Category Archives: Sentencing

State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing

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In State v. O’Dell,  the Washington Supreme Court held that a defendant’s youthfulness can support a lower prison sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it,  “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Gauthier: The “Washout” Rule for Felony Convictions

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Washout" Rule for Priors | Law offices of Alexander Ransom

Many clients approach me on the question of when prior felony convictions “Washout” from a Defendant’s offender scores. The recent case of State v. Gauthier is a good place to answer that question.

In Gauthier, the WA Court of Appeals Division I decided (1) the prosecutor’s closing arguments were fair,  (2) Gauthier received effective assistance of counsel, and (3) trial court properly calculated Gauthier’s offender score.

At trial, Mr. Gauthier was found guilty of Rape in the Second Degree. On appeal, he argued that the trial court improperly calculated his offender score by failing to recognize that his prior convictions “washed out” pursuant to RCW 9.94A.525(2)(c).

Some background is necessary. Under the “washout” provision, RCW 9.94A.535(2)(c), prior “Class C” felony convictions are excluded in a defendant’s offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of the judgment and sentence, the offender spent five consecutive years “in the community” without committing any crime that subsequently results in a conviction.

In Gauthier’s case, he had five prior class C felony convictions. His last release date happened in June 2007. However, he did not remain crime free for five years. He was charged with the Rape Second Degree on March 13, 2009, and taken into custody to the King County Correctional Facility on July 23, 2010. There, he remained through his first trial on May 2011 which resulted in a conviction. He was subsequently sentenced on July 8, 2011. Consequently, the sentencing court properly calculated his offender score as a five (5) based on his five prior class C felony convictions.

Furthermore, at his sentencing on February 14, 2014, Gauthier argued that his five prior class C felonies should not be included in his offender score because he spent 43 months in custody before he was convicted again on the present offense. He claimed that under the “washout” statute, the “in the community” phrase includes the 43 months he spent in custody on this offense, thus his offender score is zero not five. The sentencing court rejected this argument, calculated his offender score as five, and sentenced him to 120 months with credit for all time served back to July 2010, the date he was first arrested.

Here, and similar to the trial court, the WA Court of Appeals rejected Gauthier’s arguments and also rejected Gauthier’s reliance on State v. Ervin, a somewhat recent case where the WA Supreme Court decided in favor of the defendant James Erwin’s arguments  that his 17 days of custody did not interrupt the requisite  5-year washout period:

“We have found no case, and Gauthier cites to none, where Ervin’s limited holding was applied to time spent in confinement while awaiting resolution of a felony charge. That is the precise circumstance present here. As the State correctly points out, Gauthier’s interpretation creates an absurd scenario—a defendant’s offender score will actually go down while he is in custody pending trial or pending sentencing. Indeed, that is an absurd result and a result we are confident the legislature did not intend.”

Simply put, if Gauthier had remained in the community for five years after June 2007 and remained crime free for those five years, his prior class C felony convictions would not count in his offender score after June 2012. It would have “washed out” under RCW 9.94A.535(2)(c). However, Gauthier’s 43 months in custody rendered hopeless any arguments that his priors would wash out.

The Court of Appeals upheld affirmed the trial court’s Judgment & Sentence and sentenced him to 120 months of prison.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. MacDonald: Police Cannot Testify for Victims at Sentencing

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In a close opinion, the WA Supreme Court ruled in State v. MacDonald that an investigating officer may not request the judge for a sentence greater than that in the State’s plea agreement. Even when the investigating officer claims to be speaking on the victim’s behalf, statements that are contrary to the plea agreement will constitute a breach of the agreement.
 In 1978, Arlene Roberts was found dead in her home. The police collected several latent fingerprints from bank statements and traveler’s checks within her trailer but never identified a suspect. The case went inactive.
 In 2010, detective Scott Tompkins reviewed the case files and matched the fingerprints to MacDonald.
The Prosecutor charged MacDonald with Murder in the First Degree.
 After the trial began, the parties entered into plea negotiations. The State agreed that the prosecutor would change the charge from first degree felony murder to second degree manslaughter and recommend a five-year suspended sentence in exchange for an Alford plea. MacDonald accepted the plea agreement.
 At sentencing, Deputy Prosecutor Kristin Richardson informed the court that detective Tompkins wished to speak on behalf of the victim pursuant to RCW 9.94A.500. Though detective Tompkins was involved throughout the plea negotiations and Richardson intended for Tompkins to sit at counsel’s table pursuant to Evidence Rule 615 in order to assist her, Prosecutor Richardson asserted that she did not know what Tompkins wanted to say. MacDonald objected, but the trial court permitted Tompkins to testify as a victim advocate over MacDonald’s objection.
Tompkins immediately asked the court to impose the maximum sentence. He described what happened to the victim and gave the court marked photographs of the victim’s body as police found her. Tompkins informed the court that the medical examiner’s report contained 18 paragraphs detailing her injuries and then asserted that Roberts “died a horrific death.”
The trial court imposed the maximum sentence, giving MacDonald 60 months in prison with a minimum sentence of 55 months and credit for time served. Macdonald moved to withdraw his plea. The Court of Appeals denied MacDonald’s motion.

