Prosecutors have asked the judge who sentenced former NBA SuperSonics star Shawn Kemp to 30 days of home monitoring and 240 hours of community service to reconsider part of his punishment, pointing out that home confinement is not available to people convicted of a violent crime.
Attorneys for Kemp disagree. In a legal response filed Tuesday, Tim Leary said Pierce County Superior Court Judge Michael Schwartz had given Kemp zero time in custody, and the home monitoring time and community service were just obligations of the 12 months of community custody Schwartz had ordered.
Schwartz is expected to take up the issue at a hearing Sept. 9.
Kemp pleaded guilty to second-degree assault for firing a revolver at a Toyota 4Runner outside the Tacoma Mall occupied by two men who had broken into his truck the previous night and taken some of his property. No one was hurt in the March 8, 2023 incident, but the gunfire occurred during a busy afternoon at the mall, and at sentencing prosecutors asked for a nine-month jail term.
At his Aug. 22 sentencing hearing, Schwartz rejected prosecutors’ recommendation, stating that there was evidence Kemp had acted in self-defense, such as Kemp’s claim that he only shot at the 4Runner after someone in the vehicle shot at him first. Videos of the shooting played by prosecutors didn’t show this, but they acknowledged that 33 seconds of the encounter was not on video.
Kemp, who had been apologetic, emerged from the courtroom a — nearly — free man. Will it last?
Under state law, second-degree assault is considered a violent offense, deputy prosecuting attorney Thomas Howe wrote in an Aug. 26 court filing. And although the law allows up to 30 days of a sentence to be substituted for partial confinement, which includes electronic home monitoring, RCW 9.94A.680 states this is for offenders convicted of nonviolent offenses only.
Howe cited State v. Leonard, which he said clarified that while sentencing courts have broad discretion regarding how far they stray from the low end of the standard sentencing range, the law on departing from the sentencing guidelines, RCW 9.94A.535, does not allow the court to impose a punishment outside of those already authorized by law.
“How detention and community service are specifically excluded by statute from being part of the sentence for a violent offense,” Howe wrote. “This Court should impose a sentence consistent with that authority.”
Leary said prosecutors were challenging Kemp’s sentence as if the 30 days of electronic home monitoring were converted from a term of total confinement — jail or prison time — but in fact, Leary said, the court did not give Kemp any period of incarceration. He quoted the court record that details Kemp’s sentence: “Defendant is sentenced to the following term of total confinement in the custody of the county jail: 0 days/months on count 1.”
On the next page, “partial confinement” was marked with an X: “Defendant may serve the sentence, if eligible and approved, in partial confinement in the following programs, subject to the following conditions: 30 days EHM; report to jail within two weeks.” That meant if Kemp didn’t get himself set up on home monitoring, he would have to report to jail.
Leary said prosecutors’ reliance on State v. Leonard was misplaced.
“If the Court chooses to act, it should only clarify its sentence to make it explicitly clear that the home detention and community service are conditions of community custody and not a conversion of the imposition of a term of total confinement that it did not impose,” Leary wrote.