State Of Washington, V Devin John Konecny ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
January 22, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51929-1-II
Respondent,
v.
DEVIN JOHN KONECNY, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Devin John Konecny appeals his exceptional sentence above the standard
range arguing it is clearly excessive. Konecny further challenges the imposition of certain legal
financial obligations (LFOs).1 We affirm Konecny’s sentence, but remand to the trial court to
strike certain LFOs.
FACTS
As a child, Konecny was exposed to drugs, abuse, and neglect. Konecny began using
methamphetamine at 10 years old. He dropped out of high school in the eighth grade. Konecny’s
grandfather raised him.
Doctors diagnosed Konecny with post-traumatic stress disorder, borderline personality
disorder, and severe stimulant use disorder. In 2008, doctors also diagnosed Konecny with
multiple sclerosis (MS).
1
The State concedes error.
51929-1-II
In 2016, Konecny was listed on Washington’s Most Wanted. Acting on a tip, officers
approached an apartment building where Konecny was reportedly staying. Konecny repeatedly
shot at the officers as they attempted to get Konecny to exit the apartment.
The State originally charged Konecny with ten counts of assault in the first degree with
special allegations that he was armed with a firearm at the time of each offense, two counts of
intimidating a police officer, and one count of unlawful possession of a firearm. After plea
negotiations, Konecny pleaded guilty to ten counts of assault in the second degree including five
firearm enhancements.
The parties stipulated to Konecny’s criminal history, which resulted in an offender score
of 32. Konecny had a standard range sentence on each of the ten assaults of 63-84 months, plus
180 additional months for the five firearm enhancements for a total standard range of 243-264
months. Konecny agreed that the State could recommend an exceptional sentence above the
standard range of 348 months. Konecny agreed “to the presence of an exceptional sentence.”
Clerk’s Papers (CP) at 94.
As agreed upon, the State recommended a sentence of 348 months. Konecny argued for
264 months. He emphasized his history of trauma and abuse that left him with limited emotional
maturity. Konecny also argued that the trajectory of his MS was unknown and that although he
could still walk, he had decreasing mobility. Konecny pointed out that even with the sentence he
recommended he had little likelihood of walking out of prison upon his release. Konecny also
argued he would likely not be able to work upon release. It would be unlikely that Konecny’s
grandfather, his primary source of support, would be able to support or assist Konecny upon
release.
2
51929-1-II
The sentencing court acknowledged that Konecny did not get “a very fair shake in life,”
given his history of abuse, neglect, and exposure to drugs at an early age. Report of Proceedings
(RP) (June 14, 2018) at 47. The court also acknowledged that even Konecny’s sentencing
recommendation would ultimately “end up being the equivalent [to] a life sentence.” RP (June 14,
2018) at 48. However, the court found that Konecny’s “high offender score result[ed] in some
current offenses going unpunished.” CP at 236; RCW 9.94A.535(2)(c). Based on this finding, the
court imposed the State’s recommended exceptional sentence above the standard range of 348
months. The court also imposed 18 months of community custody.
Lastly, the sentencing court found Konecny indigent and stated its intent to “waive all of
the fines and costs except for the crime victim penalty assessment and the restitution.” RP (June
14, 2018) at 49. However, on the judgement and sentence, the court did not cross off the boilerplate
language that imposed collection costs, interest on financial obligations, and supervision and
community placement fees. Konecny appeals.
ANALYSIS
I. EXCEPTIONAL SENTENCE
Konecny contends that his exceptional sentence above the standard range was clearly
excessive. We disagree.
The sentencing court has discretion to determine the appropriate length of an exceptional
sentence when substantial and compelling reasons are present. State v. Knutz, 161 Wash. App. 395,
410, 253 P.3d 437 (2011). We will, however, reverse a sentence above the standard range if the
sentence imposed is “clearly excessive.” RCW 9.94A.585(4). We have “considerable latitude”
when assessing whether a sentence is clearly excessive. State v. Halsey, 140 Wash. App. 313, 325,
165 P.3d 409 (2007).
3
51929-1-II
A sentence is clearly excessive if (1) it is “‘clearly unreasonable,’” i.e., is based on
untenable grounds or untenable reasons or (2) it is based on proper reasons, but its length “‘shocks
the conscience’” in light of the record. Knutz, 161 Wash. App. at 410-11 (internal quotation marks
omitted) (quoting State v. Kolesnik, 146 Wash. App. 790, 805, 192 P.3d 937 (2008)). Konecny
argues his sentence was unreasonable, and therefore clearly excessive, because there were several
factors that warranted an exceptional sentence below the standard range; the sentence does not
further the purpose of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW; and
Konecny’s sentence was a de facto life sentence.
Initially, Konecny received the sentence he bargained for. In State v. Ermels, 156 Wash. 2d
528, 533-34, 131 P.3d 299 (2006), the parties entered into a plea agreement where Ermels pleaded
guilty to a single charge and agreed that there was a basis for an exceptional sentence on that
charge. Ermels did so in exchange for the State’s agreement not to file a more serious charge with
a significantly longer standard range. Ermels then appealed his exceptional sentence. Ermels, 156
Wash. 2d at 535. The Supreme Court held that “[b]ecause the portions of [Ermels’s] plea agreement
stipulating to the facts supporting the exceptional sentence and the legal basis for the exceptional
sentence are indivisible from the rest of his plea agreement, he cannot challenge the exceptional
sentence without challenging the entire plea.” Ermels, 156 Wash. 2d at 542. Ermels did not challenge
his entire plea and the Supreme Court declined to “reframe his argument to do so.” Ermels, 156
Wash. 2d at 542.
4
51929-1-II
Additionally, in In re Pers. Restraint of Breedlove, 138 Wash. 2d 298, 310, 979 P.2d 417
(1999), the parties agreed that an exceptional sentence was justified in light of the crime. On
appeal, the Supreme Court held that the defendant’s agreement to an exceptional sentence, alone,
provided a substantial and compelling reason for an exceptional sentence. Breedlove, 138 Wash. 2d
at 300.
Similarly, here, Konecny agreed to plead to ten counts of assault in the second degree with
only five firearm enhancements. He was originally charged with ten counts of assault in the first
degree with ten firearm enhancements, two counts of intimidating a police officer, and one count
of unlawful possession of a firearm, which would result in a significantly longer standard range.
With the reduced charges, Konecny stipulated to an offender score of 32 and agreed that the State
could recommend an exceptional sentence above the standard range of 348 months. He also
stipulated that there was “the presence of an exceptional sentence.” CP at 94. Because Konecny
agreed to an exceptional sentence above the standard range, he cannot now challenge the
exceptional sentence without challenging his entire plea, which he does not do.
Nevertheless, Konecny’s exceptional sentence above the standard range is not clearly
excessive because it is supported by tenable grounds. The court imposed the sentence based on
RCW 9.94A.535(2)(c), which allows a sentencing court to impose an exceptional sentence when
the “defendant has committed multiple current offenses and the defendant’s high offender score
results in some of the current offenses going unpunished.” This statute gives the court the
“discretion to impose an exceptional sentence if it deems the defendant’s sentence will result in
5
51929-1-II
‘free crimes.’” State v. Brown, 193 Wash. 2d 280, 285, 440 P.3d 962 (2019). The sentencing court
also considered several mitigating factors including Konecny’s childhood and his illnesses. The
court considered that Konecny’s sentence would likely result in a life sentence, which could
potentially limit Konecny’s opportunity to improve himself. See RCW 9.94A.010(5) (one of the
purposes of the SRA is to “[o]ffer the offender an opportunity to improve himself or herself”).
But, these reasons did not overcome the tenable basis for an exceptional sentence provided in RCW
9.94A.535(2)(c). For this reason, Konecny’s sentence is not unreasonable. Thus, Konecny fails
to show that his sentence is clearly excessive.
Because Konecny received the sentence he bargained for and because his exceptional
sentence above the standard range is not clearly excessive, the sentencing court did not abuse its
discretion in imposing Konecny’s sentence.
II. LFOS
After the sentencing court found Konecny indigent, it stated its intent to “waive all of the
fines and costs except for the crime victim penalty assessment and the restitution.” RP (June 14,
2018) at 49. However, on the judgement and sentence, the court did not cross off the boilerplate
language that imposed collection costs, interest on financial obligations, and supervision and
community placement fees. Konecny argues that these costs and fees were erroneously imposed.
The State concedes that these fees were wrongly imposed. Regarding the interest section, the State
argues that section should be revised to relate solely to restitution.
We remand to the court to strike the LFOs that it did not intend to impose and to strike the
provision relating to interest on non-restitution LFOs.
6
51929-1-II
We affirm Konecny’s sentence, but remand to the trial court to strike certain LFOs.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Maxa, C.J.
Glasgow, J.
7