The WA Supremes decided to reverse the Court of Appeals and permit MacDonald to decide whether to withdraw his guilty plea or to seek specific performance. The court agreed with the reasoning in State v.  Sanchez that investigating officers cannot make sentence recommendations contrary to a plea agreement. The Court also reasoned that the same due process concerns stopping an investigating officer from undermining a plea agreement also stop that officer from making unsolicited remarks on a victim’s behalf to the court at sentencing that are contrary to the plea agreement. Washington’s crime victims’ rights laws do not permit the State to breach a plea agreement.

My opinion? Although I offer my deepest condolences to the family of the victim, I must agree with the WA Supremes on this.

A plea agreement is a contract between the State and the defendant. The Prosecutor thus has a contractual duty of good faith. Prosecutor cannot undercut the terms of the agreement, either explicitly or implicitly, or by conduct showing intent to circumvent the terms of the plea agreement. In Washington, the statutory relationship between prosecutors and investigating officers binds investigating officers to plea agreements in a criminal case.

That said, detective Tompkins was acting in the role of substantially assisting the prosecution. This is unlawful. It violates procedural due process. Apparently, the WA Supremes agreed. Good opinion.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Manlove: “Deliberate Cruelty” Enhancements Apply to Property Crimes.

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In State v. Manlove, the Division III Court of Appeals held that a upward sentencing enhancement applies to Residential Burglary and other property crimes if a jury finds the defendant’s conduct during the commission of crime manifested deliberate cruelty to the victim.

In 2005, Paula Parker and her then-husband purchased a remote cabin on forty acres in Stevens County, Washington. The couple became acquainted with their neighbor, David Manlove, whose home lay a half mile from Parker’s cabin.

Paula Parker divorced in 2011, and she retained sole custody of the cabin. Parker and Manlove occasionally joined one another at each other’s homes for dinner. The two enjoyed a pastoral, idyllic, and platonic relationship, until . . .

Paula Parker went on vacation from June 19 to July 2, 2013 and returned to her cabin the morning of July 3. Once inside her home, Parker discovered her cabin was ransacked. Property was destroyed. The intruder left a hand-rolled cigarette. Paula realized her neighbor, David Manlove, smoked similar cigarettes.

Parker contacted police and informed them she believed the culprit was Manlove. She avoided her home for a few days.

On July 7, she returned home. Again, her house was ransacked. The damage was even more extensive this time. The intruder shredded Paula Parker’s medical records, high school diploma, and college degree. Parker kept her mother’s ashes in an urn, and the prowler dumped the ashes onto the floor.

After surveying the damage at Paula Parker’s cabin on July 8, 2013, Stevens County sheriff deputies traveled to David Manlove’s home. When asked why he damaged Paula Parker’s home, Manlove responded, “It’s my mountain.” When arrested, Manlove repeated several times: “It’s my mountain so there’s no crime.”

Law enforcement obtained two search warrants for David Manlove’s home. Officers seized many items that belonged to Paula Parker, including a hatchet, a chainsaw, a veil for a belly dancing costume, a mortar and pestle, journals, and jewelry. Officers also found marijuana plants and a rifle.

David Manlove was charged with Residential Burglary, Unlawful Possession of a Firearm in the Second Degree, Possession of more than Forty Grams of Marijuana, Possession of Stolen Property in the Third Degree, and Malicious Mischief in the First Degree. The State further alleged that Manlove committed Residential Burglary with deliberate cruelty in violation of RCW 9.94A.535(3)(a).

The trial court found Manlove competent to stand trial after an evaluation by Eastern State Hospital. At the close of trial, the trial court instructed the jury that: “Deliberate cruelty” means gratuitous violence ,or other conduct which inflicts physical, psychological, or emotional pain as an end in itself, and which goes beyond what is inherent in the elements of the crime or is normally associated with the commission of the crime. Clerk’s Papers (CP) at 177. The jury found David Manlove guilty as charged.

On appeal, the issue was whether the aggravating factor of deliberate cruelty under RCW 9.94A.535(3)(a) applies to Residential Burglary.

The Court of Appeals decided, “Yes.” They gave two reasons why, under appropriate circumstances, the deliberate cruelty aggravating factor may apply to a property crimes. First, when the legislature desired to limit the application of an aggravating factor to certain offenses, it expressly provided that limitation in the statute. Second, the statute allows a sentence enhancement when the current offense is a burglary and the victim ofthe burglary was present in the building or residence when the crime was committed.

The Court affirmed Manlove’s convictions and sentence, including the enhancement for deliberate cruelty.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Bill Seeks Prison Time for Drone Crimes

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Drone and Moon

Interesting news article from the Skagit Valley Herald. In an article titled, “Senate OKs Bill That Would Add Prison Time For Drone Crimes,” The WA Senate passed a bill that would allow prosecutors to seek an extra year in prison for offenders who use a drone aircraft while committing a crime.

Senate Bill 5499 passed on a 34-15 vote Tuesday and now heads to the House forconsideration. It adds the allegation of a “nefarious drone enterprise” to Washington criminal law. The state currently has no restrictions on the use of drones, although 20 other states have enacted laws on drone-related issues.

The bill adds a year to the sentencing range that dictates how judges can punish an offense. The measure was one a handful of other bills concerning drones that were filed in the Legislature this session in the wake of Gov. Jay Inslee’s veto of a bill last year that would have restricted how state and local government agencies use the unmanned aircraft.

My opinion? Although sad, Senate Bill 5499 was foreseeable. For example, under  RCW 46.20.285, defendants convicted of felonies get their driver’s licenses revoked for 1 year if a vehicle was used during the commission of a crime. It makes sense, therefore, that Prosecutors would get aggressive toward defendants if drones were used to further the commission of a crime. Sad but true.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Walker: Shackled Defendants

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Judges now deciding daily if inmates should wear shackles in court - oregonlive.com

Interesting case on shackled defendants appearing at non-jury hearings . . .

In State v. Walker, the Court of Appeals decided a trial judge can decide whether and how a prisoner should be restrained by shackles in the courtroom.

Here, the defendant Vernon Walker pleaded guilty to one count of Murder in the Second Degree and one count of Assault in the Second Degree arising from a 2003 shooting. At his sentencing hearing, jail security officers transported him to court wearing handcuffs and leg restraints. The trial court denied Walker’s motion for an order removing the handcuffs for the hearing. On appeal, Walker argues that the denial of his motion violated his constitutional right to appear before the court free of physical restraint. He also argued for a new sentencing hearing.

On appeal, Walker argued he had a constitutional right to appear in court free from restraints, regardless of whether a jury was present, and that there was no factual basis to support his shackling. He contended that because he had no history of disrupting court proceedings or attempting to escape from the courtroom, there was no reason to believe that he would do so at his sentencing hearing. He argued that the State’s claims otherwise were speculation. Walker also asserted that restraints would dehumanize him and prejudice the sentencing judge.

 Despite Walker’s arguments, the Court of Appeals disagreed. They reasoned a trial judge has sole authority over whether and how a prisoner should be restrained in the courtroom. Furthermore, even though the law strictly forbids defendants from appearing before juries wearing shackles, a court may shackle a defendant at non-jury hearings on a “lesser showing” than is required to shackle a defendant during a jury proceeding. Finally, the court reasoned that restraints are permissible in non-jury hearings to prevent injury to people in the courtroom, disorderly conduct at trial, or escape.

My opinion? This is a tough case. It is well settled that in a proceeding before a jury a criminal defendant has a constitutional right to appear free from restraints or shackles of any kind. In State v. Williams, the defendant’s conviction for burglary was reversed because the trial court, without justification, denied the defendant’s motion that he and his witnesses be unshackled before the jury during the trial. The Williams court cited article 1, section 22 of the Washington State Constitution which provides “In criminal prosecutions the accused shall have the right to appear and defend in person,” and stated:

The right here declared is to appear with the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Here, in the Walker case, the Court of Appeals distinguished its reasoning from Williams to the extent that Williams only applied to times when the defendant was before the jury. Otherwise, for non-jury hearings, judges have full authority to decide whether defendants must appear in restraints and shackles.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Allen: Prosecutor Commits Misconduct With Phrase, “Should Have Known.”

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Prosecutorial Misconduct in Texas: Right Now, it's an Appellate Fight - Dallas Justice Blog

In State v. Allen, the WA Supremes ruled that the Prosecuting Attorney committed prejudicial misconduct by misstating the standard upon which the jury may convict an accomplice.

This case involves the Lakewood police officer shootings.

The defendant Mr. Allen was friend and co-worker of Maurice Clemmons, who fatally shot four police officers in a coffee shop on November 29, 2009. Mr. Allen’s involvement transpired on the days leading up to the shooting.

This tragic story began in May 2009 when officers responded to reports that Clemmons was throwing rocks through his neighbors’ windows. Clemmons responded violently when officers arrived at the scene, and he was arrested for punching officers. He posted bail in November 2009, the month of the shootings.

Shortly after his release, Clemmons attended Thanksgiving dinner at his aunt’s house, where he expressed animosity toward the police. Specifically, he announced that if the police arrived to look for him, he would kill them and then go across the street to the elementary school and commit further acts of violence. Clemmons brandished a handgun while he described these acts. Allen, who was a friend and employee of Clemmons, was present at that dinner.

Three days later, Clemmons contacted Allen and told him they were going to wash the company truck. With Allen driving, Clemmons directed him to a car wash near a coffee shop in Lakewood. Upon arriving at the car wash, Allen parked the truck, got out, and walked across the street to a minimart.

During that time, Clemmons also left the car wash and entered the coffee shop, where the shootings occurred. When Allen returned to the truck, Clemmons appeared and told Allen that they had to leave. Allen claimed he drove only a few blocks until he left the truck upon discovering Clemmons was wounded. Allen also claimed that he did not know Clemmons was going to commit the murders.

Clemmons eventually ended up at his aunt’s house, and the truck was abandoned in a nearby parking lot. A few days later, Clemmons was killed by a Seattle police officer. Allen was arrested shortly afterward.

Allen was charged with four counts of Aggravated Murder in the first Degree. During trial, several spectators wore T -shirts that said, “‘You will not be forgotten, Lakewood Police,”‘ followed by the names of the four murdered officers. Allen objected to these T-shirts and asked that the shirts be covered. The trial court denied Allen’s motion.

At closing argument, the State was required to prove that Allen had actual knowledge that Clemmons would commit the murders. During closing argument, the prosecuting attorney initially stated the correct definition of “knowledge” as it was used in the jury instruction. However, immediately afterward, the prosecuting attorney stated that “for shorthand we’re going to call that ‘should have known.'” Also, the prosecuting attorney went on to repeatedly and improperly use the phrase “should have known” when describing the definition of “knowledge.”

The prosecuting attorney also presented a slide show simultaneously with his closing argument. This slide show repeatedly referred to the incorrect “should have known” standard. One slide even stated, “You are an accomplice if: … you know or should have known,” with the words “should have known” in bold. The prosecuting attorney made several more “should have known” comments in rebuttal argument.

The jury received instructions that correctly stated the law regarding “knowledge.” Particularly, instruction 9 said the following:

A person knows or acts knowingly or with knowledge with respect to a fact or circumstance when he or she is aware of that fact or circumstance. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

 Allen was convicted of four counts of Murder in the First Degree. Based on the aggravating circumstance, the trial court imposed an exceptional sentence of 400 years.

ISSUES ON APPEAL

The Court granted review on three issues: (1) Did the prosecuting attorney commit prejudicial misconduct by misstating the standard upon which the jury could convict Allen? (2) Does the “aggravator” found in RCW 9.94A.535(3)(v) apply to a defendant charged as an accomplice? (3) Was Allen prejudiced when spectators at trial wore T -shirts bearing the names of the murdered officers?

1. DID THE PROSECUTOR COMMIT MISCONDUCT?

The court ruled the Prosecutor committed prejudicial misconduct by misstating the standard upon which the jury could find Allen guilty. Here, the prosecuting attorney repeatedly misstated that the jury could convict Allen if it found that he should have known Clemmons was going to murder the four police officers.

The Court reasoned that, for example, the prosecuting attorney stated that “under the law, even if he doesn’t actually know, if a reasonable person would have known, he’s guilty.” As noted above, the “should have known” standard is incorrect; the jury must find that Allen actually knew Clemmons was going to murder the four police officers. Consequently, the Court concluded that the remarks were improper.

Furthermore, the improper comments prejudiced the defendant. First, the Prosecutor misstated a key issue of the case – knowledge. Second, the misstatement of law was repeated multiple times. Repetitive misconduct can have a “cumulative effect.” Third, the trial court twice overruled Allen’s timely objections in the jury’s presence, potentially leading the jury to believe that the “should have known” standard was a proper interpretation of law.

Fourth, and perhaps most important, the record reveals that the jury was influenced by the improper statement of law during deliberations. Finally, the misconduct by the State was particularly egregious. Based on the foregoing factors, the Court found that there was a substantial likelihood that the Prosecutor’s misconduct affected the jury verdict and thus prejudiced Allen.

 2. DOES THE “AGGRAVATOR” SENTENCING ENHANCEMENT APPLY TO AN ACCOMPLICE?

The Court answered “Yes” to this question. Here, the court sentenced Allen to an exceptional sentence based on the sentencing aggravator found in RCW 9.94A.535(3)(v). That statute contains no express triggering language automatically authorizing an exceptional sentence for accomplices. Therefore, Allen’s own misconduct must form the basis upon which the exceptional sentence applies.

The operative language of the statute here allows the court to sentence Allen above the standard range if the offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim’s status as a law enforcement officer is not an element of the offense.” Consequently, an exceptional sentence under RCW 9.94A.535(3)(v) may be imposed on remand if the jury finds the required elements based on Allen’s own misconduct.

3. DID THE SPECTATORS WEARING T-SHIRTS IN THE COURTROOM PREJUDICE ALLEN’S CASE?

The court decided that, based on the limited information in the record, it was unlikely that the t-shirts were inherently prejudicial. The T-shirts bore a message that said, “‘You will not be forgotten, Lakewood Police”‘ followed by a list of the victims’ names. The court said this message does not advocate for a message of guilt or innocence. Rather, the shirts were merely a silent showing of sympathy for the victims. Contrary to Allen’s arguments, the mere presence of words does not make a spectator display inherently prejudicial.

In conclusion, the prosecuting attorney committed prejudicial misconduct by misstating the proper standard upon which the jury could find Allen acted with knowledge. Based on that, the WA Supreme Court reversed the Court of Appeals and remanded for a new trial.

My opinion?

The shootings were exceptionally tragic. These officers left friends and family in the wake of their senseless death. That said, the Prosecutor in this case clearly committed misconduct. I’ve been in jury trials where Prosecutors will bend and stretch the the law when it comes to whether a defendant had knowledge they were committing a crime. Similar to the Prosecutor in this case, they’ll say “Well, the defendant should have known they were committing a crime.”

This is an ABSOLUTE misstatement of the law. “Knowing” and “Should Have Known” are two very, very different levels of understanding. Here, saying Mr. Allen “Should Have Known” that Clemmons would commit murder implies that Mr. Allen had a legal duty to know what Clemmons was thinking about before committing the heinous murders he committed. That’s wrong, and an improper statement of the law.

 Again, I extend my deepest condolences to the families and friends of the police officers who lost their lives. 

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Davis: Unlawful Possession of Firearms, Rendering Criminal Assistance and Exceptional Sentences.

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Sherrard man to serve 7 years in prison for possession of stolen guns | wqad.com

WA Supremes gave an interesting opinion touching upon the defendants who were allegedly involved in the Lakewood police officer shootings from last year. In short, the Supreme Court could not reach a 5-4 majority opinion on the issue of whether the State lacked evidence to support the defendant’s convictions for Possession of a Stolen Firearm. However, the State reached a majority “No” decision on the issue of whether Exceptional Sentence applied to this case. 

The underlying facts of State v. Davis are notorious and undisputed. On Sunday, November 29, 2009, Clemmons entered a coffee shop just before 8:00 a.m. with two handguns and began shooting at four Lakewood police officers, fatally wounding three. The fourth officer struggled with Clemmons and shot Clemmons once in the side, but Clemmons wrested the fourth officer’s gun from him, fatally shot him, and left with the stolen gun.

While on the run, Clemmons contacted defendants Eddie Lee Davis and Letrecia Nelson shortly after the murders. Clemmons went to Davis’ home, requested a ride to a house in Auburn, and said he had been shot while killing four police officers. Davis drove Clemmons to Nelson’s home. Nelson let Clemmons and Davis inside. Clemmons told Nelson he had killed four police officers, been shot in the process, and stolen one officer’s gun.

At Clemmons’ request, he was given fresh clothing and help treating his gunshot wound. Nelson put some clothes and the stolen gun in a shopping bag that was left on a counter. Just before leaving, Clemmons asked where the gun was. Davis replied that it was in the bag on the counter and gave the bag to Clemmons. He left the home with the gun, and remained a fugitive from justice. On December 1, 2009, 2-3 days after the incident, Clemmons was gunned down by a Seattle Police Officer who pulled his car over.

Based on their actions following that contact, Davis and Nelson were charged by the Prosecutor and convicted at jury trial of Rendering Criminal Assistance and Possession of a Stolen Firearm. Davis was also convicted of Unlawful Possession of that self-same firearm. The conviction was appealed, and found its way to the WA Supreme Court.

The Court addressed the issues of whether (1) sufficient evidence supported Davis’ and Nelson’s convictions relating to possession of a firearm, and (2) whether the exceptional sentences for rendering criminal assistance factually were legally justified.

1. UNLAWFUL POSSESSION OF A FIREARM

The 4-person “majority” Court answered “Yes” to the question of whether sufficient evidence existed to support the convictions. The court reasoned there are two types of control: actual and constructive. A person actually possesses something that is in his or her physical custody, and constructively possesses something that is not in his or her physical custody but is still within his or her “dominion and control.”

For either type, to establish possession the prosecution must prove more than a passing control; it must prove actual control. The length of time in itself does not determine whether control is actual or passing, and whether one has actual control over the item at issue depends on the totality of the circumstances presented.

In light of the totality of the circumstances, the Court was convinced that the State presented sufficient evidence to support a finding that Clemmons temporarily relinquished control over the stolen gun to Davis and Nelson while his wound was treated and he changed clothes. There was no testimony that Clemmons made any specific requests or orders as to what should be done with the stolen gun while he was at Nelson’s home, and he did not even know where the gun was until he was ready to leave about 15 minutes later.

t is reasonable to infer that someone else decided what to do with the gun and that the decision-makers were Nelson and Davis because Nelson retrieved the shopping bag and put the gun inside it and Davis immediately responded when Clemmons asked where the gun was. Furthermore, both Nelson and Davis retained the ability to take further actions as to the gun until the time Davis gave it back to Clemmons because they knew where it was and Clemmons did not. Therefore, the court believed there was actual control sufficient to establish constructive possession.

2. EXCEPTIONAL SENTENCES

The Court answered “No” to the issue of whether the defendants should receive an exceptional upward sentence for their convictions. The Court said Exceptional Sentences are intended to impose additional punishment where the particular offense at issue causes more damage than that contemplated by the statute defining the offense. In that situation, the standard penalty for the offense is insufficient and an exceptional sentence based on an “aggravating factor” found by the jury remedies that insufficiency.

Here, the Court reasoned that, as a matter of law, the “aggravating factor” at issue cannot apply to Rendering Criminal Assistance charges.  Here, the “victim” was the public at large. However, Exceptional Sentences apply where there is “a destructive and foreseeable impact on persons other than the victim.” Because Rendering Criminal Assistance victimizes the general public, every member of the public is part of the victim class. There is no “other.” Therefore, the exceptional sentences imposed on Davis and Nelson were not legally justified.

