State v. Harrison, 83044-9-I

CourtCourt of Appeals of Washington
Writing for the CourtChung, J.
Decision Date13 June 2022
Docket Number83044-9-I



No. 83044-9-I

Court of Appeals of Washington, Division 1

June 13, 2022


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.



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


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.


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


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


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...

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