FILED JULY 27, 2023 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STATE OF WASHINGTON, ) ) No. 38841-7-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOSEPH A. RICHMOND, ) ) Appellant. )
SIDDOWAY, J. — Having been granted a third resentencing for a 2016 conviction
of felony murder after State v. Blake,1 Joseph Richmond requested an exceptional
mitigated sentence, relying on his failed trial defense of self-defense. The resentencing
court entertained the request and reduced Mr. Richmond’s sentence more than another
court might have based on the reduced offender score, but it rejected his request for a
sentence below the standard range.
Mr. Richmond appeals, asking us to hold that sentencing courts must not only
entertain a request for a below-standard range sentence but also—if they deny the
request—must explain the weight given to the alleged mitigating factor and enter findings
that can be tested for completeness and evidentiary support on appeal.
1 197 Wn.2d 170, 481 P.3d 521 (2021). No. 38841-7-III State v. Richmond
The authority on which Mr. Richmond relies is decisions involving death penalty
sentencing and sentencing of juveniles, where the federal and state constitutions require a
demonstration of close consideration of case-specific mitigating circumstances. When
sentencing an adult like Mr. Richmond,2 in a noncapital case, there is no constitutional or
statutory requirement that a court that denies a below-standard range sentence explain the
weight given to an alleged mitigating factor or enter findings. We affirm.
FACTS AND PROCEDURAL BACKGROUND
In September 2014, Mr. Richmond caused the death of Dennis Higginbotham by
swinging a two-by-four piece of lumber like a baseball bat, striking Mr. Higginbotham’s
head and causing severe head trauma. State v. Richmond, 3 Wn. App. 2d 423, 427-28,
415 P.3d 1208 (2018). Mr. Higginbotham died at Harborview Medical Center. The
violence occurred after Mr. Richmond’s estranged girlfriend arrived at his home to
collect belongings, accompanied by Mr. Higginbotham and a female friend. Id. at 426.
When Mr. Richmond did not provide the cooperation his ex-girlfriend was requesting,
she threatened to break into a shed. At that point, Mr. Richmond called police, an officer
arrived and mediated an apparent solution, and the officer left. Id. at 426-27. Mr.
Richmond and Mr. Higginbotham resumed arguing, however, and Mr. Richmond entered
his house, emerged with the two-by-four, and continued arguing with Mr. Higginbotham.
2 Mr. Richmond was 29 years old at the time he committed the second degree murder.
2 No. 38841-7-III State v. Richmond
Id. at 427-28. As they argued, Mr. Richmond warned Mr. Higginbotham not to come any
closer to him. When Mr. Higginbotham nonetheless took a step in Mr. Richmond’s
direction, Mr. Richmond swung the fatal blow. Id. at 427-28. With Mr. Higginbotham’s
death, Mr. Richmond was charged with felony murder.
At trial, Mr. Richmond relied on a theory of self-defense. The trial court gave the
jury full self-defense instructions as well as an initial aggressor instruction. Id. at 429.
The jury found Mr. Richmond guilty. Id. at 430. He received a standard range sentence
of 240 months of confinement.
Mr. Richmond appealed, making several assignments of error. A majority of this
court affirmed the conviction over a dissent that agreed with Mr. Richmond’s challenge
to the giving of a first aggressor instruction. Id. at 423. The case was remanded to the
trial court for a comparability analysis of a crime committed in Idaho that had been
included in Mr. Richmond’s offender score. Id. at 437. Mr. Richmond petitioned the
Washington Supreme Court for review, which was denied. State v. Richmond, 191
Wn.2d 1009, 424 P.3d 1223 (2018).
The first resentencing resulted in a reduced offender score and a reduction in the
period of confinement to 231 months. The court also provided Mr. Richmond with
partial relief from his legal financial obligations (LFOs) in light of the Washington
Supreme Court’s then-recent decision in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714
(2018). Mr. Richmond again appealed. This court rejected Mr. Richmond’s new
3 No. 38841-7-III State v. Richmond
challenges to terms of his community custody but remanded for a second resentencing
because he had not received the full relief from his LFOs required by Ramirez.
Mr. Richmond thereafter filed a personal restraint petition that raised issues of
prosecutorial misconduct and ineffective assistance of counsel. This court rejected both
claims.
In the meantime, our Supreme Court decided Blake, which declared Washington’s
strict liability drug possession statute unconstitutional. Since simple possession
convictions had been included in his offender score, Mr. Richmond sought and was
determined to be entitled to another resentencing.
At the outset of this third resentencing hearing, Mr. Richmond’s lawyer told the
court that he intended to request consideration of a mitigating factor and asked if the
State disputed that a Blake resentencing was a full resentencing. The prosecutor agreed it
was a full resentencing. The court commented:
It wouldn’t be much of a resentencing if we were just going to take the old sentence and knock it down a chunk. It wouldn’t be a real hearing in my book. So I think that Mr. Richmond’s entitled to make whatever argument he wants to. . . . So go right ahead, sir.
2 Rep. of Proc. (RP) at 8.3
3 Mr. Richmond’s motion to transfer the verbatim report of proceedings of his trial and original sentencing for inclusion in the record for this appeal was granted, and we refer to it as “1 RP.” We refer to the separate verbatim report of proceedings of his third resentencing as “2 RP.”
4 No. 38841-7-III State v. Richmond
Mr. Richmond’s lawyer proceeded to make a well-organized presentation that did
not challenge the jury’s verdict but argued that even where a defense fails, there can be
gradations to blameworthiness. He pointed to six circumstances that he argued
distinguished the killing of Mr. Higginbotham from many other homicides charged as
second degree murder. His presentation prompted no disagreement or skepticism from
the judge, who thanked him for the argument, adding, “Well done.” 2 RP at 14.
In the prosecutor’s response, she pointed out that the resentencing judge had been
the trial judge and recounted evidence from the trial that she argued belied a
characterization of Mr. Richmond as less blameworthy than others convicted of felony
murder.4 She pointed out that vacating Mr. Richmond’s prior simple possession
conviction reduced his standard range by nine months and asked the court to limit the
reduction of Mr. Richmond’s term of confinement to the same nine months. A nine
month reduction would have resulted in a 222 month term of confinement.
Given a chance to speak, Mr. Richmond spoke at some length, without
interruption.
4 At Mr. Richmond’s original sentencing, defense counsel had not asked for an exceptional sentence, but had asked for a low-end sentence in light of the facts that Mr. Richmond had been at his home and “really felt threatened.” 1 RP at 1200. In announcing a sentence above the mid-point at that time, the court said: And Mr. Richmond, I heard your testimony. And even under your version, I didn’t think that your use of the force that was used would have been reasonable under the circumstances.
1 RP at 1207.
5 No. 38841-7-III State v. Richmond
When Mr. Richmond was done, the court commented that its position following
Blake was that it “would give an entirely new sentencing hearing, [if] people wanted one,
and that’s what we’ve been doing [here].” 2 RP at 24. After thanking Mr. Richmond and
his lawyer for their presentations and making a few comments about the importance of
listening to everyone and the regrettably tragic outcome of Mr. Richmond’s and Mr.
Higginbotham’s encounter, the court said, addressing Mr. Richmond:
And you’re not wrong in everything you said about the facts in this case. You’re not right in my view, but you’re not wrong. Right? I mean, you got a lot of it right, but you’re seeing it through your perspective, which I don’t know what other perspective you could look at it from really. You’re the only person that was in your shoes at that moment, and so it does make sense that you would give us that viewpoint. But I do not find that the evidence supports a mitigating sentence. I think a standard range sentence is still appropriate. And it was a standard range of 165 to 265, a 430 [sic] was the mid point before. I went a little above that last time. This time I’ll go mid point of 204. So that will be the sentence that the Court imposes today, 204 months.
2 RP at 25 (alteration in original). Mr. Richmond appeals.
ANALYSIS
Mr. Richmond assigns error to the rejection of his request for an exceptional
sentence. Before we turn to his two challenges to the court’s decision-making, we review
the structuring of a sentencing court’s discretion by the legislature.
6 No. 38841-7-III State v. Richmond
I. A SENTENCING COURT’S DISCRETION IN SENTENCING IS THAT WHICH HAS BEEN GIVEN AND STRUCTURED BY THE LEGISLATURE
The fixing of legal punishments for criminal offenses is a legislative function and
includes the power of the legislature to provide a minimum and maximum term within
which a trial court can exercise discretion. State v. Ammons, 105 Wn.2d 175, 180, 713
P.2d 719, 718 P.2d 796 (1986) (quoting State v. Le Pitre, 54 Wash. 166, 169, 103 P. 27
(1909)). The power of the legislature in this respect “‘is plenary and subject only to
constitutional provisions against excessive fines and cruel and inhuman punishment.’”
Id. (quoting State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937)).
In the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, the legislature
has provided that “[t]he court may impose a sentence outside the standard sentence range
for an offense if it finds, considering the purpose of this chapter, that there are substantial
and compelling reasons justifying an exceptional sentence.” RCW 9.94A.535 (emphasis
added). It has provided that “[t]he court may impose an exceptional sentence below the
standard range if it finds that mitigating circumstances are established by a
preponderance of the evidence.” RCW 9.94A.535(1) (emphasis added). The SRA
provides a nonexclusive list of mitigation circumstances, one being that “[t]o a significant
degree, the victim was an initiator, willing participant, aggressor, or provoker of the
incident.” RCW 9.94A.535(1)(a). This, and several other mitigating factors, are
recognized as supporting mitigation for a “failed defense.” State v. Jeannotte, 133 Wn.2d
7 No. 38841-7-III State v. Richmond
847, 851, 947 P.2d 1192 (1997) (citing State v. Hutsell, 120 Wn.2d 913, 921, 845 P.2d
1325 (1993)). The provisions do not infringe on a judicial power because a trial court’s
discretion in sentencing “is that which is given by the Legislature.” Ammons, 105 Wn.2d
at 181. “The Legislature’s structuring of the trial court’s discretion does not infringe
upon a judicial power.” Id.
RCW 9.94A.585(1) provides that “[a] sentence within the standard sentence
range . . . for an offense shall not be appealed.” This does not offend the Washington
State Constitution’s guarantee in article I, section 22 of a right to appeal in criminal
cases,5 because our Supreme Court has given the statute a limiting construction. In
Ammons, the court held that the statutory provision, then codified as RCW 9.94A.210(1)
(1984), “only preclud[es] appellate review of challenges to the amount of time imposed
when the time is within the standard range,” and “[w]hen the sentence given is within
[that] range then as a matter of law there can be no abuse of discretion.” 105 Wn.2d at
182-83 (emphasis added); accord State v. Delbosque, 195 Wn.2d 106, 126, 456 P.3d 806
(2020). An appellant is not precluded from challenging on appeal the procedure by
which the sentence within the standard range was imposed. Ammons, 105 Wn.2d at 183.
Mr. Richmond’s appeal does not challenge the 204-month confinement imposed
by the resentencing court; it challenges one substantive and one procedural aspect of the
5 Article I, section 22 provides in relevant part, “In criminal prosecutions the accused shall have . . . the right to appeal in all cases.”
8 No. 38841-7-III State v. Richmond
court’s decision denying his request for an exceptional sentence. We therefore need not
review his third assignment of error, which applied only if we deemed his appeal
foreclosed by RCW 9.94A.585(1).
II. MR. RICHMOND FAILS TO DEMONSTRATE THAT THE RESENTENCING COURT RELIED ON AN IMPERMISSIBLE REASON OR FOLLOWED AN IMPERMISSIBLE PROCEDURE
Mr. Richmond’s first and second assignments of error are related. He complains
that the resentencing court abused its discretion by (1) “declining to apply the first-step
subjective test and consequently failing to give mitigating effect to Mr. Richmond’s
claim of failed self-defense” and (2) “fail[ing] to make adequate oral and/or written
findings explaining its decision not to accord mitigating effect of Mr. Richmond’s
defensive actions.” Br. of Appellant at 1.
One aspect of Mr. Richmond’s argument on this score is his contention that if a
sentencing court denies a request for an exceptional mitigated sentence, it “abuses its
discretion when it fails to give mitigating effect to mitigating evidence” or fails to
“acknowledge[e] the mitigating quality of [a mitigating] fact and then explain how the
court weighed [it and] other facts.” Br. of Appellant at 4, 12. The only authority he cites
for the proposition that a sentencing court must acknowledge mitigating evidence, weigh
it, explain how it weighed it, and then give it mitigating effect, are decisions dealing with
the death penalty or with juveniles.
9 No. 38841-7-III State v. Richmond
He cites Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1
(1982), in which the United States Supreme Court reviewed the death penalty imposed on
Eddings. At age 16, Eddings used his father’s shotgun to shoot and kill an Oklahoma
highway patrol officer who pulled over a car that Eddings and several younger
companions were using to run away from their homes. By the time of Eddings’s
sentencing, the plurality opinion in Lockett v. Ohio had held that the Eighth and
Fourteenth Amendments to the United States Constitution required that the sentencer in a
death penalty case must “‘not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death.’” Eddings, 455 U.S.
at 110 (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978) (plurality opinion)). The sentencing judge and appellate court in Eddings’s case
considered his youth as a mitigating factor but refused to consider, as mitigating,
evidence of Eddings’s difficult, troubled family history and emotional disturbance. Id. at
115.
In holding that the Oklahoma court was constitutionally required to consider the
evidence as a mitigating factor, the Eddings court quoted Lockett’s recognition that the
imposition of death by public authority is profoundly different from all other penalties.
Id. at 110. In addition to holding that the death penalty “is so profoundly different from
all other penalties,” the plurality opinion in Lockett had stated “[t]he need for treating
10 No. 38841-7-III State v. Richmond
each defendant in a capital case with that degree of respect due the uniqueness of the
individual is far more important than in noncapital cases.” 438 U.S. at 605. The case
was remanded for consideration of the evidence by the Oklahoma court. The decision is
unhelpful to Mr. Richmond, because Mr. Richmond’s case is not a capital case.
