findings are integrally

intertwined and involved negative stereotypes concerning Black youth.

This court has held that factors inherent in the crime, inherent in the sense

that they were necessarily considered by the legislature in establishing the standard

sentence range for the offense and do not distinguish the defendantʼs behavior from

15

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

that inherent in all crimes of that type, may not be relied on to justify an exceptional

sentence. State v. Ferguson, 142 Wn.2d 631, 647-48, 15 P.3d 1271 (2001). Here,

Frazier was convicted of first degree murder under RCW 9A.32.030(1)(a) and (c).

Subsection (1)(a) already contemplates deliberateness as it describes homicide

“[w]ith a premeditated intent to cause the death of another person.” RCW 9A.32.030.

Subsection (1)(c) is a homicide done in tandem with “the crime of … arson in the

first … degree.” RCW 9A.32.030(1)(c)(4). Here, the legislature already

contemplated “deliberate cruelty” when establishing the standard range. Yet, the

sentencing court unable to find “deliberate cruelty” used the intentionality and

disturbing method that Frazier employed in the murder of his father to justify an

exceptional upward sentence. Evident in Dr. Stanfill’s report is the finding of

“deliberate cruelty” in Frazier’s sentence is consistent with the “commonly held

theories” where Black youth “engaged in perceived serious or heinous offenses were

potentially more dangerous.” See also Gustav J.W. Lundberg et al., Racial Bias in

Implicit Danger Associations Generalizes to Older Male Targets, PLoS ONE, at 2

(June 2018),

https://pmc.ncbi.nlm.nih.gov/articles/PMC5991338/pdf/pone.0197398.pdf

[https://perma.cc/VEQ3-8ZR7].

16

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

An “abuse of a position of trust” generally refers to the trust relationship

between the perpetrator and the victim that renders the victim particularly vulnerable

to the crime. State v. Russell, 69 Wn. App. 237, 252, 848 P.2d 743 (1993). The

finding of an aggravating factor in this case is an unusual finding of fact. It is

typically found against an adult defendant who uses their position of trust as a

caretaker over a youthful victim, not vice versa as the sentencing court did here. See

State v. Harp, 43 Wn. App. 340, 343, 717 P.2d 282 (1986) (defendant father who

was a caretaker of his stepdaughter and niece victims); State v. Creekmore, 55 Wn.

App. 852, 862-63, 783 P.2d 1068 (1989) (defendant father who was a caretaker of

his victim son) (abrogation recognized by State v. Ramos, 124 Wn. App. 334, 101

P.3d 872 (2004)); Russell, 69 Wn. App. at 252 (defendant father who was a caretaker

of his victim son). Here, the sentencing court could not find an “abuse of a position

of trust” but used it to justify an exceptional upward sentence. This perception is

clearly erroneous as Frazier was a teenager at the time of his crime and was not

responsible for the care of his adult father. Frazier’s father took care of Frazier, as

he lived in his father’s house like teenagers typically do. The sentencing court’s

finding of fact is consistent with the adultification of Frazier as a Black youth, where

Frazier is viewed as older and more culpable as compared to equally aged white

youth. Phillip Atiba Goff et al., The Essence of Innocence: Consequences of

Dehumanizing Black Children, 106 J. PERSONALITY SOC. PSYCH. 526, 529 (2014),

17

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

https://www.apa.org/pubs/journals/releases/psp-a0035663.pdf

[https://perma.cc/7Z9X-TN5W].

Frazier’s “newly discovered evidence” would probably change the result of

his sentencing. Frazier’s counsel at sentencing filed no sentencing memorandum on

his behalf, leaving the sentencing court with nothing to place Frazier’s crime within

the broader context of his life. Most importantly, at the time of his sentencing, there

was nothing to rebut the “commonly held theories” that were used to consistently

sentence Black youth like Frazier — “[t]heories” that involved misconceptions and

stereotypes about Frazier’s youth and race when they intersect. Many of these

“theories” continue to be debunked, as seen in Dr. Stanfill’s evaluation. With what

we know now about the intersectionality of youth and race, Frazier’s counsel at

sentencing could have rebutted the misconceptions and stereotypes used by the

sentencing court in assessing Frazier’s dangerousness, incorrigibility, and

culpability.

