By Sharyn L. Decker
Lewis County Sirens news reporter
A nearly 93 year sentence handed down to a 16-year-old Centralia boy convicted of a drive-by shooting in which nobody was injured has been tossed out by the state court of appeals.
Guadalupe Solis-Diaz Jr. challenged his virtual life sentence in light of a constitutional ban on cruel and unusual punishment, specifically a 2010 U.S. Supreme Court decision that held a sentence of life without parole is forbidden for a juvenile who did not commit homicide.
The appeals court decision however focused on the deficient performance of the attorney who represented the former Centralia High School student.
The opinion issued yesterday remanded the case back to Lewis County Superior Court for re-sentencing.
Solis-Diaz was arrested in August 2007 after gunfire was sprayed along the east side of South Tower Avenue in Centralia, missing six bar patrons. Witnesses testified it was gang-related.
Centralia police that summer dealt with at least a half dozen gang-related shootings of cars, homes and people, including a case in which bullets pierced the walls of the apartment where the teenager lived with his mother.
Solis-Diaz was a passenger in a car driven by 21-year-old Juan “Pollo” Velasquez and it was about midnight on Aug. 10 when he fired seven times into a group of people outside the Tower Tavern. He turned 17 days after the incident.
The teenager maintained his innocence, but was convicted four months later of six counts of first-degree assault, one count of drive-by shooting and one count of unlawful possession of a firearm.
He had declined a plea offer of 15 years in prison.
Michael Golden was the elected prosecutor at the time and the case was handled by then-deputy prosecutor Chris Baum. Judge Nelson Hunt presided. Solis-Diaz was represented by court-appointed attorney Michael Underwood.
The six assault counts were ordered to be served consecutively and each carried a mandatory extra five years because they were committed with a firearm. The sentence given was at the high end of the standard range, 1,111 months in prison.
The three-judge panel unanimously ruled in its opinion that the teen’s defense attorney made a number of choices at sentencing that no reasonable attorney would have.
Among them:
• The lawyer failed to alert the court it had discretion to impose a lesser sentence, given that the presumptive sentence was clearly excessive.
• He failed to call family, other members of the community including the teen’s teachers to testify on his behalf, a move which would have apprised the court that the teen’s emotional and mental maturity should have been considered.
• He failed to call to the attention of the court a landmark U.S. Supreme Court decision in which indicated courts should consider youth differently than adults.
• He failed to produce or request a pre-sentencing report which could have shed light upon issues related to the teen’s mental and emotional sophistication.
• He mistakenly indicated the teen was “declined” as a juvenile and tried as an adult, when in fact no decline hearing was held to determine if the teen’s maturity and mental development warranted prosecution as an adult. The case was actually “auto-declined” by operation of a statute.
Yesterday’s decision followed not a direct appeal, but a personal restraint petition.
Sarah Beigh argued in filings for the Lewis County Prosecutor’s Office. Solis-Diaz’s attorney for the petition is listed as Kimberly D. Ambrose of the University of Washington School of Law. A number of other attorneys filed briefs on the teen’s behalf.
Ambrose contended Soliz-Diaz received ineffective assistance at sentencing because his counsel’s performance fell below objective standards of reasonableness and prevailing professional norms. The appeals court agreed.
It’s not clear from the opinion how much time the teen may get after a new sentencing hearing or when that may happen, but is clear the defense attorney must do more than what Underwood did.
Underwood’s entire argument at sentencing in December 2007 consisted of the following:
“Certainly it is a tragic event. You heard all the evidence. My client still maintains his innocence, your Honor, but the jury did find him guilty. We would ask the court, your Honor, to give him the low end of the range. He is 17 years old, declined as a juvenile and tried here. He’s still looking at, your Honor, almost a life sentence, quite frankly, unless something happens in the intervening years that he is serving his time. We think the low end of the range [927 months] would be more appropriate.”
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Read the opinion, here [1]