IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86842-0-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
JESSICA MARIE MULLINS,
Appellant.
CHUNG, J. — Jessica Marie Mullins appeals the revocation of her mental
health sentencing alternative (MHSA) and subsequent sentence. Mullins argues
that her MHSA was improperly revoked because Department of Corrections
(DOC) personnel and her treatment providers did not comply with their statutory
duties and the trial court’s findings were not supported by the evidence. She also
claims the trial court violated her right to counsel by not allowing her to finish
closing arguments at the revocation hearing and that she was deprived of
effective assistance of counsel during sentencing because her counsel did not
seek an exceptional sentence downward based on her mental health. Finally,
she argues that the court should strike the community custody term and victim
penalty assessment (VPA) from her sentence.
We affirm Mullins’s conviction and remand to the trial court to strike the No. 86842-0-I/2
community custody term and the VPA.
FACTS
Jessica Mullins was diagnosed with schizoaffective disorder bipolar type,
which is a delusional disorder with bipolar aspects. On February 23, 2021, police
officers in Aberdeen, Washington, took Mullins from the Aberdeen Jail to Grays
Harbor Community Hospital for a mental health evaluation. While at the hospital,
Mullins struck a nurse who was administering a COVID-19 test. She was charged
with assault in the third degree for assaulting a nurse who was performing her
nursing duties, pursuant to RCW 9A.36.031(1)(i). On October 27, Mullins
pleaded guilty to assault in the third degree and submitted a recommendation for
a MHSA. On December 6, the sentencing court granted Mullins a MHSA for 36
months and set a review hearing for January 18, 2022.
As part of the MHSA, the court imposed the following community custody
conditions:
The Defendant shall report to DOC not later than 72 hours after sentencing or release from custody at the address provided in open Court or by separate document. The Defendant shall comply with the instructions, rules, and regulations of DOC for the conduct of the Defendant during the period of community custody. The Defendant shall obey all laws, and perform affirmative acts as required by DOC to confirm compliance with the orders of the Court. The Defendant shall inform DOC of Court-ordered treatment upon the request of DOC. The Defendant shall comply with any other conditions of community custody stated in this Judgment and Sentence or imposed by DOC under RCW 9.94A.704 during community custody. While under supervision, the Defendant shall not own, use, or possess firearms or ammunition.
The court also ordered Mullins to do the following during the period of
supervision:
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• Pay all court-ordered legal financial obligations. • Notify the community corrections officer in advance of any change in Defendant’s address or employment. • Report as directed to a community corrections officer. • Comply with recommended treatment. • Meet with treatment providers. • Follow recommendations in individualized treatment plan. • Not possess or consume controlled substances, including marijuana, without valid prescription. • Obtain prior approval from DOC of residence location and living arrangements. • Take all prescribed medications. • Comply with monitoring of all prescribed medications.
On December 8, Mullins reported to DOC, but was not able to complete
her intake because her Community Corrections Officer (CCO), Racquel Lanoue,
was not in the office. Mullins was told to return the next day, which she failed to
do. Mullins then reported to DOC on December 15, but was told to come back on
December 28. Mullins returned to DOC several other times in the next month, but
Lanoue testified that on the days Mullins reported, she would sign in and leave
without completing an intake, despite protocol requiring supervisees to “speak to
their assigned [CCO] or the duty officer.” Lanoue also testified that other than the
initial mental health report, she did not receive any reports from any health care
providers about Mullins’s treatment.
Mullins failed to appear at the scheduled review hearing on January 18,
2022, prompting the State to file a petition to revoke her MHSA. The following
day, the court issued a bench warrant in accordance with the State’s petition.
After several hearings, on March 28, the sentencing court denied the State’s
petition to revoke Mullins’s MHSA and signed an order permitting her to go to
inpatient treatment.
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Mullins was released from inpatient treatment on April 19. After Mullins’s
release, she reported to DOC on April 19 and completed her intake with Lanoue.
On May 24, Lanoue reminded Mullins that when she reported to DOC she
needed to speak with a CCO. At this time Mullins confirmed she was living at her
transition housing with Coastal Community Action Program (CCAP). However,
Lanoue testified that later, when she attempted to make contact with Mullins at
her CCAP housing, the CCAP staff reported Mullins had “moved out” and left her
medications. Lanoue stated that Mullins reported to DOC on May 31 and June 7
and signed in and left without speaking to a CCO.
On June 10, 2022, after receiving a report from DOC that Mullins was in
violation of the MHSA, the State filed another petition to revoke Mullins’s MHSA,
which alleged that she (a) failed to get DOC approval to change her residence;
(b) failed to comply with treatment; (c) failed to meet with her CCO; (d) failed to
meet with treatment providers; and (e) failed to comply with taking her
medications. On June 13, the trial court ordered and issued another bench
warrant for Mullins’s arrest based on the State’s petition to revoke her MHSA.
