      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                              No. 80139-2-I
                          Respondent,
                                              DIVISION ONE
               v.
                                              UNPUBLISHED OPINION
 TYLER JORDAN KEENER,

                             Appellant.


       DWYER, J. — Tyler Keener appeals from his conviction for robbery in the

first degree. Keener, who was 24 years old when he committed the crime,

contends that remand for resentencing is required because the sentencing court

failed to sua sponte consider whether Keener’s youthfulness justified an

exceptional mitigated sentence. Keener further contends that defense counsel’s

failure to request an exceptional sentence on the basis of youthfulness

constituted ineffective assistance. Finding no error, we affirm.

                                          I

       On November 19, 2017, Shanita Stewart-Burrell drove to a Safeway

parking lot in Auburn to meet Kendrick Kwok and buy a car stereo from him.

When she arrived, Keener was with Kwok. Stewart-Burrell knew Kwok as a

friend of her husband’s but she had never met Keener. Kwok told Stewart-Burrell

that he needed to return home to pick up the stereo. The two men got into

Stewart-Burrell’s car, and Kwok directed her to drive to F Street in Auburn. Kwok
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and Keener exited the car, and Stewart-Burrell stayed in the car waiting for them.

After some time, Kwok and Keener returned without the stereo. Kwok got into

the passenger seat and Keener got in the back seat behind Stewart-Burrell.

Keener grabbed Stewart-Burrell, put a gun to her head, and said, “Give me the

money. Give me everything.”1 Keener directed Kwok to take Stewart-Burrell’s

money and keys. Kwok was unable to pull the keys from the ignition. Stewart-

Burrell, fearing she would never see her children again, removed the keys and

tossed them. Kwok grabbed the keys and the two men fled down an alley.

         Stewart-Burrell called 911. She gave police Kwok’s name and, after

describing Keener to her husband, he provided Keener’s name and photograph.

Shortly afterward, police discovered Keener and Kwok hiding in the storage

space beneath the mattress of a nearby motorhome. Police arrested both men

and recovered Stewart-Burrell’s keys. Keener told police that he and Kwok were

going through heroin withdrawal and that they planned in advance to commit the

crime.

         The State charged Keener with one count of robbery in the first degree. A

jury found Keener guilty as charged. Based on an offender score of zero, Keener

faced a standard range sentence of 31 to 41 months. Defense counsel

submitted a sentencing memorandum asking the court to impose a low-end

standard range sentence of 31 months. In support of this request, defense

counsel noted that Keener was a heroin addict with no history of violence who

was 24 when he committed the robbery. Citing State v. O’Dell, 183 Wn.2d 680,


         1   The gun used in the crime was in fact a BB gun that looked like a real handgun.

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358 P.3d 359 (2015), defense counsel asserted that “the brains of young men

are often underdeveloped until they are in their middle-twenties” and that

“youthful offenders are fundamentally different from adults.” Keener submitted a

written statement taking responsibility for his actions and acknowledging that he

is a drug addict in need of treatment. Keener also expressed concern that he

would be exposed to as many drugs in prison as he would on the street.

      At the sentencing hearing, the court acknowledged that Keener had

accepted responsibility for his actions and agreed that he needs treatment for his

drug addiction. The court also noted that Keener was not eligible for certain

sentencing alternatives due to the violent nature of his crime. The court imposed

a low end standard range sentence of 31 months as defense counsel requested.

Keener appeals.

                                        II

      Keener contends that the sentencing court erred by failing to sua sponte

recognize and exercise its discretion to impose an exceptional mitigated

sentence based on his youth. We disagree.

      The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides that a

standard range sentence “shall not be appealed.” RCW 9.94A.585(1). However,

“this rule does not preclude a defendant from challenging on appeal the

underlying legal determinations by which the sentencing court reaches its

decision.” State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). “A trial

court errs when ‘it refuses categorically to impose an exceptional sentence below

the standard range under any circumstances’ or when it operates under the


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‘mistaken belief that it did not have the discretion to impose a mitigated

exceptional sentence for which [a defendant] may have been eligible.’”

McFarland, 189 Wn.2d at 56 (alteration in original) (quoting State v. Garcia-

Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)).

       Keener relies primarily on O’Dell and McFarland. In O’Dell, the

Washington Supreme Court held that 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. 183 Wn.2d at 688-89.

O’Dell had just turned 18 when he was convicted of second degree rape. O’Dell,

183 Wn.2d at 683. Defense counsel asked the court to impose an exceptional

downward sentence below the standard range because O’Dell’s youthfulness

impacted his ability to appreciate the wrongfulness of his conduct. O’Dell, 183

Wn.2d at 685. The 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. The

Washington Supreme Court held that the sentencing court abused its discretion

because it erroneously believed that it could not consider youth as a mitigating

factor and therefore failed to consider whether O’Dell’s youth impacted his

culpability. O’Dell, 183 Wn.2d at 696-97. Similarly, in McFarland, the

Washington Supreme Court remanded for resentencing where the trial court

erroneously stated that it lacked discretion to impose consecutive firearm-related

sentences and the record suggests the possibility that the trial court would have

imposed a different sentence had it understood its discretion to do so. 189

Wn.2d at 58-59.


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      Here, unlike O’Dell and McFarland, nothing in the record indicates that the

sentencing court refused to impose an exceptional mitigated sentence based on

an erroneous belief that it lacked the discretion to do so. Keener argued that the

sentencing court should impose a low end standard range sentence because he

did not have a history of committing violent crimes and because his age and his

heroin addiction impaired his ability to clearly assess the consequences of his

actions. The court agreed and imposed the sentence Keener requested. Neither

party told the court that it could not impose an exceptional sentence, and there is

no indication that the court misunderstood the law.

      Nor did the sentencing court express discomfort in sentencing Keener at

the low end of the standard range. The court acknowledged that Keener had

accepted responsibility for his actions, agreed that Keener needed drug

treatment, and noted that certain sentencing alternatives were not available

because the crime of first degree robbery is a violent offense. The court did not

state or imply that a low-end standard range sentence was inappropriate or

unjust for any reason, including Keener’s age. Although Keener referenced

youthfulness in requesting a lenient standard range sentence, “age is not a per

se mitigating factor” that automatically entitles young defendants to an

exceptional sentence downward. O’Dell, 183 Wn.2d at 695. Given that Keener

was 24 when he committed the crime, significant evidence of lack of maturity

would be needed to reasonably establish that an exceptional sentence was

warranted on this basis. Under these circumstances, the sentencing court did




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not abuse its discretion by failing to sua sponte consider imposing an exceptional

downward sentence based on youthfulness.

                                         III

       Keener further argues that he received ineffective assistance of counsel at

sentencing when his attorney failed to expressly request an exceptional

downward sentence based on the mitigating factor of youth under O’Dell. We

disagree.

       We review claims of ineffective assistance of counsel de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of

ineffective assistance of counsel, the defendant must show both (1) that defense

counsel’s representation was deficient and (2) that the deficient representation

prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011). The first prong is met by a defendant showing that the performance falls

below an objective standard of reasonableness. Grier, 171 Wn.2d at 33. There

is a strong presumption that counsel’s representation was effective. State v.

Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). “When counsel’s conduct can

be characterized as legitimate trial strategy or tactics, performance is not

deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). The

second prong is met if the defendant establishes “a reasonable probability that,

but for counsel’s deficient performance, the outcome of the proceedings would

have been different.” Kyllo, 166 Wn.2d at 862. If either prong is not satisfied, the

defendant’s claim fails. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816

(1987).


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      Keener likens his case to that of the defendant in State v. McGill, 112 Wn.

App. 95, 47 P.3d 173 (2002). In McGill, defense counsel failed to cite controlling

case law and use it to request an exceptional downward sentence. McGill, 112

Wn. App. at 97. The trial court stated that it had “no option but to sentence

[McGill] within the [standard] range” and imposed a low end sentence. McGill,

112 Wn. App. at 99. This court held that McGill received ineffective assistance

where defense counsel failed to cite controlling precedent and the trial court

“erroneously believed it could not depart from a standard range sentence even

though it expressed a desire to do so.” McGill, 112 Wn. App. at 97.

      Here, unlike McGill, defense counsel properly cited controlling authority

that would have supported a request for an exceptional downward sentence. But

even if defense counsel’s decision to cite O’Dell in support of a low-end standard

range sentence rather than an exceptional downward sentence could be

characterized as deficient performance, we cannot on this record say that it was

prejudicial. At age 24, Keener was well into adulthood, and the evidence in the

record indicated that his crime was motivated by his need to support his long-

time heroin addiction rather than mere youthful immaturity. Also unlike McGill,

the sentencing court did not expressly determine that it did not have the

discretion to impose an exceptional downward sentence and did not express a

desire to do so. Rather, the court accepted defense counsel’s argument that

Keener deserved a lenient standard range sentence for multiple reasons.

Although it is theoretically possible that the sentencing court would have given

Keener a different sentence had his attorney expressly requested an exceptional


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downward sentence, “mere possibilities do not establish a prima facie showing of

actual and substantial prejudice.” In re Pers. Restraint of Meippen, 193 Wn.2d

310, 317, 440 P.3d 978 (2019). Because Keener has not demonstrated

prejudice, his ineffective assistance claim fails.

       Affirmed.




WE CONCUR:




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