State Of Washington, V Azias Demetrius Ross ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 81031-6-I
Respondent,
ORDER DENYING MOTION
v. FOR RECONSIDERATION,
WITHDRAWING OPINION, AND
AZIAS DEMETRIUS ROSS, SUBSTITUTING OPINION
Appellant.
Appellant Azias Ross filed a motion for reconsideration of the opinion filed
on June 15, 2020. The court has determined that the motion should be denied.
However, the opinion should be withdrawn, and a substitute opinion filed.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied; and it is further
ORDERED that the opinion filed on June 15, 2020, is withdrawn; and it is
further
ORDERED that a substitute opinion shall be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81031-6-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
AZIAS DEMETRIUS ROSS,
Appellant.
CHUN, J. — At the age of 19, Azias Ross acted as the get-away driver in a
series of home invasions, leading a jury to convict him of ten felony offenses,
with multiple firearm enhancements and a deadly weapon enhancement. The
trial court sentenced Ross to 507 months for his role in these crimes. In a prior
appeal, Division Two of this court reversed Ross’s sentences on two counts,
concluding they exceeded the statutory maximum for the crimes when combined
with the firearm enhancements. The court remanded the case with instructions
to resentence Ross on these two counts “not to exceed the statutory maximum
sentence.” It also concluded the Judgment and Sentence erroneously numbered
a third count applicable to Ross and remanded to correct that scrivener’s error.
On remand, Ross argued the trial court had the discretion to resentence
him on all ten counts and to consider his youth as a mitigating factor in imposing
new sentences. The court determined it lacked discretion to do so and denied
his request. Ross appealed and filed a personal restraint petition (PRP) that
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81031-6-I/2
asserts other trial and sentencing errors.
We conclude the trial court did have discretion to consider Ross’s request
for a new sentencing hearing and thus abused its discretion in not considering
his request. We remand to the trial court to consider whether to grant Ross a
new sentencing hearing. We deny the PRP.
I. BACKGROUND
A jury convicted Ross of conspiracy to commit first degree burglary, two
counts of first degree burglary, two counts of first degree robbery, three counts of
first degree trafficking in stolen property, unlawful imprisonment, and theft of a
firearm. Each, except the theft of a firearm count and one of his trafficking
counts, included a firearm enhancement. The trafficking count without a firearm
enhancement included a deadly weapon enhancement. The jury also convicted
Ross of two counts of assault and another robbery count, but the trial court
determined those convictions violated double jeopardy and dismissed them
without prejudice.
On appeal, Division Two of this court affirmed Ross’s convictions. State v.
Oeung, noted at 196 Wn. App. 1011, slip op. at 70 (2016).1 But it remanded to
resentence Ross for his conspiracy and unlawful imprisonment counts because
his sentences, when combined with their firearm enhancements, exceeded the
statutory maximum sentence. Oeung, slip op. at 70. It also remanded to
acknowledge a scrivener’s error as to the trafficking count with a deadly weapon
enhancement and remanded that count for resentencing. Oeung, slip op. at 70.
1
Ross was tried with his girlfriend and accomplice, Soy Oeung.
2
No. 81031-6-I/3
Finally, it remanded to have the dismissal on double jeopardy grounds to be with
prejudice. Oeung, slip op. at 70.
Upon remand, Ross argued that because Division Two had remanded two
of his convictions for resentencing on the merits, the trial court had discretion to
fully resentence him on all counts. He also argued that changes in the law for
youth sentencing required the court to meaningfully consider his youthfulness
when resentencing him, and that the firearm enhancements in his sentence could
run concurrently. The court ultimately denied Ross’s request for a full
resentencing on the ground that it lacked the discretion to do so. The court also
distinguished the case Ross relied on in arguing that his firearm enhancements
could run concurrently—State v. Houston-Sconiers2—on the ground that Ross
was not a juvenile when he committed his crimes. Ross appeals. Ross also
submits a PRP related to issues at his trial and at sentencing.
II. ANALYSIS
A. Direct Appeal
In his direct appeal, Ross argues the trial court abused its discretion by
failing to recognize its discretion to fully resentence him on all counts. We agree.
A trial court has discretion on remand to revisit issues that were not the
subject of a previous appeal. State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393(2009) (citing State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993)). An
appellate court’s mandate limits the scope of a trial court’s discretion to
resentence on remand. Kilgore, 167 Wn.2d at 42. But if the mandate does not
2
188 Wn.2d 1, 391 P.3d 409 (2017).
3
No. 81031-6-I/4
limit the trial court to only ministerial corrections, then the court may conduct a
full resentencing proceeding. State v. Toney, 149 Wn. App. 787, 792–93, 205
P.3d 944 (2009); see also Kilgore, 167 Wn.2d at 41 (holding a trial court had
discretion under RAP 2.5(c)(1) to revisit an exceptional sentence on the
defendant’s remaining five convictions after the appellate court reversed two
convictions). We review for abuse of discretion whether a trial court erred by
declining to resentence a defendant. See Kilgore, 167 Wn.2d at 42.
Division Two concluded the trial court erred in calculating Ross’s standard
sentence range under RCW 9.94A.533(3)(g). Oeung, slip op. at 69. The
statutory maximum for Ross’s sentence for conspiracy was 10 years and for
unlawful imprisonment was 5 years. Oeung, slip op. at 69. Yet the original
sentencing court calculated his standard ranges, including the firearm
enhancements, at 132.75 to 164.25 months (11 years, 1 month to 13 years, 8
months) for conspiracy and 61 to 75 months (5 years, 1 month to 6 years, 3
months) for unlawful imprisonment. When calculating a standard sentencing
range with a firearm enhancement, RCW 9.94A.533(3)(g) requires the court to
reduce the base sentencing range so that when the firearm enhancement is
added, the total sentence does not exceed the statutory maximum. Division Two
vacated Ross’s sentences on these two counts and remanded to the trial court
“to correct the sentencing ranges” for the conspiracy and unlawful imprisonment
counts and to resentence Ross on these two counts “not to exceed the statutory
maximum under RCW 9.94A.021 and .533(3)g).” Oeung, slip op. at 68–69. It
also remanded for resentencing as to one of his trafficking counts. Oeung, slip
4
No. 81031-6-I/5
op. at 69.
We cannot conclude from these instructions that resentencing on the
conspiracy and unlawful imprisonment counts was purely ministerial. Because
Division Two’s mandate required the trial court to exercise its discretion and
impose a new sentence on these two counts, it did not limit the trial court to
ministerial corrections. Thus, the trial court had discretion to fully resentence as
to all counts. The trial court did not recognize its discretion to do so.3 We thus
remand for the trial court to consider Ross’s request for a new sentencing
hearing on all of his convictions.4
B. PRP
In his PRP, Ross raises claims related to the confrontation clause, the
State’s slides and oral assertions at trial, his special verdict forms, and
cumulative error. He also argues that changes in the law of youth sentencing
entitle him to resentencing. We reject these claims.
A petitioner alleging constitutional error in their PRP bears the “threshold,
prima facie burden of showing by a preponderance of the evidence that [they
3
The trial court recognized that Ross had an opportunity at his original
sentencing to argue that the court should consider his youth, that the original sentencing
court said it would not have granted an exceptional downward sentence, and that this
decision was a discretionary one that it did not believe appropriate to revisit under In re
Personal Restraint of Light-Roth, 200 Wn. App. 149, 401 P.3d 459 (2017). CP 659. But
that is a different matter than exercising discretion to resentence entirely.
4
Ross alternatively asserts his right to resentencing on the grounds that his
current sentence is unjust and unconstitutional under State v. O’Dell, 183 Wn.2d 680,
358 P.3d 359 (2015), State v. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017), and
Houston-Sconiers. Given our conclusion above, we do not reach these issues. And he
may direct such arguments to the trial court. But we do note that a court cannot
concurrently impose an adult offender’s firearm enhancements. See State v. Brown,
No. 79954-1-I, slip op. at 2-4 (Wash. May 18, 2020).
5
No. 81031-6-I/6
were] actually and substantially prejudiced by the alleged error.” In re Pers.
Restraint of Meippen, 193 Wn.2d 310, 315, 440 P.3d 978 (2019). The petitioner
must show that the outcome of their trial “would more likely than not have been
different had the alleged error not occurred.” Meippen, 193 Wn.2d at 316.
1. Confrontation clause
While testifying at trial, a police officer recounted a confession made by
one of Ross’s co-defendants, Nolan Chouap. Ross raises various issues relating
the officer’s testimony, arguing that its admission violated his Sixth Amendment
right to confront Chouap.5 The State argues that Ross has not shown actual and
substantial prejudice resulting from any violation. We agree with the State.
First, Ross contends that redactions in the testimony failed to protect his
identity. While testifying, the officer replaced any instance of Ross’s name with a
variant of “someone.” For example, the officer testified: “[Chouap] said that
somebody made a call and that [the guns] were all sold;” “after the incident,
[Chouap] and Azariah6 split up and [] Azariah [was] picked up by someone else;”
“[Chouap] believed Azariah [] had called somebody to come pick them up.” Ross
claims that it is clear, in context, that the “someone” is him. But it is not clear.
“Someone” may be an unindicted co-conspirator or another one of Chouap and
Ross’s co-defendants.7
5
The parties disagree over whether Ross preserved this challenge. Assuming
without deciding that he did so, as discussed in this section of the opinion, Ross’s claim
fails because he has not shown actual and substantial prejudice.
6
Azariah is Azariah Ross, Ross’s brother. For clarity, we refer to Azariah by his
first name. We mean no disrespect.
7
Ross and Chouap were co-defendants with Soy Oeung. Oeung, slip op. at 13.
6
No. 81031-6-I/7
Second, Ross points to Chouap’s statement about using a .38 revolver
during the burglaries. Ross claims this was the State’s strongest evidence as to
the firearm enhancements, and that if the officer had properly redacted his name
from the confession, the jury may not have found he committed his crimes with a
firearm. But Ross also made a confession that the same officer recounted at
trial. In that confession, he admitted knowing that his co-conspirators were
armed during their crimes. He also stated that if there was a shooting inside the
homes that his co-conspirators burglarized, they planned to contact him on a
“walkie-talkie.” Chouap’s confession was thus not the only evidence supporting
Ross’s firearm enhancements.
Third, Ross claims that although the court instructed the jury to disregard
Chouap’s confession when deciding whether to convict Ross, the jury likely
considered it regardless. But we presume that juries follow a court’s instructions.
State v. Hopson, 113 Wn.2d 273, 287, 778 P.2d 1014 (1989).
Fourth, Ross argues that references to his brother Azariah’s nickname
“Azzi” in the officer’s recount of Chouap’s confession prejudiced him; he says
because “Azzi” also resembles his name, Azias, the jury might have confused the
two. But when the officer referenced “Azzi,” he made clear that he was referring
to Azariah, not the petitioner.
Ross bears the burden of showing that any alleged confrontation clause
violation caused him actual and substantial prejudice. Assuming without
deciding that an error occurred, and that Ross preserved his challenge to it, we
conclude he has not met this burden, so his claim fails.
7
No. 81031-6-I/8
2. Prosecutorial misconduct
During closing argument, the State showed the jury a slide that had
Ross’s name connected by an arrow to the word “guilty.”8 The State also
showed slides explaining the legal circumstances under which Ross would be
“[s]till guilty” of the charged crimes.9 Ross claims the slides, when combined with
the State’s oral argument, constituted improper opinion argument warranting
reversal. The State disagrees, and argues that even if it did constitute
misconduct, Ross suffered no actual and substantial prejudice. We conclude this
claim fails.
To prevail on a prosecutorial misconduct argument, “the defendant must
establish both improper conduct by the prosecutor and prejudicial effect.” State
8
The slide reads:
Trafficking in Stolen Property 1
Azias was selling it at the time  Guilty
They knew as they aided that
the plan was to sell the stolen property  Guilty
Their accomplices were armed
as they stole  Special Verdict Yes
9
These slides read:
I was down for a burglary but did
not know they would be armed with a gun
↓
Still guilty of Burglary 1
I was down to rob but did
not know they would be armed with a gun
↓
Still guilty of Robbery 1
I was down to steal but did
not know they would find a gun
↓
Still guilty of Theft of a Firearm
I was down to scare them but did
not know they would do it with a gun
↓
Still guilty of Assault 2
8
No. 81031-6-I/9
v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). “Prejudice is established
only if there is a substantial likelihood the instances of misconduct affected the
jury’s verdict.” Pirtle, 127 Wn.2d at 672. If the claim comes in a PRP, the
petitioner must also “prove the alleged misconduct was either a constitutional
error that resulted in actual and substantial prejudice or a fundamental defect that
resulted in a complete miscarriage of justice.” In re Pers. Restraint of Lui, 188
Wn.2d 525, 539, 397 P.3d 90 (2017). “Where there is a failure to object to
improper statements, it constitutes a waiver unless the statement is ‘so flagrant
and ill-intentioned that it causes an enduring and resulting prejudice that could
not have been neutralized by a curative instruction to the jury.’” State v.
Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (quoting State v. Brown, 132
Wn.2d 529, 561, 940 P.2d 546 (1997).
A prosecutor may argue the facts in evidence and reasonable inferences
from those facts in their arguments, but may not make prejudicial statements that
the record does not support. Dhaliwal, 150 Wn.2d at 577. Prejudicial error
occurs only if “‘it is clear and unmistakable that counsel is not arguing an
inference from the evidence but is expressing a personal opinion.’” State v.
McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006) (quoting State v.
Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d
1003 (1983)).
Ross cites In re Personal Restraint of Glassman in which the prosecutor
showed the jury a slide of the defendant’s mugshot with the word “GUILTY”
superimposed in red letters over his face three times, twice diagonally and once
9
No. 81031-6-I/10
horizontally. 175 Wn.2d 696, 702, 286 P.3d 673 (2012). The defendant’s face
was battered in the photo. Glassman, 175 Wn.2d at 702. The prosecutor also
stated that the defendant was guilty as charged. Glassman, 175 Wn.2d at 702.
Our Supreme Court held that “[b]y expressing his personal opinion of Glassman’s
guilt through both his slide show and his closing arguments, the prosecutor
engaged in misconduct.” Glassman, 175 Wn.2d at 707. The court also held
there was a substantial likelihood that this misconduct affected the jury’s verdict.
Glassman, 175 Wn.2d at 708. The court reasoned that it would be highly
prejudicial for a prosecutor to shout in closing argument that a defendant is
“guilty, guilty, guilty!” Glassman, 175 Wn.2d at 708. The court reasoned that
“[d]oing this visually through use of slides showing Glassman’s battered face and
superimposing red capital letters (red, the color of blood and the color used to
denote losses) is even more prejudicial.” Glassman, 175 Wn.2d at 708. The
court noted that “‘[v]isual arguments manipulate audiences by harnessing rapid
unconscious or emotional reasoning processes and by exploiting the fact that we
do not generally question the rapid conclusions we reach based on visually
presented information.’” Glassman, 175 Wn.2d at 708 (quoting Lucille A. Jewel,
Through a Glass Darkly: Using Brain and Visual Rhetoric to Gain a Professional
Perspective on Visual Advocacy, 19 S. CAL. INTERDISC. L.J. 237, 289 (2010)).
Ross argues that here, as in Glassman, the State’s slides combined with
its oral argument constituted prosecutorial misconduct warranting reversal. The
State’s slides here are distinguishable from the slide in Glassman. These slides
explain the factual circumstances under which the jury could find Ross guilty, and
10
No. 81031-6-I/11
do not merely assert Ross’s guilt. And unlike in Glassman, the slides did not
include a battered picture of the defendant and they did not use color and capital
letters to accentuate its message. The slides were not improper.
And even assuming any oral assertions of guilt were improper, Ross does
not argue that the oral assertions were prejudicial on their own. Indeed, he
makes clear that his claim of prosecutorial misconduct depends on the
combination of the slides with the oral assertions of guilt.10 Thus, his
prosecutorial misconduct claim fails.
3. Special verdict forms
Ross argues his trial counsel performed ineffectively by failing to object to
jury instructions and special verdict forms that did not properly advise the jury of
the burden of proof for his firearm enhancements. We disagree.
Defendants have a constitutional right to effective assistance of counsel.
In re Pers. Restraint of Tsai, 183 Wn.2d 91, 99, 351 P.3d 138 (2015); U.S.
CONST. amend. 6; CONST. art. I, § 22. A defendant asserting ineffective
assistance of counsel bears the burden of establishing that (1) their trial counsel
performed deficiently, and (2) the deficient performance prejudiced the defense.
State v. Carson, 184 Wn.2d 207, 216, 357 P.3d 1064 (2015). To show that
counsel performed deficiently, Ross must show that trial counsel’s performance
10
Ross objected to the slides at trial, but not to any of the State’s oral assertions
of his guilt. Because of this, the State treats Ross’s slides claim as different from the
oral assertions claim. The State applies an “actual and substantial prejudice” standard
to the former, and a “flagrant and ill-intentioned” standard to the latter. Ross disputes
this approach and argues we should consider the slides, when combined with the oral
assertions of guilt, as one claim of prosecutorial misconduct, and apply the “actual and
substantial prejudice” standard. But we need not reach the question of which prejudice
standard applies since the slides were not improper.
11
No. 81031-6-I/12
“fell below an objective standard of reasonableness.” State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004). To show prejudice, Ross must show “‘that
there is a reasonable possibility that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.’” Carson, 184 Wn.2d at227 (citing State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). We
strongly presume that counsel performed effectively. Reichenbach, 153 Wn.2d
at 130.
“[A] sentencing court violates a defendant’s right to a jury trial if it imposes
a firearm enhancement without a jury authorizing the enhancement by explicitly
finding that, beyond a reasonable doubt, the defendant committed the offense
while so armed.” State v. Williams-Walker, 167 Wn.2d 889, 898, 225 P.3d 913(2010) (citing State v. Recuenco, 163 Wn.2d 428, 440, 180 P.3d 1276 (2008)).
Ross cites Williams-Walker in which our Supreme Court reviewed the
imposition of firearm enhancements on three defendants. 167 Wn.2d at 893–95.
In each case, the jury had submitted a special verdict form finding that the
defendant had committed their crime while armed with a deadly weapon.
Williams-Walker, 167 Wn.2d at 893–95. In each case, the sentencing court
imposed a firearm enhancement. Williams-Walker, 167 Wn.2d at 893–95. Our
Supreme Court held that for a court to impose a firearm enhancement, the jury
must have submitted a special verdict form finding that the defendant had
committed their crime while armed with a firearm. Williams-Walker, 167 Wn.2d
at 900. Because the trial courts involved imposed firearm enhancements without
such findings, they violated the defendants’ rights to a jury trial. Williams-Walker,
12
No. 81031-6-I/13
167 Wn.2d at 899–900.
Ross analogizes to Williams-Walker, and argues that the imposition of
firearm enhancements violated his right to a jury trial because the trial court did
not instruct the jury to find beyond a reasonable doubt that he committed his
crimes while armed with a firearm. We disagree.
Here, unlike in Williams-Walker, the jury submitted special verdict forms
finding that Ross committed his crimes while armed with a firearm. Oeung, slip
op. at 18 (“The jury found that for all of the counts with a firearm enhancement,
the enhancement applied, answering ‘yes’ on the special verdict forms.”).11
While the special verdict forms do not include reasonable doubt language, the
trial court instructed the jury that “[i]n order to answer a special verdict form ‘yes,’
all twelve of you must unanimously be satisfied beyond a reasonable doubt that
‘yes’ is the correct answer.” The trial court properly instructed the jury as to the
burden of proof for the firearm enhancements and the jury found that the crimes
11
Ross submitted only two of the pertinent special verdict forms into the record
for our review. Normally, we need not consider arguments unsupported by the record.
State v. Lough, 70 Wn. App. 302, 335, 853 P.2d 920 (1993), aff’d, 125 Wn.2d 847(1995). But because, in his first appeal, Division Two of this court addressed a similar
issue related to the jury instructions for the special verdict forms, we can conclude that
the jury found in a special verdict form that each crime was committed with a firearm.
See Oeung, slip op. at 18. The relevant forms in the record state:
QUESTION ONE: Was the defendant or an accomplice armed with a
deadly weapon at the time of the commission of the crime in Count XI?
ANSWER: YES (Write “yes” or “no”)
QUESTION TWO: Was the deadly weapon a firearm?
ANSWER: YES (Write “yes” or “no”)
In the two special verdict forms submitted to the court, the jury found that Ross or
an accomplice committed the associated crime with a firearm.
Ross also has attached to his motion for reconsideration additional
materials not contained in the record on review. This constitutes an unauthorized
appendix. RAP 10.3(a)(8). We strike the material.
13
No. 81031-6-I/14
were committed with a firearm. Thus, Ross’s trial counsel did not perform
deficiently by failing to object to the jury instructions and special verdict forms.
4. Cumulative error
Ross argues that cumulative error warrants reversal of his convictions.
“‘The cumulative error doctrine applies where a combination of trial errors denies
the accused a fair trial even where any one of the errors, taken individually, may
not justify reversal.’” In re Pers. Restraint of Yates, 177 Wn.2d 1, 65–66, 296
P.3d 872 (2013) (quoting In re Det. Of Coe, 175 Wn.2d 482, 515, 286 P.3d 29(2012). But because Ross’s individual claims lack merit, no cumulative error
occurred.
5. Resentencing
In his PRP, Ross argues that he is entitled to resentencing for three
reasons. First, he argues the trial court failed to consider his youth as a
mitigating factor as required by State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359(2015). Second, he argues the trial court failed to consider concurrent imposition
of firearm enhancements. Third, he argues his sentence is unconstitutional
under Houston-Sconiers. He also argues his trial counsel performed ineffectively
by failing to make the first two of these arguments to the trial court. While Ross
is entitled to resentencing based on the arguments raised in his direct appeal, we
conclude that the resentencing claims in Ross’s PRP fail.12
12
Ross also claims the State has conceded that he is entitled to resentencing.
Nothing in the State’s briefing suggests this, except for the concluding line of the State’s
response to his PRP. This appears to be a typographical error since no other part of the
State’s briefing suggests this, and its arguments make clear it opposes resentencing.
14
No. 81031-6-I/15
a. O’Dell
Ross argues the trial court abused its discretion by failing to consider his
youth as a meaningful factor warranting an exceptional downward sentence. He
was 19 and 20 years old at the times of the crimes. He also argues his trial
counsel performed ineffectively by failing to argue for an exceptional downward
sentence.
“‘While no defendant is entitled to an exceptional sentence below the
standard range, every defendant is entitled to ask the trial court to consider such
a sentence and to have the alternative actually considered.’” State v. Bunker,
144 Wn. App. 407, 421, 183 P.3d 1086 (2008) (quoting State v. Grayson, 154
Wn.2d 333, 342, 111 P.3d 1183 (2005)). “A trial court’s erroneous belief that it
lacks the discretion to depart downward from the standard sentencing range is
itself an abuse of discretion.” Bunker, 144 Wn. App. at 421.
In O’Dell, the defendant asked the trial court to impose an exceptional
downward sentence because his capacity to appreciate the wrongfulness of his
conduct was significantly impaired by his youth. 183 Wn.2d at 685. The trial
court refused because it believed it lacked the discretion to do so. O’Dell, 183
Wn.2d at 686. Our Supreme Court reversed, holding that while age does not
constitute a “per se mitigating factor automatically entitling every youthful
defendant to an exceptional sentence,” courts have the discretion to consider it
as a mitigating factor. O’Dell, 183 Wn.2d at 695–96.
