FILED AUGUST 24, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 37445-9-III Respondent, ) ) v. ) ) ANTHONY LAURENCE WRIGHT, ) PUBLISHED OPINION ) Appellant. )
SIDDOWAY, J. — Eighteen years after being convicted of a gang-related shooting
and receiving a sentence that included eight firearm enhancements, Anthony Wright was
resentenced as the result of an offender score error. At a full resentencing in 2020, Mr.
Wright presented impressive evidence of his rehabilitation.
By correcting Mr. Wright’s offender score and imposing low-end sentences for all
counts and exceptional concurrent sentencing for most of the counts, the resentencing
court reduced what had been Mr. Wright’s sentence of approximately 138 years to a
sentence of approximately 76 years. Mr. Wright also requested that his firearm
enhancements run concurrently and that his rehabilitation be relied on to impose even
shorter, exceptional sentences, but the resentencing court concluded that neither was
statutorily authorized. No. 37445-9-III State v. Wright
Mr. Wright asks us to hold that the resentencing court had discretion it believed it
lacked, but the resentencing court was right about the limits of its discretion. Relief for
Mr. Wright must come from the executive branch or the legislature. We affirm.1
FACTS AND PROCEDURAL BACKGROUND
In 2001, 28-year-old Anthony Wright and other members of his gang fired shots
into a house, killing three-year-old Pasheen Bridges, injuring a young woman, and
missing four other adults and two children. State v. Wright, noted at 119 Wn. App. 1052,
slip op. at 1 (2003). The State charged Mr. Wright with first degree murder, attempted
first degree murder, and six counts of first degree assault, all with firearm enhancements.
A jury found Mr. Wright guilty as charged. In 2002, the court imposed a sentence of
1,660 months.
In 2019, Mr. Wright’s CrR 7.8 motion for resentencing based on a Weatherwax2
error was granted. Although the error affected only two of the counts, the court granting
his motion agreed to conduct a full resentencing.
1 Mr. Wright’s motion to certify transfer of the appeal to the Supreme Court is denied. 2 In State v. Weatherwax, 188 Wn.2d 139, 154-55, 392 P.3d 1054 (2017), our Supreme Court held that when an offender receives serious violent offense consecutive sentencing and has two offenses with the same “‘highest seriousness level[ ],’” the Sentencing Reform Act of 1981, chapter 9.94A RCW, is ambiguous as to which offense forms the basis for sentencing—and when one offense is an anticipatory offense, it will affect the length of the sentence. The court held that in light of the ambiguity, the rule of lenity requires imposing the lesser possible sentence.
2 No. 37445-9-III State v. Wright
At the resentencing, Mr. Wright was examined by defense counsel about his 2001
crimes. He expressed remorse and explained that shame he feels for what he did has
driven him to rehabilitate himself and try to help others realize their full potential.
Mr. Wright submitted many supportive letters from people who operate or work
alongside him in the many prison programs in which he has participated throughout his
incarceration, a parent of one of his mentees, one of his students, and a retired state
representative. All had nothing but the highest praise for Mr. Wright and his work on
himself and with other inmates.
Defense counsel argued that the excessive length of Mr. Wright’s consecutive
sentences and his rehabilitation following his incarceration justified an exceptional
mitigated sentence. After comparing Mr. Wright’s sentence to his codefendants’
sentences and other similar cases, the court agreed that the operation of the multiple
offense policy resulted in a presumptive sentence that was clearly excessive. See RCW
9.94A.535(1)(g). It imposed exceptional concurrent sentencing for all counts other than
the first degree murder count. It concluded it lacked the discretion to run the firearm
enhancements concurrently, however. It also concluded that it could not rely on Mr.
Wright’s postconviction rehabilitation as a basis for altering the sentences imposed for
the crimes.
The court imposed the mandatory 40-year sentence for the eight firearm
enhancements, and the lowest possible sentence within the standard range for Mr.
3 No. 37445-9-III State v. Wright
Wright’s crimes. The result is a total sentence of 915.75 months of confinement. Mr.
Wright appeals.
ANALYSIS
A trial court’s mistaken belief that it lacks discretion to impose a mitigated
exceptional sentence is error. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106
(2017) (McFarland I).3 Mr. Wright contends that the trial court misapprehended its
discretion to sentence him more leniently in three respects.
Mr. Wright’s lawyer is well aware of Washington cases that stand as barriers to
the more lenient sentencing he seeks for his client: principally State v. Law, 154 Wn.2d
85, 92, 110 P.3d 717 (2005), and State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999),
overruled as to juvenile offenders by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d
409 (2017)). Drawing on legislative and case law developments, however, he urges us to
conclude that the law has changed. For reasons we explain, we are unpersuaded.
Rehabilitation does not qualify as a mitigating factor under the Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA)
Fixing appropriate penalties for crime is a legislative function.4 The legislature’s
authority is plenary, limited only by the federal and state constitutions. Law, 154 Wn.2d
3 Cecily McFarland’s prosecution is addressed in five appellate decisions, only two of which are published. We refer to the Supreme Court’s decision as McFarland I and this court’s recent decision, No. 37422-0-III (Wash. Ct. App. July 29, 2021), (following remand and appeal following resentencing) as McFarland II. 4 As Justice Kennedy observed in Harmelin v. Michigan:
4 No. 37445-9-III State v. Wright
at 92. Under the indeterminate sentencing regime that existed before enactment of the
SRA, judges set minimum and maximum terms of imprisonment and the Board of Prison
Terms and Paroles would determine just how much of the sentence would be served.
State v. McFarland, No. 37422-0-III, slip op. at 9 (Wash. Ct. App. July 29, 2021),
https://www.courts.wa.gov/opinions/pdf/374220_pub.pdf (McFarland II). The
legislative goal was to allow for rehabilitation and redemption. Id. slip op. at 10 (citing
DAVID BOERNER, SENTENCING IN WASHINGTON: A LEGAL ANALYSIS OF THE
SENTENCING REFORM ACT OF 1981, § 9.2 (1985)). Judges had near unfettered discretion
to decide when to run sentences concurrently or consecutively. McFarland II, slip op. at
9-10 (citing former RCW 9.92.080 (1971)).
The goal of indeterminate sentencing was often not realized. Id. slip op. at 10.
“Instead, pre-SRA sentences were frequently disproportionate and racially skewed.” Id.
(citing Dan Kilpatric & Jack Brummel, Sentencing Study, 52 WASH. L. REV. 103, 118
Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order. “As a moral or political issue [the punishment of offenders] provokes intemperate emotions, deeply conflicting interests, and intractable disagreements.” D[avid] Garland, Punishment and Modern Society 1 (1990). The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature. 501 U.S. 957, 998, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring) (first alteration in original).
5 No. 37445-9-III State v. Wright
(1976)). “The SRA was enacted to address these shortcomings by structuring a judge’s
discretion in a way that ties sentencing decisions to the crime or crimes of conviction.”
Id. Under the SRA, each count of conviction is assigned a determinate sentencing range
based on the statute of conviction and the defendant’s offender score (calculated from the
defendant’s criminal history). Id. When, as here, a defendant is convicted of two or
more serious violent offenses arising from separate and distinct criminal conduct, the
sentences imposed are to be served consecutively to each other. RCW 9.94A.589(1)(b).
While the SRA reduced judicial discretion, it did not eliminate it altogether.
McFarland II, slip op. at 10. RCW 9.94A.535 authorizes judges to depart from standard
sentencing ranges, but the ability to depart is limited. To impose a sentence outside the
standard range, the court must find, “considering the purpose of this chapter, that there
are substantial and compelling reasons justifying an exceptional sentence.” RCW
9.94A.535. RCW 9.94A.535(1) sets forth a nonexclusive list of factors that justify a
mitigated sentence. A departure from RCW 9.94A.589(2)’s requirement of consecutive
sentencing for serious violent offenses is an exceptional sentence subject to these
limitations. RCW 9.94A.535.
Longstanding case law establishes a two-part test for determining whether a factor
that is not statutorily identified will support a downward departure from the standard
range:
6 No. 37445-9-III State v. Wright
“First, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in establishing the standard sentence range. Second, the asserted aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category.”
State v. Smith, 123 Wn.2d 51, 57, 864 P.2d 1371 (1993) (emphasis added) (quoting State
v. Grewe, 117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991)), overruled in part on other
grounds, State v. Hughes, 154 Wn.2d 118, 140, 110 P.3d 192 (2005).
In Law, our Supreme Court reversed a downward exceptional sentence that the
trial court based in part on progress made by a criminal defendant in her relationship with
her son and her continued participation in a 12-step program for her substance abuse.
154 Wn.2d at 90. The court held these factors were not a valid basis for a downward
departure under the SRA. Rather, the SRA “requires factors that serve as justification for
an exceptional sentence to relate to the crime, the defendant’s culpability for the crime, or
the past criminal record of the defendant.” Id. at 89. It continued, “Factors which are
personal and unique to the particular defendant, but unrelated to the crime, are not
relevant under the SRA.” Id. It cited prior cases in which it held that a defendant’s
altruistic past and concern for others and another defendant’s strong family support were
not considerations that could support a downward departure. Id. at 97-99 (citing State v.
Freitag, 127 Wn.2d 141, 144-45, 896 P.2d 1254 (1995); State v. Fowler, 145 Wn.2d 400,
411, 38 P.3d 335 (2002)).
7 No. 37445-9-III State v. Wright
Mr. Wright contends that the SRA’s requirements have evolved. Yet his first
argument for this evolution is from the stated purposes of the SRA, four of which he
argues relate to rehabilitation—and the stated purposes on which he relies predate Law.
In fact, three of them were relied on by the trial court in Law as support for its downward
departure, which the Supreme Court reversed. Id. at 91.5 Law reasoned that the purposes
of the SRA “were factors necessarily considered by the legislature in establishing the
standard sentence range and as such are impermissible justifications on which to deviate
from the standard range.” Id. at 101 (citing State v. Pascal, 108 Wn.2d 125, 137-38, 736
P.2d 1065 (1987)). The stated purposes of the SRA do not call Law into question.
Mr. Wright’s second argument that the law has evolved points to RCW 36.27.130,
a recently enacted provision that authorizes county prosecutors to petition for
resentencing of an offender “if the original sentence no longer advances the interests of
justice.” RCW 36.27.130(1). Mr. Wright notes that the stated legislative intent in
enacting the provision is “to advance public safety through punishment, rehabilitation,
5 Mr. Wright points to the purposes of the SRA identified in RCW 9.94A.010(4)- (7), those being to (4) Protect the public; (5) Offer the offender an opportunity to improve himself or herself; (6) Make frugal use of the state’s and local governments’ resources; and (7) Reduce the risk of reoffending by offenders in the community. Appellant’s Opening Br. at 11-12. In sentencing Law, the trial court relied on purposes (4), (5), and (6), as well as the factor at RCW 9.94A.010(3) (“be commensurate with the punishment imposed on others committing similar offenses”). Law, 154 Wn.2d at 91.
8 No. 37445-9-III State v. Wright
and restorative justice,” LAWS OF 2020, ch. 203, § 1 (emphasis added). He also points
out that a resentencing court that grants a prosecutor’s petition for resentencing is
authorized to consider “postconviction factors including, but not limited to, the inmate’s
disciplinary record and record of rehabilitation while incarcerated.” RCW 36.27.130(3).
What this new provision authorizes in a prosecutor-initiated resentencing has no
application to Mr. Wright. If it has any relevance, it is that the legislature made no
corresponding change to what courts can consider when sentencing or resentencing an
offender under RCW 9.94A.589, which is what we are dealing with here. And the
legislature’s statement of intent continues to emphasize crime-based sentencing
uniformity rather than individualization. LAWS OF 2020, ch. 203, § 1 (“When a sentence
includes incarceration, this purpose is best served by terms that are proportionate to the
seriousness of the offense and provide uniformity with the sentences of offenders
committing the same offense under similar circumstances.” (emphasis added)).
Mr. Wright’s third argument cites federal and state cases from the last couple of
decades that have found constitutionally cruel punishment when the harshest forms of
punishment are imposed on a juvenile without considering hallmark features of youth,
such as a juvenile’s immaturity, impetuosity, and failure to appreciate risks and
consequences. E.g., Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012); Houston-Sconiers, 188 Wn.2d 1. The basis on which these cases have found
certain forms of punishment unconstitutional has been brain science specific to the
9 No. 37445-9-III State v. Wright
immature brain—science that demonstrates children’s diminished culpability and
heightened capacity for change. E.g., State v. Bassett, 192 Wn.2d 67, 89, 428 P.3d 343
(2018). Presently, in Washington, the oldest offenders able to rely on protections from
punishments that are cruel as applied to youth are 18 to 20 year olds. In re Pers.
Restraint of Monschke, 197 Wn.2d 305, 329, 482 P.3d 276 (2021) (relying on WASH.
CONST. art. I, § 14). The premise of the cases is that the protections are warranted
because “children are different.” The premise precludes their application to Mr. Wright,
whose crimes were committed when he was 28 years old.
For his final argument that the law has evolved, Mr. Wright turns to cases from
other jurisdictions that instruct sentencing courts to consider postoffense conduct,
including rehabilitation. This authority is not helpful because, as previously observed,
setting penalties for crime is a legislative function. While other sentencing schemes may
permit or encourage consideration of rehabilitation upon resentencing, Washington’s
present scheme does not. See State v. Ramos, 189 Wn. App. 431, 459-61, 357 P.3d 680
(2015), aff’d, 187 Wn.2d 420, 387 P.3d 650 (2017). Much of Mr. Wright’s authority is
federal, and unlike Washington law, federal sentencing law expressly provides that there
can be no limitation on the information a sentencing court may consider about a
defendant’s background character and conduct, which includes the defendant’s history
and characteristics. Id. at 460 (citing 18 U.S.C. § 3661; 18 U.S.C. § 3553(a)(1)).
10 No. 37445-9-III State v. Wright
Washington’s Legislature has adopted a determinate, crime-based approach to
sentencing. The trial court abided by it in declining to consider Mr. Wright’s
rehabilitation.
It is settled law that except in the case of juveniles, firearm enhancements cannot run concurrently as an exceptional sentence
Mr. Wright contends that the court could have run his firearm enhancements
concurrently, and erred in concluding otherwise. He relies on McFarland I, which held
that certain firearm-related offenses that would otherwise run consecutively can be run
concurrently as an exceptional sentence.
Mr. Wright is not the first offender to argue that exceptional sentencing should
apply to presumptively consecutive firearm enhancements just as it applies to
presumptively consecutive firearm-related offenses. The argument has surface appeal,
particularly when supported by a couple of statements from McFarland I that are
divorced from their context.6 But the different treatment of firearm enhancements is
explained by language in the exceptional sentencing statute that plainly applies to
firearm-related offenses and plainly does not apply to enhancements.
6 Mr. Wright quotes McFarland I’s statements that “the [Hard Time Act] does not preclude exceptional sentences downward,” and “[t]here is thus nothing in the SRA precluding concurrent exceptional sentences for firearm-related convictions.” Appellant’s Opening Br. at 17 (emphasis omitted) (quoting McFarland I, 189 Wn.2d at 54).
11 No. 37445-9-III State v. Wright
At the time of Mr. Wright’s crime,7 former RCW 9.94A.310(3) (1995)
encompassed sentencing enhancement provisions that were part of Initiative 159, entitled
“Hard Time for Armed Crime,” which the legislature enacted without amendment in
1995. LAWS OF 1995, ch. 129 (Hard Time Act). Before 1995, only one deadly weapon
enhancement existed; the Hard Time Act removed “‘firearm’” from the definition of
“‘deadly weapon,’” and created an additional, more severe firearm enhancement. State
v. DeSantiago, 149 Wn.2d 402, 415, 68 P.3d 1065 (2003). The period of the
enhancement for felonies defined under any law as a class A felony was (and remains)
five years. Former RCW 9.94A.310(3), now codified at RCW 9.94A.533(3)(a). The five
year period applied to all eight of Mr. Wright’s felony convictions.
In 1998, the Supreme Court was called on to construe the Hard Time Act’s
original language that mandatory firearm enhancements “shall not run concurrently with
any other sentencing provisions.” In re Post Sentencing Review of Charles, 135 Wn.2d
239, 247, 955 P.2d 798 (1998) (emphasis added and omitted) (citing former RCW
9.94A.310(3)). In companion cases in which defendants were convicted of multiple
armed crimes, one court imposed a sentence under which the enhancements ran
consecutively to the underlying sentences, but concurrently with each other, since the
underlying sentences ran concurrently. The other court imposed a sentence under which
7 Mr. Wright committed the crime on February 9, 2001.
12 No. 37445-9-III State v. Wright
the enhancements ran consecutively both to their underlying sentences and to each other.
The Supreme Court interpreted the statutory language to mean that multiple sentence
enhancements must run consecutive to base sentences, but could run concurrently to each
other. Id. at 254.
The legislature promptly responded by amending the statute, adding the following
emphasized language to subsection (e):
Notwithstanding any other provision of law, . . . all . . . enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements . . . .
Former RCW 9.94A.310(3)(e) (firearm) and former RCW 9.94A.310(4)(e) (other deadly
weapon) (emphasis added); LAWS OF 1998, ch. 235, § 1.
A year later, the Supreme Court decided Brown. Natalie Brown was found guilty
of second degree assault with a deadly weapon: a knife. In imposing sentence, the trial
court added a 12-month deadly weapon enhancement to Brown’s standard range
sentence, arriving at a total standard range of 15 to 21 months. 139 Wn.2d at 23. It then
found grounds for imposing an exceptional downward sentence of 7 months. Id. The
State appealed the trial court’s exceptional sentence below the 12-month deadly weapon
enhancement, arguing that the court lacked discretion to reduce the enhancement. It
relied on the original “firearm enhancements . . . are mandatory” and “shall not run
13 No. 37445-9-III State v. Wright
concurrently” language of RCW 9.94A.310(4)(e), since Brown had committed her crime
in 1996.
The Supreme Court agreed with the State, describing the language of former
RCW 9.94A.310(4)(e) even before its 1998 amendment as “absolute” and “plain.”
Brown, 139 Wn.2d at 26-28. It held that the language providing that “‘[n]otwithstanding
any other provision of law, any and all deadly weapon enhancements under this section
are mandatory, [and] shall be served in total confinement’ . . . clearly dictates a reading
by the average informed lay voter that deadly weapon enhancements are mandatory
and must be served.” Id. at 28 (alterations in original) (quoting former RCW
9.94A.310(4)(e)).
In the 22 years since Brown was decided, it has frequently been relied on by this
court. Unlike the legislature’s immediate action taken after Charles, it has never
modified the statutory language making deadly weapon and firearm enhancements
mandatory.
In 2017, the Washington Supreme Court overruled Brown, but explicitly only in
part: only to the extent that it would apply to the sentencing of juveniles. The court
explained:
[S]entencing courts must have complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant, even in the adult criminal justice system, regardless of whether the juvenile is there following a decline hearing or not. To the extent our state statutes have
14 No. 37445-9-III State v. Wright
been interpreted to bar such discretion with regard to juveniles,5 they are overruled. 5 Cf. State v. Brown, (holding that trial courts lack discretion to run sentence enhancements concurrently, even as an exceptional sentence; no separate discussion of juveniles).
Houston-Sconiers, 188 Wn.2d at 21 & n.5 (emphasis added) (citation omitted); and see In
re Pers. Restraint of Ali, 196 Wn.2d 220, 234, 474 P.3d 507 (2020), cert. denied sub
nom. Washington v. Ali, 141 S. Ct. 1754, 209 L. Ed. 2d 514 (2021) (“In Houston-
Sconiers, we stated explicitly that we overruled any interpretation that would bar such
discretion with regard to juveniles, citing to Brown and recognizing that the case failed to
address juveniles.” (emphasis added)).
While Houston-Sconiers overruled Brown only as applied to juveniles, Mr. Wright
argues that Brown, as applied to adults, was overruled by McFarland I. But McFarland I
dealt with firearm-related offenses, not firearm enhancements.
McFarland I was an expansion of the court’s holding in In re Pers. Restraint of
Mulholland, 161 Wn.2d 322, 328, 166 P.3d 677 (2007), that presumptively consecutive
sentences for serious violent crimes can run concurrently as an exceptional sentence. The
defendant argued successfully in Mulholland that this is suggested by the following
language in RCW 9.94A.535:
A departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section and may
15 No. 37445-9-III State v. Wright
be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6).
RCW 9.94A.589(1)(b) is the provision that dictates that sentences for serious violent
offenses are to be served consecutively.
The State opposed Mulholland’s argument for concurrent sentencing, implicitly
arguing that RCW 9.94A.535 is imprecise, and the court’s focus should be on a
distinction between the language of subsections (a) and (b) of RCW 9.94A.589(1):
subsection (a), dealing with presumptively concurrent sentencing refers to the possibility
of exceptional consecutive sentencing under RCW 9.94A.535,8 whereas subsection (b),
dealing with presumptively consecutive sentencing, does not. The court held that the
State’s argument “fails because it pays too little heed to the plain language of RCW
9.94A.535.” Mulholland, 161 Wn.2d at 329. Also supportive of Mulholland’s argument
was the language that a departure from the standards in RCW 9.94A.589(1) “may be
appealed by the offender or the state,” identifying the State as a potential aggrieved party.
Mulholland, 161 Wn.2d at 330. The State would be the aggrieved party only if
exceptional concurrent sentences are imposed. Id.
In McFarland I, the Supreme Court held that the same plain language that
supports the possibility of exceptional concurrent sentencing for multiple serious violent
offenses under RCW 9.94A.589(1)(a) supports the possibility of exceptional concurrent
8 It states, in relevant part, “Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.” RCW 9.94A.589(1)(a).
16 No. 37445-9-III State v. Wright
sentencing for the multiple firearm-related offenses addressed in RCW 9.94A.589(1)(c).
McFarland I, 189 Wn.2d at 53. It further observed that “[b]oth are plainly encompassed
within the ‘multiple offense policy of RCW 9.94A.589,’” McFarland I, 189 Wn.2d at 53
(quoting RCW 9.94A.535(1)(g)), whose operation can be the basis for the statutory
mitigating circumstance provided by RCW 9.94A.535(1)(g) (“The operation of the
multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is
clearly excessive in light of the purpose of this chapter, as expressed in RCW
9.94A.010.”).9
Mr. Wright offers no suggestion how the reasoning of Mulholland and
McFarland I can extend to sentencing enhancements. RCW 9.94A.535 makes no
reference to the enhancement statute.
Brown remains good law as applied to adult offenders. The resentencing court did
not err when it found it did not have discretion to run the firearm enhancements
concurrently.
9 McFarland I also addressed whether RCW 9.41.040(6), a separate consecutive sentencing provision for firearm offenses, differentiates consecutive firearm offense sentencing from its reasoning in Mulholland. Given the later enactment of RCW 9.94A.589(1)(c), which brought firearm-related convictions within the multiple offense policy of RCW 9.94A.589, the court determined that its interpretation of RCW 9.94A.589(1)(c) controlled. McFarland I, 189 Wn.2d at 55.
17 No. 37445-9-III State v. Wright
Mandatory consecutive enhancement sentencing is not unconstitutionally cruel punishment
Finally, Mr. Wright argues that if courts do not have discretion to run firearm
enhancements concurrently, the enhancement statute amounts to cruel punishment. He
cites to two lines of cases under the Eighth Amendment to the United States Constitution
as supporting what he contends is an “individualization requirement” that should have
applied at his resentencing, under which, “when multiple firearm enhancements alone
result in a de facto life sentence, that punishment is disproportionate.” Appellant’s
Opening Br. at 18-19. How he gets from the case law to that result is poorly explained.
A law review article on which Mr. Wright relies argues for a broadened requirement of
individualization at sentencing but candidly acknowledges that it “would require the
[United States Supreme] Court to overrule its prior decisions.” William W. Berry III,
Individualized Sentencing, 76 WASH. & LEE L. REV. 13, 13-14 (2019). As of the winter
of 2019, Professor Berry viewed the Court’s overruling its narrow Eighth Amendment
jurisprudence as a possibility. Id. (“[T]he Court’s opinion in Miller hints at a
willingness.”). It would appear less likely now. See Jones v. Mississippi, __ U.S. __,
141 S. Ct. 1307, 1328, 209 L. Ed. 2d 390 (2021) (Sotomayor, J., dissenting) (“Today, the
Court guts Miller v. Alabama . . . .”).
The Supreme Court’s opinion in Miller illustrates why this last argument by Mr.
Wright fails. As explained in Miller, the cases before it “implicate two strands of
18 No. 37445-9-III State v. Wright
precedent reflecting our concern with proportionate punishment”—the same two lines of
case law relied on by Mr. Wright. 567 U.S. at 470. The first are cases that have adopted
categorical bans on sentencing practices based on mismatches between the culpability of
a class of offenders and the severity of a penalty. Id. Several of the cases in this group
have specially focused on juvenile offenders, because of their lesser culpability. Id.
Others have foreclosed imposing the death penalty for nonhomicide crimes against
individuals, or on defendants with intellectual disabilities. See id. As a 28-year-old at the
time of his crimes, making no claim of a mental disability, Mr. Wright identifies no “less
culpable” class to which he belonged at the time of his crimes.
A second line of cases has “prohibited mandatory imposition of capital
punishment, requiring that sentencing authorities consider the characteristics of a
defendant and the details of his offense before sentencing him to death.” Id. Mr.
Wright’s is not a capital punishment case.
By contrast, the Supreme Court has held, as Miller acknowledges, that a
mandatory life without parole term for possessing more than 650 grams of cocaine did
not violate the Eighth Amendment, “reasoning that ‘a sentence which is not otherwise
cruel and unusual’ does not ‘becom[e] so simply because it is ‘mandatory.’” Id. at 480-
81 (alteration in original) (quoting Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
115 L. Ed. 2d 836 (1991)). “[A] different rule, requiring individualized sentencing
applie[s] in the death penalty context” but that is “‘because of the qualitative difference
19 No. 37445-9-III State v. Wright
between death and all other penalties.’” Id. (quoting Harmelin, 501 U.S. at 957). And
just as death is different, “children are different too.” Id. at 481. Harmelin, as Miller
acknowledges, remains good law.
Mr. Wright and his crimes do not fall within the circumstances under which the
Eighth Amendment has categorically foreclosed certain punishments or required a
sentencing court to consider a defendant’s characteristics.
Mr. Wright makes passing reference to article I, section 14 of the Washington
Constitution and the disproportionality analysis under our constitution that is required by
State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).10 He does not undertake the analysis,
however, and given the serious nature of his crimes, it would not avail him. As pointed
out by the State, if a party fails to identify and analyze a test or factors that relevant law
applies to an issue, we will not address the analysis ourselves. In re Parental Rights to
D.J.S., 12 Wn. App. 2d 1, 42, 456 P.3d 820 (2020), abrogated in part on other grounds
by In re Dependency of G.J.A., Wn.2d , 489 P.3d 631, 648-50 nn.16 & 17 (2021).
STATEMENT OF ADDITIONAL GROUNDS
Mr. Wright raises a single additional ground for review. He argues the court erred
when it failed to take into consideration substantial evidence of rehabilitation at
10 “The Fain proportionality test considers (1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction.” Bassett, 192 Wn.2d at 83.
20 No. 37445-9-III State v. Wright
sentencing. Because the issue was adequately addressed by counsel, we will not address
it further. See RAP 10.10(a).
Like the resentencing court, we are impressed with Mr. Wright’s personal growth
and the positive impact he has had on the lives of fellow prisoners who have or will have
the opportunity to transition from prison to society. The resentencing court correctly
assessed its discretion under the law as it now stands, however, and we have no basis for
reversing and requiring a further resentencing. As earlier observed, relief for Mr. Wright
must come from the executive branch or the legislature.
Affirmed.
_____________________________ Siddoway, J.
WE CONCUR:
_____________________________ Pennell, C.J.
_____________________________ Staab, J.