FILED NOVEMBER 2, 2021 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STATE OF WASHINGTON, ) ) No. 36998-6-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) TRAVIS M. LANG, ) ) Appellant. )
FEARING, J. — Travis Lang, an offender who committed a crime as a juvenile,
asked the superior court to reduce his sentence based on State v. Houston-Sconiers, 188
Wn.2d 1, 391 P.3d 409 (2017). At resentencing, the superior court reduced his sentence
by forty months. On appeal, Lang seeks further reduction of his sentence. He contends
that the superior court failed to seriously consider his youthfulness, at the time of his
offense, during resentencing. He contends the trial court erroneously failed to consider
an exceptional downward sentence and running his deadly weapon enhancement
concurrently with his base murder sentence. Finally, he argues that his resentencing
counsel ineffectively represented him when stipulating to an offender score of one.
We do not address Travis Lang’s first three assignments of error. Instead, we rule
that Travis Lang’s resentencing counsel ineffectively represented Lang during the No. 36998-6-III State v. Lang
resentencing. We remand for the trial court to reconsider Lang’s offender score and for
further proceedings consistent with any recalculation of the offender score. On remand,
Lang may assert, before the resentencing court, the other contentions he forwards in this
appeal. We deny Lang’s request for resentencing before another superior court judge.
FACTS
This appeal concerns sentencing of Travis Lang for a murder committed at age 16.
Travis Lang was born in Spokane on January 18, 1986. By the age of sixteen, Travis
Lang socialized with older teenagers and was typically the youngest of his clique.
Two crimes preceded the murder committed by Travis Lang. On February 3,
2002, while watching the Super Bowl, Lang and his friends decided to rob someone.
According to Lang, he served as the look-out. The group purloined beer from a house’s
back porch, entered the residence, and stole firearms and other property from inside the
home.
The juvenile court adjudicated Travis Lang guilty of residential burglary and first
degree theft for his misconduct on February 3, 2002. According to Lang, he received a
deferred sentence for the crimes. Lang spent two days in detention and two months on
house arrest.
Travis Lang’s friend, Jason Means, dealt marijuana from Means’ Spokane
apartment. On November 14, 2002, sixteen-year-old Lang and eighteen-year-old Means
shared a heated exchange, in Means’ apartment, over Lang’s $200 drug debt to Means.
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An altercation ensued, during which Lang stabbed Means in the chest, back, head, and
neck, causing his death. On November 14, Lang remained on probation for the February
2002 crimes.
After killing Jason Means, Travis Lang seized some of Means’ money and
marijuana before leaving Means’ apartment. Law enforcement found blood in Means’
bedroom and bathroom and concluded that Lang attempted to clean himself and change
his clothing after the slaying. Lang told law enforcement that, before the killing, he had
stayed awake for two days while using crack cocaine and methamphetamine.
On December 5, 2002, the State of Washington charged Travis Lang, in adult
court, with one count of first degree murder with a deadly weapon. On August 11, 2003,
Lang entered a guilty plea to the charge.
Pursuant to a plea agreement, the State recommended a mid-range sentence of 290
months’ confinement plus a 24-month deadly weapon enhancement. The sentencing
court calculated Travis Lang’s offender score at one point, attributing 1/2 point to each of
Lang’s two earlier offenses. The court’s calculation resulted in a standard range sentence
of 250-333 months. The trial court imposed the recommended sentence of 314 months’
confinement, which ran the enhancement consecutively with the base sentence. The
sentencing court found that Lang’s chemical dependency contributed to the offense.
PROCEDURE
On December 26, 2017, fifteen years after the murder, Travis Lang filed, in the
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superior court, a CrR 7.8 motion for relief from his judgment and for resentencing based
on changes in the law of juvenile sentencing. Lang argued that, pursuant to Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) and State v. Houston-
Sconiers, 188 Wn.2d 1 (2017), sentencing courts must consider mitigating qualities of
youth when sentencing juveniles and the sentencing court, in 2003, failed to consider his
immaturity. He asked that, on resentencing, the superior court reduce his sentence below
the standard range and run his deadly weapon enhancement concurrent with his base
sentence for murder.
As part of his CrR 7.8 motion, Travis Lang submitted a presentence report that
recommended a reduced, exceptional mitigated sentence of 216 months’ confinement. In
turn, by order of the resentencing court, the Department of Corrections (DOC) filed a
presentencing investigation report (PSI). DOC recommended that the court decline to
modify Lang’ sentence. Because of their lack of relevance to Lang’s offender score, we
do not outline the facts found in the two reports.
On March 29, 2019, Judge Annette Plese, who did not sentence Travis Lang in
2003, conducted the resentencing hearing. We will refer to Judge Plese hereafter as the
resentencing court. Because Lang requests removal for Judge Plese from any
resentencing on remand, we detail the comments made and rulings issued by her.
The resentencing court first addressed Travis Lang’s offender score, previously
calculated at one point. For the first time, Lang argued, at the resentencing hearing, that
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his two prior juvenile offenses for residential burglary and first degree theft should be
deemed the same criminal conduct and thus scored as one crime. Lang maintained that
his offender score should be zero points, a score rounded down from one-half a point.
The State responded that, due to the burglary antimerger statute, Travis Lang’s burglary
and theft offenses could not merge. Thus, according to the State, Lang’s offender score
should remain calculated at one point, one-half point for each juvenile crime.
The resentencing court asked whether defense counsel reviewed the antimerger
statute. Defense counsel did not directly answer this question and instead summarized
her earlier argument. The resentencing court commented that the original sentencing
court did not count Lang’s prior offenses as the same criminal conduct. The court asked
for additional briefing on the offender score
During a short recess, defense counsel consulted with a cocounsel regarding the
offender score. After the break, defense counsel commented before the court:
In talking with Mr. Ellis [co-counsel], the one-half and one-half should go properly forward as a one, and they merged at the time for sentencing because they were the same course of conduct, but as points, they’re half and half, so.
Report of Proceedings (RP) at 9 (emphasis added). The resentencing court responded:
Okay. So we’re in the same range as far as at sentencing to the 250 to 333 months with the 24 months enhancement, maximum life, $50,000. So I just want to make sure we’re all in the same range.
RP at 9. The court accepted defense counsel’s stipulation that Travis Lang’s offender
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score should be calculated at one point.
The resentencing court next addressed whether it should impose an exceptional
mitigated sentence. The State contended that Travis Lang’s 314-month sentence should
remain unchanged. Lang requested an exceptional mitigated sentence of 216 months’
confinement. He also asked that the 24-month deadly weapon enhancement run
concurrently with the base sentence.
The resentencing court remarked that, under current statutes, the court lacked
authority to run the deadly weapon enhancement concurrently with the base sentence and,
thus, the enhancement must run consecutively. Defense counsel responded:
The Court has the discretion to run it consecutive [sic]—to run it consecutive [sic], which is what we’re asking the Court to do.
RP at 29. Presumably defense counsel meant to say that the court had the discretion to
run the enhancement concurrently, not consecutively. The resentencing court continued:
If the Court ran it concurrent with the current sentence, the Court would have to make very specific findings under the mitigation statute different from the Miller [v. Alabama, 567 U.S. 460 (2012)] factors.
RP at 29.
During the resentencing hearing, the court remarked that it reviewed DOC’s PSI
report, which covered Travis Lang’s history. The court acknowledged that the Miller
factors should be considered when sentencing a juvenile. The court highlighted that Lang
committed the crime at sixteen years old and that his psychological evaluation indicated
6 No. 36998-6-III State v. Lang
that Lang’s development at the time was that of a thirteen- or fourteen-year-old. The
court affirmed:
That’s exactly what the Miller court says that this Court needs to look at in sentencing the juvenile. The factors of risk, drug use, as the attorney mentioned, lack of sleep, rehab, all those things that would have affected someone who’s 21 versus someone who’s that. At 16, you’re considered an adult. That’s why he went straight to adult court, but looking at that psychological report saying he was more functioning mentally as a 13 or 14 year old does factor right into those.
RP at 38. The resentencing court remarked that, at the time of the murder, Lang
remained on probation for the earlier burglary. The court applauded Lang for taking
responsibility for his crime by pleading guilty.
The resentencing court commented about an exceptional downward sentence:
Are there mitigating factors in running them concurrent? I can’t find mitigating factors to go below the standard range, but I do find mitigating factors based on the developmental delays that they noted at the time.
RP at 39-40. The court continued:
So do I think that you should have gotten the low end versus a midrange? Yes, I would agree based on the factors that I have in front of me and the lack of sophistication since they specifically talk about your brain being somewhere around 13 or 14. You add the drug use into it and all of the other ranges, and the fact, though, that you pled straight up, came in and admitted that, all of that, looking that the attorney tried to get you the best deal, but you came in and admitted it. That was a huge step.
RP at 40.
The resentencing court concluded that the Miller factors supported a low-end
standard range sentence. The court imposed a sentence of 250 months’ confinement, plus
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24 months for the deadly weapon enhancement, totaling 274 months’ confinement. The
court thereby shortened Travis Lang’s sentence by 40 months.
Defense counsel then inquired whether the resentencing court would allow for
additional briefing on running the deadly weapon enhancement concurrently. The
resentencing court responded:
It would be a reconsideration only, and you could do a reconsideration, but you would have to specifically hit the mitigation factors under the statute for consecutive time and not so much the Miller factors. I was focusing more on the statutory factors.
RP at 41 (emphasis added). Later, defense counsel reasserted that the resentencing court
had authority “to run a deadly weapon enhancement concurrent.” RP at 44. The court
replied that counsel would need to perform briefing to change the court’s mind. The
court informed defense counsel that, in briefing, she could also address whether the
twenty-year mandatory minimum sentence applied to juvenile offenders.
Travis Lang filed a postsentence memorandum of law that argued that the
resentencing court held the discretion to sentence below the mandatory twenty-year
minimum sentence and to run the deadly weapon enhancement concurrently with the base
sentence without finding the presence of statutory mitigating factors. The resentencing
court treated Travis Lang’s post-sentence memo as a motion for reconsideration. In
response, the court wrote an opinion addressing Lang’s arguments. The opinion
readdressed the Miller factors and the court’s reasoning for issuing a low-end standard
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range sentence. The court reiterated Lang’s physical age of sixteen and highlighted his
mental age of thirteen or fourteen at the time he committed the crime.
In its post-sentencing opinion, the resentencing court wrote:
Under the Miller v. Alabama case, prior to imposing sentence on a juvenile for serious or violent crimes as an adult, the Court must consider any mitigating factors that would give the court the discretion to impose a sentence below the otherwise applicable [Sentencing Reform Act of 1981, chapter 9.94A RCW] SRA range and/or sentencing enhancements.
Clerk’s Papers (CP) at 122.
The court’s opinion addressed the two issues defense counsel raised: the twenty-
year mandatory minimum and running the deadly weapon enhancement concurrently
with the base sentence:
The Court did not agree to waive the 20 years minimum mandatory on the 1st Murder charge or run the 24 consecutive months for the deadly weapon enhancement concurrent based on aggravating factors.
CP at 123.
The resentencing court observed that Travis Lang remained on probation when he
murdered Jason Means. The opinion addressed Lang’s probation for his past two
juvenile offenses and his behavior during this time:
He spent two days in juvenile detention and 2 months on house arrest. Lang was still on felony probation at the time of this murder. . . . Lang was ordered not to consume controlled substances, yet he was clearly violating this condition prior to this arrest. It is clear from the report that his arrest, conviction and incarceration had little impact on him and his behavior once released from house arrest. There was no information that he had any violations during his 60 days of house arrest. This
9 No. 36998-6-III State v. Lang
demonstrated to this court that he had the ability to scale back his impulsive nature when it was necessary.
CP at 124 (emphasis added). The opinion continued:
In reviewing these factors and the crime involved in this case which include stabbing his friend to death, engaging in the drug culture and hanging with others negative influences shortly after being released from house arrest for previous felonies. This demonstrates both an immaturity level and a sophistication level as he was capable of compliance during his house arrest but after his release he believed he could do what he wanted.
CP at 125 (emphasis added).
The resentencing court’s opinion included findings of fact. One finding
underscored that Travis Lang was the only participant in the murder, encountered a
chaotic childhood, and mingled with older kids. Travis Lang challenges two findings of
fact, all unnumbered, that read:
It is clear from the report that his arrest, conviction and incarceration had little impact on him and his behavior once released from house arrest. There was no information that he had any violations during his 60 days of house arrest. This demonstrated to this court that he had the ability to scale back his impulsive nature when it was necessary.
CP at 124 (emphasis added).
In reviewing these factors and the crime involved in this case which include stabbing his friend to death, engaging in the drug culture and hanging with others negative influences shortly after being released from house arrest for previous felonies. This demonstrates both an immaturity level and a sophistication level as he was capable of compliance during his house arrest but after his release he believed he could do what he wanted. .... [T]he horrific attack and murder of someone he called a friend is a huge aggravating factor.
10 No. 36998-6-III State v. Lang
The resentencing court concluded that no factors justified an exceptional mitigated
sentence below the bottom of the standard range. The court denied Travis Lang’s motion
for reconsideration and upheld its original 274-month sentence.
LAW AND ANALYSIS
We first address whether Travis Lang’s two earlier crimes of residential burglary
and theft constituted the same criminal conduct, and, in turn, whether his offender score
should have been zero rather than one when sentenced for murder. We next examine
whether resentencing counsel ineffectively represented Lang when agreeing to an
offender score of one. Finally, we evaluate whether to reassign the resentencing on
remand to another superior court judge.
Same Criminal Conduct Analysis
Travis Lang asserts that the resentencing court miscalculated his offender score as
one point, because the court failed to perform a same criminal conduct analysis for his
two prior juvenile offenses: residential burglary and first degree theft. Lang argues that
employment of the analysis would have led to a finding that the two crimes entailed the
same victim, time, place, and intent. Thus, his offender score would have been calculated
at zero points.
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The State responds that Travis Lang invited any resentencing court error when
defense counsel agreed with the State’s proposition that the burglary antimerger statute
controlled Lang’s calculation. Additionally, the State contends that the sparse record
does not permit adjudication of Lang’s claim of same criminal conduct. The State argues
that, if evidence exists to support Lang’s contention, he must present the assignment of
error via personal restraint petition.
Travis Lang replies that defense counsel did not agree with the State’s position at
resentencing regarding the burglary antimerger statute, but rather the resentencing court
summarily adopted the State’s argument. Lang highlights that, while defense counsel
stated that his offender score should “properly go forward as a one” point, defense
counsel maintained the position that his two prior offenses “were the same course of
conduct.” RP at 9. Thus, according to Lang, the invited error doctrine does not apply.
Lang contends that defendants may waive factual errors at sentencing, but not legal errors
and the miscalculation of his offender score constituted legal error.
Pursuant to the SRA, a standard range sentence is determined by an offender score
and offense seriousness level. RCW 9.94A.510; RCW 9.94A.530(1). An offender score
is the sum of points an offender accrued from prior convictions rounded down to the
nearest whole number. RCW 9.94A.525. Prior class A, B, and C felony convictions and
certain prior gross misdemeanor convictions are included in the offender score. RCW
9.94A.525(2)(a)-(g). The State bears the burden of proving the existence of prior
12 No. 36998-6-III State v. Lang
convictions by a preponderance of the evidence. State v. Bergstrom, 162 Wn.2d 87, 93,
169 P.3d 816 (2007). In determining the proper offender score, the court may rely only
on information that the defendant admits in the plea agreement, the defendant admits or
acknowledges at sentencing, or the State proves at the time of sentencing. RCW
9.94A.530(2); State v. Hunley, 175 Wn.2d 901, 909, 287 P.3d 584 (2012).
On appeal, both parties agree that the application of the antimerger statute at
resentencing was erroneous. In State v. Williams, 181 Wn.2d 795, 801, 336 P.3d 1152
(2014), our high court held that the burglary anti-merger statute does not supersede the
SRA’s more recent directive, in RCW 9.94A.525(5)(a)(i)), that prior convictions
encompassing the same criminal conduct shall be counted as one offense. Thus, a same
criminal conduct analysis should have been conducted at resentencing.
If two crimes entail the “same criminal conduct” within the meaning of the SRA,
the sentencing court scores the two crimes as one. “Same criminal conduct” refers to
when two or more crimes involve (1) the same criminal intent, (2) the same time and
place, and (3) the same victim. RCW 9.94A.589(1)(a); State v. Saunders, 120 Wn. App.
