State Of Washington, V. Lavell Demeatreous Lewis

• Court: Court of Appeals of Washington
• Decided: March 11, 2024
• Docket: 85201-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 85201-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION LAVELL DEMEATREOUS LEWIS,

Appellant.

CHUNG, J. — For the first time on appeal, Lavell Lewis argues that his

virtual appearance at his resentencing from a different location than his attorney

violated his constitutional right to privately confer with counsel. We decline to

consider the claim as Lewis does not establish manifest constitutional error under

RAP 2.5(a)(3). We therefore affirm the judgment and sentence. However, we

remand to the sentencing court to strike the victim penalty assessment and the

imposed term of community custody on the count of rape of a child in the third

degree, because with it, the sentence exceeds the statutory maximum.

FACTS

In 2016, Lavell Lewis was found guilty by a jury of promoting commercial

sexual abuse of a minor (count I), rape of a child in the third degree (count 2),

and tampering with a witness (count 3). Promoting commercial sexual abuse of a

minor is a “most serious offense” or “strike” offense. RCW 9.94A.030(32), (37);

RCW 9.68A.101(2). At the time of sentencing for the 2016 convictions, Lewis

already had prior convictions for two most serious offenses—a 2002 conviction No. 85201-9-I/2

for robbery in the first degree and a 2011 conviction for robbery in the second

degree. Pursuant to the Persistent Offender Accountability Act (POAA), Lewis’s

conviction for commercial sexual abuse of a minor was a third strike and

mandated a sentence of life in prison. RCW 9.94A.570.

In 2019, the state legislature removed robbery in the second degree from

the POAA’s list of strike offenses. ENGROSSED SUBSTITUTE S.B. 5288, 66th Leg.,

Reg. Sess. (Wash. 2019). Thus, all persistent offenders whose current or past

convictions for that crime “was used as a basis for the finding that the offender

was a persistent offender” became entitled to resentencing, RCW 9.94A.647(1),

including Lewis.

Lewis’s resentencing hearing took place on March 10, 2023. The judge,

prosecutor, and Lewis’s defense counsel appeared in open court. Lewis, who

was in the custody of the Department of Corrections, appeared via the Zoom

videoconferencing platform. A mitigation specialist who prepared a report on

behalf of Lewis also appeared virtually.

The parties agreed that the standard sentencing range for promoting

commercial sexual abuse of a minor based on Lewis’s offender score was 240 to

318 months. 1 The State sought a sentence within the standard range. Lewis

argued that his circumstances warranted an exceptional sentence downward

because of violence and trauma Lewis experienced in his youth, mental health

1 The parties also agreed that Lewis’s offender score resulted in a maximum sentence of 60

months for rape of a child in the third degree and a range of 33 to 43 months for tampering with a witness.

2 No. 85201-9-I/3

challenges, and “unusually long pretrial lockdown incarceration ‘in the hole’ prior

to trial when the defendant proceeded pro se.”

The court considered the mitigation information provided by the defense

and ultimately declined to impose an exceptional sentence. The trial judge

acknowledged Lewis most likely suffers from mental disorders and impacts of

traumatic experiences, but that she was unable to find the requisite nexus

between the mental health condition and the conduct of the defendant sufficient

to support an exceptional downward deviation. Lewis was resentenced to 300

months in prison for promoting commercial sexual abuse of a child, and 60

months’ and 43 months’ incarceration for rape of a child in the third degree and

tampering with a witness, respectively. The sentences were ordered to run

concurrently. Lewis timely filed this appeal.

DISCUSSION

I. Right to Counsel

Lewis appeals his new sentence, arguing for the first time on appeal that

his virtual appearance from a different location than his attorney violated his

constitutional right to privately confer with counsel.

RAP 2.5(a) generally precludes review of claims of errors that the

appellant did not raise at the trial level. Errors of manifest constitutional

dimension may be considered for the first time on review, but the appellant has

the burden of “identify[ing] a constitutional error and show[ing] how the alleged

error actually affected the [appellant]’s rights at trial.” State v. Kirkman, 159

Wn.2d 918, 926-27, 155 P.3d 125 (2007).

3 No. 85201-9-I/4

Lewis concedes he did not object below to appearing remotely at

resentencing. Reply Br. of Appellant at 4. The only reference in his opening brief

to RAP 2.5(a)(3) is in a description of State v. Anderson, 19 Wn. App. 2d 556,

497 P.3d 880 (2021). Br. of Appellant at 10 (“Division Three recently held that

denial of the right to confer is manifest constitutional error, reviewable for the first

time on appeal under RAP 2.5(a)(3).”). But he does not provide argument as to

why the alleged error is manifest in this case under the controlling legal

framework until his reply brief. We decline to consider the merits of an argument

raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley,

118 Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Orozco, 144 Wn. App. 17,

21-22, 186 P.3d 1078 (2008).

Because Lewis did not object in the trial court to appearing remotely for

his resentencing hearing and fails to provide the necessary argument in his

opening brief to demonstrate that the alleged error is of a constitutional

magnitude and manifest, we do not consider this challenge. See State v.

Holzknecht, 157 Wn. App. 754, 759-60, 238 P.3d 1233 (2010); see also RAP

2.5(a)(3).

II. Community Custody and Sentence Exceeding Maximum Term

The trial court imposed 36 months of community custody for both the

convictions for promoting commercial sexual abuse of a minor (count 1) and rape

of a child in the third degree (count 2). The statutory maximum sentence on the

charge of rape of a child in the third degree is 60 months. RCW 9A.44.079(2).

Both incarceration and community custody count toward the statutory minimum

4 No. 85201-9-I/5

sentence. State v. Boyd, 174 Wn.2d 470, 473, 275 P.3d 321 (2012). Thus, 36

months of community custody in addition to the 60 months of incarceration

imposed on count 2 exceeds the statutory maximum of 60 months. The State

concedes that the community custody term of 36 months as to count 2 should be

stricken. We accept the State’s concession and remand for correction of the

judgment and sentence.

III. Victim Penalty Assessment

Lewis was also ordered to pay the Victim Penalty Assessment (VPA)

pursuant to RCW 7.68.035 at the time of his resentencing. The legislature has

since amended the imposition of the VPA “if the court finds that the defendant, at

the time of sentencing, is indigent as defined in RCW 10.01.160(3).” Despite the

lack of an express finding of indigency by the trial court, the State acknowledged

Lewis’s indigency at the time of resentencing and, on appeal, does not dispute

that Lewis is indigent. We therefore accept the State’s concession that the court

should strike the VPA.

We affirm the judgment and sentence but remand to strike the community

custody term on count 2 and the VPA.

WE CONCUR: