IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82677-8-I ) Respondent, ) DIVISION ONE ) v. ) ) SUSNIOS, THOMAS, ) UNPUBLISHED OPINION DOB: 11/24/1994, ) ) Appellant. )
BOWMAN, J. — Thomas Susnios appeals his standard-range sentence,
arguing the court improperly commented on race and failed to consider
meaningfully his request for an exceptional sentence down. The record does not
support his claims. Susnios also argues the sentencing court erroneously
imposed a 60-month mandatory minimum term of confinement and supervision
fees. We agree and remand for the court to strike those provisions from Susnios’
judgment and sentence.
FACTS
Susnios is a young Black man who suffers from schizophrenia. One
morning in January 2019, Susnios texted his mother like he did most days to tell
her that he was driving to attend a prayer service. But, instead, he drove to the
Everett Police Department South Precinct parking lot and purposefully crashed
into a patrol car driven by Officer Jared Corson. After the collision, Officer Corson
and Susnios got out of their cars and Susnios started screaming at Officer Corson.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82677-8-I/2
Officer Ryan Greely was in his patrol car directly in front of the collision. He also
got out of his car and approached Susnios. Susnios struck Officer Greely and
repeatedly yelled, “ ‘I’m going to kill you.’ ” Officer Greely tackled and arrested
Susnios. Police took Susnios to the hospital where he told a nurse he was driving
to attend prayer service, but he said nothing about the collision. Susnios did not
recall events before the crash or anything about the crash itself.
The State charged 24-year-old Susnios with first degree assault of Officer
Corson, first degree malicious mischief, and third degree assault of Officer Greely.
Susnios pleaded guilty to both assault charges. His standard-range sentence for
the first degree assault was 102 to 136 months. The third degree assault had a
standard range of 3 to 8 months.
At sentencing, the State asked the court to impose 120 months. Susnios
requested an exceptional sentence below the standard range of 60 months. He
asked the court to consider the effect of implicit racial bias, raising concerns that
because he is Black, he would receive a longer sentence than a white defendant
would in his position. He then argued that his mental illness and his youth were
mitigating factors that warranted an exceptional sentence as they significantly
impaired his capacity to appreciate the wrongfulness of his conduct. In support of
his argument, Susnios submitted a psychological report detailing his mental health
history.
The court first addressed Susnios’ concern about implicit racial bias. It
noted that “when anybody appears in front of me I try as best I can to handle the
2 No. 82677-8-I/3
case appropriately, not taking into consideration the color of somebody’s skin.”
The court then stated:
I’d say if anything my sentences probably have been more lenient for people of color than perhaps other people might think they should be because I understand there could be the biases and I take that into account.
The court denied Susnios’ request for an exceptional sentence downward.
It determined that neither Susnios’ mental health nor his youth amounted to
mitigating factors. The court imposed a 102-month sentence with a 60-month
mandatory minimum term of confinement for first degree assault and a concurrent
8-month sentence for third degree assault. The court found Susnios indigent and
waived discretionary fees.
Susnios appeals.
ANALYSIS
Comment on Race
Susnios claims the trial court improperly considered race at sentencing,
“demonstrat[ing] bias” and violating his constitutional right to equal protection and
the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We disagree.
The federal constitution prohibits states from making or enforcing any law
that denies “to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST., amend. XIV, § 1. Similarly situated persons should receive like
treatment under the law. State v. Osman, 126 Wn. App. 575, 581-82, 108 P.3d
1287 (2005), aff’d, 157 Wn.2d 474, 139 P.3d 334 (2006). As a result, courts must
not impose sentences based on a defendant’s race. Buck v. Davis, __ U.S. __,
137 S. Ct. 759, 778, 197 L. Ed. 2d 1 (2017). “Relying on race to impose a criminal
3 No. 82677-8-I/4
sanction ‘poisons public confidence’ in the judicial process” and “injures not just
the defendant, but ‘the law as an institution, . . . the community at large, and . . .
the democratic ideal reflected in the processes of our courts.’ ” Buck, 137 S. Ct. at
7781 (quoting Davis v. Ayala, 576 U.S. 257, 285, 135 S. Ct. 2187, 192 L. Ed. 2d
323 (2015); Rose v. Mitchell, 443 U.S. 545, 556, 99 S. Ct. 2993, 61 L. Ed. 2d 739
(1979)). There is no compelling governmental interest in enforcing criminal laws
based on race, and doing so violates equal protection. McCleskey v. Kemp, 481
U.S. 279, 291 n.8, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).
