Opinion
No. 56648-6-II
11-07-2023
STATE of Washington, Respondent, v. Clinton Lamont LARRY, Appellant.
Kate Benward, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant. Pamela Beth Loginsky, Pierce County Prosecuting Attorneys Office, 930 Tacoma Ave S. Rm. 946, Tacoma, WA, 98402-2171, for Respondent.
Kate Benward, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.
Pamela Beth Loginsky, Pierce County Prosecuting Attorneys Office, 930 Tacoma Ave S. Rm. 946, Tacoma, WA, 98402-2171, for Respondent.
PART PUBLISHED OPINION
Maxa, J.
¶1 Clinton Larry appeals his sentence imposed after the trial court granted his CrR 7.8 motion for a resentencing pursuant to State v. Houston-Sconiers , 188 Wash.2d 1, 391 P.3d 409 (2017). Although the trial court found that mitigating factors of youth warranted an exceptional sentence downward and reduced his sentence from 552 months to 480 months, Larry challenges aspects of the resentencing process. The State argues that Larry's appeal is moot under In re Personal Restraint of Hinton , 1 Wash.3d 317, 525 P.3d 156 (2023), and In re Personal Restraint of Carrasco , 1 Wash.3d 224, 525 P.3d 196 (2023), because RCW 9.94A.730(1) – which allows a person sentenced for an offense committed as a juvenile to petition for release after 20 years of confinement – provides him with an adequate remedy.
¶2 The State also cross-appeals, arguing that the trial court did not have the authority to order that the four firearm sentencing enhancements would be subject to earned early release time as opposed to flat time as part of the exceptional sentence.
¶3 We hold that (1) Hinton and Carrasco do not apply to Larry's appeal because those cases were based on RAP 16.4(d), which applies only to personal restraint petitions (PRPs) in the appellate court; (2) article I, section 14 of the Washington Constitution does not require presumptive application of the sentencing ranges under the Juvenile Justice Act of 1997, chapter 13.40 RCW (JJA), once a trial court finds that mitigating factors of youth warrants an exceptional sentence downward; and (3) regarding the State's cross-appeal, the trial court did not exceed its authority in ordering the firearm sentencing enhancements to be subject to earned early release time. In the unpublished portion of this opinion, we consider and reject Larry's other arguments.
¶4 Accordingly, we affirm Larry's sentence.
FACTS
Background
¶5 In 1999, when he was 17 years old, Larry planned and carried out a robbery of the Burger King at which he had worked. He was joined by an accomplice. During the course of the robbery, Larry kidnapped the manager of the Burger King and shot him multiple times.
¶6 Larry was convicted on five counts: first degree attempted murder (count I), first degree kidnapping (count II), and three counts of first degree robbery (counts III-V), with firearm sentencing enhancements on counts I through IV. He was sentenced to a total of 600 months of confinement, including 240 months of sentencing enhancements. In addition, restitution was ordered in the amount of $47,434.49 to the victim and $4,500.48 to an insurance company.
¶7 In 2005, Larry was resentenced due to a correction of his offender score. He was resentenced to a total of 552 months of confinement, including 240 months of firearm sentencing enhancements. Restitution was set in the same amount as in the original order.
¶8 In 2017, Larry filed a CrR 7.8 motion requesting resentencing pursuant to Houston-Sconiers . The trial court granted the motion.
Resentencing
¶9 At resentencing, the State asked the trial court to impose the same sentence that was imposed in 2005. Larry asked the court to impose a total of 264 months on all charges.
¶10 The trial court noted that it could consider "Mr. Larry's age and any apparent lack of ability to control his impulses that may have existed in 1999, ... a perceived lack of understanding, ... [and] cause and effect of what sort of consequences his behaviors at the time might bring about," in order to consider imposing an exceptional sentence. Report of Proceedings (RP) (Oct. 19-20, 2021) at 138. After reviewing the court filings from the previous sentencings, pleadings submitted by the parties, witness testimony, and counsels’ arguments, the trial court found that there was a basis for an exceptional sentence.
¶11 The trial court found that nothing mitigated Larry's participation in the crime because he was the "ringleader." Clerk's Papers (CP) at 372. But the court did consider and account for Larry's youth, childhood experience, cognitive development, and his behavior in prison.
¶12 The trial court determined that an exceptional sentence below the standard range was appropriate and authorized by Houston-Sconiers . The court sentenced Larry to 240 months on count I, 51 months on count II, and 144 months each on counts III through V, to run concurrently. The sentence on the five counts totaled 240 months. That sentence was an exceptional sentence because count I and count II were serious violent offenses that would be served consecutively to each other in a standard range sentence.
¶13 The trial court also imposed firearm sentencing enhancements of 240 months – 60 months each on counts I through IV – to run consecutively to each other and to the underlying counts. The sentence resulted in a total of 480 months of confinement. But the trial court stated that as an exceptional sentence authorized by Houston-Sconiers , it was ordering that the firearm sentencing enhancements would be subject to reduction for earned early release time – as opposed to flat time – at the same percentage as counts I and II.
¶14 Larry appeals his sentence, and the State cross-appeals the trial court's order that the firearm sentencing enhancements be subject to reduction for earned early release time.
ANALYSIS
A. MOOTNESS UNDER RAP 16.4(d)
¶15 The State argues that Hinton and Carrasco render Larry's appeal moot because he has an adequate remedy under RCW 9.94A.730(1). We disagree.
¶16 Under RAP 16.4(d), an "appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances."
¶17 The substantive rule in Houston-Sconiers prohibits application of adult standard ranges in the Sentencing Reform Act of 1981, chapter 9.94A (SRA) and enhancements that would be disproportionate punishment for juveniles who possess diminished culpability. Hinton , 1 Wash.3d at 328-29, 525 P.3d 156, 525 P.3d. But RCW 9.94A.730(1) grants defendants that were sentenced to lengthy terms for offenses committed as juveniles the right to petition the Indeterminate Sentence Review Board (ISRB) for early release after serving no less than 20 years. Offenders subject to RCW 9.94A.730 are entitled to a parole hearing before the ISRB with a presumption of release. RCW 9.94A.730(3). And if an offender's petition is denied, he or she "may file a new petition for release five years from the date of denial or at an earlier date as may be set by the board." RCW 9.94A.730(6).
¶18 Because RCW 9.94A.730 effectively converts a standard range adult sentence into an indeterminate sentence for juvenile offenders, the Supreme Court in Hinton and Carrasco held under RAP 16.4(d) that RCW 9.94A.730 is an adequate remedy for a violation of the Houston-Sconiers substantive rule. Hinton , 1 Wash.3d at 334-35, 525 P.3d 156, 525 P.3d ; Carrasco , 1 Wash.3d at 230-32, 525 P.3d 196, 525 P.3d. Therefore, the court affirmed the dismissal of the PRPs in both cases. Hinton , 1 Wash.3d at 321, 525 P.3d 156, 525 P.3d ; Carrasco , 1 Wash.3d at 227, 525 P.3d 196, 525 P.3d.
¶19 However, RAP 16.4(d) expressly applies only to appellate courts and only to PRPs . The rule expressly does not apply to trial courts or to CrR 7.8 motions. In Hinton and Carrasco , the petitioners filed CrR 7.8 motions seeking resentencing pursuant to Houston-Sconiers , and the trial courts transferred the motions to the Court of Appeals for consideration as PRPs. Hinton , 1 Wash.3d at 322, 525 P.3d 156, 525 P.3d ; Carrasco , 1 Wash.3d at 228-29, 525 P.3d 196, 525 P.3d. Here, Larry filed a CrR 7.8 motion for resentencing pursuant to Houston-Sconiers , but the trial court granted the motion. Therefore, Larry's motion was never converted to a PRP. As a result, under its express language, RAP 16.4(d) is inapplicable here.
¶20 We acknowledge that both CrR 7.8 motions and PRPs are collateral attacks. See RAP 10.73.090(2) (a collateral attack is "any form of postconviction relief other than a direct appeal"). But RAP 16.4(d) refers specifically to PRPs, not to collateral attacks.
¶21 The State cites to State v. Hubbard , 1 Wash.3d 439, 527 P.3d 1152 (2023), to argue that the rule that a court cannot provide relief if an alternative adequate remedy is available applies equally to a CrR 7.8 motion in the trial court and a PRP in the appellate court. But Hubbard did not address RAP 16.4(d). Instead, the court held that the one-year time bar in RCW 10.73.090 applies equally to CrR 7.8 motions and PRPs. Hubbard , 1 Wash.3d at 451, 527 P.3d 1152, 527 P.3d. But RCW 10.73.090 refers generally to "collateral attacks," while RAP 16.4(d) expressly is limited to PRPs.
¶22 Arguably, it "makes sense" that CrR 7.8 motions should be treated the same as PRPs regarding the inadequate remedy requirement. But RAP 16.4(d) does not say that. Neither does CrR 7.8. And there is no authority for the proposition that the inadequate remedy requirement in RAP 16.4(d) applies to CrR 7.8 motions that are not converted to PRPs. In the absence of any authority, we decline to create a new rule that would apply in this case.
¶23 Because RAP 16.4(d) is inapplicable, we hold that Larry's appeal is not moot under Hinton and Carrasco .
B. PRESUMPTIVE SENTENCING RANGE
¶24 Larry argues that article I, section 14 of the Washington Constitution requires the trial court to presumptively sentence a defendant using the JJA sentencing ranges instead of the SRA sentencing ranges once the court finds that mitigating factors of youth warrant an exceptional sentence. We disagree.
1. Legal Principles – SRA and JJA
¶25 The legislature has determined that every person convicted of a felony shall be sentenced as provided in the SRA. RCW 9.94A.505(1). RCW 9.94A.510 provides standard range sentences depending on the seriousness of the offense and the defendant's offender score. A defendant seeking to obtain a sentence below the standard range has "the burden of proving by a preponderance of the evidence ‘that there are substantial and compelling reasons justifying an exceptional sentence’ below the standard range." State v. Ramos , 187 Wash.2d 420, 434, 387 P.3d 650 (2017) (quoting RCW 9.94A.535 ). Juveniles convicted of felonies in adult court are subject to the SRA standard sentencing ranges. See State v. S.J.C. , 183 Wash.2d 408, 418, 352 P.3d 749 (2015).
¶26 In addition, the legislature has provided sentencing enhancements if the defendant was armed with a firearm when committing a felony. RCW 9.94A.533(3). Firearm sentencing enhancements are mandatory and must be run consecutively to all other sentencing provisions, including other sentencing enhancements. RCW 9.94A.533(3)(e).
¶27 The Supreme Court in Houston-Sconiers held that when sentencing juveniles in adult court, trial courts "must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements." 188 Wash.2d at 21, 391 P.3d 409. This means that the trial court is not bound by the SRA's standard ranges, and the low end of a juvenile's sentencing range is no time in confinement. In re Pers. Restraint of Forcha-Williams , 200 Wash.2d 581, 597, 520 P.3d 939 (2022).
¶28 The JJA provides completely different – and far lower – sentencing ranges than the SRA for offenders in juvenile court. RCW 13.40.0357. The JJA also provides different sentences when a juvenile is armed with a firearm when committing an offense. RCW 13.40.193. "Our juvenile justice system ... gives children far more opportunities for redemption and rehabilitation than our criminal justice system offers to adults." State v. Gregg , 196 Wash.2d 473, 486, 474 P.3d 539 (2020) (González, J., dissenting).
