                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        March 17, 2020
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 52330-2-II

                               Respondent,

          v.

    ANTHONY TYRONE CLARK,                                    UNPUBLISHED OPINION

                               Appellant.

         WORSWICK, J. — This is the second time Anthony T. Clark’s case has come before this

court. A jury convicted Clark of first degree murder,1 first degree robbery,2 unlawful possession

of a controlled substance with intent to deliver,3 and second degree unlawful possession of a

firearm.4 Clark appealed, and we affirmed his convictions with the exception of first degree

robbery.5 Following remand, Clark’s first degree robbery charge was tried to the bench. The

trial court found Clark guilty and resentenced him on all four convictions to the low end of the

standard range. Clark appeals his second sentence.




1
    RCW 9A.32.030(1)(a).
2
    RCW 9A.56.190; 9A.56.200(1)(a)(i).
3
    RCW 69.50.401(2)(a).
4
    RCW 9.41.040(2)(a)(iv).
5
 The case was appealed to our Supreme Court, which affirmed our holding. State v. Clark, 187
Wn.2d 641, 656, 389 P.3d 462 (2017).
No. 52330-2-II


       Clark argues that the trial court abused its discretion by not imposing an exceptional

sentence downward. Alternatively, Clark argues that his trial counsel provided ineffective

assistance by not arguing for an exceptional sentence downward based on his youth. Finally,

Clark argues that the trial court impermissibly imposed certain legal financial obligations

(LFOs), namely a supervision assessment, collection costs, and an interest accrual provision.

The State argues that Clark is precluded from appealing a standard range sentence, but concedes

that the trial court improperly imposed the interest accrual provision.

       We hold that Clark cannot appeal his standard range sentence and that Clark failed to

demonstrate that he received ineffective assistance of counsel. Regarding LFOs, we accept the

State’s concession regarding the interest accrual provision, but hold that the supervision

assessment and collection costs were properly imposed. Accordingly, we affirm Clark’s

sentence and LFOs related to the supervision assessment and collection costs, but remand to the

trial court to amend the interest accrual provision.

                                              FACTS

                            I. FIRST TRIAL, SENTENCING, AND APPEAL

       In 2011, Clark shot and killed a 16-year-old boy. Clark discharged a single round into

the back of the boy’s head, and placed the boy’s body in a garbage can. Clark asked his

neighbors to hide the body and to help sell the cocaine Clark had taken from the boy’s body.

Clark was 20 years old.

       A jury found Clark guilty of first degree murder, first degree robbery, unlawful

possession of a controlled substance with intent to deliver, and second degree unlawful




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No. 52330-2-II


possession of a firearm. The jury also returned a special verdict, finding Clark committed three

counts while in possession of a firearm.

       At sentencing, Clark requested an exceptional sentence downward. Based on his low IQ

and developmental disability, Clark argued that he had a reduced capacity to appreciate the

wrongfulness of his conduct. The State responded that no evidence at trial supported the

contention that Clark’s mental deficiencies affected his ability to appreciate the wrongfulness of

his conduct or comply with the law. The trial court sentenced Clark to 447 months, which was

within the standard range and included three consecutive firearm enhancements.

       Clark appealed. 6 We affirmed three of Clark’s convictions, but reversed and remanded

his first degree robbery conviction.

                  II. THE PRESENT BENCH TRIAL, RESENTENCING, AND APPEAL

       After a bench trial before a different judge, the trial court found Clark guilty of first

degree robbery, with a firearm enhancement. At the resentencing hearing for all four

convictions, the State argued for a sentence within the standard range, asking for the trial court to

impose the same sentence from Clark’s first sentencing. The State told the trial court that it did

not know if Clark was asking for a sentence other than the standard range and then argued that

Clark be sentenced to the low end of the standard range. The State emphasized the violent and

heinous nature of Clark’s crimes and noted that Clark was 20 years old at the time. The State

said that Clark was not a juvenile, “so the Court doesn’t have to consider the juvenile factors that

would weigh into his sentence.” Verbatim Report of Proceedings (VRP) (Aug. 24, 2018) at 9.


6
  State v. Clark, No. 45103-4-II, slip op. at 1 (Wash. Ct. App. June 23, 2015) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2045103-4-
II%20%20Unpublished%20Opinion.pdf.


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No. 52330-2-II


The State also alluded to Clark’s competency and “sophistication” as potential mitigating factors,

but asked for a standard range sentence based on the brutality of these crimes and Clark’s

capability to commit other crimes. VRP (Aug. 24, 2018) at 9-10.

       Clark’s counsel stated, “I did do some research in the mitigating factors, Your Honor.

Did not find anything that was even remotely applicable here, mainly because my client was, at

the time, 20 years old. As the prosecutor has said, the juvenile factors do not come into play.”

VRP (Aug. 24, 2018) at 11. Clark’s counsel also mentioned Clark was in special education

classes. Clark’s counsel stated, “We would go along with the prosecutor’s recommendation,

Your Honor, low end of everything. We think that’s appropriate here.” VRP (Aug. 24, 2018) at

13.

       The trial court referenced Clark’s first sentence, noting that it was “a low-end sentence,

and there were a lot of factors that went into that including the relative youth of Mr. Clark which

is also balanced against the extreme youth of the victim. We also have factors including his

cognitive abilities.” VRP (Aug. 24, 2018) at 14. The trial court stated that “this is an appropriate

sentence as recommended and as previously imposed by [the prior judge] which is essentially the

low end on all charges plus the mandatory firearm sentencing enhancements.” VRP (Aug. 24,

2018) at 15. The trial court imposed 291 months, plus an additional 156 months for the firearm

enhancements, for a total of 447 months. The trial court found Clark indigent. The trial court

imposed certain LFOs, namely a supervision assessment and collection costs. The trial court

also imposed an interest accrual provision on his LFOs.

       Clark appeals his sentence.




                                                 4
No. 52330-2-II


                                            ANALYSIS

                             I. EXCEPTIONAL SENTENCE DOWNWARD

       Clark argues that the trial court failed to exercise its discretion or meaningfully consider

Clark’s youth as a basis for imposing an exceptional sentence downward. Alternatively, Clark

argues that his trial counsel provided ineffective assistance by failing to argue Clark’s youth as a

mitigating factor to support an exceptional sentence downward. The State argues that Clark is

precluded from appealing a standard range sentence. We agree with the State and hold that

Clark cannot appeal his standard range sentence. We also hold that Clark’s trial counsel did not

provide ineffective assistance.

A.     Clark Cannot Appeal His Standard Range Sentence

       The State argues that because Clark failed to argue for an exceptional sentence downward

during sentencing, Clark cannot raise this argument on appeal. We agree that Clark cannot

appeal his standard range sentence.

       In general, a party cannot appeal a sentence within the standard range. State v. Brown,

145 Wn. App. 62, 77, 184 P.3d 1284 (2008); RCW 9.94A.585(1).7 The rationale is that a trial

court that imposes a sentence within the range set by the legislature cannot abuse its discretion as

to the length of the sentence as a matter of law. Brown, 145 Wn. App. at 78. However, a

defendant may appeal a standard range sentence when a trial court has refused to exercise its

discretion or relies on an impermissible basis for its refusal to impose an exceptional sentence

downward. State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). It is error for a trial


7
 RCW 9.94A.585 (1) provides, “A sentence within the standard sentence range, under RCW
9.94A.510 or 9.94A.517, for an offense shall not be appealed.”



                                                 5
No. 52330-2-II


court to categorically refuse to impose an exceptional sentence downward or to mistakenly

believe that it does not have such discretion. McFarland, 189 Wn.2d at 56.

       Here, RCW 9.94A.585(1) prevents Clark from appealing his standard range sentence.

Although Clark did not specifically request an exceptional sentence downward, the trial court

recognized Clark’s youth, heard argument regarding mitigating factors, and then exercised its

discretion to impose a sentence within the standard range. The trial court did not refuse to

exercise its discretion or mistakenly believe it lacked discretion to deviate from the standard

range. Thus, Clark cannot appeal his standard range sentence.

B.     Clark’s Trial Counsel Was Not Ineffective for Failing To Argue for An Exceptional
       Sentence Downward Based on Clark’s Youth

       Alternatively, Clark argues that his trial counsel provided ineffective assistance by failing

to argue Clark’s youth as a mitigating factor to support an exceptional sentence downward. We

disagree.

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee effective assistance of counsel. State v. Grier, 171 Wn.2d

17, 32, 246 P.3d 1260 (2011). Defense counsel’s obligation to provide effective assistance

applies to sentencing. State v. Rattana Keo Phuong, 174 Wn. App. 494, 547, 299 P.3d 37

(2013). We review ineffective assistance of counsel claims de novo. State v. Linville, 191

Wn.2d 513, 518, 423 P.3d 842 (2018). To demonstrate that he received ineffective assistance of

counsel, Clark must show both (1) that defense counsel’s performance was deficient and (2) that

the deficient performance resulted in prejudice. Linville, 191 Wn.2d at 524. Defense counsel’s

performance is deficient if it falls below an objective standard of reasonableness. State v. Estes,

188 Wn.2d 450, 458, 395 P.3d 1045 (2017). Prejudice ensues if the result of the proceeding


                                                 6
No. 52330-2-II


would have been different had defense counsel not performed deficiently. Estes, 188 Wn.2d at

458. Because both prongs of the ineffective assistance of counsel test must be met, the failure to

demonstrate either prong will end our inquiry. State v. Classen, 4 Wn. App. 2d 520, 535, 422

P.3d 489 (2018).

        Although no defendant is entitled to an exceptional downward sentence, every defendant

is entitled to ask the sentencing court to consider such a sentence and to have it actually

considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). The SRA

(Sentencing Reform Act of 1981)8 has always provided a defendant an opportunity to raise his

youth for the purpose of requesting an exceptional sentence downward. In re Pers. Restraint of

Light-Roth, 191 Wn.2d 328, 336, 422 P.3d 444 (2018). Additionally, the SRA provides the trial

court with the ability to exercise its discretion in considering youth as a mitigating factor. Pers.

Restraint of Light-Roth, 191 Wn.2d at 336. However, “age is not a per se mitigating factor” that

automatically entitles young defendants to an exceptional sentence downward. State v. O’Dell,

183 Wn.2d 680, 695, 358 P.3d 359 (2015).

        Here, even assuming that counsel’s failure to raise youth as a mitigating factor was

deficient performance, Clark cannot show prejudice. Nothing in the record shows that the result

of the sentencing hearing would have been different. The record reveals that the trial court

understood it had discretion to impose an exceptional sentence downward. The State’s

arguments at sentencing were clearly in opposition to an exceptional sentence downward based

on Clark’s youth. Further, the trial court acknowledged Clark’s youth. Because Clark cannot




8
    Ch. 9.94A RCW.


                                                  7
No. 52330-2-II


show that he would have received a different sentence had counsel raised youth as a mitigating

factor, we hold that Clark did not receive ineffective assistance from his trial counsel.

                           II. CONSECUTIVE FIREARM ENHANCEMENTS

       Clark argues that the sentencing court abused its discretion when it failed to recognize

that firearm enhancements can be subject to exceptional downward sentences. Clark equates a

firearm enhancement under RCW 9.94A.533 with a firearm-related conviction to argue that a

sentencing court can impose concurrent firearm enhancements. We disagree.

       RCW 9.94A.533(3)(e) provides that the firearm enhancement, if applicable, is mandatory

and shall run consecutively to all other sentencing provisions, “[n]otwithstanding any other

provision of law.” Judicial discretion to impose exceptional sentences does not extend to firearm

enhancements. State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999), overruled on other

grounds by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).

       Here, the sentencing court correctly recognized that it had no authority to shorten the

duration of Clark’s firearm enhancement. Clark argues that Brown is wrong and wholly

overruled by Houston-Sconiers. Clark is mistaken. Although Houston-Sconiers modified

Brown, it did so only with respect to juvenile offenders and Eighth Amendment considerations.

Houston-Sconiers, 188 Wn.2d at 34. The Court did not modify Brown’s applicability to adult

defendants.

       Clark also relies on McFarland, 189 Wn.2d at 55, to argue that trial courts may impose

exceptional sentences downward for firearm enhancements. However, McFarland does not

apply to Clark’s sentence because Clark’s sentence was based on consecutive firearm

enhancements under RCW 9.94A.533(3), while McFarland addressed consecutive sentences



                                                  8
No. 52330-2-II


imposed for firearm-related convictions under RCW 9.94A.589(c).9 In McFarland, our Supreme

Court held that when multiple firearm-related convictions result in a presumptive sentence that is

clearly excessive under RCW 9.94A.589(1)(c), the trial court may run the sentences for firearm-

related convictions concurrently as part of an exceptional mitigated sentence under RCW

9.94A.535(1)(g). 189 Wn.2d at 55. RCW 9.94A.535(1)(g) states, “The operation of the multiple

offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in

light of the purpose of this chapter, as expressed in RCW 9.94A.010.”

       Based on the plain language of RCW 9.94A.535, the statute applies only when a sentence

under RCW 9.94A.589 is clearly excessive. Because Clark’s sentence was imposed based on the

firearm enhancements in RCW 9.94A.533(3), he would not be eligible for an exceptional

sentence under RCW 9.94A.535(1)(g), and the reasoning in McFarland does not apply.

Accordingly, the trial court did not abuse its discretion or misunderstand its authority regarding

the firearm enhancements.

                               III. LEGAL FINANCIAL OBLIGATIONS

       Clark argues that the trial court improperly imposed a supervision assessment and

collection costs because he is indigent. Clark also argues that the trial court impermissibly

imposed interest on his LFOs. The State concedes that the interest accrual provision is

impermissible. We hold that the trial court properly imposed a supervision assessment and

collection costs. We also accept the State’s concession regarding interest insofar as it applied to

nonrestitution LFOs.


9
  RCW 9.94A.589(1)(c) lists these crimes as first or second degree unlawful possession of a
firearm, theft of a firearm, and possession of a stolen firearm.



                                                 9
No. 52330-2-II


       RCW 10.01.160(3) now provides that the trial court shall not order a defendant to pay

costs if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). Similarly,

RCW 9.94A.760 now provides that the trial court cannot order “costs” as described in RCW

10.01.160 if the defendant is indigent as defined in RCW 10.101.010(3)(a) through (c). RCW

10.01.160(2) limits costs “to expenses specially incurred by the state in prosecuting the

defendant or in administering the deferred prosecution program under chapter 10.05 RCW or

pretrial supervision.” Recent legislation also prohibits trial courts from imposing interest accrual

provisions on the nonrestitution portions of LFOs on indigent defendants. RCW 10.82.090.

A.     Interest Accrual Provision

       Clark argues, and the State concedes, that the trial court improperly imposed an interest

accrual provision on nonrestitution LFOs. RCW 10.82.090 differentiates between restitution and

nonrestitution LFOs. Trial courts are now prohibited from imposing an interest accrual provision

on nonrestitution LFOs when a defendant is indigent. RCW 10.82.090.

       Here, the trial court imposed an interest accrual provision on all LFOs. We accept the

State’s concession and remand for the trial court to amend the interest accrual provision to

comply with RCW 10.82.090.

B.     Supervision Assessment

       Clark argues that the trial court improperly imposed a supervision assessment. We

disagree.

       Here, Clark’s supervision assessment was imposed under RCW 9.94A.703(2)(d), which

states, “Unless waived by the court, as part of any term of community custody, the court shall

order an offender to . . . [p]ay supervision fees as determined by the [Department of



                                                10
No. 52330-2-II


Corrections].” The supervision assessment is a discretionary LFO. State v. Lundstrom, 6 Wn.

App. 2d 388, 396 n.3, 429 P.3d 1116 (2018), review denied, 193 Wn.2d 1007 (2019).

       However, the supervision assessment is not a discretionary “cost” merely because it is a

discretionary LFO. Rather, the supervision assessment fails to meet the RCW 10.01.160(2)

definition of a “cost” because it is not an expense specially incurred by the State to prosecute the

defendant, to administer a deferred prosecution program, or to administer pretrial supervision.

Because the supervision assessment is not a cost under RCW 10.01.160, the trial court was not

required to conduct an inquiry into Clark’s ability to pay under RCW 10.01.160(3). See State v.

Clark, 191 Wn. App. 369, 374, 362 P.3d 309 (2015) (distinguishing fines from costs).

C.     Collection Costs

       Similarly, Clark argues that the trial court improperly imposed collection costs. We

disagree.

       A court may use collection services to recover unpaid LFOs. RCW 36.18.190. The cost

of the collection service is paid by the debtor. RCW 36.18.190. Collection costs are

discretionary. RCW 36.18.190; Clark, 191 Wn. App. at 374.

       Here, the trial court ordered that Clark “shall pay the cost of services to collect unpaid

legal financial obligations per contract or statute.” CP at 98. These collection costs were

imposed under RCW 36.18.190, RCW 9.94A.780, and RCW 19.16.500. Although collection

costs are discretionary, they do not meet the definition of “cost’ in RCW 10.01.160(2) because

these costs were not specially incurred by the State to prosecute the defendant, to administer a

deferred prosecution program, or to administer pretrial supervision. As such, the trial court was

not required to conduct an inquiry into Clark’s ability to pay.



                                                 11
No. 52330-2-II


       We affirm Clark’s sentence and LFOs related to the supervision assessment and

collection costs, but we remand for the trial court to amend the interest accrual provision.

       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.



                                                                      Worswick, J.
 We concur:



 Lee, A.C.J.




 Cruser, J.




                                                12
