State v. Lang

STATE OF WASHINGTON, Respondent, v. TRAVIS M. LANG, Appellant.

No. 36998-6-III

Court of Appeals of Washington, Division 3

November 2, 2021

UNPUBLISHED OPINION

FEARING, J.

Travis Lang, an offender who committed a crime as a juvenile, asked the superior court to reduce his sentence based on State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). At resentencing, the superior court reduced his sentence by forty months. On appeal, Lang seeks further reduction of his sentence. He contends that the superior court failed to seriously consider his youthfulness, at the time of his offense, during resentencing. He contends the trial court erroneously failed to consider an exceptional downward sentence and running his deadly weapon enhancement concurrently with his base murder sentence. Finally, he argues that his resentencing counsel ineffectively represented him when stipulating to an offender score of one.

We do not address Travis Lang's first three assignments of error. Instead, we rule that Travis Lang's resentencing counsel ineffectively represented Lang during the resentencing. We remand for the trial court to reconsider Lang's offender score and for further proceedings consistent with any recalculation of the offender score. On remand, Lang may assert, before the resentencing court, the other contentions he forwards in this appeal. We deny Lang's request for resentencing before another superior court judge.

FACTS

This appeal concerns sentencing of Travis Lang for a murder committed at age 16. Travis Lang was born in Spokane on January 18, 1986. By the age of sixteen, Travis Lang socialized with older teenagers and was typically the youngest of his clique.

Two crimes preceded the murder committed by Travis Lang. On February 3, 2002, while watching the Super Bowl, Lang and his friends decided to rob someone. According to Lang, he served as the look-out. The group purloined beer from a house's back porch, entered the residence, and stole firearms and other property from inside the home.

The juvenile court adjudicated Travis Lang guilty of residential burglary and first degree theft for his misconduct on February 3, 2002. According to Lang, he received a deferred sentence for the crimes. Lang spent two days in detention and two months on house arrest.

Travis Lang's friend, Jason Means, dealt marijuana from Means' Spokane apartment. On November 14, 2002 sixteen-year-old Lang and eighteen-year-old Means shared a heated exchange, in Means' apartment, over Lang's $200 drug debt to Means.

An altercation ensued, during which Lang stabbed Means in the chest, back, head, and neck, causing his death. On November 14, Lang remained on probation for the February 2002 crimes.

After killing Jason Means, Travis Lang seized some of Means' money and marijuana before leaving Means' apartment. Law enforcement found blood in Means' bedroom and bathroom and concluded that Lang attempted to clean himself and change his clothing after the slaying. Lang told law enforcement that, before the killing, he had stayed awake for two days while using crack cocaine and methamphetamine.

On December 5, 2002, the State of Washington charged Travis Lang, in adult court, with one count of first degree murder with a deadly weapon. On August 11, 2003, Lang entered a guilty plea to the charge.

Pursuant to a plea agreement, the State recommended a mid-range sentence of 290 months' confinement plus a 24-month deadly weapon enhancement. The sentencing court calculated Travis Lang's offender score at one point, attributing 1/2 point to each of Lang's two earlier offenses. The court's calculation resulted in a standard range sentence of 250-333 months. The trial court imposed the recommended sentence of 314 months' confinement, which ran the enhancement consecutively with the base sentence. The sentencing court found that Lang's chemical dependency contributed to the offense.

PROCEDURE

On December 26, 2017, fifteen years after the murder, Travis Lang filed, in the superior court, a CrR 7.8 motion for relief from his judgment and for resentencing based on changes in the law of juvenile sentencing. Lang argued that, pursuant to Miller v Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and State v. Houston-Sconiers, 188 Wn.2d 1 (2017), sentencing courts must consider mitigating qualities of youth when sentencing juveniles and the sentencing court in 2003, failed to consider his immaturity. He asked that, on resentencing, the superior court reduce his sentence below the standard range and run his deadly weapon enhancement concurrent with his base sentence for murder.

