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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent, v. RICHARD JOHN RICHARDSON, Appellant.
No. 37719-9-III
UNPUBLISHED OPINION
STAAB, J. — Richard John Richardson appeals the sentence imposed following remand from an earlier appeal. He contends that the trial court failed to consider evidence of mitigating circumstances supporting his request for an exceptional sentence. In addition, Mr. Richardson contends that the standard-range sentence imposed by the trial court was disproportionate to his culpability and violates his constitutional rights against cruel punishment. We affirm. FACTS Mr. Richardson and three other codefendants hatched a plan to rob one of their drug dealers. While planning the robbery, one of the men, Isaiah Freeman, suggested killing the victim. During the robbery, Mr. Richardson acted as a lookout and a participant in the robbery and murder. In 2018, a jury found Mr. Richardson guilty of
FILED
In the Office of the Clerk of Court^ DECEMBER^9 , 2021
WA State Court of Appeals, Division III
State v. Richardson
murder in the first degree under the felony murder statute and conspiracy to commit first degree robbery. Report of Proceedings (RP) (March 15, 2018) at 997-98. The detailed allegations underlying the convictions are laid out in State v. Richardson , 12 Wn. App. 2d 657, 459 P.3d 330 (2020). At his April 20, 2018 sentencing, Mr. Richardson raised several issues. He argued that the murder and robbery convictions constituted same criminal conduct for purposes of calculating Mr. Richardson’s offender score. He also requested an exceptional sentence below the standard range based on mitigating circumstances. And finally, he asserted that the mandatory minimum sentence was void for vagueness as applied to felony murder and constituted cruel punishment given Mr. Richardson’s level of involvement. In support of his request for an exceptional sentence, Mr. Richardson’s attorney pointed to several mitigating factors, including duress and inducement. Counsel pointed out that Mr. Richardson was not privy to some of the statements by Freeman about plans to kill the victim. Counsel also noted that after the crime was completed, Freeman threatened all of the other participants with harm if they said anything. Mr. Richardson did not testify at his trial. During allocution at his April 20, 2018 sentencing, he told the judge that he was not aware of plans to kill the victim. Mr. Richardson also asserted that Freeman threatened him during the commission of the murder. While he admitted being in the room during the murder and handing a frying
State v. Richardson
at zero and his standard range at 240 to 320 months plus a 24-month deadly weapon enhancement. The State asked for a sentence at the bottom of the standard range. Notably, Mr. Richardson’s attorney agreed with the State, stating, “So we are asking for the Court to impose the low end of the range, 240 months, and then with the additional 24 months deadly weapon enhancement for 264 months.” Supp. RP at 6. Although counsel commented that there were mitigating factors, as addressed at the first sentencing hearing, counsel did not ask the court to go below the standard range and never uttered the phrase “exceptional sentence.” Nor does the record contain a sentencing memorandum requesting an exceptional sentence. Counsel did indicate that he was preserving his prior constitutional objection to the mandatory minimum sentence. The court offered Mr. Richardson an opportunity for allocution, but he declined. The court then imposed the sentence requested by both parties of 264 months, a sentence at the bottom of the standard range. ANALYSIS Mr. Richardson appeals his standard range sentence. As a general rule, standard range sentences cannot be appealed. RCW 9.94A.585(1); State v. Friederich–Tibbets , 123 Wn.2d 250, 252, 866 P.2d 1257 (1994). While a defendant may not appeal the amount of time imposed under a standard range sentence, a defendant can appeal the
State v. Richardson
procedure by which the sentence was imposed. State v. Ammons , 105 Wn.2d 175, 183, 713 P.2d 719 (1986). Mr. Richardson argues that the trial court’s procedures at resentencing were flawed. He contends that the trial court overlooked evidence of mitigation presented at trial and failed to consider Mr. Richardson’s allocution at his first sentencing hearing, thereby penalizing Mr. Richardson for exercising his right not to testify at trial. All of these issues are premised upon Mr. Richardson’s assertion that he requested an exceptional sentence at his second sentencing. He did not. Mr. Richardson asked for a low-end standard range sentence. While suggesting that there were mitigating circumstances, he did not ask the court to consider those circumstances as a basis to impose an exceptional sentence. The phrase “exceptional sentence” was never uttered. There was no request, written or oral, for a sentence below the standard range. Since Mr. Richardson did not ask for an exceptional sentence, he cannot complain on appeal that the trial court’s procedure deprived him of a meaningful opportunity for an exceptional sentence. RAP 2.5(a); See State v. Blazina , 182 Wn.2d 827, 832, 344 P.3d 680 (2015). Even if we were to consider the merits, Mr. Richardson’s challenge to the sentence that he asked for would fail. On appeal, Mr. Richardson complains that the court did not consider the evidence at trial or his first allocution in support of mitigating circumstances. In truth, there is nothing in the record to support this argument. The court did not refuse to consider evidence of mitigation. Instead, after hearing from Mr. Richardson and his
State v. Richardson
Constitution. RCW 9.94A.585(1). A defendant is permitted to challenge the sentence imposed as unconstitutionally disproportionate to the offense that he committed. State v. Fairbanks , 25 Wn.2d 686, 171 P.2d 845 (1946). This issue requires the court to interpret the constitution in the context of the sentence imposed on Mr. Richardson. As a result, the issue is reviewed de novo. State v. MacDonald , 183 Wn.2d 1, 8, 346 P.3d 748 (2015). The Washington State Constitution prohibits the infliction of “cruel punishment.” Article I, section 14. “Cruel punishment” under this section can include a sentence that is disproportionate to the offense. State v. Manussier , 129 Wn.2d 652, 676, 921 P.2d 473 (1996). Although Richardson here has asserted that his sentence violates both this provision of the Washington State Constitution and the Eighth Amendment, “the state constitutional proscription against cruel punishment affords greater protection than its federal counterpart.” Manussier , 129 Wn.2d at 674. “Therefore, if the state provision is not violated, the statute violates neither constitution.” State v. Morin , 100 Wn. App. 25, 29, 995 P.2d 113 (2000). We analyze Richardson’s constitutional challenge with a strong presumption that the punishment authorized by the legislature is constitutional. The legislature has “virtually unlimited” power to “define crimes and prescribe punishments.” State v. Cook , 26 Wn. App. 683, 686, 614 P.2d 215 (1980). As a result, “[i]t is the prerogative of the legislature to determine the kinds and severity of punishment appropriate to each offense
State v. Richardson
and to each degree of a given offense, subject only to the limitations that it not be cruel or unusual.” Id. (citing Hendrix v. Seattle , 76 Wn.2d 142, 157, 456 P.2d 696 (1969), overruled on other grounds by McInturf v. Horton , 85 Wn.2d 704, 538 P.2d 499 (1975)). Mr. Richardson raises an as-applied challenge to the constitutionality of his sentence, arguing that it is grossly disproportionate to his culpability. Under our State Constitution, Mr. Richardson’s punishment for first degree felony murder is constitutionally disproportionate only if the punishment is clearly arbitrary and shocking to the sense of justice. State v. Smith , 93 Wn.2d 329, 344-45, 610 P.2d 869 (1980). The appropriate test for this analysis was set forth in State v. Fain , 94 Wn.2d 387, 617 P.2d 720 (1980). Fain instructs the court to look at (1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment defendant would have received in other jurisdictions for the same offense, and (4) the punishment meted out for other offenses in the same jurisdiction. Id. at 397. The first Fain factor takes into account not only the general nature of the offense, but also the defendant’s particular culpability. State v. Moretti , 193 Wn.2d 809, 831-32, 446 P.3d 609 (2019). In this case, Mr. Richardson was convicted of first degree felony murder. This is a class A felony with a maximum possible sentence of life imprisonment. RCW 9A.32.030(2); RCW 9A.20.021(1)(a). The mandatory minimum sentence is 20 years. RCW 9.94A.540(1)(a). The crime for which Richardson was sentenced was a serious, violent offense.
State v. Richardson
one that rises to the level of murder. See Bowman v. State , 162 Wn.2d 325, 333, 172 P.3d 681 (2007). Nor is the first Fain factor a comparison analysis. In Fain , the court held that a life sentence as a habitual offender was unconstitutionally disproportionate to the underlying offenses. In considering the nature of the offenses, the court noted that Fain’s underlying crimes were mere property crimes with aggregate losses less than $470. Fain , 94 Wn.2d at 397-98. The crimes did not include violence, threats, or weapons. Id. at
- Instead, the offenses were considered relatively minor. Id. In this case the predicate felony was first degree burglary, a class A felony, which requires the use of violence or the possession of a deadly weapon. RCW 9A.52.020. Unlike the defendant in Fain , Richardson was not sentenced to 20 years for a relatively minor offense. Reviewing the nature of the offense also requires that we consider the culpability of the offender who committed the crime. State v. Moretti , 193 Wn.2d at 832. Richardson minimizes his own culpability for this crime, arguing that he himself never intended to kill anyone and did not, in fact, kill the victim. This argument fails to acknowledge that Richardson participated in a violent burglary that turned deadly. Richardson had several opportunities to eject himself from this crime as it evolved from a burglary to a murder. Richardson stood guard as the crime began, assured a neighbor there were no problems, restrained Stewart, kicked him in the face, and handed Freeman
State v. Richardson
a frying pan used to hit Stewart in the face. Richardson’s participation was not de minimis. Turning to the second Fain factor, Richardson argues that the legislative purpose of the felony murder rule—to deter persons from causing a homicide during the commission of a felony—is ineffective because most felons, including Richardson, do not know about the felony murder. He does not cite any authority for his conclusion. Moreover, deterrence is just one of the penological objectives of the felony murder statute; another objective is retribution. “The legislature’s intent underlying the felony murder statutes is to punish those who commit a homicide in the course of a felony under the applicable murder statute.” State v. Muhammad , 194 Wn.2d 577, 606, 451 P.3d 1060 (2019). Richardson’s actions fit squarely within the purpose of the statute. As to the third Fain factor, Richardson acknowledges that Washington’s sentencing scheme for first degree felony murder is comparable to other jurisdictions. The fourth Fain factor requires a comparison of the sentence for felony murder with other offenses in Washington. In Fain , the court evaluated the defendant’s life sentence as a habitual offender against the sentences he would have received without the enhancement, noting that the most serious offense carried a maximum sentence of ten years. Fain , 94 Wn.2d at 401. Richardson argues that first degree murder is the only offense that carries a mandatory minimum sentence of 20 years. See RCW 9.94A.540(1)(a). He continues that as between the different means of committing first
