FILED JUNE 2, 2020 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STATE OF WASHINGTON, ) No. 36880-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CALLEN C. WESSELS, ) ) Appellant. )
PENNELL, C.J. — Callen Christopher Wessels appeals his standard range sentence
for vehicular homicide and hit and run. We affirm.
FACTS
Two months after his 21st birthday, Callen Wessels got drunk at a party and drove
away in his truck. While speeding past another vehicle, Mr. Wessels flipped his truck
and crashed into a ditch. The truck’s cab was crushed. Mr. Wessels was able to get out of
the truck and leave the area. But his passenger, 19-year-old-Jared Lee, was not so lucky.
Mr. Lee died as a result of the crash. When Mr. Wessels fled the scene, he left Mr. Lee
behind, to be discovered later by first responders. No. 36880-7-III State v. Wessels
The police caught up with Mr. Wessels at his house. When questioned about what
happened, Mr. Wessels lied. He claimed he was not involved in the crash. Instead, he
insisted he had been carjacked at gunpoint. The police were unconvinced. Mr. Wessels
was arrested and booked into jail.
Once at the jail, Mr. Wessels was read his rights and interviewed a second
time. During the second interview, Mr. Wessels eventually admitted to dishonesty. Mr.
Wessels agreed that he was the driver at the time of the crash. However, he suggested
Mr. Lee had done something to interfere with the truck’s operation immediately before
the crash. Mr. Wessels was charged with vehicular homicide, hit and run, reckless
driving, and perjury.
Mr. Wessels pleaded guilty to vehicular homicide and hit and run, pursuant to a
plea agreement. The State agreed to recommend a sentence of 100 months’ imprisonment.
This sentence was within the standard range of 86 to 114 months. Mr. Wessels reserved
the right to argue for any lawful sentence.
The sentencing hearing was lengthy. Testimonials were presented on behalf of
Mr. Wessels and Mr. Lee. Mr. Lee’s family requested the judge impose the maximum
possible sentence. They shared not only their grief at losing Mr. Lee, but also their
outrage that Mr. Wessels had fled the scene and lied about his conduct. Mr. Wessels’s
2 No. 36880-7-III State v. Wessels
friends and family spoke to Mr. Wessels’s many good qualities. They described Mr.
Wessels as a kind, hardworking, and helpful person who made an uncharacteristically
poor decision on the night of the accident. None of Mr. Wessels’s supporters described
him as impulsive or immature. In fact, Mr. Wessels’s high school friend, Carlene
Hatfield, described Mr. Wessels as “the most responsible out of all” of her group of
friends. Report of Proceedings (May 28, 2019) at 62.
At the close of the testimonials, Mr. Wessels’s attorney asked for an exceptional
sentence downward. Defense counsel drew attention to Mr. Wessels’s youth and the
support of his family and friends. She referenced an incident in a neighboring county
where a similar offense has resulted in a sentence of 18 months’ probation.
The sentencing judge acknowledged Mr. Wessels’s youth and the fact drinking
is somewhat common in people Mr. Wessels’s age. Nevertheless, the judge voiced
concern over the prevalence of drunk driving among young people. The judge prioritized
deterrence over other sentencing concerns. It selected a high-end sentence of 114 months
as necessary for community safety.
Mr. Wessels timely appeals his sentence.
3 No. 36880-7-III State v. Wessels
ANALYSIS
Appeals of standard range sentences are generally prohibited. RCW 9.94A.585(1).
A sentencing judge has almost unfettered discretion to impose a standard range sentence.
Appellate review turns not on whether we agree or disagree with the sentencing judge’s
decision. Instead, review turns on whether the defendant can establish legal error such as
(1) a categorical refusal to award an exceptional sentence downward under any
circumstance, (2) reliance on a constitutionally improper basis for sentencing (sex, race,
religion, etc.), or (3) failure to recognize discretion to impose an exceptional sentence
downward. See State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017); State v.
Garcia-Martinez, 88 Wn. App. 322, 328-29, 944 P.2d 1104 (1997).
Mr. Wessels has not established a basis for appellate relief. The sentencing judge
could have imposed a lower sentence, but it was not required to do so. State v. O’Dell,
183 Wn.2d 680, 695, 358 P.3d 359 (2015) (“[A]ge is not a per se mitigating factor
automatically entitling every youthful defendant to an exceptional sentence.”). The judge
considered the testimonials presented by Mr. Wessels, listened to defense counsel’s
arguments in favor of mitigation, and then opted to issue a sentence rooted in deterrence.