As part of his CrR 7.8 motion, Travis Lang submitted a presentence report that recommended a reduced, exceptional mitigated sentence of 216 months' confinement. In turn, by order of the resentencing court, the Department of Corrections (DOC) filed a presentencing investigation report (PSI). DOC recommended that the court decline to modify Lang' sentence. Because of their lack of relevance to Lang's offender score, we do not outline the facts found in the two reports.

On March 29, 2019, Judge Annette Plese, who did not sentence Travis Lang in 2003, conducted the resentencing hearing. We will refer to Judge Plese hereafter as the resentencing court. Because Lang requests removal for Judge Plese from any resentencing on remand, we detail the comments made and rulings issued by her.

The resentencing court first addressed Travis Lang's offender score, previously calculated at one point. For the first time, Lang argued, at the resentencing hearing, that his two prior juvenile offenses for residential burglary and first degree theft should be deemed the same criminal conduct and thus scored as one crime. Lang maintained that his offender score should be zero points, a score rounded down from one-half a point. The State responded that, due to the burglary antimerger statute, Travis Lang's burglary and theft offenses could not merge. Thus, according to the State, Lang's offender score should remain calculated at one point, one-half point for each juvenile crime.

The resentencing court asked whether defense counsel reviewed the antimerger statute. Defense counsel did not directly answer this question and instead summarized her earlier argument. The resentencing court commented that the original sentencing court did not count Lang's prior offenses as the same criminal conduct. The court asked for additional briefing on the offender score

During a short recess, defense counsel consulted with a cocounsel regarding the offender score. After the break, defense counsel commented before the court:

In talking with Mr. Ellis [co-counsel], the one-half and one-half should go properly forward as a one, and they merged at the time for sentencing because they were the same course of conduct, but as points, they're half and half, so.

Report of Proceedings (RP) at 9 (emphasis added). The resentencing court responded:

Okay. So we're in the same range as far as at sentencing to the 250 to 333 months with the 24 months enhancement, maximum life, $50, 000. So I just want to make sure we're all in the same range.

RP at 9. The court accepted defense counsel's stipulation that Travis Lang's offender score should be calculated at one point.

The resentencing court next addressed whether it should impose an exceptional mitigated sentence. The State contended that Travis Lang's 314-month sentence should remain unchanged. Lang requested an exceptional mitigated sentence of 216 months' confinement. He also asked that the 24-month deadly weapon enhancement run concurrently with the base sentence.

The resentencing court remarked that, under current statutes, the court lacked authority to run the deadly weapon enhancement concurrently with the base sentence and, thus, the enhancement must run consecutively. Defense counsel responded:

The Court has the discretion to run it consecutive [sic]-to run it consecutive [sic], which is what we're asking the Court to do.

RP at 29. Presumably defense counsel meant to say that the court had the discretion to run the enhancement concurrently, not consecutively. The resentencing court continued:

If the Court ran it concurrent with the current sentence, the Court would have to make very specific findings under the mitigation statute different from the Miller [v. Alabama, 567 U.S. 460 (2012)] factors.

RP at 29.

During the resentencing hearing, the court remarked that it reviewed DOC's PSI report, which covered Travis Lang's history. The court acknowledged that the Miller factors should be considered when sentencing a juvenile. The court highlighted that Lang committed the crime at sixteen years old and that his psychological evaluation indicated that Lang's development at the time was that of a thirteen- or fourteen-year-old. The court affirmed:

That's exactly what the Miller court says that this Court needs to look at in sentencing the juvenile. The factors of risk, drug use, as the attorney mentioned, lack of sleep, rehab, all those things that would have affected someone who's 21 versus someone who's that.

At 16, you're considered an adult. That's why he went straight to adult court, but looking at that psychological report saying he was more functioning mentally as a 13 or 14 year old does factor right into those.

RP at 38. The resentencing court remarked that, at the time of the murder, Lang remained on probation for the earlier burglary. The court applauded Lang for taking responsibility for his crime by pleading guilty.

The resentencing court commented about an exceptional downward sentence:

Are there mitigating factors in running them concurrent? I can't find mitigating factors to go below the standard range, but I do find mitigating

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