800, 824, 86 P.3d 232 (2004). Intent, in this context, is not the particular mens rea
element of the particular crime, but rather is the offender’s objective criminal purpose in
committing the crime. State v. Phuong, 174 Wn. App. 494, 546, 299 P.3d 37 (2013). If
one crime furthered another and the time and place of the crimes remained the same, the
defendant’s criminal purpose or intent did not change and the offenses encompass the
13 No. 36998-6-III State v. Lang
same criminal conduct. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992). The
defendant bears the burden of showing that his or her crimes constitute the same criminal
conduct. State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013).
RCW 9A.52.025 governs the crime of residential burglary. The statute declares:
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.
Former RCW 9A.56.030 governed first degree theft at the time Travis Lang
committed the offense. LAWS OF 1995, ch. 129, § 11. The former statute provided:
(1) A person is guilty of theft in the first degree if he or she commits theft of: (a) Property or services which exceed(s) one thousand five hundred dollars in value other than a firearm as defined in RCW 9.41.010; or (b) Property of any value other than a firearm as defined in RCW 9.41.010 taken from the person of another.
Former RCW 9A.56.030 (LAWS OF 1995, ch. 129, § 11).
Travis Lang’s PSI report details some facts of Travis Lang’s prior offenses of
residential burglary and first degree theft. Lang committed the offenses on February 3,
2002. While watching the 2002 Football Super Bowl, pitting the St. Louis Rams against
the New England Patriots, he and his friends decided to rob someone. The group stole
beer from a house’s back porch, entered the residence, and stole firearms and other
property from inside the home.
14 No. 36998-6-III State v. Lang
As Travis Lang argues, both crimes occurred at the same time and place, the
dwelling from which Lang and his friends stole property on the day of the 2002 Super
Bowl. Lang asserts that he victimized the same individual while committing both crimes,
the person who owned the residential dwelling Lang entered and from whom he stole
property. We conclude that Lang probably victimized the same person or persons during
both crimes. The record does not indicate, however, for certainty the identities of the
victim or victims. Nonetheless, the State, however, does not contradict that the victims
remained the same. Finally, both of Lang’s offenses involved the same intent or criminal
objective. He objectively intended to take property from another. He accomplished this
purpose by entering another person’s dwelling to take property from within. The
burglary furthered the theft.
The State contends that Travis Lang bases his description of the crime on
speculation and assumption that the limited record contradicts. The State maintains that,
based on Lang’s statement, he and his friends decided to “go out and rob someone.” CP
at 81 (emphasis added). Thus, according to the State, Lang intended to commit robbery,
not burglary. The State theorizes that Lang could have entered the dwelling in search of
a specific victim, found nobody, and then decided to steal the homeowner’s firearms and
other property rather than rob a victim.
We conclude that the State’s, not Travis Lang’s, factual narratives constitute
speculation. The State did not at sentencing, nor does it now, dispute the accuracy of the
15 No. 36998-6-III State v. Lang
PSI’s facts regarding Travis Lang’s prior offenses. The State cites no authority holding
that a same criminal conduct analysis may not be conducted based on facts contained in a
PSI. Although Lang stated the group first decided to “rob” someone, he was not
convicted of robbery, but rather of burglary and theft. Moreover, the term “rob” is often
used in nonlegal terms to describe what is legally known as a theft.
In a footnote, the State argues that any offender score miscalculation favored
Travis Lang. The State reasons that, because Lang was serving community supervision
at the time of the murder, he should have received one point toward his offender score.
Thus, Lang was not prejudiced by any error of defense counsel. Lang responds that the
State’s argument should not be considered, because it inserts the contention in a footnote.
Even if this court were to consider it, however, Lang maintains that the State fails to
recognize that “community supervision” under the Juvenile Justice Act does not equate to
“community placement” under the SRA.
In State v. N.E., 70 Wn. App. 602, 606 n.3, 854 P.2d 672 (1993), this court refused
to address N.E.’s argument because N.E. raised the argument in a footnote. In State v.
Johnson, 69 Wn. App. 189, 194 n.4, 847 P.2d 960 (1993), this court also declined to
address an issue asserted in a footnote. We follow State v. N.E. and State v. Johnson and
decline to entertain the State’s assertion.
