                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      November 14, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 49672-1-II

                               Respondent,

        v.

 CARLOS AVALOS,                                              UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — Carlos Avalos appeals his standard range sentence for second degree

assault. He argues that the sentencing court abused its discretion when it imposed a standard range

consecutive sentence rather than an exceptional concurrent sentence. He also argues that defense

counsel provided ineffective assistance when counsel failed to request a concurrent exceptional

sentence. We hold that the sentencing court did not err when it imposed a standard range sentence.

Further, even if we presume counsel’s assistance was deficient, we hold his deficient performance

did not prejudice Avalos. We affirm Avalos’s sentence.

                                             FACTS

                                         I. BACKGROUND

       On February 3, 2014, while incarcerated, 19-year-old Avalos assaulted a corrections officer

when Avalos used a metal shank to repeatedly stab the officer in the head and neck. The officer

was on medical leave for 10 months as a result of the assault.
No. 49672-1-II


       At the time of this offense, Avalos was serving a 10-year sentence, imposed in July 2012,

for prior convictions. Avalos had a total of five prior assault convictions for attacking counselors

and security officers in his juvenile detention facility.

                                II. ORIGINAL SENTENCING HEARING

       Avalos was originally sentenced for the 2014 assault in March 2015. The standard range

was 53 to 70 months.

       Avalos’s counsel argued that Avalos should receive the “bottom of the standard range” and

conceded the State’s assertion that Avalos’s sentence for the 2014 assault must run consecutively

with the prior sentences, rather than concurrently. Clerk’s Papers (CP) at 102. In advocating for

a low end of the standard range sentence, Avalos’s counsel argued that his age of 19 at the time of

the incident reduced his ability to plan for the future and recognize the consequences of his actions.

Counsel also argued that Avalos’s time in solitary confinement was a mitigating factor because

recent research shows that solitary confinement has serious mental health consequences.

       Avalos was sentenced to 70 months, consecutive to prior sentences. Explaining its reasons

for the 70-month sentence, the sentencing court described the violent nature of Avalos’s “ambush”

on the corrections officer. Report of Proceedings (RP) (Mar. 10, 2015) at 18. It said, “I think that

the attack was cowardly and I think that the range, that has been suggested by the State, at the high

end is entirely appropriate.”      RP (Mar. 10, 2015) at 18-19.         The sentencing court also

acknowledged and rejected defense counsel’s arguments regarding Avalos’s age:

       Mr. Avalos, I realize I’ve impose the high end of the range, but I agree with all the
       things your attorney said about you and your life. You’re a young man. You’ve
       got your whole life ahead of you. It would be great if you could get an education
       when you’re in prison, if you could turn your life around, get out and have a nice,
       long, happy, healthy life, but ultimately it’s up to you.


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No. 49672-1-II


RP (Mar. 10, 2015) at 21.

                                   III. APPEAL AND RESENTENCING

       Avalos appealed his original sentence on grounds unrelated to this appeal. Division One

of this court vacated his sentence and remanded the case for resentencing.

       At the November 2016 resentencing hearing, Avalos’s counsel again argued that Avalos’s

youthfulness and solitary confinement were mitigating factors that support a low-end standard

range sentence. And he agreed that Avalos’s sentence must be imposed consecutively to Avalos’s

prior sentence. Counsel did not inform the sentencing court that it had discretion, upon a finding

of a mitigating factor, to impose a concurrent sentence rather than a consecutive sentence. See

RCW 9.94A.589(2)(a). The sentencing court imposed 70 months for the same reasons given at

the original sentencing hearing.

                                            ANALYSIS

                                    I. NO ABUSE OF DISCRETION

       Avalos argues that the sentencing court was required to consider youthfulness as a factor

when determining whether to impose an exceptional concurrent sentence. We disagree that the

sentencing court abused its discretion.

                                          A. RULES OF LAW

       Generally, a standard range sentence is not subject to appellate review. State v. Williams,

149 Wn.2d 143, 146, 65 P.3d 1214 (2003); RCW 9.94A.585(1). “[S]o long as the sentence falls

within the proper presumptive sentencing ranges set by the legislature, there can be no abuse of

discretion as a matter of law as to the sentence’s length.” Williams, 149 Wn.2d at 146-47.




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No. 49672-1-II


“Nevertheless, a defendant may appeal the trial court’s procedure in imposing his sentence.” State

v. Knight, 176 Wn. App. 936, 957, 309 P.3d 776 (2013).

       When a person commits a felony while under sentence for a prior felony conviction, the

sentences are presumptively consecutive. RCW 9.94A.589(2)(a).1 A sentencing court may

provide an exceptional sentence below the standard range by deviating from statutory standards

“governing whether sentences are to be served consecutively or concurrently.” Former RCW

9.94A.535 (2013). The sentencing 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.” Former RCW 9.94A.535. A defendant’s youthfulness is a mitigating factor

that may justify an exceptional sentence below statutory sentencing guidelines, even when the

defendant is a legal adult. State v. O’Dell, 183 Wn.2d 680, 688-89, 358 P.3d 359 (2015).

       When a defendant requests an exceptional sentence downward, review is limited to

instances where the sentencing court either (1) categorically refuses to impose an exceptional

sentence downward under any circumstances or (2) relies on an impermissible basis for refusing

to impose an exceptional sentence below the standard range. State v. Garcia-Martinez, 88 Wn.

App. 322, 330, 944 P.2d 1104 (1997). “While no defendant is entitled to an exceptional sentence

below the standard range, every defendant is entitled to ask the [sentencing] court to consider such

a sentence and to have the alternative actually considered.” State v. Grayson, 154 Wn.2d 333,

342, 111 P.3d 1183 (2005) (emphasis added). And a sentencing court abuses its discretion when

the defense requests an exceptional sentence below the standard range and the court fails to



1
  RCW 9.94A.589(2)(a) provides that “whenever a person while under sentence for conviction of
a felony commits another felony and is sentenced to another term of confinement, the latter term
shall not begin until expiration of all prior terms.”
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No. 49672-1-II


consider mitigating factors raised by the defense. See O’Dell, 183 Wn.2d at 697 (citing Grayson,

154 Wn.2d at 342).

       A sentencing court violates the Eighth Amendment when it fails to consider the defendants’

youthfulness when sentencing juveniles in adult court. State v. Houston-Sconiers, 188 Wn.2d 1,

9, 391 P.3d 409 (2017).

                                     B. HOUSTON-SCONIERS

       Avalos argues that under Houston-Sconiers, sentencing courts are constitutionally required

to consider a defendant’s youthfulness when imposing a sentence and that the sentencing court

here abused its discretion when it failed to consider whether to mitigate Avalos’s sentence based

on his youthfulness. But Houston-Sconiers is distinguishable.

       In Houston-Sconiers, two defendants, aged 16 and 17, were charged as adults and

sentenced under adult sentencing guidelines, including mandatory firearm sentencing

enhancements (FSEs). 188 Wn.2d at 8, 12-13. The sentencing court believed it lacked discretion

to mitigate the enhanced sentence based on the defendants’ juvenile status. Houston-Sconiers, 188

Wn.2d at 12-13. As a result, the court imposed the FSEs, despite the judge’s “frustration at his

inability to exercise greater discretion over the sentences imposed.” Houston-Sconiers, 188 Wn.2d

at 13. The Supreme Court held, “Because ‘children are different’ under the Eighth Amendment

and hence ‘criminal procedure laws’ must take the defendants’ youthfulness into account,

sentencing courts must have absolute discretion to depart as far as they want below otherwise

applicable [Sentencing Reform Act of 1981, ch. 9.94A RCW] ranges and/or sentencing

enhancements when sentencing juveniles in adult court.” Houston-Sconiers, 188 Wn.2d at 9

(emphasis added).


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No. 49672-1-II


       As the State argues, Houston-Sconiers is distinguishable from Avalos’s case. In contrast

to the 16- and 17-year-old defendants in Houston-Sconiers, Avalos was 19 at the time he

committed his crime and thus a legal adult. Avalos has failed to show that Houston-Sconiers

provides a constitutional basis for requiring sentencing courts to consider the defendant’s

youthfulness as a mitigating factor at sentencing when the defendant is a legal adult rather than a

juvenile. Further, here, the sentencing court considered Avalos’s youthfulness but rejected defense

counsel’s argument that youthfulness was a mitigating factor that justified a low-end standard

range sentence under the facts presented.

                                            C. O’DELL

       Next, Avalos argues that under O’Dell, 183 Wn.2d at 683, the sentencing court abused its

discretion when it failed to consider youthfulness as a mitigating factor that would justify a

concurrent rather than consecutive sentence. But O’Dell is distinguishable. Unlike O’Dell, the

sentencing court here did not abuse its discretion because it was not asked to impose an exceptional

sentence, and it did not refuse to consider youthfulness as a mitigating factor.

       Eighteen-year-old O’Dell was convicted of second degree rape. O’Dell, 183 Wn.2d at 683.

At sentencing, defense counsel asked the sentencing court to impose an exceptional sentence

below the standard range because the defendant’s youthfulness impaired his ability to appreciate

the wrongfulness of his conduct and act in conformity with the law. O’Dell, 183 Wn.2d at 685.

The sentencing court “ruled that it could not consider age as a mitigating circumstance” because

O’Dell was a legal adult. O’Dell, 183 Wn.2d at 685 (emphasis added). On appeal, the Supreme

Court held that the sentencing court abused its discretion because it believed erroneously that it




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No. 49672-1-II


could not consider youth as a mitigating factor and, as a result, failed to consider whether O’Dell’s

youth impacted his culpability. O’Dell, 183 Wn.2d at 696-97.

       O’Dell is distinguishable from Avalos’s case because O’Dell involved an appealable error

while Avalos’s case does not. A defendant may not appeal a standard range sentence unless he

shows that the sentencing court either (1) categorically refused to impose an exceptional sentence

downward under any circumstances or (2) relied on an impermissible basis for refusing to impose

an exceptional sentence below the standard range. Garcia-Martinez, 88 Wn. App. at 330; see

RCW 9.94A.585(1).        O’Dell’s sentence was appealable because, based on an erroneous

understanding of the law, the sentencing court refused to impose O’Dell’s requested exceptional

sentence. O’Dell, 183 Wn.2d at 696-97.

       In contrast, Avalos never requested an exceptional sentence and in fact agreed that a

consecutive sentence was required. While a defendant is entitled to ask the sentencing court to

consider such a sentence and to have the alternative actually considered, Avalos did not ask the

sentencing court to consider an exceptional sentence. Grayson, 154 Wn.2d at 342. Thus, unlike

the sentencing court in O’Dell, Avalos’s sentencing court did not err by refusing to consider a

sentence based on an improper basis. We reject Avalos’s argument that the sentencing court

abused its discretion when it imposed a standard range sentence.

                            II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Avalos argues that defense counsel provided ineffective assistance when he conceded that

Avalos’s sentence was required to run consecutive to his prior felonies and failed to cite O’Dell to

support a concurrent sentence. Because Avalos was not prejudiced by his counsel’s deficient

performance, his argument fails.


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No. 49672-1-II


       Ineffective assistance of counsel is a mixed question of law and fact that we review de

novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). The federal Sixth Amendment

protects defendants from ineffective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 685-87, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) that counsel’s performance was deficient and (2)

the deficient performance prejudiced the defense. State v. Carson, 184 Wn.2d 207, 216, 357 P.3d

1064 (2015). “A failure to satisfy either prong is fatal to an ineffective assistance of counsel

claim.” State v. McLean, 178 Wn. App. 236, 246, 313 P.3d 1181 (2013) (citing Strickland, 466

U.S. at 687).

       Even assuming without deciding that counsel was deficient, Avalos fails to demonstrate

that he was prejudiced by this deficiency. To support that he was prejudiced, Avalos states,

“Although the court remained firm in its decision to impose a 70-month prison term, nothing

suggests the judge would have refused to consider a request for concurrent sentences, had counsel

properly supported such a request.” Br. of Appellant at 10. We disagree.

       A defendant establishes prejudice by showing that there is a reasonable probability that the

result of the proceeding would have been different but for counsel’s unprofessional errors. State

v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Grier, 171 Wn.2d at 34 (quoting Strickland,

466 U.S. at 694).

       The standard range sentence for Avalos’s conviction was 53 to 70 months, and the

sentencing court imposed the high end of the standard range. At resentencing, the sentencing court




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No. 49672-1-II


acknowledged and rejected counsel’s arguments that Avalos’s sentence should be at the lower end

of the standard range as a result of his young age.

       The sentencing court discussed the violent nature of the attack, highlighting that the

corrections officer required stitches to treat his injuries and was on medical leave for 10 months as

a result of the assault. The sentencing judge said, “I think that the attack was cowardly and I think

that the range, that has been suggested by the State, at the high end is entirely appropriate.” RP

(Mar. 10, 2015) at 18-19. The sentencing court also acknowledged and rejected defense counsel’s

arguments regarding Avalos’s age:

       Mr. Avalos, I realize I’ve impose the high end of the range, but I agree with all the
       things your attorney said about you and your life. You’re a young man. You’ve
       got your whole life ahead of you. It would be great if you could get an education
       when you’re in prison, if you could turn your life around, get out and have a nice,
       long, happy, healthy life, but ultimately it’s up to you.

RP (Mar. 10, 2015) at 21.

       Thus, although Avalos’s counsel argued that Avalos’s youthfulness was a mitigating factor

that justified a low-end sentence, the sentencing court was unpersuaded because it believed the

nature of the harm caused justified a high-end sentence. If Avalos’s counsel had asked the

sentencing court for an exceptional concurrent sentence, the sentence would have resulted in no

additional incarceration for the violent attack on a corrections officer. Based on the sentencing

court’s rejection of defense counsel’s low-end standard range sentence and imposition of a

sentence at the high end of the range, there is no reasonable probability that the sentencing court

would have imposed a sentence below the standard range but for counsel’s unprofessional errors.

Grier, 171 Wn.2d at 34.




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No. 49672-1-II


        Because Avalos cannot show that the outcome of the proceedings would have been

different if his counsel had requested an exceptional sentence, Avalos’s ineffective assistance

claim fails. Grier, 171 Wn.2d at 34.

                                       III. APPELLATE COSTS

        Avalos asks that we deny appellate costs to the State. Under RAP 14.2, a commissioner of

this court will determine whether to award appellate costs in due course.

        We affirm.

        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.



                                                    JOHANSON, J.
 We concur:



 MAXA, A.C.J.




 MELNICK, J.




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