In re Ross
| Decision Date | 14 March 2022 |
| Docket Number | 83436-3-I |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint of AZARIAH ROSS, Petitioner. |
UNPUBLISHED OPINION
A jury convicted Azariah Chenaz Ross of 16 felony crimes that he committed just after his 18th birthday. The court sentenced Ross to 564 months of confinement. In this personal restraint petition (PRP), the parties agree that we must remand several of Ross' convictions because the sentences exceed the statutory maximum penalty. But Ross argues that we should remand to resentence him on all of his convictions because he did not receive effective assistance of counsel. According to Ross, his attorney performed deficiently because she did not make legal argument or provide a factual basis to support her request for an exceptional sentence downward based on Ross' youth. We agree with Ross, grant the petition, and remand for resentencing.
Ross and several other young men committed a string of home invasion robberies in 2012. Ross turned 18 years old soon after the first robbery.[1] The State charged Ross with 52 crimes and the case went to jury trial in 2015.
The jury returned its verdict on September 1, 2015. It was unable to reach a verdict on several counts, and the court declared a mistrial as to those charges.[2] The jury also acquitted Ross of 4 charges, but convicted him of 16 crimes-3 counts of first degree robbery, 2 counts of first degree burglary, 6 counts of unlawful imprisonment, 1 count of theft of a firearm, and 4 counts of first degree trafficking in stolen property. The jury also found 11 firearm sentencing enhancements by special verdict.
Ross was 21 years old by the time the court sentenced him on October 12, 2015. The court calculated his offender score as "9+" for each offense. The standard range for each robbery conviction was 129 to 171 months plus a 60-month firearm enhancement. The standard range for each burglary conviction was 87 to 116 months plus a 60-month firearm enhancement. The standard range for each unlawful imprisonment conviction was 51 to 60 months plus an 18-month firearm enhancement. And the standard range for each trafficking in stolen property conviction was 63 to 84 months.[3]
Two of the robbery victims addressed the court at Ross' sentencing hearing. The State recommended the court impose high-end sentences on all counts because some of the crimes would go unpunished due to the multiple current offenses and Ross' high offender score.[4] It did not seek an exceptional sentence upward because it recognized that the mandatory firearm enhancements were extensive.
The defense asked the court to depart from the standard range and impose an exceptional sentence downward. Counsel asked the court to sentence Ross to serve only the mandatory 408 months of firearm enhancements. In support of her request, defense counsel argued the firearm enhancements alone were extensive and several outstanding charges remained that the State intended to retry. She also noted that "Mr. Ross was a young man when this happened," and that he was suffering from a "serious chemical dependency."[5] Defense counsel provided no further argument in support of her request based on Ross' "young" age. The court noted that it could "see [Ross] has family members here" and asked defense counsel if anyone "wish[ed] to address the Court on behalf of the defendant." Counsel said "No."
The court imposed high-end concurrent sentences on all but the first degree robbery counts, including 60-month terms for each unlawful imprisonment conviction. On the robbery convictions, the court imposed middle-range sentences of 156 months. Combined with the firearm enhancements, the court sentenced Ross to a total term of 564 months' confinement.
Division Two of our court considered and rejected Ross' claims of error, which were unrelated to this PRP, on direct appeal. State v. Ross, No. 48321-1-II (Wash.Ct.App. Mar. 20, 2018) (unpublished), https://www.courts.wa.gov/ opinions/pdf/D2%2048321-1-II%20Unpublished%20Opinion.pdf. He then timely filed this PRP.
The parties agree that we must remand several of Ross' convictions for resentencing because the sentences exceed the statutory maximum penalties. But Ross argues that we should remand to resentence him on all of his convictions because his trial lawyer performed deficiently in seeking an exceptional sentence downward based on his youth without providing legal or factual support.[6] The State contends Ross' ineffective assistance of counsel claim is moot because the trial court has discretion on remand to determine whether to resentence Ross for the remaining counts. Alternatively, the State asserts Ross received effective representation at his sentencing hearing. We agree with Ross.
Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). A petitioner may seek relief through a PRP when he is under unlawful restraint. RAP 16.4(a); In re Pers. Restraint Petition of Cashaw, 123 Wn.2d 138, 148-49, 866 P.2d 8 (1994). A personal restraint petitioner must prove either a constitutional error that results in actual and substantial prejudice by a preponderance of the evidence or nonconstitutional error that" 'constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" In re Pers. Restraint Petition of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004) (quoting In re Pers. Restraint Petition of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990)).
Ross and the State agree that Ross' sentences for unlawful imprisonment exceed the statutory maximum penalty for those crimes. We review de novo whether a sentence is legally erroneous. State v. Dyson, 189 Wn.App. 215, 224, 360 P.3d 25 (2015).
Ross' six convictions for unlawful imprisonment are all class C felonies. RCW 9A.40.040(2). The statutory maximum for a class C felony is 60 months. RCW 9A.20.021(1)(c). Here, the trial court imposed a sentence of 60 months on each unlawful imprisonment count, but it also imposed an 18-month firearm enhancement and 12 months of community custody for a total sentence of 90 months per conviction.
RCW 9.94A.533(3)(g) requires the court to reduce a base sentence if adding a firearm enhancement extends the total sentence above the statutory maximum. And RCW 9.94A.701(10) requires that the court reduce the community custody term "whenever an offender's standard range term of confinement in combination with the term of community custody exceeds the statutory maximum for the crime." State v. Boyd, 174 Wn.2d 470, 472, 275 P.3d 321 (2012) (citing former RCW 9.94A.701(9) (2010)). We agree with the parties that Ross' sentences for unlawful imprisonment exceed the statutory maximum penalty and remand for resentencing on those counts.
Still Ross argues that the trial court should resentence him on all of his convictions because his lawyer was ineffective at the sentencing hearing. According to Ross, his lawyer asked the court to impose an exceptional sentence downward based on his youth but failed to support the request with legal authority or a factual basis. The State contends that the issue is moot or, in the alternative, that counsel did not perform deficiently.
An ineffective assistance of counsel claim presents mixed questions of law and fact that we review de novo. State v. K.A.B., 14 Wn.App. 2d 677, 707, 475 P.3d 216 (2020) (citing State v. Linville, 191 Wn.2d 513, 518, 423 P.3d 842 (2018)). The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To establish ineffective assistance of counsel, Ross must show that (1) defense counsel's conduct was deficient and that (2) the deficient performance resulted in prejudice. Grier, 171 Wn.2d at 32-33. A. Mootness
The State argues that Ross' ineffective assistance of counsel claim is moot because if we remand for resentencing on the unlawful imprisonment counts, the trial court will then have discretion to conduct a full resentencing.
As a general rule, we do not consider moot cases. State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012)." 'A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights.'" State v. Sansone, 127 Wn.App. 630, 636, 111 P.3d 1251 (2005) ). But a case is not moot if the court can still provide effective relief. State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983).
A trial court has discretion on remand to revisit issues that were not the subject of an earlier appeal. State v. Kilgore, 167 Wn.2d 28, 42, 216 P.3d 393 (2009). But an appellate court's mandate can limit the scope of a trial court's discretion to resentence on remand. Kilgore, 167 Wn.2d at 42. If the remand mandate does not limit the trial court to only ministerial corrections, the court may conduct a full resentencing. State v. Toney, 149 Wn.App. 787, 792-93, 205 P.3d 944 (2009). But if we determine that Ross is entitled to a full resentencing, the trial court must resentence him. See State v. Stein, 140 Wn.App. 43, 55, 165 P.3d 16 (2007) (). As a result, we can still provide Ross effective relief, and his ineffective assistance of counsel claim is not moot.
B. Deficient Performance
An attorney's performance...
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