State Of Washington v. Hailu Dagnew Mandefero ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80072-8-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
†1
HAILU DANIEL MANDEFERO,
Appellant.
MANN, C.J. — 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.
†
Mandefero’s middle name also appears as “Dagnew” in the record.
No. 80072-8-I/2
I.
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.
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.
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
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State conceded that resentencing was appropriate. Accordingly, this court remanded
for resentencing and dismissed Mandefero’s remaining claims.
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.
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
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assault convictions are mandatory and run consecutive to each other. It entered
findings of fact and conclusions of law supporting the sentence.
Mandefero now appeals the resentencing court’s decision.
II.
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.
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).
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
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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)).
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.
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
(emphasis added). Thus, Houston-Sconiers overrules Brown only as it applies to
juveniles. 188 Wash. 2d at 21. Because Mandefero was almost 19 years old at the time of
his offenses, Houston-Sconiers does not apply to him, and Brown controls.
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. 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.
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App. 2d 288, 291, 466 P.3d 244 (2020) (citing State v. Gore, 101 Wash. 2d 481, 487, 681
P.2d 227 (1984)).
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. 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. 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. 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. Neither case provides a basis for departing from the
Washington Supreme Court’s ruling in Brown.
III.
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.
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 to challenge the
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No. 80072-8-I/7
underlying legal conclusions and determinations by which a court comes to apply a
particular sentencing provision.” State v. Williams, 149 Wash. 2d 143, 147, 65 P.3d 1214
(2003). “A discretionary sentence within the standard range is reviewable in
‘circumstances where the court has refused to exercise discretion at all or has relied on
an impermissible basis for refusing to impose an exceptional sentence below the
standard range.’” McFarland, 189 Wash. 2d at 56 (quoting State v. McGill, 112 Wash. App.
95, 100, 47 P.3d 173 (2002)).
It is the refusal to exercise discretion or the impermissible basis for the
refusal that is reviewable, not the substance of the decision about the
length of the sentence. Conversely, a trial court that has considered the
facts and has concluded that there is no basis for an exceptional sentence
has exercised its discretion, and the defendant may not appeal that ruling.
State v. Garcia-Martinez, 88 Wash. App. 322, 330, 944 P.2d 1104 (1997).
Here, the record establishes that the trial court understood its legal authority,
took Mandefero’s youth into consideration for all three offenses, and found it justified an
exceptional downward sentence for the first degree assault offense but not for the
second degree assault and the unlawful possession of a firearm. After considering
various factors that could mitigate Mandefero’s culpability, the court stated:
I think the recklessness of Mr. Mandefero’s behavior is the thing
that jumps out to me as most connected to youth. And so I see that
connection in the assault on Mr. Gary and to a lesser degree I see it in the
Assault in the Second Degree offense. I really don’t see it for the—final
offense of possession of his weapon because I think there’s really sort of
no excuse for that and there’s nothing about any of the qualities of being
youthful that contribute to that.
I’m not going down, however, on the standard range for the Assault
in the Second Degree because there were so many victims and this was
egregious behavior.
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Where I am inclined to reduce the standard range is with regard to
Mr. Gary. But not very far, frankly, because I think recklessness only
takes me so far on this range.
The court properly exercised its discretion in making these determinations. Its decision
regarding the second degree assault and unlawful possession of a firearm offenses is
not appealable.
IV.
Mandefero next contends that the cumulative effect of the trial court’s
interjections and questions at the resentencing hearing demonstrated a lack of
impartiality, thereby constituting a manifest constitutional error that denied his due
process right to a fair trial. 2 He contends that resentencing before a different judge is
necessary. We disagree.
Mandefero did not object at the sentencing hearing to the comments he now
challenges on appeal. A claim of error may be raised for the first time on appeal only if
it is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3); State v. Kirkman,
159 Wash. 2d 918, 926, 155 P.3d 125 (2007). “The defendant must identify a
constitutional error and show how, in the context of the trial, the alleged error actually
affected the defendant’s rights; it is this showing of actual prejudice that makes the error
‘manifest,’ allowing appellate review.” State v. McFarland, 127 Wash. 2d 322, 334, 899
P.2d 1251 (1995).
“At a minimum, due process requires a fair trial in a fair tribunal, before a judge
with no actual bias against the defendant or interest in the outcome of his particular
2 In his reply brief, Mandefero argues that the trial court’s comments also violated the
appearance of fairness doctrine. But a challenge based on the appearance of fairness doctrine
does not implicate constitutional rights and is deemed waived when not raised in the trial court.
State v. Tolias, 135 Wash. 2d 133, 140, 954 P.2d 907 (1998).
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No. 80072-8-I/9
case.” In re Pers. Restraint of Davis, 152 Wash. 2d 647, 692, 101 P.3d 1 (2004). “A
judicial proceeding is valid only if it has an appearance of impartiality, such that a
reasonably prudent and disinterested person would conclude that all parties obtained a
fair, impartial, and neutral hearing.” State v. Ra, 144 Wash. App. 688, 705, 175 P.3d 609
(2008). A defendant’s due process right to a fair trial is implicated where the trial court’s
activities “turn a neutral judge into the state’s advocate.” State v. Moreno, 147 Wash. 2d
500, 512, 58 P.3d 265 (2002). There is a presumption that the trial court properly acted
without bias or prejudice, and the party seeking to overcome that presumption must
provide specific evidence establishing actual or potential bias. Davis, 152 Wash. 2d at
692; State v. Carter, 77 Wash. App. 8, 11-12, 888 P.2d 1230 (1995).
Mandefero first challenges an exchange between the trial court and the
prosecutor at the beginning of the resentencing hearing in which the court asked the
State to confirm whether the court’s recollection of a particular fact was accurate. He
asserts that the trial court demonstrated a lack of impartiality and assumed the role of
counsel by “answer[ing] her own ‘questions’ for the State, affirm[ing] the State’s
responses, and referr[ing] to the State and the Court in terms of ‘we’ and ‘our.’” The
record does not support this interpretation. Rather, it is apparent that the court was
referring to the shared experience of observing the facts as presented at the trial and
original sentencing hearing. Defense counsel at resentencing was not present at the
trial and therefore could not participate in this shared recollection.
Mandefero next asserts that the judge demonstrated bias following the State’s
observation that the victim of the first degree assault charge was subsequently killed in
a separate incident and could not speak for himself. The judge stated, “No. But he
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certainly impressed me at trial. I will never forget him.” The judge later explained that
she remembered Gary because he was “frightened enough and unwilling enough to
participate in this process that he came into court and took Mr. Mandefero right off the
hook.” “It is not evidence of actual or potential bias for a judge to point out to a
defendant the harm caused to a victim by his or her criminal conduct.” State v. Worl, 91
Wash. App. 88, 97, 955 P.2d 814 (1998).
Lastly, Mandefero asserts that the trial court did not ask questions of defense
counsel, but rather took on an argumentative manner that assumed the role of the
State. Defense counsel stated that she could not imagine a situation where her own
son would get into the same problems as Mandefero because she lives in North Seattle
whereas Mandefero lived in Rainier Beach. The court stated that it did not find this
argument persuasive, noting that “there are so many law-abiding, achieving people who
live in Rainier Beach” and that gang activity “exists in a lot of nice neighborhoods.”
Mandefero has not shown that these comments were improper or showed that the court
was biased towards him. Moreover, following defense counsel’s presentation, the court
allowed two community members to speak on Mandefero’s behalf without interruption.
Mandefero also spoke without interruption in favor of an exceptional sentence.
Mandefero has not demonstrated bias or prejudice. He has therefore not established
manifest constitutional error.
V.
In a statement of additional grounds, Mandefero asserts that mandatory firearm
enhancements under RCW 9.94A.533 are no longer constitutional following Houston-
Sconiers. He contends that RCW 9.94A.533 cannot be interpreted to exclude juveniles
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from its mandatory provisions because the SRA clearly demonstrates the legislature's
intent that the act's provisions apply to all offenders, including juveniles. On this basis, he
contends that the statutory scheme as a whole is now unconstitutional and must be
stricken. But RCW 9.94A.533 is not facially unconstitutional because it can be
constitutionally applied to adults. See City of Redmond v. Moore, 151 Wash. 2d 664, 669, 91
P.3d 875 (2004) (a statute is unconstitutional on its face if “no set of circumstances exists
in which the statute, as currently written, can be constitutionally applied.”).
In the alternative, Mandefero argues that RCW 9.94A.533 is unconstitutional as
applied to his case and that he is entitled to the same relief as the juveniles in Houston-
Sconiers. This is so, he contends, because “the very reasons juveniles in adult court are
looked at with less culpability is [due] in large part to their underdeveloped brain” and
recent research shows that “this period of adolescent brain development continues well
into the mid-twenties.” Mandefero appears to challenge the Washington Supreme Court’s
holding in Houston-Sconiers that the Eighth Amendment requires the court to consider the
mitigating circumstances associated with the youth of juveniles, not adults. 188 Wash. 2d at
21. However, as discussed above, the Washington Supreme Court’s decision to limit
Houston-Sconiers to juveniles is binding on all lower courts of this state. Gore, 101 Wash. 2d
at 487.
Affirmed.
WE CONCUR:
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