State Of Washington v. Brandon English And Calvin Quichocho

• Court: Court of Appeals of Washington
• Decided: March 9, 2021
• Docket: 53188-7
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

March 9, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 53188-7-II

Respondent, Consolidated with

v.

BRANDON MICHAEL ENGLISH and CALVIN JAMES QUICHOCHO,

Appellants, STATE OF WASHINGTON, No. 53198-4-II Respondent,

CALVIN JAMES QUICHOCHO, UNPUBLISHED OPINION

Appellant.

LEE, C.J. — Brandon M. English and Calvin J. Quichocho appeal the sentences imposed

by the trial court following resentencing. English and Quichocho argue that the trial court erred

by concluding that it did not have the discretion to impose an exceptional sentence downward on

their mandatory, consecutive firearm sentencing enhancements. Specifically, they contend that

the logical extension of our Supreme Court’s rulings in State v. O’Dell1 and State v. Houston-

Sconiers2 require trial courts to have the discretion to impose an exceptional downward on

otherwise mandatory sentence enhancements for “youthful” offenders. However, because we do

1 183 Wn.2d 680, 698-99, 358 P.3d 359 (2015). 2 188 Wn.2d 1, 37, 391 P.3d 409 (2017). Consol. Nos. 53188-7-II/No. 53198-4-II

not have the authority to overrule our Supreme Court’s opinion in State v. Brown,3 we hold that

the trial court properly followed the controlling law. Accordingly, we affirm English’s and

Quichocho’s sentences.

Quichocho also appeals certain legal financial obligations (LFOs) imposed by the trial

court. The State concedes the challenged LFOs were improper. Therefore, we reverse the

improper LFOs and remand to the trial court to strike the jury demand fee, community supervision

costs, and interest on nonrestitution LFOs from Quichocho’s judgment and sentence.

In a Statement of Additional Grounds (SAG),4 English claims prosecutorial misconduct

and that opinions made in the victim impact statement presented at the resentencing hearing were

improper. We decline to review English’s SAG claims.

FACTS

In 2014, English and Quichocho were found guilty of two counts of first degree robbery,

two counts of first degree kidnapping, and two counts of second degree assault. All the charges

had firearm sentencing enhancements. English was 20 years old at the time, and Quichocho was

21 years old at the time. They appealed, and we affirmed the convictions. State v. English, No.

46921-9-II, slip op. at 1 (Wash. Ct. App. Mar. 21, 2017) (unpublished). 5 However, we held that

the second degree assault convictions merged with the first degree robbery convictions and

3 139 Wn.2d 20, 983 P.2d 608 (1999), overruled in part by Houston-Sconiers, 188 Wn.2d at 21. 4 RAP 10.10. 5 http://www.courts.wa.gov/opinions/pdf/D2%2046921-9-II%20Unpublished%20Opinion.pdf

2 Consol. Nos. 53188-7-II/No. 53198-4-II

remanded for the superior court to vacate the second degree assault convictions. English, No.

46921-9-II, slip op. at 5.

On remand, the trial court expanded the scope of the proceeding and allowed the parties to

provide evidence and argument on the issue of whether English and Quichocho’s youth was a

mitigating factor to justify an exceptional sentence below the standard range based on O’Dell. At

the resentencing hearing, English and Quichocho provided evidence supporting their claim that

their youth mitigated their culpability for their offenses and justified an exceptional sentence below

the standard range. One of the victims provided a written victim impact statement that was read

to the sentencing court during the resentencing hearing. The trial court found that an exceptional

sentence below the standard range was justified. However, the trial court ruled that while it could

entertain an exceptional sentence below the standard range on the base offenses, it did not have

discretion to modify the sentencing enhancements:

1. Threshold issue: deadly weapon enhancements a. Defense argues that the court has the ability to not run such enhancements consecutive to the underlying sentence and each other pursuant to State v. Houston-Sconiers, 188 [Wn].2d 1 (2016). b. However, the State argues that Houston-Sconiers applies only to juveniles. The focal quote is “sentencing 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.” c. The Supreme Court could have, as the state notes, referred to youthful offenders as opposed to juveniles. It did not. The court finds this was an intentional decision by the Supreme Court. Consequently the court does not find that it was their intent to extend their decision in Houston- Sconiers as it relates to the mandatory application of weapon enhancements to youthful adults.

Clerk’s Papers (CP) at 507; Quichocho CP at 204.

3 Consol. Nos. 53188-7-II/No. 53198-4-II

The trial court sentenced English to a total 360 months confinement, which included 240

months for the mandatory firearm sentencing enhancements that were imposed consecutively to

the sentence for the underlying offenses and to each other. The trial court sentenced Quichocho

to a total 389 months confinement, which included 240 months for the mandatory firearm

sentencing enhancements that were imposed consecutively to the sentence for the underlying

offenses and to each other.

The trial court found that both defendants were indigent. The trial court imposed a $500

crime victim assessment, a $250 jury demand fee, and $460 restitution. The trial court also ordered

English and Quichocho to pay the cost of supervision while on community custody. Both

judgments and sentences included a provision imposing interest on all the legal financial

obligations.

English and Quichocho appeal their sentences.

ANALYSIS

A. EXCEPTIONAL SENTENCE

English and Quichocho argue that the trial court erred by concluding that it did not have

the discretion to modify firearm sentencing enhancements as part of their sentences. However,

because binding Supreme Court precedent makes consecutive firearm sentencing enhancements

mandatory for adult offenders, the trial court properly ruled it did not have the discretion to modify

the imposition of consecutive firearm sentencing enhancements.

When a defendant requests an exceptional sentence below the standard range, “review is

limited to circumstances where the court has refused to exercise discretion at all or has relied on

an impermissible basis for refusing to impose an exceptional sentence below the standard range.”

4 Consol. Nos. 53188-7-II/No. 53198-4-II

State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d

1002 (1998). Defendants are not entitled to an exceptional sentence, but “every defendant is

entitled to ask the trial court to consider such a sentence and to have the alternative actually

considered.” State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (emphasis omitted).

Failure to consider an exceptional sentence downward or the erroneous belief that the trial court

lacks the authority to consider an exceptional sentence downward is an abuse of discretion that

warrants remand. Grayson, 154 Wn.2d at 342, Garcia-Martinez, 88 Wn. App. at 329-31.

In State v. Brown, 139 Wn.2d 20, 28-29, 983 P.2d 608 (1999), overruled in part by State

v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), our Supreme Court held that firearm and

deadly weapon sentencing enhancements are mandatory and must be imposed consecutively,

regardless of whether an offender receives an exceptional sentence below the standard range on

the underlying offense. Therefore, Brown clearly establishes that the sentencing court did not have

the authority or discretion to modify the firearm sentencing enhancements that were part of

English’s and Quichocho’s sentences. However, English and Quichocho argue that recent case

law, shows that trial courts should have the discretion to modify otherwise mandatory, consecutive

firearm sentencing enhancements for youthful offenders.

In State v. O’Dell, 183 Wn.2d 680, 689-96, 358 P.3d 359 (2015), our Supreme Court held

that youth may justify an exceptional sentence below the standard range if the defendant’s youth

mitigated the defendant’s culpability. And in State v. Houston-Sconiers, 188 Wn.2d 1, 18-22, 391

P.3d 409 (2017), our Supreme Court overruled Brown as it applies to juvenile offenders who were

tried and sentenced in adult court. Specifically, the court held,

5 Consol. Nos. 53188-7-II/No. 53198-4-II

In accordance with Miller [v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.Ed. 2d 407 (2012)], we hold that sentencing 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 been interpreted to bar such discretion with regard to juveniles, they are overruled. Trial courts must consider mitigating qualities of youth at sentencing and must have discretion to impose any sentence below the otherwise applicable SRA range and/or sentence enhancements.

Houston-Sconiers, 188 Wn.2d at 21 (emphasis added) (footnotes omitted).

English and Quichocho recognize that Houston-Sconiers involved juvenile defendants and

did not specifically address adult offenders who were youthful at the time of the offense. However,

they argue that the logical extension of O’Dell and Houston-Sconiers is to provide trial courts with

the discretion to modify otherwise mandatory firearm sentencing enhancements as part of an

exceptional sentence for youthful adult offenders. Regardless of the strength of this reasoning, we

do not have the authority to overrule the Supreme Court’s decision in Brown as it applies to adult

offenders.6

Once our Supreme Court “has decided an issue of state law, that interpretation is binding

on all lower courts” until it is overruled by our Supreme Court. State v. Gore, 101 Wn.2d 481,

487, 681 P.2d 227 (1984). The Supreme Court was clear in Houston-Sconiers that it was

addressing “any juvenile defendant” and overruling Brown “with regard to juveniles.” Houston-

Sconiers, 188 Wn.2d at 21. Therefore, Brown is still binding authority for adult offenders. We do

6 Although we agree that the trial court properly followed the controlling law, we do so because we, too, are similarly constrained to follow our Supreme Court’s precedent. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). But we recognize that the current science, as well as evolving case law, demonstrate that there is no meaningful difference between offenders under the age of 18, tried as adults, and those between 18 and 25 who demonstrate that their youthfulness contributed to their offense, justifying an exceptional sentence downward.

