FILED NOVEMBER 20, 2024 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STATE OF WASHINGTON, ) No. 39679-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KEANU ANTHONY FORD, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Keanu Ford appeals after the trial court revoked his
51-month suspended special sex offender sentencing alternative (SOSSA). Eighteen
months earlier, Keanu had pleaded guilty to one count of first degree child molestation
for an act committed when he was 14 years old. In exchange for Keanu’s plea, the State
had agreed to support a 36-month suspended SOSSA sentence. Instead of supporting the
negotiated sentence, the State misinformed the trial court that the minimum sentence it
could impose was 51 months. The trial court then imposed that sentence.
We reverse and remand for the trial court to permit Keanu either to withdraw his
guilty plea or seek specific performance.
FACTS
When Keanu Ford was 14 years old, he groped his 8-year-old sister’s vagina while
the two played a game on Keanu’s bed. Keanu’s sister reported the abuse to the
children’s grandparents, and Keanu eventually confessed. No. 39679-7-III State v. Ford
Six years later, Keanu’s sister reported this and other instances of abuse by Keanu.
By then, Keanu was 20 years old. He confessed to wrongdoing and expressed remorse.
The State charged Keanu with two counts of child molestation in the first degree.
Plea agreement and sentencing
In exchange for pleading guilty to one count of child molestation in the first
degree, Keanu agreed to a 36-month SSOSA. Before sentencing, the Department of
Corrections (DOC) conducted a presentence investigation that endorsed Keanu’s SSOSA,
and concluded that Keanu “has taken responsibility for his actions, seems to be
remorseful, [and] has shown empathy for his victim sister.” Clerk’s Papers (CP) at 37.
During his interview with DOC, Mr. Ford disclosed that, as a youth, he had:
• spent time in foster care;
• suffered physical abuse from his grandfather;
• struggled to be honest with others;
• incurred multiple in-school suspensions;
• been terminated from a job for absenteeism;
• attempted suicide; and
• failed to earn his high school diploma.
See CP at 31-34.
2 No. 39679-7-III State v. Ford
At sentencing, the State—notwithstanding its agreement with Keanu—told the
trial court that the minimum sentence it could impose was 51 months.1 The court agreed
with the State, and Keanu’s defense counsel did not dispute this conclusion. Because
Keanu had not agreed to plead guilty in exchange for this lengthier sentence, the court,
before imposing the sentence, gave Keanu the opportunity to withdraw his plea.
Keanu—who was in custody at the time and who would be released after sentencing—
chose to proceed.
Before imposing its sentence, the trial court drew attention to a portion of Keanu’s
presentence report where Keanu admitted he had known, when he groped his sister, that it
was wrong. The court told Keanu that the charged offense was “very serious,” and that
even at age 14, he would have “had ten years of knowing the difference between right
and wrong.” Suppl. Rep. of Proc. (Suppl. RP) at 17-18. The court characterized this
portion of Keanu’s presentence interview as “the only thing that . . . [it would] mention,
out of this whole thing.” Suppl. RP at 17. The court then imposed a 51-month
suspended SOSSA sentence.
1 Child molestation in the first degree has a seriousness level of X. RCW 9.94A.515. The standard range sentence for this seriousness level and an offender score of 0 is 51-68 months. RCW 9.94A.510.
3 No. 39679-7-III State v. Ford
Revocation and appeal
Under the terms of his SSOSA sentence, Keanu agreed—among other
conditions—to obtain employment, avoid areas where children congregated (including
parks), refrain from possessing pornographic materials, and reside at a DOC-approved
address. Eighteen months into Keanu’s supervision, DOC filed three notices alleging
violation of all four of these conditions. As a result, the trial court revoked Keanu’s
SSOSA sentence and imposed the suspended 51-month term.
Keanu does not appeal the revocation of his suspended sentence, but rather
appeals the 51-month term.
