Filed Washington State Court of Appeals Division Two
June 9, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 61252-6-II
KIMOTHY MAURICE WYNN, UNPUBLISHED OPINION
Petitioner.
GLASGOW, J.—In 1999, 21-year-old Kimothy M. Wynn and his friend, Michael Rhem, shot
at two people in an alleyway. Neither person was hit or otherwise injured. Wynn and Rhem were
each convicted of two counts of first degree assault with a firearm and one count of unlawful
possession of a firearm. Wynn and Rhem were each sentenced to the high end of the standard
sentencing range for their respective offender scores.
In 2021, Wynn was resentenced following the Washington Supreme Court’s decision in
State v. Blake. 1 Ahead of the resentencing, Wynn asked his attorney to argue for a mitigated
sentence for several reasons, including based on the facts of the offense—specifically, that no one
was injured. Wynn’s counsel refused because she incorrectly believed she could not legally argue
for mitigation. She argued instead for a sentence at the low end of the standard sentencing range.
The trial court imposed a mid-range standard sentence of 34 years.
Shortly thereafter, Rhem was also resentenced subject to Blake. His counsel did argue for
a mitigated sentence, based in part on lack of injury, and was successful. The trial court sentenced
1 197 Wn.2d 170, 481 P.3d 521 (2021). No. 61252-6-II
Rhem, who had a higher offender score and the same level of culpability, to an exceptional
mitigated sentence of 30 years.
Wynn now timely seeks relief from personal restraint imposed following his resentencing.
Wynn argues that he received ineffective assistance of counsel based on his counsel’s failure to
seek a mitigated sentence because no one was injured as a result if the shooting.2
The State concedes that Wynn received ineffective assistance of counsel and that
resentencing is necessary.
We agree with the parties, accept the State’s concession, and remand for resentencing.
FACTS
In 1999, when Wynn was 21 years old, he and a friend, Michael Rhem, shot at two people
in an alleyway. State v. Rhem, noted at 112 Wn. App. 1034, 2002 WL 1481272, at *1. It is
undisputed that neither person was hit or otherwise injured. Wynn and Rhem were arrested and
each of them was charged with two counts of first degree assault with a firearm. Wynn was charged
with one count of unlawful possession of a firearm, while Rhem was charged with two counts of
unlawful possession of a firearm. Id. Rhem pleaded guilty to one count of unlawful possession of
a firearm and a jury found Wynn and Rhem guilty of the first degree assault charges and the
remaining counts of unlawful possession of a firearm. Id. at *2.
First degree assault is a serious violent offense. Former RCW 9.94A.030(31)(a)(1999).
Under former RCW 9.94A.400(1)(b) (1999), when a defendant is sentenced on two or more serious
2 Wynn also argues that his counsel rendered ineffective assistance based on counsel’s conflict of interest and that his sentence violates the equal protections clause. See U.S. CONST. amend. VI; U.S. CONST. amend. XIV, § 1. The parties agree we need not reach these issues if we accept the State’s concession. Because we accept the State’s concession and grant Wynn’s petition, we do not address these additional arguments.
2 No. 61252-6-II
violent offenses, one serious violent offense is scored and the other serious violent offense is
assigned an offender score of zero. The sentences for each serious violent offense presumptively
run consecutively to each other. Id. A sentencing court can depart from the presumptive sentence
with substantial and compelling support for an exceptional sentence. Former RCW 9.94A.390
(1999), recodified as RCW 9.94A.535.
Applying the presumptively consecutive sentences, as well as the mandatory and
consecutive firearm enhancements, the trial court sentenced Wynn, who had an offender score of
6, to 459 months (38.25 years) in prison, the high-end of the standard sentencing range. Because
Rhem had a higher offender score of 9+, his standard sentencing range was higher than Wynn’s.
The trial court sentenced Rhem to the high end of the standard sentencing range for a sentence of
561 months (46.75 years).
After the Washington Supreme Court’s decision in Blake, Wynn was resentenced with a
lower offender score of 5 and a standard sentencing range of 351-to-427 months. Before the
resentencing hearing, Wynn presented his attorney with a detailed mitigation packet demonstrating
his achievements since the original sentencing and his troubled upbringing. The mitigation packet
also included an argument that the original standard-range sentence was disproportionate to the
offense where no one had been injured.
Based on a misunderstanding about the scope of available arguments at resentencing,
Wynn’s attorney told him that, as a matter of law, they could not request a mitigated sentence and
she did not argue for one. Pers. Restraint Pet. (PRP), App. at 34-35. Counsel asked the trial court
to impose a sentence at the bottom of the standard range but did not provide any briefing or
argument in support of a low-end sentence. Counsel did not argue that the original sentence was
3 No. 61252-6-II
disproportionate to the offense. During his allocution, Wynn presented the court with some
evidence of his rehabilitation, and told the court, “I understand the seriousness of my crime, but I
also understand that I’ve served 22 years, and there was no injury.” PRP, App. at 24. The trial
court imposed a standard-range sentence of 408 months (34 years).
The next year, Rhem was also resentenced following Blake. Although Rhem’s standard
sentencing range did not change as a result of Blake because his offender score remained 9, his
counsel requested a mitigated sentence based on Rhem’s traumatic youth, rehabilitation, the lack
of injury to the victims, and his low risk of recidivism. Rhem’s counsel supported the request with
the presentation of a full mitigation package, including letters of support, an up-to-date
psychological evaluation, certificates of progress, and his trial counsel’s letter explaining that the
State had originally offered a sentence recommendation of 12 years.
Rhem’s offender score remained 9 and his standard sentencing range was 453-to-561
months. The sentencing court found that a downward departure was justified by the facts of the
offense. The sentencing court found that the presumptive sentence was “clearly excessive” and
“grossly disproportionate to the harm caused” where no victim was injured. PRP, App. at 186-87.
The court imposed a mitigated sentence of 360 months (30 years).
Wynn timely filed this personal restraint petition seeking a new sentencing hearing, arguing
in part that he received ineffective assistance of counsel at his resentencing.
ANALYSIS
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Filed Washington State Court of Appeals Division Two
June 9, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 61252-6-II
KIMOTHY MAURICE WYNN, UNPUBLISHED OPINION
Petitioner.
GLASGOW, J.—In 1999, 21-year-old Kimothy M. Wynn and his friend, Michael Rhem, shot
at two people in an alleyway. Neither person was hit or otherwise injured. Wynn and Rhem were
each convicted of two counts of first degree assault with a firearm and one count of unlawful
possession of a firearm. Wynn and Rhem were each sentenced to the high end of the standard
sentencing range for their respective offender scores.
In 2021, Wynn was resentenced following the Washington Supreme Court’s decision in
State v. Blake. 1 Ahead of the resentencing, Wynn asked his attorney to argue for a mitigated
sentence for several reasons, including based on the facts of the offense—specifically, that no one
was injured. Wynn’s counsel refused because she incorrectly believed she could not legally argue
for mitigation. She argued instead for a sentence at the low end of the standard sentencing range.
The trial court imposed a mid-range standard sentence of 34 years.
Shortly thereafter, Rhem was also resentenced subject to Blake. His counsel did argue for
a mitigated sentence, based in part on lack of injury, and was successful. The trial court sentenced
1 197 Wn.2d 170, 481 P.3d 521 (2021). No. 61252-6-II
Rhem, who had a higher offender score and the same level of culpability, to an exceptional
mitigated sentence of 30 years.
Wynn now timely seeks relief from personal restraint imposed following his resentencing.
Wynn argues that he received ineffective assistance of counsel based on his counsel’s failure to
seek a mitigated sentence because no one was injured as a result if the shooting.2
The State concedes that Wynn received ineffective assistance of counsel and that
resentencing is necessary.
We agree with the parties, accept the State’s concession, and remand for resentencing.
FACTS
In 1999, when Wynn was 21 years old, he and a friend, Michael Rhem, shot at two people
in an alleyway. State v. Rhem, noted at 112 Wn. App. 1034, 2002 WL 1481272, at *1. It is
undisputed that neither person was hit or otherwise injured. Wynn and Rhem were arrested and
each of them was charged with two counts of first degree assault with a firearm. Wynn was charged
with one count of unlawful possession of a firearm, while Rhem was charged with two counts of
unlawful possession of a firearm. Id. Rhem pleaded guilty to one count of unlawful possession of
a firearm and a jury found Wynn and Rhem guilty of the first degree assault charges and the
remaining counts of unlawful possession of a firearm. Id. at *2.
First degree assault is a serious violent offense. Former RCW 9.94A.030(31)(a)(1999).
Under former RCW 9.94A.400(1)(b) (1999), when a defendant is sentenced on two or more serious
2 Wynn also argues that his counsel rendered ineffective assistance based on counsel’s conflict of interest and that his sentence violates the equal protections clause. See U.S. CONST. amend. VI; U.S. CONST. amend. XIV, § 1. The parties agree we need not reach these issues if we accept the State’s concession. Because we accept the State’s concession and grant Wynn’s petition, we do not address these additional arguments.
2 No. 61252-6-II
violent offenses, one serious violent offense is scored and the other serious violent offense is
assigned an offender score of zero. The sentences for each serious violent offense presumptively
run consecutively to each other. Id. A sentencing court can depart from the presumptive sentence
with substantial and compelling support for an exceptional sentence. Former RCW 9.94A.390
(1999), recodified as RCW 9.94A.535.
Applying the presumptively consecutive sentences, as well as the mandatory and
consecutive firearm enhancements, the trial court sentenced Wynn, who had an offender score of
6, to 459 months (38.25 years) in prison, the high-end of the standard sentencing range. Because
Rhem had a higher offender score of 9+, his standard sentencing range was higher than Wynn’s.
The trial court sentenced Rhem to the high end of the standard sentencing range for a sentence of
561 months (46.75 years).
After the Washington Supreme Court’s decision in Blake, Wynn was resentenced with a
lower offender score of 5 and a standard sentencing range of 351-to-427 months. Before the
resentencing hearing, Wynn presented his attorney with a detailed mitigation packet demonstrating
his achievements since the original sentencing and his troubled upbringing. The mitigation packet
also included an argument that the original standard-range sentence was disproportionate to the
offense where no one had been injured.
Based on a misunderstanding about the scope of available arguments at resentencing,
Wynn’s attorney told him that, as a matter of law, they could not request a mitigated sentence and
she did not argue for one. Pers. Restraint Pet. (PRP), App. at 34-35. Counsel asked the trial court
to impose a sentence at the bottom of the standard range but did not provide any briefing or
argument in support of a low-end sentence. Counsel did not argue that the original sentence was
3 No. 61252-6-II
disproportionate to the offense. During his allocution, Wynn presented the court with some
evidence of his rehabilitation, and told the court, “I understand the seriousness of my crime, but I
also understand that I’ve served 22 years, and there was no injury.” PRP, App. at 24. The trial
court imposed a standard-range sentence of 408 months (34 years).
The next year, Rhem was also resentenced following Blake. Although Rhem’s standard
sentencing range did not change as a result of Blake because his offender score remained 9, his
counsel requested a mitigated sentence based on Rhem’s traumatic youth, rehabilitation, the lack
of injury to the victims, and his low risk of recidivism. Rhem’s counsel supported the request with
the presentation of a full mitigation package, including letters of support, an up-to-date
psychological evaluation, certificates of progress, and his trial counsel’s letter explaining that the
State had originally offered a sentence recommendation of 12 years.
Rhem’s offender score remained 9 and his standard sentencing range was 453-to-561
months. The sentencing court found that a downward departure was justified by the facts of the
offense. The sentencing court found that the presumptive sentence was “clearly excessive” and
“grossly disproportionate to the harm caused” where no victim was injured. PRP, App. at 186-87.
The court imposed a mitigated sentence of 360 months (30 years).
Wynn timely filed this personal restraint petition seeking a new sentencing hearing, arguing
in part that he received ineffective assistance of counsel at his resentencing.