6 Consol. Nos. 53188-7-II/No. 53198-4-II

not have the authority to overrule Brown and hold otherwise. Gore, 101 Wn.2d at 487; see also

State v. Brown, 13 Wn. App. 2d 288, 291, 466 P.3d 244 (2020) (Division I holding that it does not

have the authority to overrule Brown as it applies to adult offenders); State v. Mandefero, 14 Wn.

App. 2d 825, 831-32, 473 P.3d 1239 (2020) (holding Houston-Sconiers does not apply to youthful

offenders who were over 18 at the time of their offense, sentencing enhancements are mandatory

under Brown, and the appellate court does not have the authority to overrule Brown).

Because Brown continues to apply to adult offenders, the trial court properly concluded it

did not have the authority to modify the consecutive, mandatory firearm sentencing enhancements

as part of an exceptional sentence. Therefore, we affirm English’s and Quichocho’s sentences.

B. QUICHOCHO’S LFOS

Quichocho argues that the sentencing court erred when it imposed the $250 jury demand

fee, community custody supervision fees, and interest on nonrestitution LFOs. The State concedes

that these LFOs were improper.

Currently, the LFO statutes prohibit trial courts from imposing a criminal filing fee, jury

demand fee, and interest accrual on nonrestitution LFOs on an indigent defendant. See RCW

36.18.020(2)(h); RCW 10.46.190; RCW 10.82.090(1); State v. Ramirez, 191 Wn.2d 732, 746-47,

426 P.3d 714 (2018). And trial courts have the discretion to waive community custody supervision

fees. RCW 9.94A.703(2)(d).

Here, the trial court found that Quichocho was indigent and not anticipated to be able to

pay legal financial obligations in the future. Therefore, we accept the State’s concession, reverse

imposition of the challenged LFOs, and remand for the trial court to strike the $250 jury demand

7 Consol. Nos. 53188-7-II/No. 53198-4-II

fee, the community supervision costs, and interest on nonrestitution LFOs from Quichocho’s

judgment and sentence.

C. ENGLISH’S SAG

In his SAG, English makes two claims regarding the victim impact statement presented at

the resentencing hearing. First, English claims that the victim impact statement shows the

prosecutor committed misconduct by disclosing facts about the resentencing and the defendants to

the crime victim. Second, English claims that the crime victim impact statement presented an

improper opinion on the defendants’ maturity. We decline to address these claims.

First, English claims that, because the victim referenced the defendants’ having a criminal

history and recognized that the resentencing was addressing how youth affected the defendants’

culpability, the prosecutor must have improperly disclosed information to the crime victim. But

there are no facts in the record that establish how the crime victim obtained the information she

referenced in her victim impact statement. More importantly, there are no facts in the record that

establish the prosecutor shared any specific information with the crime victim. We will not

consider matters outside the record on appeal. State v. Linville, 191 Wn.2d 513, 525, 423 P.3d 842

(2018). The appropriate means of raising issues based on evidence or facts outside of the existing

record is through a personal restraint petition. Id.

Second, English claims that the victim impact statement presented an improper opinion on

the defendants’ maturity. However, English did not object to the victim impact statement at the

resentencing hearing. We do not review issues raised for the first time on appeal. RAP 2.5(a).

Therefore, we decline to review English’s claim that the victim impact statement offered an

improper opinion on the defendants’ maturity.

8 Consol. Nos. 53188-7-II/No. 53198-4-II

CONCLUSION

Because the Supreme Court’s decision in Houston-Sconiers did not overrule Brown as it

applies to adult offenders, the trial court properly concluded that it did not have the discretion to

modify the imposition of firearm sentencing enhancements as part of an exceptional sentence. We

accept the State’s concession that the trial court improperly imposed the LFOs that Quichocho

challenges. And we do not review English’s SAG claims. Accordingly, we affirm English and

Quichocho’s sentences. We also reverse the LFOs that Quichocho challenges and remand to the

trial court to strike the jury demand fee, community supervision fee, and interest on nonrestitution

LFOs from Quichocho’s judgment and sentence.

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.

Lee, C.J. We concur:

Maxa, J.

Sutton, J.