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

STATE OF WASHINGTON,                           )     No. 78566-4-I

                              Respondent,

                v.                            )      UNPUBLISHED OPINION

YORLANG, JEFFREY JASON,                       )
DOB: 02/13/1988,

                          Appellant.          )      FILED: December 2, 2019

       SCHINDLER,    J.   —   Thirty-year-old Jeffrey Jason Yorlang pleaded guilty to domestic

violence assault in the second degree while armed with a deadly weapon and

residential burglary. The court imposed an exceptional sentence of credit for time

served and the mandatory 12-month deadly weapon sentence under RCW

9.94A.533(4). Yorlang appeals the judgment and sentence. Yorlang contends the court

erred in concluding that it did not have the discretion to impose an exceptional sentence

downward for the mandatory deadly weapon enhancement. For the first time on

appeal, Yorlang also contends the court should prohibit collection of the $500 victim

penalty assessment from Social Security disability income. Because the plain language

of RCW 9.94A.533(4) and case law establishes imposition of the 12-month deadly
No. 78566-4-1/2

weapon enhancement is mandatory and the uncontroverted record shows Yorlang was

not receiving Social Security benefits, we affirm.

Domestic Violence Assault with a Deadly Weapon

             Jeffrey Jason Yorlang is the son of James Yorlang. On October 11, 2017, an

Everett Municipal Court judge entered a domestic violence no-contact order prohibiting

Yorlang from contacting his father or coming within 500 feet of his residence.

             On January 17, 2018, Everett Police Department officers responded to a 911 call

from James’1 residence. Yorlang fled before officers arrived. Yorlang’s brother-in-law

Richard Sussman was on the floor “with blood nearby to where he was laying.”

Richard2 told the police that Yorlang stabbed him in the back. Medics transported

Richard to Providence hospital. Witnesses told the police that Yorlang and his brother-

in-law argued, Yorlang went into the kitchen, “grabbed” a steak knife, and stabbed

Richard multiple times.

         Medical records document “{t]hree stab wounds to the upper back and one knife

wound to [Richard’s] head.” The medical records state the “injuries included                   .   .   .   6 cm

and 4 cm lacerations that appeared to be deep” and “required a total of 30 staples.”

Richard also suffered “a contusion of the left lung” and “a fracture of one of his right

ribs.”

         Richard told the police that Yorlang “has unclear” but undiagnosed “mental health

concerns and issues.” Richard said Yorlang “does not take prescription medications but

in the past has cut items in the residence with a knife and made references to demons.”




         1   We refer to James Yorlang by his first name for purposes of clarity.
         2   We refer to Richard Sussman and his wife Sharon Sussman by their first names for clarity.


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No. 78566-4-113

       The police arrested Yorlang the next day when he returned to his father’s house.

Yorlang “admitted to stabbing his brother-in-law multiple times,” “he knew his father had

a court order,” and knew “he was not supposed to be in the house.”

       The State charged Yorlang with domestic violence assault in the second degree

while armed with a deadly weapon in violation of RCW 9A.36.021(1)(a) and (c) and

RCW 9.94A.533(4) and domestic violence residential burglary in violation of

RCW 9A.52.025.

Plea Agreement

       The State and Yorlang entered into a plea agreement on April 12, 2018. Yorlang

agreed to plead guilty as charged. Yorlang agreed the court could consider the facts in

the certificate of probable cause for purposes of sentencing.

       With an offender score of 3, the standard sentence range for assault in the

second degree is 13 to 17 months plus a mandatory 12-month deadly weapon

enhancement. The standard sentence range for residential burglary is 1 5 to 20 months.

The State agreed to recommend a concurrent 18-month sentence plus the 12-month

deadly weapon enhancement. The plea agreement states the defense ‘may request

exceptional downward sentence.” Yorlang entered an Alford3 plea on April 20.

Request for Exceptional Sentence

       Before the June 4 sentencing hearing, defense counsel filed a sentencing

memorandum arguing the court should impose an exceptional sentence below the

standard range of 9 months with credit for time served. The defense attached the report

of social worker Eric Johnsen to argue that at the time of the assault, Yorlang was



      ~ North Carolina v. Alford, 400 U.S. 25, 91 5. Ct. 160, 27 L. Ed. 2d 162 (1970).


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No. 78566-4-1/4

suffering from undiagnosed serious mental illness. The defense also claimed that

“although legally imperfect,” Yorlang was acting in self-defense and “protecting himself.”

       In his report, Johnsen states that he interviewed 30-year-old Yorlang and

reviewed the “online posts” Yorlang made before his arrest. Johnsen said the online

posts “revolve around alien or interplanetary themes and content” and “are almost

always nonsensical and disorganized.” Johnsen states Yorlang “became obsessed with

supernatural phenomena like telepathy and conspiracy theories involving alien

abductions.”

       Johnsen concluded Yorlang “appears to be suffering from undiagnosed

schizophrenia with both paranoid and disorganized type symptoms.” Johnsen states

that although Yorlang “has been struggling with mental illness for quite some time,” he

“has never received psychiatric treatment in the community.” Johnsen states Yorlang

“is amenable to mental health treatment and was recently evaluated by the jail’s

prescriber for medications to treat his symptoms.”

Sentencing Hearing

      At the sentencing hearing on June 4, the prosecutor recommended the court

sentence Yorlang to a concurrent sentence of 17 months for the assault and 1 8 months

for the residential burglary to run consecutively to the 12-month deadly weapon

enhancement.

      The prosecutor agreed Yorlang suffered from “a mental health condition” that

could have been asserted as “a colorable defense.”

      I do agree with and understand the claim that although not rising to the
      level of a legal defense, there was a mental health condition which was
      potentially along the lines of a colorable defense to some of the elements
      of the crimes which were charged.


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No. 78566-4-1/5

               Ultimately, Your Honor, I agree that those are mitigating factors in
       this particular case and in this particular situation, and I look at these
       situations a little bit differently when it appears there is something that
       wasn’t necessarily formally diagnosed in advance as opposed to a
       situation where a person has not been taking their prescribed medications.

The prosecutor asked the court to “make a finding that the defendant has a mental

condition that contributed to this offense.”

       The prosecutor told the court that the victim Richard Sussman did not want the

court to impose a “lengthy prison sentence”:

              Your Honor, I can tell the court that this case was an Alford plea.
      The State was satisfied with the plea, with the disagreed recommendation,
      in large part because when I met with Mr. Sussman from the very
      beginning he made it very clear that he never wanted any kind of lengthy
      prison sentence to be imposed on Mr. Yorlang. He felt there was a clear
      mental health dynamic that needed to be addressed, which was a clear
      contributing factor to the underlying situation.
              The State felt that the deadly weapon enhancement was
      appropriate given the nature of the attack and the extent of the injuries to
      Mr. Sussman, which include multiple stab wounds including to the head
      and back area.

      Yorlang’s father James and his sister Sharon Sussman addressed the court and

asked the court to impose an exceptional sentence. James said he let Yorlang come

into the house despite the no-contact order. James told the court:

             I am sorry I did that. I didn’t think that he
                                                         —   I didn’t think he would,
      you know, be as aggressive. And I did learn later on that he’s having
      some trouble with hearing voices and I also know that he’s been using
      drugs. I talked to him about it before. I really don’t know. I’m not good,
      you know, in judging people.
             So I just want to ask you, judge, what I want him to have is the
      proper help he needs and that he will        you know, that will help him with
                                                   —


      his mental problem. If possible, judge, Your Honor, if you could lessen his
      sentence.




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No. 78566-4-1/6

       Sharon told the court:

               I Jove my little brother. I don’t  I told my husband I want both of
                                                         —


       them to take half the responsibility what happened that night. He
       shouldn’t have to take full responsibility for everything. It wouldn’t be fair.
               If you can consider my plead with you, Your Honor, I would really
       appreciate it. It would mean the world to our family. I know my husband
       wouldn’t want Jeff to spend a long time in prison. That’s not what he
       wants. My husband recognized his faults. He wants the best for Jeff and
       for Jeff to get the treatment.

       The prosecutor stated that if the court decided to impose an exceptional

sentence as requested by the defense, the court could impose “up to zero on the base

range.” The court noted, “I think I’m still bound by giving him 12 months on the weapon

enhancement. I don’t think I can reduce that.” In response, the defense attorney told

the court, “I forgot to address” imposition of the mandatory 12-month deadly weapon

sentence. The defense attorney cited a recent case, State v. Houston-Sconiers, 188

Wn.2d 1, 391 P.3d 409 (2017), for the first time to argue that “judges do have discretion

even when it comes to   .   .   .   enhancements.”

       The court quoted from the letter Richard wrote in ruling that it would grant the

request for an exceptional downward sentence:

      [Richard] indicated in his statements that he’s totally recovered from his
      injuries both physically and psychologically. And he said, “I do believe an
      extended jail sentence will not help [Yorlang] with these issues and may
      only make matters worse. I know he needs professional help with drug
      addiction and monitored/enforced psychiatric care to overcome these
      hurdles in his life.” And then [Richard] said he just wanted to make sure
      that you got the help that you needed and you recovered. So this is not
      somebody who is advocating or indicating that you should go to prison for
      a significant period of time. In fact, he states to the contrary, that it’s
      possible that it might make things worse.

But the court ruled, “I don’t believe that [Houston-Sconiers] is authority which authorizes

me to waive the 12-month enhancement.” However, the court continued the sentencing



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No. 78566-4-1/7

hearing to allow the parties to submit additional briefing to address the deadly weapon

enhancement statute and Houston-Sconiers.

        The prosecutor filed a supplemental memorandum arguing ROW 9.94A.533(4)

mandates a 12-month consecutive sentence for committing a crime with a deadly

weapon. The prosecutor states the Supreme Court decision in Houston-Sconiers held

that under the Eight Amendment to the United States Constitution, the sentencing court

has the discretion for juvenile offenders only to impose an exceptional sentence

downward, including for a weapon enhancement. The prosecutor argued the court

should impose “a sentence of, at the very least, 12 months for the deadly weapon

enhancement, with the ability to impose 0 months on the underlying standard range

sentence.”

        Defense counsel filed a supplemental sentencing memorandum arguing the court

should find Yorlang’s undiagnosed mental illness is a mitigating factor and reduce the

length of the deadly weapon sentence enhancement. The defense argued the rationale

of Houston-Sconiers should apply to individuals with “mental illness and the impairment

of capacity to appreciate the wrongfulness of the conduct or conform conduct to the

law.”

        The court found, “Reasonable grounds exist to believe the defendant is a

mentally ill person as defined in ROW 71 .24.025, and that this condition is likely to have

influenced the offense.” The court imposed an “exceptional sentence below the

standard range” of 0 days for assault in the second degree and residential burglary

“based on imperfect mental & self-defense claims.” The court imposed a 12-month

sentence of confinement for committing assault while armed with a deadly weapon



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No. 78566-4-118

under RCW 9.94A.533(4). The judgment and sentence states, “The Court finds it has

no discretion to impose less than the 12 months mandatory for the deadly weapon

enhancement.” The court imposed 18 months of community custody and ordered

Yorlang to obtain a mental health evaluation. The court waived all discretionary legal

financial obligations and imposed the mandatory $500 victim penalty assessment to be

paid at the rate of $10 per month after Yorlang’s release.

Mandatory Deadly Wearon Enhancement

       Yorlang appeals imposition of the 12-month deadly weapon sentence. Yorlang

contends the court erred in ruling it did not have the discretion to impose an exceptional

sentence for the deadly weapon enhancement under RCW 9.94A.533(4).

       The court’s mistaken belief that an exceptional sentence is not authorized by

statute is an abuse of discretion subject to reversal. State v. Grayson, 154 Wn.2d 333,

342, 111 P.3d 1183 (2005). But a court “cannot abuse discretion it does not have.” In

re Pers. Restraint of Light-Roth, 191 Wn.2d 328, 337, 422 P.3d 444 (2018). Here,

neither the plain language of RCW 9.94A.533(4) nor case law supports Yorlang’s

argument that the court had the discretion to impose an exceptional sentence for the

deadly weapon enhancement under RCW 9.94A.533(4).

       Interpretation of a statute is a question of law we review de novo. State v.

Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010). Ourfundamental goal in

statutory interpretation is to ascertain and carry out the intent of the legislature. State v.

Larson, 184 Wn.2d 843, 848, 365 P.3d 740 (2015). In determining the plain meaning of

a statute, we look at the context of the statute, related provisions, and the statutory

scheme as a whole. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).



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No. 78566-4-1/9

Statutes must be read together to harmonize and give effect to the statutory scheme

and maintain the integrity of the respective statutes. State v. Jones, 172 Wn.2d 236,

243, 257 P.3d 616 (2011), If the plain meaning of the statute is unambiguous, our

inquiry ends. Gonzalez, 168 Wn.2d at 263.

       Under ROW 9.94A.535, a court may impose an exceptional sentence below the

standard range if it finds mitigating circumstances are established by a preponderance

of the evidence and substantial and compelling reasons justify an exceptional sentence.

ROW 9.94A.535(1) lists illustrative reasons to “impose an exceptional sentence below

the standard range,” including a mental health condition that significantly impairs the

defendant’s “capacity to appreciate the wrongfulness of his or her conduct.” ROW

9.94A.535(1)(e); Statev. Jeannotte, 133 Wn.2d 847, 851-52, 947 P.2d 1192 (1997).

       ROW 9.94A.533(4) governs imposition of a deadly weapon enhancement.

ROW 9.94A.533(4) states that if the offender was armed with a deadly weapon “other

than a firearm as defined in ROW 9.41 .01 0” and the offender is being sentenced for a

class B felony, the court shall add 12 months to the sentence. ROW 9.94A.533(4)(b).

The plain and unambiguous language of ROW 9.94A.533(4)(e) states:

      Notwithstanding any other provision of law, all deadly weapon
      enhancements under this section are mandatory, shall be served in total
      confinement, and shall run consecutively to all other sentencing
      provisions, including other firearm or deadly weapon enhancements, for all
      offenses sentenced under this chapter.[4]

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

grounds by Houston-Sconiers, 188 Wn,2d at 1, the Washington Supreme Oourt held the

‘absolute language” of RCW 9.94A.31 0, recodified as ROW 9.94A.51 0 (LAWS OF 2001,



      “Emphasis added.


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No. 78566-4-1/10

ch. 10,   § 6), deprives a sentencing court of the discretion to impose an exceptional
sentence for a deadly weapon enhancement:

          RCW 9.94A.310(4)(e) clearly provides that an offender’s sentence cannot
          be reduced below the times specified in ROW 9.94A.31 0(4)(b). If ROW
          9.94A.310(4)(e) is to have any substance, it must mean that courts may
          not deviate from the term of confinement required by the deadly weapon
          enhancement.

The legislature has chosen not to amend this statutory language since Brown was

decided nearly 20 years ago.        ‘   ‘[T}his court presumes that the legislature is aware of

judicial interpretations of its enactments and takes its failure to amend a statute

following a judicial decision interpreting that statute to indicate legislative acquiescence

in that decision.’   “   State v. Otton, 185 Wn.2d 673, 685-86, 374 P.3d 11 08 (2016)

(quoting City of Federal Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009)).

       The Washington Supreme Court in Houston-Sconiers did not modify the holding

of Brown with respect to adults. The court held the Eighth Amendment requires the

court to consider mitigating circumstances associated with the youth of any juvenile

defendant.” Houston-Sconiers, 188 Wn.2d at 21. The court held that “[t]o the extent

our state statutes have been interpreted to bar such discretion with regard to juveniles,

they are overruled.” Houston-Sconiers, 188 Wn.2d at 21.~

       Yorlang cites In re Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d

677 (2007), and State v. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017), to argue the

court has the discretion to depart from a mandatory consecutive deadly weapon

enhancement despite the statutory language that mandates a consecutive sentence.




       ~ Footnote omitted.


                                                   10
No. 78566-4-I/il

Mulholland and McFarland are distinguishable. Neither of these cases address RCW

9.94A.533(4).

       In Mulholland, the Washington Supreme Court held that the plain language of

ROW 9.94A.535 and ROW 9.94A.589 authorize a concurrent exceptional sentence to

be imposed for multiple serious violent offenses when the court identifies substantial

and compelling reasons to do so, even though ROW 9.94A.589(1)(b) states that

sentences for such crimes must be consecutive. Mulholland, 161 Wn.2d at 329-30.

Likewise, in McFarland, the Washington Supreme Court held that RCW 9.9A.535 and

ROW 9.94A.589(1)(c) permit the sentencing court to impose exceptional concurrent

sentences for firearms-related convictions. McFarland, 189 Wn.2d at 54-55. Nothing in

Mulholland nor McFarland overrules or undermines ROW 9.94A.533(4) or Brown. The

sentencing court did not err in concluding it did not have the discretion under ROW

9.94A.533(4) to impose an exceptional sentence for the mandatory 12-month deadly

weapon enhancement in this case.

Social Security Benefits

       The court waived all nonmandatory legal and financial obligations and imposed

only the mandatory $500 victim penalty assessment (VPA) fee under ROW 7.68.035.

At the sentencing hearing, defense counsel agreed Yorlang could pay $10 a month.

       For the first time on appeal, Yorlang contends the court erred by not stating in the

judgment and sentence that the $500 VPA cannot be collected from Social Security

disability benefits. Under RAP 2.5(a), because Yorlang must object to the finding that

he had the ability to pay $10 per month to preserve a claim of error, we decline to

review this issue raised for the first time on appeal.



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No. 78566-4-1/12

       In any event, nothing in the record shows Yorlang was receiving Social Security

benefits. In State v. Catling, 193 Wn.2d 252, 264, 260, 438 3d 1174 (2019), the court

held imposition of the mandatory VPA does not violate the anti-attachment provision of

the Social Security Act, 42 U.S.C.   § 407(a), but “this provision” prohibits using those
benefits in a collection action. Here, unlike in Catlincj and as noted, the record does not

show Yorlang was receiving Social Security benefits. Further, nothing in the record

indicates the State has taken any steps to enforce collection of the VPA fee. See State

v. Smits, 152 Wn, App. 514, 524-25, 216 P.3d 1097 (2009) (a party does not have the

right to appeal a legal financial obligation imposed as part of a judgment and sentence

where the claim is speculative and the State has not sought to enforce the payment).

      We affirm the judgment and sentence.




                                                                            I
WE CONCUR:




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