                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                            June 1, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 47319-4-II

                                Respondent,

        v.

 LYNN GILBERT SOUTHMAYD, JR.                                   UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — Lynn Southmayd Jr. appeals his convictions and sentence for one count

of residential burglary and one count of felony violation of a no contact order, under RCW

9A.52.025(1) and former RCW 26.50.110(5) (2013), respectively. Southmayd argues that his

defense counsel rendered ineffective assistance by failing to either stipulate to Southmayd’s prior

convictions or request a bifurcated trial, and that the sentencing court abused its discretion by

failing to consider an exceptional sentence downward based on the mitigating factor that the

victim was a willing participant in the offense. We reject Southmayd’s arguments that his

counsel was ineffective, but we hold that the sentencing court abused its discretion by failing to

consider an exceptional sentence downward based on the victim’s willing participation in the

offense. Consequently, we affirm Southmayd’s convictions but remand for resentencing.
No. 47319-4-II



                                             FACTS

       Henrietta Southmayd is Southmayd’s mother. On February 21, 2014, Henrietta1 obtained

a no contact order against Southmayd in Thurston County with an expiration date of February

20, 2016, prohibiting her son from having any contact with her.

       On October 13, 2014, police officers were dispatched to Henrietta’s apartment in

response to a report of a no contact order violation. When the officers arrived, Henrietta agreed

to let them into her apartment and informed them that her son was not in the apartment.

Henrietta asked the officers to stay out of the bathroom because she needed to use it. When

Henrietta opened the door of the bathroom, officers saw a man through the hinge-side gap in the

bathroom door. The officers subsequently identified the man as Southmayd, and verified the

existence of the no contact order between Southmayd and Henrietta.

       The State charged Southmayd with one count of residential burglary and one count of

felony violation of a no contact order. At trial the State admitted exhibits of two prior judgment

and sentences to prove that Southmayd had been convicted of violation of a no contact order two

other times. Henrietta testified that she allowed Southmayd at her apartment because she was

worried about him because he was homeless. The jury found Southmayd guilty of both counts.

       Prior to sentencing, Southmayd submitted a memorandum in support of his request for an

exceptional sentence downward based in part on the statutorily enumerated mitigating factor that

the victim in the offense was a willing participant pursuant to RCW 9.94A.535(1)(a). At the




1
 Because Henrietta Southmayd and Lynn Southmayd, Jr. share the same last name, we refer to
Henrietta by her first name for clarity. We intend no disrespect.


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sentencing hearing, Southmayd renewed his request, specifically emphasizing Henrietta’s willing

participation in the offense. Southmayd urged the sentencing court to sentence Southmayd to 12

months in jail so that he could access treatment and services for his addiction and mental illness

that would otherwise be unavailable in the Department of Corrections. The court addressed

Southmayd’s request for an exceptional sentence downward, but it focused exclusively on

Southmayd’s argument that he would benefit from access to treatment and services if sentenced

to 12 months in jail. The sentencing court noted the State’s lack of resources and the large

disparity between the standard range sentence and Southmayd’s requested 12-month sentence.

The sentencing court never mentioned Southmayd’s mother’s willing participation in the offense

or RCW 9.94A.535(1)(a). The court sentenced Southmayd to a standard range sentence of 73

months for residential burglary and 60 months for violation the no contact order to run

concurrently.

                                            ANALYSIS

                             I. INEFFECTIVE ASSISTANCE OF COUNSEL

       Southmayd argues that his counsel rendered ineffective assistance by failing either to

stipulate to his prior convictions or move for a bifurcated trial in order to avoid presenting

evidence of his prior convictions to the jury. We disagree.

       To show ineffective assistance of counsel, a defendant must show that defense counsel’s

conduct was deficient, and that the deficient performance resulted in prejudice. State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); see also Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient performance,




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No. 47319-4-II



Southmayd must show that defense counsel’s performance fell below an objective standard of

reasonableness. Reichenbach, 153 Wn.2d at 130. To show prejudice, Southmayd must show a

reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the

proceeding would have differed. 153 Wn.2d at 130. If Southmayd fails to establish either prong

of the ineffective assistance of counsel test, his claim fails. State v. Foster, 140 Wn. App. 266,

273, 166 P.3d 726 (2007). We review ineffective assistance of counsel claims de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

       Assuming that defense counsel should have requested a stipulation or a bifurcation,

Southmayd cannot establish prejudice. Reichenbach, 153 Wn.2d at 130. Evidence of his guilt

was overwhelming.

       Police officers located Southmayd in Henrietta’s bathroom, in clear violation of the no

contact order. And Henrietta testified that she allowed Southmayd at her apartment because she

was worried about him. Also, the jury would have been informed of Southmayd’s prior

convictions even if his counsel stipulated to their existence. Moreover, bifurcated trials are not

favored, and Southmayd has not shown that the trial court would have granted his motion to

bifurcate. State v. Monschke, 133 Wn. App. 313, 334-35, 135 P.3d 966 (2006); see also State v.

Roswell, 165 Wn.2d 186, 197, 196 P.3d 705 (2008) (Where a prior conviction is an element of

the crime charged, evidence of its existence will never be irrelevant, and the decision not to

bifurcate is within the trial court’s discretion.). Because the evidence was overwhelming and

because Southmayd cannot show that the trial court would have granted a motion to bifurcate,

Southmayd has not established prejudice. Thus, Southmayd’s argument fails.




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                             II. EXCEPTIONAL SENTENCE DOWNWARD

         Southmayd also argues that the sentencing court abused its discretion by failing to

consider an exceptional sentence downward specifically based on the mitigating factor that the

victim was a willing participant in the offense. We agree.

         Generally, the sentencing court must impose a sentence within the standard sentencing

range under the Sentencing Reform Act.2 State v. Graham, 181 Wn.2d 878, 882, 337 P.3d 319

(2014). However, the sentencing court may exercise its discretion by imposing a sentence below

the standard range if “substantial and compelling reasons” justify an exceptional sentence. RCW

9.94A.535. The sentencing court must find that mitigating circumstances justifying a sentence

below the standard range are established by a preponderance of the evidence. RCW

9.94A.535(1). One of the possible factors that a sentencing court may use to justify an

exceptional downward sentence is if “[t]o a significant degree, the victim was [a] . . . willing

participant.” RCW 9.94A.535(1)(a).

         A standard range sentence is generally not appealable. RCW 9.94A.585(1); State v.

Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994). Appellate review of the

sentencing court’s denial of a request for an exceptional sentence below the standard range is

limited to circumstances where the sentencing court refuses to exercise its discretion at all, or

relies on an impermissible basis for refusing to impose an exceptional sentence. State v. Garcia-

Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).

“While no defendant is entitled to an exceptional sentence below the standard range, every



2
    Chapter 9.94A RCW.


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No. 47319-4-II



defendant is entitled to ask the trial 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). The

sentencing court’s failure to consider an exceptional sentence authorized by statute is reversible

error. 154 Wn.2d at 342.

       Here, the sentencing court failed to actually consider the statutorily enumerated

mitigating factor offered by Southmayd that the victim of the crime, Southmayd’s mother, was a

willing participant in the crime. In denying Southmayd’s request for a downward sentence, the

trial court focused exclusively on the length of Southmayd’s proposed sentence and his argument

that such a sentence length would allow him to access treatment options. The court engaged in a

detailed colloquy addressing the issue of treatment resources and the disparity in length between

the proposed sentence length and the standard sentence range, but never mentioned the willing

participation of Southmayd’s mother.

       The sentencing court’s colloquy at sentencing shows that it failed to meaningfully

consider that Southmayd had provided a valid mitigating factor to the court. This failure to

exercise discretion is itself an abuse of discretion subject to reversal. State v. O’Dell, 183 Wn.2d

680, 697, 358 P.3d 359 (2015); see also Grayson, 154 Wn.2d at 342. The sentencing court was

not obligated to grant Southmayd’s request for an exceptional sentence downward, but failing to

actually consider the mitigating factor that Southmayd’s mother was a willing participant in the

offense at all was an abuse of discretion. Grayson, 154 Wn.2d at 342. Therefore, we remand for

resentencing.




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No. 47319-4-II



       In conclusion, we hold that Southmayd has failed to show that defense counsel was

ineffective, but that the sentencing court abused its discretion by failing to consider Henrietta’s

willing participation in Southmayd’s offense. Accordingly, we affirm Southmayd’s convictions

but remand for resentencing.

       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:



 Bjorgen, C.J.




 Lee, J.




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