State v. Malone

1

STATE OF WASHINGTON, Respondent, v. MATTHEW KEVIN MALONE, Appellant.

No. 57775-5-II

Court of Appeals of Washington, Division 2

June 11, 2024

UNPUBLISHED OPINION

LEE J.

Matthew K. Malone appeals his sentence, arguing that (1) the sentencing court abused its discretion by categorically denying his request for a mental health sentencing alternative (MHSA) under RCW 9.94A.695; (2) defense counsel was ineffective for failing to provide the sentencing court with a mental health evaluation or plan; and (3) the $500 crime victim penalty assessment (CVPA) should be stricken from his judgment and sentence. The State concedes that the CVPA should be stricken.

Because the sentencing court did not abuse its discretion in declining to impose a MHSA and Malone cannot show he was prejudiced by defense counsel's allegedly deficient performance, we affirm Malone's sentence. Also, we accept the State's concession and remand to the trial court with instructions to strike the CVPA from Malone's judgment and sentence.

FACTS

A. Background Facts

On April 3, 2022, police received two calls: one reporting a hit and run and one complaining about threats made. The threat caller reported that she saw Malone driving recklessly outside her house and yelling. At one point, Malone drove straight at the caller.

Meanwhile an officer responded to the hit and run complaint. The officer spoke with a man who said he and friend were in the parking lot outside a store when Malone drove into the lot pointed a gun at them, and demanded they bring him items from the store. Once the men ran into the store, Malone hit their car and drove away.

Police were also dispatched to a coffee stand, where an officer spoke with three people: one man stated Malone had pointed a gun at him and two friends, and all three thought Malone would shoot them. Officers were subsequently dispatched to another complaint: a store clerk told officers that Malone had come into the store and threatened to shoot him.

Meanwhile police pursued Malone, who was driving recklessly "at high speed." Clerk's Papers (CP) at 11. During the chase, Malone struck an occupied vehicle. An officer eventually rammed Malone's car, "disabling it." CP at 11. A subsequent search of Malone's car revealed "a loaded .22 caliber revolver" and "a baggy of what [an officer] recognized as methamphetamine." CP at 12.

Malone was charged with first degree unlawful possession of a firearm, hit and run (unattended vehicle), hit and run (attended vehicle), felony harassment, six counts of second degree assault, attempting to elude a pursuing police vehicle, and violating the Uniform Controlled Substances Act-possession of methamphetamine. Several counts carried a firearm enhancement, one of the assault charges was alleged as a crime of domestic violence, and the attempting to elude a pursuing police charge was alleged to be aggravated by Malone's driving against traffic along a highway.

B. Competency Evaluation

Following Malone's arrest, the State moved to have Malone's competency evaluated. Malone acknowledged that he "ha[d] an appointment for mental health" because he might "have some issues." Verbatim Rep. of Proc. (VRP) (Apr. 27, 2022) at 4. The trial court granted the motion for a competency evaluation.

Dr. Thomas LeCompte, a licensed psychologist and forensic evaluator, evaluated Malone. Dr. LeCompte diagnosed Malone with substance abuse disorder (methamphetamine, cocaine, alcohol, psilocybin) and residual symptoms of substance-induced psychosis. During the evaluation, Malone self-reported a prior bipolar disorder diagnosis and stated he took antipsychotic medication for it. Dr. LeCompte concluded that Malone "has [a] minimal . . . history of treatment for mental health concerns and didn't see himself as having an ongoing psychiatric illness." CP at 101. Dr. LeCompte also opined that Malone was competent to stand trial. The trial court found Malone competent to stand trial.

C. Dr. Patterson's Evaluation

During a pretrial hearing, defense counsel stated there "may be a mental health component" to Malone's case and asked the court for time to determine whether Malone's mental health "played a role in the underlying mens rea . . . in this matter." VRP (July 25, 2022) at 5, 6. Defense counsel also stated that he had reached out to a Dr. Alexander Patterson to have the doctor evaluate Malone's mental health. At a later omnibus hearing, defense counsel told the trial court that Dr. Patterson had evaluated Malone, but that based on the results of that evaluation and defense counsel's own experience, Malone "would [not] be in a position to defend [himself] based upon . . . any sort of mental health angle." VRP (Oct. 3, 2022) at 24. However, defense counsel stated that "we need to at least get Dr. Patterson's report." VRP (Oct. 3, 2022) at 24. There is no report from Dr. Patterson in the record on appeal.

D. Plea Agreement

Malone eventually entered an Alford plea^[1] to all but the attempting to elude a pursuing police vehicle charge, which the State dismissed. As part of the plea agreement, the State also dismissed all firearm enhancement allegations and the domestic violence allegation.

At the plea hearing, defense counsel stated that "one alternative . . . possibly available to [Malone] is a mental health sentencing alternative." VRP (Oct. 11, 2022) at 4. Defense counsel also stated it would "depend[] on evaluation" and the sentencing "judge's discretion" if Malone were found eligible. VRP (Oct. 11, 2022) at 4. Defense counsel informed the court that he and the State agreed Malone could be "subject to a mental health sentencing alternative evaluation." VRP (Oct. 11, 2022) at 18. The trial court ordered the Department of Corrections (DOC) "to conduct a mental health sentencing alternative evaluation." VRP (Oct. 11, 2022) at 18.

E. DOC Evaluation

Pursuant to the trial court's order, DOC prepared a MHSA report. The report stated that "Malone self-reported he was diagnosed by an [advanced registered nurse practitioner] . . . in 2018 or 2019 with Bipolar disorder" and that the nurse practitioner "prescribed him medication for this disorder, which he recalled only taking . . . for approximately a year." CP at 93. The evaluation also stated that DOC had not received a mental health treatment plan from Malone, nor had Malone provided DOC with "any documentation of meeting with a licensed mental health provider." CP at 94. As a result, DOC was unable to "fully address[]" "[a] monitoring plan within the community." CP at 94.

F. Sentencing

In its sentencing memorandum, the State suggested that drug use drove Malone's criminal actions on April 3. See CP at 62 ("Given how he reacts to methamphetamine, [Malone] should know to stay away from it."). The State's sentencing memorandum also outlined Malone's criminal history, including a juvenile conviction for third degree assault and an adult conviction for second degree assault. Malone acknowledged that the State's criminal history was "accurate and complete" in his plea agreement. CP at 33.

In Malone's sentencing memorandum, defense counsel agreed with the State that "methamphetamine likely exacerbated [Malone's] wrongful behavior in this series of criminal incidences" and asked the sentencing court to consider a MHSA. CP at 66. Defense counsel also stated that "[s]ocial worker Kara Krenz met with the defendant to prepare a proposed treatment plan that she forwarded to [DOC's] Aberdeen field office." CP at 68. That treatment plan is not in the record on appeal, and the DOC MHSA report suggests DOC never received a treatment plan from Krenz.

At the sentencing hearing, defense counsel told the court that he had not yet seen DOC's MHSA report but urged the sentencing court to consider a MHSA, stating that Malone had previously been diagnosed "with bipolar and major depressive occurrence." VRP (Nov. 7, 2022) at 31. The State maintained that "this is not a mental health situation," and attributed Malone's criminal actions to his drug use. VRP (Nov. 7, 2022) at 29. Malone addressed the court and requested a MHSA.

The sentencing court rejected Malone's request for a MHSA, stating that it was "a non starter" because Malone had failed to comply with the MHSA statute when he did not provide the court with a mental health plan. VRP (Nov. 7, 2022) at 35. The sentencing court then stated that even if a mental health plan had been provided with the appropriate documentation, it would still not have granted Malone a MHSA: "This is not a mental health situation, really, as much as it is drug use, paranoia, whatever from the meth use that Mr. Malone engaged in on that day." VRP (Nov. 7, 2022) at 36. The sentencing court also noted that Malone had been convicted of a violent offense and had "violence in his history." VRP (Nov. 7, 2022) at 36. Accordingly, the sentencing court concluded that it was "not a good risk for mental health sentencing alternative to put [Malone] back in the community." VRP (Nov. 7, 2022) at 36.

The sentencing court ultimately sentenced Malone to a standard range sentence of 89 months of total confinement for the felony charges. The court also imposed 90 days, 364 days, and 90 days for the misdemeanor crimes of hit and run (unattended vehicle), hit and run (attended vehicle), and unlawful possession of a controlled substance, respectively. The court ordered that custody on the misdemeanor sentences be served consecutive to one another and consecutive to the felony sentence. The court also found Malone "indigent for the purposes of LFOs" because he "receives an annual income, after taxes, of 125 percent or less of the current federal poverty level." VRP (Nov. 7, 2022) at 40; CP at 74. Finally, the court imposed a $500 CVPA.

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