Similarly, a defendant’s race “ ‘must not enter into the selection of the
appropriate sentence’ ” under the SRA. Osman, 126 Wn. App. at 580 (quoting
State v. Roberts, 77 Wn. App. 678, 683, 894 P.2d 1340 (1995)). Courts must
apply the SRA “without discrimination as to any element that does not relate to the
crime or the previous record of the defendant.” RCW 9.94A.340. But neither
equal protection nor the SRA prohibits courts from recognizing bias at an
individual or systemic level. See State v. Scabbyrobe, 16 Wn. App. 2d 870, 878
n.3, 482 P.3d 301, review denied, 197 Wn.2d 1024, 492 P.3d 174 (2021) (“Implicit
bias exists. Law enforcement, prosecutors, trial judges and appellate judges must
be aware of this and guard against it.”); State v. Gregory, 192 Wn.2d 1, 22, 427
P.3d 621 (2018) (taking “judicial notice of implicit and overt racial bias against
[B]lack defendants in this state” in considering whether death penalty
unconstitutional).
1 Alterations in original.
4 No. 82677-8-I/5
Susnios argues that the trial court’s discussion of race at sentencing “ ‘casts
doubt’ ”2 on his sentence and shows that the judge imposes “more lenient
sentences for people of color in order to ‘account’ for . . . his own biases.” He cites
two per curiam opinions, State v. Black, No. 71368-0-I (Wash. Ct. App. Dec. 8,
2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/713680.pdf, and
State v. Richwine, No. 76807-7-I (Wash. Ct. App. Dec. 18, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/768077.pdf, in support of his argument.3
In each of those cases, the State conceded error because the court discussed
perceived inequities in sentencing recommendations for different races and
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82677-8-I ) Respondent, ) DIVISION ONE ) v. ) ) SUSNIOS, THOMAS, ) UNPUBLISHED OPINION DOB: 11/24/1994, ) ) Appellant. )
BOWMAN, J. — Thomas Susnios appeals his standard-range sentence,
arguing the court improperly commented on race and failed to consider
meaningfully his request for an exceptional sentence down. The record does not
support his claims. Susnios also argues the sentencing court erroneously
imposed a 60-month mandatory minimum term of confinement and supervision
fees. We agree and remand for the court to strike those provisions from Susnios’
judgment and sentence.
FACTS
Susnios is a young Black man who suffers from schizophrenia. One
morning in January 2019, Susnios texted his mother like he did most days to tell
her that he was driving to attend a prayer service. But, instead, he drove to the
Everett Police Department South Precinct parking lot and purposefully crashed
into a patrol car driven by Officer Jared Corson. After the collision, Officer Corson
and Susnios got out of their cars and Susnios started screaming at Officer Corson.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82677-8-I/2
Officer Ryan Greely was in his patrol car directly in front of the collision. He also
got out of his car and approached Susnios. Susnios struck Officer Greely and
repeatedly yelled, “ ‘I’m going to kill you.’ ” Officer Greely tackled and arrested
Susnios. Police took Susnios to the hospital where he told a nurse he was driving
to attend prayer service, but he said nothing about the collision. Susnios did not
recall events before the crash or anything about the crash itself.
The State charged 24-year-old Susnios with first degree assault of Officer
Corson, first degree malicious mischief, and third degree assault of Officer Greely.
Susnios pleaded guilty to both assault charges. His standard-range sentence for
the first degree assault was 102 to 136 months. The third degree assault had a
standard range of 3 to 8 months.
At sentencing, the State asked the court to impose 120 months. Susnios
requested an exceptional sentence below the standard range of 60 months. He
asked the court to consider the effect of implicit racial bias, raising concerns that
because he is Black, he would receive a longer sentence than a white defendant
would in his position. He then argued that his mental illness and his youth were
mitigating factors that warranted an exceptional sentence as they significantly
impaired his capacity to appreciate the wrongfulness of his conduct. In support of
his argument, Susnios submitted a psychological report detailing his mental health
history.
The court first addressed Susnios’ concern about implicit racial bias. It
noted that “when anybody appears in front of me I try as best I can to handle the
2 No. 82677-8-I/3
case appropriately, not taking into consideration the color of somebody’s skin.”
The court then stated:
I’d say if anything my sentences probably have been more lenient for people of color than perhaps other people might think they should be because I understand there could be the biases and I take that into account.
The court denied Susnios’ request for an exceptional sentence downward.
It determined that neither Susnios’ mental health nor his youth amounted to
mitigating factors. The court imposed a 102-month sentence with a 60-month
mandatory minimum term of confinement for first degree assault and a concurrent
8-month sentence for third degree assault. The court found Susnios indigent and
waived discretionary fees.
Susnios appeals.
ANALYSIS
Comment on Race
Susnios claims the trial court improperly considered race at sentencing,
“demonstrat[ing] bias” and violating his constitutional right to equal protection and
the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We disagree.
The federal constitution prohibits states from making or enforcing any law
that denies “to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST., amend. XIV, § 1. Similarly situated persons should receive like
treatment under the law. State v. Osman, 126 Wn. App. 575, 581-82, 108 P.3d
1287 (2005), aff’d, 157 Wn.2d 474, 139 P.3d 334 (2006). As a result, courts must
not impose sentences based on a defendant’s race. Buck v. Davis, __ U.S. __,
137 S. Ct. 759, 778, 197 L. Ed. 2d 1 (2017). “Relying on race to impose a criminal
3 No. 82677-8-I/4
sanction ‘poisons public confidence’ in the judicial process” and “injures not just
the defendant, but ‘the law as an institution, . . . the community at large, and . . .
the democratic ideal reflected in the processes of our courts.’ ” Buck, 137 S. Ct. at
7781 (quoting Davis v. Ayala, 576 U.S. 257, 285, 135 S. Ct. 2187, 192 L. Ed. 2d
323 (2015); Rose v. Mitchell, 443 U.S. 545, 556, 99 S. Ct. 2993, 61 L. Ed. 2d 739
(1979)). There is no compelling governmental interest in enforcing criminal laws
based on race, and doing so violates equal protection. McCleskey v. Kemp, 481
U.S. 279, 291 n.8, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).
Similarly, a defendant’s race “ ‘must not enter into the selection of the
appropriate sentence’ ” under the SRA. Osman, 126 Wn. App. at 580 (quoting
State v. Roberts, 77 Wn. App. 678, 683, 894 P.2d 1340 (1995)). Courts must
apply the SRA “without discrimination as to any element that does not relate to the
crime or the previous record of the defendant.” RCW 9.94A.340. But neither
equal protection nor the SRA prohibits courts from recognizing bias at an
individual or systemic level. See State v. Scabbyrobe, 16 Wn. App. 2d 870, 878
n.3, 482 P.3d 301, review denied, 197 Wn.2d 1024, 492 P.3d 174 (2021) (“Implicit
bias exists. Law enforcement, prosecutors, trial judges and appellate judges must
be aware of this and guard against it.”); State v. Gregory, 192 Wn.2d 1, 22, 427
P.3d 621 (2018) (taking “judicial notice of implicit and overt racial bias against
[B]lack defendants in this state” in considering whether death penalty
unconstitutional).
1 Alterations in original.
4 No. 82677-8-I/5
Susnios argues that the trial court’s discussion of race at sentencing “ ‘casts
doubt’ ”2 on his sentence and shows that the judge imposes “more lenient
sentences for people of color in order to ‘account’ for . . . his own biases.” He cites
two per curiam opinions, State v. Black, No. 71368-0-I (Wash. Ct. App. Dec. 8,
2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/713680.pdf, and
State v. Richwine, No. 76807-7-I (Wash. Ct. App. Dec. 18, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/768077.pdf, in support of his argument.3
In each of those cases, the State conceded error because the court discussed
perceived inequities in sentencing recommendations for different races and
appeared to base its sentence on each defendant’s race. Black, No. 71368-0-I,
slip op. at 1; Richwine, No. 76807-7-I, slip op. at 2.
Unlike in Black and Richwine, the court here did not impose a sentence
based on Susnios’ race. Rather, the judge responded to defense counsel’s
concerns about implicit bias by assuring Susnios that “I understand there could be
the biases and I take that into account,” and that “when anybody appears in front
of me I try as best I can to handle the case appropriately, not taking into
consideration the color of somebody’s skin.” And nothing in the record supports
Susnios’ argument that the court’s comment, “[M]y sentences probably have been
more lenient for people of color,” shows that it imposed a more lenient sentence in
his case. Indeed, the court ultimately rejected Susnios’ request for an exceptional
sentence downward in favor of a sentence within the standard range.
2 Quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).
3 “Unpublished opinions of the Court of Appeals have no precedential value and are not
binding,” but cases filed after March 1, 2013 “may be accorded such persuasive value as the court deems appropriate.” GR 14.1(a).
5 No. 82677-8-I/6
Susnios fails to show that the court sentenced him based on race in
violation of equal protection or the SRA.
Exceptional Sentence Request
Susnios argues that the court refused to consider meaningfully his request
for an exceptional sentence below the standard range. We disagree.
Under the SRA, a trial court must impose a sentence within the standard
range “unless it finds substantial and compelling reasons to justify a departure.”
State v. Smith, 82 Wn. App. 153, 160-61, 916 P.2d 960 (1996). A sentencing
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). It is a mitigating circumstance if a defendant’s
“capacity to appreciate the wrongfulness of his or her conduct, or to conform his or
her conduct to the requirements of the law, was significantly impaired.” RCW
9.94A.535(1)(e).
When a defendant requests an exceptional sentence, our “review is limited
to circumstances where the court has refused to exercise discretion at all or has
relied on an impermissible basis for refusing to impose an exceptional sentence
below the standard range.” State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944
P.2d 1104 (1997). “A court refuses to exercise its discretion if it refuses
categorically” to impose a sentence “below the standard range under any
circumstances.” Id. But a court that considered the facts of a case and found no
basis for an exceptional sentence exercised its discretion, and the defendant may
not appeal that ruling. Id.
6 No. 82677-8-I/7
Susnios claims that the court did not meaningfully consider whether his
youth and mental illness significantly impaired his capacity to appreciate the
wrongfulness of his conduct when he assaulted Officers Corson and Greely.
According to Susnios, the court refused to consider his request for an exceptional
sentence, telling him that “I’m not evaluating that today” and that his request was
“too complex.” But Susnios mischaracterizes the record.
At sentencing, Susnios argued that his mental illness and youth significantly
impaired his capacity to appreciate the wrongfulness of his conduct. In support of
his mental health argument, Susnios offered a psychological report detailing his
mental health history. The court considered the report but rejected it as an
adequate legal basis to support an exceptional sentence below the standard
range. The court explained:
I can’t find what’s required under the law that it’s been proved by a preponderance that there’s a connection between that mental health condition and significant impairment of your ability at that time to appreciate the wrongfulness of your conduct or to conform your conduct to the requirements of the law. I don’t believe that the report, although your attorney’s done a good job arguing for it, I don’t believe that legally I can make the finding that that’s established by a preponderance of the evidence.
The trial court also considered and rejected Susnios’ argument that his
youth significantly impaired his capacity to appreciate the wrongfulness of his
conduct. It concluded there was no sufficient basis for it to find Susnios’ age
impacted his behavior:
This is not impulsive behavior that is done by a child. . . . [Y]ou were 25 years old at the time.[4] I don’t disagree that that’s a factor that
4 Susnios’ counsel, and later the court, inaccurately described Susnios as 25 years old at
the time of the assaults. He was 24.
7 No. 82677-8-I/8
can be taken into consideration. I just don’t find that this is the type of behavior consistent with somebody’s youthfulness which created the behavior, especially given the facts here that you’re saying you don’t even remember what happened on that day or how it happened because of your claim that it’s related to your mental illness.
The record shows that the court considered Susnios’ arguments, concluded
they did not support an exceptional sentence, and exercised its discretion to deny
the request.
Mandatory Minimum Sentence
Susnios argues that the court erred by imposing a 60-month mandatory
minimum term of confinement for first degree assault and that the error warrants
resentencing. The State agrees that the court erred but argues we need only
remand to strike the 60-month mandatory minimum provision. We agree with the
State.
Not all first degree assault convictions carry a 60-month mandatory
minimum term of confinement. See In re Pers. Restraint of Huy Khac Tran, 154
Wn.2d 323, 332, 111 P.3d 1168 (2005) (“If the legislature had intended every
violation of the first degree assault statute to result in a five-year mandatory
minimum, it would have limited” the statute.). Washington’s mandatory minimum
sentencing statute provides:
An offender convicted of the crime of assault in the first degree . . . where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.
RCW 9.94A.540(1)(b).
The legislature intended the provision to “increase the punitive requirement
for certain assaults that are characterized by unusually (within the world of assault)
8 No. 82677-8-I/9
violent acts or a particularly sinister intent.” Huy Khac Tran, 154 Wn.2d at 329-30.
An offender serving a mandatory minimum term is not “eligible for community
custody, earned release time, furlough, home detention, partial confinement, work
crew, work release, or any other form of early release.” RCW 9.94A.540(2).
Because mandatory minimum sentences increase the penalty of a crime, the
defendant must admit to the facts supporting the mandatory minimum sentence or
a jury must find the facts by special verdict. Alleyne v. United States, 570 U.S. 99,
103, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
In his plea to first degree assault, Susnios admitted that he “intended to
inflict great bodily harm . . . by using force or means to produce great bodily harm,
to wit: a motor vehicle.” But he did not admit to facts that he used force or means
likely to result in death or that he intended to kill Officer Corson. As a result, we
accept the State’s concession that the trial court erred in imposing the mandatory
minimum term of confinement for first degree assault.
Susnios argues that the court’s error warrants a full resentencing. Remand
for resentencing is often necessary when a sentence stems from a trial court’s
erroneous interpretation of or belief about the governing law. State v. McGill, 112
Wn. App. 95, 100, 47 P.3d 173 (2002). For example, we will remand for
resentencing if an error affects a defendant’s standard range. See State v. Argo,
81 Wn. App. 552, 569, 915 P.2d 1103 (1996) (remand for resentencing
unnecessary where miscalculation of offender score did not affect standard
range). Or we will remand for resentencing where the court mistakenly believed it
could not impose an exceptional sentence downward. See State v. Hale, 65 Wn.
9 No. 82677-8-I/10
App. 752, 757-58, 829 P.2d 802 (1992). But we need not remand for resentencing
when we are confident that the trial court would impose the same sentence without
the error. McGill, 112 Wn. App. at 100.
Here, the court’s error did not affect Susnios’ standard sentencing range for
first degree assault. His standard range of 102 to 136 months remains the same,
and the court sentenced him to the lowest sentence possible in that standard
range. Nor did the court mistakenly believe the mandatory minimum term of
confinement restricted its ability to impose an exceptional sentence downward.
Susnios requested an exceptional sentence of 60 months—the same as the
mandatory minimum. The court rejected his request for reasons unrelated to its
mistaken belief that the mandatory minimum penalty applied.
We are confident that the trial court would impose the same sentence
without the error. But because the mandatory minimum term of confinement
affects Susnios’ eligibility for early release, we remand with instructions to strike
the provision from his judgment and sentence.5
Supervision Fees
Susnios argues that the court erred by imposing community custody
supervision fees in his judgment and sentence. The State concedes the court
should strike those fees. We agree.
5 Susnios argues State v. Rusev, No. 47762-9-II (Wash. Ct. App. Apr. 18, 2017)
(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2047762-9-II%20Unpublished% 20Opinion.pdf, compels us to reach a different result. In that unpublished opinion, Division Two remanded for a full resentencing after determining that the trial court erred in imposing a mandatory minimum sentence because “the trial court may have imposed a different sentence knowing assault in the first degree did not have a mandatory minimum.” Rusev, No. 47762-9-II, slip op. at 13. But the record here does not support the same determination.
10 No. 82677-8-I/11
At sentencing, the court found Susnios indigent and waived financial
obligations other than the mandatory victim penalty and biological sample
assessments. Still, Susnios’ judgment and sentence orders he “pay supervision
fees as determined by” the Department of Corrections. Because the record shows
that the trial court intended to waive those fees, we remand for the court to strike
the supervision fees from Susnios’ judgment and sentence. See State v.
Bowman, 198 Wn.2d 609, 629, 498 P.3d 478 (2021) (when trial court intends to
impose only mandatory legal financial obligations, community custody supervision
fee should be stricken as procedural error).
The record does not support Susnios’ claim that the trial court improperly
considered race in determining his sentence or failed to consider meaningfully his
youth and mental health as mitigating factors. However, we remand for the court
to strike the 60-month mandatory minimum term of confinement and supervision
fees from Susnios’ judgment and sentence.
WE CONCUR: