Filed Washington State Court of Appeals Division Two
December 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56362-2-II
Respondent,
v.
JOHN PHI TRUONG, UNPUBLISHED OPINION
Appellant.
LEE, J. — John P. Truong appeals his sentence for unlawful possession of a controlled
substance—methamphetamine with intent to deliver and the firearm sentencing enhancement,
arguing that the trial court failed to meaningfully consider his youth, background, and
rehabilitation in denying his request for an exceptional sentence downward or to run the firearm
sentencing enhancement concurrently with the base sentence. Because the trial court did not abuse
its discretion, we affirm.
FACTS
In 2019, Truong was found guilty of first degree unlawful possession of a firearm and
unlawful possession of a controlled substance—methamphetamine with intent to deliver, with a
firearm sentencing enhancement. Truong was 26 years old at the time of the offenses. Following
an appeal, this court affirmed Truong’s convictions but remanded to the superior court for No. 56362-2-II
resentencing. Order Granting Mot. for Recons. & Amending Unpublished Op. in Part, State v.
Truong, No. 53203-4-II, at 2 (Wash. Ct. App. June 8, 2021) (unpublished).1
At resentencing, the State and Truong agreed that his amended offender score would be a
4 with a standard range of 68 months plus 1 day to 100 months for the unlawful possession of a
controlled substance—methamphetamine with intent to deliver conviction. The unlawful
possession of a controlled substance—methamphetamine with intent to deliver conviction also
included a 36 month firearm sentencing enhancement. The State argued for a high end standard
range sentence.
Truong provided evidence of the rehabilitative efforts he had made while in prison,
including getting certified as a personal trainer and completing multiple programs such as
substance abuse prevention and anger management. Truong requested a low end standard range
sentence. Truong’s attorney communicated Truong’s request for the trial court to impose an
exceptional sentence downward:
Mr. Truong has made significant strides in his time in custody, and I think that had that information been known by the judge at the time of the initial sentencing, it would have had an impact on the sentence imposed. My client was wanting the Court to consider an exceptional sentence to the extent that it was allowable. I did some research at his request, and I’m informing the Court that that’s something that he would request. There is some case law that specifically talks about running firearm enhancements consecutive—sorry, concurrent to each other. There’s no case that really specifically states the Court has the authority to run it concurrent to the base sentence. He wanted me to make the request and I informed him that I would do so.
Verbatim Report of Proceedings (VRP) (Oct. 1, 2021) at 29. Truong also made a statement to the
court in which he explained that he had a rough childhood which included foster care and early
1 https://www.courts.wa.gov/opinions/pdf/D2%2053203-4-II%20Unpublished%20Opinion.pdf
2 No. 56362-2-II
exposure to drugs, violence, and crime. He also explained that he had made sincere efforts to
prepare for getting out of prison and becoming a productive, law-abiding citizen.
The trial court imposed a low end standard range sentence of 70 months on the unlawful
possession of a controlled substance—methamphetamine with intent to deliver conviction, along
with a 36 month firearm sentencing enhancement to run consecutive to unlawful possession of a
controlled substance—methamphetamine with intent to deliver standard range sentence. The trial
court also imposed a standard range sentence of 36 months on the first degree unlawful possession
of a firearm conviction to run concurrently with the unlawful possession of a controlled
substance—methamphetamine with intent to deliver sentence. The trial court denied Truong’s
request for an exceptional downward sentence, ruling:
I am going to respectfully deny the request for either an exceptional sentence downward or to run the firearm enhancement concurrent to the other time. I do not feel that: (1) it is appropriate given the underlying charges and scenario; and (2) that it legally is an outlet that I can—I can pursue at this point, given the circumstances in this case.
VRP (Oct. 1, 2021) at 39-40.
Truong appeals.
ANALYSIS
Truong argues that the trial court failed to meaningfully consider his request for an
exceptional sentence downward. Truong also argues that recent changes in the law have overruled
prior case law regarding imposition of firearm sentencing enhancements.
All defendants are entitled to ask sentencing courts for exceptional sentences and have the
request actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). The
trial court errs when it bases its decision on the “‘mistaken belief that it did not have the discretion
to impose a mitigated exceptional sentence for which [a defendant] may have been eligible.’” State
3 No. 56362-2-II
v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (alterations in original) (quoting In re
Pers. Restraint of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677 (2007)).
A. MEANINGFUL CONSIDERATION OF YOUTHFULNESS
Truong argues that the trial court erred by failing to meaningfully consider his request for
an exceptional sentence downward. We disagree.
Youth is a mitigating factor that can support an exceptional sentence below the standard
sentencing range. State v. O’Dell, 183 Wn.2d 680, 696, 358 P.3d 359 (2015). Psychological and
neurological studies show that there are “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 692 (footnotes omitted). Although a
defendant does not need to present expert testimony that youth diminished culpability, there must
be some evidence establishing the defendant’s youthfulness and diminished culpability. See Id. at
697-98.
Here, Truong did not reference his youthfulness or lack of maturity in his request for an
exceptional sentence. And the only possible reference to youthfulness or lack of maturity was a
single reference to Truong’s difficult childhood. Truong primarily focused on the rehabilitative
efforts made while he was in prison. There was no evidence presented at all that would establish
that, at the age of 26, Truong lacked maturity or had diminished culpability for his offense due to
youthfulness. Because Truong did not present any evidence that youthfulness diminished
culpability for his offense, the trial court did not err by failing to meaningfully consider an
exceptional sentence downward based on Truong’s youthfulness.
4 No. 56362-2-II
B. FIREARM SENTENCING ENHANCEMENT
Truong also argues that the trial court erred by determining that it could not run the firearm
sentencing enhancement concurrently with the base sentence. We disagree.
In State v.
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Filed Washington State Court of Appeals Division Two
December 20, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 56362-2-II
Respondent,
v.
JOHN PHI TRUONG, UNPUBLISHED OPINION
Appellant.
LEE, J. — John P. Truong appeals his sentence for unlawful possession of a controlled
substance—methamphetamine with intent to deliver and the firearm sentencing enhancement,
arguing that the trial court failed to meaningfully consider his youth, background, and
rehabilitation in denying his request for an exceptional sentence downward or to run the firearm
sentencing enhancement concurrently with the base sentence. Because the trial court did not abuse
its discretion, we affirm.
FACTS
In 2019, Truong was found guilty of first degree unlawful possession of a firearm and
unlawful possession of a controlled substance—methamphetamine with intent to deliver, with a
firearm sentencing enhancement. Truong was 26 years old at the time of the offenses. Following
an appeal, this court affirmed Truong’s convictions but remanded to the superior court for No. 56362-2-II
resentencing. Order Granting Mot. for Recons. & Amending Unpublished Op. in Part, State v.
Truong, No. 53203-4-II, at 2 (Wash. Ct. App. June 8, 2021) (unpublished).1
At resentencing, the State and Truong agreed that his amended offender score would be a
4 with a standard range of 68 months plus 1 day to 100 months for the unlawful possession of a
controlled substance—methamphetamine with intent to deliver conviction. The unlawful
possession of a controlled substance—methamphetamine with intent to deliver conviction also
included a 36 month firearm sentencing enhancement. The State argued for a high end standard
range sentence.
Truong provided evidence of the rehabilitative efforts he had made while in prison,
including getting certified as a personal trainer and completing multiple programs such as
substance abuse prevention and anger management. Truong requested a low end standard range
sentence. Truong’s attorney communicated Truong’s request for the trial court to impose an
exceptional sentence downward:
Mr. Truong has made significant strides in his time in custody, and I think that had that information been known by the judge at the time of the initial sentencing, it would have had an impact on the sentence imposed. My client was wanting the Court to consider an exceptional sentence to the extent that it was allowable. I did some research at his request, and I’m informing the Court that that’s something that he would request. There is some case law that specifically talks about running firearm enhancements consecutive—sorry, concurrent to each other. There’s no case that really specifically states the Court has the authority to run it concurrent to the base sentence. He wanted me to make the request and I informed him that I would do so.
Verbatim Report of Proceedings (VRP) (Oct. 1, 2021) at 29. Truong also made a statement to the
court in which he explained that he had a rough childhood which included foster care and early
1 https://www.courts.wa.gov/opinions/pdf/D2%2053203-4-II%20Unpublished%20Opinion.pdf
2 No. 56362-2-II
exposure to drugs, violence, and crime. He also explained that he had made sincere efforts to
prepare for getting out of prison and becoming a productive, law-abiding citizen.
The trial court imposed a low end standard range sentence of 70 months on the unlawful
possession of a controlled substance—methamphetamine with intent to deliver conviction, along
with a 36 month firearm sentencing enhancement to run consecutive to unlawful possession of a
controlled substance—methamphetamine with intent to deliver standard range sentence. The trial
court also imposed a standard range sentence of 36 months on the first degree unlawful possession
of a firearm conviction to run concurrently with the unlawful possession of a controlled
substance—methamphetamine with intent to deliver sentence. The trial court denied Truong’s
request for an exceptional downward sentence, ruling:
I am going to respectfully deny the request for either an exceptional sentence downward or to run the firearm enhancement concurrent to the other time. I do not feel that: (1) it is appropriate given the underlying charges and scenario; and (2) that it legally is an outlet that I can—I can pursue at this point, given the circumstances in this case.
VRP (Oct. 1, 2021) at 39-40.
Truong appeals.
ANALYSIS
Truong argues that the trial court failed to meaningfully consider his request for an
exceptional sentence downward. Truong also argues that recent changes in the law have overruled
prior case law regarding imposition of firearm sentencing enhancements.
All defendants are entitled to ask sentencing courts for exceptional sentences and have the
request actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). The
trial court errs when it bases its decision on the “‘mistaken belief that it did not have the discretion
to impose a mitigated exceptional sentence for which [a defendant] may have been eligible.’” State
3 No. 56362-2-II
v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (alterations in original) (quoting In re
Pers. Restraint of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677 (2007)).
A. MEANINGFUL CONSIDERATION OF YOUTHFULNESS
Truong argues that the trial court erred by failing to meaningfully consider his request for
an exceptional sentence downward. We disagree.
Youth is a mitigating factor that can support an exceptional sentence below the standard
sentencing range. State v. O’Dell, 183 Wn.2d 680, 696, 358 P.3d 359 (2015). Psychological and
neurological studies show that there are “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 692 (footnotes omitted). Although a
defendant does not need to present expert testimony that youth diminished culpability, there must
be some evidence establishing the defendant’s youthfulness and diminished culpability. See Id. at
697-98.
Here, Truong did not reference his youthfulness or lack of maturity in his request for an
exceptional sentence. And the only possible reference to youthfulness or lack of maturity was a
single reference to Truong’s difficult childhood. Truong primarily focused on the rehabilitative
efforts made while he was in prison. There was no evidence presented at all that would establish
that, at the age of 26, Truong lacked maturity or had diminished culpability for his offense due to
youthfulness. Because Truong did not present any evidence that youthfulness diminished
culpability for his offense, the trial court did not err by failing to meaningfully consider an
exceptional sentence downward based on Truong’s youthfulness.
4 No. 56362-2-II
B. FIREARM SENTENCING ENHANCEMENT
Truong also argues that the trial court erred by determining that it could not run the firearm
sentencing enhancement concurrently with the base sentence. We disagree.
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 enhancements are mandatory and must be imposed consecutively. Brown
establishes that the trial court did not have the authority to modify the firearm sentencing
enhancement as Truong requested.
Although recent cases such as Houston-Sconiers have overruled Brown as it relates to
juvenile defendants, Brown has not been overruled as it applies to adult offenders. State v.
Mandefero, 14 Wn. App. 2d 825, 831-32, 473 P.3d 1239 (2020); State v. Brown, 13 Wn. App. 2d
288, 291, 466 P.3d 244, review denied, 196 Wn.2d 1013 (2020). And even assuming, without
deciding, that In re Pers. Restraint of Monschke, overruled Brown as it relates to certain youthful
offenders, the sentencing discretion established in Monschke does not extend to offenders over 20
years old. See 197 Wn.2d 305, 326, 482 P.3d 276 (2021) (mandatory life without parole sentences
for aggravated first degree murder are unconstitutional when imposed on offenders 18, 19, or 20
years old without consideration of mitigating circumstances of youth); In re Pers. Restraint of
Davis, 200 Wn.2d 75, 78, 84, 514 P.3d 653 (2022) (declining to extend Monschke to a 21-year-
old offender). Because Truong was 26 years old at the time of his offenses, any sentencing
discretion to depart from Brown established by Houston-Sconiers and Monschke do not apply to
him.
Truong’s reliance on McFarland is also misplaced. Truong asserts that McFarland
implicitly overruled Brown. However, McFarland applied to multiple convictions for firearm
5 No. 56362-2-II
offenses, not firearm sentencing enhancements. 189 Wn.2d at 53-54. And the court in McFarland
explicitly distinguished between convictions for firearm offenses and firearm sentencing
enhancements. Id. at 55. McFarland did not overrule Brown as it applies to adult offenders. See
State v. Wright, 19 Wn. App. 2d 37, 52, 493 P.3d 1220 (2021) (holding the reasoning of McFarland
does not extend to firearm sentencing enhancements and Brown remains good law), review denied,
199 Wn.2d 1001 (2022).
The trial court did not have the discretion to run Truong’s firearm sentencing enhancement
concurrent with the low end sentence for the unlawful possession of a controlled substance—
methamphetamine with intent to deliver conviction. Therefore, the trial court did not err in
denying Truong’s request to run the firearm sentencing enhancement concurrent to the unlawful
possession of a controlled substance—methamphetamine with intent to deliver sentence.
We affirm.
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. P.J. We concur:
Veljacic, J.
Price. J.