During closing arguments at the hearing, on September 19, Mullins asked
for “a pre-sentence investigation considering the nature of this case,” but the
court interjected and denied her request. When the court asked Mullins if she
wanted to be heard regarding sentencing, her counsel stated:
We are asking for the Court to impose a sentence outside of the standard range, because Ms. Mullins suffers from significant mental health issues, and that makes the 43 months in this case essentially cruel and unusual punishment. I think that the testimony did prove that Ms. Mullins does, in fact, suffer from a significant mental illness that made her compliance in this program impossible
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without the appropriate community supervision that your Honor refused to implement.
The trial court imposed the maximum sentence of 57 months. The State then
asked whether the court would make a finding that mental illness contributed to
the offense, to which the court responded, “Yes,” without additional explanation.
In its written findings of fact and conclusions of law, the trial court found
that Mullins was unwilling “to engage in treatment, remain crime free, report to
the Department of Corrections, take medication, abstain from the use of non-
prescribed controlled substances, engage with any individualized treatment plan,
or comply with any court order” and stated “[t]here is no indication that [she] will
ever comply,” and that her past behavior indicated she would continue not to
comply with the MHSA. Based on its findings, the trial court concluded that she
failed to comply with the MHSA requirements and, as such, revoked it and
imposed 57 months incarceration and 12 months of community custody. The
sentencing court also imposed a VPA and a mandatory condition requiring
Mullins to pay for community supervision.
DISCUSSION
Mullins challenges the trial court’s September 19 judgment and sentence
on several grounds. First, she claims her MHSA was improperly revoked.
Further, she claims that the trial court deprived her of the right to counsel by
repeatedly interrupting her during her closing statements and stopping her from
completing her closing statement. She also claims that she was deprived of
effective assistance of counsel when, following the revocation of her MHSA, her
counsel did not attempt to obtain an exceptional sentence downward given that
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her mental health is a mitigating factor. Finally, she argues that the court should
remand to strike the community custody term and the VPA from her sentence.
I. Revocation of the Mental Health Sentencing Alternative
Mullins claims that the trial court abused its discretion in revoking her
MHSA because it misunderstood the statutory requirements that significant
community support is needed to aid a defendant’s compliance with the treatment
plan that was not provided to her. She further assigns error to the court’s findings
of facts and conclusions of law that the facts indicated a “substantial and
compelling reason” to revoke the MHSA. We address first what the statute
requires before a court may revoke a MHSA. Then, we address Mullins’s claim
that the court abused its discretion in revoking her MHSA.
A. Statutory Requirements for a MHSA
In 2021, the legislature created the mental health sentencing alternative
(MHSA). LAWS OF 2021, ch. 242, § 1. A defendant is eligible for a MHSA if:
(a) The defendant is convicted of a felony that is not a serious violent offense or sex offense; (b) The defendant is diagnosed with a serious mental illness recognized by the diagnostic manual in use by mental health professionals at the time of sentencing; (c) The defendant and the community would benefit from supervision and treatment, as determined by the judge; and (d) The defendant is willing to participate in the sentencing alternative.
6 No. 86842-0-I/7
RCW 9.94A.695(1). 1
Mullins notes that the incarceration of persons with serious mental illness
has increased along with correlative issues of substance abuse and
homelessness due to a lack of resources. She suggests the legislature sought to
target these issues by creating the MHSA, and, unlike other sentencing
alternatives, it places affirmative obligations on CCOs and requires treatment
providers to make “reasonable efforts” to involve the defendant in the treatment.
Thus, Mullins claims the trial court improperly revoked her MHSA because her
assigned CCO and treatment providers did not meet their statutory obligations to
work with her to provide intensive supervision and make reasonable efforts to
involve her in treatment.
Interpretation of a statute is a matter of law reviewed de novo. State v.
Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). The purpose of statutory
interpretation is to understand legislative intent and give effect to that
intent. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 80, 91, 392
P.3d 1025 (2017). The court discerns plain meaning from “ ‘the ordinary meaning
of the language at issue, the context of the statute in which that provision is
found, related provisions, and the statutory scheme as a whole.’ ” Randy
Reynolds & Assocs. Inc. v. Harmon, 193 Wn.2d 143, 155, 437 P.3d 677 (2019)
1 The legislature modified the MHSA statute in 2024. LAWS OF 2024, ch. 373, § 1. It
added a new section (6) allowing the court and correctional facility to delay the defendant’s release from total confinement to facilitate adherence to the treatment plan and a new section (13) that allows the health care authority to reimburse certain services. See RCW 9.94A.695(6), (13). The amendments also renumbered the sections starting with former section (7). Because these amendments do not impact the statutory language at issue here, we refer to the current statute.
7 No. 86842-0-I/8
(quoting Engel, 166 Wn.2d at 578). A reviewing court ends its inquiry if the plain
language of the statute has a single interpretation. In re the Adoption of T.A.W.,
186 Wn.2d 828, 840, 383 P.3d 492 (2016). However, if the plain meaning is
ambiguous, then a reviewing court may look at the legislative history to
determine the legislative intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317
P.3d 1003 (2014). Finally, “ ‘shall’ when used in a statute, is presumptively
imperative and creates a mandatory duty unless a contrary legislative intent is
shown.” Goldmark v. McKenna, 172 Wn.2d 568, 575, 259 P.3d 1095 (2011).
