State v. Graham
State v. Graham
Opinion of the Court
¶1 In 2006, this court affirmed Jason A. Graham’s attempted first degree murder, first degree assault, second degree assault, and first degree possession of stolen property convictions. See State v. Jones, noted at 136 Wn. App. 1009, 2006 WL 3479055, at **12, 2006 Wash. App. LEXIS 2667, at *37 (Graham I). Mr. Graham’s sentence was partly based on several firearm enhancements even though the jury found deadly weapon enhancements. Graham I, 2006 WL 3479055, at *12, 2006 Wash. App. LEXIS 2667, at *37. Our Supreme Court accepted review solely regarding the imposition of the firearm enhancements. State v. Graham, 169 Wn.2d 1005, 234 P.3d 210 (2010) (Graham II). The Supreme Court remanded the matter to this court for reconsideration in light of a later decided case, State v.
¶2 This court then remanded the matter to the trial court for resentencing consistent with Williams-Walker. State v. Graham, noted at 163 Wn. App. 1011, 2011 WL 3570120, at *3, 2011 Wash. App. LEXIS 1968, at *7-8 (Graham III). At resentencing the court corrected and reduced Mr. Graham’s standard-range sentence from a total of 1,225.5 months to a total of 985.5 months after considering and reluctantly rejecting his multiple offense policy arguments under RCW 9.94A.589. Mr. Graham appealed his standard-range sentence, contending the court erred in denying his request for a mitigated exceptional sentence because it failed to apply the multiple offense policy principles of RCW 9.94A.589(l)(a) to RCW 9.94A.589(l)(b).
¶3 We conclude the trial court correctly reasoned the multiple offense policy applies to RCW 9.94A.589(l)(a), but not to serious violent offenses sentenced under RCW 9.94A-,589(l)(b). Additionally, in imposing Mr. Graham’s standard-range sentence under RCW 9.94A.589(l)(b), the trial court properly exercised its discretion in rejecting his multiple offense arguments when reasoning the differences in his criminal behaviors were not nonexistent, trivial, or trifling. Accordingly, we affirm.
FACTS
¶4 In January 2002, a police officer stopped Mr. Graham in downtown Spokane for speeding. Graham III, 2011 WL 3570120, at *1,2011 Wash. App. LEXIS 1968, at *2. Gunfire erupted, and Mr. Graham’s car sped away. Eventually the car crashed, and Mr. Graham engaged in a gun battle with several officers. He was shot and arrested.
¶5 The State charged Mr. Graham with six counts of attempted first degree murder, one count of first degree
¶6 On appeal, this court affirmed Mr. Graham’s convictions and sentence. Graham I, 2006 WL 3479055, at *1, 2006 Wash. App. LEXIS 2667, at *1-2. Mr. Graham filed a petition for review with the Washington Supreme Court, which granted the petition solely on the enhancement issue and remanded for this court’s reconsideration. Graham II, 169 Wn.2d 1005. Thereafter, this court remanded “for re-sentencing consistent with the decision in Williams-Walker” Graham III, 2011 WL 3570120, at *3, 2011 Wash. App. LEXIS 1968, at *7-8.
¶7 At the 2012 resentencing hearing, Mr. Graham asked the trial court to impose an exceptional sentence downward of 25 years’ confinement. Mr. Graham argued an exceptional sentence was legally authorized by the “multiple offense policy” mitigating factor set forth in RCW 9.94A-.535(l)(g). He argued the convictions arose from a single
¶8 The trial court was “very impressed” with Mr. Graham’s rehabilitation and stated, “[T] here’s really no doubt in my mind that you’ve become a changed person since you’ve been in prison.” Report of Proceedings (RP) at 24-25. Nevertheless, the court concluded that it did not have a legal basis to impose a mitigated exceptional sentence, stating:
Your lawyer has argued one, basically one [mitigating factor] to me, and that is the application of the multiple offense policy. I spent some time with this. [RCW] 9.94A.589(l)(a) talks about when you’re scoring an offense and you have other current offenses, if there are too many other current offenses, it might be appropriate to impose an exceptional sentence. But if you look at Subpart B, the multiple offense policy doesn’t really apply to Subpart B, because with serious violents [sic] you aren’t scoring, you aren’t taking into consideration the other current offenses.
RP at 26-27. The court went on to state, “[I]t’s the very rare occasion when you should be utilizing the multiple offense policy to reduce a sentence. There is a discussion within these opinions regarding an analysis of whether they are— the additional current charges are nonexistent, trivial, or trifling.” RP at 29. The court further stated, “Certainly in a situation where we have someone firing a weapon at an officer, firing on another officer who’s driving a motor vehicle, firing on a patrol vehicle containing three other officers, I hate to even use the words ‘nonexistent, trivial, or trifling.’ ” RP at 29.
¶9 The court then imposed a 985.5 month standard-range sentence (240 months less than the previous sen
ANALYSIS
¶10 The issue is whether the trial court erred in rejecting Mr. Graham’s mitigated exceptional sentencing request based on the multiple offense policy and imposing a standard-range sentence under RCW 9.94A.589(l)(b). Mr. Graham contends the trial court improperly failed to consider the application of the multiple offense policy.
¶11 Initially, the State contends Mr. Graham’s issues are not appealable because the trial court was limited to resentencing consistent with Williams-Walker. Any issue outside the enhancement issue, the State argues, is not properly before this court.
¶12 In State v. Toney, 149 Wn. App. 787, 205 P.3d 944 (2009), Division Two of this court addressed whether a defendant may raise and argue issues in a second appeal despite failing to raise those issues in the first appeal. Mr. Toney originally argued former RCW 9.94A.310 (1996) did not mandate firearm enhancements to run consecutively. The Toney court agreed and “remanded for resentencing under ‘proceedings consistent with this opinion.’ ” Toney, 149 Wn. App. at 790 (quoting State v. Toney, noted at 95 Wn. App. 1031, 1999 WL 294615, at *6, 1999 Wash. App. LEXIS
¶13 Here, this court remanded “for resentencing consistent with the decision in Williams-Walker.” Graham III, 2011 WL 3570120 at *3,2011 Wash. App. LEXIS 1968, at *8. This language is distinct from Toney because this court specifically limited the resentencing to one case but, like the court in Toney, the court conducted a new sentencing hearing. While the court resentenced Mr. Graham to reflect the enhancement corrections, it considered Mr. Graham’s argument for a mitigated sentence and decided against it. When a court exercises “independent judgment” and rules again, then that issue becomes an “appealable question.” State v. Barherio, 121 Wn.2d 48, 50, 846 P.2d 519 (1993).
¶14 Turning to whether Mr. Graham may appeal his standard-range sentence, the law is well settled that generally a defendant cannot appeal a standard-range sentence. See RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). Nevertheless, a criminal defendant “may appeal a standard range sentence if the sentencing court failed to comply with procedural requirements of the SRA or constitutional requirements.” State v. Osman, 157 Wn.2d 474, 481-82, 139 P.3d 334 (2006). “[W]here a defendant has requested an exceptional sentence below the standard range [,] review is limited to circumstances where the court has refused to exercise
¶15 In State v. Cole, 117 Wn. App. 870, 880, 73 P.3d 411 (2003), the defendant unsuccessfully requested a below-range sentence and then challenged the court’s refusal to impose an exceptional sentence on appeal. The court held the defendant could not appeal from a standard-range sentence where the trial court considered the defendant’s request for the application of a mitigating factor, heard extensive argument on the subject, and then exercised its discretion by denying the request. Id. at 881. Similarly, in Garcia-Martinez, involving an equal protection challenge to a standard range sentence, the court held that a trial court that has considered the facts and concluded no basis exists for an exceptional sentence has exercised its discretion and the defendant may not appeal that ruling. 88 Wn. App. at 330.
¶16 Here, the trial court found no legal support existed for a mitigated sentence based on the multiple offense policy “because with serious violents [sic] you aren’t scoring, you aren’t taking into consideration the other current offenses.” RP at 27.
¶17 RCW 9.94A.535(l)(g) provides a nonexclusive list' of mitigating factors for awarding exceptional sentences, one of which is a finding that “[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of
¶18 Mr. Graham argues that if the resulting sentence under RCW 9.94A.589(l)(b) is clearly excessive, then the court may impose a mitigated exceptional sentence under RCW 9.94A.535(l)(g). We have found no published Washington cases applying the mitigating factor of RCW 9.94A-.535(l)(g) to serious violent offenses. Professor David Boerner sheds some light on why, “[i]n particular, the addition by the Legislature of special provisions governing multiple ‘serious violent’ crimes is clear evidence of its belief that just punishment for such offenders required significant terms of confinement.” David Boerner, Sentencing in Washington § 9.12(e) at 9-32 (1985) (footnote omitted).
¶19 The “multiple offense policy” refers to the trade-off recognized by the legislature in the first subsection of RCW 9.94A.589U). State v. Batista, 116 Wn.2d 777, 786-87, 808 P.2d 1141 (1991). When dealing with most cases involving multiple crimes, the offenses are counted as if they were prior criminal history when calculating the offender score for each offense. Sentences computed in such a manner are then served concurrently unless a basis for an exceptional sentence exists. RCW 9.94A.589(l)(a).
¶20 However, the trade-off in RCW 9.94A.589(l)(a) is nonexistent when sentencing serious violent offenses under RCW 9.94A.589(l)(b). Instead, multiple serious violent of
¶21 As clarified in Batista, “It is important to remember what is meant by the ‘multiple offense policy’. . . . The statute sets out a precise, detailed scheme to follow where multiple offenses are involved. Where multiple current offenses are concerned, except in specified instances involving multiple violent felonies, presumptive sentences for multiple current offenses consist of concurrent sentences, each computed with the others treated as criminal history utilized in calculating the offender score.” 116 Wn.2d at 786 (emphasis added). In other words, the multiple offense policy refers to sentencing proceedings under RCW 9.94A-.589(l)(a); it does not apply to sentencing under subsection (l)(b) that involves multiple violent felonies. As Mr. Graham correctly points out, it is possible for a court to impose a mitigated exceptional sentence involving concurrent terms under RCW 9.94A.589(l)(b). See In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007) (holding a trial court’s discretion to impose an exceptional sentence includes discretion to impose concurrent sentences where consecutive sentences are presumptively called for). But, the multiple offense policy of subsection (l)(a) is not itself a basis for an exceptional sentence under subsection (l)(b) of RCW 9.94A.589. The trial court properly concluded likewise.
¶22 Moreover, even if the RCW 9.94A.589(l)(a) multiple offense policy did apply, the court considered this basis for a mitigated sentence and rejected it. Again, if a trial court considers the facts and rejects that basis for an exceptional sentence, then a defendant may not appeal that
¶23 In sum, the court did not wrongly refuse to exercise discretion; nor did the court rely on an impermissible basis in denying Mr. Graham’s request.
¶24 Affirmed.
Review granted at 180 Wn.2d 1013 (2014).
The State erroneously asserts in its brief (Resp’t’s Br. at 4) that the sentencing court reduced the sentence beyond the enhancement corrections. Based on this incorrect assertion, the State requests affirmative relief. Even if the State were correct, RAP 5.1(d) requires the filing of a notice of cross review to request affirmative relief.
Reference
- Full Case Name
- The State of Washington v. Jason Allen Graham
- Cited By
- 8 cases
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- Published