memorandum opinion that set forth the court's findings and conclusions.

C. Appeal and review

Delbosque directly appealed, and the Court of Appeals unanimously reversed in a published opinion. State v. Delbosque,6 Wn. App. 2d 407, 430 P.3d 1153 (2018). The court held that "the proper method for Delbosque to seek review of the superior court's order is a PRP," but it decided to "disregard this procedural defect and review Delbosque's appeal as a PRP." Id. at 413-14.

On the merits, the court held that "(1) the superior court's findings regarding Delbosque having an attitude toward others reflective of the underlying crime and of Delbosque's permanent incorrigibility and irretrievable depravity are not supported by substantial evidence and (2)the superior court failed to comply with the Miller-fix statute when setting the minimum term." Id. at 414. The court therefore determined that Delbosque's restraint is unlawful, granted his PRP, and remanded for resentencing. Id. at 421.

The State filed a petition for review challenging the Court of Appeals' decision on the merits. Delbosque sought review of the Court of Appeals' decision to treat his appeal as a PRP. We granted review of both issues.

ISSUES State V. Delbosque, No. 96709-1

A. Were the superior court's findings supported by substantial evidence in the record?

B. If the findings were not supported by substantial evidence, is the appropriate remedy to remand for resentencing to give the trial court the benefit of our subsequent decisions?

C. Does RCW 10.95.035(3), which requires parties seeking review of a minimum term sentence imposed pursuant to the Miller-fix statute to file a PRP, violate the right to appeal in criminal cases guaranteed by article I, section 22 of the Washington Constitution?

ANALYSIS

A. The Court of Appeals was correct in its review ofthe trial court's findings

Three provisions ofthe Miller-fix statute govern Delbosque's resentencing. First, RCW 10.95.035(1) provides that juveniles who received such sentences prior to June 1, 2014 "shall be returned to the sentencing court or the sentencing court's successor for sentencing consistent with RCW 10.95.030." Second, RCW 10.95.030(3)(a)(ii) gives 16- to 18-year-old juvenile homicide offenders a chance to become eligible for parole by requiring that they receive "a maximum term of life imprisonment and a minimum term of total confinement of no less than twenty-five years." Third, RCW 10.95.030(3)(b) provides:

In setting a minimum term, the court must take into account mitigating factors that account for the diminished culpability of youth as provided State V. Delbosque, No. 96709-1

in Miller v. Alabama, 132 S.Ct. 2455 (2012) including, but not limited to, 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.

We will reverse a sentencing court's decision only if we find '"a clear abuse of discretion or misapplication of the law.'" State v. Blair, 191 Wn.2d 155, 159, 421 P.3d 937(2018){quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997)). A trial court abuses its discretion when "its decision 'is manifestly unreasonable or based upon untenable grounds.'" State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27(2012)(quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). Further, "[t]he 'untenable grounds' basis applies 'if the factual findings are unsupported by the record.'" Id.(quoting In re Marriage ofLittlefield, 133 Wn.2d 39, 47, 940 P.2d 1362(1997)).

Here, the State contends that the Court of Appeals erred when it held that two of the superior court's findings were not supported by substantial evidence. We review findings of fact for substantial evidence. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705 (2014). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We affirm that the Court of Appeals properly held that substantial evidence did not support the following findings:(1)that Delbosque continues to exhibit an attitude toward others that is reflective of the underlying murder where he chooses to State V. Delbosque, No. 96709-1

advance his own needs over others and (2)that the crime was not symptomatic of transient immaturity, but has proven over time to be a reflection of iiTeparable corruption, permanent incorrigibility, and irretrievable depravity. Accordingly, we hold that the trial court abused its discretion, reverse Delbosque's sentence, and remand for resentencing.

State V. Delbosque, No. 96709-1

In its oral decision, the trial court analyzed whether Delbosque's crime was "a reflection of transient immaturity associated with youth, or something more heinous, often characterized by words such as irreparable corruption, permanent inconigibility, irretrievable depravity, such that rehabilitation is impossible, making life without parole justified." 4 VRP (Nov. 23, 2016) at 655. This analysis "consider[ed] the actual crime, as well as the life and actions of[Delbosque] after he committed the crime." Id. Yet the primary evidence for this finding was, as with the prior finding, based on the crime, Delbosque's attempt to implicate his girlfriend, and his 2010 infraction. Accordingly, the Court of Appeals properly determined that "Delbosque's infraction is not evidence of irreparable corruption proven over time. Delbosque had been in prison for approximately 15 years before the 2010 infraction, and the infraction took place 6 years before the evidentiary hearing." Delbosque,6 Wn. App. 2d at 418.

The Court of Appeals further considered that the trial court "failed to address the greater prospects for reform from a crime committed while Delbosque was a child. . . . The court's rationale is also inconsistent with Miller's recognition that incorrigibility is inconsistent with youth." Id. at 420. This reasoning is consistent with our case law indicating that irreparable corruption should be rare. State V. Bassett, 192 Wn.2d 67, 89, 428 P.3d 343 (2018). Indeed, Bassetfs State V. Delbosque, No. 96709-1

prohibition on juvenile life without parole sets a high standard for concluding that a juvenile is permanently incorrigible.

Furthermore, the trial court's oral ruling oversimplified and sometimes disregarded Delbosque's mitigation evidence. For example, the Court of Appeals considered the following testimony from Dr. Heavin, who evaluated whether youth was a factor in Delbosque's case: '"[Yjouthfulness, combined with trauma, made him less likely to monitor his own behavior responsibly, inhibit aggressive behavior,"' and '"his relative risk taking was greater than a typically developing youth without those same risk factors.'" Delbosque,6 Wn. App. 2d at 411. Yet the trial court recharacterized Dr. Heavin's conclusions by stating that "these risk factors had the potential for a significant impact on [Delbosque's] ability as a juvenile to appropriately respond to his surroundings and appreciate the ramifications of his actions." 4 VRP (Nov. 23, 2016) at 645 (emphasis added). In fact. Dr. Heavin asserted that "lack of good decision making was a cumulative effect ofthe various traumas he'd experienced, the poverty he'd experienced, his lack of education, his lack of relative social support and his alcohol dependence."

3 VRP (Nov. ^[1], 2016) at 510. In other words. Dr. Heavin did not testify that Delbosque's life experiences merely had the potential to have a negative impact on his decisions, but that they actually did have such an impact. The court also State V. Delbosque, No. 96709-1

minimized expert testimony about Delbosque's alcohol addiction at the time of the crime and how alcohol uniquely impacts the developing teenage brain.

Similarly, the oral ruling does little to acknowledge Delbosque's mitigation evidence demonstrating his capacity for change. The Court of Appeals highlighted testimony that Delbosque "would qualify for minimum security except for the term of his sentence and an immigration detainer." Delbosque, 6 Wn. App. 2d at 410. In addition, Dr. Saint Martin testified that Delbosque's relatively few infractions over a 23-year period, coupled with his progressive decrease in security level, were proof that he was not iiTeparable and in fact could safely be released. He further opined that Delbosque's risk for future dangerousness would be low. This evidence, however, was not addressed in the trial court's analysis.

These examples suggest that the trial judge did not adequately consider mitigation evidence that would support a finding of diminished culpability, rather than irretrievable depravity. Miller hearings require sentencing courts to meaningfully consider "mitigating factors that account for the diminished culpability of youth," including "the youth's chances of becoming rehabilitated." RCW 10.95.030(3)(b). Moreover, the trial court concluded that Delbosque is irretrievably depraved without reconciling, much less aclcnowledging, significant evidence to the contrary. We therefore affirm the Court of Appeals' conclusion that substantial evidence does not support a finding of permanent incorrigibility.

State V. Delbosque, No. 96709-1

B. Given the lack of substantial evidence, we remand for resentencing to give the trial court the benefit of our subsequent decisions

After Delbosque's 2016 resentencing hearing, this court decided two cases that significantly altered juvenile sentencing in Washington. The first was State v. Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017). There, we outlined considerations that trial courts must take into account when conducting a Miller hearing. Bassett followed shortly thereafter, categorically eliminating juvenile life without parole. Bassett, 192 Wn.2d at 91. In light of these cases, a remand for resentencing is appropriate so the superior court may have the benefit of recent, relevant precedent when resentencing Delbosque.

State V. Delbosque, No. 96709-1

187 Wn.2d at 434-35 (emphasis added). This means a court "must do far more than simply recite the differences between juveniles and adults and make conclusory statements that the offender has not shown an exceptional downward sentence is justified." Id. at 443. 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.

Predicting a juvenile's future dangerousness is extremely difficult. As the United States Supreme Court has acknowledged,"The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character." Roper v. Simmons, 543 U.S. 551, 570, 125 S. Ct. 1183, 161 L. Ed. 2d

1 (2005). Miller further attests that "a child's character is not as 'well formed' as an adult's; his traits are 'less fixed.'" Miller, 567 U.S. at 471 (quoting Roper, 543 U.S. at 570). For this reason, resentencing courts must consider the measure of rehabilitation that has occun-ed since a youth was originally sentenced to life without parole.

