Personal Restraint Petition of Damian T. Johnson ( 2017 )


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  •                                                                        FILED
    APRIL 4, 2017
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    In the Matter of the Personal Restraint of    )         No. 33221-7-111
    )         (consolidated with
    DAMIAN T. JOHNSON                             )         No. 33633-6-111)
    )
    )         UNPUBLISHED OPINION
    )
    )
    PENNELL, J. -Damian Johnson was convicted of first and second degree assault.
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    l       A 60-month mandatory minimum sentence was imposed on the first degree assault
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    conviction based on judicial findings that had not been submitted to the jury. Because the
    I       imposition of a mandatory minimum sentence in such circumstances violated Mr.
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    Johnson's constitutional.rights, we grant relief from this sentence as requested in Mr.
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    Johnson's personal restraint petition. All other claims are denied.
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    No. 33221-7-111; 33633-6-111
    In re Pers. Restraint ofJohnson
    BACKGROUND
    The facts of this case are set forth in our opinion addressing Mr. Johnson's direct
    appeal. See State v. Johnson, No. 32014-6-111 (Wash. Ct. App. Dec. 2, 2014)
    (unpublished), http://www.courts.wa.gov/opinions/pdf/320146.unp.pdf. Our prior
    opinion affirmed Mr. Johnson's conviction, but remanded for resentencing. On remand,
    Mr. Johnson was resentenced to 161 months of confinement for the first degree assault
    conviction with a 60-month firearm enhancement, and 29 months of confinement for the
    second degree assault conviction with a 36-month firearm enhancement. His total term of
    confinement is 257 months. The term of confinement for the two assault convictions runs
    concurrently, with the two firearm enhancements running consecutively. The amended
    judgment and sentence also indicates Mr. Johnson was subject to a 60-month mandatory
    minimum for the first degree assault charge under RCW 9.94A.540(l)(b).
    At his resentencing on March 24, 2015, Mr. Johnson orally made a CrR 7.8(b)(2)
    motion for a new trial, followed two days later with the filing of a written motion. The
    trial court ultimately ordered that the motion be transferred to this court, pursuant to
    CrR 7.8(c)(2), for consideration as a personal restraint petition. Mr. Johnson attempted to
    appeal the trial court's transfer order. After that appeal was referred to the commissioner
    to determine appealability, Mr. Johnson filed a motion to dismiss. On June 18, 2015, the
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    l        No. 33221-7-111; 33633-6-111
    In re Pers. Restraint ofJohnson
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    I        commissioner granted the dismissal motion in a notation ruling. Mr. Johnson then filed a
    I        second personal restraint petition on July 20, 2015. Shortly thereafter, the two petitions
    were consolidated for review. On January 22, 2016, Mr. Johnson filed a separate motion
    l        seeking an evidentiary hearing regarding his claims.
    ANALYSIS
    Imposition of mandatory minimum sentence
    Mr. Johnson was convicted of first degree assault and a 60-month mandatory
    minimum was imposed by the trial court. For a mandatory minimum to apply to a first
    degree assault charge, the defendant must have "used force or means likely to result in
    death or intended to kill the victim." RCW 9.94A.540(l)(b). This mandatory minimum
    sentence does not automatically attach to any first degree assault conviction because the
    finding necessary to impose a mandatory minimum is different than the finding necessary
    for a conviction. Compare RCW 9.94A.540(l)(b) with RCW 9A.36.01 l(l); see also
    State v. Dyson, 
    189 Wash. App. 215
    , 223-28, 
    360 P.3d 25
    (2015), review denied, 
    184 Wash. 2d 1038
    (2016) (explaining the distinction between the statutes). Crucial to this case,
    any additional facts necessary for the trial court to impose a mandatory minimum must be
    found by the jury. See id.; Alleyne v. United States,_ U.S._, 
    133 S. Ct. 2151
    , 2155,
    
    186 L. Ed. 2d 314
    (2013 ). Here, the jury did not make any finding as to the imposition of
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    No. 33221-7-111; 33633-6-111
    In re Pers. Restraint ofJohnson
    the mandatory minimum.
    In light of the lack of jury findings, the State concedes that the sentencing court
    improperly imposed a mandatory minimum sentence. Nevertheless, because Mr. Johnson
    received a sentence in excess of the minimum term of 60 months, the State claims relief is
    improper because Mr. Johnson has not suffered any prejudice. Our ruling in Dyson holds
    otherwise. We follow 
    Dyson. 189 Wash. App. at 228
    .
    As was true in Dyson, Mr. Johnson was prejudiced by imposition of a 60-month
    mandatory minimum sentence because it hindered his ability to receive early release
    credits. Id.; see also RCW 9.94A.540(l)(b), (2). By including a mandatory minimum as
    part of Mr. Johnson's sentence, the trial court imposed a penalty harsher than what would
    otherwise have been sustained. Just as a sentence of life without the possibility of parole
    is more severe than a life sentence, see Graham v. Florida, 
    560 U.S. 48
    , 
    130 S. Ct. 2011
    ,
    
    176 L. Ed. 2d 825
    (2010), a sentence depriving a defendant from eligibility for early
    release time is harsher than one that leaves open this possibility.
    Mr. Johnson's lost opportunity for early release time is not something that can be
    disregarded as merely a "collateral consequence." In the criminal context, a collateral
    consequence is a penalty "in addition to the penalties included in the criminal sentence."
    BLACK'S LAW DICTIONARY 369 (10th ed. 2014). Typically, a collateral consequence is
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    No. 33221-7-III; 33633-6-III
    In re Pers. Restraint of Johnson
    one imposed civilly, as a result of immigration law, property forfeiture, or professional
    licensing standards. 
    Id. A direct
    consequence, in contrast, is one that has a "definite,
    immediate and automatic effect" on a defendant's sentence. State v. Conley, 121 Wn.
    App. 280, 286, 
    87 P.3d 1221
    (2004). Under the Sentencing Reform Act of 1981, chapter
    9.94A RCW, the lost opportunity for early release credit is an automatic consequence of
    the trial court's decision to impose a mandatory minimum sentence. Conley, 121 Wn.
    App. at 286; RCW 9.94A.540(2). This makes the lost opportunity for early release credit
    a direct consequence of the conviction.
    Because Mr. Johnson was harmed by the improper imposition of a mandatory
    minimum sentence, he is entitled to relief.
    Jury instructions
    Mr. Johnson advances two arguments with respect to jury instructions. One deals
    with his objection to the trial court's transferred intent instruction. This argument was
    rejected on direct appeal and Mr. Johnson has not established any reason for us to re-
    examine our prior decision. In re Pers. Restraint a/Gentry, 
    137 Wash. 2d 378
    , 388-89, 
    972 P.2d 1250
    (1999). The other argument deals with what Mr. Johnson characterizes as
    conflicting instructions regarding what constitutes a "deadly weapon" and what the State
    must prove to establish the defendant was "armed with a firearm." We find no conflict.
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    No. 33221-7-III; 33633-6-III
    In re Pers. Restraint ofJohnson
    The deadly weapon definition applied to the elements of second degree assault. The
    firearm instruction pertained to the special verdicts. 1 The instructions correctly stated the
    law and made clear which definition pertained to which issue. Read as a whole, they are
    neither misleading nor confusing. We therefore reject Mr. Johnson's claims regarding
    instructional error.
    Remaining contentions
    Mr. Johnson alleges his conviction was tainted by prosecutorial misconduct as well
    as ineffective assistance of counsel. He also claims relief is warranted based on newly
    discovered exculpatory evidence. Mr. Johnson's arguments regarding misconduct by the
    prosecutor and defense counsel are largely conclusory, and thus insufficient to justify
    relief. In re Pers. Restraint of Yates, 
    177 Wash. 2d 1
    , 18, 
    296 P.3d 872
    (2013). Mr.
    Johnson criticizes the prosecutor's occasional use ofleading questions as well as portions
    of closing argument. However, any errors appear to have been minor and defense
    counsel's failure to object would appear to be strategic. With respect to the allegation of
    newly discovered evidence, Mr. Johnson fails to show that the evidence was actually
    unknown or unknowable at the time of trial. For example, Mr. Johnson makes much of
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    Because a firearm is defined as a deadly weapon per se, RCW 9.94A.825, the
    firearm instruction did not need to refer to the concept of a deadly weapon or its
    definition. State v. Samaniego, 
    76 Wash. App. 76
    , 
    882 P.2d 195
    (1994).
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    No. 33221-7-III; 33633-6-III
    In re Pers. Restraint ofJohnson
    an affidavit from Kelly Johnson which purported to supply him an alibi. However, Mr.
    Johnson has not presented competent evidence suggesting defense counsel was unaware
    of Kelly Johnson's potential testimony prior to trial. 2 In re Pers. Restraint ofRice, 
    118 Wash. 2d 876
    , 885-86, 
    828 P.2d 1086
    (1992). Accordingly, the allegedly new evidence
    does not meet the criteria for relief either on its own, In re Personal Restraint of
    Faircloth, 
    177 Wash. App. 161
    , 165-66, 311 PJd 47 (2013) (newly discovered evidence
    must have been unknown prior to trial), or based on ineffective assistance of counsel,
    State v. Byrd, 
    30 Wash. App. 794
    , 799, 
    638 P.2d 601
    (1981) (decision not to call a known
    witness tactical).
    Mr. Johnson requests an evidentiary hearing to elicit evidence that would shore up
    his claims. However, a reference hearing "is not a discovery device to determine if there
    is available evidence." In re Pers. Restraint of Mendez Moncada, 
    197 Wash. App. 601
    ,
    605, _PJd _          (2017) (emphasis added). Mr. Johnson has presented no evidence
    defense counsel was aware of Ms. Johnson, and it is his burden to provide more than
    speculative arguments. Id.; In re 
    Rice, 118 Wash. 2d at 885-86
    . The motion for an
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    To the contrary, a May 30, 2013, report of proceedings appended to Mr.
    Johnson's petition confirms trial was postponed so that defense counsel could interview
    an alibi witness. Personal Restraint Petition, In re Pers. Restraint ofJohnson, No._33633-
    6-III, Appendix 7, at 5-9 (Wash. Ct. App. Jul. 20, 2015).
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    No. 33221-7-111; 33633-6-111
    In re Pers. Restraint ofJohnson
    evidentiary hearing is denied.
    CONCLUSION
    We vacate Mr. Johnson's first degree assault sentence and remand to the trial court
    for resentencing without the mandatory minimum. All other arguments are rejected and
    the motion for an evidentiary hearing is denied.
    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.
    Pennell, J.
    I CONCUR:
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    33221-7-III (Consol. with 33633-6-III)
    KORSMO, J. (dissenting)- For the reasons stated in my Dyson dissent, I continue
    to believe that any error here was harmless. State v. Dyson, 
    189 Wash. App. 215
    , 229, 
    360 P.3d 25
    (2015) (Korsmo, J., dissenting). The Sixth Amendment jury trial right extends
    only to the "punishment" resulting from a jury finding--the minimum and maximum
    terms of incarceration, as well as monetary fines. 
    Id. at 232.
    It does not extend to the
    consequences of punishment such as the opportunity to earn early release credits. The
    standard range here, as in every first degree assault case in this state, exceeds the
    mandatory minimum term created by RCW 9.94A.540(1)(b).
    While that is sufficient to explain my reason for dissenting, the majority opinion
    also reasons that the potential loss of the opportunity for earned early release time is a
    direct consequence of the minimum term finding. RCW 9.94A.540(2). That fact is of no
    consequence in this context. The constitution itself does not protect the right to earn
    "good-time" credits. In re Pers. Restraint of Lain, 
    179 Wash. 2d 1
    , 15,315 P.3d 455 (2013)
    (citing authorities). When probation and release statutes create a right, it is one
    enforceable under the Fourteenth Amendment. 
    Id. This, however,
    is a case involving
    error under the Sixth Amendment. Thus, other consequences of a conviction or sentence
    are of no consequence unless they also constitute "punishment" under the Sixth
    No. 33221-7-III; 33633-6-III
    1    In re Pers. Restraint ofJohnson
    j    Amendment jurisprudence. The loss of opportunity to earn early release credits is a
    I    collateral matter as far as the Sixth Amendment is concerned. It is of no consequence
    here.
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    The error was harmless. Accordingly, I dissent.
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