IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

HOWARD LEE NORTON,

Appellant.

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No. 37383-5-III

UNPUBLISHED OPINION

FEARING, J. — Howard Norton appeals his conviction and sentence for two counts 

of second degree assault and two counts of malicious harassment. Each conviction 

carried a firearm-related sentencing enhancement. We affirm the convictions and 

sentence. 

FACTS

This prosecution arises from shots fired one evening at the Thirsty Dog tavern. 

The State alleges that Howard Norton fired the shots with racial malice. Since Norton 

challenges the sufficiency of evidence for his convictions, we take the facts in a light 

favorable to the State. 

Howard Norton patronized the Thirsty Dog several times a week. The gregarious 

Norton enjoyed talking with other customers. On March 11, 2019, Norton drank 

FILED

JUNE 3, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 37383-5-III

State v. Norton

2

whiskey, not his usual drink, at the tavern. Bartender Candace Guzman estimated that 

Norton drank three whiskeys over six hours. 

On March 11, 2019, Ahnonymas Walker and his friend, Carmen Flemming, both 

black men, entered the Thirsty Dog at 9:30 p.m. to play pool and consume beer. Walker 

and Flemming often socialize at the Thirsty Dog. While sitting at the bar, the duo saw an 

unfamiliar man and a woman to their right. The man, defendant Howard Norton, wore a

cowboy hat. Norton did not know Walker or Flemming. 

Howard Norton engaged Ahnonymas Walker in conversation. Norton asked 

Walker where the latter worked. Walker responded that he worked in WinCo’s produce 

department. Norton replied that Walker was an ignorant, “effing” liar. Report of 

Proceedings (RP) (Jan. 14, 2020) at 145. Walker retorted that, if Norton did not believe

his story, Norton should go to the produce apartment at 2 p.m. the following day, when 

he would be working. In reply, Norton called Walker ignorant and a “lying sack of shit.” 

RP (Jan. 14, 2020) at 146. Walker and Norton exchanged further brickbats. 

Carmen Flemming overheard the unorthodox conversation between his friend

Ahnonymas Walker and Howard Norton. Flemming attributed Norton’s behavior to 

alcohol consumption. After Walker called both men ignorant, Flemming entered the 

colloquy. Flemming called Norton a crackhead. The bartender, Candace Guzman, heard 

the heated exchange and told all three men to relax. According to Norton, Flemming

thereafter lobbied insults such as “stupid, old cowboy.” RP (Jan. 15, 2020) at 393. 
No. 37383-5-III

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3

Norton averred that Flemming threatened to “F me up.” RP (Jan. 15, 2020) at 396. 

Norton told Flemming: “I said it’s pretty plain to see who is the moron here, because you 

can’t say a full sentence without throwing that F word in at least two or three times, you 

can’t say one sentence.” RP (Jan. 15, 2020) at 394. 

Ahnonymas Walker retired to the gentlemen’s room. Howard Norton left the bar. 

According to Norton, he left intending to procure his wallet from his car in order to pay 

for food he had ordered to go. Norton returned after fifteen minutes to his original seat

with his food and bill awaiting him. He bore not only his wallet, but a gun. Walker 

noticed a smirk on Norton’s face, and Walker told Carmen Flemming to studiously watch

Norton because he believed Norton had retrieved a gun. Walker added that he suspected 

that Norton believed Walker to deal drugs. 

Carmen Flemming inquired of Howard Norton if Norton deemed Ahnonymas

Walker a drug dealer. Norton responded that Flemming was “an ignorant son-of-bitch 

and stupid.” RP (Jan. 14, 2020) at 148. Norton asked Flemming if Walker told 

Flemming to ask him the question. Walker interrupted and told Norton that he had not 

directed Fleming to ask the question. Norton called Flemming the N word. Norton 

denies uttering the racial disgrace, but another bar patron, Amanda Kincaid, heard the 

slur. The bartender did not hear the racial insult. 

Howard Norton told Ahnonymas Walker and Carmen Flemming that he intended 

to kill the pair. Norton denies issuing the threat, but the Thirsty Dog’s bartender, 
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State v. Norton

4

Candace Guzman, overheard Norton utter the menace. RP 266. Guzman heard Norton 

utter: “I will kill you mother fuckers.” RP (Jan. 14, 2020) at 266. Flemming took the

threat seriously. 

Ahnonymas Walker stood and moved to the side. Carmen Flemming told Howard 

Norton that the latter should not issue death threats. Flemming walked toward Norton,

and Norton stood from his bar stool. Flemming backed away, and Norton walked toward 

him. Norton reached into his pocket. Flemming grabbed Norton’s wrist, felt a gun, and a 

struggle ensued. Walker watched. Walker saw a gun in Norton’s right hand, and he ran 

to the exit door in fear of being shot. He glanced back, and he saw Flemming also 

darting toward the door. 

Carmen Fleming and Ahnonymas Walker fled the Thirsty Dog Bar. RP 150. 

Howard Norton also exited the tavern and fired a shot into the air. RP 202-03, 373-74. 

Norton screamed, “‘get the hell out of here and don’t fucking come back.’” RP (Jan. 14, 

2020) at 203. 

During his trial testimony, Howard Norton portrayed the conduct of Carmen 

Flemming leading to the shooting as threatening and as justifying self-defense. When he 

went to his car to retrieve his wallet, he adjudged the need for a weapon to protect 

himself. On Norton’s returning to the bar, Flemming leaned toward him and stated that 

he planned to “F me up and anybody else that, you know, that he wants to, he can do it to 

anybody he said.” RP (Jan. 15, 2020) at 413. Norton told him not to try. According to 
No. 37383-5-III

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Norton, Flemming stood from his chair and walked around Ahnonymas Walker toward 

Norton. Norton believed that “there was two big guys coming after me.” RP (Jan. 15, 

2020) at 417. 

According to Howard Norton’s trial testimony, a fearful Norton told Flemming 

loudly “to get the hell out of here.” RP (Jan 15, 2020) at 418. When Flemming turned 

toward him, Norton reached into his pocket for his gun. Flemming attempted to grab 

Norton’s arm from his pocket. Norton removed the gun from his pocket with his left 

hand and transferred the weapon to his right hand so that Flemming could not intercept it. 

He then followed Flemming and Walker out of the bar. On exiting the bar, Norton did 

not see Walker or Flemming. Norton waited approximately ten seconds before firing his 

gun and, when he discharged the gun, he did so toward the ground or air, though he could 

not recall which. Norton insisted that he never pointed the gun at anyone. He acted to 

protect himself, and the incident was not racially-motivated. 

Bartender Candace Guzman phoned 911 dispatch. She reported that an elderly 

man pulled a gun on two black men and added that the gunman acted “extremely racist”

toward the two men. RP (Jan. 14, 2020) at 269. On the arrival of law enforcement, 

Howard Norton, Ahnonymas Walker, and Carmen Flemming returned to the bar. All 

three men cooperated with officers. 

Spokane Police Officer Benjamin Brown-Bieber spoke with Howard Norton and 

Carmen Flemming. Flemming mentioned that Norton called him ignorant and a moron, 
No. 37383-5-III

State v. Norton

6

but Flemming did not comment that Norton employed the N word. Norton admitted he 

fired a shot outside of the bar. When asked why he fired a shot, Norton stated, “he 

[Norton] wanted to make a believer out of him [Carmen Flemming].” RP (Jan. 14, 2020) 

at 251. Norton admitted fault for the shooting and requested that law enforcement avoid 

blaming the bar. Officer Arthur Plunkett spoke to a frightened Ahnonymas Walker, who 

breathed heavily from scattering down an alley. 

Officer Carrie Christiansen patted down Howard Norton and discovered a loaded 

pistol magazine in his pocket. The magazine contained nine by eighteen mm Makarov 

pistol rounds. Officers discovered a matching spent shell casing at the front entrance of 

the bar. Officers found a semi-automatic pistol in Howard Norton’s car. 

In conversing with Officer Carrier Christiansen, Howard Norton commented that

Carmen Flemming threatened him and others. Norton remarked to Officer Christiansen, 

“‘That’s the prejudice thing, you know.’” RP (Jan. 15, 2020) at 429. Christiansen 

inquired as to what Norton meant when referring to “‘the prejudice thing.’” Norton 

answered: “‘He’s a black guy you know that. ’” RP (Jan 15, 2020) at 429. The officer 

asked Norton if he was prejudiced, and Norton responded: “‘I ain’t prejudiced. I don’t 

mind sleeping with them. I just ain’t going to go to school with them.’” RP (Jan. 15, 

2020) at 429-30. 
No. 37383-5-III

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PROCEDURE

The State of Washington charged Howard Norton with two counts of second

degree assault and two counts of malicious harassment, each with a firearm enhancement. 

The two discrete counts of second degree assault and malicious mischief arose because of 

the two discrete victims, Carmen Flemming and Ahnonymas Walker. 

At trial, Carmen Flemming testified that Howard Norton called him the N word, 

and he deemed Norton’s actions to be racially motivated. Defense counsel asked 

Flemming about his failure to report the racial slur to officers on the night of the 

shooting: 

Q. Why wouldn’t you, at that scene when this happened, if he called 

you that name, why wouldn’t you tell a trained police officer, who’s trained 

to do interviews, that he used a racial slur toward you?

A. I didn’t bring it up because he wasn’t there for no racial slur. He 

was there because the man pulled out a gun, had a gun, so I was talking to 

him about the incident.

RP (Jan. 14, 2020) at 225-226. Flemming did not think the language relevant at 

the time. 

During trial, bartender Candace Guzman testified that she never heard Howard 

Norton employ the N word. She told the emergency dispatcher that Norton acted in a 

racist manner based on a comment by a customer. Patron Amanda Kincaid testified she 

remembered Norton utter the slur because of its piercing quality. 
No. 37383-5-III

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Howard Norton testified at trial in support of his defense of self-defense. On 

cross-examination, the State asked Howard Norton if he remembered telling Officer 

Christiansen, “‘That’s the prejudice thing, you know.’” RP (Jan. 15, 2020) at 429. The 

State inquired about additional statements made to Officer Christiansen, asking:

And then Officer Christiansen says, “What’s the prejudice thing?” 

In which you replied, “He’s a black guy you know that.” Do you remember 

that?

A. I do.

Q. And then she asked, “Are you prejudiced?” And you said, “I 

ain’t prejudiced, I don’t mind sleeping with them, I just ain’t going to go to 

school with them.” Do you remember that?

A. I do.

Q. You were just joking when you said that?

A. It was followed up by the answer, that was just in jest, you know.

RP (Jan. 15, 2020) at 429-30. Howard Norton acknowledged shooting the gun to scare 

Carmen Flemming and Ahnonymas Walker. 

The trial court instructed the jury on self-defense. The trial court also gave an first 

aggressor instruction which provided in part, that if the jury “find[s] beyond a reasonable 

doubt that the defendant was the aggressor, and that defendant’s acts and conduct 

provoked or commenced the fight, then self-defense or defense of another is not available 

as a defense.” Clerk’s Papers at 145. 

The jury convicted Howard Norton on all counts and returned special firearm 

verdicts. At the sentencing hearing on January 31, 2020, the sentencing court stated that 

it lacked any discretion with regard to the imposition of the sentences for the firearm 
No. 37383-5-III

State v. Norton

9

enhancements. The sentencing court sentenced Norton, who had no other countable 

criminal history, to the low end for each of his four offenses. Norton received 15 months 

on each count of second degree assault and 13 months on each malicious harassment 

count, to run concurrently, for an effective total of 15 months. The court imposed 

sentences for the firearm enhancements, including 36 months for each assault conviction

and 18 months for each malicious harassment conviction, for a total of 108 months. The 

effective sentence for the convictions and firearm enhancements totaled 123 months with 

18 months of community custody. 

LAW AND ANALYSIS

On appeal, Howard Norton asserts three assignments of error. He challenges the 

sufficiency of evidence to convict him of the two counts of second degree assault. He 

challenges the sufficiency of evidence to convict him of two counts of malicious 

harassment. Finally, he claims the trial court erred when ruling that the court must run 

his firearm enhancement sentences consecutively. 

Second Degree Assault

Howard Norton argues that he acted in self-defense and the State failed to 

disprove this defense beyond a reasonable doubt. Therefore, according to Norton, the 

jury could not find him guilty of either count of second degree assault. We disagree. 

The State has the burden of proving every essential element of a charged crime 

beyond a reasonable doubt. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007); 
No. 37383-5-III

State v. Norton

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In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “Evidence is 

sufficient to support a conviction if, viewed in the light most favorable to the prosecution, 

it permits any rational trier of fact to find the essential elements of the crime beyond a 

reasonable doubt.” State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). “A claim 

of insufficiency admits the truth of the State’s evidence and all inferences that reasonably 

can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 

An assault in self-defense constitutes a lawful act. State v. Acosta, 101 Wn.2d 

612, 616, 683 P.2d 1069 (1984). RCW 9A.16.020(3) declares: 

The use, attempt, or offer to use force upon or toward the person of 

another is not unlawful in the following cases:

. . . .

(3) Whenever used by a party about to be injured, or by another 

lawfully aiding him or her, in preventing or attempting to prevent an 

offense against his or her person, or a malicious trespass, or other malicious 

interference with real or personal property lawfully in his or her possession, 

in case the force is not more than is necessary.

RCW 9A.16.010(1) defines “necessary” as meaning:

that no reasonably effective alternative to the use of force appeared 

to exist and that the amount of force used was reasonable to effect the 

lawful purpose intended.

Proof of self-defense negates the knowledge element of second degree assault. 

State v. Acosta, 101 Wn.2d at 616. Since proof of self-defense negates knowledge, due 

process requires that the State disprove self-defense in order to prove that the defendant 

acted unlawfully. State v. Acosta, 101 Wn.2d at 616. To raise the claim of self-defense, 
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the defendant must first offer credible evidence tending to prove self-defense. State v. 

Graves, 97 Wn. App. 55, 61, 982 P.2d 627 (1999). The State then bears the burden of 

disproving self-defense beyond a reasonable doubt. State v. Graves, 97 Wn. App. at 61-

62. Evidence must show that (1) the accused subjectively feared he was in imminent 

danger of death or great bodily harm, (2) this belief was objectively reasonable, (3) the 

accused exercised no greater force than reasonably necessary, and (4) the defendant was 

not the aggressor. State v. Callahan, 87 Wn. App. 925, 929, 943 P.2d 676 (1997). The 

jury need not find an actual threat of imminent harm as long as the defendant reasonably 

perceived such a threat. State v. LeFaber, 128 Wn.2d 896, 899, 913 P.2d 369 (1996), 

abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91, 217 P.3d 756 (2009). 

Self-defense requires the jury to consider both objective and subjective 

considerations. State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). Evidence of 

self-defense must be assessed from the standpoint of the reasonably prudent person, 

knowing all the defendant knows and seeing all the defendant sees. State v. Janes, 121 

Wn.2d at 238. The jury must weigh the defendant’s actions in light of all the facts and 

circumstances known to the defendant, even those substantially predating the killing. 

State v. Janes, 121 Wn.2d at 238. The inquiry is subjective to the extent the jury 

adjudges the facts by standing in the place of the defendant, but objective because the 

jury must decide whether a reasonably prudent person in such shoes would have acted as 

the defendant did. State v. Janes, 121 Wn.2d at 238. 
No. 37383-5-III

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The jury enjoys the province to weigh the evidence and determine the credibility

of the witnesses and decide disputed questions of fact. State v. Dietrich, 75 Wn.2d 676, 

677-78, 453 P.2d 654 (1969). This court does not review credibility determinations on 

appeal. State v. Thomas, 150 Wn.2d at 874. 

Carmen Flemming, Ahnonymas Walker, and Howard Norton agreed that they 

engaged in a heated verbal exchange, including a medley of profanities. They disagree as 

to other details. The jury served the function of resolving the truthfulness of the varying 

testimony. 

Carmen Flemming and Ahnonymas Walker both denied that they threatened 

Howard Norton. The jury could believe them. Flemming, Walker, and the bartender 

Candace Guzman testified that Norton declared an intent to kill Flemming and Walker. 

Even under Norton’s version of the facts, he returned, with his gun, to a seat near 

Flemming and lingered to pay for his food. He did not inform the bartender of any 

threats to his person. A jury could conclude that Norton lacked any subjective fear for 

his safety. 

Under Howard Norton’s version of the facts, Carmen Flemming approached him 

first and he feared that Flemming would harm him. Norton averred that he feared that 

two large men were coming after him. Norton reached for his gun in self-defense. Even 

should the jury accept that Norton feared Flemming or Ahnonymas Walker, they could 

determine that he exercised greater force than reasonably necessary. Once Walker and 
No. 37383-5-III

State v. Norton

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Flemming ran toward the bar entrance, Norton followed them with a gun pointed toward 

them. Any threat had ended. He chased them from the bar and then fired his gun. When 

the two gentlemen fled the bar, Norton lacked any need to shoot. 

Malicious Harassment

Howard Norton argues that the State provided insufficient evidence to support the 

two convictions for malicious harassment because the State failed to prove that Norton 

threatened Carmen Flemming and Ahnonymas Walker because of their race. He argues 

that Walker never testified to the use of a racial slur directed toward him. Norton 

contends that the altercation arose from men being macho, not from racism. Testimony 

that Norton used a racial slur and that Norton told a law enforcement officer that AfricanAmericans behave in a particular way deconstructs Norton’s contention. 

Former RCW 9A.36.080 (2010), in effect at the time of the alleged crime, 

provided in relevant part:

(1) A person is guilty of malicious harassment if he or she 

maliciously and intentionally commits one of the following acts because of 

his or her perception of the victim’s race, color, religion, ancestry, national 

origin, gender, sexual orientation, or mental, physical, or sensory handicap:

. . . .

(c) Threatens a specific person or group of persons and places that 

person, or members of the specific group of persons, in reasonable fear of 

harm to person or property. The fear must be a fear that a reasonable 

person would have under all the circumstances. For purposes of this 

section, a “reasonable person” is a reasonable person who is a member of 

the victim’s race, color, religion, ancestry, national origin, gender, or sexual 

orientation, or who has the same mental, physical, or sensory handicap as 

the victim. Words alone do not constitute malicious harassment unless the 
No. 37383-5-III

State v. Norton

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context or circumstances surrounding the words indicate the words are a 

threat. Threatening words do not constitute malicious harassment if it is 

apparent to the victim that the person does not have the ability to carry out 

the threat.

LAWS OF 2010, ch. 119, § 1. The law required the jury to find that Howard Norton 

specifically threatened Carmen Flemming and Ahnonymas Walker because of his 

perception of their race. 

RCW 9A.36.080 penalizes acts that rise to the level of malicious and intentional 

threats against a person based on the victim’s race or color. Words stated in a context 

that show they are a threat constitute malicious harassment provided the person has the 

apparent ability to follow through with the threat. State v. Johnson, 115 Wn. App. 890, 

896, 64 P.3d 88 (2003). The trier of fact need not weigh the extent to which bias played a 

role in the commission of the crime. State v. Johnson, 115 Wn. App. at 896. A 

spontaneous decision to assault someone because of the victim’s membership in the 

targeted group is still malicious harassment. State v. Johnson, 115 Wn. App. at 896. 

Howard Norton threatened both Carmen Flemming and Ahnonymas Walker. Both 

are black men. Flemming testified that Howard Norton called him the N word. He 

believed that Norton’s statements were racially-motivated. Customer Amanda Kincaid 

also testified that she heard the piercing word. Norton stated to Officer Carrie 

Christiansen, “‘That’s the prejudice thing, you know.’” RP (Jan. 15, 2020) at 429. 

When asked what he meant, Norton stated, “‘He’s a black guy you know that.’” RP 
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(Jan. 15, 2020) at 429. The officer asked if Norton was prejudiced and he responded, “‘I 

ain’t prejudiced. I don’t mind sleeping with them. I just ain’t going to go to school with 

them.’” RP (Jan. 15, 2020) at 429-30. This testimony abundantly supports partial 

motivation of race. 

In support of his contention that race did not motivate him, Howard Norton 

contends that his alleged use of racist terms only became disclosed after the night of the 

incident. Some of the evidence confirms this contention. Some does not. Regardless, 

the jury could find the language was used. 

Sentence

The sentencing court imposed a sentence that runs 123 months. 15 of those 

months arise from the four substantive convictions, which sentences the court ran 

concurrently. One hundred eighteen of those months derive from weapon enhancements 

for each of the four crimes, which sentences ran consecutive to the underlying sentences 

and to each other. The sentence enhancements almost subsume the underlying sentence. 

Howard Norton argues that the sentencing court erred when it concluded that it 

lacked discretion to order that his firearm enhancements run concurrently with his 

sentences for his underlying crimes rather than consecutively. He argues that, pursuant to 

State v. McFarland, 189 Wn.2d 47, 55, 399 P.3d 1106 (2017), a sentencing court should 

have discretion to impose a sentence that includes concurrent firearm-related 

enhancements. Precedent compels a different conclusion. 
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“As a general rule, the length of a criminal sentence imposed by a superior court is 

not subject to appellate review, so long as the punishment falls within the correct 

standard sentencing range established by the Sentencing Reform Act of 1981, chapter 

9.94A RCW.” State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). 

Nevertheless, “this prohibition does not bar a party’s right to challenge the underlying 

legal conclusions and determinations by which a court comes to apply a particular 

sentencing provision.” State v. Williams, 149 Wn.2d at 147. A court that fails to exercise 

its discretion has abused its discretion. Bowcutt v. Delta North Star Corp., 95 Wn. App. 

311, 320, 976 P.2d 643 (1999). 

RCW 9.94A.533 provides:

(1) The provisions of this section apply to the standard sentence 

ranges determined by RCW 9.94A.510 or 9.94A.517. 

. . . . 

(3) The following additional times shall be added to the standard 

sentence range for felony crimes committed after July 23, 1995, if the 

offender or an accomplice was armed with a firearm as defined in RCW 

9.41.010 and the offender is being sentenced for one of the crimes listed in 

this subsection as eligible for any firearm enhancements based on the 

classification of the completed felony crime. If the offender is being 

sentenced for more than one offense, the firearm enhancement or 

enhancements must be added to the total period of confinement for all 

offenses, regardless of which underlying offense is subject to a firearm 

enhancement. If the offender or an accomplice was armed with a firearm as 

defined in RCW 9.41.010 and the offender is being sentenced for an 

anticipatory offense under chapter 9A.28 RCW to commit one of the crimes 

listed in this subsection as eligible for any firearm enhancements, the 

following additional times shall be added to the standard sentence range 

determined under subsection (2) of this section based on the felony crime of 

conviction as classified under RCW 9A.28.020:
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(a) Five years for any felony defined under any law as a class A 

felony or with a statutory maximum sentence of at least twenty years, or 

both, and not covered under (f) of this subsection;

. . . . 

(e) 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, for all offenses 

sentenced under this chapter.

(Emphasis added.) According to the Washington State Supreme Court, the plain 

language of the statute not only anticipates the imposition of multiple enhancements 

under a single offense but clearly insists that all firearm and deadly weapon 

enhancements are mandatory and must be served consecutively. State v. DeSantiago, 

149 Wn.2d 402, 418, 68 P.3d 1065 (2003) (addressing the current statute’s forerunner, 

RCW 9.94A.510). LAWS OF 2002, ch. 290 §§ 10, 11. 

State v. Brown, 139 Wn.2d 20, 938 P.2d 608 (1999), overruled on other grounds 

by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), forecloses Howard 

Norton’s claim that imposition of firearm-related enhancements may be issued 

concurrently as opposed to consecutively. In that case, the State argued that the trial 

court erred in granting Natalie Brown’s request for an exceptional sentence downward

when it imposed a sentence below that outlined for a deadly weapon enhancement. 

Brown argued that, when presented with sufficient justification, the court can deviate 

from the sentencing range without limitation. Our high court disagreed: 
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RCW 9.94A.310(4) [former relevant statute] begins by providing 

that deadly weapon enhancements ‘shall be added to the presumptive 

sentence[.]’ The more specific language within RCW 9.94A.310(4)(e) 

requires that ‘[n]otwithstanding any other provision of law, any and all 

deadly weapon enhancements under this section are mandatory, [and] shall 

be served in total confinement.’ This language clearly dictates a reading by 

the average informed lay voter that deadly weapon enhancements are 

mandatory and must be served.

State v. Brown, 139 Wn.2d at 28 (first alteration added). The state Supreme Court relied 

on this “absolute language” contained in former RCW 9.94A.310(4)(e) and stated that, if 

the sentencing provision “is to have any substance, it must mean that courts may not 

deviate from the term of confinement required by the deadly weapon enhancement.” 

State v. Brown, 139 Wn.2d 29. 

Howard Norton asks this court to extend the reasoning of State v. McFarland, 189

Wn.2d 47 (2017), in which our high court addressed sentences for firearm-related 

convictions imposed under RCW 9.94A.589(1)(c) “Consecutive or concurrent 

sentences.” In State v. McFarland, Cecily Zorada McFarland contended that the 

sentencing court erred in concluding that it lacked discretion to impose an exceptional 

mitigated sentence and impose her firearm-related sentences concurrently rather than 

consecutively. Our high court agreed, holding that, “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 
No. 37383-5-III

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firearm-related sentences.” State v. McFarland, 189 Wn.2d at 55 (quoting RCW 

9.94A.535(1)(g)). In the opinion, the court recognized a distinction between sentencing 

for firearm-related enhancements and convictions, stating that the purpose behind the 

enactment of RCW 9.94A.589(1)(c) was to reverse the Supreme Court’s decision in In re 

Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d 789 (1998), and “ensur[e]

that firearm-related enhancements be served consecutively.” State v. McFarland, 189 

Wn.2d at 55. In In re Post Sentencing Review of Charles, 135 Wn.2d at 254, our high 

court had held that “multiple weapon enhancements do not necessarily run consecutively 

to each other.” 

Howard Norton also asks this court to extend the reasoning of the state Supreme 

Court’s opinion in State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017). There, 

our high court considered the sentences of two juveniles, tried in adult court, whose 

sentences included firearm enhancements. The court overruled State v. Brown to the 

extent that it applied to bar a sentencing court from exercising its discretion with regard 

to juvenile sentences. State v. Houston-Sconiers, 188 Wn.2d at 21 n.5. Norton points to 

the opinion of Justice Madsen, who concurred in result only and insisted that the court 

erred in issuing its decision in State v. Brown, as it took away a court’s discretion to 

fulfill the purpose of the Sentencing Reform Act. 

We decline Howard Norton’s request to follow State v. McFarland and State v. 

Houston-Sconiers. We must follow the language of the legislature and the 
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implementation of that language by the Supreme Court in State v. Brown even if we deem 

the lengthy sentence resulting from multiple sentencing enhancements unfair. 

CONCLUSIONS

We affirm all four of Howard Norton’s convictions and his sentence. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, J.

WE CONCUR:

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Siddoway, A.C.J.

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Lawrence-Berrey, J.