State v. Mandefero

• Decision Date: 12 October 2020
• Docket Number: No. 80072-8-I,80072-8-I
• Citation: 473 P.3d 1239,14 Wash.App.2d 825
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Hailu Daniel MANDEFERO, Appellant.

14 Wash.App.2d 825

473 P.3d 1239

STATE of Washington, Respondent,

v.Hailu Daniel MANDEFERO,^† Appellant.

No. 80072-8-I

Court of Appeals of Washington, Division 1.

FILED October 12, 2020

Corey Evan Parker, The Appellate Law Firm, 300 Lenora St. Ste., 900 Seattle, WA, 98121, for Appellant.

Prosecuting Atty. King County, King Co. Pros/App Unit Supervisor, Donna Lynn Wise, W554 King County Courthouse, 516 Third Avenue Seattle, WA, 98104, for Respondent.

PUBLISHED OPINION

MANN, C.J.

¶1 Trial courts do not have the discretion to impose an exceptional sentence downward for firearm enhancements when the offender is not a juvenile at the time they commit the crime. Hailu Mandefero appeals his sentence for assault in the first degree, assault in the second degree, and unlawful possession of a firearm in the second degree, with mandatory firearm weapons enhancements on the assault offenses. In a previous appeal, we affirmed Mandefero's convictions but remanded for resentencing. Mandefero asserts that the sentencing court erred by (1) determining that it could not consider his youth with regard to the firearm enhancements, (2) refusing to meaningfully consider his youth with regard to the sentences imposed for assault in the second degree and unlawful possession of a firearm, and (3) demonstrating a lack of impartiality that deprived him of due process. We affirm.

I.

¶2 On May 1, 2012, Mandefero shot Jaebrione Gary multiple times as Gary sat in his car outside Ezell's Chicken in Skyway. Shots fired by Mandefero and his accomplice went through the windows of the Ezell's Chicken building where employees were working, including Sandra Torres, who felt bullets pass near her head. Gary identified Mandefero as the shooter. Gary believed Mandefero shot him because two weeks prior he had ripped a gold chain off Mandefero's neck in front of a group of people and bragged about it to his friends.

¶3 A jury found Mandefero guilty of assault in the first degree of Gary with a firearm enhancement, assault in the second degree of Torres with a firearm enhancement, and unlawful possession of a firearm in the first degree. The trial court imposed a low end standard range sentence of 120 months on the assault in the first degree count, 17 months on the assault in the second degree count, and 12 months on the unlawful possession of a firearm count, plus 2 mandatory firearm weapons enhancements for 60 and 36 months. The sentences on the 3 counts ran concurrently, and the firearms enhancements ran consecutive to the other sentences and to each other. Although Mandefero was 18 years old when he committed the crimes, the trial court did not consider Mandefero's youth as a mitigating factor for an exceptional sentence downward because it believed it lacked the discretion to do so.

¶4 After his convictions were affirmed on direct appeal, Mandefero filed a personal restraint petition asserting, among other claims, that the trial court erred in failing to consider his request for an exceptional sentence downward because of his youth. The State conceded that resentencing was appropriate. Accordingly, this court remanded for resentencing and dismissed Mandefero's remaining claims.

¶5 A resentencing hearing took place on May 24, 2019. Mandefero requested an exceptional downward sentence of 96 months based on his youth and the traumatic impact of his involvement with gang violence. Two community members spoke in support of Mandefero's request. The State requested that the court reimpose the original sentence, noting that the crime was premeditated and not the result of youthful impulsiveness. The State also argued that a psychological evaluation obtained by Mandefero prior to the resentencing hearing showed that he was still a danger to the community.

¶6 The court reviewed the factors it considered regarding Mandefero's youth as a potential mitigating factor. The court noted that Mandefero, who was almost 19 at the time of the offense, was not "markedly immature." The court further noted that the shooting was calculated and premeditated, that there was no evidence Mandefero was pressured into it, and that Mandefero had not shown genuine remorse. The court did, however, see a connection between Mandefero's youth and the recklessness of his behavior. The court concluded that this factor was mostly connected to the first degree assault, somewhat connected to the second degree assault, and not at all connected to the firearm possession charge. The court also noted that the second degree assault offense involved multiple victims and constituted "egregious behavior." Accordingly, the court imposed an exceptional downward sentence for the first degree assault charge but not the other two charges. The court stated that the firearm enhancements on both assault convictions are mandatory and run consecutive to each other. It entered findings of fact and conclusions of law supporting the sentence.

¶7 Mandefero now appeals the resentencing court's decision.

II.

¶8 Mandefero argues that the trial court erred in concluding that it lacked discretion to consider his youth with regard to the mandatory firearms weapon enhancements. We disagree.

¶9 RCW 9.94A.535 permits a court to impose an exceptional sentence below the standard range if "substantial and compelling reasons [justify] an exceptional sentence" and "mitigating circumstances are established by a preponderance of the evidence." However, RCW 9.94A.533(3)(e) provides that "[n]otwithstanding 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 State v. Brown, our Supreme Court held that this "absolute language" deprives a sentencing court of discretion to impose an exceptional sentence regarding deadly weapon enhancements. 139 Wash.2d 20, 29, 983 P.2d 608 (1999) overruled on other grounds by Houston-Sconiers, 188 Wash.2d 1, 391 P.3d 409 (2017).

¶10 In the 21 years since Brown was decided, the legislature has chosen not to amend this statutory language with respect to adult offenders. It did recently amend RCW 9.94A.533 to allow courts "full discretion to depart from mandatory sentencing enhancements and to take the particular circumstances surrounding the defendant's youth into account"—but only for juveniles. Laws of 2020, ch. 141, § 1. "This court presumes that the legislature is aware of judicial interpretations of its enactments and takes its failure to amend a statute following a judicial decision interpreting that statute to indicate legislative acquiescence in that decision." State v. Otton, 185 Wash.2d 673, 685-86, 374 P.3d 1108 (2016) (quoting City of Federal Way v. Koenig, 167 Wash.2d 341, 348, 217 P.3d 1172 (2009) ).

¶11 Relying primarily on Houston-Sconiers, State v. O'Dell, 183 Wash.2d 680, 358 P.3d 359 (2015), and State v. McFarland, 189 Wash.2d 47, 399 P.3d 1106 (2017), Mandefero asserts that the sentencing court had discretion to consider his youth in deciding whether to impose consecutive firearm enhancement sentences despite the fact that he was not a juvenile when he committed the crimes. Mandefero is incorrect.

¶12 In Houston-Sconiers, the Washington Supreme Court held that the Eighth Amendment requires courts to have "complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant." 188 Wash.2d at 21, 391 P.3d 409 (emphasis added). Thus, Houston-Sconiers overrules Brown only as it applies to juveniles. 188 Wash.2d at 21, 391 P.3d 409. Because Mandefero was almost 19 years old at the time of his offenses, Houston-Sconiers does not apply to him, and Brown controls.

¶13 Mandefero nevertheless contends that this court should disregard Brown and follow Justice Madsen's concurring opinion in Houston-Sconiers and hold that the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, "includes the discretion to depart from the otherwise mandatory sentencing enhancements when the court is imposing an exceptional sentence" on any offender. 188 Wash.2d at 34, 391 P.3d 409. But because "a decision by the Washington Supreme Court is binding on all lower courts of the state ... [t]his court does not have the authority to overrule Brown." State v. Brown, 13 Wash. App. 2d 288, 291, 466 P.3d 244 (2020) (citing State v. Gore, 101 Wash.2d 481, 487, 681 P.2d 227 (1984) ).

¶14 Mandefero's reliance on O'Dell and McFarland is also unavailing. In O'Dell, the Washington Supreme Court recognized that "age may well mitigate a defendant's culpability, even if that defendant is over the age of 18." 183 Wash.2d at 695, 358 P.3d 359. The court therefore remanded for a new sentencing hearing to consider whether O'Dell’s youth mitigated his culpability and justified an exceptional downward sentence. 183 Wash.2d at 683, 358 P.3d 359. But O'Dell did not address a downward departure from mandatory sentencing enhancements for adult offenders. And in McFarland, the Washington Supreme Court held that RCW 9.94A.535 and .589(1)(c) permit the court to impose exceptional concurrent sentences for firearms related convictions. 189 Wash.2d at 54-55, 399 P.3d 1106. But the McFarland court expressly distinguished firearm enhancements from firearms convictions and noted that RCW 9.94A.533 requires that enhancements be served consecutively. 189 Wash.2d at 55, 399 P.3d 1106. Neither case provides a basis for departing from the Washington Supreme Court's ruling in Brown.

III.

¶15 Mandefero next asserts that the trial court erred in failing to meaningfully consider his youth with regard to resentencing him to standard range sentences on the offenses of assault in the second degree and unlawful possession of a firearm. The record does not support this claim.

¶16 The SRA provides that a standard range sentence "shall not be appealed." RCW 9.94A.585(1). "However, this prohibition does not bar a party's right...