Personal Restraint Petition of Damian T. Johnson
33221-7
| Wash. Ct. App. | Apr 4, 2017Background
- Damian T. Johnson was convicted of first- and second-degree assault; on resentencing the trial court imposed a 60‑month mandatory minimum for first‑degree assault under RCW 9.94A.540(1)(b).
- The jury made no special finding that Johnson used force likely to cause death or intended to kill—the statutory predicate for the mandatory minimum.
- The State conceded the mandatory minimum was imposed without a jury finding; the trial court nevertheless included it in the amended judgment, which limited Johnson’s eligibility for earned early release credits.
- Johnson filed CrR 7.8 motions and two personal restraint petitions challenging sentencing, jury instructions, prosecutorial misconduct, ineffective assistance, and newly discovered evidence; the petitions were consolidated.
- The court concluded the mandatory minimum was improperly imposed (violating the jury-trial right) and prejudiced Johnson by removing the opportunity for early release credits; it vacated the mandatory minimum and remanded for resentencing.
- All other claims (instructional error, prosecutorial misconduct, ineffective assistance, newly discovered evidence) were rejected as either previously litigated, unsupported, or speculative; the request for an evidentiary hearing was denied.
Issues
| Issue | Johnson's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court could impose a 60‑month mandatory minimum absent a jury finding that the defendant used force likely to cause death or intended to kill | Mandatory minimum cannot be imposed without jury finding; its imposition here violated the Sixth Amendment | Although the mandatory minimum was imposed improperly, no prejudice because Johnson’s overall sentence exceeded 60 months | Court: Mandatory minimum improper; vacated and remanded for resentencing without the mandatory minimum (prejudice shown because mandatory minimum bars earned release credits) |
| Whether loss of eligibility for earned early release is a collateral consequence (and thus not prejudicial) | Loss of earned release is a direct, automatic consequence of imposing the mandatory minimum and therefore not collateral | Loss of earned release is a collateral consequence / not protected by the Sixth Amendment; any error was harmless because standard range exceeds the minimum | Court: Lost opportunity for earned release is a direct consequence under the Sentencing Reform Act and constitutes prejudice here |
| Whether jury instructions (transferred intent; definitions of "deadly weapon" vs. "armed with a firearm") were erroneous and confused the jury | Instructions conflicted and misled the jury on elements of assault and firearm findings | Instructions correctly applied different definitions to different issues (second‑degree elements vs special verdict on firearm) | Court: No instructional error; instructions, read as a whole, were correct and not confusing |
| Whether Johnson is entitled to relief for prosecutorial misconduct, ineffective assistance, or newly discovered evidence (and an evidentiary hearing) | Prosecutor used leading questions and improper argument; counsel failed to call/learn of alibi witness; new affidavit of potential alibi | Alleged errors are largely conclusory or tactical; the purported new evidence was not shown to have been unknown at trial | Court: Claims are speculative or conclusory; no entitlement to relief; evidentiary hearing denied |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (any fact that increases mandatory minimum sentence must be found by a jury)
- State v. Dyson, 189 Wn. App. 215 (Wash. Ct. App.) (mandatory‑minimum error prejudices defendant by denying earned release credit)
- Graham v. Florida, 560 U.S. 48 (U.S. 2010) (comparing severity of sentences and role of parole eligibility in punishment analysis)
- State v. Conley, 121 Wn. App. 280 (Wash. Ct. App.) (direct consequences have a definite, immediate, and automatic effect on sentence)
- In re Pers. Restraint of Lain, 179 Wn.2d 1 (Wash. 2013) (rights to earned release under state statutes are Fourteenth Amendment protections but distinct from Sixth Amendment jury‑trial protections)