State v. Alexander
State v. Alexander
Opinion of the Court
James M. Alexander seeks reversal of a Court of Appeals decision vacating an exceptional sentence and directing the trial court to impose a sentence within the standard range as calculated under RCW 9.94A, the Sentencing Reform Act of 1981 (SRA). "We reverse the Court of Appeals decision and reinstate Alexander’s exceptional sentence as calculated and imposed by the trial court.
Background
On June 26, 1991, James M. Alexander approached an undercover police officer, R. Ceja, on a city block in Seattle and asked if Officer Ceja wanted some "coca” (cocaine). Officer Ceja said yes and asked, "how about a viente?” ($20 worth of cocaine). Alexander led Officer Ceja to a donut shop in the area and walked around for some time before contacting Cesar Leal Villela. Officer Ceja attempted to give Villela $20 of police department buy money in exchange for cocaine, but Alexander intercepted the money. Alexander kept $5 of the intercepted buy money and gave Villela $15. In exchange for the $15, Villela gave Alexander a bindle of cocaine which Alexander then passed to Officer Ceja. The cocaine was later estimated to weigh .03 gram and to be too small to remeasure. Alexander was arrested shortly thereafter and charged with
After a jury convicted Alexander as charged, the trial court proceeded to sentence him under the sentencing guidelines established by the SRA and codified at RCW 9.94A. Despite a minimum standard sentence of 36 months,
The State appealed the sentence, arguing the amount of the controlled substance involved in the crime, Alexander’s lack of sophistication in committing the crime, and the trial court’s concern for proportionality did not constitute substantial and compelling reasons to depart from the standard range. The State further argued that even if those reasons constituted substántial and compelling reasons justifying a downward departure from the guidelines, the exceptional sentence imposed on the basis of these reasons was too lenient and as such was a reversible abuse of the trial court’s discretion.
We granted Alexander’s petition for review of the Court of Appeals decision pursuant to RAP 13.4(b). Alexander’s petition presents the following issues for review:
Analysis
Sentences must generally fall within the standard sentence range established by the SRA. RCW 9.94A.120(1). There are three exceptions to this general rule. Two concern first-time and sexual offenders respectively and are not applicable in this case.
The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.
(Italics ours.) RCW 9.94A.120(2). In reviewing a challenge to an exceptional sentence imposed pursuant to RCW 9.94A.120(2), this court applies a three-prong test.
I
Factual Determinations Are Treated as Verities on Appeal
First, we examine whether the record supports the findings of fact used to justify the exceptional sentence.
II
Downward Departure From Standard Range Is Legally Justified
Second, we examine whether each factual finding constitutes a "substantial and compelling” reason for departing from the standard range as a matter of law. RCW 9.94A.210(4)(a); RCW 9.94A.120(2); State v. Allert, 117 Wn.2d 156, 168, 815 P.2d 752 (1991). We conclude the first two reasons (an extraordinarily small amount of a controlled substance; and a defendant’s low level of involvement in committing the crime) may each be properly advanced by a trial court as a substantial and compelling reason for departure, but the third (a defendant’s peripheral participation in the drug hierarchy) may not.
The trial court held that because RCW 9.94A.390(2) permits exceptional sentences upward for crimes involving quantities of drugs substantially greater than for personal use, a high degree of sophistication, or a defendant in a high position in the drug hierarchy, then "[b]y logical corollary” a very small amount of drugs, a low degree of involvement or sophistication, and a defendant’s very low position in the drug hierarchy are justifications for a sentence below the standard range.
All of the reasons currently under review are related to the execution of the crime itself.
First, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in establishing the standard sentence range. Second, the asserted aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category.
State v. Smith, 123 Wn.2d 51, 57, 864 P.2d 1371 (1993) (quoting State v. Grewe, 117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991)).
We examine in turn whether each of the three challenged reasons may be provided by a trial court as a legitimate justification for a downward departure from the standard sentence range under the framework just elaborated.
"Extraordinarily Small Amount” of a Controlled Substance
We first examine the trial court’s reliance on the fact Alexander’s crime involved only an "extraordinarily small amount” of cocaine as a reason for departure from the standard range and conclude this reliance is permissible.
With respect to the first portion of the Grewe test, which directs us to question whether the Legislature necessarily considered the factor in establishing the standard sentence range, we note the Legislature did not necessarily contemplate the inclusion of all amounts of controlled substances, even extraordinarily small amounts, in establishing the standard sentence range for a violation of RCW 69.50.401(a)(l)(i). Whether the Legislature necessarily contemplated the inclusion of a factor in establishing the standard sentence range depends both on whether the factor is an element of the crime of which the defendant has been convicted,
Although the Legislature defined violations of RCW 69.50.401(a)(l)(i)(A) to include crimes involving less than 2 kilograms of a drug, it did not establish a minimum amount for which a defendant could be prosecuted. Where the Legislature has defined a range only by reference to one end of a range, we do not generally consider it to have contemplated the particular features of crimes which may occur at the undefined end of the range.
With respect to the second part of the Grewe analysis, which directs that we consider whether the factor distinguishes the crime from other crimes of the same statutory class, we note that the delivery of an "extraordinarily small amount” of a controlled substance is a factor present in Alexander’s violation of RCW 69.50.401(a)(l)(i)(A) but certainly not inherent in all crimes which are part of the class of crimes defined by RCW 69.50.401(a)(l)(i)(A). An extraordinarily small amount of controlled substance therefore distinguishes Alexander’s crime from others in the same category, and meets the second requirement of the Grewe test.
We thus reverse the Court of Appeals and conclude that a trial court may treat an "extraordinarily small amount” of a controlled substance as a substantial and compelling reason for downward departure from the standard sentence range.
The State disagrees with our holding, contending that because Alexander’s conduct falls within the definition of the crime defined by RCW 69.50.401(a)(l)(i)(A), he must be sentenced within the standard sentence range.
The State’s interpretation would eliminate the ability of courts to ever impose departure since the issue of departure from the standard sentence range by definition only arises once a defendant has committed a crime. This interpretation would contravene RCW 9.94A.120(2) which expressly permits for departure from the standard range, notwithstanding; the fact a defendant has been properly convicted of a crime. Because we will not construe a statute so as to render portions of it superfluous, Cossel v. Skagit Cy., 119 Wn.2d 434, 834 P.2d 609 (1992), and based on the other reasons just discussed, we conclude the trial court may treat an extraordinarily small amount of a controlled substance as a substantial and compelling reason for imposing a sentence below the standard range.
B
Defendant’s Low Level of Sophistication in Committing Crime
We next consider whether the trial court properly considered Alexander’s low level of sophistication in committing
First, the Legislature has not already necessarily considered the specific gradations in the defendant’s level of involvement in establishing the standard sentence for violation of RCW 69.50.401(a)(l)(i)(A). In contrast to the reasons considered by this court in Pascal and Nordby, the level of involvement is neither a statutory element of the crime defined by RCW 69.50.401(a)(l)(i)(A) nor an element considered in computing the standard sentence range under RCW 9.94A.370CL).
In addition, we find that, as with the amount of controlled substance delivered, a low level of involvement exhibited in committing a crime is not a characteristic inherent in all crimes defined by RCW 69.50.401(a)(l)(i)(A). Alexander’s low level of involvement in committing the crime thus distinguishes his crime from other crimes of the same statutory class.
Because this reason satisfies both elements of the Grewe test, we conclude a defendant’s low level of involvement in committing a crime may in some instances justify a departure from the standard sentence range under RCW 9.94A.120(2).
C
Defendant’s Peripheral Participation in Drug Hierarchy
Finally, we address the trial court’s use of Alexander’s peripheral participation in the drug hierarchy as a reason for downward departure from the standard sentence.
First, by defining several different types of drug crimes under different statutory provisions, the Legislature has already considered different classes of drug crimes, punishing those with greater participation in the drug hierarchy more severely than those with less involvement in the hierarchy.
We thus conclude peripheral participation in the drug hierarchy is not a substantial and compelling reason justifying departure, and reverse the trial court on this issue.
Ill
Alexander’s Sentence Is Not Clearly Too Lenient
When the question is properly raised, the final step of the 3-part statutory analysis leads us to examine whether the resulting exceptional sentence is "clearly too lenient”. RCW 9.94A.210(4)(b). A sentence will be deemed clearly too lenient only if the trial court abused its discretion in establishing the precise length of the sentence.
In addition to a fine of $2,250.75, Alexander has been sentenced to serve 1½ years of his life in prison for the low level of involvement in the nonviolent delivery to a willing customer an amount of a controlled substance deemed to be "extraordinarily small”. Moreover, had Alexander been instead convicted under the "burn” statute for delivering "no amount”, RCW 69.50.401(c),
Durham, C.J., and Dolliver, Smith, Guy, Johnson, and Madsen, JJ., concur.
RCW 69.50.401(aXl){i) provides: "it is unlawful for any person to . . . deliver ... a controlled substance.
"(1) Any person who violates this subsection with respect to:
"(i) [cocaine] is guilty of a crime and upon conviction may be imprisoned for not more than ten years . . .”. Villela was also charged and arrested under this provision. His conviction on that charge is not before this court.
A violation of RCW 69.50.401(aXlXi) by delivering cocaine is considered a level 8 crime under RCW 9.94A.320. As such, the standard sentencing range for an offender with a seriousness score of "0” is 21 to 27 months. RCW 9.94A.310. Because Alexander had a seriousness score of 3 (based on an earlier violation of the Uniform Controlled Substances Act conviction), Clerk’s Papers, at 12, his standard range was 36 to 48 months. RCW 9.94A.310; see also RCW 9.94A.360 (calculation of offender score). .
Although the State did not specifically challenge the trial court’s citation to "just punishment”, the Court of Appeals considered the trial court’s reference to both "proportionality” and "just punishment”, determining neither such concern was a substantial and compelling reason for a sentence outside the standard range. State v. Alexander, 70 Wn. App. 608, 617, 854 P.2d 1105 (1993).
Although the State does not appear to have specifically challenged the trial court’s use of peripheral participation in the drug hierarchy as a reason for departure from the guidelines, the Court of Appeals nevertheless reached the issue whether this fact indeed constitutes a substantial and compelling reason for departure.
While the court states in an earlier part of the opinion that it will accept as a verity that Alexander did indeed have low sophistication and a very low position in the drug hierarchy, State v. Alexander, supra at 612, it later contradicts this position by appearing to conduct a factual examination, see State v. Alexander, supra at 620 (concluding Alexander had a predisposition and had greater than minimal involvement).
Alexander does not challenge the Court of Appeals determination that the trial court’s concern for proportionality and concern for just punishment are not substantial and compelling reasons. Although the State raises this issue in its Supplemental Brief by Respondent, it is not entitled to seek review of the issue by this court since it prevailed on this issue before the Court of Appeals. RAP 3.1 (only an aggrieved party may seek review).
The trial court treated the second and third issues as a single reason for departure, as did the Court of Appeals. However, for purposes of clarity and precision, we treat the trial court’s "single” reason of "low degree of sophistication and peripheral participation” as two separate reasons.
See RCW 9.94A.120C5), (7)(a).
RCW 9.94A.210(4) provides: "To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.”
Clerk’s Papers, at 20.
The State has attempted to correct this deficiency through an unchallenged motion to supplement the record which was granted by the Commissioner of our court. However, because the Court of Appeals treated the findings as verities on appeal, we decline to review these challenges. State v. Laviollette, 118 Wn.2d 670, 826 P.2d 684 (1992) (Supreme Court will not generally consider issues that an aggrieved party failed to raise before the Court of Appeals).
Clerk’s Papers, at 15.
Our task here is not to identify all factors which may constitute substantial and compelling reasons for departure. Rather, our inquiry is limited to whether each of the three reasons currently under scrutiny is a substantial and compelling reason for departure which a trial court in its discretion may rely upon to order a sentence below the range. We therefore do not here pass on the proper
For the principle that departure is not appropriate if the Legislature has already contemplated the reason in establishing the standard range, see also State v. McAlpin, 108 Wn.2d 458, 463, 740 P.2d 824 (1987); State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). For the principle that an established fact may be used by a trial court as a "substantial and compelling” reason for departure from the standard sentencing range only when the circumstances of the crime committed by the defendant distinguish the crime from the other crimes in the same statutory class, see also State v. Gaines, 122 Wn.2d 502, 859 P.2d 36 (1993); State v. Estrella, 115 Wn.2d 350, 359, 798 P.2d 289 (1990); State v. Pennington, 112 Wn.2d 606, 610, 772 P.2d 1009 (1989).
See State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986) (because the infliction of "serious bodily injury” is an element of vehicular assault under RCW 46.61.522(l)(a), a victim’s serious bodily injuries cannot be considered a substantial and compelling reason for departure from the standard range).
See State v. Pascal, 108 Wn.2d 125, 736 P.2d 1065 (1987) (because a person’s criminal history is a component used to compute the standard sentence range, criminal history has already been considered by the Legislature and cannot constitute a substantial and compelling reason for departure).
See State v. Fisher, 108 Wn.2d 419, 424, 739 P.2d 683 (1987) ("While the Legislature might have reasoned that victims less than 14 years old were more vulnerable in general than those 14 or older, it could not have considered the particular
As noted above, we do not reach the question whether .03 gram is in fact an "extraordinarily small” amount of a controlled substance since we treat this finding as a verity on appeal.
The State argues: "RCW 69.50.401(a)(l)(i) clearly does not specify a requisite amount of controlled substance for any element of the offense; to assume otherwise is to ignore the plain language of the statute. . . . The legislative intent, by the plain language of RCW 69.50.401(a)(l)(i), is to criminalise all deliveries of certain controlled substances, regardless of amount”, Supplemental Br. of Resp’t State of Wash., at 6, and "Defendant Alexander’s criminal conduct as described in the trial court’s findings of fact absolutely fits the statutory definition for delivery of cocaine”, Supplemental Br. of Resp’t State of Wash., at 8.
This may account for the Court of Appeals association of "low degree of sophistication” with a lack of predisposition to commit the crime. Because the court made this association, it is unclear whether it answered the question whether a low degree of involvement or sophistication is a substantial and compelling reason for a departure downward.
We again note that because we treat the finding that Alexander’s crime reflected a low level of involvement as a verity on appeal, we do not reach the issue whether actions such as those of Alexander in fact reflect a low level of involvement.
For the reasons set forth in that opinion, we agree with the portion of State v. Alexander, 70 Wn. App. 608, 616, 854 P.2d 1105 (1993), which holds that the purposes of the Sentencing Reform Act of 1981 enumerated in RCW 9.94A.010 are not in and of themselves mitigating circumstances. Rather, they may provide support for the imposition of an exceptional sentence once a mitigating circumstance has been identified by the trial court.
Again, we treat as a verity the finding that Alexander’s crime reflects only peripheral participation in the drug hierarchy.
See, e.g., RCW 69.50.401(a)(1) (i) (monetary punishments may be imposed in a graduated fashion depending on amount of substance manufactured, delivered, or possessed with intent to manufacture or deliver; maximum term of imprisonment is 10 years); RCW 69.50.401(d) (maximum term of imprisonment for possession of a controlled substance is 5 years); RCW 9.94A.390(2)(d)(iv) (upward departure from standard sentence range permitted if offender occupied a high position in the drug distribution hierarchy).
We note that the Court of Appeals appears to have equated the phrase "peripheral participation in the drug hierarchy” with a low level of involvement in the crime committed. Although minimal involvement in a given crime as compared to other actors committing the same crime is a substantial and compelling reason for imposing an exceptional sentence, State v. Nelson, 108 Wn.2d 491, 740 P.2d 835 (1987); State v. Moore, 73 Wn. App. 789, 871 P.2d 642 (1994), the focus of the "minimal involvement” or "secondary role” inquiry is on the defendant’s role in the crime vis-a-vis other parties participating in the same crime. The focus is not the severity of the defendant’s crime relative to those committing other crimes. Comparing Alexander’s crime to an enormous number of other crimes in which other members of the "drug hierarchy” engage usurps the Legislature’s role by imposing a judicially created sentencing scheme.
State v. Nelson, 108 Wn.2d 491, 504, 740 P.2d 835 (1987); State v. Pascal, 108 Wn.2d 125, 138, 736 P.2d 1065 (1987).
RCW 69.50.401(c) provides:
"It is unlawful... for any person to offer, arrange, or negotiate for the sale, gift, delivery, dispensing, distribution, or administration of a controlled substance to any person and then sell, give, deliver, dispense, distribute, or administer to that person any other liquid, substance, or material in lieu of such controlled substance. . . .”
In other contexts, an "abuse of discretion” has been considered to have occurred when the discretion is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons”. See, e.g., In re G.V., 124 Wn.2d 288, 295, 877 P.2d 680 (1994) (quoting In re Schuoler, 106 Wn.2d 500, 512, 723 P.2d 1103 (1986)); State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775
Dissenting Opinion
(dissenting) — For the reasons noted in the unanimous Court of Appeals opinion in this case (State v. Alexander, 70 Wn. App. 608, 854 P.2d 1105 (1993)), I dissent; that opinion is absolutely correct.
Brachtenbach, J. Pro Tern., concurs with Andersen, J. Pro Tern.
Judge James A. Andersen is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. 4, § 2(a) (amend. 38).
Reference
- Full Case Name
- The State of Washington, Respondent, v. James Maurice Alexander, Petitioner
- Cited By
- 61 cases
- Status
- Published