       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

In the Matter of the                                                              )   No. 79307-1-I
Personal Restraint of                                                             )

                                                                                  )
DARRESON CHESTER HOWARD,                                                          )   UNPUBLISHED OPINION

                                         Petitioner.                              )   FILED: November 18, 2019
__________________________________________________________________________________)




             VERELLEN, J. —In this personal restraint petition, Darreson Howard contends

he received ineffective assistance of counsel because his attorney did not request an

exceptionally lenient sentenced based on his youthfulness. Because there is no

evidence that Howard’s youthfulness was a factor in this case, Howard cannot

establish that defense counsel was deficient. And because Howard does not

establish ineffective assistance of counsel, we deny his petition.

                                                                              FACTS

             The underlying facts of the case are undisputed. Around 11:15 p.m. on April

1, 2013, Richard Powell, a town car driver, dropped off a customer in West Seattle.

He then drove to a nearby location and stepped out of the car to have a cigarette and

to call dispatch for his next customer. A car passed by him and two people, possibly

men, exited the car and approached him. One pulled out a gun and told Powell to

empty his pockets. The other stood closely nearby.
No. 79307-1 -1/2


       Powell responded by drawing his own gun, for which he had a concealed

weapons permit. Juan Garcia-Mendez, the person with the gun and who had

ordered Powell to empty his pockets, shot Powell three times in the chest. Powell

had fired two shots. Garcia-Mendez and the other person with him fled. Powell

managed to call 911. Police responded to the scene. Powell required significant

medical treatment to survive and recover.

      Shortly after this incident, Garcia-Mendez approached a police officer near the

scene. Garcia-Mendez had sustained gunshot wounds. The police also discovered

a silver KIA Spectra near the scene with blood in the rear seat.

       Following an investigation, the State charged three individuals based on these

events: Sophia Delafuente, Garcia-Mendez, and Howard.

      On September 2, 2015, a jury convicted Howard of first degree assault and

first degree attempted robbery. The jury found Howard committed the crimes while

armed with a firearm. And the jury found both counts were aggravated due to

Howard’s rapid recidivism. On October 2, 2015, the court imposed a 296-month

sentence that included a consecutive 60-month firearm enhancement on count 1 and

a 36-month firearm enhancement on count 2. Howard filed a direct appeal, and this

court affirmed Howard’s judgment and sentence.1

      Howard filed this timely personal restraint petition on December 6, 2018.




      1  State v. Howard, No. 74054-7-I, (Wn.Ct. App. May 15, 2017) (unpublished),
http://www.courts.wa.gov/opinions/pdf/740547. pdf


                                            2
No. 79307-1-1/3


                                       ANALYSIS

       To prevail on this personal restrain petition, Howard must show either actual

and substantial prejudice from constitutional error or nonconstitutional error that

1”inherently results in a complete miscarriage of justice.”2

       Howard contends he received ineffective assistance of counsel because his

attorney did not request an exceptionally lenient sentenced based on his

youthfulness.

       To prevail on a claim of ineffective assistance of counsel, the defendant must

show that defense counsel’s representation was deficient and that the deficient

representation prejudiced the defendant.3 The defendant must overcome the strong

presumption that defense counsel’s representation was not deficient.4

       RCW 9.94A.535 provides, “The court may impose a sentence outside the

standard sentence range for an offense if it finds   .   .   .   that there are substantial and

compelling reasons justifying an exceptional sentence.”5 The defendant has the

burden to prove mitigating circumstances by a preponderance of the evidence.6




      2   In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)
(quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417
(1962)).
        ~ State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)).
        ~ State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing State
v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)).
        ~ RCW 9.94A.535.
        6 RCW 9.94A.535(1).




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No. 79307-1-1/4


       The sentencing court may consider the defendant’s youthfulness as a

mitigating factor, even if the defendant was over 18 when he or she committed the

offense.7 But the court “may not impose an exceptional sentence automatically on

the basis of youth, absent any evidence that youth in fact diminished a defendant’s

culpability.”8 “[T]he defendant must show that his youthfulness relates to the

commission of the crime.”9

       Here, Howard was 19 years old at the time of the offense. At sentencing,

Howard’s counsel requested a low-end sentence. His counsel did not request an

exceptionally lenient sentence or otherwise discuss Howard’s youthfulness.

Ultimately, the court imposed a sentence at the high end of the standard range.

       In support of this petition, Howard submitted a declaration from Laurence

Steinberg, a developmental psychologist. Steinberg opines, “[T]he same sort of

psychological and neurobiological immaturity characteristic of juveniles under the age

of 18 also describes individuals between 18 and 21.”bo Steinberg states that 18- to

21-year olds are less able to understand the consequences of their decisions and are

more likely to underestimate the risks in a given situation.11 He explains these

“deficiencies in judgment are exacerbated by the presence of peers.”12



       ~ State v. O’Dell, 183 Wn.2d 680, 689, 358 P.3d 359 (2015).
       8 ki (emphasis added).

       ~ Matter of Lic~ht-Roth, 191 Wn.2d 328, 336, 422 P.3d 444 (2018) (citing State
v. Ha’mim, 132 Wn.2d 834, 846, 940 P.2d 633 (1997)).
       ~° Steinberg Declaration at 4.

           Id. at 7-8.
      12   Id. at 9.



                                          4
No. 79307-1-1/5


       Howard also submitted a declaration from his sister, Willow Jim. In her

declaration, Jim explained Howard’s traumatic childhood. She stated their mother

abandoned the family and a cousin sexually abused Howard.13 In her declaration,

she also stated that Howard became involved with a gang when he was 14 years

old.14 And at 16 years old, Howard was convicted, as an adult, of vehicular

homicide.15

       Neither Steinberg’s nor Jim’s declaration establishes that Howard’s youth in

fact diminished his culpability in this case. Steinberg’s declaration contains a general

overview of the brain developmental for late adolescents. Steinberg’s opinion is in

line with studies cited by our Supreme Court in State v. O’Dell.16 In O’Dell, our

Supreme Court acknowledged:

      [P]sychological and neurological studies show{] that the parts of the
      brain involved in behavior control continue to develop well into a
      person’s 20s. These studies reveal fundamental differences between
      adolescent and mature brains in the areas of risk and consequence
      assessment, impulse control, tendency toward antisocial behaviors, and
      susceptibility to peer pressure.[17]

       Neither declaration provides information about Howard’s ability to assess risks

and consequences, impulse control, tendency toward antisocial behavior, or

susceptibility to peer pressure. Steinberg did not examine Howard, nor does he

express an opinion on whether Howard’s youthfulness was a factor in this case.


      13   Jim Declaration at 1-2.
      14   Id. at 3.
          Id. at 3-4.
       16183 Wn.2d 680, 358 P.3d 359 (2015).
       17 O’Dell, 183 Wn. 2d at 691-92 (internal quotation marks and footnotes

omitted).


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No. 79307-1-1/6


Similarly, in her declaration, Jim generally discusses Howard’s difficult childhood, but

her declaration does not provide evidence that Howard’s youth in fact diminished his

culpability here.

       Because there is no evidence that Howard’s youthfulness was a factor in this

case, Howard does not establish that his attorney was deficient for failing to request

an exceptionally lenient sentence. Because Howard fails to establish ineffective

assistance of counsel, he is not entitled to relief on his personal restraint petition.

       Therefore, we deny Howard’s petition.




                                                               (1’
WE CONCUR:
