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March 24, 2026 Get Citation Alerts Download PDF Add Note

State Of Washington, V. Brenton Dwayne Thompson

Court of Appeals of Washington

• Citations: None known
• Docket Number: 59142-1

• Precedential Status: Non-Precedential

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.1K)

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Lead Opinion

Filed
Washington State
Court of Appeals
Division Two

March 24, 2026

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 59142-1-II

Respondent,

v. UNPUBLISHED OPINION

BRENTON DWAYNE THOMPSON, aka
DWAYNE THOMPSON BRENTON, aka
“ROCK”,

Appellant.

CHE, J. — Brenton Dwayne Thompson appeals his judgment and sentence following

resentencing pursuant to State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). Thompson argues

that the superior court (1) lacked jurisdiction to resentence him, (2) violated his double jeopardy

rights by entering of a new judgment and sentence, (3) erred in including two prior convictions

entered and sentenced after the conviction invalidated following Blake, and (4) erred in imposing

a standard sentencing range sentence. Thompson additionally raised multiple claims related to

alleged errors at trial. We hold that (1) Thompson fails to show that the superior court lacked

jurisdiction at resentencing, (2) the new judgment and sentence did not violate Thompson’s

double jeopardy rights, (3) the superior court did not err in including Thompson’s prior

convictions in his offender score calculation, (4) the superior court did not abuse its discretion in

sentencing Thompson to a standard range sentence, and (5) Thompson’s other claims rest on

facts outside the record on appeal. Accordingly, we affirm.
No. 59142-1-II

FACTS

In 2000, a jury found Thompson guilty of first degree murder and first degree assault and

found by special verdict that Thompson or an accomplice was armed with a firearm during the

commission of both offenses.1 The superior court sentenced Thompson based, in part, on a

criminal history that included a 1994 conviction for unlawful possession of a controlled

substance (UPCS) and two 1995 convictions for unlawful solicitation to deliver a controlled

substance and unlawful solicitation to possession of a controlled substance with intent to deliver.

Thompson appealed his convictions and assigned error to an accomplice liability

instruction, a lack of sufficient evidence for both convictions, and the absence of an unanimity

instruction. State v. Thompson, noted at 117 Wn. App. 1085, 2003 WL 21744337, at *1

(unpublished). Thompson also claimed that the superior court erred in excluding exculpatory

hearsay evidence, that the jury’s verdicts were inconsistent, and that the superior court was

biased against him. Id. As to the murder conviction, this court affirmed and concluded any error

in the accomplice liability instruction was harmless. Id. at *9. But as to the assault conviction,

we concluded the error with the accomplice liability instruction was not harmless, reversed the

conviction, and remanded for a new trial. Id. at *3, *6.

In 2004, a jury again found Thompson guilty of first degree assault and found by special

verdict that Thompson had been armed with a firearm during the commission of the crime. State

v. Thompson, noted at 132 Wn. App. 1022, 2006 WL 853368, at *1-2 (unpublished). At

1
The facts underlying these offenses, which Thompson committed in 1998, are presented in the
opinions resulting from Thompson’s first and second appeals. State v. Thompson, noted at 117
Wn. App. 1085, 2003 WL 21744337, at *1-2 (unpublished); State v. Thompson, noted at 132
Wn. App. 1022, 2006 WL 853368, at *1-2 (unpublished). For the purposes of this appeal, we
need not repeat them here.

2
No. 59142-1-II

sentencing, the superior court again found Thompson to have a criminal history that included a

prior UPCS conviction.

Thompson appealed, assigning error to the admission of certain testimony and the

sufficiency of the evidence. Id. at *2-5. In a statement of additional grounds (SAG), Thompson

also claimed that the superior court erred in admitting other evidence, a limiting jury instruction

denied him a fair trial, his murder and assault convictions violated the federal double jeopardy

clause, and the superior court erred in not applying collateral estoppel to a pretrial suppression

motion. Id. at *5-8. This court affirmed. Id. at *9.

Thompson filed a personal restraint petition (PRP) with this court. Thompson raised an

ineffective assistance of counsel claim, argued that RCW 9.94A.120 was unconstitutional,

repeated a claim from his direct appeal, and challenged the imposition of a firearm sentencing

enhancement, the inclusion of two prior convictions in his criminal history, and his offender

score which included his other current offense. This court granted the petition in part, remanding

for resentencing to correct Thompson’s offender score, but otherwise denied all other claims.

At resentencing in 2006, the superior court found again that Thompson’s criminal history

included a prior UPCS conviction and the two solicitations to deliver or to possess with intent to

deliver controlled substances. The superior court resentenced Thompson, sentencing him to

604 months of total confinement based on high-end standard range sentences for both the first

degree murder and first degree assault convictions and two 60-month sentence enhancements for

each offense, running consecutively to each other. See RCW 9.94A.310(1)-(2) (1998).

Thompson appealed. State v. Thompson, 143 Wn. App. 861, 865, 181 P.3d 858 (2008).

He claimed that the superior court erred in calculating his offender score and that the superior

court violated the law of the case doctrine. Id. at 865, 868. In a SAG, Thompson repeated an

3
No. 59142-1-II

argument from his PRP related to a sentencing enhancement. Id. at 869. Thompson also raised a

claim related to a restitution order, community placement, and a firearm enhancement. Id. at

870-71. Ultimately, this court affirmed. Id. at 871.

In 2021, following our Supreme Court’s decision in Blake and upon Thompson’s motion,

the superior court dismissed with prejudice Thompson’s prior UPCS conviction. See CP at

24-27. Thereafter, Thompson filed a series of motions with the superior court.

Included in the motions was a motion for a new trial under CrR 7.5(a) and a motion to

exclude enhancement consideration.2 In these motions, Thompson raised a jury unanimity issue

and argued that the superior court lacked authority to impose firearm sentencing enhancements

because of an instruction error.

In another motion, Thompson asked the superior court to determine that the judgment and

sentence for his two 1995 convictions for solicitation to deliver or to possess with intent to

deliver were invalid because that superior court had imposed community placement. Because of

this alleged invalidity, Thompson argued that the superior court should not consider the

convictions as part of his criminal history at resentencing.

In October, the superior court set a date for “Blake - Resentencing,” and both the parties

as well as the judge signed the scheduling order. Clerk’s Papers (CP) at 55 (most capitalization

omitted). Thompson then filed a motion and a memorandum, asking the superior court to

impose an exceptional downward sentence because his sentence no longer advanced the interest

of justice and he was 24 years old at the time of the crimes so his youthfulness warranted his

2
Thompson also filed a sentencing memorandum where Thompson asked the superior court “to
ensure that all rights due to him are afforded in this case.” CP at 52.

4
No. 59142-1-II

request. Thompson’s counsel also moved to withdraw based on Thompson’s request to proceed

pro se.

In December 2023, the superior court held a resentencing hearing. After engaging in

colloquy with Thompson and cautioning Thompson about the risks of proceeding without

counsel, the superior court granted Thompson’s request to proceed pro se and appointed standby

counsel.

The superior court then addressed Thompson’s petition for writ of habeas corpus filed

just before the hearing. In the petition, Thompson argued that he should be released immediately

because the inclusion of his UPCS conviction in his offender score calculation made his

judgment and sentence constitutionally invalid. The superior court found that it did not have

jurisdiction to hear the petition. The superior court stated:

I’m not finding that the judgment and sentence itself is invalid. The offender score,
based upon the Blake decision, has been reduced. And so because of that, there is
a necessity for a resentencing.

Rep. of Proc. (RP) at 19.

Turning to Thompson’s motion for a new trial and motion to exclude enhancement

consideration, the State argued that such motions were time barred and should be transferred to

the Court of Appeals as personal restraint petitions pursuant to CrR 7.8(c)(2).3 Thompson stated

3
Under CrR 7.8(c)(2):

The court shall transfer a motion filed by a defendant to the Court of Appeals for
consideration as a personal restraint petition unless the court determines that the
motion is not barred by RCW 10.73.090 and either (i) the defendant has made a
substantial showing that they are entitled to relief or (ii) resolution of the motion
will require a factual hearing.

5
No. 59142-1-II

that, if the superior court were to rule that his judgment and sentence was not “invalid,”

Thompson would withdraw those motions. RP at 20-21. The superior court stated,

I’ve made the ruling that I’m not vacating the judgment and sentence. There
is a need for a resentencing based upon Blake and a change in the offender score.
So the timeliness issue still applies under [CrR] 7.5.4

RP at 22. Thompson responded that, given that the superior court decided that Thompson’s

judgment and sentence was not invalid, he voluntarily withdrew both motions.

The superior court proceeded with “[a] full [de novo] resentencing hearing.” RP at 22.

The State recommended a high-end standard sentence for both convictions.5 Thompson

presented an allocution and requested that the court impose an exceptional downward sentence

and asked the court to consider his youthfulness at the time of the underlying crimes as well as

his efforts to better himself in prison.

The superior court began its oral ruling by noting that it read all of Thompson’s materials,

a sentencing memorandum from the State, statements from one of the victim’s family, and the

prior appellate decisions. The court found Thompson’s offender score to be 2 points for the first

degree murder count and 0 points for the first degree assault count.

RCW 10.73.090(1) provides that “[n]o petition or motion for collateral attack on a judgment and
sentence in a criminal case may be filed more than one year after the judgment becomes final if
the judgment and sentence is valid on its face and was rendered by a court of competent
jurisdiction.”
4
CrR 7.5(b) states, among other things, that a motion for a new trial must be served and filed
within 10 days after the verdict or decision, unless the deadline is extended.
5
A standard sentencing range for first degree murder with an offender score of two was between
261 and 347 months of confinement. RCW 9.94A.510(1) (1998). A standard sentencing range
for first degree assault with an offender score of zero was between 93 and 123 months of
confinement. RCW 9.94A.510(1) (1998). Both convictions carried a firearm sentencing
enhancement of 60 months each. RCW 9.94A.510(2) (1998).

6
No. 59142-1-II

The court noted that Thompson was a few months over 24 years old at the time of the

crimes. The court acknowledged “that there has been development in the understanding of brain

science and . . . that the brain is not fully developed until the age of 25.” RP at 43. The court

stated that, while no case required the court to consider Thompson’s age given that he was older

than 20 years old, “I have the discretion to do that.” RP at 44. The court then discussed facts

underlying the crimes including “plenty of evidence that [the murder] was a premeditated

intentional murder.” RP at 45.

In the middle of the superior court’s oral ruling, two unidentified observers in the gallery

and a participant via video conferencing interrupted the superior court and asked whether they

may speak in support of Thompson. The superior court responded, “it was not presented to me

that there were—there was anybody else that wished to address the Court. I’ve heard from Mr.

Thompson. He gets the last word.” RP at 46. The court continued delivering its oral ruling.

The superior court acknowledged that Thompson had accomplished a lot while in prison

and that he was “not the same person that [he was.]” RP at 47. The court noted several of the

Sentencing Reform Act of 1981’s expressed purposes of sentencing6 before stating:

I’ve thought about this quite a bit in looking at [the purposes], in looking at
how old you were when this happened and looking at the actions that you’ve taken
since this time period and, most importantly, looking at what happened on that
night. I don’t find any basis to do anything other than the high end of the sentencing
range on the murder in the first degree. . . . You’re the one that committed that
offense. You’re the one that chased [the victim] down. She was trapped against a
fence. You shot her six times, fired eight rounds.

If there’s any consideration the Court would give, it would be in regards to
the assault in the first degree. . . . the record showed that it was [an accomplice]
who had fired the first shot, apparently at [a second victim].

RP at 48-49.
6
See RCW 9.94A.010.

7
No. 59142-1-II

The superior court sentenced Thompson to a high-end sentence of 347 months of

confinement for the murder conviction, a low-end sentence of 93 months for the assault

conviction, and two 60-month sentence enhancements, running consecutively to each other, for a

total confinement of 560 months. Both parties as well as the superior court signed the new

judgment and sentence.

Thomspon appeals.
ANALYSIS

I. JURISDICTION

Thompson appears to argue that the superior court lacked jurisdiction to enter a new

judgment and sentence because his judgment and sentence was “‘constitutionally invalid on its

face.’” Am. Br. of Appellant at 4, (quoting State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719

(1986)). Thompson also contends the superior court erred by not considering his writ of habeas

corpus. However, Thompson does not appear to present argument related to the court’s decision

to decline to consider his writ of habeas corpus and, instead, argues that the superior court lacked

jurisdiction “to enter a new and intervening Judgment And Sentence.” Am. Br. of Appellant

at 5. Thus, we interpret Thompson’s claim as assigning error to only his most recent judgment

and sentence. We disagree with Thompson’s claim that the superior court lacked jurisdiction.

‘“Jurisdiction means the power to hear and determine’” a matter. State v. Posey, 174

Wn.2d 131, 139, 272 P.3d 840 (2012) (quoting State v. Werner, 129 Wn.2d 485, 493, 918 P.2d

916 (1996)). In all felony cases, Washington superior courts have original jurisdiction. Id. at

135; see also WASH. CONST. art. IV, § 6. Additionally, Washington superior courts have

personal jurisdiction over anyone who commits a crime, in whole or in part, within the state.

RCW 9A.04.030(1); State v. Anderson, 83 Wn. App. 515, 518, 922 P.2d 163 (1996).

8
No. 59142-1-II

Here, the superior court had original jurisdiction over Thompson because he was

convicted of two felonies, first degree murder and first degree assault. RCW 9a.32.030; RCW

9a.36.011(2). And the superior court had personal jurisdiction over Thompson because he

committed these underlying offenses while in Washington State.

Thompson appears to contend that the superior court lacked jurisdiction because his 2000

and 2006 judgment and sentences were invalid. See Am. Br. of Appellant at 5. However,

jurisdiction is the power to hear and determine a case and “is comprised of only two components:

jurisdiction over the person and subject matter jurisdiction,” both present in Thompson’s case.

Freedom Found. v. Teamsters Loc. 117 Segregated Fund, 197 Wn.2d 116, 141, 480 P.3d 1119

(2021). While Blake changed Thompson’s offender score by one point, it did not terminate or

sever the superior court’s jurisdiction to resentence Thompson using the correct offender score.

Thompson fails to show that the superior court lacked jurisdiction in his case.

II. DOUBLE JEOPARDY

Thompson argues that the superior court violated his double jeopardy rights by

resentencing him but not vacating the 2006 judgment and sentence. We disagree the court

violated his right against double jeopardy.

We review de novo claims that a person’s double jeopardy rights have been violated.

State v. Lee, No. 103451-2, slip op. at 9 (Wash. Jan. 15, 2026), https://www.courts.wa.gov/

opinions/pdf/1034512.pdf. “‘The prohibition on double jeopardy generally means that a person

cannot be prosecuted for the same offense after being acquitted, be prosecuted for the same

offense after being convicted, or receive multiple punishments for the same offense.’” Id, at 9

(quoting State v. Villanueva-Gonzalez, 180 Wn.2d 975, 980, 329 P.3d 78 (2014)).

9
No. 59142-1-II

To support his claim that a double jeopardy violation has occurred, Thompson relies on

State v. Carter, 3 Wn.3d 198, 548 P.3d 935 (2024). In Carter, the superior court resentenced

Carter—an individual who was serving a mandatory life without parole sentence for a crime he

committed when he was 18 years old—after Carter filed a CrR 7.8 motion following the

Washington Supreme Court’s decision in In re Personal Restraint of Monschke, 197 Wn.2d 305,

482 P.3d 276 (2021). Id. at 203-204. Monschke held that mandatory life without parole

sentences were unconstitutional for his age and that superior courts must consider an 18-year-old

defendant’s youthfulness at sentencing. Id. at 203; see Monschke, 197 Wn.2d at 306-307. The

superior court resentenced Carter but did not explicitly vacate his original judgment and

sentence. Id. at 205, 208.

On appeal, the State argued that the superior court violated procedures addressing double

jeopardy principles by resentencing Carter and not vacating his original judgment and sentence.

Id. at 228. Our Supreme Court held that the superior court did not err and that no double

jeopardy violation occurred. Id. at 229. The Supreme Court reasoned that the superior court’s

oral ruling “clearly resentencing Carter” and other orders “impliedly vacated the prior

judgment.” Id. The orders included a joint order setting a resentencing date and the new

judgment and sentence, both signed by the parties and the superior court judge. Id.

Thompson argues that his case is distinguishable from Carter because “nothing in this

record evidences that ‘the sentence was impliedly vacated.’” Am. Br. of Appellant at 5 (quoting

Carter, 3 Wn.3d at 229). We disagree. Like in Carter, the superior court clearly resentenced

Thompson and thus, impliedly vacated the prior judgment and sentence. It provided Thompson

with a full de novo resentencing hearing which was scheduled via an order signed by both parties

10
No. 59142-1-II

and the judge. After the superior court’s oral ruling, both parties signed the new judgment and

sentence which reflected resentencing.

When considering Thompson’s motion for a new trial and motion to exclude

enhancement consideration before addressing resentencing, the superior court stated it was not

“vacating the judgment and sentence.” RP at 22. However, from a review of the whole record,

the superior court’s oral ruling, the setting order, and the judgment and sentence, evidence that

the superior court impliedly vacated the prior judgment once it conducted the full resentencing

hearing. Thompson fails to show that a double jeopardy violation occurred.

III. OFFENDER SCORE

Thompson argues that the superior court erred in calculating his offender score by finding

that Thompson’s criminal history included two 1995 convictions for solicitation to deliver

controlled substances or to possess with intent to deliver controlled substances, which Thompson

claims are invalid. We disagree.

“We review a sentencing court’s calculation of an offender score de novo.” State v. Tili,

148 Wn.2d 350, 358, 60 P.3d 1192 (2003). The State bears the burden of proving the existence

of prior convictions by a preponderance of the evidence; however, the State is not required to

prove the constitutionality of the prior convictions. State v. Gimarelli, 105 Wn. App. 370, 378,

20 P.3d 430 (2001); Ammons, 105 Wn.2d at 187. If the conviction is constitutionally valid on its

face and no other court has determined that the prior conviction is unconstitutional, the State may

use it as part of the defendant’s criminal history. Gimarelli, 105 Wn. App. at 375-76.

A conviction is facially invalid if the conviction “show[s] constitutional infirmities on its

face, without further elaboration.” Id. at 375. The requirement of facial invalidity protects

sentencing proceedings from becoming appellate reviews of all prior convictions. Id.

11
No. 59142-1-II

Thompson asserts that his two 1995 convictions were facially invalid because they

occurred after the simple possession of controlled substance conviction and included the simple

possession conviction in the two 1995 offender score calculations. However, crimes occurring

after a UPCS conviction and using a prior UPCS conviction to calculate an unrelated offender

score does not necessarily invalidate a prior judgment and sentence. See State v. Anderson, __

Wn. App. __, 583 P.3d 38, 46 (“In cases where a judgment and sentence is final, a defendant

must demonstrate materiality before they are entitled to resentencing, even if their offender score

contains a point for a Blake conviction.”); see also State v. Kelly, 4 Wn.3d 170, 183, 561 P.3d

246 (2024) (“[E]ven when an offender score is miscalculated, if it did not alter the proper

standard sentencing range, and the [superior] court imposed a sentence within its statutory

authority, then the judgment and sentence is not facially invalid.”). Accordingly, Thomspon’s

argument that his 1995 convictions were facially invalid and should not have been included in

his offender score calculation fails.

IV. STANDARD RANGE SENTENCE

Thompson assigns error to the superior court’s ultimate imposition of a standard range

sentence, arguing that the superior court did not focus enough on evidence of Thompson’s

mitigation and rehabilitation efforts and that the superior court refused to allow testimony after

Thomspon’s allocution. We disagree that the court erred.

When the superior court conducts a resentencing hearing, the sentencing judge has

discretion and so we review their decision for an abuse of discretion. State v. Ellis, 5 Wn.3d 549,

557, 579 P.3d 37 (2025). An abuse of discretion occurs if the superior court’s decision is

exercised on untenable grounds or for untenable reasons. Id. at 558.

12
No. 59142-1-II

Generally, a defendant cannot appeal a standard range sentence. RCW 9.94A.585(1);

State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). However, a defendant may

challenge the underlying legal determinations through which the sentencing court reached its

decisions. Id. Additionally, “every defendant is entitled to have an exceptional sentence actually

considered.” Id. When the sentencing court has refused to exercise any discretion or relies on an

impermissible basis for refusing to impose an exceptional downward sentence, a standard range

sentence is reviewable. Id.

Neither such circumstance is evident from the record before us. There is no evidence that

the superior court categorically refused to consider a mitigated sentence for Thompson or relied

on an impermissible basis for refusing to impose an exceptional sentence below the standard

range. Instead, the court acknowledged its discretion to consider Thompson’s relative youth at

the time of the crimes as well as his rehabilitation efforts during confinement. Despite

Thompson’s age at the time of the offenses and his rehabilitation efforts, the superior court found

the circumstances of the crimes, especially the facts underlying the murder conviction,

warranting imposition of the standard range sentence for both crimes. Moreover, the superior

court reduced Thompson’s sentence on the first degree assault from the high end to the low end.

See CP at 97, 101. Because the superior court exercised its discretion to consider Thompson’s

argument for an exceptional downward sentence, Thompson fails to show that the superior court

abused its discretion in imposing a standard range sentence.

Additionally, RCW 9.94A.500 requires the sentencing court to allow arguments from

“the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a

representation of the victim or survivor, and an investigative law enforcement officer.” But

Thomspon does not claim that the individuals fell within one of these groups or another that the

13
No. 59142-1-II

superior court was required to allow to speak before rendering judgment. Although the superior

court excluded the unidentified individuals from speaking in Thompson’s support as the court

was about to deliver its sentence, Thompson fails to show how that was an abuse of discretion

under the circumstances.

Because the resentencing court did not fail to exercise its discretion in considering

Thompson’s sentence nor unreasonably prohibit Thomspon’s sought after evidence, no abuse of

discretion occurred.7

V. OTHER CLAIMS

Outside of resentencing, Thompson raises multiple claims related to events that occurred

at trial. Thompson argues that he is entitled to a new trial because of a jury unanimity issue.

Additionally, Thompson appears to argue that a jury instruction error occurred at trial.

Thompson also argues that the State violated his due process rights by allowing the superior

court to rest its “reasoning . . . based entirely on the State’s ‘interpretation’ of the crime scene

evidence.” Am. Br. of Appellant at 10.

However, all three of these arguments rely on facts outside of the scope of the record on

appeal. Because they do, these arguments are instead better raised in a personal restraint

petition. McFarland, 127 Wn.2d at 338 n.5; RAP 16.3. We decline to consider these arguments.

7
Thompson also argues that the resentencing proceeding was “fundamentally unfair” and
deprived him of rights. Am. Br. of Appellant at 5-6. Thompson appears to argue that the
superior court deprived him of his right to argue his motion for a new trial and that the superior
court erred by failing to rule on his motion for a new trial. However, Thompson voluntarily
withdrew his motion for a new trial at resentencing. We consider this argument no further.

14
No. 59142-1-II

CONCLUSION

We affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

Che, J.
We concur:

Veljacic, A.C.J.

Price, J.

15