IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 80139-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION TYLER JORDAN KEENER,
Appellant.
DWYER, J. — Tyler Keener appeals from his conviction for robbery in the
first degree. Keener, who was 24 years old when he committed the crime,
contends that remand for resentencing is required because the sentencing court
failed to sua sponte consider whether Keener’s youthfulness justified an
exceptional mitigated sentence. Keener further contends that defense counsel’s
failure to request an exceptional sentence on the basis of youthfulness
constituted ineffective assistance. Finding no error, we affirm.
I
On November 19, 2017, Shanita Stewart-Burrell drove to a Safeway
parking lot in Auburn to meet Kendrick Kwok and buy a car stereo from him.
When she arrived, Keener was with Kwok. Stewart-Burrell knew Kwok as a
friend of her husband’s but she had never met Keener. Kwok told Stewart-Burrell
that he needed to return home to pick up the stereo. The two men got into
Stewart-Burrell’s car, and Kwok directed her to drive to F Street in Auburn. Kwok No. 80139-2-I/2
and Keener exited the car, and Stewart-Burrell stayed in the car waiting for them.
After some time, Kwok and Keener returned without the stereo. Kwok got into
the passenger seat and Keener got in the back seat behind Stewart-Burrell.
Keener grabbed Stewart-Burrell, put a gun to her head, and said, “Give me the
money. Give me everything.”1 Keener directed Kwok to take Stewart-Burrell’s
money and keys. Kwok was unable to pull the keys from the ignition. Stewart-
Burrell, fearing she would never see her children again, removed the keys and
tossed them. Kwok grabbed the keys and the two men fled down an alley.
Stewart-Burrell called 911. She gave police Kwok’s name and, after
describing Keener to her husband, he provided Keener’s name and photograph.
Shortly afterward, police discovered Keener and Kwok hiding in the storage
space beneath the mattress of a nearby motorhome. Police arrested both men
and recovered Stewart-Burrell’s keys. Keener told police that he and Kwok were
going through heroin withdrawal and that they planned in advance to commit the
crime.
The State charged Keener with one count of robbery in the first degree. A
jury found Keener guilty as charged. Based on an offender score of zero, Keener
faced a standard range sentence of 31 to 41 months. Defense counsel
submitted a sentencing memorandum asking the court to impose a low-end
standard range sentence of 31 months. In support of this request, defense
counsel noted that Keener was a heroin addict with no history of violence who
was 24 when he committed the robbery. Citing State v. O’Dell, 183 Wn.2d 680,
1 The gun used in the crime was in fact a BB gun that looked like a real handgun.
2 No. 80139-2-I/3
358 P.3d 359 (2015), defense counsel asserted that “the brains of young men
are often underdeveloped until they are in their middle-twenties” and that
“youthful offenders are fundamentally different from adults.” Keener submitted a
written statement taking responsibility for his actions and acknowledging that he
is a drug addict in need of treatment. Keener also expressed concern that he
would be exposed to as many drugs in prison as he would on the street.
At the sentencing hearing, the court acknowledged that Keener had
accepted responsibility for his actions and agreed that he needs treatment for his
drug addiction. The court also noted that Keener was not eligible for certain
sentencing alternatives due to the violent nature of his crime. The court imposed
a low end standard range sentence of 31 months as defense counsel requested.
Keener appeals.
II
Keener contends that the sentencing court erred by failing to sua sponte
recognize and exercise its discretion to impose an exceptional mitigated
sentence based on his youth. We disagree.
The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides that a
standard range sentence “shall not be appealed.” RCW 9.94A.585(1). However,
“this rule does not preclude a defendant from challenging on appeal the
underlying legal determinations by which the sentencing court reaches its
decision.” State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). “A trial
court errs when ‘it refuses categorically to impose an exceptional sentence below
the standard range under any circumstances’ or when it operates under the
3 No. 80139-2-I/4
‘mistaken belief that it did not have the discretion to impose a mitigated
exceptional sentence for which [a defendant] may have been eligible.’”
McFarland, 189 Wn.2d at 56 (alteration in original) (quoting State v. Garcia-
Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)).
Keener relies primarily on O’Dell and McFarland. In O’Dell, the
Washington Supreme Court held that a defendant’s youthfulness is a mitigating
factor that may justify an exceptional sentence below statutory sentencing
guidelines, even when the defendant is a legal adult. 183 Wn.2d at 688-89.
O’Dell had just turned 18 when he was convicted of second degree rape. O’Dell,
183 Wn.2d at 683. Defense counsel asked the court to impose an exceptional
downward sentence below the standard range because O’Dell’s youthfulness
impacted his ability to appreciate the wrongfulness of his conduct. O’Dell, 183
Wn.2d at 685. The court ruled that it could not consider age as a mitigating
circumstance because O’Dell was a legal adult. O’Dell, 183 Wn.2d at 685. The
Washington Supreme Court held that the sentencing court abused its discretion
because it erroneously believed that it could not consider youth as a mitigating
factor and therefore failed to consider whether O’Dell’s youth impacted his
culpability. O’Dell, 183 Wn.2d at 696-97. Similarly, in McFarland, the
Washington Supreme Court remanded for resentencing where the trial court
erroneously stated that it lacked discretion to impose consecutive firearm-related
sentences and the record suggests the possibility that the trial court would have
imposed a different sentence had it understood its discretion to do so. 189
Wn.2d at 58-59.
4 No. 80139-2-I/5
Here, unlike O’Dell and McFarland, nothing in the record indicates that the
sentencing court refused to impose an exceptional mitigated sentence based on
an erroneous belief that it lacked the discretion to do so. Keener argued that the
sentencing court should impose a low end standard range sentence because he
did not have a history of committing violent crimes and because his age and his
heroin addiction impaired his ability to clearly assess the consequences of his
actions. The court agreed and imposed the sentence Keener requested. Neither
party told the court that it could not impose an exceptional sentence, and there is
no indication that the court misunderstood the law.
Nor did the sentencing court express discomfort in sentencing Keener at
the low end of the standard range. The court acknowledged that Keener had
accepted responsibility for his actions, agreed that Keener needed drug
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. 80139-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION TYLER JORDAN KEENER,
Appellant.
DWYER, J. — Tyler Keener appeals from his conviction for robbery in the
first degree. Keener, who was 24 years old when he committed the crime,
contends that remand for resentencing is required because the sentencing court
failed to sua sponte consider whether Keener’s youthfulness justified an
exceptional mitigated sentence. Keener further contends that defense counsel’s
failure to request an exceptional sentence on the basis of youthfulness
constituted ineffective assistance. Finding no error, we affirm.
I
On November 19, 2017, Shanita Stewart-Burrell drove to a Safeway
parking lot in Auburn to meet Kendrick Kwok and buy a car stereo from him.
When she arrived, Keener was with Kwok. Stewart-Burrell knew Kwok as a
friend of her husband’s but she had never met Keener. Kwok told Stewart-Burrell
that he needed to return home to pick up the stereo. The two men got into
Stewart-Burrell’s car, and Kwok directed her to drive to F Street in Auburn. Kwok No. 80139-2-I/2
and Keener exited the car, and Stewart-Burrell stayed in the car waiting for them.
After some time, Kwok and Keener returned without the stereo. Kwok got into
the passenger seat and Keener got in the back seat behind Stewart-Burrell.
Keener grabbed Stewart-Burrell, put a gun to her head, and said, “Give me the
money. Give me everything.”1 Keener directed Kwok to take Stewart-Burrell’s
money and keys. Kwok was unable to pull the keys from the ignition. Stewart-
Burrell, fearing she would never see her children again, removed the keys and
tossed them. Kwok grabbed the keys and the two men fled down an alley.
Stewart-Burrell called 911. She gave police Kwok’s name and, after
describing Keener to her husband, he provided Keener’s name and photograph.
Shortly afterward, police discovered Keener and Kwok hiding in the storage
space beneath the mattress of a nearby motorhome. Police arrested both men
and recovered Stewart-Burrell’s keys. Keener told police that he and Kwok were
going through heroin withdrawal and that they planned in advance to commit the
crime.
The State charged Keener with one count of robbery in the first degree. A
jury found Keener guilty as charged. Based on an offender score of zero, Keener
faced a standard range sentence of 31 to 41 months. Defense counsel
submitted a sentencing memorandum asking the court to impose a low-end
standard range sentence of 31 months. In support of this request, defense
counsel noted that Keener was a heroin addict with no history of violence who
was 24 when he committed the robbery. Citing State v. O’Dell, 183 Wn.2d 680,
1 The gun used in the crime was in fact a BB gun that looked like a real handgun.
2 No. 80139-2-I/3
358 P.3d 359 (2015), defense counsel asserted that “the brains of young men
are often underdeveloped until they are in their middle-twenties” and that
“youthful offenders are fundamentally different from adults.” Keener submitted a
written statement taking responsibility for his actions and acknowledging that he
is a drug addict in need of treatment. Keener also expressed concern that he
would be exposed to as many drugs in prison as he would on the street.
At the sentencing hearing, the court acknowledged that Keener had
accepted responsibility for his actions and agreed that he needs treatment for his
drug addiction. The court also noted that Keener was not eligible for certain
sentencing alternatives due to the violent nature of his crime. The court imposed
a low end standard range sentence of 31 months as defense counsel requested.
Keener appeals.
II
Keener contends that the sentencing court erred by failing to sua sponte
recognize and exercise its discretion to impose an exceptional mitigated
sentence based on his youth. We disagree.
The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides that a
standard range sentence “shall not be appealed.” RCW 9.94A.585(1). However,
“this rule does not preclude a defendant from challenging on appeal the
underlying legal determinations by which the sentencing court reaches its
decision.” State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). “A trial
court errs when ‘it refuses categorically to impose an exceptional sentence below
the standard range under any circumstances’ or when it operates under the
3 No. 80139-2-I/4
‘mistaken belief that it did not have the discretion to impose a mitigated
exceptional sentence for which [a defendant] may have been eligible.’”
McFarland, 189 Wn.2d at 56 (alteration in original) (quoting State v. Garcia-
Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)).
Keener relies primarily on O’Dell and McFarland. In O’Dell, the
Washington Supreme Court held that a defendant’s youthfulness is a mitigating
factor that may justify an exceptional sentence below statutory sentencing
guidelines, even when the defendant is a legal adult. 183 Wn.2d at 688-89.
O’Dell had just turned 18 when he was convicted of second degree rape. O’Dell,
183 Wn.2d at 683. Defense counsel asked the court to impose an exceptional
downward sentence below the standard range because O’Dell’s youthfulness
impacted his ability to appreciate the wrongfulness of his conduct. O’Dell, 183
Wn.2d at 685. The court ruled that it could not consider age as a mitigating
circumstance because O’Dell was a legal adult. O’Dell, 183 Wn.2d at 685. The
Washington Supreme Court held that the sentencing court abused its discretion
because it erroneously believed that it could not consider youth as a mitigating
factor and therefore failed to consider whether O’Dell’s youth impacted his
culpability. O’Dell, 183 Wn.2d at 696-97. Similarly, in McFarland, the
Washington Supreme Court remanded for resentencing where the trial court
erroneously stated that it lacked discretion to impose consecutive firearm-related
sentences and the record suggests the possibility that the trial court would have
imposed a different sentence had it understood its discretion to do so. 189
Wn.2d at 58-59.
4 No. 80139-2-I/5
Here, unlike O’Dell and McFarland, nothing in the record indicates that the
sentencing court refused to impose an exceptional mitigated sentence based on
an erroneous belief that it lacked the discretion to do so. Keener argued that the
sentencing court should impose a low end standard range sentence because he
did not have a history of committing violent crimes and because his age and his
heroin addiction impaired his ability to clearly assess the consequences of his
actions. The court agreed and imposed the sentence Keener requested. Neither
party told the court that it could not impose an exceptional sentence, and there is
no indication that the court misunderstood the law.