If the sentencing court determines a MHSA is appropriate, it “shall impose”
a term of community custody. RCW 9.94A.695(4). The court has discretion to
determine the length of the term within certain ranges, which depend on the
length of the standard range sentence. 2 RCW 9.94A.695(4).
Further, if a court imposes a MHSA, DOC “shall assign” a CCO to
supervise the defendant, and DOC “shall provide” the CCO “with appropriate
training in mental health to be determined by [DOC].” RCW 9.94A.695(5). DOC
“shall provide a written report, which shall be in the form of a presentence
investigation,” and the report must include a proposed treatment plan and a
proposed monitoring plan. RCW 9.94A.695(3). Specifically, the proposed
treatment plan must identify the treatment provider who “is agreeing to provide
treatment,” including developing an individualized treatment plan to be submitted
to the court. RCW 9.94A.695(3)(a)(i). The DOC report must also include “an
2 The range is between 12 and 24 months if the midpoint of the standard range is less
than or equal to 36 months, and between 12 and 36 months if the midpoint of the standard range sentence is longer than 36 months. RCW 9.94A.695(4).
8 No. 86842-0-I/9
agreement by the treatment provider to monitor the [defendant’s] progress” and
to notify DOC and the court “if reasonable efforts to engage the defendant fail to
produce substantial compliance with court-ordered treatment conditions.” RCW
9.94A.695(3)(a)(ii).
If the court imposes a MHSA, the court also “shall impose conditions
under RCW 9.94A.703 [the Sentencing Reform Act of 1981’s community custody
provisions] that are consistent with the [MHSA statute] and may impose any
additional conditions recommended by any of the written reports regarding the
defendant.” The court also “shall impose specific treatment conditions:”
(i) Meet with treatment providers and follow the recommendations provided in the individualized treatment plan as initially constituted or subsequently modified by the treatment provider; (ii) Take medications as prescribed, including monitoring of compliance with medication if needed; (iii) Refrain from using alcohol and nonprescribed controlled substances if the defendant has a diagnosis of a substance use disorder.
RCW 9.94A.695(8)(b).
As Mullins notes, the MHSA is unique among other sentencing
alternatives, such as the drug offender sentencing alternative (DOSA), in that, by
design, it requires collaboration by the treatment provider, CCO, and
representatives of the person’s medical assistance plan to develop and monitor
the treatment plan. The MHSA statute expressly states, “Treatment issues
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arising during supervision shall be discussed collaboratively.” 3 RCW
9.94A.695(9). The statute then contemplates that the defendant receive support
for violations of treatment conditions:
The treatment provider, community corrections officer, and any representative of the person’s medical assistance plan shall jointly determine intervention for violation of a treatment condition. The community corrections officer shall have the authority to address the violation independently if: (a) The violation is safety related with respect to the defendant or others; (b) The treatment violation consists of decompensation related to psychosis that presents a risk to the community or the defendant and cannot be mitigated by community intervention. . . .; or (c) The violation relates to a standard condition for supervision.
RCW 9.94A.695(9). By giving the CCO authority to address certain violations, the
MHSA statute suggests that not every violation results in a termination of the
MHSA. Further, because the statute requires that the court receive updates on
interventions, RCW 9.94A.695(10), 4 the implication is that not every intervention
3 For example, while the DOSA statute imposes requirements on DOC as well as certain
reporting requirements on treatment providers, it does not require that DOC and the treatment provider coordinate to the same degree as the MHSA statute does. See RCW 9.94A.664(3)(a) (requiring treatment provider to send treatment plan and written reports to the court); RCW 9.94A.660(4)(b) (to assist the court in making its determination, “the court may order the department to complete either or both a risk assessment report and a substance use disorder screening report”); RCW 9.94A.664(2)(b) (if the court orders residential treatment, DOC must make available substance use disorder assessment and treatment services, or domestic violence treatment services to a domestic violence offender, during any term of community custody, but only “within available resources”). 4 Further, the CCO, treatment provider, and “any engaged representative of the
defendant’s medical assistance plan should collaborate prior to a progress update to the court,” and “[r]equired treatment interventions taken between court progress hearings shall be reported to the court” in regular updates.
10 No. 86842-0-I/11
results in a revocation hearing. 5
The MHSA statute allows the court to schedule a review hearing “at any
time to evaluate the defendant’s progress with treatment or to determine if any
violations have occurred.” RCW 9.94A.695(11). At a review hearing, the court
may modify the terms of community custody or impose sanctions. Id.
Alternatively, “[t]he court may order the defendant to serve a term of total or
partial confinement for violating the terms of community custody or failing to
make satisfactory progress in treatment.” Id. 6
Further, “if the department or the state reports that the defendant has
violated the terms of community custody,” the court may schedule a termination
hearing. RCW 9.94A.695(12). Otherwise, the court “shall schedule a termination
hearing one month prior to the end of the defendant’s community custody.” Id.
We agree with Mullins that optimally, a MHSA allows a defendant to obtain
treatment as an alternative to incarceration and, toward this end, the statute
imposes obligations on DOC and treatment providers to support a defendant who
receives a MHSA. The MHSA statute imposes obligations on DOC, the assigned
CCO, and treatment providers to collaborate and create a treatment plan, to
make reasonable efforts to involve a defendant in treatment, and to provide the
5 While courts generally do not turn to legislative history as an interpretive aid unless a
statute is ambiguous, we note that when the MHSA was originally introduced, the text did not include language such as “reasonable efforts,” “collaborate,” “collaboratively,” or “jointly,” to describe the relationship between the defendant, DOC, and treatment provider. S.B. 5293, 67th Leg. Reg. Sess. (Wash. 2021). However, the Senate Committee on Law and Justice explicitly made such changes to the bill, SECOND SUBSTITUTE S.B. 5293, 67th Leg. Reg. Sess. (Wash. 2021), which were adopted into the final law. See RCW 9.94A.695. 6 In this regard, the MHSA is similar to the other sentencing alternatives that permit the
court to revoke the alternative and impose a term of total confinement in the event the defendant violates a condition of the alternative or fails to progress in treatment. See RCW 9.94A.660(7)(c) (DOSA); 9.94A.655(8)(d) (Parenting Sentencing Alternative).
11 No. 86842-0-I/12
court with regular progress updates. And the statute provides options for
managing violations, including giving the CCO authority to address conditions
violations and allowing the department or the state to seek a review hearing or a
termination hearing based on conditions violations.
Ultimately, however, the statute gives a court broad discretion to revoke a
MSHA and impose a term of total confinement if a defendant either (1) violates
the terms of community custody or (2) fails to make satisfactory progress in
treatment. RCW 9.94A.695(11). Nothing in the plain language of the MHSA
statute suggests that the failure of third parties to satisfy their statutory
obligations limits the court’s authority to revoke a MHSA, or excuses a defendant,
for a violation of conditions.
B. Order Revoking MHSA
With this legal framework for revocation of a MHSA in mind, we turn next
to Mullins’s assertions that the trial court abused its discretion when it revoked
her MHSA (a) based on its misunderstanding of the statutory requirements and
(b) based on its findings of fact that were not supported by substantial evidence.
Specifically, she challenges finding of fact 8 and the court’s conclusion of law 3
that the facts “indicate a substantial and compelling reason” to revoke the MHSA.
On appeal, we review a trial court’s revocation of a sentencing alternative
for an abuse of discretion. State v. McCormick, 166 Wn.2d 689, 705-06, 213
P.3d 32 (2009) (applying abuse of discretion standard to revocation of special
sex offender sentencing alternative). A reviewing court will find an abuse of
discretion “when the trial court’s decision (1) adopts a view that no reasonable
12 No. 86842-0-I/13
person would take and is thus ‘manifestly unreasonable,’ (2) rests on facts
unsupported in the record and is thus based on ‘untenable grounds,’ or (3) was
reached by applying the wrong legal standard and is thus made ‘for untenable
reasons.’ ” State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012)
(quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
Additionally, appellate courts review findings of fact under a substantial
evidence standard. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879,
73 P.3d 369 (2003). Substantial evidence is “a quantum of evidence sufficient to
persuade a rational fair-minded person the premise is true.” Id. If this standard is
met, the reviewing court will uphold the trial court’s findings even if the factual
issue could have been resolved differently. Id. at 879-80. Additionally,
unchallenged findings of fact are verities on appeal. State v. Garnica, 105 Wn.
App. 762, 768, 20 P.3d 1069 (2001) (holding that the defendant’s failure to
assign error to the sentencing court’s findings of fact rendered the facts verities
on appeal).
First, Mullins challenges the trial court’s finding of fact 8, which found:
[Mullins] has shown no willingness to engage in treatment, remain crime free, report to the Department of Corrections, take medication, abstain from the use of non-prescribed controlled substances, engage with any individualized treatment plan, or comply with any court order. There is no indication that [Mullins] will ever comply, and her past behavior indicates that she will continue to not comply with the [MHSA].
The State based its June 2022 petition to revoke in part on Mullins’s
failure to notify CCO Lanoue of a change of her address, failure to obtain
approval from DOC “of her residence location and living arrangements”, and
failure to report to CCO Lanoue as directed. Regarding her residence, the
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undisputed evidence was that Mullins left her transition house at CCAP without
informing DOC. In fact, she was reportedly trespassed from the facility sometime
after her release from inpatient treatment and after she departed from the facility.
Further, there is no evidence that she obtained approval from DOC of any new
residence location or living arrangements.
As to whether Mullins reported to her CCO as directed, initially, on
December 8, 2021, Mullins reported to DOC, but Lanoue was not present, so
Mullins was told to return on December 9. She again reported to DOC on
December 15, but was told to report back on December 28. The record does not
indicate whether on the dates Mullins reported to DOC, Mullins was directed to
meet with an available CCO or how her DOC visits with her assigned CCO were
to be scheduled. Nor does the record indicate any affirmative effort by Lanoue to
contact Mullins until much later than Mullins’s initial attempts to meet in
December 2021. 7
Nevertheless, at the February 2022 hearing on the State’s initial petition to
revoke, Mullins admitted to the conditions violations of failing to report to a review
hearing in January and failing to report to CCO Lanoue. The court ultimately
denied that petition to revoke and instead ordered Mullins to inpatient treatment.
