* State Of Washington, Respondent V. Diondrae Brown, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON,
Respondent,
v.
DIONDRAE BROWN,
Appellant.
No. 79954-1-I
DIVISION ONE
PUBLISHED OPINION
PER CURIAM—Diondrae Brown appeals the sentence imposed following his
jury conviction on multiple felony counts, several of which carried firearm
enhancements. He argues that the sentencing court erred by concluding that it
lacked discretion to impose an exceptional sentence downward with regard to the
firearm enhancements. Finding no error, we affirm.
FACTS
A jury convicted Brown of four counts of first degree robbery, one count of
attempted first degree robbery, two counts of second degree assault, and one count
of attempting to elude a pursuing police vehicle. Five of the convictions included
firearm enhancements.
At sentencing, the State recommended a sentence of 381 months. The
State’s recommendation included a low-end standard range base sentence of 129
months, and five firearm enhancements running consecutively to each other and to
the base sentence. Citing his history of substance abuse and mental health issues,
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No. 79954-1--I/2
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Brown requested the sentencing court impose an exceptional sentence below the
standard range by ordering the firearm enhancements to be served concurrently.
The sentencing court, relying on State v. Brown, concluded that it lacked the
authority to impose concurrent sentences on firearm enhancements. 139 Wn.2d 20,
29, 983 P.2d 608 (1999) (overruled in part by State v. Houston-Sconiers, 188 Wn.2d
1, 391 P.3d 409 (2017)). The trial court imposed the State’s recommended
sentence. Brown appeals.
DISCUSSION
Brown’s sole claim is that he is entitled to resentencing because the
sentencing court erroneously believed it lacked the discretion to depart from the
required term of confinement for a firearm enhancement. We disagree.
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). Under RCW 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.
However, RCW 9.94A.533(3)(e) provides that “[n]notwithstanding any other
provision of law, all firearm 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.” In Brown, the
Washington Supreme Court held that this statutory language deprives sentencing
courts of the discretion to impose an exceptional sentence with regard to firearm
enhancements. 139 Wn.2d at 29.
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No. 79954-1--I/3
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Brown cites In re Pers. Restraint of Mulholland, to argue that a sentencing
court has the discretion to impose concurrent firearm enhancements despite the
statutory language requiring them to be served consecutively. 161 Wn.2d 322, 166
P.3d 677 (2007). Mulholland is distinguishable. Mulholland held that
RCW 9.94A.535 gives a sentencing court discretion to impose concurrent terms for
serious violent offenses, despite the language of RCW 9.94A.589(1)(b), which
requires that convictions for serious violent offenses “shall be served consecutively
to each other.” But RCW 9.94A.535 explicitly allows for a departure from
RCW 9.94A.589(1) as an exceptional sentence. RCW 9.94A.533(3)(e), on the other
hand, applies “[n]otwithstanding any other provision of law.” Mulholland did not
address RCW 9.94A.533(3)(e), and is not applicable to Brown’s case.
In the alternative, Brown argues, this court should depart from Brown and
adopt the reasoning in Justice Madsen’s concurring opinion in Houston-Sconiers,
which concluded that “the discretion vested in sentencing courts under the
Sentencing Reform Act of 1981 (SRA) includes the discretion to depart from the
otherwise mandatory sentencing enhancements when the court is imposing an
exceptional sentence.” 188 Wn.2d at 34. But Houston-Sconiers overruled Brown
with regard to juveniles only, holding that the Eighth Amendment requires the court
to consider “mitigating circumstances associated with the youth of any juvenile
defendant.” Id. at 21. Brown was 31 when he committed the crimes at issue in this
appeal, and Houston-Sconiers does not apply to him. In any event, a decision by
the Washington Supreme Court is binding on all lower courts of the state. State v.
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No. 79954-1--I/4
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Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). This court does not have the
authority to overrule Brown.
Affirmed.
FOR THE COURT:
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