State v. Brown
| Decision Date | 18 May 2020 |
| Docket Number | No. 79954-1-I,79954-1-I |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Diondrae BROWN, Appellant. |
Nielsen Koch PLLC, Attorney at Law, Christopher Gibson, 1908 E Madison St., Seattle, WA, 98122, for Appellant.
Prosecuting Atty. King County, King Co. Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
Per Curiam ¶ 1 Diondrae Brown appeals the sentence imposed following his jury conviction on multiple felony counts, several of which carried firearm enhancements. He argues that the sentencing court erred by concluding that it lacked discretion to impose an exceptional sentence downward with regard to the firearm enhancements. Finding no error, we affirm.
¶ 2 A jury convicted Brown of four counts of first degree robbery, one count of attempted first degree robbery, two counts of second degree assault, and one count of attempting to elude a pursuing police vehicle. Five of the convictions included firearm enhancements.
¶ 3 At sentencing, the State recommended a sentence of 381 months. The State's recommendation included a low-end standard range base sentence of 129 months, and five firearm enhancements running consecutively to each other and to the base sentence. Citing his history of substance abuse and mental health issues, Brown requested the sentencing court impose an exceptional sentence below the standard range by ordering the firearm enhancements to be served concurrently.
The sentencing court, relying on State v. Brown, concluded that it lacked the authority to impose concurrent sentences on firearm enhancements. 139 Wash.2d 20, 29, 983 P.2d 608 (1999) (overruled in part by State v. Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017) ). The trial court imposed the State's recommended sentence. Brown appeals.
¶ 4 Brown's sole claim is that he is entitled to resentencing because the sentencing court erroneously believed it lacked the discretion to depart from the required term of confinement for a firearm enhancement. We disagree.
¶ 5 Interpretation of a statute is a question of law we review de novo. State v. Gonzalez, 168 Wash.2d 256, 263, 226 P.3d 131 (2010). Under RCW 9.94A.535, a court may impose an exceptional sentence below the standard range if it finds mitigating circumstances are established by a preponderance of the evidence and substantial and compelling reasons justify an exceptional sentence.
¶ 6 However, RCW 9.94A.533(3)(e) provides that "[n]notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements." In Brown, the Washington Supreme Court held that this statutory language deprives sentencing courts of the discretion to impose an exceptional sentence with regard to firearm enhancements. 139 Wash.2d at 29, 983 P.2d 608.
¶ 7 Brown cites In re Pers. Restraint of Mulholland, to argue that a sentencing court has the discretion to impose concurrent firearm enhancements despite the statutory language requiring them to be served consecutively. 161 Wash.2d 322, 166 P.3d 677 (2007). Mulholland is distinguishable. Mulholland held that RCW 9.94A.535 gives a sentencing court discretion to impose concurrent terms for serious violent offenses, despite the language of RCW 9.94A.589(1)(b), which requires that convictions for serious violent offenses "shall be served consecutively to each other." But RCW 9.94A.535 explicitly allows for a departure from RCW 9.94A.589(1) as an exceptional sentence. RCW 9.94A.533(3)(e), on the other hand, applies "[n]otwithstanding any other provision of law." Mulholland did not address RCW 9.94A.533(3)(e), and is not applicable to Brown's case.
¶ 8 In the alternative, Brown argues, this court should depart from Brown and adopt the reasoning in Justice Madsen's concurring opinion in Houston-Sconiers, which...
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