State of Washington v. Giavonni S. Kinsey ( 2021 )

FILED
DECEMBER 21, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37737-7-III
Respondent, )
)
v. )
)
GIAVONNI S. KINSEY, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, A.C.J. — Giavonni Kinsey was found guilty following a jury trial of
possessing a stolen vehicle and was sentenced on the basis of an offender score of 9+.
The only error assigned on appeal by his appointed counsel is to Mr. Kinsey’s offender
score, in light of State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), and Mr. Kinsey’s
six prior convictions for unlawful possession of a controlled substance. While a
correction of his offender score will still leave Mr. Kinsey with an offender score slightly
over 9, we agree with the parties that he should have an opportunity for resentencing in
light of the material reduction in the score.
No. 37737-7-III
State v. Kinsey
A pro se statement of additional grounds by Mr. Kinsey demonstrates no error or
abuse of discretion, so we affirm his conviction but remand for resentencing.
FACTS AND PROCEDURAL BACKGROUND
On a night in December 2019, Officer Jared Gregg of the Kennewick Police
Department responded to a report of a suspicious vehicle parked in front of a vacant
house and an individual going door to door. When Officer Gregg arrived at the reported
location, two men were standing by a parked car, a maroon Honda Civic, and one of them
was pouring gas into its tank from a gas can. The Civic had run out of gas and one of the
men—the one who identified himself to Officer Gregg—was a neighbor who said he was
“helping this gentleman gas up.” Report of Proceedings (RP) (Trial) at 152. The man
who was doing the gassing up, who turned out to be Giovanni Kinsey, refused to identify
himself.
Officer Gregg had learned earlier that evening from a fellow officer, Richard
Sanders, that a burgundy-colored Civic had been reported stolen from a resident of the
Heatherstone Apartments. Given the resemblance of the Civic before him, Officer Gregg
contacted Officer Sanders, who said he had not yet been able to obtain a VIN or license
plate number for the stolen Civic. Officer Gregg ran the number of the license plate on
the Civic then being fueled, and learned it was registered to an owner whose address was
the Heatherstone Apartments. At that point, Officer Gregg detained Mr. Kinsey in
handcuffs.
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The owners of the stolen Civic were summoned and identified the now-fueled car
as their own. They gave Officer Gregg permission to examine it, and he saw that the
ignition had been torn completely from the steering column and was dangling. Mr.
Kinsey was arrested and was charged with possession of a stolen vehicle.
Before trial, Mr. Kinsey expressed his wish to submit to a polygraph examination.
He thereafter filed a motion seeking public funds to retain a polygraph examiner. At a
hearing on the motion, the State informed the court that it would not stipulate to the
admissibility of any polygraph examination and would not consider its results in any plea
negotiations. The court denied the motion to authorize funds, explaining to Mr. Kinsey
that “there’s no sense in spending money to obtain evidence that can never be used.” RP
(Feb. 12, 2020) at 4.
At trial, Mr. Kinsey testified that on the day of his arrest an acquaintance had
picked him up driving the Civic, and later ran out of gas. Mr. Kinsey claimed that his
acquaintance went to get gas while Mr. Kinsey remained with the car. After time passed
and Mr. Kinsey’s friend had not returned, he approached a nearby home where lights
were on, encountering the Good Samaritan who retrieved a can of gas and was with Mr.
Kinsey when Officer Gregg arrived. Mr. Kinsey denied knowing the Civic was stolen
and testified at trial that his acquaintance had possessed a similar sedan in the past. The
jury found Mr. Kinsey guilty.
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State v. Kinsey
At sentencing, the State provided the court with certified copies of Mr. Kinsey’s
prior judgment and sentences but no one undertook to identify his precise offender score.
The prosecutor described it as “a 16 or 17 by my count.” RP (Sept. 2, 2020) at 304.
Defense counsel stipulated that Mr. Kinsey’s offender score would be a 9+. The
prosecutor, defense counsel and the judge all commented on Mr. Kinsey’s long criminal
history and the prevalence of drug-related crimes.
Based on a standard range that the court identified as 43 to 57 months, it imposed
a prison-based DOSA, with Mr. Kinsey to serve 25 months’ confinement and 25 months’
community custody. Mr. Kinsey appeals.
ANALYSIS
After Mr. Kinsey’s September 2020 sentencing and before the filing of his April
2021 opening brief, the Washington Supreme Court decided Blake, in which it held that
former RCW 69.50.4013 (2017), which criminalized even unintentional and unknowing
possession of a controlled substance, violated state and federal due process clauses, and
was therefore unconstitutional. 197 Wn.2d at 183-86. “If a statute is unconstitutional, it
is and has always been a legal nullity.” State ex rel. Evans v. Brotherhood of Friends, 41
Wn.2d 133, 143, 247 P.2d 787 (1952). Mr. Kinsey asks us to remand for a resentencing
at which a corrected offender score can be taken into account. The State concedes that
Mr. Kinsey should be resentenced.
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State v. Kinsey
It is possible that Mr. Kinsey’s offender score will remain a 9+.1 But given that it
will be materially reduced and could conceivably affect the sentence imposed, we accept
the State’s concession and remand for resentencing.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds for relief (SAG), Mr. Kinsey raises two
grounds.
SAG 1: polygraph examination. Mr. Kinsey complains he was misled by the trial
court and defense counsel because neither informed him he could pay for his own
polygraph examination, “[s]o I thought it was completely unavailable.” SAG at 1.
Turning first to his complaint about the trial court, there is no requirement that a
trial judge inform a defendant that he may fund his own expert services should a request
for public funding be denied. And as the trial court correctly observed, the results of
polygraph examinations are not admissible absent stipulation from both parties. In re
Disciplinary Proceeding Against Kronenberg, 155 Wn.2d 184, 194-95, 117 P.3d 1134(2005) (observing that such tests “are not recognized as reliable evidence”) (citing State
v. Thomas, 150 Wn.2d 821, 860, 83 P.3d 970 (2004), which cites, in turn, State v. Renfro,
96 Wn.2d 902, 905, 639 P.2d 737 (1982)).
1
A revised criminal history is included in an appendix. It relies on the
representation in Mr. Kinsey’s briefing that the convictions in his history identified as
“Mfg./Delivery/Poss. with Intent to Deliver a Controlled Substance” are all simple
possession offenses. See Br. of Appellant at 3 n.2.; Clerk’s Papers at 52.
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As for Mr. Kinsey’s complaint about trial counsel, in order to demonstrate
ineffective assistance of counsel, a defendant must show that (1) defense counsel’s
representation was deficient, i.e., it fell below an objective standard of reasonableness
based on consideration of all the circumstances; and (2) defense counsel’s deficient
representation prejudiced the defendant, i.e., there is a reasonable probability that, except
for counsel’s unprofessional errors, the result of the proceeding would have been
different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a
defendant fails to establish one prong, the court need not consider the other. State v.
Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Since a polygraph examination would not have been admissible in evidence absent
stipulation and the State refused to consider its results for plea negotiation purposes, Mr.
Kinsey cannot show the required prejudice. We need not evaluate the deficient
representation prong.
SAG 2: Failure to request a new trial. Mr. Kinsey’s second additional ground is
that he received ineffective assistance of counsel because his attorney failed to request a
new trial after Mr. Kinsey provided him with evidence that was unavailable during trial.
The evidence is photographs of the car belonging to his acquaintance that Mr. Kinsey
claims resembled the stolen car.
To be considered on direct appeal, the evidence supporting an assignment of error
must exist in our record. The appropriate procedure for a defendant who wishes to raise
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No. 37737-7-III
State v. Kinsey
issues and evidence outside the record is to file a personal restraint petition, supported by
admissible evidence. See State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013).
We affirm Mr. Kinsey’s conviction and remand for resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________
Siddoway, A.C.J.
WE CONCUR:
_____________________________
Lawrence-Berrey, J.
_____________________________
Fearing, J.
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Appendix
APPENDIX
Updated Criminal History (RCW 9.94A.525)2
Crime Date of Date of Adult Class Type of Points
Crime Sentence /Juv. Crime
2 Burglary in 2nd 05/23/2015 09/08/2015 A B NV 1
degree
4 Residential 12/15/2009 04/08/2010 A B NV 1
Burglary
5 Witness Tampering 11/18/2005 10/04/2006 A C NV 1
6 Theft in 2nd degree 11/18/2005 11/29/2007 A C NV 1
9 Escape in 2nd 08/17/2002 05/23/2003 A C NV 1
degree
11 Possession of 06/27/2002 08/16/2002 A C NV 1
Stolen Property in
2nd degree
12 Possession of 02/27/2002 05/08/2002 A C NV 1
Stolen Property in
2nd degree
13 Assault in 2nd 02/26/2000 08/15/2000 A B V 1
degree
14 Kidnapping in 2nd 02/26/2000 08/15/2000 A B V 1
degree
15 Attempted Robbery 08/25/1997 09/12/1997 J A V 1
The “Date of Crime” and “Date of Sentence” for some offenses was corrected in
2
accordance with the judgments within the record.