State v. McGill
State v. McGill
Opinion of the Court
O’Keith McGill appeals his sentence on three drug convictions, asserting that (1) the sentencing court erred in failing to recognize that it had authority to impose an exceptional sentence and (2) he did not have effective assistance of counsel at sentencing because his attorney did not cite the authorities which would permit the court to impose an exceptional sentence below the standard range. In State v. Sanchez
FACTS
Raymond Meeth worked for the Kent Police Department as a confidential informant. He originally assisted in undercover narcotics purchases to work off a forgery arrest. After he satisfied that obligation, he continued to work as an informant for money. In February 2000, Meeth’s neigh
The first purchase was on February 9, 2000. Meeth called McGill, agreed to buy $60 worth of cocaine, and arranged to meet him at a local grocery store. Detectives Holmes and David Trogdan gave Meeth money to buy the cocaine, drove him to the store, and positioned themselves to witness the sale. In exchange' for cocaine, Meeth gave McGill $60. Meeth returned to the detectives and gave them the cocaine. The other two transactions, the following day and six days later, occurred essentially the same way.
Detective Holmes obtained a search warrant and executed it on February 17. McGill was arrested, and the officers found two bags of cocaine on him. The State charged him with three counts of delivery of cocaine and one count of possession of cocaine with intent to deliver. A jury convicted him of two counts of delivery of cocaine and one count of possession with intent to deliver cocaine. Defense counsel argued for a sentence at the low end of the standard range, but did not request an exceptional sentence. The sentencing court, believing it had to impose a standard range sentence, gave McGill 87 months, the bottom of the standard range. McGill timely appeals his sentence.
DISCUSSION
McGill maintains that his case should be remanded for resentencing because the sentencing court erred in failing to recognize its authority to consider an exceptional sentence. Even though McGill’s counsel had not asked for an exceptional sentence below the standard range, at sentencing, the trial court stated:
I’m, sure you are aware that the legislature has decided that judges should not have discretion beyond a certain sentencing range on these matters. And sometimes some of these drug cases, it seems like, when you compare them to some of the*99 really violent and dangerous offenses, it doesn’t seem to be justified. But it’s not my call to determine the standard range. The legislature has done that for me.
So I have no option but to sentence you within the range on these of 87 months to 116 months. But I do get to decide where in that range the sentence is appropriate.
And you do have a fairly significant criminal history, and certainly a lot of times that means you are going to be sentenced to the middle or high end of that range.
But given the support that you’ve got, obviously you’ve got a lot of family support and friends, the efforts that you’ve made while in custody, and knowing that you’ll be probably facing a long time in prison, you’ve still chosen to do that, and I think that you are serious about your receiving treatment and recovery, I’m going to impose the low end of the standard range, 87 months____[3 ]
The court’s belief that it lacked authority to impose an exceptional sentence was incorrect. Under RCW 9.94A-.535(l)(g), it is within the discretion of a sentencing court to consider and impose an exceptional sentence downward under the multiple offense policy of the SRA.3
The State argues that, under former RCW 9.94A.210(1) (2000), a defendant may not appeal a standard range sentence.
Remand for resentencing is often necessary where a sentence is based on a trial court’s erroneous interpretation of or belief about the governing law. For example, in State v. Hale,
Remand is not mandated when the reviewing court is confident that the trial court would impose the same sentence when it considers only valid factors.
McGill also maintains that he was deprived of effective assistance of counsel because his attorney did not argue for an exceptional sentence below the standard range based on the multiple offense policy, RCW 9.94A.535(l)(g). He cites State v. Sanchez
Whether a given presumptive sentence is clearly excessive in light of the purposes of the SRA is not a subjective determination dependent upon the individual sentencing philosophy of a given judge. Rather, it is an objective inquiry based on the Legislature’s own stated purposes for the act. Sanchez holds that a presumptive sentence calculated in accord with the multiple offense policy is clearly excessive if the difference between the effects of the first criminal act and the cumulative effects of the subsequent criminal acts is nonexistent, trivial or trifling.[17 ]
McGill’s ineffective assistance argument is based on his counsel’s failure to cite this case law to the trial court and use it to argue for an exceptional sentence down. The State
Reversed and remanded for resentencing.
Kennedy and Ellington, JJ., concur.
69 Wn. App. 255, 848 P.2d 208, review denied, 122 Wn.2d 1007 (1993).
76 Wn. App. 454, 886 P.2d 234 (1994), review denied, 126 Wn.2d 1025 (1995).
(Emphasis added.)
RCW 9.94A.535(l)(g) provides:
The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
See, e.g., Sanchez, 69 Wn. App. 255.
Former RCW 9.94A.210(1) (2000), recodified as RCW 9.94A.585 (Laws of 2001, ch. 10, § 6); State v. Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994).
State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989).
State v. Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997) (quoting Herzog, 112 Wn.2d at 423), review denied, 136 Wn.2d 1002 (1998).
State v. Garcia-Martinez, 88 Wn. App. at 330.
65 Wn. App. 752, 757-58, 829 P.2d 802 (1992).
92 Wn. App. 783, 797, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999).
State v. Pryor, 115 Wn.2d 445, 456, 799 P.2d 244 (1990).
See RCW 9.94A.010; State v. Parker, 132 Wn.2d 182, 190, 937 P.2d 575 (1997).
Id. (citing former RCW 9.94A.390(l)(g) (1989), recodified as RCW 9.94A-,535(l)(g) (Laws of 2001, ch. 10, § 6).
Id. at 463-64 (citation omitted).
104 Wn. App. 263, 15 P.3d 719, review denied, 143 Wn.2d 1024 (2001).
Id. at 266.
Reference
- Full Case Name
- The State of Washington v. O'Keith McGill
- Cited By
- 81 cases
- Status
- Published