After completing this treatment, Mullins reported to DOC on April 19 and
7 Mullins argues that Lanoue’s testimony reflects that she did not have mental health
training as required by the statute. RCW 9.94A.695(5) requires the CCO to be provided with “appropriate training in mental health to be determined by the department.” Lanoue’s testimony indicates that the extent of her training from DOC was “to go over the pre-sentence investigation reports that we would now have to be doing and the expectations of having mental health offenders now on our case loads,” and that MHSA supervision would require her to “mak[e] sure that they’re [sic] (supervisees) attending treatment, checking in with Department of Corrections, housing, medication compliance, chemical dependency.” As the statute allows DOC to determine what is “appropriate,” Mullins’s argument that Lanoue lacked the requisite training is unavailing.
14 No. 86842-0-I/15
completed her intake with Lanoue that day. Lanoue testified that she spoke with
Mullins only one more time after the intake meeting, on May 24, when she
reminded Mullins that when she reported to DOC she needed to speak with a
CCO. But the record shows that despite Lanoue’s reminder, Mullins reported to
DOC on May 31 and June 7 and signed in and left without speaking to a CCO.
Thus, the record contains substantial evidence that Mullins did not report to her
CCO as required by the MHSA.
The State also sought revocation of Mullins’s MHSA based on her failure
comply with her treatment, failure to meet with her treatment providers, including
to follow her treatment plan, and failure to comply with monitoring of her
medications. In finding of fact 1, which Mullins does not challenge, the court
found that Mullins had an individualized treatment plan developed by the
Community Integrated Health Services (CIHS), which had agreed to provide
Mullins with treatment. 8 Further, the record shows that after the court amended
the terms of Mullins’s MHSA, Mullins participated in inpatient treatment from
March 25, 2022 until April 19, 2022, received a medication shot for her
schizoaffective disorder upon her release from inpatient treatment, and was
reassessed by the flexible assertive community treatment (FACT) team upon her
release from inpatient treatment. However, in unchallenged finding of fact 4, the
8 The record on appeal does not contain Mullins’s proposed treatment plan, either in the
CCO’s presentence report, which the statute requires to contain this information, or otherwise. Thus, the record does not allow us to assess directly whether there is substantial evidence that Mullins failed to comply with specific treatment conditions. The appellant has the burden of perfecting the record on appeal to ensure that the reviewing court is aware of all necessary evidence to decide the issues. Sisouvanh, 175 Wn.2d at 619 (citing RAP 9.2(b)). However, here, even without the treatment plan, the testimony and the court’s unchallenged findings provide substantial evidence that Mullins violated her treatment plan.
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court found that upon release, Mullins left CCAP, her prearranged sober living
house, after only one day “and chose to live in the streets of Aberdeen”; she did
not seek DOC’s permission to do so, as required by the MHSA. Lanoue testified
that Mullins left her medications behind at CCAP. Further, in findings of fact 5
and 7, also unchallenged, the court found that after Mullins left CCAP, she “did
not comply with her individualized treatment plan” because she did not contact
CIHS or engage in treatment and failed to comply with the requirement that “her
medication regime be monitored.” As Mullins did not challenge these findings, we
treat them as verities, and together, along with the evidence in the record, they
support the portions of finding of fact 8 that Mullins failed to engage in treatment,
take medication, and engage with her individualized treatment plan.
Thus, substantial evidence supported the court’s finding of fact 8 to the
extent that it found Mullins did not “engage in treatment, . . . report to the
Department of Corrections, take medication, . . . [or] engage with any
individualized treatment plan.” However, the substantial evidence does not
necessarily support that Mullins “showed no willingness” and “would never
comply” with certain conditions, as there was evidence that after the MHSA was
imposed, she engaged in multiple efforts to meet with her CCO by going to the
office and signing in; she met with Lanoue for intake after being released from
inpatient treatment; she engaged in inpatient treatment; and she entered the
sober living housing, CCAP. Thus, to the extent the court found Mullins “showed
no willingness” to comply and that “[t]here is no indication that [Mullins] will ever
comply, and her past behavior indicates that she will continue to not comply with
16 No. 86842-0-I/17
the [MHSA],” this language is too categorical and, to that extent, not supported
by substantial evidence. 9
But these unsupported aspects of finding of fact 8 are ultimately not
necessary to support a finding of a violation. Substantial evidence supports the
findings that Mullins did not “engage in treatment,” “report to the Department of
Corrections, take medication,” or “engage with any individualized treatment plan.”
In turn, these findings, along with the unchallenged findings of fact, prove the
conditions violations alleged by the State in its petition to revoke.
Nevertheless, Mullins also challenges the court’s conclusion of law that
the facts “indicate a substantial and compelling reason to revoke the [MHSA].”
