State Of Washington, V. Tyrese Brandele Harrison

• Court: Court of Appeals of Washington
• Decided: June 13, 2022
• Docket: 83044-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, ) No. 83044-9-I ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) TYRESE BRANDELE HARRISON, ) ) Appellant. )

CHUNG, J. — In 2011, Tyrese Harrison pleaded guilty to one count each of

second degree murder and unlawful possession of a firearm. The unlawful

possession charge was predicated on prior convictions for drug possession that

are now void under State v. Blake.1 Upon resentencing, the court dismissed the

unlawful possession of a firearm conviction, recalculated Harrison’s offender

score, and imposed a standard range sentence. Harrison claims the trial court

should have considered an exceptional sentence based on youth as a mitigating

factor because he was 22 years old at the time of the crime. The trial court

considered Harrison’s age and found the record lacked evidence of youthfulness

as a mitigating factor. Harrison also raises other claims, including ineffective

assistance of counsel. We affirm.

1 State v. Blake, 197 Wn.2d 170, 195, 481 P.3d 521 (2021). No. 83044-9-I/2

FACTS

In 2009, the State charged 22-year-old Harrison with second degree

murder with a firearm enhancement. Harrison pleaded guilty to second degree

murder and unlawful possession of a firearm predicated on a prior felony drug

possession conviction. The current offenses and history of two convictions for

drug possession resulted in an offender score of three and a sentencing range of

154-254 months. The trial court accepted the guilty plea and subsequently

sentenced Harrison to 204 months. The court entered Harrison’s judgment and

sentence in May 2011.

In 2021, the Washington Supreme Court concluded that the simple drug

possession statute violates due process. State v. Blake, 197 Wn.2d 170, 195,

481 P.3d 521 (2021). As a result of the Court’s ruling in Blake, simple drug

possession convictions are constitutionally invalid and cannot be included when

calculating an offender score. State v. Jennings, 199 Wn.2d 53, 67, 502 P.3d

1255 (2022). Harrison is one of the many defendants who require resentencing

after Blake.

At the resentencing hearing, the State moved to vacate Harrison’s

conviction for unlawful possession of a firearm because it was predicated on the

now void drug possession convictions. The court vacated and dismissed the

charge with prejudice. The parties agreed that Harrison had a recalculated

offender score of 0 and a standard sentencing range of 123 to 220 months. The

State urged the court to re-impose a sentence of 204 months. Harrison asked the

court for a low-end sentence of 123 months due to his youthfulness at the time of

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the crime and the increasing awareness that neurological immaturity and brain

development continue past the teenage years.

When handing down Harrison’s sentence, the court noted that it had

considered the mitigating issues raised by Harrison of “youthfulness, maturity,

the physiological nature of an individual who is in their early 20s or just above

their majority,” and had “listened and carefully considered arguments of counsel

concerning the youthfulness of the defendant at the time of the crime.” The court

then sentenced Harrison to a standard range sentence of 185 months of

incarceration.

Harrison appeals.

ANALYSIS

I. Consideration of Youthfulness in Sentencing

Harrison contends the court was required to consider whether his age at

the time of the offense merited an exceptional sentence below the standard

range. According to Harrison, the court failed to account for his youthfulness and

exercise its full discretion to consider an exceptional sentence. We disagree.

Washington courts recognize that children are different from adults and

that those differences must be considered during sentencing for criminal

offenses. State v. Houston-Sconiers, 188 Wn.2d 1, 18-19, 391 P.3d 409 (2017).

“Differences in brain development mean that children possess lessened

culpability, poorer judgment, and greater capacity for change than adults. To

comply with the Eighth Amendment, courts must consider the mitigating qualities

of youth and have discretion to impose a proportional punishment based on

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those qualities.” In re Pers. Restraint of Ali, 196 Wn.2d 220, 225–26, 474 P.3d

507 (2020), cert. denied sub nom. Washington v. Ali, 141 S. Ct. 1754, 209 L. Ed.

2d 514 (2021). Age may also mitigate culpability for defendants over the age of

18. State v. O’Dell, 183 Wn.2d 680, 695, 358 P.3d 359 (2015).

Under the Sentencing Reform Act (SRA), standard range sentences “shall

not be appealed.” RCW 9.94A.585(1). But a party may challenge the court’s legal

conclusions and determinations that support its sentencing decision. State v.

Mandefero, 14 Wn. App. 2d 825, 833, 473 P.3d 1239 (2020). As a result, a

standard range sentence is reviewable when the court refused to exercise

discretion or relied on an impermissible basis when refusing to impose an

exceptional sentence. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106

(2017). While “age is not a per se mitigating factor automatically entitling every

youthful defendant to an exceptional sentence,” youth can justify a sentence

below a standard range, and, thus, a trial court must be allowed to consider

youth as a mitigating factor. O’Dell, 183 Wn.2d at 695-96. The defendant has the

burden of proving youth as a mitigating factor. State v. Rogers, 17 Wn. App. 2d

466, 476, 487 P.3d 177 (2021).

Defendant’s presentencing report to the trial court prior to the August 2021

resentencing focuses on Harrison’s youth to support a lower sentence. In

addition to discussing the evolving science and case law concerning issues of

culpability for young people, defense counsel specifically highlighted Harrison’s

youth at the time of the crime as compared to his maturation process over the

ensuing years. “Mr. Harrison was twenty-two at the time of this offense. He is

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thirty-three now. Over the last eleven years he has matured in a manner

predicted by the neuroscience.” Counsel noted that Harrison had used his time in

prison to take advantage of treatment and training programs and had been

infraction-free since 2013.

During resentencing, the court explicitly mentioned that defense counsel

had “persuasively raised” the issues of youthfulness and maturity for individuals

just above maturity. Thus, the record shows that the trial court did consider

Harrison’s age at the time of the crime but found evidence of youth as a

mitigating factor to be lacking.

I’d note that counsel has pointed out that the defendant was 22 when he committed that crime. I certainly agree that our law is changing in this area of what is appropriate consideration of youthfulness and sentencing, but I would note that it’s not just that you’re 22 and somehow that doesn’t make it as serious or that a 17-year sentence isn’t appropriate. We have nothing before this Court about this defendant’s particular immaturity or how that impacted or didn’t impact his decision-making at that time or that that makes 17 years an inappropriate sentence for taking somebody else's life.

The court arrived at this conclusion after listening to a recording of the prior

sentencing hearing, including argument about mitigating factors, as well as

reading victim impact statements, considering Harrison’s statements at both

sentencings, and reviewing court filings. Because Harrison did not produce any

evidence to satisfy his burden of proof for an exceptional sentence based on his

youthfulness, the trial court exercised its discretion to sentence him within the

standard range.

The trial court described the reasoning used to reach the mid-range

sentence. The court noted that the high end of the standard range was 220

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months, which exceeded Harrison’s original sentence of 204 months. Because

the court believed that “increasing the sentence on a Blake resentencing would

constitute a manifest justice,” the court imposed a “self-limitation” of a maximum

sentence of 204 months, which was the sentence the State had requested.

Based on the facts of the case and all the information presented and considered,

the trial court imposed a sentence below the midpoint and proportionately lower

within the self-limited range (123 to 204 months) than the original sentence.

A court’s discretion to impose an exceptional sentence based on youth as

a mitigating factor includes the discretion to decline to do so. See In re Pers.

Restraint of Meippen, 193 Wn.2d 310, 316-17, 440 P.3d 978 (2019) (trial court

considered youth and, nevertheless, imposed top-end standard range sentence).

Here, the record is clear that the court did consider youthfulness, although it

ultimately declined to depart downward. Therefore, we affirm the trial court’s

standard range sentence.

II. Credit for Time Served

Defendants are entitled to credit for all time served in confinement on a

criminal charge whether that time is before or after sentencing. State v. Enriquez-

Martinez, 198 Wn.2d 98, 101, 492 P.3d 162 (2021). This includes time spent in

custody in another state. Enriquez-Martinez, 198 Wn.2d at 101; State v. Brown,

55 Wn. App. 738, 757, 780 P.2d 880 (1989). Harrison requests remand to the

trial court to determine his entitlement to credit for time served after his arrest in

Ohio.

6 No. 83044-9-I/7

Credit for time served is governed by statute. “The sentencing court shall

give the offender credit for all confinement time served before the sentencing if

that confinement was solely in regard to the offense for which the offender is

being sentenced.” RCW 9.94A.505(6). The judgment and sentence states that

Harrison will be given credit for “time served in King County Jail or EHD solely for

confinement under this cause number” as determined by King County Jail and

Department of Corrections (DOC).

Harrison contends that King County Jail and DOC do not have the ability

to determine time served in another state, but does not suggest that they erred in

determining his credit for time served in King County Jail.2 Rather, his principal

complaint appears to be that there is nothing in the record regarding his time

served in Ohio.

Harrison is not foreclosed from challenging the calculation of credit for

time served if he believes it to be incorrect and obtains the requisite

documentation of his time in Ohio. “The jail's calculation of credit for time served

is not independently legally binding. If the jail's calculation is correct, it has the

force of law. If the jail's calculation is erroneous, the law, not the certification,

provides the correct result.” In re Pers. Restraint of Costello, 131 Wn. App. 828,

834, 129 P.3d 827 (2006). At the resentencing, Harrison’s counsel stated he

would look for documentation on the issue of the out-of-state time served. The

2 When an offender is transferred from county jail to DOC, jail administrators

certify the amount of time spent in custody. WAC 137-30-040. If no certification is provided, a correctional records supervisor will send a request to the jail administrator requesting one. WAC 137-30-040(1); WAC 137-30-020.

7 No. 83044-9-I/8

State offered to work with Harrison to ensure that he received the proper credit

for time served. In the event of any problems with determining time served, the

court would consider an agreed order without a hearing or set another hearing to

resolve a dispute if necessary. Yet there is no such documentation of prior time

served in Ohio in the record.3 The trial court did not err when it was never

presented with any documentation of out-of-state time that should have been

credited. Thus, there is no need for this court to remand.

III. Statement of Additional Grounds

Harrison raises several claims in his statement of additional grounds. The

challenges focus on issues relating to his original guilty plea and ineffective

assistance of counsel.

A. Issues related to the Guilty Plea

Harrison asserts claims pertaining to his original plea agreement, including

violation of his speedy trial rights and ineffective assistance of counsel based on

a failure to challenge the sufficiency of the evidence.

A voluntary guilty plea acts as a waiver of the right to appeal. State v.

Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998). A defendant who pleads guilty

retains only a limited right to appeal collateral questions such as the validity of

the statute, sufficiency of the information, and understanding of the nature of the

offense. State v. Cater, 186 Wn. App. 384, 392, 345 P.3d 843 (2015). For any

3 Indeed, there is no reason that Harrison’s counsel cannot seek out such

information and present it to the court, as contemplated at the resentencing hearing. Also, a defendant who is wrongly denied credit for time served may bring a personal restraint petition to request a court to remedy the issue. Costello, 131 Wn. App. at 832.

8 No. 83044-9-I/9

other claims, a defendant must move to withdraw the plea under CrR 4.2(f) (prior

to entry of judgment) or CrR 7.8(b) (after entry of judgment).

Because Harrison pleaded guilty and did not move to withdraw his plea,

challenges related to the original plea agreement are not properly before us for

review.

B. Ineffective Assistance of Counsel

Harrison argues he received ineffective assistance of counsel at

resentencing and on appeal. Harrison’s claims of ineffective assistance relate to

his counsel’s failure to argue the issues raised by his numerous pro se motions

that were pending before the trial court. For a successful claim of ineffective

assistance of counsel, a defendant must establish both objectively deficient

performance and resulting prejudice. State v. Emery, 174 Wn.2d 741, 754-55,

278 P.3d 653 (2012). Courts apply a strong presumption of effective

representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

1. Ineffective Assistance Claim Regarding Counsel at Resentencing

First, Harrison contends that counsel was ineffective for failing to inform

the court at the resentencing hearing of a pending motion to arrest judgment and

requests for an evidentiary hearing and for discovery. Harrison himself attempted

to raise the pending motion to arrest judgment during resentencing. The court

acknowledged Harrison’s outstanding motions but declined to consider them

during the resentencing. The court stated, “those motions may have a hearing on

a different date, but. . . [t]oday, the only issue in front of this Court is the

resentencing.” Given the court’s clear decision to limit the proceedings solely to

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resentencing, counsel’s failure to address the additional motions was not

deficient.

Harrison also argues that counsel should have moved to dismiss the

second degree murder conviction after dismissal of the unlawful possession of a

firearm charge. According to Harrison, unlawful possession of a firearm is “a

material element and in the context of finality, we treat the judgment of conviction

as one unit, rather than separately considering the judgment’s components.”

However, unlawful possession of a firearm is not a material element of second

degree murder.

“[A] person can commit the crime of intentional murder in the second

degree in violation of RCW 9A.32.050(1)(a), or felony murder with assault as the

underlying felony in violation of RCW 9A.32.050(1)(b).” State v. Lizarraga, 191

Wn. App. 530, 564, 364 P.3d 810 (2015). Here, the State charged Harrison with

intentional murder under RCW 9A.32.050(1)(a). The unlawful possession of a

firearm charge was not a predicate for the second degree murder charge, but

rather, a separate count. Dismissal of the firearm charge had no bearing on

Harrison’s conviction for intentional second degree murder. Therefore, counsel

was not deficient for failing to request dismissal of the second degree murder

conviction.

2. Ineffective Assistance Claim Regarding Appellate Counsel

Harrison also alleges his appellate counsel was ineffective on several

grounds. As with his claims of ineffective assistance by his counsel at

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resentencing, these claims relate to the failure to argue the issues raised in his

motions before the trial court that were unrelated to resentencing.

First, Harrison claims appellate counsel abandoned issues related to his

arraignment, sufficiency of the evidence, and ineffective assistance of trial

counsel for failure to file motions based on insufficient evidence. Because these

issues pertain to the underlying guilty plea, which is not at issue in this appeal,

appellate counsel’s omission of these claims was not deficient.

Harrison also argues, “Considering this appellate counsel is familiar with

an arrest of judgment process and Harrison has two CrR 7.4 motions pending

clearly shows the unwillingness to provide adequate counsel.” As discussed

above, the trial court clearly limited the proceedings to resentencing. Harrison’s

pending motions were not before the trial court and are not before us on appeal.

Appellate counsel was not deficient for failing to raise any issues related to

additional motions.

Harrison’s frustrations with both his counsel’s and the trial court’s failure to

address his various pro se motions are clear. However, the sole purpose of the

trial court proceedings on August 13, 2021, was to consider the State’s motion to

resentence Harrison pursuant to the Blake decision. As the trial court explained,

Harrison was allowed to speak at the resentencing as an exercise of his right to

allocution, not to argue his unrelated pro se motions.4 The fact that the court did

not address the other motions is not a reflection on the merit of any of these

4 The right of allocution is guaranteed by RCW 9.94A.500(1) and provides a

defendant the right to make arguments as to the sentence to be imposed. See State v. Ellison, 186 Wn. App. 780, 784, 346 P.3d 853 (2015).

11 No. 83044-9-I/12

motions; rather, they were not before the trial court at that particular proceeding.

As a result, they are also not before us on appeal, so we cannot provide a

remedy for his claims in those motions.

Affirmed.

WE CONCUR: