Filed Washington State Court of Appeals Division Two November 9, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 54110-6-II Respondent, v. ORDER GRANTING MOTION FOR RECONSIDERATION AND NGA NGOEUNG, WITHDRAWING OPINION Appellant. Respondent, State of Washington, moves this court to reconsider its August 31, 2021 opinion. After consideration, we grant the motion. The court’s August 31, 2021 opinion is hereby withdrawn and a new opinion will be filed in due course. It is SO ORDERED. Panel: Jj. Maxa, Cruser, Veljacic FOR THE COURT: Veljacic, J. Filed Washington State Court of Appeals Division Two August 31, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 54110-6-II Respondent, v. NGA NGOEUNG, UNPUBLISHED OPINION Appellant. VELJACIC, J. — In 1995, a jury convicted Nga Ngoeung of two counts of aggravated murder in the first degree, two counts of aggravated assault in the first degree, and one count of taking a motor vehicle without the owner’s permission. The trial court resentenced Ngoeung in 2015 under the “Miller1 fix” statutes, RCW 10.95.035 and .030(3). He appeals the sentence he received in 2019 on remand from this court’s decision in State v. Nga (NMI) Ngoeung,2 his second resentencing under the Miller fix. Ngoeung argues that the sentencing court erred in denying his motion to recuse the sentencing judge. He also argues that the court failed to meaningfully consider all of the Miller factors, failed to take into account his history when evaluating his potential for rehabilitation, and failed to explain why it imposed standard range consecutive sentences for his two assault 1 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). 2 No. 47157-4-II (Wash. Ct. App. Dec. 27, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2047157-4-II%20Order%20Amending.pdf. 54110-6-II convictions. Finally, he asserts that the court improperly placed the burden to prove his youth as a mitigating factor on him, and that the burden of proof should instead have been on the State. We do not reach Ngoeung’s argument regarding recusal because he failed to provide us with an adequate record on which to review the issue. While recognizing the rapidly changing area of law related to life sentences in our state,3 we conclude that the trial court both failed to meaningfully consider the Miller factors and failed to explain its reasoning in imposing Ngoeung’s sentence. Accordingly, we reverse the sentence previously imposed and remand for resentencing. FACTS I. THE CRIME 4 In August 1994, four high school boys drove down a Tacoma street throwing eggs. Some of the eggs hit a house that turned out to be a hangout for a local gang. Ngoeung, then age 17, Oloth Insyxiengmay, age 15, and Soutthanom Misaengsay, age 13, were associated with the gang and were outside the house during the egging. Believing the attack was gang related, Insyxiengmay entered the house and took the owner’s rifle. The three boys got in a car, and with Ngoeung driving, followed the …
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