Filed Washington State Court of Appeals Division Two
June 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47319-4-II
Respondent,
v.
LYNN GILBERT SOUTHMAYD, JR. UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Lynn Southmayd Jr. appeals his convictions and sentence for one count
of residential burglary and one count of felony violation of a no contact order, under RCW
9A.52.025(1) and former RCW 26.50.110(5) (2013), respectively. Southmayd argues that his
defense counsel rendered ineffective assistance by failing to either stipulate to Southmayd’s prior
convictions or request a bifurcated trial, and that the sentencing court abused its discretion by
failing to consider an exceptional sentence downward based on the mitigating factor that the
victim was a willing participant in the offense. We reject Southmayd’s arguments that his
counsel was ineffective, but we hold that the sentencing court abused its discretion by failing to
consider an exceptional sentence downward based on the victim’s willing participation in the
offense. Consequently, we affirm Southmayd’s convictions but remand for resentencing. No. 47319-4-II
FACTS
Henrietta Southmayd is Southmayd’s mother. On February 21, 2014, Henrietta1 obtained
a no contact order against Southmayd in Thurston County with an expiration date of February
20, 2016, prohibiting her son from having any contact with her.
On October 13, 2014, police officers were dispatched to Henrietta’s apartment in
response to a report of a no contact order violation. When the officers arrived, Henrietta agreed
to let them into her apartment and informed them that her son was not in the apartment.
Henrietta asked the officers to stay out of the bathroom because she needed to use it. When
Henrietta opened the door of the bathroom, officers saw a man through the hinge-side gap in the
bathroom door. The officers subsequently identified the man as Southmayd, and verified the
existence of the no contact order between Southmayd and Henrietta.
The State charged Southmayd with one count of residential burglary and one count of
felony violation of a no contact order. At trial the State admitted exhibits of two prior judgment
and sentences to prove that Southmayd had been convicted of violation of a no contact order two
other times. Henrietta testified that she allowed Southmayd at her apartment because she was
worried about him because he was homeless. The jury found Southmayd guilty of both counts.
Prior to sentencing, Southmayd submitted a memorandum in support of his request for an
exceptional sentence downward based in part on the statutorily enumerated mitigating factor that
the victim in the offense was a willing participant pursuant to RCW 9.94A.535(1)(a). At the
1 Because Henrietta Southmayd and Lynn Southmayd, Jr. share the same last name, we refer to Henrietta by her first name for clarity. We intend no disrespect.
2 No. 47319-4-II
sentencing hearing, Southmayd renewed his request, specifically emphasizing Henrietta’s willing
participation in the offense. Southmayd urged the sentencing court to sentence Southmayd to 12
months in jail so that he could access treatment and services for his addiction and mental illness
that would otherwise be unavailable in the Department of Corrections. The court addressed
Southmayd’s request for an exceptional sentence downward, but it focused exclusively on
Southmayd’s argument that he would benefit from access to treatment and services if sentenced
to 12 months in jail. The sentencing court noted the State’s lack of resources and the large
disparity between the standard range sentence and Southmayd’s requested 12-month sentence.
The sentencing court never mentioned Southmayd’s mother’s willing participation in the offense
or RCW 9.94A.535(1)(a). The court sentenced Southmayd to a standard range sentence of 73
months for residential burglary and 60 months for violation the no contact order to run
concurrently.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Southmayd argues that his counsel rendered ineffective assistance by failing either to
stipulate to his prior convictions or move for a bifurcated trial in order to avoid presenting
evidence of his prior convictions to the jury. We disagree.
To show ineffective assistance of counsel, a defendant must show that defense counsel’s
conduct was deficient, and that the deficient performance resulted in prejudice. State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); see also Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient performance,
3 No. 47319-4-II
Southmayd must show that defense counsel’s performance fell below an objective standard of
reasonableness. Reichenbach, 153 Wn.2d at 130. To show prejudice, Southmayd must show a
reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the
proceeding would have differed. 153 Wn.2d at 130. If Southmayd fails to establish either prong
of the ineffective assistance of counsel test, his claim fails. State v. Foster, 140 Wn. App. 266,
273, 166 P.3d 726 (2007). We review ineffective assistance of counsel claims de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
Assuming that defense counsel should have requested a stipulation or a bifurcation,
Southmayd cannot establish prejudice. Reichenbach, 153 Wn.2d at 130. Evidence of his guilt
was overwhelming.
Police officers located Southmayd in Henrietta’s bathroom, in clear violation of the no
contact order. And Henrietta testified that she allowed Southmayd at her apartment because she
was worried about him. Also, the jury would have been informed of Southmayd’s prior
convictions even if his counsel stipulated to their existence. Moreover, bifurcated trials are not
favored, and Southmayd has not shown that the trial court would have granted his motion to
bifurcate. State v. Monschke, 133 Wn. App. 313, 334-35, 135 P.3d 966 (2006); see also State v.
Roswell, 165 Wn.2d 186, 197, 196 P.3d 705 (2008) (Where a prior conviction is an element of
the crime charged, evidence of its existence will never be irrelevant, and the decision not to
bifurcate is within the trial court’s discretion.). Because the evidence was overwhelming and
because Southmayd cannot show that the trial court would have granted a motion to bifurcate,
Southmayd has not established prejudice. Thus, Southmayd’s argument fails.
4 No. 47319-4-II
II. EXCEPTIONAL SENTENCE DOWNWARD
Southmayd also argues that the sentencing court abused its discretion by failing to
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Filed Washington State Court of Appeals Division Two
June 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47319-4-II
Respondent,
v.
LYNN GILBERT SOUTHMAYD, JR. UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Lynn Southmayd Jr. appeals his convictions and sentence for one count
of residential burglary and one count of felony violation of a no contact order, under RCW
9A.52.025(1) and former RCW 26.50.110(5) (2013), respectively. Southmayd argues that his
defense counsel rendered ineffective assistance by failing to either stipulate to Southmayd’s prior
convictions or request a bifurcated trial, and that the sentencing court abused its discretion by
failing to consider an exceptional sentence downward based on the mitigating factor that the
victim was a willing participant in the offense. We reject Southmayd’s arguments that his
counsel was ineffective, but we hold that the sentencing court abused its discretion by failing to
consider an exceptional sentence downward based on the victim’s willing participation in the
offense. Consequently, we affirm Southmayd’s convictions but remand for resentencing. No. 47319-4-II
FACTS
Henrietta Southmayd is Southmayd’s mother. On February 21, 2014, Henrietta1 obtained
a no contact order against Southmayd in Thurston County with an expiration date of February
20, 2016, prohibiting her son from having any contact with her.
On October 13, 2014, police officers were dispatched to Henrietta’s apartment in
response to a report of a no contact order violation. When the officers arrived, Henrietta agreed
to let them into her apartment and informed them that her son was not in the apartment.
Henrietta asked the officers to stay out of the bathroom because she needed to use it. When
Henrietta opened the door of the bathroom, officers saw a man through the hinge-side gap in the
bathroom door. The officers subsequently identified the man as Southmayd, and verified the
existence of the no contact order between Southmayd and Henrietta.
The State charged Southmayd with one count of residential burglary and one count of
felony violation of a no contact order. At trial the State admitted exhibits of two prior judgment
and sentences to prove that Southmayd had been convicted of violation of a no contact order two
other times. Henrietta testified that she allowed Southmayd at her apartment because she was
worried about him because he was homeless. The jury found Southmayd guilty of both counts.
Prior to sentencing, Southmayd submitted a memorandum in support of his request for an
exceptional sentence downward based in part on the statutorily enumerated mitigating factor that
the victim in the offense was a willing participant pursuant to RCW 9.94A.535(1)(a). At the
1 Because Henrietta Southmayd and Lynn Southmayd, Jr. share the same last name, we refer to Henrietta by her first name for clarity. We intend no disrespect.
2 No. 47319-4-II
sentencing hearing, Southmayd renewed his request, specifically emphasizing Henrietta’s willing
participation in the offense. Southmayd urged the sentencing court to sentence Southmayd to 12
months in jail so that he could access treatment and services for his addiction and mental illness
that would otherwise be unavailable in the Department of Corrections. The court addressed
Southmayd’s request for an exceptional sentence downward, but it focused exclusively on
Southmayd’s argument that he would benefit from access to treatment and services if sentenced
to 12 months in jail. The sentencing court noted the State’s lack of resources and the large
disparity between the standard range sentence and Southmayd’s requested 12-month sentence.
The sentencing court never mentioned Southmayd’s mother’s willing participation in the offense
or RCW 9.94A.535(1)(a). The court sentenced Southmayd to a standard range sentence of 73
months for residential burglary and 60 months for violation the no contact order to run
concurrently.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Southmayd argues that his counsel rendered ineffective assistance by failing either to
stipulate to his prior convictions or move for a bifurcated trial in order to avoid presenting
evidence of his prior convictions to the jury. We disagree.
To show ineffective assistance of counsel, a defendant must show that defense counsel’s
conduct was deficient, and that the deficient performance resulted in prejudice. State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); see also Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient performance,
3 No. 47319-4-II
Southmayd must show that defense counsel’s performance fell below an objective standard of
reasonableness. Reichenbach, 153 Wn.2d at 130. To show prejudice, Southmayd must show a
reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the
proceeding would have differed. 153 Wn.2d at 130. If Southmayd fails to establish either prong
of the ineffective assistance of counsel test, his claim fails. State v. Foster, 140 Wn. App. 266,
273, 166 P.3d 726 (2007). We review ineffective assistance of counsel claims de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
Assuming that defense counsel should have requested a stipulation or a bifurcation,
Southmayd cannot establish prejudice. Reichenbach, 153 Wn.2d at 130. Evidence of his guilt
was overwhelming.
Police officers located Southmayd in Henrietta’s bathroom, in clear violation of the no
contact order. And Henrietta testified that she allowed Southmayd at her apartment because she
was worried about him. Also, the jury would have been informed of Southmayd’s prior
convictions even if his counsel stipulated to their existence. Moreover, bifurcated trials are not
favored, and Southmayd has not shown that the trial court would have granted his motion to
bifurcate. State v. Monschke, 133 Wn. App. 313, 334-35, 135 P.3d 966 (2006); see also State v.
Roswell, 165 Wn.2d 186, 197, 196 P.3d 705 (2008) (Where a prior conviction is an element of
the crime charged, evidence of its existence will never be irrelevant, and the decision not to
bifurcate is within the trial court’s discretion.). Because the evidence was overwhelming and
because Southmayd cannot show that the trial court would have granted a motion to bifurcate,
Southmayd has not established prejudice. Thus, Southmayd’s argument fails.
4 No. 47319-4-II
II. EXCEPTIONAL SENTENCE DOWNWARD
Southmayd also argues that the sentencing court abused its discretion by failing to
consider an exceptional sentence downward specifically based on the mitigating factor that the
victim was a willing participant in the offense. We agree.
Generally, the sentencing court must impose a sentence within the standard sentencing
range under the Sentencing Reform Act.2 State v. Graham, 181 Wn.2d 878, 882, 337 P.3d 319
(2014). However, the sentencing court may exercise its discretion by imposing a sentence below
the standard range if “substantial and compelling reasons” justify an exceptional sentence. RCW
9.94A.535. The sentencing court must find that mitigating circumstances justifying a sentence
below the standard range are established by a preponderance of the evidence. RCW
9.94A.535(1). One of the possible factors that a sentencing court may use to justify an
exceptional downward sentence is if “[t]o a significant degree, the victim was [a] . . . willing
participant.” RCW 9.94A.535(1)(a).
A standard range sentence is generally not appealable. RCW 9.94A.585(1); State v.
Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994). Appellate review of the
sentencing court’s denial of a request for an exceptional sentence below the standard range is
limited to circumstances where the sentencing court refuses to exercise its discretion at all, or
relies on an impermissible basis for refusing to impose an exceptional sentence. State v. Garcia-
Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).
“While no defendant is entitled to an exceptional sentence below the standard range, every
2 Chapter 9.94A RCW.
5 No. 47319-4-II
defendant is entitled to ask the trial court to consider such a sentence and to have the alternative
actually considered.” State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). The
sentencing court’s failure to consider an exceptional sentence authorized by statute is reversible
error. 154 Wn.2d at 342.
Here, the sentencing court failed to actually consider the statutorily enumerated
mitigating factor offered by Southmayd that the victim of the crime, Southmayd’s mother, was a
willing participant in the crime. In denying Southmayd’s request for a downward sentence, the
trial court focused exclusively on the length of Southmayd’s proposed sentence and his argument
that such a sentence length would allow him to access treatment options. The court engaged in a
detailed colloquy addressing the issue of treatment resources and the disparity in length between
the proposed sentence length and the standard sentence range, but never mentioned the willing
participation of Southmayd’s mother.
The sentencing court’s colloquy at sentencing shows that it failed to meaningfully
consider that Southmayd had provided a valid mitigating factor to the court. This failure to
exercise discretion is itself an abuse of discretion subject to reversal. State v. O’Dell, 183 Wn.2d
680, 697, 358 P.3d 359 (2015); see also Grayson, 154 Wn.2d at 342. The sentencing court was
not obligated to grant Southmayd’s request for an exceptional sentence downward, but failing to
actually consider the mitigating factor that Southmayd’s mother was a willing participant in the
offense at all was an abuse of discretion. Grayson, 154 Wn.2d at 342. Therefore, we remand for
resentencing.
6 No. 47319-4-II
In conclusion, we hold that Southmayd has failed to show that defense counsel was
ineffective, but that the sentencing court abused its discretion by failing to consider Henrietta’s
willing participation in Southmayd’s offense. Accordingly, we affirm Southmayd’s convictions
but remand for resentencing.
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.
Worswick, J. We concur:
Bjorgen, C.J.
Lee, J.