* State of Washington v. Steven Lee Smith

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
STEVEN LEE SMITH,
Appellant.
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No. 40341-6-III
OPINION PUBLISHED
IN PART
LAWRENCE-BERREY, C.J. — Steven Smith appeals his resentencing for
convictions of seven counts of first degree unlawful possession of a firearm and one
count of possession of a stolen firearm. Because of RCW 9.94A.589(1)(c), the
resentencing court imposed consecutive sentences on all counts. He has been imprisoned
on those convictions for over 12 years.
On appeal, Smith argues the trial court erred by (1) concluding it could not
consider an exceptional mitigated sentence, (2) imposing consecutive sentences on all
FILED
JANUARY 8, 2026
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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counts, (3) miscalculating his offender score, and (4) not allowing a jury to determine the
effect of prior convictions on his sentence. We agree with Smith’s first two arguments
and remand for a second resentencing. We retain jurisdiction, should resentencing not
achieve the purposes of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW.
FACTS
In 2013, the State charged Steven Smith with seven counts of first degree unlawful
possession of a firearm and one count of possession of a stolen firearm. The firearms
were found in his residence and car. A jury convicted him of all charges. Because of
RCW 9.94A.589(1)(c),1 the trial court imposed consecutive sentences on each of his
eight convictions. Based on an offender score of “2,” the court sentenced Smith to 255
months of incarceration.
In November 2023, this court issued its decision in In the Matter of the Personal
Restraint of: Steven L. Smith, Petitioner, No. 38641-4-III. We remanded for resentencing
for the trial court to conduct a factual comparability analysis of Smith’s 1995 Oregon
conviction for second degree burglary with Washington’s offenses of residential burglary
or second degree burglary.
1 We later set forth the relevant portions of this statute. In general, it requires a
sentencing court to impose consecutive sentences for each firearm-related conviction if
one conviction includes either theft of a firearm or possession of a stolen firearm.
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At the April 2024 resentencing, the trial court found that Smith’s 1995 Oregon
conviction for second degree burglary was factually comparable to Washington’s second
degree burglary statute. After this finding, Smith’s attorney did not request an
exceptional mitigated sentence. The request came from Smith during his allocution:
Your Honor, in State v. Blakeley [sic][2] [the court] determined that . . . the
jury [must] find an exceptional sentence . . . even at resentencing . . . . An
exceptional sentence is [one that] run[s] consecutive. . . .
So I would ask that [the sentences] run concurrent, because under
[the] Sixth Amendment [to the United States Constitution]—due process.
Your Honor, I’ve been in custody for—eleven years. And I [know]
how precious time [i]s. My dad died in January . . . . My mom, my family
are here to support me. I have a job, a house.
Your Honor, I’m convinced, if you give me one shot at this I will be
a productive mem[ber] of society.
Eleven years is a long time. A lot of things have happened in eleven
years. In that 11-year period, your Honor, I never got one infraction, not
even a minor infraction. I—didn’t know anything about computers, went
there, learned all about computers, worked for—for seven years . . . . My
conduct in the last eleven years has been exemplary, your Honor.
And, you know, . . . you have the right to give a lower mitigated
sentence, . . . when the sentence . . . exceeds the severity of the crime. And
in this case, your Honor, I really feel that the sentence exceeds the severity
of the crime.
So I’d ask for lenience, your Honor.
Amended Report of Proceedings (ARP) at 35-36.
2 Smith’s intended reference was to Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004).
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No. 40341-6-III
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The resentencing court explained to Smith that his consecutive sentences were not
an exceptional sentence because, by statute, the presence of one possession of a stolen
firearm conviction required the sentences for each of his eight convictions to run
consecutively. With respect to Smith’s request for a mitigated sentence, the court
believed its hands were tied, and it was “mandated to . . . impose those times to run
consecutive in this case.” ARP at 37. Later, the court commented that even
though a 255-month sentence exceeded many murder and rape sentences, it was
appropriate because it met “the purposes of the statute.” ARP at 38. Because of
RCW 9.94A.589(1)(c), the court imposed consecutive sentences on each conviction.
Based on an increased offender score of “3,” the court reimposed the same 255-month
sentence.
Smith appealed to this court.
ANALYSIS
Smith argues the trial court erred by concluding it lacked discretion to impose a
mitigated sentence, and resentencing is necessary because there is a possibility the trial
court would have imposed a lesser sentence had it recognized its discretion.
Before addressing Smith’s arguments, we must consider two arguments raised by
the State. First, the State argues that Smith received a standard range sentence, and he
may not appeal from it. We disagree. Although “no defendant is entitled to challenge a
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sentence within the standard range, this rule does not preclude a defendant from
challenging on appeal the underlying legal determinations by which the sentencing court
reaches its decision; every defendant is entitled to have an exceptional sentence actually
considered.” State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017).
Second, the State argues that Smith had asked for an exceptional mitigated
sentence but his counsel did not, and thus the issue was not properly raised. We disagree
with this argument also. Although a sentencing court can decline to consider a pro se
motion when the party is represented by competent counsel at the hearing, State v.
Bergstrom, 162 Wn.2d 87, 97, 169 P.3d 816 (2007), it is clear in this case the trial court
did consider and rule on Smith’s request for an exceptional mitigated sentence. The court
explained its legal reasoning and concluded that the statute required consecutive
sentences and that its hands were tied. Because the trial court considered Smith’s request
for a mitigated sentence, we conclude this claim of error is preserved.
We now turn to the merits of Smith’s arguments. A defendant is entitled to have
an exceptional sentence actually considered. McFarland, 189 Wn.2d at 56. Thus, where
the court refuses to exercise its discretion at all, such as by mistakenly believing it lacks
discretion to impose an exceptional mitigated sentence, it abuses its discretion. Id. Here,
the resentencing court said it lacked discretion to impose an exceptional mitigated
sentence. The court therefore erred.
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In McFarland, the court emphasized that an appellate court should order
resentencing if “the record suggests at least the possibility that the sentencing court
would have considered imposing concurrent firearm-related sentences had it properly
understood its discretion to do so.” Id. at 59. The State argues that resentencing should
not be ordered here because the trial court’s comments showed it would not be open to
granting a mitigated sentence. The State points to the court’s comments that a 255-month
sentence was “appropriate” and “would meet the purposes of the statute.” ARP at 38.
We disagree with the State. Resentencing not only is appropriate, but it is
necessary to correct a legal error.
The trial court framed the question as whether the 255-month sentence met the
purposes of the statute, referring to RCW 9.94A.589(1)(c), the statute that mandates
consecutive sentences. Framed in that manner, consecutive sentences always will meet
the purposes of a statute that requires consecutive sentences. The trial court made the
wrong inquiry. The correct inquiry is whether the 255-month sentence meets the purpose
of the SRA.
In McFarland, the court held, “in a case in which standard range consecutive
sentencing for multiple firearm-related convictions ‘results in a presumptive sentence that
is clearly excessive in light of the purpose of [the SRA],’ a sentencing court has
discretion to impose an exceptional, mitigated sentence by imposing concurrent firearm-
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related sentences.” Id. at 55 (quoting RCW 9.94A.535(1)(g)). The McFarland court
further held, “Proportionality and consistency in sentencing are central values of the
SRA, and courts should afford relief when it serves these values.” Id. at 57.
Here, all seven firearms were found either in Smith’s residence or his car; one
happened to be a stolen firearm. Had none of the seven firearms been stolen, Smith’s
mid-point standard range sentence would have been 36 months. But because one of them
was stolen, Smith received a sentence of 255 months.
To determine the proportionality and consistency of this sentence, we compare
what other felony offenses would result in such a severe sentence, given Smith’s offender
score of “3.” Referring to the sentencing grid found in RCW 9.94A.510 and the
seriousness levels found in RCW 9.94A.515, only four felonies with an offender score of
“3” would warrant a sentence of 255 months or higher: aggravated murder, homicide by
abuse, first degree malicious explosion,3 and murder in the first degree. Whereas all
other felonies would receive a lesser sentence. These other less serious felonies include:
second degree murder, first degree assault, first degree assault of a child, promoting
commercial sexual abuse of a minor, first degree rape, first degree rape of a child, first
degree manslaughter, second degree rape, second degree rape of a child, vehicular
3 This offense requires proof of intent to commit a terrorist act.
RCW 70.74.280(1).
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No. 40341-6-III
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homicide, first degree child molestation, indecent liberties with forcible compulsion, first
degree kidnapping, and leading organized crime.
Had the trial court expressly determined that the current convictions were
proportional to the above offenses, we would have reversed for an abuse of discretion.
But it has not yet expressly determined this question. On remand, we direct the trial court
to examine which group of offenses are proportional to the offenses committed by Smith
and impose sentences that further the central values of the SRA.
A majority of the panel having determined that only the foregoing portion of this
opinion and the Conclusion will be printed in the Washington Appellate Reports and that
the remainder, having no precedential value, shall be filed for public record pursuant to
RCW 2.06.040, it is so ordered.
Smith also argues that the resentencing court misconstrued RCW 9.94A.589(1).
Because the resentencing court will need to correctly construe this statute at
resentencing, we address two additional arguments. We set forth the relevant portions of
RCW 9.94A.589(1) and italicize those portions impacting our analyses of Smith’s
arguments:
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(1)(a) Except as provided in (b), (c), or (d) of this subsection, whenever a
person is to be sentenced for two or more current offenses, the sentence
range for each current offense shall be determined by using all other current
and prior convictions as if they were prior convictions for the purpose of
the offender score: PROVIDED, That if the court enters a finding that some
or all of the current offenses encompass the same criminal conduct then
those current offenses shall be counted as one crime. Sentences imposed
under this subsection shall be served concurrently. Consecutive sentences
may only be imposed under the exceptional sentence provisions of
RCW 9.94A.535. “Same criminal conduct,” as used in this subsection,
means two or more crimes that require the same criminal intent, are
committed at the same time and place, and involve the same victim. . . .
. . . .
(c) If an offender is convicted under RCW 9.41.040 for unlawful
possession of a firearm in the first or second degree and for the felony
crimes of theft of a firearm or possession of a stolen firearm, or both, the
standard sentence range for each of these current offenses shall be
determined by using all other current and prior convictions, except other
current convictions for the felony crimes listed in this subsection (1)(c), as
if they were prior convictions. The offender shall serve consecutive
sentences for each conviction of the felony crimes listed in this subsection
(1)(c), and for each firearm unlawfully possessed.
Smith first argues that a consecutive sentence pertains only to the firearm that was
both unlawfully possessed and stolen. In this case, it would be only one of the seven
firearms possessed by Smith. Under Smith’s construction of the statute, all of his
sentences would run concurrent, except one. We reject Smith’s first argument. This
argument contradicts the plain language of the last sentence of subsection (c). That
subsection expressly requires consecutive sentences “for each conviction of the felony
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crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed.”
(Emphasis added.)
Smith’s second argument appears to focus on the italicized proviso above. He
argues that the firearm offenses that arise from the same criminal conduct must all be
sentenced concurrently. In support of his argument, he cites State v. Haddock, 141
Wn.2d 103, 3 P.3d 733 (2000). Smith’s argument conflates how to calculate an offender
score with whether a separate conviction runs concurrent or consecutive. Haddock,
similar to the proviso above, involved the question of “same criminal conduct” for
calculating an offender score, not whether separate convictions run concurrent or
consecutive. Id. at 106. We reject Smith’s second argument.
CONCLUSION
“Proportionality and consistency in sentencing are central values of the SRA, and
courts should afford relief when it serves these values.” McFarland, 189 Wn.2d at 57.
Sentencing courts must mitigate the harshness of a prosecutor’s decision to stack multiple
firearm consecutive sentences onto one another, and, when courts fail to do this, they fail
to further the central values of the SRA.
We remand for the trial court to consider Smith’s request for an exceptional
mitigated sentence and to impose a proportional sentence by comparing Smith’s firearm
offenses with the seriousness of other felony offenses. We remand for a second
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resentencing, but retain jurisdiction should it be necessary to correctly resolve the
remanded issue or any other issue raised and briefed by the parties.
________________________________
Lawrence-Berrey, C.J.
WE CONCUR:
___________________________________ ________________________________
Cooney, J. Murphy, J.
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