                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                      January 22, 2020




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                          No. 51929-1-II

                                Respondent,

           v.

    DEVIN JOHN KONECNY,                                     UNPUBLISHED OPINION

                                Appellant.

         MELNICK, J. — Devin John Konecny appeals his exceptional sentence above the standard

range arguing it is clearly excessive. Konecny further challenges the imposition of certain legal

financial obligations (LFOs).1 We affirm Konecny’s sentence, but remand to the trial court to

strike certain LFOs.

                                              FACTS

         As a child, Konecny was exposed to drugs, abuse, and neglect. Konecny began using

methamphetamine at 10 years old. He dropped out of high school in the eighth grade. Konecny’s

grandfather raised him.

         Doctors diagnosed Konecny with post-traumatic stress disorder, borderline personality

disorder, and severe stimulant use disorder. In 2008, doctors also diagnosed Konecny with

multiple sclerosis (MS).



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    The State concedes error.
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       In 2016, Konecny was listed on Washington’s Most Wanted. Acting on a tip, officers

approached an apartment building where Konecny was reportedly staying. Konecny repeatedly

shot at the officers as they attempted to get Konecny to exit the apartment.

       The State originally charged Konecny with ten counts of assault in the first degree with

special allegations that he was armed with a firearm at the time of each offense, two counts of

intimidating a police officer, and one count of unlawful possession of a firearm. After plea

negotiations, Konecny pleaded guilty to ten counts of assault in the second degree including five

firearm enhancements.

       The parties stipulated to Konecny’s criminal history, which resulted in an offender score

of 32. Konecny had a standard range sentence on each of the ten assaults of 63-84 months, plus

180 additional months for the five firearm enhancements for a total standard range of 243-264

months. Konecny agreed that the State could recommend an exceptional sentence above the

standard range of 348 months. Konecny agreed “to the presence of an exceptional sentence.”

Clerk’s Papers (CP) at 94.

       As agreed upon, the State recommended a sentence of 348 months. Konecny argued for

264 months. He emphasized his history of trauma and abuse that left him with limited emotional

maturity. Konecny also argued that the trajectory of his MS was unknown and that although he

could still walk, he had decreasing mobility. Konecny pointed out that even with the sentence he

recommended he had little likelihood of walking out of prison upon his release. Konecny also

argued he would likely not be able to work upon release. It would be unlikely that Konecny’s

grandfather, his primary source of support, would be able to support or assist Konecny upon

release.




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       The sentencing court acknowledged that Konecny did not get “a very fair shake in life,”

given his history of abuse, neglect, and exposure to drugs at an early age. Report of Proceedings

(RP) (June 14, 2018) at 47. The court also acknowledged that even Konecny’s sentencing

recommendation would ultimately “end up being the equivalent [to] a life sentence.” RP (June 14,

2018) at 48. However, the court found that Konecny’s “high offender score result[ed] in some

current offenses going unpunished.” CP at 236; RCW 9.94A.535(2)(c). Based on this finding, the

court imposed the State’s recommended exceptional sentence above the standard range of 348

months. The court also imposed 18 months of community custody.

       Lastly, the sentencing court found Konecny indigent and stated its intent to “waive all of

the fines and costs except for the crime victim penalty assessment and the restitution.” RP (June

14, 2018) at 49. However, on the judgement and sentence, the court did not cross off the boilerplate

language that imposed collection costs, interest on financial obligations, and supervision and

community placement fees. Konecny appeals.

                                           ANALYSIS

I.     EXCEPTIONAL SENTENCE

       Konecny contends that his exceptional sentence above the standard range was clearly

excessive. We disagree.

       The sentencing court has discretion to determine the appropriate length of an exceptional

sentence when substantial and compelling reasons are present. State v. Knutz, 161 Wn. App. 395,

410, 253 P.3d 437 (2011). We will, however, reverse a sentence above the standard range if the

sentence imposed is “clearly excessive.” RCW 9.94A.585(4). We have “considerable latitude”

when assessing whether a sentence is clearly excessive. State v. Halsey, 140 Wn. App. 313, 325,

165 P.3d 409 (2007).



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       A sentence is clearly excessive if (1) it is “‘clearly unreasonable,’” i.e., is based on

untenable grounds or untenable reasons or (2) it is based on proper reasons, but its length “‘shocks

the conscience’” in light of the record. Knutz, 161 Wn. App. at 410-11 (internal quotation marks

omitted) (quoting State v. Kolesnik, 146 Wn. App. 790, 805, 192 P.3d 937 (2008)). Konecny

argues his sentence was unreasonable, and therefore clearly excessive, because there were several

factors that warranted an exceptional sentence below the standard range; the sentence does not

further the purpose of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW; and

Konecny’s sentence was a de facto life sentence.

       Initially, Konecny received the sentence he bargained for. In State v. Ermels, 156 Wn.2d

528, 533-34, 131 P.3d 299 (2006), the parties entered into a plea agreement where Ermels pleaded

guilty to a single charge and agreed that there was a basis for an exceptional sentence on that

charge. Ermels did so in exchange for the State’s agreement not to file a more serious charge with

a significantly longer standard range. Ermels then appealed his exceptional sentence. Ermels, 156

Wn.2d at 535. The Supreme Court held that “[b]ecause the portions of [Ermels’s] plea agreement

stipulating to the facts supporting the exceptional sentence and the legal basis for the exceptional

sentence are indivisible from the rest of his plea agreement, he cannot challenge the exceptional

sentence without challenging the entire plea.” Ermels, 156 Wn.2d at 542. Ermels did not challenge

his entire plea and the Supreme Court declined to “reframe his argument to do so.” Ermels, 156

Wn.2d at 542.




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          Additionally, in In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 310, 979 P.2d 417

(1999), the parties agreed that an exceptional sentence was justified in light of the crime. On

appeal, the Supreme Court held that the defendant’s agreement to an exceptional sentence, alone,

provided a substantial and compelling reason for an exceptional sentence. Breedlove, 138 Wn.2d

at 300.

          Similarly, here, Konecny agreed to plead to ten counts of assault in the second degree with

only five firearm enhancements. He was originally charged with ten counts of assault in the first

degree with ten firearm enhancements, two counts of intimidating a police officer, and one count

of unlawful possession of a firearm, which would result in a significantly longer standard range.

With the reduced charges, Konecny stipulated to an offender score of 32 and agreed that the State

could recommend an exceptional sentence above the standard range of 348 months. He also

stipulated that there was “the presence of an exceptional sentence.” CP at 94. Because Konecny

agreed to an exceptional sentence above the standard range, he cannot now challenge the

exceptional sentence without challenging his entire plea, which he does not do.

          Nevertheless, Konecny’s exceptional sentence above the standard range is not clearly

excessive because it is supported by tenable grounds. The court imposed the sentence based on

RCW 9.94A.535(2)(c), which allows a sentencing court to impose an exceptional sentence when

the “defendant has committed multiple current offenses and the defendant’s high offender score

results in some of the current offenses going unpunished.” This statute gives the court the

“discretion to impose an exceptional sentence if it deems the defendant’s sentence will result in




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‘free crimes.’” State v. Brown, 193 Wn.2d 280, 285, 440 P.3d 962 (2019). The sentencing court

also considered several mitigating factors including Konecny’s childhood and his illnesses. The

court considered that Konecny’s sentence would likely result in a life sentence, which could

potentially limit Konecny’s opportunity to improve himself. See RCW 9.94A.010(5) (one of the

purposes of the SRA is to “[o]ffer the offender an opportunity to improve himself or herself”).

But, these reasons did not overcome the tenable basis for an exceptional sentence provided in RCW

9.94A.535(2)(c). For this reason, Konecny’s sentence is not unreasonable. Thus, Konecny fails

to show that his sentence is clearly excessive.

       Because Konecny received the sentence he bargained for and because his exceptional

sentence above the standard range is not clearly excessive, the sentencing court did not abuse its

discretion in imposing Konecny’s sentence.

II.    LFOS

       After the sentencing court found Konecny indigent, it stated its intent to “waive all of the

fines and costs except for the crime victim penalty assessment and the restitution.” RP (June 14,

2018) at 49. However, on the judgement and sentence, the court did not cross off the boilerplate

language that imposed collection costs, interest on financial obligations, and supervision and

community placement fees. Konecny argues that these costs and fees were erroneously imposed.

The State concedes that these fees were wrongly imposed. Regarding the interest section, the State

argues that section should be revised to relate solely to restitution.

       We remand to the court to strike the LFOs that it did not intend to impose and to strike the

provision relating to interest on non-restitution LFOs.




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        We affirm Konecny’s sentence, but remand to the trial court to strike certain LFOs.

        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.




                                                            Melnick, J.

We concur:




        Maxa, C.J.




        Glasgow, J.




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