* State Of Washington, Respondent V. Brandon Dale Backstrom, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 77134-5-I
)
Respondent, )
)
v. )
)
BRANDON DALE BACKSTROM, ) ORDER GRANTING
) MOTION TO PUBLISH
Appellant. )
)
Respondent filed a motion to publish the court’s November 2, 2020 opinion.
The court asked for and received an answer from appellant. Following
consideration of the motion and answer, the panel has determined the motion
should be granted. Now, therefore, it is hereby
ORDERED that respondent’s motion to publish is granted.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 77134-5-I
)
Respondent, )
)
v. )
)
BRANDON DALE BACKSTROM, ) PUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — Trial courts must meaningfully consider, but have
considerable discretion to weigh, the mitigating factors of youth when
sentencing a defendant convicted of crimes committed as a juvenile. Because
the trial court meaningfully considered mitigating evidence of Brandon
Backstrom’s youthfulness during resentencing, including evidence of his
capacity for rehabilitation, the court did not abuse its discretion.
Therefore, we affirm.
FACTS
In 1997, 17-year-old Brandon Backstrom killed his neighbors, a mother
and her 12-year-old daughter, during a planned robbery of their home.1 He
1 The details of Backstrom’s crime are available in this court’s
unpublished opinion affirming his conviction. State v. Backstrom, noted at 102
Wn. App. 1042 (2000).
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No. 77134-5-I/2
2
was convicted on two counts of aggravated first degree murder while armed
with a deadly weapon and received a mandatory sentence of two consecutive
terms of life without the possibility of parole. Each count also carried a 24-
month deadly weapon enhancement.
In 2012, the Supreme Court decided Miller v. Alabama2 and held the
Eighth Amendment prohibits mandatory sentences for juveniles of life in prison
without the possibility of parole. In response, the legislature enacted the
Miller-fix statute,3 which requires that any juvenile sentenced to life in prison
without the possibility of parole be resentenced.4
In 2017, a trial court held a Miller hearing for Backstrom and sentenced
him to two concurrent terms of a minimum of 42 years up to a maximum term
of life. The court declined to impose any confinement for the deadly weapon
enhancements.
Backstrom appealed, and we reviewed his appeal as a personal
restraint petition and affirmed. He petitioned the Supreme Court for review,
and it remanded for reconsideration in light of its decision in State v.
Delbosque.5, 6
2 567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
3 RCW 10.95.030(3), .035.
4 State v. Bassett, 192 Wn.2d 67, 74, 428 P.3d 343 (2018) (citing
RCW 10.95.035).
5 195 Wn.2d 106, 456 P.3d 806 (2020).
6 State v. Backstrom, 195 Wn.2d 1018, 456 P.3d 209 (2020).
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No. 77134-5-I/3
3
ANALYSIS
An appeal from a Miller-fix resentencing is a direct appeal of the newly-
imposed sentence.7 We review sentencing decisions for abuse of discretion
and will reverse where the trial court’s decision rests on untenable grounds or
was made for untenable reasons.8
A trial court lacks the discretion to impose a standard range sentence
without first considering the mitigating circumstances of youth where the
defendant committed the crime as a juvenile.9 When the court considers the
appropriate mitigating circumstances, it has “absolute discretion” to impose a
sentence “proportionate for a particular juvenile” to avoid imposing an
unconstitutionally disproportionate sentence.10 An appellate court “cannot
reweigh the evidence on review,” even if it “cannot say that every reasonable
judge would necessarily make the same decisions as the court did.”11
During a Miller resentencing hearing, the trial court “‘must fully explore
the impact of the defendant’s juvenility on the sentence rendered.’”12
7 Delbosque, 195 Wn.2d at 129.
8 Id. at 116 (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27
(2012).
9 In re Pers. Restraint of Ali, No. 95578-6, slip op. at 9-10 (Wash. Sept.
17, 2020), http://www.courts.wa.gov/opinions/pdf/955786.PDF.
10 Id. at 10 (citing State v. Houston-Sconiers, 188 Wn.2d 1, 19 n.4, 34,
391 P.3d 409 (2017)).
11 State v. Ramos, 187 Wn.2d 420, 453, 387 P.3d 650 (2017).
12 Id. at 443 (quoting Aiken v. Byars, 410 S.C. 534, 543, 765 S.E.2d 572
(2014)).
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No. 77134-5-I/4
4
Consequently, both the court and counsel have an affirmative duty to ensure
that proper consideration is given to the defendant’s chronological age at the
time of his crime and related features, including immaturity, impetuosity, and a
failure to appreciate risks and their consequences.13 The court must also
consider the defendant’s childhood and life experiences before the crime, the
defendant’s capacity for exercising responsibility, and evidence of the
defendant’s rehabilitation since the crime.14
On remand, as in his earlier appeal following resentencing, Backstrom
presents a narrow legal challenge, contending the trial court failed to
“meaningfully consider” the mitigating circumstances of youth.15 He does not
challenge the sufficiency of the court’s findings on resentencing nor does he
contend the court failed to consider relevant mitigating evidence. Essentially,
he presents two arguments: first, the court engaged in cursory consideration of
the Miller factors by giving too much weight to the facts of the offense and
insufficient weight to mitigating evidence, and, second, the court disregarded its
own findings about his potential for rehabilitation when it resentenced him.