16 No. 36998-6-III State v. Lang
Invited Error
The State requests that this court apply the invited error doctrine and decline to
entertain Travis Lang’s contention that his two earlier convictions constitute the same
criminal conduct. The invited error rule precludes a party from creating an error at trial
and then challenging that same error on appeal. In re Personal Restraint of Coggin, 182
Wn.2d 115, 119, 340 P.3d 810 (2014). The doctrine bars a criminal defendant’s
challenge even when the alleged error involves constitutional rights. State v. Mullen, 186
Wn. App. 321, 326, 345 P.3d 26 (2015), abrogated on other grounds by State v. Wu, 194
Wn.2d 880, 453 P.3d 475 (2019). In determining whether the invited error doctrine
applies, courts have “considered whether a defendant affirmatively assented to the error,
materially contributed to it, or benefitted from it.” State v. Momah, 167 Wn.2d 140, 154,
217 P.3d 321 (2009). When a sentence is contrary to law, the accused may challenge that
sentence for the first time on appeal on the basis that it is contrary to the law, but not if
the accused invited the error. State v. Anderson, 92 Wn. App. 54, 61, 960 P.2d 975
(1998).
At sentencing, defense counsel initially argued that Travis Lang’s prior juvenile
offenses for burglary and theft constituted the same criminal conduct. The State argued
that the antimerger statute prohibited the merger of Lang’s burglary and theft offenses
and thus Lang’s offender score should remain at one point, not zero. During a short
17 No. 36998-6-III State v. Lang
recess, defense counsel consulted with cocounsel regarding the offender score issue.
After the break, she stated to the court that, after speaking with cocounsel:
In talking with Mr. Ellis [cocounsel], the one-half and one-half should go properly forward as a one, and they merged at the time for sentencing because they were the same course of conduct, but as points, they’re half and half, so.
RP at 9 (emphasis added). The resentencing court deemed defense counsel’s confusing
comments as a stipulation that Lang’s offender score should be calculated at one point,
resulting in a standard range of 250-333 months. The court’s understanding of counsel’s
remarks is reasonable.
We disagree with Travis Lang that defense counsel did not accept the State’s
antimerger argument at resentencing. Defense counsel concluded that both of Lang’s
prior offenses constituted “the same course of conduct.” RP at 9. Nevertheless, she
stipulated that Lang’s offender score should be calculated at one point. Defense
counsel’s stipulation invited the resentencing court’s error in not performing a same
criminal conduct analysis. But for the stipulation, the resentencing court would have
performed the analysis.
Travis Lang contends that he cannot waive a legal error at sentencing. A
challenge to a legal error cannot be waived, because a defendant cannot empower a
sentencing court to exceed its statutory authorization. State v. Wilson, 170 Wn.2d 682,
18 No. 36998-6-III State v. Lang
689, 244 P.3d 900 (2010). Nevertheless, the invited error doctrine operates distinctly
from waiver.
Ineffective Assistance of Counsel
To avoid the invited error doctrine, Travis Lang astutely asserts that resentencing
defense counsel provided ineffective assistance by stipulating to calculating Lang’s
offender score at one, when it should have been calculated at zero. The invited error
doctrine does not bar review of a claim of ineffective assistance of counsel. State v.
Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996).
The federal and state constitution’s guarantee effective assistance of counsel. U.S.
CONST. amend. VI; WASH. CONST. art. I § 22; Strickland v. Washington, 466 U.S. 668,
685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 229,
743 P2d 816 (1987). The right to assistance of counsel attaches to every “critical stage”
of the proceeding. State v. Everybodytalksabout, 161 Wn.2d 702, 708, 166 P.3d 693
(2007). A claim of ineffective assistance of counsel presents an issue of constitutional
magnitude that may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d
856, 862, 215 P.3d 177 (2009).
To prevail on claim of ineffective assistance of counsel, an accused must show (1)
that defense counsel performed deficiently and (2) the deficient representation prejudiced
the defendant. State v. Estes, 193 Wn. App. 479, 488, 372 P.3d 163 (2016), aff’d, 188
Wn.2d 450, 395 P.3d 1045 (2017). Counsel performed deficiently if, after considering all
19 No. 36998-6-III State v. Lang
the circumstances, the performance falls below an objective standard of reasonableness.