This decision was a permissible exercise of sentencing discretion.
4 No. 36880-7-III State v. Wessels
The sentencing judge’s decision to focus on deterring young adults from drunk
driving was not a legal error warranting relief on appeal. Youth is a possible mitigating
factor, but it is not a suspect classification. Regardless of whether a deterrence message
aimed at young adults might have been effective, we have no legal basis for questioning
the judge’s justification for a standard range sentence.
In addition to directly attacking his sentence, Mr. Wessels claims his attorney was
ineffective in failing to cite case law authorizing an exceptional sentence downward
based on youth. To establish a claim of ineffective assistance, Mr. Wessels must
demonstrate deficient performance and prejudice. Strickland v. Washington, 466 U.S.
668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The record supports neither.
The record does not show deficient performance. Mr. Wessels’s attorney
emphasized Mr. Wessels’s youth and asked for an exceptional sentence downward.
There are not facts suggesting more could be done. The record contains no evidence
Mr. Wessels was impulsive or immature for his age. Given this circumstance, cases
addressing downward departures based on youth were not directly applicable and would
not have aided Mr. Wessels’s leniency plea. O’Dell, 183 Wn.2d at 691 (recognizing that
mitigated culpability for individuals over 18 may exist as to “specific individuals” over 18
with “particular vulnerabilities” such as “impulsivity, poor judgment, and susceptibility to
5 No. 36880-7-III State v. Wessels
outside influences”); see also State v. Moretti, 193 Wn.2d 809, 824, 446 P.3d 609 (2019)
(leniency under O’Dell depends on the existence of evidence that “youth contributed to
the commission” of the defendant’s offense).
Mr. Wessels also fails to show prejudice. This is not a case where the sentencing
judge lamented Mr. Wessels’s sentence as excessive. We have no reason to think the
judge would have changed its sentencing decision had defense counsel provided citations
to O’Dell or similar cases.
CONCLUSION
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JUNE 2, 2020 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. 36880-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CALLEN C. WESSELS, ) ) Appellant. )
PENNELL, C.J. — Callen Christopher Wessels appeals his standard range sentence
for vehicular homicide and hit and run. We affirm.
FACTS
Two months after his 21st birthday, Callen Wessels got drunk at a party and drove
away in his truck. While speeding past another vehicle, Mr. Wessels flipped his truck
and crashed into a ditch. The truck’s cab was crushed. Mr. Wessels was able to get out of
the truck and leave the area. But his passenger, 19-year-old-Jared Lee, was not so lucky.
Mr. Lee died as a result of the crash. When Mr. Wessels fled the scene, he left Mr. Lee
behind, to be discovered later by first responders. No. 36880-7-III State v. Wessels
The police caught up with Mr. Wessels at his house. When questioned about what
happened, Mr. Wessels lied. He claimed he was not involved in the crash. Instead, he
insisted he had been carjacked at gunpoint. The police were unconvinced. Mr. Wessels
was arrested and booked into jail.
Once at the jail, Mr. Wessels was read his rights and interviewed a second
time. During the second interview, Mr. Wessels eventually admitted to dishonesty. Mr.
Wessels agreed that he was the driver at the time of the crash. However, he suggested
Mr. Lee had done something to interfere with the truck’s operation immediately before
the crash. Mr. Wessels was charged with vehicular homicide, hit and run, reckless
driving, and perjury.
Mr. Wessels pleaded guilty to vehicular homicide and hit and run, pursuant to a
plea agreement. The State agreed to recommend a sentence of 100 months’ imprisonment.
This sentence was within the standard range of 86 to 114 months. Mr. Wessels reserved
the right to argue for any lawful sentence.
The sentencing hearing was lengthy. Testimonials were presented on behalf of
Mr. Wessels and Mr. Lee. Mr. Lee’s family requested the judge impose the maximum
possible sentence. They shared not only their grief at losing Mr. Lee, but also their
outrage that Mr. Wessels had fled the scene and lied about his conduct. Mr. Wessels’s
2 No. 36880-7-III State v. Wessels
friends and family spoke to Mr. Wessels’s many good qualities. They described Mr.
Wessels as a kind, hardworking, and helpful person who made an uncharacteristically
poor decision on the night of the accident. None of Mr. Wessels’s supporters described
him as impulsive or immature. In fact, Mr. Wessels’s high school friend, Carlene
Hatfield, described Mr. Wessels as “the most responsible out of all” of her group of
friends. Report of Proceedings (May 28, 2019) at 62.
At the close of the testimonials, Mr. Wessels’s attorney asked for an exceptional
sentence downward. Defense counsel drew attention to Mr. Wessels’s youth and the
support of his family and friends. She referenced an incident in a neighboring county
where a similar offense has resulted in a sentence of 18 months’ probation.
The sentencing judge acknowledged Mr. Wessels’s youth and the fact drinking
is somewhat common in people Mr. Wessels’s age. Nevertheless, the judge voiced
concern over the prevalence of drunk driving among young people. The judge prioritized
deterrence over other sentencing concerns. It selected a high-end sentence of 114 months
as necessary for community safety.
Mr. Wessels timely appeals his sentence.
3 No. 36880-7-III State v. Wessels
ANALYSIS
Appeals of standard range sentences are generally prohibited. RCW 9.94A.585(1).
A sentencing judge has almost unfettered discretion to impose a standard range sentence.
Appellate review turns not on whether we agree or disagree with the sentencing judge’s
decision. Instead, review turns on whether the defendant can establish legal error such as
(1) a categorical refusal to award an exceptional sentence downward under any
circumstance, (2) reliance on a constitutionally improper basis for sentencing (sex, race,
religion, etc.), or (3) failure to recognize discretion to impose an exceptional sentence
downward. See State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017); State v.
Garcia-Martinez, 88 Wn. App. 322, 328-29, 944 P.2d 1104 (1997).
Mr. Wessels has not established a basis for appellate relief. The sentencing judge
could have imposed a lower sentence, but it was not required to do so. State v. O’Dell,
183 Wn.2d 680, 695, 358 P.3d 359 (2015) (“[A]ge is not a per se mitigating factor
automatically entitling every youthful defendant to an exceptional sentence.”). The judge
considered the testimonials presented by Mr. Wessels, listened to defense counsel’s
arguments in favor of mitigation, and then opted to issue a sentence rooted in deterrence.
This decision was a permissible exercise of sentencing discretion.
4 No. 36880-7-III State v. Wessels
The sentencing judge’s decision to focus on deterring young adults from drunk
driving was not a legal error warranting relief on appeal. Youth is a possible mitigating
factor, but it is not a suspect classification. Regardless of whether a deterrence message
aimed at young adults might have been effective, we have no legal basis for questioning
the judge’s justification for a standard range sentence.
In addition to directly attacking his sentence, Mr. Wessels claims his attorney was
ineffective in failing to cite case law authorizing an exceptional sentence downward
based on youth. To establish a claim of ineffective assistance, Mr. Wessels must
demonstrate deficient performance and prejudice. Strickland v. Washington, 466 U.S.
668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The record supports neither.
The record does not show deficient performance. Mr. Wessels’s attorney
emphasized Mr. Wessels’s youth and asked for an exceptional sentence downward.
There are not facts suggesting more could be done. The record contains no evidence
Mr. Wessels was impulsive or immature for his age. Given this circumstance, cases
addressing downward departures based on youth were not directly applicable and would
not have aided Mr. Wessels’s leniency plea. O’Dell, 183 Wn.2d at 691 (recognizing that
mitigated culpability for individuals over 18 may exist as to “specific individuals” over 18
with “particular vulnerabilities” such as “impulsivity, poor judgment, and susceptibility to
5 No. 36880-7-III State v. Wessels
outside influences”); see also State v. Moretti, 193 Wn.2d 809, 824, 446 P.3d 609 (2019)
(leniency under O’Dell depends on the existence of evidence that “youth contributed to
the commission” of the defendant’s offense).
Mr. Wessels also fails to show prejudice. This is not a case where the sentencing
judge lamented Mr. Wessels’s sentence as excessive. We have no reason to think the
judge would have changed its sentencing decision had defense counsel provided citations
to O’Dell or similar cases.
CONCLUSION
The judgment and sentence is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Pennell, C.J.