Frazier was sentenced in 1989, several decades before research concerning

“commonly held theories” and the intersectionality of race and youth at sentencing

generally occurred. See supra. Frazier could not have discovered this evidence

before sentencing by the exercise of due diligence. Kennedy, 200 Wn.2d at 13;

majority at 30. Research concerning the “commonly held theories” did not occur

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In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

until the mid-2000s and research concerning the intersectionality of race and youth

at sentencing, specifically, did not occur until 2017. See Victor E. Kappeler et al.,

The Myth of the Juvenile Superpredator, HANDBOOK OF JUVENILE JUSTICE: THEORY

AND PRACTICE 173 (Barbara Sims & Pamela Preston eds., 2006); Steffensmeier et

al., supra, at 816.

This “newly discovered evidence” is material to Frazier’s case. Kennedy, 200

Wn.2d at 13. Whether the evaluation would be determinative of a material issue in

his sentencing, Frazier’s evaluation directly rebuts the “commonly held theories”

that resulted in his exceptional upward sentence. His “newly discovered evidence”

is material.

Frazier’s evaluation is neither cumulative nor impeaching. Kennedy, 200

Wn.2d at 13. “‘Cumulative evidence is additional evidence of the same kind to the

same point.’” State v. Williams, 96 Wn.2d 215, 223-24, 634 P.2d 868 (1981)

(quoting Roe v. Snyder, 100 Wash. 311, 314, 170 P. 1027 (1918)). Frazier’s counsel

failed to file a sentencing memorandum on his behalf, so there was no evidence

presented at Frazier’s sentencing that could have been of “the same kind” and

reached “the same point” as Dr. Stanfill’s evaluation. In addition, impeachment

evidence affects credibility without necessarily proving or disproving the facts of

19

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

the case. State v. Clinkenbeard, 130 Wn. App. 552, 569, 123 P.3d 872 (2005). Dr.

Stanfill’s evaluation is not impeachment evidence.

Frazier has established that he filed his petition with “reasonable diligence”

to satisfy the five-part test. Lastly, to obtain relief, Frazier is required to establish

actual prejudice arising from a constitutional error or a nonconstitutional error that

constitutes a fundamental defect resulting in a complete miscarriage of justice.

Davis, 200 Wn.2d at 86. To show “actual and substantial prejudice,” Frazier must

show that the outcome would more likely than not have been different had the

alleged error not occurred. Id.

Frazier has suffered “actual and substantial prejudice.” The “commonly held

theories” that pervaded Frazier’s sentence wrongly increased his perceived

dangerousness, incorrigibility, and culpability. Dr. Stanfill’s evaluation of Frazier

rebutted those misconceptions and stereotypes. It is “more likely than not” that the

outcome of his sentencing would have been different. With a timely filed petition

that satisfies the five-part test under RCW 10.93.100(1), Frazier is entitled to a

resentencing.

20

In re Pers. Restraint of Frazier, No. 102295-6

Whitener, J., dissenting

CONCLUSION

I would reverse the Court of Appeals and remand to the superior court for

resentencing.

______________________________

______________________________

______________________________

21

No. 102295-6

GONZÁLEZ, C.J. (concurring in dissent) — “‘[C]hildren are different.’” State

v. Houston-Sconiers, 188 Wn.2d 1, 8, 391 P.3d 409 (2017) (alteration in original)

(quoting Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012)). Charles Scott Frazier was barely an adult when he committed a horrific

crime. Since that day, we have recognized not only that children are different but also

that young adults, like Frazier was when he committed his crime, share some of the

qualities of youth that make bringing the full force of standard range sentences down

on them unjust in some circumstances. We now allow young adults to argue for a

mitigated sentence based on their youth. I would give Frazier the opportunity to make

that argument. Accordingly, I respectfully dissent.

At this stage, the issue is not what the appropriate sentence is in this case. It is

whether Frazier gets the opportunity to argue for a different sentence at all. I concur

with the majority that sentencing evidence can qualify as newly discovered evidence

under RCW 10.73.100(1). However, in my view, the objective starting point for

assessing Frazier’s diligence under the newly discovered evidence exemption is 2017,

with the publication of the Court of Appeals decision in Light-Roth. In re Pers.

Restraint of Light-Roth, 200 Wn. App. 149, 401 P.3d 459 (2017), rev’d, 191 Wn.2d

In re Pers. Restraint of Frazier, No. 102295-6 (González, C.J., concurring in dissent)

328, 422 P.3d 444 (2018). It was Light-Roth (not Roper v. Simmons 1 or State v.

O’Dell 2) that made Frazier’s youth a reasonable basis for him to seek a lesser

sentence. Frazier filed within 10 months of the Court of Appeals decision in Light-

Roth giving him notice that courts would apply advances in juvenile brain science to

cases like his own. That was sufficiently diligent.

While I concur with the dissent in its entirety, I write separately to stress that an

assessment of reasonable diligence must consider not only one’s education, disability,

and reliance on appointment of counsel but also prison policies and the material

realities of incarceration.3 For penological reasons, Department of Corrections (DOC)

policy prohibits Frazier from possessing case law pertaining to other incarcerated

individuals.4 Consequently, while incarcerated Frazier would have, at best, limited

access to relevant case law, including O’Dell, the case in which we held that

“youthfulness can support an exceptional sentence below the standard range

applicable to an adult felony defendant.” 183 Wn.2d at 698-99. Furthermore, because

1

543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

2

183 Wn.2d 680, 358 P.3d 359 (2015).

3

The dissent summarizes the reality of Frazier’s circumstances:

Frazier is incarcerated, with lifelong intellectual disabilities and a seventh grade

education. He is dependent on the help of counsel but is without funds to hire one,

so he is also dependent on the court to appoint him one. He filed pro se what

eventually became the personal restraint petition for this instant case in 2018 and

the Court of Appeals appointed him counsel in 2021.

Dissent at 13-14.

4

Wash. Dep’t of Corr., Policy DOC 590.500 – Legal Access for Incarcerated Individuals (last

revised Oct. 6, 2022). This policy has been in effect since 2000. https://www.doc.wa.gov/

information/policies/files/590500.pdf [https://perma.cc/CLX8-KH3V].

2

In re Pers. Restraint of Frazier, No. 102295-6 (González, C.J., concurring in dissent)

O’Dell was on direct review, Frazier should be forgiven for not immediately

recognizing it might apply to a collateral challenge. But most importantly, I find it

difficult to imagine how Frazier could meaningfully and expeditiously prepare a

personal restraint petition predicated on case law he was prohibited from possessing.

Frazier should not be penalized for the effects of this Department of Corrections

policy.

I. The objective starting point for assessing Frazier’s reasonable diligence should

begin in 2017 with the appellate decision in Light-Roth

The majority reasons that because the United States Supreme Court cited

scientific studies on adolescent neurodevelopment as early as 2005, that should be the

objective starting point for measuring Frazier’s diligence. Majority at 3 (citing Roper,

543 U.S. at 574). I agree that Roper is an important and relevant case. But Roper

alone could not have given Frazier “notice” that evolving juvenile brain science would

be relevant evidence in his case.

Roper is not a case about resentencing. Roper is a death penalty case in which

the Supreme Court held that executing juveniles for capital offenses violated the

Eighth and Fourteenth Amendments. Roper, 543 U.S. at 578. Frazier, who was not a

juvenile at the time of his crime and was not sentenced to death, had little reason to

rely on Roper as establishing a basis for his collateral attack.

We did not extend Roper to young adults like Frazier until 2015. O’Dell, 183

Wn.2d at 685 (citing Roper, 543 U.S. at 569-70). In O’Dell we held that “a trial court

3

In re Pers. Restraint of Frazier, No. 102295-6 (González, C.J., concurring in dissent)

must be allowed to consider youth as a mitigating factor when imposing a sentence on

an offender . . . who committed his offense just a few days after he turned 18.” Id. at

696. But O’Dell was an appeal, not a personal restraint petition. Given this entirely

distinct procedural posture, it is unreasonable to expect that Frazier could have

gleaned from O’Dell a basis for a collateral attack against his more than 30-year

sentence. Frazier filed his CrR 7.8 motion promptly after the Court of Appeals held

that O’Dell constitutes a significant change in the law and applied retroactively to

petitioners like himself. Light-Roth, 200 Wn. App. at 152. 5

II. Reasonable diligence

Frazier suggests our reasonable diligence standard takes one’s circumstances

into account. Pet’r’s Suppl. Br. at 24 (citing Cornelius v. Wash. Dep’t of Ecology, 182

Wn.2d 574, 601, 344 P.3d 199 (2015)). I agree. Here, Frazier’s life experiences

militate in favor of holding that he satisfies the reasonable diligence standard. Frazier

brought his claims “while experiencing a lifelong intellectual disability and long-term

incarceration.” Id. at 25. In addition, we must evaluate reasonable diligence based on

Frazier’s ability as an incarcerated pro se litigant with limited legal skills. As Frazier

avers, “[h]e was in special education classes throughout his schooling[,] . . . had a

third-grade level in written language[,] . . . [and] had no financial resources at the time

he was sentenced and has been confined in prison since then.” Id.