However, as discussed above, for a court to revoke a MHSA, the statute requires
only that the defendant either (1) violates the terms of community custody or (2)
fails to make satisfactory progress in treatment. RCW 9.94A.695(11); RCW
9.94A.695(12)(c) (court has authority to revoke a MHSA for violations of terms of
community custody). The statute does not require a court to consider whether the
failure of DOC, treatment providers, or others to satisfy their statutory obligations
contributed to Mullins’s lack of compliance with the MHSA. 10 Here, the
9 Finding of fact 8 also states that Mullins did not “abstain from the use of non-prescribed
controlled substances.” The only testimony about whether Mullins failed to abstain was CCO Lanoue’s testimony that she had not conducted urinalysis testing and did not know whether or not Mullins complied with this condition. Thus, in this respect, the finding is not supported by substantial evidence. 10 The State points to the court’s response at the revocation hearing to Mullins’s
counsel’s charge that the court could have done more to help her:
I’m not sure who you think is going to ensure that your client complies with the treatment plan, because there was a treatment plan. She simply failed to appear. She stayed one day at the housing that was set up for her, she wasn’t taking her medications, she wasn’t checking in with her community corrections officer. So the people that were supposed to be treating her, she – she wasn’t in contact with any of them. So who [is] supposed [sic] to solve that problem.
17 No. 86842-0-I/18
unchallenged findings from the revocation hearing as well as the supported
portions of finding of fact 8 support the court’s conclusion that Mullins violated the
terms of her MHSA, and that there was a “substantial and compelling reason to
revoke” her MHSA. Therefore, the court acted within its discretion in revoking
Mullins’s MHSA.
C. Deprivation of Right to Counsel at Closing
Mullins asserts that the trial court deprived her of her federal and state
constitutional right to effective assistance of counsel when it interrupted her and
ultimately stopped her from completing her closing argument.
A criminal defendant has a constitutional right to the assistance of
counsel. U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22. This includes the
right to be heard at closing argument. Herring v. New York, 422 U.S. 853, 863-
64, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (striking down a New York law
allowing judges to prevent counsel from making a closing argument in non-jury
criminal trial); State v. Perez-Cervantes, 141 Wn.2d 468, 474, 6 P.3d 1160
(2000). A trial court has broad discretion regarding the scope of counsel’s closing
arguments. State v. Frost, 160 Wn.2d 765, 771-72, 161 P.3d 361 (2007).
However, a court abuses its discretion when it implicates a defendant’s
constitutional right to counsel by unduly limiting the scope of their closing
argument based on a misunderstanding of the law. Frost, 160 Wn.2d at 778-79
The State contends this is evidence that the court’s revocation was based on facts in the record was therefore acting within its discretion. While we disagree that the court’s comments constitute evidence, they do indicate that the court properly understood its discretion under the statute to revoke a MHSA for conditions violations, regardless of others’ alleged deficiencies in satisfying their statutory obligations.
18 No. 86842-0-I/19
(court was not authorized to compel the defendant’s counsel to “argue logically”).
While closing arguments are integral to a defendant’s assistance of counsel
because they can be used to “sharpen and clarify the issues for resolution by the
trier of fact in a criminal case,” a trial court is authorized to “terminate argument
when continuation would be repetitive or redundant.” Herring, 422 U.S. at 862.
On appeal, a trial court’s decision to limit the scope of a defendant’s
closing argument is reviewed for an abuse of discretion. Frost, 160 Wn.2d at 771.
An abuse of discretion occurs when “ ‘no reasonable person would take the view
adopted by the trial court.’ ” Id. (quoting Perez-Cervantes, 141 Wn.2d at 475).
Mullins contends that the trial court interrupted and ultimately cut off her
closing argument in violation of her constitutional right to counsel and that its
actions were not harmless beyond a reasonable doubt. She asserts that in
closing she attempted to explain the differences of the MHSA and that she was
not provided with the support the statute required, but that the trial court
interrupted her and challenged this claim. Although she admits that she
erroneously asserted at trial that there had not been a progress hearing when
there had been, she points to the following exchange as evidence that the trial
court unduly limited her closing argument:
Mullins: This should never have been brought as a petition to revoke. Your Honor has the authority to make the people in the community do what they are supposed to do and that is what hasn’t been done.
Court: [Mullins], you’re rewriting history. That’s not what happened in this case. When [] your client failed to appear at the progress hearing, a bench warrant issued for her. When she came back into custody, we had [] a hearing with her present.
19 No. 86842-0-I/20
Mullins’s counsel then pointed to the court’s overview of the procedural history of
her case and the statement that she had not been around for any of her treating
personnel to assist Mullins and countered the court’s description of events:
Mullins: Yes, she was. She appeared several times. It may not be at her appointment times, but she was around. A special –
Court: Anything else, [Mullins]? What are you asking me to do today?
Mullins: I’m asking you to keep the sentencing alternative in place, have an actual collaboration between the people who are supposed to be taking care of her in the community per the statute and to allow this to go forward in some kind of therapeutic housing scenario. . . . And the community, as a whole, is supposed to come together in mental health sentencing alternatives to find a solution that fits for the person. This is absolutely not what happened. And under Section 8, the community corrections officer has the authority to address the violation independently or with the community as long as it’s safety related and consists of decompensation. That’s what all of the testimony has said. The reason for all of this –
Court: Thank you [].
Mullins: -- is because she’s decompensated –
Court: That’s all. Thank you.
Mullins argues that the trial court limited the scope of her closing argument
in a way that deprived her from clarifying issues for the court’s resolution. 11 She
contends that this error was not harmless because the court’s revocation was
based on its misunderstanding of the MSHA, which she was attempting to clarify
through argument, and therefore, by limiting her argument, she was deprived of
assistance of counsel.
11 Mullins also argues that the trial court was biased against her and that if we decide to
remand her case should be reassigned to a different judge. However, the judge previously assigned to this case has since retired. Therefore, it is not necessary for us to address this issue.
20 No. 86842-0-I/21
The State counters that the trial court was attempting to restrict her
argument to the facts in the record. According to the State, the trial court was
simply disputing Mullins’s claim that DOC was required to “oversee [her] mental
health treatment” when RCW 9.94A.695(3)(a)(ii) assigns the treatment provider
“to monitor the progress of the defendant on the sentencing alternative and notify
the department . . . if reasonable efforts to engage the defendant fail to produce
substantial compliance.”
In the context of the challenged exchange, Mullins argued that the trial
court had “authority to make the people in the community do what they are
supposed to do.” The court responded, “That [was] not what happened in this
case,” and recited facts regarding the court proceedings that had occurred.
Mullins concedes she had incorrectly contended that a progress hearing had not
been held. And even though Mullins disagreed with the court’s description of
events, she was not deprived of the opportunity to state her view of the
proceedings. And to the extent the court was questioning Mullins’s position that
the State, or the court, was responsible for monitoring her treatment, Mullins had
the opportunity to brief the relevant law before the hearing and presented
evidence relating to those legal standards at the hearing. At the point when the
court stopped the argument, Mullins’s counsel had just explained her view of
different actors’ roles and responsibilities under the statute; she explained there
was supposed to “have an actual collaboration between the people who are
supposed to be taking care of her in the community per the statute and . . . some
kind of therapeutic housing scenario,” and that “the community corrections officer
21 No. 86842-0-I/22
has the authority to address the violation independently or with the community as
long as it’s safety related and consists of decompensation. That’s what all of the
testimony has said.”
While Mullins disagrees with the court’s decision to revoke her MHSA, she
was not deprived of the opportunity to explain her interpretation of the MHSA
statute through briefing and argument. And while she claims she would have
clarified her argument and prevented the court from misinterpreting the statute,
she does not identify with specificity what she was prevented from arguing that
would have resulted in a different outcome. Therefore, we conclude that the trial
court was within its discretion to limit the scope of her argument because it did so
to limit the argument to facts in the record, and it had received briefing and heard
argument on the issue. 12
II. Ineffective Assistance of Counsel
Mullins argues that her counsel was ineffective in failing to argue for a
sentence below the standard range based on her mental health diagnosis as a
mitigating factor. 13 We disagree.
Criminal defendants have a constitutional right to effective counsel. U.S.
CONST. amend. VI; WASH. CONST. art. I, § 22. A defendant is deprived of their
12 A limit to the scope of closing argument is subject to harmless error review because it
impacts the trial process. Frost, 160 Wn.2d at 781. Under a harmless error analysis, a reviewing court evaluates whether the untainted evidence is so significant that it nonetheless supports the conviction. Id. at 782. The error must be harmless beyond a reasonable doubt. Id. In Frost, the court held that the limit to the scope of closing argument was harmless error because counsel’s argument was not itself evidence and other evidence of the defendant’s guilt supported his conviction. 160 Wn.2d at 782-83. As in Frost, here, Mullins’s closing argument was not evidence. Moreover, the hearing was not before a jury. Therefore, any error was harmless. 13 Generally, a sentence within the standard sentence range cannot be appealed. RCW
9.94A.585.
22 No. 86842-0-I/23
right to effective assistance of counsel when (1) counsel’s conduct falls below the
objective standard of care and (2) counsel’s deficient conduct prejudiced the
outcome. Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). Defendants must satisfy both prongs of the Strickland test. State
v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986).
“Courts engage in a strong presumption counsel’s representation was
effective.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). A
defendant must overcome this “strong presumption” on both prongs of the
Strickland test. State v. Bertrand, 3 Wn.3d 116, 123, 546 P.3d 1020 (2024). The
court is not required to consider both deficiency and prejudice if a petitioner fails
to prove one prong. In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280
P.3d 1102 (2012). The Strickland test is not applied mechanically but rather with
focus on whether the proceedings were fundamentally fair. Bertrand, 3 Wn.3d at
123-24. A claim of ineffective assistance of counsel is reviewed de novo. State v.
Backemeyer, 5 Wn. App. 2d 841, 848, 428 P.3d 366 (2018).
To show deficient performance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness in light of all
the circumstances. Strickland, 466 U.S. at 688. However, any conduct that
constitutes legitimate trial strategy cannot be deficient conduct. State v.
Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
As to deficiency, Mullins contends that counsel’s performance fell below
the objective standard of reasonableness because it was so evident that her
23 No. 86842-0-I/24
mental health diagnosis was a mitigating factor. 14 She states that her mental
health diagnosis qualifies as a mitigating factor under RCW 9.94A.535(1)(e)
because it impaired her “capacity to appreciate the wrongfulness of [] her
conduct, or to conform [] her conduct to the requirements of the law.” Therefore,
she contends that no reasonably prudent counsel would have failed to argue her
mental health diagnosis as a mitigating factor, and her counsel was already
attempting to argue for a lesser sentence under an Eighth Amendment cruel and
unusual punishment theory.
RCW 9.94A.535 provides that a court “may impose an exceptional
sentence below the standard range if it finds that mitigating circumstances are
established by a preponderance of the evidence.” And here, counsel did highlight
Mullins’s mental health diagnosis and asked for a lesser sentence. Counsel
asked the court “to impose a sentence outside of the standard range, because
Ms. Mullins suffers from significant mental health issues” and “the testimony did
prove that Ms. Mullins does, in fact, suffer from a significant mental illness that
made her compliance in this program impossible without the appropriate
community supervision that Your Honor refused to implement.” Thus, though
counsel did not use the words “mitigating,” they tied the request for an
exceptional sentence to Mullins’s mental health. Further, counsel had “wide
latitude” to make the strategic decision to additionally make a constitutional
14 The legislature intended mitigating factors to account for circumstances that distinguish
blameworthiness from conduct that is normally consistent with a crime. State v. Hutsell, 120 Wn.2d 913, 921-22, 845 P.2d 1325 (1993) (quoting DAVID BOERNER, SENTENCING IN W ASHINGTON §9.12(c) (1985)).
24 No. 86842-0-I/25
argument under the Eighth Amendment: “and that makes the 43 months in this
case essentially cruel and unusual punishment.”
Moreover, Mullins cannot establish prejudice as required under the
second Strickland prong. For support, she cites State v. Grayson, in which the
court held that a defendant is entitled to ask for an alternative sentence, and the
trial court’s failure to consider that alternative is reversible error. 154 Wn.2d 333,
342, 111 P.3d 1183 (2005). Here, unlike in Grayson, the record demonstrates
that the court here did not fail to consider the alternative sentence. Mullins asked
for an alternative sentence, and the court was well aware of her mental health
condition, as that was a statutory prerequisite for the MHSA. When the court
initially imposed the MHSA, the order stated the standard range for assault in the
third degree was 43-57 months, and the court imposed 36 months of MHSA
custody, a below-standard range term. At the revocation hearing, the trial court
heard Mullins’s testimony regarding the impact that her mental health diagnosis
had on her crime and on her MHSA. At the State’s request, the court made a
finding that mental illness contributed to the offense.
We conclude that Mullins cannot overcome the strong presumption that
her trial counsel was effective, as their performance was not deficient or
prejudicial.
III. Grounds for Resentencing on Remand
A. Sentence Exceeds Statutory Maximum
Mullins contends, and the State agrees, that the trial court erroneously
imposed a term of community custody without having authority to do so. A court
25 No. 86842-0-I/26
is limited to imposing sentences that are authorized by statute. In re
Postsentence Review of Leach, 161 Wn.2d 180, 184, 163 P.3d 782 (2007). The
applicable statute, former RCW 9.94A.695(11)(c), authorizes a trial court to
“impose a term of total or partial confinement within the standard sentence
range.” But it does not authorize it to “impose a sentence that involves something
other than confinement, such as community custody.” In re Postsentence Review
of Gardner, 32 Wn. App. 2d 474, 479, 556 P.3d 743 (2024). Therefore, when a
defendant’s MHSA is revoked, the trial court does not have authority to impose a
term of community custody. Id. at 480.
Mullins was sentenced to 57 months of confinement, followed by 12
months of community custody for a total of 69 months. The State concedes that
imposing a term of community custody was erroneous pursuant to Gardner. We
accept the State’s concession and remand to strike the term of community
custody. 15
B. VPA and Community Supervision Fee
Mullins asks this court to strike the VPA based on recent changes to the
law. The State does not dispute that the VPA should be stricken.
Pursuant to 2023 amendments, courts may not impose the VPA when the
defendant is indigent. RCW 7.68.035(4). The sentencing court found Mullins to
be indigent. The 2023 amendments to RCW 7.68.035 apply to matters pending
15 Mullins originally also challenged the total length of her confinement and community
custody as exceeding the statutory minimum as well as the imposition of mandatory community custody supervision fees based on recent changes in the law. Based on our determination that community custody should not have been imposed, we need not address these issues.
26 No. 86842-0-I/27
on direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023).
We accept the State’s concession and remand to strike the VPA.
CONCLUSION
We affirm Mullins’s conviction and remand to the trial court to strike the
term of community custody and the VPA from her sentence.
WE CONCUR: