IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON, ) No. 78782-9-I

)

Respondent,

)

v. ) UNPUBLISHED OPINION

RYAN WILLIAM MONTANEZ, )

)

Appellant. ) FILED: December 23, 2019

PER CURIAM — Ryan Montanez appeals the sentence imposed following his guilty

plea to second degree assault with a firearm. Montanez contends the court erred in

concluding it did not have discretion to shorten the mandatory firearm 36-month

enhancement by imposing an exceptional sentence based on mitigating factors of youth

and upbringing. He asks this court to remand for the sentencing court to exercise

discretion. We affirm.

On May 29, 2018, Montanez pleaded guilty to second degree assault with a

firearm. In the plea agreement, he agreed to a sentence recommendation of 45 months

confinement -- 9 months for second degree assault plus 36 months for a mandatory

firearm enhancement.

At sentencing, the court asked whether it had discretion to impose an exceptional

sentence on the firearm enhancement based on mitigating factors such as Montanez’s

age and upbringing. The prosecutor told the court it only had such discretion in juvenile
No. 78782-9-1/2

cases. Defense counsel was not sure. The court concluded it did not have discretion

and imposed the 45-month sentence recommended by the parties. Montanez appeals.

DECISION

Montanez contends the trial court erred in concluding it lacked discretion to

reduce the mandatory firearm enhancement by imposing an exceptional sentence.

Citing RCW 9.94A.533(3) and State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999),

overruled on other cirounds by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409

(2017), the State maintains the court correctly ruled it lacked such discretion because

Montanez was 18 years old when he committed the offense.1 We agree with the State.2

RCW 9.94A.533 (3) (b) imposes a three-year sentence enhancement for all class

B felonies, including Montanez’s, committed with a firearm. RCW 9.94A.533 (3) (e)

makes the enhancement “mandatory” and requires its imposition “notwithstanding any

other provision of law [.1” Washington courts have recognized no exception to these

statutes in adult criminal prosecutions. In State v. Brown, the Washington Supreme

Court held “judicial discretion to impose an exceptional sentence does not extend to a

deadly weapon enhancement in light of the absolute language” declaring such

enhancements mandatory notwithstanding any other provision of law. Brown, 139

Wn.2dat29.

The State also argues that Montanez invited any error because he recommended the 45-month

sentence that the court imposed. But as Montanez notes, the assigned error does not involve the

agreement between Montanez and the State, which was not binding on the court, or an erroneous

statement of the law by defense counsel. Rather, it involves the trial court’s alleged failure to recognize

its alleged discretion. In any event, we need not decide the invited error question because we conclude

there was no error.

2 We review questions of law de novo. State v. Reeves, 184 Wn. App. 154, 158, 336 P.3d105 (2014).

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Contrary to Montanez’s assertions, State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359

(2015) and State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017) did not alter

Brown’s holding with respect to adult offenders.

In O’Dell, the defendant committed his offense ten days after his 18th birthday.

Recognizing recent advances in the scientific understanding of adolescent cognitive and

emotional development, the court wrote, “we now know that age may well mitigate a

defendant’s culpability, even if that defendant is over the age of 18.” O’Dell, 183 Wn.2d

at 695. The court remanded for a new sentencing hearing to consider whether O’Dell’s

youth diminished his culpability and justified an exceptional sentence. O’Dell, 183

Wn.2d at 683. O’Dell did not, however, address a downward departure from mandato,y

sentencing enhancements in adult cases.

In Houston-Sconiers, the Court extended a trial court’s discretion to consider

youth as a mitigating factor to mandatory sentence enhancements:

Because “children are different” under the Eighth Amendment and hence

“criminal procedure laws” must take the defendants’ youthfulness into

account, sentencing courts must have absolute discretion to depart as far

as they want below otherwise applicable SRA ranges and/or sentencing

enhancements when sentencing juveniles in adult court, regardless of how

the juvenile got there.

188 Wn.2d at 9. Houston-Sconiers thus modified Brown, but only with respect to

juvenile offenders. The Court did not modify Brown’s holding with respect to adults.

Because neither O’Dell nor Houston-Sconiers authorizes enhancement reduction

in adult cases, and because this court is bound by Brown, State v. Gore, 101 Wn.2d

481, 487, 681 P.2d 227 (1984) (Once the Supreme Court ‘has decided an issue of state

law, that interpretation is binding on all lower courts until it is overruled by this court”),

Montanez’s claim fails. In light of our conclusion, Montanez’s claim that his counsel was

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ineffective for failing “to alert the trial court to its discretion” to reduce the firearm

enhancement fails.

Affirmed.

FOR THE COURT:

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