Filed Washington State Court of Appeals Division Two
December 22, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 53234-4-II
Respondent,
v.
CHARLES NICK MALLIS, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—When Charles Mallis was 20 years old, he shot a 17-year-old who he
thought might have sexually assaulted his younger sister. Mallis pleaded guilty to first degree
assault with a firearm enhancement and unlawful possession of a firearm. He received a standard
range sentence, which he appeals. Mallis argues that his trial counsel rendered ineffective
assistance by failing to bring State v. O’Dell1 to the sentencing court’s attention in support of his
argument for a sentence at the low end of the standard range. We reverse Mallis’s sentence and
remand for resentencing.
FACTS
When Mallis was 20 years old, he sent Zaccary Bopp Facebook messages threatening to
assault Bopp. Mallis also sent Bopp text messages with pictures of Mallis posing with various
firearms. One night, after sending a friend to locate Bopp, Mallis shot Bopp with a .22 caliber rifle
1 183 Wn.2d 680, 358 P.3d 359 (2015). No. 53234-4-II
while Bopp was standing on his front porch. While Bopp was in the hospital, Mallis called Bopp’s
girlfriend and threatened to come to the hospital to finish what he had started.
The State charged Mallis with one count of first degree attempted murder, one count of
first degree assault, two counts of first degree unlawful possession of a firearm, one count of
tampering with a witness, and one count of felony harassment, with two firearm enhancements.
Mallis ultimately pleaded guilty to one count of first degree assault with a firearm enhancement
and one count of first degree unlawful possession of a firearm.
At sentencing, the State recommended a high-end standard sentence of 231 months (just
over 19 years). Mallis sought a low-end standard sentence of 189 months (almost 16 years),
arguing that the victim provoked Mallis by forcing Mallis’s 14-year-old sister to smoke
methamphetamine and possibly sexually assaulting her. Counsel did not argue that Mallis’s youth
should be considered as a factor warranting a low-end sentence, nor did counsel refer the court to
O’Dell. When addressing the court himself, Mallis characterized his actions as “[c]hildish acts.”
Verbatim Report of Proceedings (VRP) at 12-13.
The sentencing court sentenced Mallis to 231 months of total confinement, the high end of
the standard range. It reasoned:
What I recall from the probable cause statement, and this kind of confirms it, this reaction, that if it wasn’t for how serious it is, it’s just phenomenally juvenile. And, fortunately, phenomenally inept. It’s not even a matter of callousness, just is a complete lack of recognition that this is a serious thing and you probably shouldn’t shoot people. It seems very clear that that kind of a decision making process was utterly absent. So, it seems to me that Mr. Mallis is a very dangerous individual, just because he completely lacks that notion of any sort of decision making process.
VRP at 13-14.
Mallis appeals his sentence.
2 No. 53234-4-II
ANALYSIS
Mallis argues that his trial counsel rendered ineffective assistance by failing to bring O’Dell
to the sentencing court’s attention in support of his argument for a sentence at the low end of the
standard range. We agree.
Although a standard range sentence is generally not subject to appeal, a defendant may
appeal a standard range sentence if they allege a constitutional violation. State v. Bramme, 115
Wn. App. 844, 850, 64 P.3d 60 (2003). Ineffective assistance of counsel is a constitutional
violation. State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000).
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both (1) that defense counsel’s representation was deficient and (2) that
the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. If either prong
is not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673,
101 P.3d 1 (2004).
Representation is deficient if, after considering all the circumstances, the performance falls
“‘below an objective standard of reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland,
466 U.S. at 688). To show prejudice, a defendant must establish that “there is a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceedings would
have been different.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). “A reasonable
3 No. 53234-4-II
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
The failure to cite to controlling case law can constitute ineffective assistance of counsel.
State v. Hernandez-Hernandez, 104 Wn. App. 263, 266, 15 P.3d 719 (2001). Sentencing courts
have broad discretion to sentence anywhere within the standard range. State v. Mail, 65 Wn. App.
295, 297-98, 828 P.2d 70 (1992) (characterizing the trial judge’s discretion to sentence within the
standard range as “unfettered”). Nonetheless, “[a] trial court cannot make an informed decision if
it does not know the parameters of its decision-making authority.” State v. McGill, 112 Wn. App.
95, 102, 47 P.3d 173 (2002).
Mallis bases his ineffective assistance claim on his counsel’s failure to cite O’Dell to
support his request for a low-end sentence. In O’Dell, the Supreme Court held that while “age is
not a per se mitigating factor,” youth can be a substantial and compelling factor justifying an
exceptional sentence below the standard range for an offender who recently turned 18 years old.
183 Wn.2d at 695-96. The court emphasized the psychological and neurological studies illustrating
the 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. Id. at 691-92.
Here, Mallis was 20 years old when he shot Bopp, and Mallis described his choices as
“[c]hildish acts.” VRP at 12-13. Although Mallis was not seeking an exceptional downward
departure from the standard sentencing range, he was seeking the lowest sentence available within
the standard range, and the reasoning in O’Dell would have supported that request. Mallis’s
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Filed Washington State Court of Appeals Division Two
December 22, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 53234-4-II
Respondent,
v.
CHARLES NICK MALLIS, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—When Charles Mallis was 20 years old, he shot a 17-year-old who he
thought might have sexually assaulted his younger sister. Mallis pleaded guilty to first degree
assault with a firearm enhancement and unlawful possession of a firearm. He received a standard
range sentence, which he appeals. Mallis argues that his trial counsel rendered ineffective
assistance by failing to bring State v. O’Dell1 to the sentencing court’s attention in support of his
argument for a sentence at the low end of the standard range. We reverse Mallis’s sentence and
remand for resentencing.
FACTS
When Mallis was 20 years old, he sent Zaccary Bopp Facebook messages threatening to
assault Bopp. Mallis also sent Bopp text messages with pictures of Mallis posing with various
firearms. One night, after sending a friend to locate Bopp, Mallis shot Bopp with a .22 caliber rifle
1 183 Wn.2d 680, 358 P.3d 359 (2015). No. 53234-4-II
while Bopp was standing on his front porch. While Bopp was in the hospital, Mallis called Bopp’s
girlfriend and threatened to come to the hospital to finish what he had started.
The State charged Mallis with one count of first degree attempted murder, one count of
first degree assault, two counts of first degree unlawful possession of a firearm, one count of
tampering with a witness, and one count of felony harassment, with two firearm enhancements.
Mallis ultimately pleaded guilty to one count of first degree assault with a firearm enhancement
and one count of first degree unlawful possession of a firearm.
At sentencing, the State recommended a high-end standard sentence of 231 months (just
over 19 years). Mallis sought a low-end standard sentence of 189 months (almost 16 years),
arguing that the victim provoked Mallis by forcing Mallis’s 14-year-old sister to smoke
methamphetamine and possibly sexually assaulting her. Counsel did not argue that Mallis’s youth
should be considered as a factor warranting a low-end sentence, nor did counsel refer the court to
O’Dell. When addressing the court himself, Mallis characterized his actions as “[c]hildish acts.”
Verbatim Report of Proceedings (VRP) at 12-13.
The sentencing court sentenced Mallis to 231 months of total confinement, the high end of
the standard range. It reasoned:
What I recall from the probable cause statement, and this kind of confirms it, this reaction, that if it wasn’t for how serious it is, it’s just phenomenally juvenile. And, fortunately, phenomenally inept. It’s not even a matter of callousness, just is a complete lack of recognition that this is a serious thing and you probably shouldn’t shoot people. It seems very clear that that kind of a decision making process was utterly absent. So, it seems to me that Mr. Mallis is a very dangerous individual, just because he completely lacks that notion of any sort of decision making process.
VRP at 13-14.
Mallis appeals his sentence.
2 No. 53234-4-II
ANALYSIS
Mallis argues that his trial counsel rendered ineffective assistance by failing to bring O’Dell
to the sentencing court’s attention in support of his argument for a sentence at the low end of the
standard range. We agree.
Although a standard range sentence is generally not subject to appeal, a defendant may
appeal a standard range sentence if they allege a constitutional violation. State v. Bramme, 115
Wn. App. 844, 850, 64 P.3d 60 (2003). Ineffective assistance of counsel is a constitutional
violation. State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000).
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both (1) that defense counsel’s representation was deficient and (2) that
the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. If either prong
is not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673,
101 P.3d 1 (2004).
Representation is deficient if, after considering all the circumstances, the performance falls
“‘below an objective standard of reasonableness.’” Grier, 171 Wn.2d at 33 (quoting Strickland,
466 U.S. at 688). To show prejudice, a defendant must establish that “there is a reasonable
probability that, but for counsel’s deficient performance, the outcome of the proceedings would
have been different.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). “A reasonable
3 No. 53234-4-II
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
The failure to cite to controlling case law can constitute ineffective assistance of counsel.
State v. Hernandez-Hernandez, 104 Wn. App. 263, 266, 15 P.3d 719 (2001). Sentencing courts
have broad discretion to sentence anywhere within the standard range. State v. Mail, 65 Wn. App.
295, 297-98, 828 P.2d 70 (1992) (characterizing the trial judge’s discretion to sentence within the
standard range as “unfettered”). Nonetheless, “[a] trial court cannot make an informed decision if
it does not know the parameters of its decision-making authority.” State v. McGill, 112 Wn. App.
95, 102, 47 P.3d 173 (2002).
Mallis bases his ineffective assistance claim on his counsel’s failure to cite O’Dell to
support his request for a low-end sentence. In O’Dell, the Supreme Court held that while “age is
not a per se mitigating factor,” youth can be a substantial and compelling factor justifying an
exceptional sentence below the standard range for an offender who recently turned 18 years old.
183 Wn.2d at 695-96. The court emphasized the psychological and neurological studies illustrating
the 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. Id. at 691-92.
Here, Mallis was 20 years old when he shot Bopp, and Mallis described his choices as
“[c]hildish acts.” VRP at 12-13. Although Mallis was not seeking an exceptional downward
departure from the standard sentencing range, he was seeking the lowest sentence available within
the standard range, and the reasoning in O’Dell would have supported that request. Mallis’s
counsel failed to cite recent, relevant case law wherein the Supreme Court held that a defendant’s
4 No. 53234-4-II
young age can support a lower sentence even where the defendant was over 18 when they
committed the crime. Counsel failed to do so even when his client emphasized his own childishness
and even when the trial court’s remarks suggested that the court relied on youthful impulsiveness
as a reason for a higher sentence. This constituted deficient performance.
Further, that counsel’s deficient performance prejudiced Mallis is evidenced by the
sentencing court’s emphasis on Mallis’s youthfulness and immaturity. The sentencing court
described Mallis’s actions as “phenomenally juvenile” and reflective of an undeveloped decision-
making process. VRP at 13-14. But rather than weighing these characteristics as mitigating factors
as called for by O’Dell, the sentencing court used Mallis’s youthfulness as its sole reason for
imposing a high-end standard sentence. Had Mallis’s trial counsel brought O’Dell to the
sentencing court’s attention, there is a reasonable probability that the trial court would have
engaged in a meaningful consideration of Mallis’s youthfulness and imposed a different sentence.
Under these circumstances, resentencing is appropriate.
We reverse Mallis’s sentence and remand to the trial court for resentencing.
5 No. 53234-4-II
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:
Lee, C.J.
Sutton, J.