                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         July 30, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 In the Matter of the                                               No. 53044-9-II
 Personal Restraint of

 DARRELL PARNEL BERRIAN,

                               Petitioner.
                                                             UNPUBLISHED OPINION



       GLASGOW, J. — Darrell Berrian seeks relief from personal restraint imposed as a result

of his 2014 conviction for first degree assault. We deny the petition.

                                  FACTUAL BACKGROUND

       After a jury trial, Berrian was found guilty of first degree assault while he was armed with

a deadly weapon. The court sentenced Berrian to the midpoint of his standard range and added a

48-month deadly weapon sentence enhancement.

       Following a successful personal restraint petition, he was resentenced in 2018 with a

revised offender score of 4. His revised standard sentence range was 129 to 171 months, plus the

48-month deadly weapon sentencing enhancement.             Prior to sentencing, Berrian filed a

memorandum requesting that the court sentence him to the low end of the standard range, and he

repeated the request at the hearing. He also asked at the hearing that the court run his sentences

concurrently with a sentence in another case. He did not request an exceptional sentence.
No. 53044-9-II


        The trial court imposed a base sentence of 150 months and added the 48-month sentencing

enhancement, resulting in a total sentence of 198 months. The trial court explained to Berrian, “I

came to a midpoint sentence in your [original sentencing] because I did think that was appropriate

and, again, I see no reason to depart from that.” Br. of Resp’t., App. X at 13. Berrian then filed

this timely personal restraint petition.1

                                            ANALYSIS

        Granting a personal restraint petition is an extraordinary remedy, and therefore a petition

must meet a high standard. In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d 450

(2013); In re Pers. Restraint of Coats, 173 Wn.2d 123, 132-33, 267 P.3d 324 (2011). If the

petitioner claims constitutional error, he must show the error resulted in actual and substantial

prejudice. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005). If the

petitioner claims nonconstitutional error, he must show the error resulted in a fundamental defect

that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Schreiber,

189 Wn. App. 110, 113, 357 P.3d 668 (2015). The petitioner must show error by a preponderance

of the evidence. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013).

        Berrian argues that State v. Brown, which held that deadly weapon sentencing

enhancements are mandatorily consecutive to a defendant’s base sentence, is incorrect, harmful,

and the legal underpinnings for that case have changed. 139 Wn.2d 20, 29, 983 P.2d 608 (1999).2



1
  Berrian’s revised judgment was filed on June 15, 2018, making his January 7, 2019 petition
timely filed. RCW 10.73.090(3)(a). He filed his petition with the Washington State Supreme
Court, which transferred his petition to this court under RAP 16.5.
2
 Our Supreme Court has overruled Brown as it applies to the sentencing of juveniles. State v.
Houston-Sconiers, 188 Wn.2d 1, 21 n.5, 391 P.3d 409 (2017). Berrian was not a juvenile when
he committed his crime.
                                             2
No. 53044-9-II


Berrian states that Brown is inconsistent with the Sentencing Reform Act of 1981, ch. 9.94A RCW.

Additionally, he argues that State v. McFarland, 189 Wn.2d 47, 52, 399 P.3d 1106 (2017),

undermined Brown. He contends that he should be resentenced again, allowing the trial court to

exercise its discretion to impose an exceptional sentence.

       Berrian’s petition fails for two reasons. First, we cannot abandon or overturn a decision of

our Supreme Court. In re Pers. Restraint of Le, 122 Wn. App, 816, 820, 95 P.3d 1254 (2004),

aff’d, 155 Wn.2d 356, 119 P.3d 816 (2005). While Berrian cites to cases about the Court of

Appeals’ authority, those cases do not involve the Court of Appeals abandoning or overturning a

decision by our Supreme Court. Additionally, McFarland did not overrule Brown. Instead

McFarland allows as an exceptional sentence for standard range sentences for multiple firearm-

related crimes to be served concurrently in certain circumstances. McFarland, 189 Wn.2d at 52.

       Second, Berrian did not ask for an exceptional sentence downward at his resentencing.

Resentencing is appropriate where a trial court has categorically refused to impose an exceptional

sentence below the standard range under any circumstances. State v. Grayson, 154 Wn.2d 333,

342, 111 P.3d 1183 (2005). But absent any request for an exceptional downward sentence, we

cannot conclude that the trial court categorically refused to consider one.

       Berrian also relies on In re Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d

677 (2007), and In re Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002). Unlike

Mulholland, there is no evidence that the trial court was inclined to impose an exceptional sentence

but refrained because it thought it was prohibited from doing so. Instead, at the resentencing, the

trial court stated, “I came to a midpoint sentence in your [original sentencing] because I did think

that was appropriate and, again, I see no reason to depart from that.” Br. of Resp’t., App. X at 13.


                                                 3
No. 53044-9-II


Additionally, this case is unlike Goodwin, where the defendant was sentenced based on a

miscalculated offender score, which was fundamentally defective and not subject to waiver. 146

Wn.2d at 875-76. These cases do not support Berrian’s arguments.

        In sum, Berrian does not present grounds for relief from restraint. We therefore deny his

petition.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    GLASGOW, J.
 We concur:



 WORSWICK, J.




 MAXA, C.J.




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