The other case on which Mr. Richmond relies is State v. Bassett, 192 Wn.2d 67,
73, 428 P.3d 343 (2018), which held that sentencing juvenile offenders to life in prison
without the possibility of parole or early release constitutes cruel punishment and is
unconstitutional under article I, section 14 of the Washington Constitution. That holding
was limited to juvenile offenders, based on the increasing scientific recognition and
national consensus that children are less criminally culpable than adults. Mr. Richmond
was nowhere near being a juvenile when he committed his crime.
Eddings and Bassett fall within the limited “cruel” or “cruel and unusual”
punishment area in which Ammons observed that the legislature’s power to structure
judicial sentencing discretion yields to the courts’ obligation to apply the federal and state
constitutions. Unlike in Eddings and Bassett, in Mr. Richmond’s case, there is no
constitutional command that required the resentencing court to justify its weighing and
application of mitigating facts identified by the defendant. Outside the limited context of
constitutionally-commanded consideration of mitigation, Washington decisions have
repeatedly held, “[N]o defendant is entitled to an exceptional sentence below the standard
range.” State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005); accord State v.
11 No. 38841-7-III State v. Richmond
Bunker, 144 Wn. App. 407, 421, 183 P.3d 1086 (2008), aff’d, 169 Wn.2d 571, 238 P.3d
487 (2010); State v. Lemke, 7 Wn. App. 2d 23, 27, 434 P.3d 551 (2018).
A corollary, of course, is that “every defendant is entitled to ask the trial court to
consider such a sentence and to have the alternative actually considered.” Grayson, 154
Wn.2d at 342 (citing State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104
(1997)). A trial court abuses its discretion when it refuses categorically to impose an
exceptional sentence below the standard range under any circumstances or consider it for
a class of offenders—both are, effectively a failure to exercise discretion. Id. Another
example of an impermissible basis for denying such a sentence occurs where the court
operates under the mistaken belief that it lacks discretion. State v. McFarland, 189
Wn.2d 47, 56, 399 P.3d 1106 (2017). In cases in which an impermissible basis for
refusing to impose such a sentence is found, it is because the appellant is able to point to
evidence in the record that there was or could have been a categorical refusal or a
misapprehension by the court of its discretion.
No categorical refusal or misapprehension of the court’s discretion is
demonstrated here. At most, Mr. Richmond seizes on the resentencing court’s comments
to him about looking at things “through your perspective,” and characterizes that as
revealing an “unwillingness to employ the subjective standard component of self-
defense.” Br. of Appellant at 8.
12 No. 38841-7-III State v. Richmond
We construe the court’s comments very differently. Mr. Richmond said almost
nothing about self-defense, per se, during his allocution. He started off by disputing that
he could fairly have been characterized as a first aggressor. He disputed the prosecutor’s
argument that the evidence most strongly suggested that he was the aggressor. He
reminded the court that he called for police help. He reminded the court that it had
excluded toxicology evidence of Mr. Higginbotham’s blood alcohol level and
methamphetamine use that Mr. Richmond believed proved Mr. Higginbotham was the
aggressor. He talked about his original sentence being excessive. He talked about his
family missing him. He expressed regret.
The resentencing court had instructed the jury correctly on the subjective aspect of
self-defense.6 There is no reason to believe that when the court said to Mr. Richmond at
the third resentencing, “[Y]ou got a lot of it right, but you’re seeing it through your
perspective,” 2 RP at 25, the statement revealed the court’s confusion about substantive
6 The court’s instruction 17 told jurors that homicide is justifiable when, among other factors, “the slayer employed such force and means [as] a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer taking into consideration all the facts and circumstances as they appeared to him at the time of and prior to the incident.” 1 RP at 1114. Its instruction 18 told jurors, “A person is entitled to act on appearances in defending himself if that person believes in good faith and on reasonable grounds that he is in actual danger or great personal injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for a homicide to be justifiable.” Id.
13 No. 38841-7-111 State v. Richmond
law. In context, the resentencing court was talking about Mr. Richmond's inability to
view objectively what the State had proved at trial.
Finally, Mr. Richmond contends that written findings and conclusions of law were
required. He cites no supporting authority. RCW 9.94A.535 provides that "[w]henever a
sentence outside the standard range is imposed, the court shall set forth the reasons for its
decision in written findings of fact and conclusions of law." (Emphasis added.) There is
no statutory requirement that a court provide reasons for refusing to impose an
exceptional sentence. By negative implication, written findings are not required in that
event.
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.
Siddoway, J.
WE CONCUR:
Lawrence-Berrey~- C .J. 2--R-,Q-- Pennell, J.