2. Lack of Supporting Authority
¶29 Neither Houston-Sconiers nor any of the cases applying Houston-Sconiers have held or even suggested that trial courts who impose a sentence on a juvenile after considering the mitigating factors of youth must presume that the JJA sentencing ranges apply. Instead, the cases express the possible sentences under Houston-Sconiers in terms of the adult standard ranges, but without a minimum sentence. See , e.g. , In re Pers. Restraint of Ali , 196 Wash.2d 220, 246, 474 P.3d 507 (2020) (stating that "under Houston-Sconiers , Ali's sentencing range went from 312-390 months to 0-390 months.").
¶30 Two cases indicate that neither article I, section 14 nor the Eighth Amendment to the United States Constitution require a trial court to presumptively apply JJA sentencing ranges. In Ramos , the Supreme Court rejected the argument that the Eighth Amendment prohibited requiring a juvenile sentenced to a de facto life sentence to bear the burden of proving at a Miller hearing that the SRA standard range sentence was inappropriate. 187 Wash.2d at 444-46, 387 P.3d 650. The court stated,
Miller v. Alabama , 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
Pursuant to the SRA, the offender carries the burden of proving that an exceptional sentence below the standard range is justified. Ramos argues that as a matter of constitutional law, the burden must be shifted to the State to prove that a standard range sentence is appropriate. However, he has not shown that such burden-shifting is required by the Eighth Amendment.
Id. at 445, 387 P.3d 650. The court concluded, "Therefore, at this time we cannot hold that the SRA's allocation of the burden of proof for exceptional sentencing is constitutionally impermissible as applied to juvenile homicide offenders." Id. at 446, 387 P.3d 650.
¶31 In Gregg , the Supreme Court addressed a similar issue for a Houston-Sconiers hearing. 196 Wash.2d at 478-83, 474 P.3d 539. The defendant argued that "it is unconstitutional for a standard range sentence to be presumptively valid for a juvenile sentenced in adult court and the burden should be on the State to prove that youth was not a mitigating circumstance in every case." Id. at 479, 474 P.3d 539. The court noted that Ramos had rejected this argument under the Eighth Amendment. Id. The court acknowledged that it had not addressed this issue under article I, section 14. Id. at 480, 474 P.3d 539. But the court found no basis under article I, section 14 for invalidating the SRA's procedure for exceptional sentences or shifting the burden of proof to the State. Id. at 480-82, 474 P.3d 539. The court stated that the principles surrounding the mitigating qualities of youth and discretionary sentencing "do not support invalidating the statutory procedure required to be applied." Id. at 482, 474 P.3d 539.
¶32 The court also addressed the defendant's argument that instead of presuming that the SRA standard range sentence is valid, trial courts must start with the presumption that an exceptional sentence below the standard range is required unless the State proves otherwise. Id. at 482, 474 P.3d 539. The court rejected this argument:
Without explicitly stating as much, Gregg asks this court to rewrite the SRA and declare standard range sentences to be exceptional sentences when applied to juveniles. To reach this result, we would not only need to declare the SRA structure partially unconstitutional but we would also need to overrule some of our cases. We disagree with the arguments made by Gregg, and he has not shown that such relief is appropriate in this case.
Id. at 482-83, 474 P.3d 539.
¶33 The dissenting opinion asserted that trial courts should "start from the presumption that a downward departure from the standard range is appropriate" and that this "presumption should be followed unless the judge is persuaded that the case before them is one of the rare cases where a standard range adult sentence is appropriate." Id. at 489-90, 474 P.3d 539 (González, J., dissenting). But the dissent did not mention the JJA or suggest that the trial court should start with the presumption that the JJA sentencing range should be applied.
¶34 We conclude that Gregg requires us to reject Larry's article I, section 14 argument that the JJA sentencing ranges must be presumed to apply. The Supreme Court expressly rejected the argument that trial courts must start with the presumption that an exceptional sentence below the SRA standard range is required. Id. at 482-83, 474 P.3d 539. If the Supreme Court did not require a trial court to presume that an exceptional sentence downward must be imposed, a trial court cannot be required to presume that a sentence within the JJA standard range must be imposed. Even the dissent in Gregg did not go that far.
¶35 However, we clarify that Larry's suggestion that there is a presumption that trial courts will apply the SRA when sentencing juveniles in adult court is inaccurate. The SRA standard range serves as a "starting point" for the sentencing of juveniles. Forcha-Williams , 200 Wash.2d at 596, 520 P.3d 939. But there is no presumption. As noted above, trial courts have full discretion to impose any sentence below the top end of the standard range if the offender has diminished culpability based on youth. Forcha-Williams , 200 Wash.2d at 597, 520 P.3d 939 ; Houston-Sconiers , 188 Wash.2d at 21, 391 P.3d 409. This includes a sentence of no prison time. Forcha-Williams , 200 Wash.2d at 597, 520 P.3d 939. And it would include a sentence within the JJA sentencing ranges.
¶36 This means that the trial court may look to the SRA for guidance in forming its discretionary sentence, but it is not required to apply the SRA. Forcha-Williams , 200 Wash.2d at 597, 520 P.3d 939. And the trial court also may look to the JJA for guidance in crafting a discretionary sentence. The only requirement before making a discretionary sentence is for the court to have considered the mitigating circumstances related to the juvenile's youth. Houston-Sconiers , 188 Wash.2d at 23, 391 P.3d 409.
¶37 We hold that article I, section 14 does not require presumptive application of the JJA when sentencing juveniles in adult court.
C. EARNED EARLY RELEASE TIME FOR FIREARM SENTENCING ENHANCEMENTS
¶38 The State cross-appeals, arguing that the trial court erred when it ordered that Larry's firearm sentencing enhancements would be subject to earned early release time. Larry argues that this portion of the court's sentence is a permissible exercise of its discretion under Houston-Sconiers . We agree with Larry.
1. Legal Principles
¶39 "A trial court's sentencing authority is limited to that granted by statute." State v. Button , 184 Wash. App. 442, 446, 339 P.3d 182 (2014). "Whether a sentencing court has exceeded its statutory authority is a question of law that we review de novo." Id.
¶40 Under RCW 9.94A.729(1)(a), an offender's sentence term "may be reduced by earned release time in accordance with procedures that shall be developed and adopted by the correctional agency having jurisdiction in which the offender is confined." However, RCW 9.94A.729(2)(a) states,
An offender who has been convicted of a felony committed after July 23, 1995, that involves any applicable deadly weapon enhancements under RCW 9.94A.533 (3) or (4), or both, shall not receive any good time credits or earned release time for that portion of his or her sentence that results from any deadly weapon enhancements.
Former RCW 9.94A.729(2) (2020), the statute in effect at the time of Larry's resentencing, contains identical language. Laws of 2020, ch. 330, § 2.
¶41 Similarly, RCW 9.94A.533(3)(e) states that all firearm sentencing enhancements "shall be served in total confinement." RCW 9.94A.533(3)(e) also states that "all firearm enhancements under this section are mandatory" and "shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements."
¶42 However, as noted above, Houston-Sconiers adopted a new rule for sentencing juvenile offenders based on a consideration of the mitigating qualities of youth: trial courts "must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements." 188 Wash.2d at 21, 391 P.3d 409. The question here is whether a trial court has discretion to disregard the limitation on earned early release time in RCW 9.94A.729(2)(a) and RCW 9.94A.533(3)(e) – both SRA provisions – in imposing a sentence under Houston-Sconiers . 2. Analysis
¶43 There is no question that under Houston-Sconiers , a trial court sentencing a juvenile offender can impose any term of confinement after considering the mitigating qualities of youth, regardless of otherwise applicable provisions. 188 Wash.2d at 21, 391 P.3d 409. For example, a trial court may depart from mandatory sentencing enhancements. Id. at 34, 391 P.3d 409. A trial court may run weapon sentencing enhancements concurrently instead of consecutively. See Ali , 196 Wash.2d at 234, 474 P.3d 507. And a trial court may impose no prison time at all. Forcha-Williams , 200 Wash.2d at 597, 520 P.3d 939.
¶44 On the other hand, the Supreme Court in Forcha-Williams clarified "that the Eighth Amendment does not give judges ‘absolute discretion’ carte blanche to impose any sentence." Id. at 596, 520 P.3d 939 (emphasis added). The absolute discretion is only " ‘to impose any sentence below the SRA range or enhancements.’ " Id. (quoting In re Pers. Restraint of Domingo-Cornelio , 196 Wash.2d 255, 265, 474 P.3d 524 (2020) ). In Forcha-Williams , the court held that a trial court does not have discretion under Houston-Sconiers to impose a determinate sentence where the legislature has mandated an indeterminate sentence. Id. at 591, 520 P.3d 939. This is because it is the function of the legislature, and not the judiciary, to fix punishments for criminal offenses. Id. Similarly, a trial court cannot change the maximum sentence for an indeterminate sentence. Id. at 596-98, 520 P.3d 939.
¶45 Larry focuses on the requirement in RCW 9.94A.533(3)(e) that firearm sentencing enhancements must be served in total confinement. He points out that the same subsection also states that firearm sentencing enhancements are mandatory and that they must be run consecutively to all other sentencing provisions. But the court in Houston-Sconiers held that the mandatory nature of these sentencing enhancements violated the Eighth Amendment. 188 Wash.2d at 25-26, 391 P.3d 409. And under Houston-Sconiers , a trial court has discretion to run firearm sentencing enhancements concurrently rather than consecutively. Ali , 196 Wash.2d at 234, 474 P.3d 507. If a trial court can disregard the other two provisions based on the mitigating qualities of youth, there is no reason a trial court also cannot disregard the requirement that the firearm sentencing enhancements be served in total confinement.
¶46 Larry also emphasizes that allowing early release time for his firearm sentencing enhancements could have the effect of reducing the length of total confinement. Therefore, the trial court's provision falls under the rule that trial courts have " ‘absolute discretion to impose any sentence below the SRA range or enhancements in order to protect juveniles who lack adult culpability from disproportionate punishment.’ " Forcha-Williams , 200 Wash.2d at 596, 520 P.3d 939 (quoting Domingo-Cornelio , 196 Wash.2d at 265, 474 P.3d 524 ).
¶47 The State focuses on the directive in RCW 9.94A.729(2)(a) that an offender cannot receive good time credits for the portion of the sentence resulting from deadly weapon enhancements. The State emphasizes that this statute is directed toward the Department of Corrections (DOC), not the trial court, and the trial court cannot override this absolute prohibition. The State also emphasizes that there is no grant of legislative authority for the trial court's order. The State points out that a trial court has no authority to grant or restrict early release time. In re Pers. Restraint of West , 154 Wash.2d 204, 212-13, 110 P.3d 1122 (2005).
¶48 In addition, the State cites to Forcha-Williams for the proposition that a trial court cannot disregard all sentencing laws based on Houston-Sconiers . Instead, the State argues that Houston-Sconiers only authorizes a trial court to depart from SRA standard ranges and sentencing enhancements. And the State notes that no authority supports the extension of Houston-Sconiers to allow earned early release time.
¶49 We conclude that Larry has the better argument. Ordering that firearm sentencing enhancements will be subject to earned early release time is not the same as changing a sentence from indeterminate to determinate as in Forcha-Williams . And if a trial court can ignore the legislature's directive in RCW 9.94A.533(3)(e) that firearm sentencing enhancements are mandatory and must be run consecutively to all other sentencing provisions, there is no reason why a trial court cannot also ignore the directive that firearm sentencing enhancements cannot receive earned early release time. The trial court here simply used a different method for potentially reducing Larry's time in confinement.