The WA Supreme Court was highly divided on this issue. Justice Wiggins appeared to be the swaying vote. He concurred with the dissenting opinion that the evidence was insufficient to sustain Davis’s and Nelson’s firearm possession convictions. However, Justice Wiggins concurred with the majority opinion as far as the decision that the Exceptional Sentences imposed for Eddie Davis’s and Letricia Nelson’s convictions for Rendering Criminal Assistance were not legally justified.

Ultimately, the WA Supreme Court reversed the Court of Appeals and remand for further proceedings.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Button: Public Shaming Sentence Struck

Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Jail, Sentencing, Shaming, Theft, Washington Court of Appeals, , ,

VERY interesting opinion. In State v. Button, the WA Court of Appeals says that a “shaming” sentence for a defendant convicted of is unlawful. More specifically, the Sentencing Reform Act does NOT support a sentencing court’s requirement that a defendant convicted of Theft First Degree must stand on a street corner holding a sign that states, “I stole from kids. Charlotte Button.” 

          

The defendant Charlotte Button was convicted for First Degree Theft for embezzling funds from a high school club. The trial court sentenced her to two months in jail and imposed an additional condition which intended to “send a message to the community.” The court explained the sentencing condition: “Before you begin your jail time, you are going to spend 40 hours standing at the corner of Wishkah and Broadway with a sign that says, ‘I Stole Money From Kida. Charlotte Burton.’ You’re going to do it two hours at a time twice a day from 7:00 to 9:00 in the morning and 4:00 to 6:00 in the afternoon.” Along with the “public shaming condition, the judge also imposed 60 days jail.

Ms. Button appealed the “public shaming” portion of her sentence on the grounds that it violated her Constitutional Rights under the First Amendment and 8th Amendment of the Constitution. In other words, her Free Speech rights were violated and the judge’s sentence was arguably Cruel & Unusual Punishment.

The Court of Appeals decided that although Washington’s Sentencing Reform Act allows a number of sentencing alternatives – including drug treatment for drug offenders and sexual deviance treatment for sex offenders – “public shaming” is not a designated sentencing alternative. “Nor does any other Sentencing Reform Act provision independently authorize the sign-holding condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is no statutory authority allowing the imposition of a sign-holding condition in the first instance.”

The Court did not address Ms. Button’s Constitutional arguments.

My opinion? Good decision. It’s well-grounded in statutory authority (and lack thereof). Sure, the defendant’s actions leading to the conviction were bad. Nevertheless, she paid her debt to society by serving a significant amount of jail (60 days). And I’m sure the court imposed restitution and court fines, as well. Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Eaton: A Defendant’s Sentence Cannot Be Enhanced For Involunatry Acts

Constitutional Rights, Drug Offenses, Due Process, DUI, felony, Jail, law enforcement, Methamphetamine, police, Search and Seizure, Sentencing, Washington Supreme Court, , ,

sentence enhancements Archives - Oklahoma Justice Reform

In State v. Eaton, the WA Supreme Court decided a defendant must act volitionally – with intent – to put himself within a zone that requires an upward sentencing enhancement.  An enhancement should not apply for drugs the defendant possessed when arrested and brought to jail.

Mr. Eaton was arrested for DUI and taken by police to the Clark County Jail.  At the jail, Eaton was searched by staff who discovered a small bag of methamphetamine taped to his sock.  The State charged Eaton with DUI and Possession of Methamphetamine and sought a sentencing enhancement for possessing a controlled substance in a jail or prison.  A jury convicted Eaton on both charges and found by special verdict that Eaton possessed methamphetamine while in a jail.  The trial court imposed an enhanced sentence.

The WA Supremes overturned the sentencing enhancement.  They reasoned that once Eaton was arrested, he no longer had control over his location.  From the time of arrest, his movement from street to jail became involuntary: involuntary not because he did not wish to enter the jail, but because he was forcibly taken there by State authority. He no longer had the ability to choose his own course of action.  Nor did he have the ability through some other course of action to avoid entering the area that would increase the penalty for the underlying crime.

My opinion?  Again, excellent decision.  It’d be different if Eaton knew he was going to jail and tried sneaking meth within the facility. However, those circumstances did not exist.  He was arrested for DUI  – a different matter altogether – and immediately booked into jail.  He never voluntarily brought the drugs into the jail itself.  He merely happened to possess them when arrested for DUI.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.