State v. Thomas, 82677-8-I

CourtCourt of Appeals of Washington
Writing for the CourtBOWMAN, J.
PartiesSTATE OF WASHINGTON, Respondent, v. SUSNIOS, THOMAS, DOB: 11/24/1994, Appellant.
Docket Number82677-8-I
Decision Date13 June 2022

STATE OF WASHINGTON, Respondent,
v.

SUSNIOS, THOMAS, DOB: 11/24/1994, Appellant.

No. 82677-8-I

Court of Appeals of Washington, Division 1

June 13, 2022


UNPUBLISHED OPINION

BOWMAN, J.

Thomas Susnios appeals his standard-range sentence, arguing the court improperly commented on race and failed to consider meaningfully his request for an exceptional sentence down. The record does not support his claims. Susnios also argues the sentencing court erroneously imposed a 60-month mandatory minimum term of confinement and supervision fees. We agree and remand for the court to strike those provisions from Susnios' judgment and sentence.

FACTS

Susnios is a young Black man who suffers from schizophrenia. One morning in January 2019, Susnios texted his mother like he did most days to tell her that he was driving to attend a prayer service. But, instead, he drove to the Everett Police Department South Precinct parking lot and purposefully crashed into a patrol car driven by Officer Jared Corson. After the collision, Officer Corson and Susnios got out of their cars and Susnios started screaming at Officer Corson.

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Officer Ryan Greely was in his patrol car directly in front of the collision. He also got out of his car and approached Susnios. Susnios struck Officer Greely and repeatedly yelled," 'I'm going to kill you.'" Officer Greely tackled and arrested Susnios. Police took Susnios to the hospital where he told a nurse he was driving to attend prayer service, but he said nothing about the collision. Susnios did not recall events before the crash or anything about the crash itself.

The State charged 24-year-old Susnios with first degree assault of Officer Corson, first degree malicious mischief, and third degree assault of Officer Greely. Susnios pleaded guilty to both assault charges. His standard-range sentence for the first degree assault was 102 to 136 months. The third degree assault had a standard range of 3 to 8 months.

At sentencing, the State asked the court to impose 120 months. Susnios requested an exceptional sentence below the standard range of 60 months. He asked the court to consider the effect of implicit racial bias, raising concerns that because he is Black, he would receive a longer sentence than a white defendant would in his position. He then argued that his mental illness and his youth were mitigating factors that warranted an exceptional sentence as they significantly impaired his capacity to appreciate the wrongfulness of his conduct. In support of his argument, Susnios submitted a psychological report detailing his mental health history.

The court first addressed Susnios' concern about implicit racial bias. It noted that "when anybody appears in front of me I try as best I can to handle the

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case appropriately, not taking into consideration the color of somebody's skin." The court then stated:

I'd say if anything my sentences probably have been more lenient for people of color than perhaps other people might think they should be because I understand there could be the biases and I take that into account

The court denied Susnios' request for an exceptional sentence downward. It determined that neither Susnios' mental health nor his youth amounted to mitigating factors. The court imposed a 102-month sentence with a 60-month mandatory minimum term of confinement for first degree assault and a concurrent 8-month sentence for third degree assault. The court found Susnios indigent and waived discretionary fees.

Susnios appeals.

ANALYSIS

Comment on Race

Susnios claims the trial court improperly considered race at sentencing, "demonstrat[ing] bias" and violating his constitutional right to equal protection and the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We disagree.

The federal constitution prohibits states from making or enforcing any law that denies "to any person within its jurisdiction the equal protection of the laws." U.S. Const., amend. XIV, § 1. Similarly situated persons should receive like treatment under the law. State v. Osman, 126 Wn.App. 575, 581-82, 108 P.3d 1287 (2005), aff'd, 157 Wn.2d 474, 139 P.3d 334 (2006). As a result, courts must not impose sentences based on a defendant's race. Buck v. Davis, U.S., 137 S.Ct. 759, 778, 197 L.Ed.2d 1 (2017). "Relying on race to impose a criminal

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sanction 'poisons public confidence' in the judicial process" and "injures not just the defendant, but 'the law as an institution, . . . the community at large, and . . . the democratic ideal reflected in the processes of our courts.'" Buck, 137 S.Ct. at 778[1] (quoting Davis v. Ayala, 576 U.S. 257, 285, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015); Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979)). There is no compelling governmental interest in enforcing criminal laws based on race, and doing so violates equal protection. McCleskey v. Kemp, 481 U.S. 279, 291 n.8, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

Similarly, a defendant's race" 'must not enter into the selection of the appropriate sentence'" under the SRA. Osman, 126 Wn.App. at 580 (quoting State v. Roberts, 77 Wn.App. 678, 683, 894 P.2d 1340 (1995)). Courts must apply the SRA "without discrimination as to any element that does not relate to the crime or the previous record of the defendant." RCW 9.94A.340. But neither equal protection nor the SRA prohibits courts from recognizing bias at an individual or systemic level. See State v. Scabbyrobe, 16 Wn.App. 2d 870, 878 n.3, 482 P.3d 301, review denied, 197 Wn.2d 1024, 492 P.3d 174 (2021) ("Implicit bias exists. Law enforcement, prosecutors, trial judges and appellate judges must be aware of this and guard against it."); State v. Gregory, 192 Wn.2d 1, 22, 427 P.3d 621 (2018) (taking "judicial notice of implicit and overt racial bias against [B]lack defendants in this state" in considering whether death penalty unconstitutional).

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Susnios argues that the trial court's discussion of race at sentencing" 'casts doubt' "[2] on his sentence and shows that the judge imposes "more lenient sentences for people of color in order to 'account' for . . . his own biases." He cites two per curiam opinions, State v. Black, No. 71368-0-I (Wash.Ct.App. Dec. 8, 2014) (unpublished), https://www.courts.wa.gov/opinions/pdf/713680.pdf, and State v. Richwine, No. 76807-7-I (Wash.Ct.App. Dec. 18, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/768077.pdf, in support of his argument.[3]In each of those cases, the State conceded error because the court discussed perceived inequities in sentencing recommendations for different races and appeared to base its sentence on each defendant's race. Black, No. 71368-0-I, slip op. at 1; Richwine, No. 76807-7-I, slip op. at 2.

Unlike in Black and Richwine, the court here did not impose a sentence based on Susnios' race. Rather, the judge responded to defense counsel's concerns about implicit bias by assuring Susnios that "I understand there could be the biases and I take that into account," and that "when anybody appears in front of me I try as best I can to handle the case appropriately, not taking into consideration the color of somebody's skin." And nothing in the record supports Susnios' argument that the court's comment, "[M]y sentences probably have been more lenient for people of color," shows that it imposed a more lenient sentence in his case. Indeed, the court ultimately rejected Susnios' request for an exceptional sentence downward in favor of a sentence within the standard range.

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Susnios fails to show that the court sentenced him based on race in violation of equal protection or the SRA.

Exceptional...

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