State Of Washington, V Phillip Victor Hicks ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
March 16, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53822-9-II
Respondent,
v.
PHILLIP VICTOR HICKS, UNPUBLISHED OPINION
Appellant.
CRUSER, J. – Phillip Victor Hicks appeals from his resentencing on his first degree murder,
attempted first degree murder, and first degree unlawful possession of a firearm convictions.
Hicks, who was 20 years and 5 months old when he committed the crimes, argues that the
resentencing court failed to give meaningful consideration to his request for an exceptional
mitigated sentence based on his youth and brain development at the time of the commission of the
crimes. Hicks raises additional arguments in a Statement of Additional Grounds for Review1
(SAG). Because Hicks does not show that the court abused its discretion when it denied his request
for an exceptional sentence and his SAG arguments fail, we affirm.
1
RAP 10.10.
No. 53822-9-II
FACTS
I. BACKGROUND, TRIAL, AND ORIGINAL SENTENCING
The background facts in this case were succinctly summarized by our supreme court in
Hicks’s original appeal:
On the night of March 21, 2001, two men approached Jonathan Webber and
his wife Chica as they were walking from a friend’s house and asked the couple if
they had drugs. The Webbers told the men that they did not and kept walking. The
two men followed the Webbers, demanding several times that they empty their
pockets. The Webbers continued walking, and the two men started shooting at
them. Jonathan sustained wounds to his leg, wrist, and the left side of his back, but
survived. Chica died. The autopsy of Chica’s body revealed that she had been shot
three times in the head—twice by a .22 revolver and once by a 9 mm handgun.
Jonathan and another witness, Wayne Washington, also testified that the shots came
from two firearms. Jonathan identified Hicks in a photomontage as one of his
assailants . . . .
....
On April 24, 2001, the police arrested Hicks for unrelated drug dealing
charges. Hicks made statements implicating himself in the Webber shootings.
State v. Hicks, 163 Wn.2d 477, 481-82, 181 P.3d 831 (2008) (footnotes omitted). Hicks was
convicted of first degree murder with a firearm sentencing enhancement, attempted first degree
murder with a firearm sentencing enhancement, and first degree unlawful possession of a firearm.
At the 2004 sentencing hearing, Hicks argued that the trial court should consider his
difficult upbringing, traumatic background, and mental health issues and impose sentences at the
low-end of the standard ranges. The court acknowledged that Hicks’s mental health issues and
background were significant factors and that they were “legitimate sentencing considerations.”
Clerk’s Papers (CP) at 117. But it found that the “shocking” and “senseless” nature of the crimes,
the resulting impact on the community’s sense of security, and the danger Hicks posed to the
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No. 53822-9-II
community “strongly outweighed” those considerations to the point the court was not “swayed by
them.” Id.The court sentenced Hicks to 416 months for the first degree murder conviction, 240
months for the attempted first degree murder conviction, and 89 months for the first degree
unlawful possession of a firearm conviction. It also imposed two 60-month firearm sentencing
enhancements. The court ran the first degree murder sentence, the attempted first degree murder
sentence, and the two firearm enhancements consecutively. It ran the first degree unlawful
possession of a firearm sentence concurrent to the murder and attempted murder sentences. The
total term of confinement was 776 months.
II. APPEAL, PERSONAL RESTRAINT PETITIONS, AND REMAND FOR RESENTENCING
Hicks appealed his convictions. In 2008, our supreme court affirmed. Hicks, 163 Wn.2d at
494. In 2009, Hicks filed a personal restraint petition (PRP) that we dismissed. Order Dismissing
Petition, In re Pers. Restraint of Hicks, No. 39310-7-II (Wash. Ct. App. Dec. 8, 2015).
Hicks filed a second PRP in 2018. In re Pers. Restraint of Hicks, No. 51831-7-II (Wash.
Ct. App. Dec. 18, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051831-7-
II%20Unpublished%20Opinion.pdf. This time, Hicks argued, and the State conceded, that the trial
court had applied incorrect sentencing ranges and used incorrect offender scores when determining
the sentences for the first degree murder and attempted first degree murder convictions. In re
Hicks, No. 51831-7-II, slip op. at 2-3. We accepted the State’s concession that Hicks was “entitled
to be resentenced under [State v. Weatherwax, 188 Wn.2d 139, 156, 392 P.3d 1054 (2017)].”2 Id.2
Weatherwax addressed the calculation of offender scores and standard ranges for multiple current
offenses that include two serious violent offenses when the two serious violent offenses share the
same seriousness level but one of the offenses is an anticipatory offense. 188 Wn.2d at 142-44.
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No. 53822-9-II
at 3. Accordingly, we granted the petition, and “remand[ed] his judgment and sentence for
resentencing.” Id.
III. RESENTENCING
At the resentencing hearing, the parties agreed that the court needed to resentence Hicks
under the corrected offender scores and sentencing ranges. The State asked the court to sentence
Hicks to the high end of the sentencing range for each offense. It requested that the court run the
first degree murder and attempted first degree murder sentences consecutively and the first degree
unlawful possession of a firearm concurrently, which would result in a new total base sentence of
632 months. It further requested that the court run the two firearm sentencing enhancements
consecutive to each other and to the first degree murder and attempted first degree murder
sentences. The new total term of confinement the State requested was 752 months, 24 months less
than the original total term of confinement.
Hicks asked the court to consider a downward departure3 based on his immaturity and
youthfulness at the time of the crimes, his “fractured upbringing,” his mental health issues, and his
“positive development since the offense and the age of twenty.” CP at 30. Hicks argued that even
though he was over 18 when he committed the crimes, the court could consider these mitigating
factors under Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), State v.
3
Specifically, Hicks requested concurrent sentences of 240 months for the first degree murder
conviction, 234 months for the attempted first degree murder conviction, and 67 months for the
unlawful possession of a firearm conviction, for a new base sentence of 240 months. He further
requested that the two 60-month firearm sentencing enhancements run concurrent to each other
but consecutive to the substantive offenses, for a total term of confinement of 300 months, or 25
years.
4
No. 53822-9-II
Gilbert, 193 Wn.2d 169, 438 P.3d 133 (2019), and State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359(2015).
In support of his request for a mitigated sentence, Hicks presented the court with a
declaration from Robert Halon, Ph.D., discussing Hicks’s “shattered and unstable childhood”
which, which Hicks asserted had “retarded his maturation.” CP at 36. In this declaration, Dr. Halon
described the recent scientific understanding of brain growth and development in terms of both the
brain’s neurological maturation and the external factors that influence brain development. Dr.
Halon also described the numerous biological factors (such as family history of addiction and
mental health issues, the possibility that Hicks suffered from fetal alcohol syndrome, and possible
issues with his birth) and the numerous sociological/experiential factors (such as a history of severe
neglect and abuse and extraordinary traumatic experiences that Hicks suffered as a child) that
could have influenced Hicks’s brain maturation and development.
Additionally, Dr. Halon described Hicks’s history of escalating delinquent or criminal
behavior starting in the sixth grade. Dr. Halon stated that Hicks had been diagnosed with
posttraumatic stress disorder and explosive intermittent disorder during evaluations conducted in
2003 to investigate the possibility of a not guilty by reason of insanity plea. Dr. Halon noted that
these diagnoses led to Hicks obtaining therapy and mental health treatment while in prison that
had since enabled Hicks to recognize and take responsibility for his crimes and to “improve[e] his
coping methods and maturity.” Id. at 52. Dr. Halon also commented on Hicks’s continuing
maturation, growth, and development during his incarceration.
Dr. Halon concluded his declaration with the following statement,
Hicks’[s] background reveals fundamental early life experiences that
deterred, prevented and delayed development of maturity in the areas of
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No. 53822-9-II
understanding, anticipating and assessing risks and consequences, impulse control,
pro-social behavior and resistance to peer pressure. Mr. Hicks is a classic example
of a man who, because of destructive family and environmental conditions in his
developmental and later adolescent years, lacked normally developing neurological
maturity, conscience-morality, the ability to control his emotions and to identify,
anticipate and negotiate consequences and make reasoned decisions; that is,
maturation that 17 years of formal and informal remedial experiences and a close
partner relationship now makes possible.
Id. at 53 (emphasis omitted).
Hicks also presented written statements from his family members and friends describing
how Hicks had matured and changed and was now a positive influence in their lives, and describing
his lack of stability as a child.4
The State responded that because Hicks was 20 years old when he committed the crimes
and not a juvenile, the court did not have “unfettered discretion” when imposing the sentence.
Verbatim Report of Proceedings (VRP) at 22. The State argued that the sentence Hicks requested
required the court to find mitigating circumstances and that Hicks had not established such
circumstances. The State contended that the court had “nothing before” it that established that
Hicks “was significantly impaired in his capacity to appreciate the wrongfulness of his conduct
and to conform to the law.” Id. at 25.
After hearing argument, the court discussed “the facts of the crime[s]” and characterized
the crimes as “very heinous, callous, and selfless (sic).” Id. at 38. The court then stated,
No doubt you had a difficult childhood. I reviewed everything that was
presented to this Court. And you did spend much of your childhood and your youth
in the dependency system. I read it all.
4
Hicks did not include an affidavit or statement from himself addressing whether he understood
the wrongfulness of his actions or whether he lacked the ability to conform to the law at the time
he committed the crimes.
6
No. 53822-9-II
You gained a significant amount of maturity, though, during these past 17
years in prison. And you’ve had counseling and therapy, and you serve as a mentor
to other prisoners. And now you even have a wife and a young child.
But you were 20 years and five months old at the time you committed the
murder of Ms. Webber and the attempted murder of Mr. Webber. So Houston-
Sconiers[5] drew the line at age 18 for the Court to have pretty much unfettered
discretion with sentencing for youthful offenders.
After 18, the Court is very constrained, and departures from that standard
sentencing range must be limited to exceptional circumstances where the defendant
did not know his behavior was wrong or he was significantly impaired in
controlling his behavior.
I’m finding that there’s absolutely no support for these conclusions, and the
Court is denying your request for an exceptional sentence downward.
Yes, you were in the dependency and foster care system. Yes, your parents
let you down. Every child should have a good childhood. No, it was not easy for
you. So I am considering your circumstances, sir. I am considering.
I’m also considering that you were 20 years and five months old, but you
knew right from wrong when you were committing those crimes.
You had a lengthy criminal history prior to March 22, 2001. You had nine
felonies; you had four misdemeanors in 12 criminal cases. Seven were for theft-
related offenses so you were very familiar with the justice system and knew fully
the consequences of committing criminal acts.
Again, you told Jonathan to empty his pockets or he was going to die. But
[C]hica died. And Jonathan, as you’ve heard, continues to have significant
problems . . . .
So I am sentencing you to the high end of the new sentencing range for the
murder first degree. I’m sentencing you to 320 months. I’m also sentencing you to
the 60 months for the firearm sentencing enhancement.
For the attempted murder, I am acknowledging that you have had
rehabilitative efforts while in prison and that you are working hard towards
rehabilitation and to help others, and I think that that is commendable. I am taking
5
State v. Houston-Sconiers, 188 Wn.2d 1, 9, 391 P.3d 409 (2017) (courts sentencing juveniles
have the discretion to impose any sentence below the standard range and enhancements and must
take the defendant’s age into account at sentencing).
7
No. 53822-9-II
24 months off of the high end -- the highest end of count two, the attempted murder
first degree. I’m giving you 288 months, again, with 60 months for the firearm
sentence enhancement.
So the base counts are to run consecutive, not concurrent. Consecutive. And
the firearm sentencing enhancements are also to run consecutive. So both will count
60 months for the firearm sentencing enhancements. And, again, running
consecutive, not concurrent.
....
As to the unlawful possession of a firearm first degree, I am adding 89
months for count three. That, however, will run concurrent with counts one and
two.
....
Again, it’s a very difficult case. Community needs to feel safe when they’re
walking down the street. And I know that there was trauma that you experienced,
but there’s also been a significant amount of trauma that your actions have imposed
on others and we’re very clear on where that is right now.
Id. at 39-42 (emphasis added).
The court sentenced Hicks to 320 months on the first degree murder conviction, 288
months on the attempted first degree murder conviction, and 89 months on the first degree unlawful
possession of a firearm conviction. Running the first degree murder, attempted first degree murder,
and two firearm enhancements consecutively, and running the unlawful possession of a firearm
sentence concurrently, resulted in a total term of confinement of 728 months.
Hicks appeals the denial of his request for an exceptional sentence.
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No. 53822-9-II
ANALYSIS
I. DENIAL OF REQUEST FOR EXCEPTIONAL SENTENCE
Hicks argues that the resentencing court abused its discretion when it refused to grant his
request for an exceptional sentence downward. Hicks argues that the court erred because it failed
to meaningfully consider his youth as a possible mitigating factor.6 We disagree.
“A defendant may appeal a standard range sentence [only] if the sentencing court failed to
comply with procedural requirements of the [Sentencing Reform Act7] or constitutional
requirements.” State v. Osman, 157 Wn.2d 474, 481-82, 139 P.3d 334 (2006). “The court may
impose a sentence outside the standard sentence range for an offense if it finds . . . that there are
substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535.8
Youthfulness is a mitigating factor that may justify an exceptional sentence below statutory
sentencing guidelines, even when the defendant is a legal adult. O’Dell, 183 Wn.2d at 688-89. The
court may consider whether youth diminished the defendant’s capacity to “appreciate the
6
The State argues that Hicks was not entitled to request a downward departure based on his youth
at the resentencing hearing because the case was remanded solely for resentencing under the
corrected offender scores. Thus, the State contends, Hicks’s new standard-range sentence is not
appealable. We disagree.
When an appellate court remands a defendant’s case for only a ministerial correction, the
trial court does not have discretion to conduct a full resentencing. State v. Toney, 149 Wn. App.
787, 792, 205 P.3d 944 (2009). But when an appellate court remands a defendant’s case for
resentencing, the trial court has discretion to resentence the defendant on all counts. Id. at 793.
Here, we remanded Hicks’s case for resentencing under the corrected offender scores and standard
ranges, not just for a ministerial correction, and we did not limit the scope of the resentencing. In
re Hicks, No. 51831-7-II, slip op. at 3. Accordingly, Hicks’s sentence is appealable.
7
Chapter 9.94A RCW.
8
The legislature has amended RCW 9.94A.535 several times since the date of the offenses, but
this section has not changed, so we cite to the current version of the statute.
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No. 53822-9-II
wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the
law.” RCW 9.94A.535(1)(e); O’Dell, 183 Wn.2d at 689.
“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. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (emphasis
omitted). When a defendant requests review of an exceptional sentence, the question is not whether
we agree with the court’s judgment. Rather, our review is limited to circumstances where either
the court “refused to exercise discretion at all or has relied on an impermissible basis for refusing
to impose an exceptional sentence below the standard range.” State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997); State v. Khanteechit, 101 Wn. App. 137, 140, 5 P.3d 727(2000). Impermissible bases for declining a request for an exceptional sentence include race, sex,
or religion. Garcia-Martinez, 88 Wn. App. at 330. “A court refuses to exercise its discretion if it
refuses categorically to impose an exceptional sentence below the standard range under any
circumstances.” Id. A “failure to exercise discretion is itself an abuse of discretion subject to
reversal.” O’Dell, 183 Wn.2d at 697. But, “a trial court that has considered the facts and has
concluded that there is no basis for an exceptional sentence has exercised its discretion, and the
defendant may not appeal that ruling.” Garcia-Martinez, 88 Wn. App. at 330.
In Grayson, the court, rather than considering the facts of the offender’s case, denied the
motion for a drug offender sentencing alternative (DOSA) because the “‘State no longer has money
available to treat people who go through a DOSA program.’” 154 Wn.2d at 337 (emphasis omitted)
(quoting Report of Proceedings at 152-53). Our supreme court held that the court’s failure “to
exercise any meaningful discretion in deciding whether a DOSA sentence was appropriate” was
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No. 53822-9-II
an abuse of discretion. Grayson, 154 Wn.2d at 335-36. Similarly, in O’Dell, our supreme court
determined that the court’s mistaken belief that it did not have the ability to consider youth as a
mitigating factor was a failure to exercise, and therefore an abuse of its discretion. 183 Wn.2d at
697.
But here, unlike in O’Dell and Grayson, the record demonstrates that the court was aware
that it had the ability to consider Hicks’s youth, brain development, and personal circumstances.
In fact, the record shows that the court considered those factors. It acknowledged Hicks’s difficult
upbringing, his efforts and success at rehabilitation, and stated that it had “reviewed everything
that” Hicks had presented to the court before finding that there was no basis for an exceptional
sentence below the standard range. VRP at 39. The court exercised its discretion by considering
the facts and concluding that no basis for an exceptional sentence existed. Accordingly, Hicks does
not show that the court abused its discretion when it declined to impose the exceptional sentence.
II. SAG
Hicks presents three additional claims in his SAG. These claims fail.
Hicks first claims that the resentencing court considered only his age and his “previous
exposure to the criminal justice system” and that it did not meaningfully consider the brain science
evidence demonstrating that he may have had impulse control issues and an inability to appreciate
the consequences of his action. SAG at 1. Although the court did not discuss the brain science
evidence in detail in its oral ruling, the court stated that it had considered all of the materials Hicks
had provided. Accordingly, the record does not support this claim.
Hicks next claims that because Dr. Halon concluded that he (Hicks) endured experiences
as a youth that prevented or delayed his development and the State did not refute these findings,
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No. 53822-9-II
the court was required to order an assessment by a trained professional rather than come to its own
conclusions regarding whether mitigating circumstances existed. But Hicks did not request an
additional evaluation prior to resentencing, and there is nothing in the record regarding whether an
additional evaluation would have assisted Hicks.
Furthermore, in O’Dell, our supreme court held “that despite the scientific and technical
nature of the studies underlying the [decisions supporting the O’Dell court’s decision], a defendant
need not present expert testimony to establish that youth diminished his capacities for purposes of
sentencing” and that “lay testimony” was all that was required. 183 Wn.2d at 697. Requiring an
assessment by an expert in lieu of the court’s own conclusion would be inconsistent with that
holding. Accordingly, this claim has no merit.
Finally, Hicks contends that his sentence of more than 60 years violates the state
constitution’s prohibition of cruel punishment9 because his sentence is the equivalent of a life
sentence without “parole” based on “crimes that [he] lacked the ability to understand and
comprehend the consequences of.” SAG at 2-3. But the court did not find that Hicks lacked the
ability to understand or comprehend the consequences of his acts. Thus, Hicks does not show that
his punishment amounts to cruel punishment.
Because Hicks does not show that the resentencing court abused its discretion when it
denied his request for an exceptional sentence and his SAG arguments fail, we affirm.
9
Article I, section 14 of the state constitution provides: “Excessive bail shall not be required,
excessive fines imposed, nor cruel punishment inflicted.”
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No. 53822-9-II
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.
CRUSER, J.
We concur:
MAXA, J.
SUTTON, A.C.J.
13