Ross concedes he did not request an exceptional downward sentence at
his original sentencing. Thus, unlike in O’Dell, the trial court did not refuse to
15
No. 81031-6-I/16
consider an exceptional mitigated sentence based on his youth. See also In re
Pers. Restraint of Light-Roth, 191 Wn.2d 328, 337, 422 P.3d 444 (2018) (noting
that a petitioner could have, but did not, argue for an exceptional mitigated
sentence based on their youth). We also note that Ross bears the burden of
showing by a preponderance of the evidence that the trial court would have
imposed a lesser sentence if it had the discretion to depart from the standard
sentencing range and mandatory sentence enhancements. Meippen, 193 Wn.2d
at 317. And unlike O’Dell, the trial court here expressed that it would not impose
an exceptional downward sentence even if it could (“I would not have exercised
discretion in identifying a mitigation—a mitigating reason and would not have
imposed an exceptional sentence even if there were one available based on the
structure of the firearm enhancements.”). Given this statement, Ross has not
carried his burden. Ross’s circumstances differ significantly from those in O’Dell,
and he has not shown actual and substantial prejudice. Even assuming an
abuse of discretion occurred, his claim for resentencing on this ground fails.13
Since Ross has not shown prejudice, his claim for ineffective assistance of
counsel on this ground also fails. See Carson, 184 Wn.2d at 216.
b. Firearm enhancements
Ross argues the trial court abused its discretion by failing to recognize its
13
The trial court sentenced Ross before the issuance of O’Dell. Ross argues we
should retroactively apply O’Dell to his sentence. Our Supreme Court has not yet
decided whether O’Dell applies retroactively, and we need not do so here, since even if
it does, Ross has not shown actual and substantial prejudice. But see Light-Roth, 191
Wn.2d at 341 (González, J., concurring in result) (O’Dell applies retroactively because it
interpreted a provision of the Sentencing Reform Act).
16
No. 81031-6-I/17
discretion to impose the firearm enhancements concurrently, and not
consecutively. He also argues his trial counsel performed ineffectively by failing
to seek concurrent enhancements. We conclude the court did not have this
discretion, so Ross’s claim fails.
Under State v. McFarland, a court may impose firearm convictions
concurrently if “standard range consecutive sentencing for multiple firearm-
related convictions ‘results in a presumptive sentence that is clearly excessive in
light of the purpose of [the Sentencing Reform Act].’” 189 Wn.2d 47, 55, 399
P.3d 1106 (2017) (quoting RCW 9.94.535(1)(g)). But firearm enhancements
must run consecutively when imposed on adults. State v. Brown, No. 79954-1-I,
slip op. at 2-4 (Wash. May 18, 2020); RCW 9.94A.533(3)(e).
Since the trial court did not have discretion to concurrently impose the
firearm enhancements, Ross’s trial counsel did not perform ineffectively by failing
to request such.
c. Houston-Sconiers
Ross also claims his sentence is unconstitutional under Houston-Sconiers.
We disagree.
In Houston-Sconiers, our Supreme Court held that, when applied to
juveniles, the mandatory nature of firearm enhancements violates the federal
constitution’s Eighth Amendment. 188 Wn.2d at 25–26. Thus, Houston-Sconiers
holds that, when sentencing juveniles, courts have the discretion to impose
sentences below those mandated by applicable firearm enhancements. 188
Wn.2d at 21. But this holding applies only to juveniles. Houston-Sconiers, 188
17
No. 81031-6-I/18
Wn.2d at 21; see also Brown, slip op. at 3. Ross was not a juvenile when he
committed these crimes, so his claim of unconstitutionality fails.
We remand for the trial court to consider whether to grant Ross a new
sentencing hearing. We deny the PRP.
WE CONCUR:
18