State v. Estes, 193 Wn. App. 479, 488 (2016). Prejudice exists on a reasonable
probability that, except for counsel’s errors, the result of the proceeding would have
probably differed. State v. Estes, 193 Wn. App. at 488.
The law carries a strong presumption that defense counsel met the standard of
care. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Criminal
defendants may rebut the presumption of reasonable performance by demonstrating that
no conceivable legitimate tactic excuses counsel’s performance. State v. Grier, 171
Wn.2d 17, 33, 246 P.3d 1260 (2011). Reasonable attorney conduct includes a duty to
investigate the relevant law. State v. Woods, 138 Wn. App. 191, 197, 156 P.3d 309
(2007).
Travis Lang’s trial counsel committed legal error when concluding that Lang’s
prior two offenses constituted the same criminal conduct, but should nevertheless be
scored as one. We expect counsel to be acquainted with recent decisions. In 2014,
before the 2019 resentencing, the Washington Supreme Court ruled, in State v. Williams,
181 Wn.2d 795 (2014), that the burglary anti-merger statute did not supersede the SRA’s
more recent directive, in RCW 9.94A.525(5)(a)(i)), that prior convictions encompassing
the same criminal conduct shall be counted as one offense.
As elucidated above, Travis Lang’s prior offenses were probably the same
criminal conduct and should have been counted as one offense, yielding an offender score
20 No. 36998-6-III State v. Lang
of zero. The resentencing record shows no reason why defense counsel stipulated to an
incorrect offender score other than counsel’s mistaken agreement with the State’s
attorney that the burglary antimerger statute prohibited the two offenses merging and
being the same criminal conduct. Counsel’s concession to the offender score of one fell
below an objective standard of reasonableness.
Resentencing defense counsel’s conduct prejudiced Lang. If not for counsel’s
stipulation to his offender score, the resentencing court would have conducted a same
criminal conduct analysis and probably calculated Lang’s offender score at zero. We
now remand to the resentencing court to perform that analysis and make that final
determination of same criminal conduct.
Resentencing Judge
Travis Lang asserts that the appearance of fairness doctrine warrants reassigning
his resentencing to a new superior court judge. We disagree.
The federal and state constitutions guarantee a criminal defendant’s right to be
tried and sentenced by an impartial court. U.S. CONST. amends. VI, XIV; WASH. CONST.
art. I, § 22; State v. Solis-Diaz, 187 Wn.2d 535, 539, 387 P.3d 703 (2017). The law
requires more than an impartial judge; it requires that the judge also appear to be
impartial, pursuant to the appearance of fairness doctrine. State v. Solis-Diaz, 187 Wn.2d
at 540. A judicial proceeding is valid if a reasonably prudent, disinterested observer
would conclude that the parties received a fair, impartial, and neutral hearing. State v.
21 No. 36998-6-III State v. Lang
Solis-Diaz, 187 Wn.2d at 540. The party asserting a violation of the appearance of
fairness must show a judge’s actual or potential bias. State v. Solis-Diaz, 187 Wn.2d at
540. In determining a judge’s impartiality, this court uses an objective test that assumes a
reasonable observer knows and understands all the relevant facts. State v. Solis-Diaz, 187
Wn.2d at 540.
The party challenging the trial judge’s appearance of fairness may seek
reassignment for the first time on appeal, because, if the appellate court remands for new
sentencing, the trial judge will exercise discretion regarding the very issue that triggered
the appeal. State v. Solis-Diaz, 187 Wn.2d at 540. Nevertheless, reassignment is
generally unavailable as an appellate remedy. State v. McEnroe, 181 Wn.2d 375, 387,
333 P.3d 402 (2014).
The resentencing court performed exemplarily when resentencing Travis Lang.
She followed the rules and even changed her mind when given additional briefing about
concurrent sentences. She wanted to apply a correct offender score and thus questioned
defense counsel about the score. The resentencing court significantly lowered Lang’s
sentence. Nothing in the superior court’s ruling suggests any bias against Lang.
CONCLUSION
We remand to the superior court for resentencing. We direct the resentencing
court to perform the same criminal conduct analysis with the two earlier crimes. Travis
22 No. 36998-6-III State v. Lang
Lang may also forward, at the time of resentencing, the other arguments he raises on
appeal.
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.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ Lawrence-Berrey, J.
______________________________ Pennell, C.J.