ANALYSIS
Keanu argues the trial court, at his original sentencing, failed to meaningfully
consider mitigating qualities of youth, and failed to recognize its discretion to impose an
exceptional downward sentence. We agree.
Standard of review
Where there is a challenge to a standard range sentence, we will review that
challenge only to determine whether the trial court, in imposing the sentence, complied
with statutory and constitutional requirements. State v. Osman, 157 Wn.2d 474, 481-82,
139 P.3d 334 (2006). If constitutional error occurred, we presume the error prejudicial,
4 No. 39679-7-III State v. Ford
and will vacate the sentence unless the State proves beyond a reasonable doubt that the
error was harmless. State v. Delbosque, 195 Wn.2d 106, 129, 456 P.3d 806 (2020).
Reviewability
A suspended sentence does not prejudice a defendant and thus is not ripe for
review. State v. Langland, 42 Wn. App. 287, 292, 711 P.2d 1039 (1985). After the trial
court revokes a sentencing alternative and imposes a suspended sentence, however, both
the revocation order and the imposed sentence draw scrutiny on appeal. State v. Zwede,
21 Wn. App. 2d 843, 858, 508 P.3d 1042, review denied, 200 Wn.2d 1006, 516 P.3d 380
(2022). The State, correctly, does not contest our authority to review the term of Keanu’s
51-month sentence.
Failure to consider mitigating qualities of youth
In matters of criminal sentencing, it is axiomatic that “children are different.”
Miller v. Alabama, 567 U.S. 460, 481, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
Accordingly, a trial court sentencing a defendant for a crime committed as a juvenile
must, under both our federal and state constitutions, “consider mitigating qualities of
youth . . . and must have discretion to impose any sentence below the otherwise
applicable [standard] range.” State v. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409
(2017); see In re Pers. Restraint of Monschke, 197 Wn.2d 305, 311, 482 P.3d 276 (2021)
5 No. 39679-7-III State v. Ford
(rule derives both from the Eighth Amendment to the United States Constitution and
from article I, section 14 of the Washington Constitution).
When discharging this duty, trial courts “must do far more than simply recite the
differences between juveniles and adults.” State v. Ramos, 187 Wn.2d 420, 443, 387
P.3d 650 (2017).
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FILED NOVEMBER 20, 2024 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. 39679-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) KEANU ANTHONY FORD, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Keanu Ford appeals after the trial court revoked his
51-month suspended special sex offender sentencing alternative (SOSSA). Eighteen
months earlier, Keanu had pleaded guilty to one count of first degree child molestation
for an act committed when he was 14 years old. In exchange for Keanu’s plea, the State
had agreed to support a 36-month suspended SOSSA sentence. Instead of supporting the
negotiated sentence, the State misinformed the trial court that the minimum sentence it
could impose was 51 months. The trial court then imposed that sentence.
We reverse and remand for the trial court to permit Keanu either to withdraw his
guilty plea or seek specific performance.
FACTS
When Keanu Ford was 14 years old, he groped his 8-year-old sister’s vagina while
the two played a game on Keanu’s bed. Keanu’s sister reported the abuse to the
children’s grandparents, and Keanu eventually confessed. No. 39679-7-III State v. Ford
Six years later, Keanu’s sister reported this and other instances of abuse by Keanu.
By then, Keanu was 20 years old. He confessed to wrongdoing and expressed remorse.
The State charged Keanu with two counts of child molestation in the first degree.
Plea agreement and sentencing
In exchange for pleading guilty to one count of child molestation in the first
degree, Keanu agreed to a 36-month SSOSA. Before sentencing, the Department of
Corrections (DOC) conducted a presentence investigation that endorsed Keanu’s SSOSA,
and concluded that Keanu “has taken responsibility for his actions, seems to be
remorseful, [and] has shown empathy for his victim sister.” Clerk’s Papers (CP) at 37.
During his interview with DOC, Mr. Ford disclosed that, as a youth, he had:
• spent time in foster care;
• suffered physical abuse from his grandfather;
• struggled to be honest with others;
• incurred multiple in-school suspensions;
• been terminated from a job for absenteeism;
• attempted suicide; and
• failed to earn his high school diploma.
See CP at 31-34.
2 No. 39679-7-III State v. Ford
At sentencing, the State—notwithstanding its agreement with Keanu—told the
trial court that the minimum sentence it could impose was 51 months.1 The court agreed
with the State, and Keanu’s defense counsel did not dispute this conclusion. Because
Keanu had not agreed to plead guilty in exchange for this lengthier sentence, the court,
before imposing the sentence, gave Keanu the opportunity to withdraw his plea.
Keanu—who was in custody at the time and who would be released after sentencing—
chose to proceed.
Before imposing its sentence, the trial court drew attention to a portion of Keanu’s
presentence report where Keanu admitted he had known, when he groped his sister, that it
was wrong. The court told Keanu that the charged offense was “very serious,” and that
even at age 14, he would have “had ten years of knowing the difference between right
and wrong.” Suppl. Rep. of Proc. (Suppl. RP) at 17-18. The court characterized this
portion of Keanu’s presentence interview as “the only thing that . . . [it would] mention,
out of this whole thing.” Suppl. RP at 17. The court then imposed a 51-month
suspended SOSSA sentence.
1 Child molestation in the first degree has a seriousness level of X. RCW 9.94A.515. The standard range sentence for this seriousness level and an offender score of 0 is 51-68 months. RCW 9.94A.510.
3 No. 39679-7-III State v. Ford
Revocation and appeal
Under the terms of his SSOSA sentence, Keanu agreed—among other
conditions—to obtain employment, avoid areas where children congregated (including
parks), refrain from possessing pornographic materials, and reside at a DOC-approved
address. Eighteen months into Keanu’s supervision, DOC filed three notices alleging
violation of all four of these conditions. As a result, the trial court revoked Keanu’s
SSOSA sentence and imposed the suspended 51-month term.
Keanu does not appeal the revocation of his suspended sentence, but rather
appeals the 51-month term.
ANALYSIS
Keanu argues the trial court, at his original sentencing, failed to meaningfully
consider mitigating qualities of youth, and failed to recognize its discretion to impose an
exceptional downward sentence. We agree.
Standard of review
Where there is a challenge to a standard range sentence, we will review that
challenge only to determine whether the trial court, in imposing the sentence, complied
with statutory and constitutional requirements. State v. Osman, 157 Wn.2d 474, 481-82,
139 P.3d 334 (2006). If constitutional error occurred, we presume the error prejudicial,
4 No. 39679-7-III State v. Ford
and will vacate the sentence unless the State proves beyond a reasonable doubt that the
error was harmless. State v. Delbosque, 195 Wn.2d 106, 129, 456 P.3d 806 (2020).
Reviewability
A suspended sentence does not prejudice a defendant and thus is not ripe for
review. State v. Langland, 42 Wn. App. 287, 292, 711 P.2d 1039 (1985). After the trial
court revokes a sentencing alternative and imposes a suspended sentence, however, both
the revocation order and the imposed sentence draw scrutiny on appeal. State v. Zwede,
21 Wn. App. 2d 843, 858, 508 P.3d 1042, review denied, 200 Wn.2d 1006, 516 P.3d 380
(2022). The State, correctly, does not contest our authority to review the term of Keanu’s
51-month sentence.
Failure to consider mitigating qualities of youth
In matters of criminal sentencing, it is axiomatic that “children are different.”
Miller v. Alabama, 567 U.S. 460, 481, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
Accordingly, a trial court sentencing a defendant for a crime committed as a juvenile
must, under both our federal and state constitutions, “consider mitigating qualities of
youth . . . and must have discretion to impose any sentence below the otherwise
applicable [standard] range.” State v. Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409
(2017); see In re Pers. Restraint of Monschke, 197 Wn.2d 305, 311, 482 P.3d 276 (2021)
5 No. 39679-7-III State v. Ford
(rule derives both from the Eighth Amendment to the United States Constitution and
from article I, section 14 of the Washington Constitution).
When discharging this duty, trial courts “must do far more than simply recite the
differences between juveniles and adults.” State v. Ramos, 187 Wn.2d 420, 443, 387
P.3d 650 (2017). Instead, courts must meaningfully consider those qualities of youth that
bear on the appropriateness of a sentence, including, specifically, the propensity of youth
toward “‘immaturity [and] impetuosity,’” and the failure of youth “‘to appreciate risks
and consequences.’” Houston-Sconiers, 188 Wn.2d at 23 (quoting Miller, 567 U.S. at
477). Courts must also consider a youthful defendant’s living environment and familial
history, as well as “any factors suggesting that the child might be successfully
rehabilitated.” Id.
Here, the trial court did not meaningfully consider Keanu’s youthfulness at the
time he committed the crime. While the court did acknowledge Keanu’s youthfulness, it
did so only by commenting that at age 14, he would have “had ten years of knowing the
difference between right and wrong.” Suppl. RP at 17. In other words, the court implied
that Keanu, by age four, would have had the moral discernment necessary not to grope
his younger sister. Moreover, the court stated that Keanu’s knowledge of right and
wrong at 14 was “the only thing” it wished to mention from Keanu’s presentence
evaluation. Suppl. RP at 17.
6 No. 39679-7-III State v. Ford
Such consideration does not pass constitutional muster. Rather than emphasizing
one supposedly aggravating detail from Keanu’s presentence evaluation (his moral acuity
at age 14), the trial court should have considered the breadth of Keanu’s evaluation,
which furnished evidence of several of the mitigating factors articulated in Houston-
Sconiers. 188 Wn.2d at 23.
Unrecognized authority to impose exceptional downward sentence
Even had the trial court properly considered the Houston-Sconiers factors,
Keanu’s 51-month suspended sentence would be error because the court believed it
lacked discretion to impose an exceptional downward sentence.
As already noted, a trial court sentencing a youth “must have discretion to impose
any sentence below the otherwise applicable [Sentencing Reform Act, chapter 9.94A
RCW] range.” Id. at 21. Where a trial court considers a defendant’s youthfulness but
fails to appreciate its own discretion to impose a downward sentence, that court has
misapplied the law and thus has abused its discretion. In re Pers. Restraint of Ali, 196
Wn.2d 220, 243-45, 474 P.3d 507 (2020).
Here, the trial court believed it could not impose the negotiated 36-month
suspended sentence. After the State informed the court that the minimum sentence it
could impose was 51 months, the court agreed. As further evidence the trial court
believed it lacked discretion to impose an exceptional downward sentence, it gave Keanu
7 No. 39679-7-111 State v. Ford
the option of withdrawing his guilty plea or of proceeding forward. We conclude that the
trial court abused its discretion by failing to recognize its constitutional authority to
impose an exceptional downward sentence.
Remedy
Plea agreements are contracts. State v. Sledge, 133 Wn.2d 828, 838, 947 P.2d
1199 (1997). Accordingly, whether a breach occurs depends upon a party's actions, not
the intent behind its actions. Id. at 843 n. 7. Here, the State breached the plea agreement
when it told the trial court it lacked authority to impose the 36-month negotiated term.
The proper remedy for such a breach is to permit the defendant either to withdraw
the guilty plea or to seek specific performance. State v. MacDonald, 183 Wn.2d 1, 21,
346 P.3d 748 (2015). We direct the trial court to grant Keanu this election.
Reversed and remanded.
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.
l.,_,.,n .......Q,-........,., 1 Lawrence-Berrey, C.J. ~ ' C.. ~ WE CONCUR:
Fearing, J. Cooney, J.