I CONCUR:
______________________________ Lawrence-Berrey, J.
6 No. 36880-7-III
FEARING, J. (dissenting) — I agree with the majority that RCW 9.94A.585(1)
generally bars appellate review of a sentence within the standard range. Callen Wessels’
sentencing court sentenced Wessels within the standard range, although at the highest end
of the range. Nevertheless, RCW 9.94A.585(1) does not completely forestall appellate
review of a sentence falling within the standard range.
Trial judges have considerable discretion under the Sentencing Reform Act of
1981, chapter 9.94A RCW, but still must act within its strictures. State v. Grayson, 154
Wn.2d 333, 342, 111 P.3d 1183 (2005). While no defendant is entitled to challenge a
sentence within the standard range, this rule does not preclude a defendant from
challenging on appeal the underlying legal determinations by which the sentencing court
reaches its decision. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017).
Remand for resentencing is often necessary when a sentence is based on a trial court’s
erroneous interpretation of or belief about the governing law. State v. McGill, 112 Wn.
App. 95, 100, 47 P.3d 173 (2002). No. 36680-7-III State v. Wessels (dissent)
At the time of his criminal misconduct, Callen Wessels was 21 years of age.
Youth alone does not demand that the sentencing court lower the offender’s sentence.
State v. O’Dell, 183 Wn.2d 680, 695-96, 358 P.3d 359 (2015). Nevertheless, at least as
to youth below the age of 21, the sentencing court should consider whether youth
diminished the offender’s culpability. State v. O’Dell, 183 Wn.2d at 695-96. A lack of
maturity and an undeveloped sense of responsibility often result in impetuous and ill-
considered actions and decisions. Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005).
A youth’s immaturity extends to age 25. A National Institutes of Health study
shows that the region of the brain that inhibits risky behavior does not fully form until the
age of 25. United States v. Gall, 374 F. Supp. 2d 758, 762 (S.D. Iowa 2005) (citing
Elizabeth Williamson, Brain Immaturity Could Explain Teen Crash Rate, WASH. POST,
Feb. 1, 2005, at A01), rev’d, 446 F.3d 884 (8th Cir. 2006), rev’d, 552 U.S. 38, 128 S. Ct.
586, 169 L. Ed. 2d 445 (2007). The prefrontal cortex does not have nearly the functional
capacity at age 18 as it does at age 25. In re Palmer, 33 Cal. App. 5th 1199, 1210, 245
Cal. Rptr. 3d 708, review granted, 445 P.3d 1004 (Cal. 2019). Thus, regardless of the
specific crime at issue, juvenile offenders are categorically less culpable than adult
offenders, and the chronological age of a minor is itself a relevant mitigating factor of
great weight. Miller v. Alabama, 567 U.S. 460, 471-72, 132 S. Ct. 2455, 183 L. Ed. 2d
407 (2012); Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S. Ct. 869, 71 L. Ed. 2d 1
2 No. 36680-7-III State v. Wessels (dissent)
(1982). During Callen Wessels’ sentencing hearing, an ophthalmologist mentioned that
car rental companies will not rent vehicles to individuals under the age of 25.
At the conclusion of the lengthy sentencing hearing and when announcing its
sentence, Callen Wessels’ trial court referenced a news story lamenting the one hundred
days between Memorial Day and Labor Day because of the conduct of young drivers
during this window of time. Because of a recess in school and the good weather, young
people drink and drive during the summer months. The sentencing court wished to
implant fear in a young person’s mind that killing someone while driving intoxicated will
result in a substantial time in prison. For these reasons, the sentencing court imposed the
maximum sentence.
Callen Wessels’ sentencing court was not required to grant an exceptional
sentence below the standard range or even decrease the sentence within the standard
range because of Callen Wessels’ youth. But the sentencing court could not employ
youth as a factor in increasing the sentence to the high end of the standard range. The
sentencing court thereby employed a mitigating factor as an aggravating factor contrary
to law, and the court accordingly abused its discretion.
I have the highest regard and respect for my colleague, the sentencing judge, but I
dutifully dissent. I would remand for the sentencing court to reassess the length of the
sentence based on youth being a factor favoring Callen Wessels, not a factor to increase
Wessels’ punishment.
3 No. 36680-7-III State v. Wessels (dissent)
I Dissent:
Fearing, J.