13 Id. (citing Miller, 567 U.S. at 477).
14 See RCW 10.95.030(3)(b) (requiring that courts sentencing juveniles
for aggravated first degree murder account for the “age of the individual, the
youth's childhood and life experience, the degree of responsibility the youth
was capable of exercising, and the youth’s chances of becoming
rehabilitated”); accord Miller, 567 U.S. at 477-78.
15 Appellant’s Br. at 8; Supp. Appellant’s Br. at 10.
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No. 77134-5-I/5
5
Neither argument is compelling because they are not supported by the
record or the law. The court reviewed the entire trial transcript, testimony given
as part of Backstrom’s motion for a new trial, the original sentencing decision,
the denial of Backstrom’s motion for a new trial, the original appellate opinion,
memoranda provided for resentencing, an expert report and a mitigation
investigation report prepared for the Miller hearing, letters supporting and
opposing Backstrom’s petition, victim impact letters, and all statements and
testimony from the hearing itself. From this, the court explicitly, thoughtfully,
and carefully considered each mitigating factor required by the Miller-fix statute,
RCW 10.95.030(3)(b):
. . . [H]e was young. Clearly, he was less than 18. It was
a time at which all the science and, of course, our own common
sense tells us that his brain and accompanying decision-making
abilities were not fully formed.
His lifestyle at the time clearly illustrated that he had very
poor decision-making abilities and very poor judgment. So he
certainly wasn’t a person who was more mature than a typical
17 year old, and I think by his own statements . . . as he put it,
[even more] selfish than some and possibly self-centered based
on his age and circumstances.
I considered the surrounding environmental and family
circumstances. It does appear with the exception of support of
grandparents that Mr. Backstrom had little or no family
support. . . . He was drinking excessively. He was attending
school sporadically, and he did not have much in the way of
external controls whatsoever.
. . . .
In terms of his rehabilitation, there’s no question in my
mind that the person who sits here today is very, very different
than the person of 20 years ago . . . And if Dr. Muscatel is
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No. 77134-5-I/6
6
correct that success in prison translates to a good chance of
success in society if released, then his prospects for
rehabilitation . . . are fairly strong.[16]
The court also weighed whether Backstrom’s age impacted his legal
defense, his potential impetuousness at the time of the crime and whether
impetuousness played a role in the crime itself, and whether his compromised
decision-making abilities reduced his capacity for exercising responsibility and
appreciating risks. The court found Backstrom’s chronological age, his family
circumstances, and his prospects for rehabilitation were mitigating factors. The
record shows the court weighed the mitigating evidence and conducted more
than a cursory review.
In Delbosque, by contrast, the trial court “oversimplified and sometimes
disregarded Delbosque’s mitigation evidence” and entered findings lacking
substantial evidence about his potential for rehabilitation.17 The trial court
concluded Delbosque was “irretrievably depraved without reconciling, much
less acknowledging, significant evidence to the contrary.”18 Because the trial
court’s conclusions about Delbosque’s ability to be rehabilitated lacked
substantial evidence, resentencing was required.19
16 RP (June 28, 2017) at 181, 184.
17 195 Wn.2d at 118-19, 120.
18 Id. at 120.
19 Id. at 130-31.
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No. 77134-5-I/7
7
Here, Backstrom does not contend the court’s findings lacked
substantial evidence, and the court carefully reviewed and weighed the
mitigating evidence. He asserts the trial court concluded he was permanently
incorrigible by referring to the then-recent Court of Appeals decision of State v.
Bassett,20 but the record shows otherwise. The court here, unlike the trial court
in Bassett,21 did not minimize evidence of rehabilitation and sentence
Backstrom to life imprisonment without parole. Indeed, contrary to Backstrom’s
assertion that the court disregarded its findings about his capacity for
rehabilitation, his new sentence is substantially shorter, roughly half of his
original sentence,22 and he now may become eligible for parole. He may
disagree with how the court weighted the evidence, but we do not reweigh
evidence on review.23 Because the trial court carefully and meaningfully
considered the mitigating evidence presented, including his potential for
rehabilitation, and had complete and absolute discretion to weight it when
20 198 Wn. App. 714, 394 P.3d 430 (2017), aff’d in part, 192 Wn.2d 67,
428 P.3d 343 (2018).
21 192 Wn.2d 67, 75, 428 P.3d 343 (2018).
22 Backstrom will serve his 42-year sentences concurrently rather than
consecutively, and he will no longer receive any incarceration for the weapon
enhancements to his original sentence, which eliminates four years from his
sentence.
23 Ramos, 187 Wn.2d at 453.
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No. 77134-5-I/8
8
fashioning a proportionate sentence,24 Backstrom fails to show the court
abused its discretion.
Therefore, we affirm.
WE CONCUR:
24 See Ali, No. 95578-6, slip op. at 10 (trial court has absolute discretion
to weigh mitigating evidence in Miller resentencing); Houston-Sconiers, 188
Wn.2d at 21 (holding the trial court has “complete discretion to consider
mitigating circumstances” of youth when sentencing for crimes committed by a
juvenile).
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