Nor did the sentencing court express discomfort in sentencing Keener at
the low end of the standard range. The court acknowledged that Keener had
accepted responsibility for his actions, agreed that Keener needed drug
treatment, and noted that certain sentencing alternatives were not available
because the crime of first degree robbery is a violent offense. The court did not
state or imply that a low-end standard range sentence was inappropriate or
unjust for any reason, including Keener’s age. Although Keener referenced
youthfulness in requesting a lenient standard range sentence, “age is not a per
se mitigating factor” that automatically entitles young defendants to an
exceptional sentence downward. O’Dell, 183 Wn.2d at 695. Given that Keener
was 24 when he committed the crime, significant evidence of lack of maturity
would be needed to reasonably establish that an exceptional sentence was
warranted on this basis. Under these circumstances, the sentencing court did
5 No. 80139-2-I/6
not abuse its discretion by failing to sua sponte consider imposing an exceptional
downward sentence based on youthfulness.
III
Keener further argues that he received ineffective assistance of counsel at
sentencing when his attorney failed to expressly request an exceptional
downward sentence based on the mitigating factor of youth under O’Dell. We
disagree.
We review claims of ineffective assistance of counsel de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of
ineffective assistance of counsel, the defendant must show both (1) that defense
counsel’s representation was deficient and (2) that the deficient representation
prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260
(2011). The first prong is met by a defendant showing that the performance falls
below an objective standard of reasonableness. Grier, 171 Wn.2d at 33. There
is a strong presumption that counsel’s representation was effective. State v.
Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). “When counsel’s conduct can
be characterized as legitimate trial strategy or tactics, performance is not
deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). The
second prong is met if the defendant establishes “a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceedings would
have been different.” Kyllo, 166 Wn.2d at 862. If either prong is not satisfied, the
defendant’s claim fails. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987).
6 No. 80139-2-I/7
Keener likens his case to that of the defendant in State v. McGill, 112 Wn.
App. 95, 47 P.3d 173 (2002). In McGill, defense counsel failed to cite controlling
case law and use it to request an exceptional downward sentence. McGill, 112
Wn. App. at 97. The trial court stated that it had “no option but to sentence
[McGill] within the [standard] range” and imposed a low end sentence. McGill,
112 Wn. App. at 99. This court held that McGill received ineffective assistance
where defense counsel failed to cite controlling precedent and the trial court
“erroneously believed it could not depart from a standard range sentence even
though it expressed a desire to do so.” McGill, 112 Wn. App. at 97.
Here, unlike McGill, defense counsel properly cited controlling authority
that would have supported a request for an exceptional downward sentence. But
even if defense counsel’s decision to cite O’Dell in support of a low-end standard
range sentence rather than an exceptional downward sentence could be
characterized as deficient performance, we cannot on this record say that it was
prejudicial. At age 24, Keener was well into adulthood, and the evidence in the
record indicated that his crime was motivated by his need to support his long-
time heroin addiction rather than mere youthful immaturity. Also unlike McGill,
the sentencing court did not expressly determine that it did not have the
discretion to impose an exceptional downward sentence and did not express a
desire to do so. Rather, the court accepted defense counsel’s argument that
Keener deserved a lenient standard range sentence for multiple reasons.
Although it is theoretically possible that the sentencing court would have given
Keener a different sentence had his attorney expressly requested an exceptional
7 No. 80139-2-I/8
downward sentence, “mere possibilities do not establish a prima facie showing of
actual and substantial prejudice.” In re Pers. Restraint of Meippen, 193 Wn.2d
310, 317, 440 P.3d 978 (2019). Because Keener has not demonstrated
prejudice, his ineffective assistance claim fails.
Affirmed.
WE CONCUR: