State Of Washington, Resp-cross App V. Darryl W. Kennon, App-cross Resp

2021 | Cited 0 times | Court of Appeals of Washington | August 16, 2021



Respondent/ Cross-Appellant,



Appellant/ Cross-Respondent. No. 80813-3-I



SMITH, J. Darryl Kennon appeals his felony convictions for first degree

burglary, four counts of felony violations of court orders, and second degree

assault all with a domestic violence aggravator. Kennon alleges that he was

denied the constitutionally required presumption of innocence when the trial court

allowed additional security officers in the courtroom while the victim testified, that

his counsel was ineffective by failing to request the instruction for the lesser

included offense of third degree assault, and that the court violated his

fundamental rights when it entered a lifetime prohibition of his contact with his

children. The State cross appeals, asserting that the trial court erred when it

declined to sentence Kennon as a persistent offender under the Persistent

Offender Accountability Act (POAA), part of the Sentencing Reform Act of 1981

(SRA), chapter 9.94A RCW.

We conclude that the presence of three uniformed officers was neither not ineffective when they did not request an instruction for third degree assault.

However, because t with his children for life, we remand for the court to determine whether the

infringement on rights is reasonably necessary to protect the children

from harm and, if so, to narrowly tailor the orders in duration and scope. Finally,

because a sentencing court lacks the authority to ignore the mandate under the

POAA, the trial court erred when it declined to impose a life sentence. We

remand for resentencing.


Darryl Kennon and Zotica Kennon 1 married in 2003 and separated in

2016. In 2017, Zotica sought domestic violence protection orders against

13 years old,

M.K., 9 years old, and V.K., 7 years old. The court entered a domestic violence protection order protecting Zotica and her three

children. Pursuant to the order, Kennon was allowed to see his children every

other Saturday. However, Zotica allowed Kennon to see the children at other

times. The couple divorced in March 2018.

They spoke while the children were present. Following this incident, in July

2018, Kennon pleaded guilty to violating the 2017 order. The violation resulted in

four domestic violence no- his children. Nonetheless, Zotica allowed Kennon to continue to see the

1 We refer to Zotica by her first name for clarity. children, and Kennon took them on a camping trip on August 10, 2018.

On August 14, 2018, Kennon repeatedly called Zotica on the phone while

she was at work, angry about her allegedly seeing someone new and concerned

that she was leaving the children home alone. Zotica testified that Kennon called

she told him to stop calling her.

At around 4:00 p.m. the children were present. The door was open. Zotica was in her

room. V.K. saw Kennon in the hallway and went out to speak with him. He

asked where Zotica was, and V.K. told him. Kennon ent

room, and Zotica testified that he pushed her in the stomach. Kennon, on the

other hand, testifie , hey, you called the police



the contact.

Kennon pushed her, pinned her in the laundry room

area, and then hit red Kennon

lapped her in her face . . open-handed slap and that he did it with his nondominant hand. Zotica testified that Kennon told h kitchen sink, and pulled out the

him to stop. And Zotica grabbed the hammer and ran out of the house to the

apartment complex parking lot.

At this time, V.K. testified that she and her siblings left the house and

Simultaneously, Zotica was running around a vehicle, and Kennon was chasing

[,] . . . [a]nd if she

would have stopped, [he] probably would have had the opportunity to apologize


After multiple neighbors noticed the altercation and began calling the

police, Kennon got int testim At some point, K.K. had gone inside the house, retrieved a knife,

Kennon drove away.

Zotica believed he was trying to run her over with his truck. Zotica ran away from

the apartment complex and got into the vehicle of a woman she saw driving. She [u] police found her when they responded to the scene. Zotica was transported to a

nearby hospital and treated for her injuries. She sustained an orbital wall

The State charged Kennon with seven domestic violence felonies: first

degree burglary (count 1), four counts of felony violation of a court order

(counts 2 through 5), second degree assault with a deadly weapon (count 6), and

second degree assault by reckless infliction of substantial bodily harm on Zotica

(count 7).

Trial began on August 7, 2019. Prior to her testimony, Zotica requested

threats to the judge in th verified this information. Detective Gerald Gee also had concerns about a phone

call Kennon made to his sisters from jail. During the conversation, one of

ut that other thing and do you want to

The State was unsure what the conversation was in

reference to

potential alternatives to a life in prison sentence upon conviction.

Because of this conversation, Detective Gee also asked the State if it would

request an additional officer.

court if an additional officer could be present while Zotica testified. The parties were already two officers in the court

Detective Gee also would be present for some of the testimony.

additional officer, thereby allowing three uniformed officers in the courtroom and

Detective Gee in plain clothes have reason to believe that [Zotica] is feeling traumatized and will feel very

traumatized at the time that she has to openly confront Mr. Kennon. And I think

that outweighs any danger The court asked

Kennon if he would like a limiting instruction, but Kennon declined, not wanting to

draw more attention to the issue.

fourth uniformed officer was present in the courtroom. When defense counsel

noted their presence, they requested a recess to discuss the matter outside the

table, and one . . . was standing about 10 feet behind

mistake, the court dismissed the additional officer. The jury returned to the

courtroom with the three officers and Detective Gee present.

Following testimony from Zotica, all three children, and Kennon, among

other individuals and experts, the jury found Kennon guilty of first degree burglary, four counts of violation of a court order, and second degree assault by

reckless infliction of substantial bodily harm all with domestic violence

aggravators. The jury acquitted Kennon of second degree assault with a deadly


At sentencing, the State offered two prior plea agreements, which showed

or child molestation in the first degree and rape of a

burglary in the first degree, the State argued that the trial court was required to

impose a life sentence under the POAA, RCW 9.94A.570. Kennon, on the other

hand, asserted that his 1991 guilty plea for first degree child molestation was

facially invalid because it did not include two elements of the charged crime. He

further argued that it was unfair to impose a life sentence where the POAA

disproportionally sentences black men to prison for life and that he has not had

any other convictions since 1992. Specifically, he argued that, as applied to

the 1991 conviction. However, after some discussion, the court while

acknowledging that it was without authority to do so refused to impose a life

sentence under the POAA. The court stated:

I am very troubled by the persistent offender law, particularly as it relates to this particular case. . . . I am aware though of the disproportionality of African-American men in the criminal justice system and in the life without parole population . . . . doubt in my mind that institutional racism plays a role. . . .

The reason I feel so conflicted right now, and I do, is because I took an oath to apply the law and to enforce it, whether I agree with it or not because s not my call. s call. s the call of appellate courts higher than my level of trial court. However, this is my judgment and sentence and I have to take some ownership of it. And a life without parole sentence, given your actions and your choices, which were really bad in this case, just still seems to me to be very disproportionate. So t do very often. And this is going to go to the appellate court regardless of what I rule, and I know it will. . . . I am not going to count that child molestation conviction. And I am not going to count it on the basis that in your plea, you did not specifically admit to two necessary elements of the crime and we've gone over what those are.

Instead, it imposed an exceptional sentence of 176 months. The court also

entered lifetime no-

Kennon appeals his conviction, and the State cross appeals his sentence.


Additional Security

Kennon alleges that the trial court violated his constitutional right to a fair

trial [ ] behind the prosecutor table

prejudicial and the trial court has broad discretion to manage court proceedings,

we disagree.

our crim State v. Gorman-Lykken, 9 Wn. App. 2d 687, 692,

446 P.3d 694 (2019). [T]he accused is . . . entitled to the physical indicia of

innocence which includes the right of the defendant to be brought before the

court with the appearance, dignity, and self- State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). State v. Butler, 198 Wn. App. 484, 493, 394 P.3d 424 (2017). measures that single out defendants as particularly dangerous or guilty threaten

their right to a fair trial because those measures erode the presumption of

Gorman-Lykken, 9 Wn. App. 2d at 692. However, the presence of

Holbrook v. Flynn, 475 U.S.

560, 569, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986).

State v. Dye, 178 Wn.2d 541, 547, 309 P.3d

1192 (2013). y of

Dye, 178 Wn.2d at 547-48. regarding its

its deci Dye, 178 Wn.2d at 548 (quoting In re

Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). here

special courtroom procedures implicate constitutional rights, it is not the

Dye, 178 Wn.2d at 553. two cases guide our analysis. In Butler, we held that


Wn. App. at 486. Ivory Butler was charged with promoting commercial sexual

abuse of a minor. Butler, 198 Wn. App. at 486. At trial, the victim testified.

Butler, 198 Wn. App. at 489. During a portion of their testimony, there were two

uniformed officers present: one, presumably in a customary location by or in the

directly in front of the witness stand but some 20 feet

away[,] . . . [and] eight feet away from the defendant. Butler, 198 Wn. App. at


reasoning that they were not conspicuously close to Butler, did not obstruct

not present for the

Butler, 198 Wn. App. at 494. Additionally,

the trial court instructed the jury that a routine change in security personnel

caused the Butler, 198 Wn. App. at 486-87. We

Butler, 198 Wn. App. at 495.

In Gorman-Lykken, the court corrections officer to stand next to the defendant while he testified. 9 Wn. App.

2d at 689. James Gorman-Lykken was charged and convicted of second degree

rape. Gorman-Lykken, 9 Wn. App. 2d at 689-90. Gorman-Lykken testified at

trial during which time a corrections officer stood next to the witness stand.

Gorman-Lykken, 9 Wn. App. 2d at 689. The trial court allowed the officer to be Gorman-

Lykken, 9 Wn. App. 2d at 690.

On appeal, the court was

inherently prejudicial, focusing on the particular facts of the case. Gorman-

Lykken, 9 Wn. App. 2d at 694. e was only one officer, and she did

not do anything to draw attention to herself[, and she] moved to and from the

Gorman-Lykken, 9 Wn. App. 2d at


The court next addressed whether the trial court ision was an abuse

of discretion. Gorman-Lykken, 9 Wn. App. 2d at 695-96. The court adopted a

next to the witness stand when Gorman-Lykken, 9 Wn.

App. 2d at 697. It trial court must (1) state case-specific reasons

for the need for such security measure, and (2) determine that the need . . .

Gorman-Lykken, 9 Wn. App. 2d at 697. The

court concluded that the trial court abused its discretion because it failed to

provide a case-specific reason for its ruling. Gorman-Lykken, 9 Wn. App. 2d at


First, we determine whether the presence of additional security officers in

was inherently prejudicial. Three uniformed officers were present

in the courtroom: one officer sat by the jury box, as is customary, one stood by assertion that it was odd to have even two officers present, other trial courts have

defendant in court, and during trial generally is not an inher Gorman-Lykken, 9

Wn. App. 2d at 690, 693. Even if it were unusual to have three uniformed

officers, their placement throughout the courtroom was not inherently prejudicial:

they were not hovering around Kennon or standing next to Zotica as if protecting

And although there were

does not require a conclusion distinct from Butler. Moreover, we are wary of


Holbrook, 425 U.S. at 569; compare Gorman-Lykken, 9

Wn. App. 2d at 696 (distinguishing the placement of a security officer by the

security officer is stationed next to a testifying defendant than when an officer or

For these reasons and

because dangerous, their presence was not inherently prejudicial. See, e.g., Holbrook,

anything other than a normal official concern for the safety and order of the

Next, we adopt the second step in Gorman-Lykken, applying it more

generally to hold that a trial court must provide case-specific reasoning on the record for its decision to allow additional security measures

trial. 2 Here, the trial court provided a case-specific justification. Specifically,


to his sister, a previous courtroom

rational fear

Dye, 178 Wn.2d at 553.

special dispensation. Dye, 178 Wn.2d at 553. Because the court provided a

case-specific analysis, it did not abuse its discretion, did not act manifestly

unreasonable, and did not base its decision on untenable grounds when it

allowed additional officers to be inconspicuously placed throughout the


Kennon disagrees and unpersuasively attempts to distinguish Butler

Butler was told about the shift change. With

regard to his first presence was due to a similarly

innocent issue, i.e., a miscomm

2 The State asserts that a case-specific inquiry like Gorman-Lykken is not required when the officers are not stationed next to the defendant while they testify. Although Gorman-Lykken limited its holding to such a situation, discretion based on the facts of the case in considering whether to allow a

-96. Accordingly, we conclude that, whatever the security measure, a court must provide a reason for its determination. and the State. As to the second contention, there was no limiting instruction in

because he did not seek one. Although defense counsel

reasonably decided not to request a jury instruction regarding the officers, the

prejudicial or that the trial court abused its discretion.

Kennon also relies on State v. Jackson, 195 Wn.2d 841, 467 P.3d 97

(2020), Jackson, John

Jackson Sr. had a security leg brace on during trial that was not visible under his

clothes. 195 Wn.2d at 844, 847. However, when Jackson testified in his

defense, he argued that the jury could see the brace, and despite his objection,

the court did not require that the jail officers remove his leg brace. Jackson, 195

Wn.2d at 848. On appeal, because the State could not prove that the jury did not

notice the brace, which was a more sophisticated shackle, the court concluded

that the State failed to satisfy the constitutional harmless error analysis.

Jackson, 195 Wn.2d at 847, 858. Jackson is distinguishable because it involved

the inherently prejudicial issue of shackling. See Holbrook, 475 U.S. at 560

(holding that courtroom during trial is not the sort of inherently prejudicial practice that should

be permitted only where justified Thus, we are

not persuaded.

Ineffective Assistance of Counsel

Kennon next asserts that he received ineffective assistance of counsel because his trial counsel failed to seek a jury instruction on the lesser included

offense as to count seven of third degree assault by negligence. We disagree.

The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution guarantee the right to effective

assistance of counsel. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16

P.3d 601 (2001). here the claim of ineffective assistance is based on


State v. Classen, 4 Wn. App. 2d 520, 539-40, 422 P.3d 489 (2018). assistance of counsel is a fact-

State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260

(2011) (quoting State v. Cienfuegos, 144 Wn.2d 222, 229, 25 P.3d 1101 (2001)).

We review ineffective assistance claims de novo. Brett, 142 Wn.2d at 873.

Was Kennon Entitled to the Instruction?

First, Kennon cannot show that he was entitled to the lesser included

offense instruction.

A defendant is entitled to an instruction on a lesser included offense when,

there is evidence that the defendant committed only

the inferior offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d

1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133

Wn.2d 885, 891, 948 P.2d 381 (1997)). The evidence is sufficient where

Fernandez-Medina, 141 Wn.2d at 461. And supporting evidence in the light most

Fernandez-Medina, 141 Wn.2d

at 455-56.

. . .

[i]ntentionally assault[ ] another and thereby recklessly inflict[ ] substantial bodily

RCW 9A.36.021(1)(a). [they], under circumstances not amounting to assault in the first or second

degree[,] . . . [w]ith criminal negligence, cause[ ] bodily harm accompanied by

substantial pain that extends for a period sufficient to cause considerable

RCW 9A.36.031(1)(f).

The mens rea elements for these offenses differ. As to second degree

assault, the person must act with inte the objective or purpose to

RCW 9A.08.010(1)(a). The

know[ ] of and disregard[ ] a substantial risk that a wrongful

act may occur and [their] disregard of such substantial risk is a gross deviation

RCW 9A.08.010(1)(c). With regard to third degree assault, the accused must act

] to be aware of a substantial risk that a

wrongful act may occur and [their] failure to be aware of such substantial risk

constitutes a gross deviation from the standard of care that a reasonable person

RCW 9A.08.010(1)(d).

Kennon testified to intentionally hitting Zotica. And third degree assault is justified only where the accused acts negligently. We are not persuaded by

he slapped Zotica

with his nondominant hand. There can be no reasonable inference that

intentionally assaulted

Zotica. And as this court acknowledged in State v. Loos, 14 Wn. App. 2d 748,

759, 764, 473 P.3d 1229 (2020), negligence is

undoubtedly an inferior degree of culpability than intent Second degree and

fourth degree assault require intent, whereas third degree assault does not. See

Loos, 14 Wn. App. 2d at 763-65 (holding that the trial court erred in instructing

the jury on fourth degree assault where the State had charged the defendant with

third degree assault and concluding that fourth degree assault is neither a lesser

included offense nor an inferior degree offense to third degree assault). Because

Kennon admitted that he acted with intent, Kennon was not entitled to an

instruction for third degree assault.

performance was not deficient.

Knowles v.

Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009).

State v. Kyllo, 166 Wn.2d

856, 862-63, 215 P.3d 177 (2009). To rebut this presumption, Kennon must 3 4

Kennon fails to satisfy this requirement.

Grier is instructive. There, Kristina Grier was intoxicated when a fight

broke out between her and Gregory Owen. Grier, 171 Wn.2d at 21, 23. Grier

shot Owen, who was later pronounced dead. Grier, 171 Wn.2d at 23-25. The

State charged Grier with second degree murder with a firearm sentencing

enhancement. Grier, 171 Wn.2d at 25. Following a discussion with Grier, her

counsel withdrew the lesser included offense instructions for manslaughter in the

first and second degree. Grier, 171 Wn.2d at 26-27.

and her defense counsel reasonably could have believed that an all or nothing

strategy was the best approach to Grier, 171

Wn.2d at 42-43. O jury would not have convicted Grier of [the greater offense] unless the State had

Grier, 171 Wn.2d at 43-44. The

court concluded that Grier could not meet her

Grier, 171 Wn.2d at 43.

3 State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). 4 Classen, 4 Wn. App. 2d at 535. Here, as discussed above, Kennon fails to establish that he was entitled to

the third degree assault instruction. And counsel is not ineffective where they

withdraw See

Knowles, 556 U.S. at 124-26 (holding that defense counsel was not ineffective

where they withdrew a not guilty by reason of insanity instruction, where counsel

believed they had no evidence to prove insanity).


admitted that he intentionally hit Zotica, precluding the validity of a claim that he

committed third degree assault by criminal negligence. Furthermore, counsel

requested an inferior degree offense instruction for fourth degree assault, which

invokes the mens rea that Kennon admitted to, i.e., intent. Thus, Kennon fails to

rebut the strong presumption that his counsel was effective as well as the related

Grier presumptions. His ineffective assistance of counsel claim is without merit.

Kennon assert Grier and [In re Pers. Restraint of ]Crace[, 174

Wn.2d 835, 280 P.3d 1102 (2012),] should not be read to categorically preclude

prejudice in the context of an ineffective assistance claim involving [a] lesser

Grier and Crace do not create a categorical exclusion.

However, they do create presumptions that (1) the State met its burden of proof

to convict the defendant of the greater offense and (2) the outcome of trial would

not be different had the court supplied a lesser included offense instruction. In

Grier, our Supreme Court created the two presumptions regarding ineffective

assistance of counsel claims and lesser included offenses, 171 Wn.2d at 43-44,

and, in Crace, our Supreme Court applied Grier lar scenario. There, request the lesser included offense for second degree assault with a deadly

weapon, i.e., unlawful display of a deadly weapon. Crace, 174 Wn.2d at 838-39.

And the court concluded that his claim failed. Crace, 174 Wn.2d at 838-39, 848.

Appeals in Crace v. Herzog, 5

our Supreme Court precedent binds us. See, e.g.,

W.H. v. Olympia Sch. Dist., 195 Wn.2d 779, 788, 465 P.3d 322 (2020) (holding

Therefore, the Grier presumptions apply.

Fundamental Right To Parent

Kennon contends that the

children violated his fundamental right to parent. Because the sentencing court

did not provide an explanation for the scope or duration of the orders, we agree

and remand for the court to address the parameters of the no-contact orders

under the reasonably necessary standard.

State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246

(2001). In re

Welfare of Key, 119 Wn.2d 600, 609, 836 P.2d 200 (1992); Ancira, 107 Wn. App.

at 653. Nonetheless, a trial court may impose crime-related sentencing

5 n Supreme C Strickland[ v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 conditions that limit a See In re Pers. Restraint of Rainey, 168

Wn.2d 367, 380, 229 P.3d 686 (2010) (affirming the scope of a sentencing


RCW 9.94A.505(9).

Rainey, 168 Wn.2d at 377 (alteration in

original) (quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)). generally review sentencing cond Rainey, 168

Wn.2d at 374. fundamental constitutional right, such as the fundamental right to the care,

Rainey, 168 Wn.2d at 374

(citation omitted).

In Rainey, our Supreme Court addressed a lifetime no-contact order that

prevented Shawn Rainey from contacting his daughter. 168 Wn.2d at 370. A

jury had convicted Rainey of first degree kidnapping after he disappeared with

his daughter, L.R., taking her to Mexico. Rainey, 168 Wn.2d at 371. On appeal,

S in

protecting (1) L.R. from witnessing

domestic violence between her parents, and (3) the victim of a crime, L.R., from

to prohiRainey, 168 Wn.2d at 377, 379.

Nonetheless, the court struck the no-contact order and remanded for resentencing. Rainey, 168 Wn.2d at 381-82. court in this case provided no reason for the duration of the no- - -

-contact order under

Rainey, 168 Wn.2d at 381-82.

Here, like in Rainey, the court failed to provide any justification for the

with his children. That is, the court provided no explanation, though it entered

to provide the required justification. Because the court failed to address the need

for and duration of the no-contact orders, the trial court erred. 6 See State v.

Torres, 198 Wn. App. 685, 690, 393 P.3d 894 (2017) (holding that, where the trial

court did not analyze the need for a no-contact order against a parent regarding

their child, the trial court abused its discretion). On remand, the court must:

(1) address whether the no- if

they are, then the court should consider less restrictive alternatives when

6 Kennon also asserts that the trial court erred when it imposed Department of Corrections supervision fees. But as discussed below, the trial RCW 9.94A.570. Therefore, the issue is moot. 7


In its cross appeal, the State contends that the trial court erred when it

failed to impose a life sentence under the POAA. Because the trial court erred

when it allowed Kennon to attack his prior conviction and lacked discretion under

the POAA, we agree.

Under the POAA,

total confinement for life with RCW 9.94A.570.

And a persistent offender is a defendant who has been convicted of a most

serious offense and (1) has two prior felonies that also are most serious offenses

or (2) has been convicted of rape of a child in the first degree, or child

molestation in the first degree. RCW 9.94A.030(37). means any class A felony. RCW 9.94A.030(32)(a). he first degree

RCW 9A.52.020(2).

Applicable here, the jury convicted Kennon of burglary in the first degree

with the domestic violence aggravator. In addition, the State provided proof copies of the plea agreements that Kennon pleaded guilty to (1) child

molestation in the first degree in 1991 (1991 conviction) and (2) rape of a child in

the first degree in 1992 (1992 conviction). In sum, Kennon has been convicted of

one most serious offense, first degree child rape, and first degree child


7 If the trial court decides that the no-contact orders are not appropriate and allows the children to visit Kennon, the court also should review the no- contact order protecting Zotica to accommodate any changes. The court originally found that the State satisfied its burden of proving both

prior convictions exist by a preponderance of the evidence. However, after

of the

POAA, the court allowed Kennon to collaterally attack the 1991 conviction

because the plea agreement did not include two elements of the crime of child


Our Supreme Court rejected a similar challenge in State v. Ammons, 105

Wn.2d 175, 189, 713 P.2d 719, 718 P.2d 796 (1986). Specifically, one of the

defendants in a multidefendant appeal challenged the validity of his guilty plea

Ammons, 105

Wn.2d at 189. The court co

Ammons, 105 Wn.2d at 188.

Ammons And because Kennon challenged the validity of his guilty plea for the same

reason the defendant in Ammons did, Ammons controls. Thus, the court should

not have permitted Kennon to attack the validity of the 1991 plea, and the trial

court erred in disregarding the 1991 conviction. Because

convictions and his current conviction constitute serious offenses, under the plain

meaning of the POAA, Kennon is a persistent offender subject to mandatory life

imprisonment. The court erred when it chose not to order the sentence that the

POAA mandates.

While Kennon admits that the POAA dictates a mandatory sentence of life, punishment because it disproportionally impacts Bla 8 The Eighth

Amendment [to the United States Constitution] bars cruel and unusual

punishment while article I, section 14 [to the Washington Constitution] bars cruel

punishment. State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888 (2014).

Accordingly, article I, section 14 is more protective than the Eighth Amendment.

State v. Moretti, 193 Wn.2d 809, 820, 446 P.3d 609 (2019). We have

continually upheld sentences imposed under the POAA as constitutional and not

cruel under article I, sect Moretti, 193

Wn.2d at 820; see also Witherspoon, 180 Wn.2d at 889 (holding that the


With regard to his contention that the POAA constitutes cruel punishment,

decision in State v. Gregory, 192 Wn.2d 1,

23-24, 427 P.3d 621 (2018), in which the court held that the s was unconstitutional as administered. The court concluded that, because the

death penalty was imposed in an arbitrary and racially biased manner, the


article I, section tate constitution. Gregory, 192 Wn.2d at 24.

Although Gregory applied only to the administration of the death penalty,

8 Kennon also asserts that it is cruel and u gap in time between [his] current offenses

Kennon fails to acknowledge that he spent a portion of the time following his 1992 conviction in jail. Specifically, Kennon was sentenced to 102 months. Whether he spent that entire time in custody or not, the amount of time between convictions is not a basis to conclude that the POAA constitutes cruel and unusual punishment. s reliance on its analysis is not completely misplaced. Indeed, Justice

Yu has questioned the validity of the POAA based on the principles set forth in

Gregory. 9

To this end, there is substantial evidence that the POAA applies to men of

color at alarmingly disproportionate rates. 10 Unfortunately, this disproportionality

is the result of the systemic racial injustices throughout our criminal justice

system: men of color are disproportionally stopped, arrested, charged, and

convicted of crimes, which lead to a disproportionate number of black men with

three most serious offenses. 11 But our Supreme Court has concluded that the

9 See Moretti, 193 Wn.2d at satisfied with the status quo; permanent incarceration has neither reduced crime

nor increased confidence in our criminal justice system. The principles set forth in Gregory compel us to ask the same questions about a life sentence without the possibility of parole. Is it fairly applied? Is there a disproportionate impact on minority populations? Are there state constitutional limitations to such a 10 See STATE OF WASH. SENTENCING GUIDELINES COMM N, TWO-STRIKES AND THREE-STRIKES: PERSISTENT OFFENDER SENTENCING IN WASHINGTON STATE THROUGH JUNE 2008, at 10 (Feb. 2009) (Out of the 314 persistent offenders sentenced under the POAA up to 2008, 127 were black.), nder_asof20080630.pdf []; see also Florangela Davila, SEATTLE TIMES s blacks -

[]. that the POAA has a disproportionate impact on black people as simplistic and conclusory. To the contrary, it is widely recognized as fact that three strikes laws like the POAA have disproportionate impacts on black people. 11 See, e.g., Davila, supra Young black males are more likely to be sentenced to prison; they are more likely to be sentenced and incarcerated for drug offenses; and they are more likely to be arrested for violent and property ; see also ASHLEY NELLIS, SENTENCING POAA does not constitute cruel and unusual punishment. See Moretti, 193

Wn.2d at 820 (noting that Washington courts have continually upheld sentences

under the POAA, holding that life sentences under the POAA are not cruel).

Furthermore, unlike the death penalty, the POAA is not arbitrarily imposed

because it provides no discretion to the trial court. RCW 9.94A.570 persistent offender shall hout the probability of

parole. (emphasis added)).

Although Kennon presents evidence on appeal that supports a conclusion

that the POAA disproportionally affects men of color, particularly black men, he

provided information unlike the thorough study commissioned by the defendant in

Gregory. In Gregory, studies

provided evidence on the effect of race and the imposition of the death penalty

that was updated, exhaustively vetted, and subjected to review by a Supreme

Court commissioner. 192 Wn.2d at 12-13. Kennon has not presented a similar

study. We are unable to reach a conclusion contrary to the Supreme C Moretti without thorough data that is sufficiently vetted.

It is in the purview of the legislature to amend or abolish the POAA. See,

PROJECT, THE COLOR OF JUSTICE: RACIAL AND ETHNIC DISPARITY IN STATE PRISONS 10 (Jun. 14, 2016) Still other research finds that prosecutorial charging decisions play out unequally when viewed by race, placing blacks at a disadvantage to whites. Prosecutors are more likely to charge black defendants

disparity-in-state-prisons/ []. e.g., Moretti Regardless of any personal opinions as to the

w long deferred to the legislative judgment that

repeat offenders may face an enhanced penalty because of their recidivism. (quoting State v. Fain, 94 Wn.2d 387, 390-91, 402, 617 P.2d 720 (1980))); see

also RCW POAA).

For the foregoing reasons and based on the record before us, we cannot

revisit this issue.

Statement of Additional Grounds for Review (SAG)

In his SAG

was no probable cause for the felony violation of a no-contact order con

and that his trial counsel erred when it stipulated that he

convictions necessary to elevate or even file charges for felony violation of no-


attempts to attack his previous convictions for violation of no-contact orders.

Specifically, he asserts that there is exculpatory information including that he had

a key to the apartment and that he was invited. However, Kennon cannot attack

the validity of his prior convictions. See Ammons, 105 Wn.2d at 188 (concluding

that a defendant cannot attack a prior conviction at a subsequent sentencing).

Therefore, this assertion fails.

Kennon also contends that he was subject to double jeopardy when the

12 (Capitalization omitted.) jeopardy provisions of the state and federal constitutions protect against (1) a

second prosecution for the same offense after an acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments

State v. Robinson, 8 Wn. App. 2d 629, 638, 439 P.3d 710

(2019). le counts of the same offense,

State v.

Madden, 16 Wn. App. 2d 327, 332, 480 P.3d 1154 (2021) (internal quotation

marks omitted) (quoting Robinson, 8 Wn. App. 2d at 638). Here, it is clear that

Kennon was not subject to double jeopardy because each conviction rested on

separate and distinct contact. Kennon was charged and convicted of one count

each of violation of a court order for his contact with Zotica, K.K., M.K., and V.K.

contention is without merit.

Finally, Kennon cites information on the systemic prosecution, conviction,

and oversentencing of black males. As discussed above, we must acknowledge

the POAA. Nonetheless, this information does not provide a basis to overturn

do so. We remand for resentencing.

WE CONCUR: State v. Kennon, NO. 80813-3-I

DWYER, J. (concurring) I agree with the resolution of the issues

addressed in the majority opinion. I write separately because I would deny the

claim of ineffective assistance of counsel on a different basis.

In order to establish ineffective assistance of counsel, a defendant must

establish both that the defense s performance was deficient and that the

deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d

61, 77-78, 917 P.2d 563 (1996). ssistance is

s failure to request a particular jury instruction, the

defendant must show he was entitled to the instruction, s performance

was deficient in failing to request it, and the failure to request the instruction

State v. Thompson, 169 Wn. App. 436, 495, 290 P.3d 996

(2012) (citing State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007)).

In Strickland itself the seminal opinion in ineffective assistance of

counsel jurisprudence the Supreme Court explicitly defined the type of

prejudice that must be shown to satisfy its requirements.

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, the like. A defendant has no entitlement to the luck of a lawless

decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.

Strickland, 466 U.S. at 694-95 (emphasis added).

Here, an inferior degree

instruction regarding assault in the fourth degree. The instruction given included

the following sentence, mirroring Washington Pattern Jury Instruction 4.11: 1

If, after full and careful deliberation on these charges, you are not satisfied beyond a reasonable doubt that the defendant is guilty, then you will consider whether the defendant is guilty of the lesser crime.

Jury Instruction 27 (emphasis added). Thus, as properly instructed, the jury had

no occasion to consider a lesser included offense instruction if it found the

defendant guilty of the greater offense.

Accordingly, an inferior degree

instruction regarding assault in the third degree, instruction 27 would have

controlled deliberative process. Because the jury did unanimously

determine that Kennon was guilty of assault in the second degree, we know that

it would never have considered whether he was guilty of assault in the third

degree, even if an instruction regarding that crime had been requested and

granted. We say this because ineffective assistance of counsel jurisprudence

conclusively presumes that the jury follows its instructions on the law. Strickland,

466 U.S. at 694.

1 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.11 (4th ed. 2016). Our Supreme Court previously explained as much in State v. Grier, 171

Wn.2d 17, 246 P.3d 1260 (2011), in which it determined that a defendant could

not establish that a failure to request a lesser included offense instruction on

manslaughter caused her prejudice.

Had the Court of Appeals instead assumed the jury would follow the law by convicting Grier of second degree murder only where the State had proved each of the required elements beyond a reasonable doubt, it would not have found that the absence of a manslaughter instruction led to an erroneous conviction. Indeed, the proposed manslaughter instructions instructed the jury not to consider manslaughter if convinced beyond a reasonable doubt that Grier was guilty of second degree murder. . . . l and careful deliberation on this charge, you are not satisfied beyond a reasonable doubt that the defendant is guilty, then you will consider whether the defendant is guilty of the lesser crimes of Manslaughter in the First Degree or Manslaughter in the Second Because the jury returned a guilty verdict, we must presume that the jury found Grier guilty beyond a reasonable doubt of second degree murder.

Grier, 171 Wn.2d at 41. The court reemphasized this point later in its opinion.

Nor can Grier establish prejudice under the second prong of Strickland. Assuming, as this court must, that the jury would not have convicted Grier of second degree murder unless the State had met its burden of proof, the availability of a compromise verdict would not have change s trial. See Strickland . . . that the Autrey [v. State], 700 N.E.2d [1140], 1142 [(Ind. 1998)] (availability of manslaughter would not have affected outcome where jury found defendant guilty of murder beyond reasonable doubt).

Grier, 171 Wn.2d at 43-44.

The Grier decision was later followed and correctly applied by the court in

In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012).

Kennon, however, contends that Grier was wrongly decided. This is so,

he asserts, because two Ninth Circuit judges joined in a majority opinion that criticized Grier on the basis that even one following the law to the

letter m Crace v. Herzog, 798 F.3d 840, 848 n.3 (9th Cir. 2015). 2

In so observing, the

federal circuit court panel does not demonstrate a command of Washington law.

As Grier notes, a jury that unanimously finds guilt on the greater offense has no

further opportunity to reach a different verdict. Here, the jury, by unanimous

agreement, found Kennon guilty of assault in the second degree the greater

offense beyond a reasonable doubt. Consistent with its instructions, it would

never have considered the option of assault in the third degree. Kennon cannot

show that he was prejudiced by the absence of an instruction on an option the

jury would never have considered.

I would resolve the ineffective assistance of counsel claim on this basis.

In all other respects, I join in the majority opinion.

2 There is nothing controlling about a Ninth Circuit opinion even one dealing with federal constitutional law. Instead, we have significant latitude when analyzing the decisions of the va [T]he geographical location of the court issuing the opinion is of no mom We have never held that an opinion from the Ninth Circuit is more or less persuasive than, for example, the Second, Sixth, Seve In re Pers. Restraint of Markel, 154 Wn.2d 262, 271 n.4, 111 P.3d 249 (2005). Thus, we are properly guided by the principles of law announced in the most well-reasoned of the decisions we have reviewed. We are not, however, bound to follow a holding of a lower federal court merely because it was announced as such. S.S. v. Alexander, 143 Wn. App. 75, 92-93, 177 P.3d 724 (2008).

Back to top