¶50 The State also argues that the trial court's earned early release time order must be reversed because a trial court does not have the authority to grant or deny earned early release time under West , 154 Wash.2d at 212-13, 110 P.3d 1122. However, the trial court did not "grant" Larry release time. Instead, the court ordered that the firearm sentencing enhancements would be subject to reduction for earned early release time. DOC still will determine whether or not Larry is eligible for earned early release time as in any other case. Therefore, we reject this argument.
¶51 We hold that the trial court did not err in ordering that Larry's firearm sentencing enhancements would be subject to earned early release time.
CONCLUSION
¶52 We affirm the trial court's sentence.
¶53 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
Unpublished Text Follows
ADDITIONAL FACTS
Resentencing Materials and Evidence
¶55 Larry submitted a memorandum on resentencing that discussed the history of the case, his childhood background, developments in juvenile cognitive culpability, and applicable law. Larry also submitted DOC records and certificates, including a psychological evaluation by DOC psychologist Dr. Deborah Wentworth. In addition, Larry was evaluated by Dr. Kristin Carlson, a psychologist with the Department of Social and Health Services at the Special Commitment Center who also has a private practice where she does forensic evaluations for the court and clinical therapy patients. Dr. Carlson prepared a report regarding her evaluation.
¶56 Dr. Wentworth had prepared the report for the ISRB in order "to provide a written evaluation of the current behavior and risks that may assist the Board in determining the potential for re-offense, violence risk, capacity to function in a less restrictive environment, and/or whether Mr. Larry's rehabilitation is complete." CP at 309. The report stated that Larry voluntarily had provided the information that Dr. Wentworth based her report on, was advised of the departmental policy regarding information practices, and was given notice that he may request to review a copy of the evaluation.
¶57 Dr. Wentworth concluded that Larry had a high to moderate risk of reoffending and a high risk of future violence. She also noted that he had committed 67 infractions in prison, 59 of which were serious. However, he had no infractions since October 2018 and no serious infractions since June 2014. According to the report, Larry's serious infractions stopped and his behavior improved significantly once he turned 32. Larry stated that "he realized he might have a chance to obtain early release and that his behavior was only hurting himself." CP at 316.
¶58 Dr. Carlson testified at the resentencing hearing. She had performed a clinical interview examining Larry's history and background, and conducted a mental status exam and two psychological assessments. Dr. Carlson also had reviewed Larry's DOC records, including Dr. Wentworth's report.
¶59 Dr. Carlson testified that Larry's intellectual functioning was in the borderline functioning range, which was much lower than average for his age, and that he had a typical motivation for treatment in a therapeutic setting. She stated that Larry had been relatively infraction free since 2014, which showed that he had been working on behavioral control and had been compliant within the prison setting. Dr. Carlson believed there were indicators showing that Larry had been managing his impulsivity.
¶60 On cross-examination, the State questioned Dr. Carlson about how her conclusions differed from Dr. Wentworth's conclusions. The State also asked whether it was significant that Larry changed his behavior in prison for the better at the same time that the law changed, which allowed for a sentence reduction for good behavior.
¶61 In addition, the State questioned Dr. Carlson about Larry's gang involvement. Although Larry got involved with a gang while in prison, he was not directly involved with gangs prior to incarceration. Larry had indicated to Dr. Carlson that he was in charge during the incident that led to his convictions.
¶62 When discussing the admission of exhibits during the resentencing hearing, Larry offered to stipulate to the admission of the entire packet of DOC records he had submitted. But when the State requested to specifically admit Dr. Wentworth's report as an exhibit, Larry objected for the same reason that the State initially objected to Dr. Carlson's report. Larry argued that the State did not lay a proper foundation for Dr. Wentworth's report because Dr. Wentworth did not testify. The State noted that Larry provided the report to the court and that Dr. Carlson reviewed and discussed the report during her testimony. The trial court admitted Dr. Wentworth's report for "illustrative purposes." RP (Oct. 19-20, 2021) at 85.
Prosecutor's Statements
¶63 During the resentencing hearing, the prosecutor discussed the mitigating factors of youth. When discussing the family and peer pressure factor, the prosecutor stated,
Generally speaking, I think, and I'm probably going to get labeled a racist for saying this, but I think when you talk about peer pressures that affect these kids these days, what you're looking at, in theory, is gang affiliation and how there is a pack mentality among gangs. And so if you have Mr. Larry being involved in a gang, there is the potential for his peers to put pressure on him to do the kind of behavior that they're doing and to commit the kind of crimes they're committing. Mr. Larry has none of that. He's a lone wolf . He has no gang affiliation until he goes into custody.
RP (Oct. 19-20, 2021) at 111 (emphasis added). Larry did not object.
Restitution
¶64 At resentencing, neither party made a request regarding restitution, and restitution was not discussed. In the judgment and sentence, the trial court ordered restitution in the same amount as Larry's previous two sentencings: $47,434.49 to the victim and $4,500.48 to the insurance company.
ANALYSIS
A. PROSECUTORIAL MISCONDUCT
¶65 Larry argues that the prosecutor engaged in misconduct that involved racial bias, and so he is entitled to a new resentencing hearing. We disagree.
At the resentencing hearing, Larry stated that he was Black and Native American.
1. Legal Principles
¶66 The general rule is that to prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial in the context of all the circumstances of the trial. State v. Zamora , 199 Wash.2d 698, 708, 512 P.3d 512 (2022). However, this court applies a heightened test for race-based prosecutorial misconduct. State v. Bagby , 200 Wash.2d 777, 788, 522 P.3d 982 (2023). "[W]hen a prosecutor flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant's credibility or the presumption of innocence, their improper conduct is considered per se prejudicial, and reversal of the defendant's convictions is required." Id. at 788-89. The defendant must demonstrate that the prosecutor's conduct was both improper and prejudicial using this standard. Id. at 790.
¶67 We use an objective observer lens when analyzing whether a prosecutor flagrantly or apparently intentionally appealed to one's racial bias. Id. at 791-92. The prosecutor's subjective intent is immaterial. Id. at 791. We ask whether an objective observer could view the prosecutor's comments as an appeal to potential prejudice, bias, or stereotypes that undermine the defendant's credibility or presumption of innocence. Id. at 793. An objective observer is one "who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination." Zamora , 199 Wash.2d at 718.
¶68 In evaluating the prosecutor's statements, we consider "(1) the content and subject of the ... comments, (2) the frequency of the remarks, (3) the apparent purpose of the statements, and (4) whether the comments were based on evidence or reasonable inferences in the record." Bagby , 200 Wash.2d at 794. In analyzing these factors, we acknowledge that appeals to racial prejudice are not always obvious and that subtle biases can have a larger impact than explicit references to race. Id. 794-95. " ‘Not all appeals to racial prejudice are blatant. ... Like wolves in sheep's clothing, a careful word here and there can trigger racial bias.’ " Id. at 794 (quoting State v. Monday , 171 Wash.2d 667, 678, 257 P.3d 551 (2011) ).
¶69 Here, Larry argues that the prosecutor's use of animal analogies was an improper reference to race. The use of animal analogies can be problematic because they can operate as a racist code. State v. McKenzie , 21 Wash. App. 2d 722, 730, 508 P.3d 205 (2022). Coded language cannot be condoned. Id. Animal analogies are "hurtful and silencing to those who readily understand the message. It can also trigger implicit bias for listeners who do not immediately register the significance of what has been said." Id. And even if an analogy does not have racial connotations, it can improperly dehumanize the defendant. In re Pers. Restraint of Richmond , 16 Wash. App. 2d 751, 755, 482 P.3d 971 (2021).
¶70 However, animal analogies are not always improper.
[N]ot all human-animal comparisons are racist or dehumanizing. Some analogies are positive. It is a compliment to say someone is lionhearted, eagle-eyed, or busy as a bee. Other analogies are negative, though not in a particularly dehumanizing way. For example, calling someone a chicken has more to do with the anthropomorphism of gallinaceous birds than with human denigration. There are also analogies that are simply neutral. A politician who favors escalating military conflicts may be called a hawk; one with an opposite perspective being a dove. An official who is in the last portion of an elected term is a lame duck. An individual or group seeking to keep politicians (be they hawks, doves, lame ducks, or otherwise) accountable might be referred to as a watchdog.
Id. at 755-56. The court in Richmond stated, "Unless an analogy conveys racist sentiment or is otherwise dehumanizing, we should give breathing room for attorneys to connect with jurors and try their cases." Id. at 756.
¶71 The prosecutor in McKenzie analogized the defendant to a "gorilla pimp." 21 Wash. App. 2d at 727-28. The court concluded that this was an offensive term that served no purpose other than to "dehumanize and demean" the defendant. Id. at 732-33. On the other hand, the court in Richmond held that it was not improper for the prosecutor to refer to the defendant as a "hornet's nest" to explain the defendant's behavior. 16 Wash. App. 2d at 757-59.
2. Application to Sentencing Hearing
¶72 The State suggests that although statements that implicitly appeal to racial bias may require reversal when used in a jury trial, they may not require reversal when used in a sentencing hearing. The State points out that judges are more sophisticated than jurors and receive significant training regarding implicit bias.
¶73 Larry does not cite any cases applying the heightened test for race-based prosecutorial misconduct to a sentencing hearing. But we decline to apply a different standard to comments made to a judge. Appeals to racial bias are improper regardless of the audience.
3. Analysis
¶74 Here, when discussing the peer pressure aspect of the mitigating factors of youth, the prosecutor referred to Larry as a "lone wolf." RP (Oct. 19-20, 2021) at 111. Larry argues that this statement dehumanized him and conjured an image of a wild animal prowling the streets. However, application of the four Bagby factors show that this statement was not improper.
¶75 First, and most important, the subject of the comment does not have a racial or dehumanizing connotation. The term "lone wolf" has had an accepted meaning for decades: "[a] person who prefers to work, act, or live alone." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1332 (1973). The term does not appear to reflect a code for any particular race. And the term is more neutral than negative.
¶76 The other three factors also indicate that the comment was not improper. The prosecutor used the term only once. The purpose of the statement was legitimate – to show that Larry acted alone and therefore was not subjected to peer pressure, negating one of the mitigating factors of youth. And the comment was based on evidence that Larry planned the crime on his own.
¶77 Therefore, we hold that the prosecutor's comparison of Larry to a lone wolf did not constitute a flagrant or apparently intentional appeal to racial bias in a way that undermined Larry's credibility or presumption of innocence.
¶78 Larry also argues that the prosecutor's linking of gang affiliation to a "pack mentality", RP (Oct. 19-20, 2021) at 111, was improper. This statement may have been an improper analogy if the prosecutor had argued that Larry was in a gang. However, the prosecutor's point was that Larry was not in a gang and therefore was not influenced by peer pressure. As a result, this comment did not appeal to racial bias or dehumanize Larry.
¶79 Finally, the prosecutor did comment that he was "probably going to get labeled a racist for saying this." RP (Oct. 19-20, 2021) at 111. But that statement was made in conjunction with the prosecutor equating peer pressure to the pack mentality of gangs, not his calling Larry a "lone wolf."
¶80 We hold that the prosecutor's statements were not improper and therefore that Larry's prosecutorial misconduct claim fails.
B. ADMISSION OF DOC REPORT
¶81 Larry argues that the trial court's admission of Dr. Wentworth's report without an in-court testimony violated his due process right to be sentenced on reliable evidence. We hold that the invited error doctrine bars Larry from seeking appellate review of this issue.
¶82 Under the invited error doctrine, a defendant is precluded " ‘from seeking appellate review of an error [they] helped create, even when the alleged error involves constitutional rights.’ " State v. Tatum , 23 Wash. App. 2d 123, 128, 514 P.3d 763, review denied , 200 Wash.2d 1021 (2022) (quoting State v. Carson , 179 Wash. App. 961, 973, 320 P.3d 185 (2014) ). The invited error doctrine is applicable when the defendant either affirmatively assents to the error, materially contributes to it, or benefits from it. State v. Kelly , 25 Wash. App. 2d 879, 885, 526 P.3d 39 (2023).
¶83 Here, Larry claims that Dr. Wentworth's report should not have been admitted for illustrative purposes without her in-court testimony. But Larry himself submitted Dr. Wentworth's report with other DOC records and certificates for the trial court to consider along with his resentencing memorandum. And at one point Larry offered to stipulate to the admissibility of the DOC materials he submitted. Even if the State had never moved to admit the report, the report was available to the trial court in Larry's materials. At sentencing, the trial court can consider all acknowledged facts, which include all facts presented during sentencing without objection. State v. Grayson , 154 Wash.2d 333, 339, 111 P.3d 1183 (2005) ; see also RCW 9.94A.530(2).
¶84 If admission of Dr. Wentworth's report for illustrative purposes was an error as Larry contends, Larry materially contributed to that error by submitting the report to the court himself. Therefore, we hold that the invited error doctrine bars Larry from seeking appellate review of the admission of Dr. Wentworth's report.
C. IMPOSITION OF RESTITUTION
¶85 Larry argues that the trial court erred when it failed to consider his youth when imposing the same restitution previously ordered. We decline to consider this issue.
¶86 Under RAP 2.5(a), "[t]he appellate court may refuse to review any claim of error which was not raised in the trial court." The failure to object to the amount of restitution ordered generally precludes review of the issue. State v. Hassan , 184 Wash. App. 140, 151, 336 P.3d 99 (2014).
¶87 At resentencing, Larry did not ask the trial court to change the amount of restitution ordered. And he did not object when the court without discussion imposed the same restitution that had been ordered in the two previous sentencings. Therefore, he did not preserve his challenge to the restitution imposed and we decline to address this issue.
RAP 2.5(a)(3) states that a party may raise a "manifest error affecting a constitutional right" for the first time on appeal. Houston-Sconiers is based on constitutional principles. But Larry does not reference RAP 2.5(a)(3) or make any showing that any error was manifest.
CONCLUSION
¶88 We affirm Larry's sentence.
End of Unpublished Text
I concur:
CHE, J.
Cruser, A.C.J. (dissenting in part)
¶89 I respectfully dissent from the Section C of the majority opinion which holds that trial courts have the authority to order the Department of Corrections (DOC), which is part of the executive branch, to permit an offender to earn early release time applicable to a firearm sentencing enhancement despite the legislature's express directive to the contrary and to dictate to DOC the percentage at which the earned early release time shall be calculated.
¶90 Former RCW 9.94A.150(1) (1996) provided that
This statute has since been recodified as RCW 9.94A.729(2)(a). See Laws of 2001, ch. 10, § 6; Laws of 2009, ch. 455, §§ 2-3.
[A]n offender who has been convicted of a felony committed after July 23, 1995, that involves any applicable deadly weapon enhancements under RCW 9.94A.310[ ] (3) or (4), or both, shall not receive any good time credits or earned early release time for that portion of his or her sentence that results from any deadly weapon enhancements.
RCW 9.94A.310 has since be recodified as RCW 9.94A.533. See Laws of 2001, ch. 10, § 6; Laws of 2002 , ch. 290, §§ 10-11.
The statute went on to set out calculation parameters for those offenses that were eligible for reduction for earned early release.
Former RCW 9.94A.150(1) provided
In the case of an offender convicted of a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990, the aggregate earned early release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned early release time exceed one-third of the total sentence.
¶91 In this case, the trial court provided the following in its October 20, 2021 order on resentencing:
The court is intentionally ordering statutory firearm enhancements of 60 months on Count I, Count II, Count III, and Count IV, consecutively to each other, but is intentionally ordering those enhancements be subject to reduction for earned early release time at the same percentage as Count I and Count II (serious violent offenses committed in 1999) , which is an exceptional sentence authorized by Houston-Sconiers and subsequent cases.
CP at 374.
¶92 Because there is no statutory provision for the allowance of earned early release time for deadly weapon enhancements, the trial court arbitrarily ordered DOC to apply the earned early release calculation for serious violent offenses to all four of Larry's sentence enhancements, even though the base crime for the enhancements in Counts III and IV were not serious violent offenses.
Pursuant to RCW 9.94A.030, both in 1999 and now, robbery in the first degree is not a serious violent offense.
¶93 The State, in its cross appeal of this portion of the trial court's order, contends that the trial court lacked authority to order DOC to subject Larry's firearm sentence enhancements to reduction for earned early release. I agree.
¶94 During oral argument to this court, Larry's counsel argued that State v. Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017) is, essentially, a blank check to trial courts, allowing them to fashion any sentence they see fit for an eligible offender because, after all, Houston-Sconiers allows a trial court to impose no incarceration at all if it finds diminished culpability for an offense based on an offender's youth. The majority joins Larry in this reading, stating
if a trial court can ignore the legislature's directive in RCW 9.94A.533(3)(e) that firearm sentencing enhancements are mandatory and must be run consecutively to all other sentencing provisions, there is no reason why a trial court cannot also ignore the directive that firearm sentencing enhancements cannot receive earned early release time.
Majority at 305-06 (emphasis added). This is an extraordinary statement.
¶95 The reason why the trial court cannot simply do anything it wants is because we have a separation of powers doctrine in Washington. As explained by our supreme court,
The legislative branch writes laws, WASH. CONST. art. II, § 1, the executive branch faithfully executes those laws, WASH. CONST. art. III, § 5, and "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803) ; see also WASH. CONST. art. IV, § 1 (vesting the judicial power of the state in this court, superior courts, justices of the peace, and inferior courts created by the legislature).
Colvin v. Inslee , 195 Wash.2d 879, 892, 467 P.3d 953 (2020).
¶96 In the criminal sentencing context, the legislature has "plenary authority to set criminal punishments." In re Pers. Restraint of Forcha-Williams , 200 Wash.2d 581, 592, 520 P.3d 939 (2022). Our supreme court has "repeatedly stopped the judiciary from encroaching on the legislature's plenary authority to set criminal punishments." Id. And the court has stated " ‘it is the function of the legislature and not of the judiciary to alter the sentencing process.’ " Id. at 591, 520 P.3d 939 (quoting State v. Monday , 85 Wash.2d 906, 909-10, 540 P.2d 416 (1975), overruled on other grounds by In re Pers. Restraint of Phelan , 97 Wash.2d 590, 647 P.2d 1026 (1982) ).
¶97 In Forcha-Williams , on which the ink is barely dry, our supreme court reversed the decision of Division One of this court that held that trial courts are permitted, under Houston-Sconiers , to convert indeterminant sentences into determinant sentences in the name of remediating an 8th Amendment violation. Id. at 598, 520 P.3d 939. In a decision that was unanimous as to that question, the Supreme Court held that trial courts have no such discretion. The court stated, "[W]ithout statutory authority, the judicial branch may alter the legislature's chosen punishment only when it violates the constitution." Id. at 593, 520 P.3d 939. Forcha-Williams demonstrates that Houston-Sconiers is far from a blank check.
¶98 With these principles in mind, it is apparent to me that where the legislature has promulgated a statute creating a system permitting earned early release, and it has set forth precise calculations of the earned early release, if any, available for particular classes of crimes, it is not the prerogative of the judiciary to alter that statute under the guise of the mythical blank check of Houston-Sconiers . The legislature, in former RCW 9.94A.150(1), empowered DOC, an executive agency, to reduce the term of confinement of an offender committed to a correctional facility "by earned early release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined." Not only is the availability of earned early release solely a matter of legislative grace, but the statute implementing earned early release is not in the true sense a sentencing statute because it does not change the sentence the trial court can impose but, rather, provides the DOC with a mechanism for incentivizing good behavior while an offender is serving a sentence. See In re Pers. Restraint of West , 154 Wash.2d 204, 212, 110 P.3d 1122 (2005) (the purpose of permitting DOC to award to deny good time is to promote disciplinary goals). This further supports my contention that the availability of earned early release is not within the power of the judiciary to prescribe.
See former RCW 9.94A.150(1) and (2).
¶99 The State refers us to West , 154 Wash.2d at 212, 110 P.3d 1122, in which our supreme court held that a sentencing court has no authority to either grant or restrict earned early release time. The court stated
Notably, the statutory language grants authority to determine a prisoner's earned early release time to the correctional agency having jurisdiction over the offender . This court has recognized that former RCW 9.94A.150 provides no authority for the superior court to grant early release time .
Id. (emphasis added).
¶100 Beyond merely mentioning the State's citation to West , the majority ignores this case. Instead, the majority falls back on the supposed Houston-Sconiers blank check that, in the majority's apparent view, permits a trial court to ignore the entirety of the criminal code when a prosecution is commenced in adult court against a juvenile offender.
¶101 The problem with the majority's analysis is immediately apparent from the order amending the judgment and sentence in this case. The trial court, having no statutory authority to order DOC to allow Larry to earn early release credits, had no statutory guidance on what calculation to apply to the accrual of the credits. Should it be the "aggregate earned early release time" of 15 percent that was available, under former RCW 9.94A.150(1), to offenders "convicted of a serious violent offense or a sex offense that is a class A felony committed ... after July 1, 1990?" See former RCW 9.94A.150(1). Or should it be the maximum allowable calculation of no more than "one-third of the total sentence" available to other offenders? Id. The trial court did not know, so it arbitrarily selected "the same percentage as Count I and Count II (serious violent offenses committed in 1999)." CP at 374. This might make some sense if each of the base crimes to which an enhancement was applied were serious violent offenses, but they are not.
¶102 It is certainly incongruous, as the majority notes, to allow a trial court to impose no incarceration period at all but not allow the trial court to dictate to DOC that they allow an offender to earn early release. But this incongruity is of no moment in our analysis. The judiciary has a lane, and we need to stay within it. Encroachment by one branch of government into a lane squarely occupied by another might seem appealing to those benefitting from the encroachment on a particular occasion. A different tune is typically sung, however, when the encroachment does not serve one's individual interest.
The judicial branch, in particular, being the only branch of government without an independent enforcement mechanism for its pronouncements, ought to take care to stay in its lane. It is well noted that the judiciary has "no influence over either the sword or the purse." The Federalist No. 78 (Alexander Hamilton). The judiciary is dependent entirely on the largesse of the other two branches for enforcement of its orders.
¶103 Here, the trial court can accomplish its goal by sentencing Larry to a lesser period of incarceration than it imposed in its most recent judgment and sentence. Indeed, by asking us in this cross appeal to reverse the trial court's directive to DOC that it allow Larry to earn early release credits on his firearm enhancements, the State risked a decision by the trial court on remand to impose no incarceration time at all on these crimes and enhancements. The various potential outcomes on remand, however, have nothing to do with our role on appeal.
¶104 The trial court had no authority to order DOC to allow Larry to earn early release credits on his firearm enhancements under the holding in West , nor did it have the authority to arbitrarily select 15 percent as the percentage of the sentence available for earned early release. For these reasons, I respectfully dissent in part.