Indeed, other courts have also continued to refine their review of Miller hearings in this regard. For instance, the Ninth Circuit Court of Appeals recently remanded a Miller resentence to the district court based on the "district court's State V. Delbosque, No. 96709-1

heavy emphasis on the nature of[the defendant's] crime, coupled with [the defendant's] evidence that his is not one of those rare and uncommon cases for which LWOP [life without parole] is a constitutionally acceptable sentence." United States v. Briones, 929 F.3d 1057, 1067 (9th Cir. 2019). In clarifying what is required in a Miller hearing, the Ninth Circuit declared that sentencing courts "must reorient the sentencing analysis to a forward-looking assessment of the defendant's capacity for change or propensity for incorrigibility, rather than a backward-focused review of the defendant's criminal history." Id. at 1066. "The key question is whether the defendant is capable of change. If subsequent events effectively show that the defendant has changed or is capable of changing, LWOP is not an option." Id. at 1067 (citation omitted). These observations are highly relevant in light of the evidence Delbosque presented at his resentencing hearing.

Next, Bassett held that ROW 10.95.030(3)(a)(ii) is unconstitutional to the extent that it allows any juvenile to be sentenced to life without parole. Bassett, 192 Wn.2d at 91. Consequently, every judge conducting a Miller sentencing in Washington must set a minimum term that is less than life. In Ramos, we stated that a "standard range consecutive sentencing may, and in this case did, result in a total prison term exceeding the average human life-span—^that is, a de facto life sentence." Ramos, 187 Wn.2d at 434. However, we did not define "de facto life sentence" as a "total prison term exceeding the average human life-span." Id.

State V. Delbosque, No. 96709-1

Rather, we explicitly stated, "It is undisputed that Ramos' 85-year aggregate sentence is a de facto life sentence, so the question of precisely how long a potential sentence must be in order to trigger Miller's requirements is not before us. We reserve ruling on that question until we have a case in which it is squarely presented." Id. at 439 n.6 (emphasis added). Although the trial court clearly intended to impose a life sentence when setting Delbosque's 48-year minimum term, the question of whether this amounts to a de facto life sentence is not squarely presented here, either. We therefore decline to address the issue.

In sum, Bassett has narrowed the available sentences under the Miller-fix statute, while Ramos and other courts have clarified what a meaningful consideration of youth requires in terms of procedure. The superior court would benefit from such precedent in making its resentencing decision.

State V. Delbosque, No. 96709-1

position, the Court of Appeals properly did not assign a burden of proofto either the State or Delbosque when reviewing the trial court's decision.'^

The State's argument is grounded in its incorrect belief that Delbosque "bears the burden of proving that his crime was the result of transient immaturity."^ Id. at 5 (citing Ramos, 187 Wn.2d at 434-37). The State misinterprets Ramos. There, we held that in the context ofthe Sentencing Reform Act of 1981 (SKA), ch. 9.94A RCW,a juvenile bears the burden of proving by a preponderance of evidence that an exceptional sentence below the standard range is justified. Ramos, 187 Wn.2d at 435. This reasoning does not extend to sentencing hearings pursuant to the Miller-fix statute, which unlike the SRA,does not impose a burden of proof on either party. Indeed, the trial court rightly stated that although Miller and RCW 10.95.030(3)(b)"provide factors and guidelines for the court to consider during the resentencing hearing ... they do not establish any presumptions to be created or rebutted by any party." Clerk's Papers(CP)at 238. We agree with the State V. Delbosque, No. 96709-1 trial court that the statute does not allocate a burden of proof, and we decline to write one in.

The State further asserts that the Court of Appeals "treat[ed] age as a per se mitigating factor," going so far as to characterize the opinion as "say[ing] that all children, all the time, no matter the conduct and irrespective of the facts of the crime, are entitled to a mitigated sentence." Mot. for Review at 6. Far from this, the Court of Appeals merely emphasized the central tenets of Graham^ and Miller. Children are '"less deserving of the most severe punishments' . . . and their traits are less likely to be evidence of iiTetrievable depravity." Delbosque,6 Wn. App. 2d at 419 (internal quotation marks omitted)(quoting Miller, 567 U.S. at 471).

Thus, the State's arguments that the Court of Appeals misallocated the burden of proof and improperly treated age as a per se mitigating factor are not supported by the record or the law. In addition, our cases decided after Delbosque's resentencing provide significant guidance on the standards that sentencing courts should apply at Miller hearings. We therefore hold that the Court of Appeals correctly reversed Delbosque's sentence and remanded for a new Miller hearing.

C. The Court of Appeals incoiTectly held that Delbosque may seek review of his resentence only by PRP, in violation of article I, section 22 State V. Delbosque, No. 96709-1

We now consider whether RCW 10.95.035(3) violates article I, section 22 of the Washington Constitution. Article I, section 22 of the Washington Constitution provides,"In criminal prosecutions the accused shall have ... the right to appeal in all cases." Meanwhile, RCW 10.95.035(3) provides,"The court's order setting a minimum term is subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986." We review a statute's constitutionality de novo and presume that the statute is constitutional. Bassett, 192 Wn.2d at 77. To prevail, Delbosque must show the statute is unconstitutional beyond a reasonable doubt. Id.

Parole board decisions setting minimum terms before July 1, 1986 were reviewed by PRP,thus the Court of Appeals determined that Delbosque's appeal was improper and treated it as a PRP. Delbosque,6 Wn. App. 2d at 413-14. Delbosque argued to the Court of Appeals that allowing review only by PRP violates article I, section 22, but the Court of Appeals declined to consider his argument, concluding that he raised it too late. Id. at 413 n.3. We exercise our discretion to reach the merits of Delbosque's argument because it is an important constitutional issue that is likely to recur.

With few exceptions, our case law is clear that criminal defendants have the right to appeal sentences and to correct legal errors and abuses of discretion. Whether Delbosque has a right to appeal turns on whether the Miller-fix remedy State V. Delbosque, No. 96709-1

provides only for an amended sentence or requires an actual resentencing. The plain language of RCW 10.95.035(3) and Washington precedent suggest that a Miller hearing results in a new, appealable sentence. We therefore reverse the Court of Appeals on this issue and hold that RCW 10.95.035(3) violates article I, section 22 of the Washington Constitution.

State V. Delbosque, No. 96709-1

applies." Id. Thus, even where a statute appears to broadly prohibit any direct appeal, certain appeals must be allowed pursuant to article I, section 22.

In the context of resentencing, the right to appeal may depend on the nature and scope of the errors in the original sentence. The Court of Appeals has held that

[rjemand to correct a scrivener's error does not result in a new final judgment and sentence and, accordingly, the court's action to correct the error is not appealable as a matter of right. But remand for resentencing renders the prior judgment and sentence void and results in a new final judgment, which is appealable as a matter of right. State V. Amos, 147 Wn. App. 217, 224 n.l, 195 P.3d 564(2008)(citations omitted). Our cases likewise recognize that remand and resentencing means that a defendant's "entire sentence [is] reversed, or vacated . . . the finality of the judgment is destroyed." State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104 (2003)(finding collateral estoppel did not apply because the defendant's prior sentence "ceased to be a final judgment on the merits").

Thus, to determine whether there is a constitutional right to directly appeal from a sentence imposed pursuant to the Miller-fix statute, we must consider whether the statute requires only an amendment of the original sentence or the entry of an entirely new sentence.

State V. Delbosque, No. 96709-1

Restraint ofMcNeil, 181 Wn.2d 582, 590, 334 P.3d 548 (2014)("The Miller fix remedies the unlawfulness of the petitioners' sentences by providing they must be resentenced in a manner that does not violate the Eighth Amendment, consistent with Miller"). When an apparently legal sentence is later held unconstitutional, as here, the remedy is to "remand[] to the superior court, with instructions to resentence appellants in accordance with law." State v. Lindsey, 194 Wash. 129, 130, 77 P.2d 596(1938)(emphasis added); see also State v. Mehlhorn, 195 Wash. 690, 692-93, 82 P.2d 158 (1938). Such resentencing is subject to direct appeal.

Lindsey and Mehlhorn illustrate how we have long treated resentences as appealable. Both cases concerned an ex post facto law overturned by the United States Supreme Court. Lindsey, 194 Wash, at 130; Mehlhorn, 195 Wash, at 691. The invalid sentences did not '"necessitate the granting of a new trial, or vacation of the verdict found,'" but rather served as '"a ground for reversing the erroneous judgment or sentence, leaving the verdict to stand as a basis for a new and proper sentence.'" Lindsey, 194 Wash, at 131 (quoting 8 RULING Case Law Criminal Law § 237, at 237 (1915)). Mehlhorn further explained that the erroneous sentence was "void as to offenses committed prior to its enactment" and thus required resentencing. Mehlhorn, 195 Wash, at 691. In both instances, the defendants directly appealed their resentencing decisions.

State V. Delbosque, No. 96709-1

Resentencing in accordance with the Miller-fix statute is consistent with the resentencing at issue in Lindsey and Mehlhorn. In both situations, the defendant was given a sentence that was later held unconstitutional, and in both situations the defendant was given a new, appealable sentence. The Miller-fix statute itself describes the process as "resentencing" that, like the resentencing in Lindsey, does not require a new trial on the defendant's underlying conviction. RCW 10.95.035(4)("A resentencing under this section shall not reopen the defendant's conviction to challenges that would otherwise be barred by RCW 10.73.090, 10.73.100, 10.73.140, or other procedural bamers."). Thus, like the defendants in Lindsey and Mehlhorn, individuals sentenced pursuant to the Miller-fix statute are constitutionally entitled to direct appeal.

Nevertheless, because the Miller-fix statute provides that sentences will be "subject to review to the same extent as a minimum term decision by the parole board before July 1, 1986," one might presume that the two situations are similar. RCW 10.95.035(3). This is not the case. Sentences imposed pursuant to the Miller-fix statute are procedurally and constitutionally distinct from minimum term sentences set by the parole board before July 1, 1986.

The imposition of a minimum term sentence prior to July 1, 1986 occurred in an administrative setting where the parole board "relie[d] on standardized guidelines and inform[ed] an inmate of the reasons for his or her minimum term State V. Delbosqiie, No. 96709-1

when outside the guideline range." In re Pers. Restraint ofSinka, 92 Wn.2d 555, 565-66, 599 P.2d 1275 (1979). Consequently, this court determined that "the setting of a minimum term is not part of a criminal prosecution and the full panoply of rights due a defendant in such a proceeding does not apply to a minimum term setting." Id. at 566.

A resentencing pursuant to the Miller-fix statute is entirely different. Unlike a parole board hearing, a Miller hearing is adversarial, involves arguments from both the defendant and the State, and mandates that a sentencing judge consider specific criteria that account for the diminished culpability of youth. These differences demand more stringent due process protections than the "minimal due process" at stake in a minimum term hearing before the parole board. Id. at 556. Whereas review by PRP is appropriate for a minimum term sentence imposed by the parole board, the same cannot be said for a sentence pursuant to Miller.

Thus, both the procedures involved and the statutory language itself strongly indicate that the Miller-fix statute requires the trial court to vacate the eiToneous life without parole sentence and impose a new minimum term consistent with the statutory criteria. Such resentencing necessarily results in a new, appealable sentence.^

^ The trial judge proceeded as though this was the case, explaining in his memorandum opinion that "[t]he Order and Judgment will reflect. . . that the sentence set forth . . . will be State V. Delbosque, No. 96709-1 State V. Delbosque, No. 96709-1 substitute for an appeal because it provides limited bases for relief. See RAP 16.4(c).

These heightened protections of a direct appeal as compared to a PR? are especially significant in the context ofjuvenile sentencing. Indeed, we have recognized that "[wjhen a juvenile offender is sentenced in adult court, youth matters on a constitutional level." Ramos, 187 Wn.2d at 428. Prohibiting juveniles from appealing their Miller sentences not only violates their right to appeal, but runs contrary to our cases that bolster protections for juvenile offenders facing lengthy sentences. E.g., Bassett, 192 Wn.2d 67; Ramos, 187 Wn.2d 420; State V. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409(2017)(holding sentencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant).

The fact that Delbosque could seek review by PRP is therefore insufficient. The Miller-f\x statute requires a full resentencing, and the sentence imposed must be subject to direct appeal. RCW 10.95.035(3) therefore violates the right to appeal in criminal cases guaranteed by article 1, section 22.

CONCLUSION

We affirm the Court of Appeals' holding that the trial court's findings were not supported by substantial evidence and hold that the Court of Appeals properly remanded Delbosque's case for resentencing. However, we reverse the Court of State V. Delbosqiie, No. 96709-1

Appeals' determination that the only avenue to review a Miller resentencing is by PRP. We therefore affirm in part, reverse in part, and remand for resentencing.

State V. Delbosque, No. 96709-1

WE CONCUR: VJi Z J-LU