5

Two months after Frazier filed his CrR 7.8 motion, we reversed the Court of Appeals and held that

O’Dell did not constitute a significant change in the law and did not decide whether that decision

applied retroactively to Light-Roth’s case. In re Pers. Restraint of Light-Roth, 191 Wn.2d at 338.

4

In re Pers. Restraint of Frazier, No. 102295-6 (González, C.J., concurring in dissent)

Frazier further explained that he is disabled and in need of legal assistance—

suggesting that he sought an accommodation, though he failed to reference the proper

legal authorities or make a formal request. Accordingly, Frazier did as much as he

could to convey his challenging circumstances to the courts.

I am a mentally ill inmate. I have been in prison 30 years and can not help

myself legaly [sic]. I am allso [sic] poor.

Please allow me to have a [sic] attorney to help me with this new law

and how it will help me get a new sentence.

Again I am mentally ill and can not help myself. If this motion can not

help me I ask to be given a [sic] attorney to help me as this new case

effects [sic] my case.

Ord. Transferring Def.’s Mot. as a Pers. Restraint Pet., State v. Frazier, No. 88-1-

00470-4, Attach. at 3 (Kitsap County Super. Ct. June 21, 2018).

As the Redemption Project explains, “Requiring someone of limited intellectual

ability and schooling to understand the complexities and nuances of

neurodevelopmental research and then explain why these advances could change his

sentencing outcome sets the bar impossibly high.” Amicus Curiae Br. of Redemption

Project at 12-13. I agree.

When we evaluate the circumstances affecting incarcerated litigants’ ability to

bring their claims expeditiously, DOC policies and conditions that affect petitioners

are also relevant. Frazier “could not obtain scientific journals of adolescent

development from the law library” and relied on case law to inform his understanding

of developments in the field of adolescent brain science. Pet’r’s Suppl. Br. at 26.

5

In re Pers. Restraint of Frazier, No. 102295-6 (González, C.J., concurring in dissent)

Frazier is prevented from “possess[ing] legal materials,” such as case law,

about “another Washington State incarcerated individual” by DOC policy 590.500

(III)(A)(3).6 Plainly, this policy did not prevent Frazier from ever learning about

Light-Roth because he clearly cited the appellate decision in his CrR 7.8 motion. Also

plainly, this policy limited his access to critical materials. If DOC policy prevents

incarcerated inmates from possessing case law about incarcerated individuals, then

prisoners like Frazier can only view and access such materials during the limited time

they have in the prison law library. Without being able to take case books and treatises

back to his cell, Frazier would have been unable to work on his petition outside the

library. A prisoner hamstrung by this DOC policy would take much longer to file a

collateral attack than a similarly situated litigant who is not incarcerated. These

circumstances are directly relevant to whether Frazier demonstrated reasonable

diligence.

In light of these constraints, Frazier was reasonably diligent. To say otherwise

undermines this court’s holding that the newly discovered evidence exemption can

apply to sentencing evidence in appropriate cases. If we say Frazier’s 2018 filing is

too late, we set the bar unrealistically high for litigants to show reasonable diligence.

We should instead recognize that when litigants like Frazier face substantial barriers

6

Wash. Dep’t of Corr., Policy DOC 590.500, supra.

At the time O’Dell was published in 2015, Sean O’Dell was almost certainly incarcerated, having

been sentenced to nearly eight years in 2013. See O’Dell, 183 Wn.2d at 683.

6

In re Pers. Restraint of Frazier, No. 102295-6 (González, C.J., concurring in dissent)

to filing quickly, the act of filing itself may demonstrate dedication to one’s case and

diligent engagement with the law.

I would hold that an assessment of reasonable diligence must contend with the

realities facing the petitioner. These realities include disabilities, health, personal

experiences, reading and writing skills, education, economic circumstances, and

incarceration conditions. Furthermore, I would begin the evaluation of Frazier’s

reasonable diligence with the overruled appellate decision in Light-Roth, which

occurred in 2017, because that decision, however misguided, first alerted Frazier to

the fact that he could benefit from resentencing on the basis of our O’Dell decision.

Considering Frazier’s circumstances, and analyzing reasonable diligence beginning in

2017, it is clear that Frazier exhibited the requisite diligence.

With these observations, I join fully in the dissent.

______________________________

7