ANALYSIS
Wynn argues that his counsel rendered ineffective assistance by failing to argue for a
mitigated sentence. The State concedes that counsel’s failure to argue for mitigation based on the
facts of the offense constituted ineffective assistance, and we accept the State’s concession.
4 No. 61252-6-II
The petitioner carries the initial burden to support their personal restraint petition. RAP
16.7(a)(2); In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004). A petitioner
must prove either a constitutional error that results in actual and substantial prejudice or a
nonconstitutional error that constitutes a fundamental defect inherently resulting in a complete
miscarriage of justice. In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383 P.3d 454 (2016).
“[I]f a personal restraint petitioner makes a successful ineffective assistance of counsel claim, he
has necessarily met his burden to show actual and substantial prejudice” under the standard for
personal restraint petitions. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102
(2012).
To prevail on an ineffective assistance of counsel claim, Wynn must show that trial
counsel’s performance was deficient and that Wynn was prejudiced by the deficient performance.
Id. at 840, (citing Strickland v. Washington, 466 U.S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)). A petitioner demonstrates deficient performance by showing that defense counsel’s
conduct fell below an objective standard of reasonableness. In re Pers. Restraint of Rice, 118
Wn.2d 876, 888, 828 P.2d 1086 (1992). To show deficient performance, the petitioner must show
the absence of any conceivable legitimate tactic explaining counsel’s performance. State v. Grier,
171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
A defendant is prejudiced by counsel’s deficient performance if there is a reasonable
probability that, but for the attorney’s conduct, the outcome of the proceeding would have been
different. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 252, 172 P.3d 335 (2007). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
5 No. 61252-6-II
Here, Wynn prepared mitigation materials ahead of resentencing and asked his counsel to
argue for a mitigated sentence based on the facts of the offense, specifically, that no one had been
injured. But counsel failed to do so, apparently believing that a resentencing based on Blake was
limited to arguing for a sentence within the standard range established under the new offender
score. See PRP, App. at 34-35 (sentencing counsel’s declaration). But this belief was incorrect.
E.g., State v. Ellis, 5 Wn.3d 549, 556-58, 579 P.3d 37 (2025).
The State concedes that “[t]here was no reason for counsel to fail to make this point [about
the lack of any injury] that the mitigation packet had already developed for her.” Br. of Resp’t at
20. As the State notes, Wynn could not effectively make such an argument himself during
allocution without undermining his showing of remorse for his actions. Id. Wynn’s counsel’s
failure to seek a mitigated sentence based on the facts of the offense was not strategic and fell
below an objective standard of reasonableness. Accordingly, counsel performed deficiently.
A reasonable probability exists that, but for Wynn’s counsel’s deficient performance, the
outcome of Wynn’s sentencing would have been different. Rhem’s counsel made the arguments
that Wynn’s counsel failed to make. As a result, Rhem received a mitigated sentence considerably
shorter than Wynn, despite Rhem’s offender score being 9 compared to Wynn’s 5. The State
acknowledges that Wynn bears no greater culpability in the offenses than Rhem. On this record,
there is a reasonable probability that the trial court may have imposed a mitigated sentence for
Wynn, had his counsel not performed deficiently. The State concedes that Wynn has shown that
his attorney’s refusal to request a mitigated sentence based on the lack of any injury to the victims
prejudiced the outcome of his resentencing hearing and that resentencing is required.
6 No. 61252-6-II
We agree with the parties, accept the State’s concession, and hold that trial counsel
rendered ineffective assistance by failing to argue for a mitigated sentence, the ineffective
assistance was prejudicial, and resentencing is required.
CONCLUSION
Accordingly, we grant Wynn’s personal restraint petition and remand for resentencing. The
parties agree that because we accept the State’s concession we need not reach the remaining issues.
Because we grant Wynn’s petition, we do not address Wynn’s other claims. Nothing in this opinion
precludes counsel from raising additional arguments for the trial court to evaluate at resentencing.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
GLASGOW, J. We concur:
CRUSER, J.
CHE, J.