FILED
DEC. 26, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31020-5-111
)
Respondent, )
)
v. )
)
JASON ALLEN GRAHAM, ) PUBLISHED OPINION
)
Appellant. )
BROWN, J. -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 (Graham I). Mr. Graham'S sentence was partly based on several
firearm enhancements even though the jury found deadly weapon enhancements. Id.
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. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010).
Under Williams-Walker, a sentencing court must impose a deadly weapon
No. 31020-5-111
State v. Graham
enhancement when the jury finds the defendant was armed with a deadly weapon even
if the weapon was a firearm.
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 (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 multiple offense policy principles of RCW 9.94A.589(1 )(a) to
RCW 9.94A.589(1)(b).
We conclude the trial court correctly reasoned the multiple offense policy applies
to RCW 9.94A.589(1)(a), but not to serious violent offenses sentenced under RCW
9.94A.589(1)(b). Additionally, in imposing Mr. Graham's standard-range sentence
under RCW 9.94A.589(1)(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
In January 2002, a police officer stopped Mr. Graham in downtown Spokane for
speeding. Graham III, at *1. Gunfire erupted; and Mr. Graham's car sped away.
Eventually the car crashed, and Mr. Graham
2
No. 31020-5-111
State v. Graham
engaged in a gun battle with several officers. He was shot and arrested.
The State charged Mr. Graham with six counts of attempted first degree murder,
one count of first degree assault, one count of unlawful possession of a firearm, one
count of first degree possession of stolen property, and one count of taking a motor
vehicle without permission. The trial court instructed the jury on the procedure for
deciding the special verdicts regarding deadly weapon enhancements. Graham III,
2011 WL 3570120 at *1. The jury found Mr. Graham guilty of two counts of attempted
first degree murder, four counts of first degree assault, one count of second degree
assault, one count of unlawful possession of a firearm, one count of possession of
stolen property, and one count of taking a motor vehicle without permission. The jury
also found by special verdicts that Mr. Graham was armed with a deadly weapon in the
commission of the attempted murder and assault offenses. Despite the jury's findings
that Mr. Graham was armed with a deadly weapon, the trial court imposed seven
consecutive firearm enhancements, resulting in a sentence of 1,225.5 months. Of that
sentence, 33 years consisted of mandatory consecutive firearm enhancements.
Graham III, 2011 WL 3570120 at *2.
On appeal, this court affirmed Mr. Graham's convictions and sentence. Graham
I, 2006 WL 3479055 at *1. 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 11,169 Wn.2d 1005. Thereafter, this
3
No. 31020-5-111
State v. Graham
court remanded "for resentencing consistent with the decision in Williams-Walker."
Graham III, 2011 WL 3570120 at *3.
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(1)(g). He argued the convictions arose from a single
incident and that U[g]iven the lack of incremental harm engendered by each additional
shot, application of the multiple offense policy on the specific facts of this case results in
a sentence which is clearly excessive in light of the stated purposes of the SRA
[Sentencing Reform Act of 1981, ch. 9.94A RCW]." Clerk's Papers (CP) at 89. Mr.
Graham presented evidence demonstrating his rehabilitation during his over 10 years of
incarceration.
The trial court was "very impressed" with Mr. Graham'S rehabilitation, and stated,
U[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(1 )(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,
4
I
I
, No. 31020-5-111
! State v. Graham
because with serious violents 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]1'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, 1hate to even use the words 'nonexistent, trivial, or trifling.'" RP at 29.
The court then imposed a 985.5 month standard-range sentence (240 months
less than the previous sentence). RP at 29. The reduced sentence reflected the court's
imposition of six 24-month deadly weapon enhancements (down from six 60-month
enhancements) and one 12-month deadly weapon enhancement (down from one 36
month enhancement).1 CP -at 172. The court ordered all sentences to be served
consecutively. The court stated, "I don't agree with this sentence .... But without
some other mitigating circumstance, my hands are tied." RP at 29. Mr. Graham
appealed.
ANALYSIS
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
1 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
5
No. 31020-5-111
State v. Graham
j standard-range sentence under RCW 9.94A.589(1)(b). Mr. Graham contends the trial
court improperly failed to consider the application of the multiple offense policy.
I
j
Initially, the State co~tends Mr. Graham's issues are not appealable because the
trial court was limited to resentencing consistent with Williams-Walker. Any issue
I outside the enhancement issue, the State argues, is not properly before this court.
In State v. Toney, 149 Wn. App. 787,205 P.3d 944 (2009), Division Two of this
court addressed whether a ~efendant 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 9.94A310 (1996) did not mandate firearm enhancements to run
consecutively. The Toney court agreed and "remanded for resentencing under
'proceedings consistent wit~ this opinion.'" Toney, 149 Wn. App. at 790. The trial court
sentenced Mr. Toney, per the appellate court's direction, but conducted a new
sentencing hearing prior to imposing the sentence. Mr. Toney again appealed, this time
challenging community placement and raising double jeopardy concerns. The State
responded that these issues could not be raised for the first time on a second appeal.
The Toney court held a defendant "may raise sentencing issues on a second appeal if,
on the first appeal, the appellate court vacates the original sentence or remands for an
entirely new sentencing proceeding, but not when the appellate court remands for the
trial court to enter only a ministerial correction of the original sentence." Toney, 149
Wn. App. at 792.
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.
6
No. 31020-5-111
State v. Graham
J
I
1
Here, this court remanded "for resentencing consistent with the decision in
Williams-Walker." Graham III, 2011 WL 3570120 at *3. This language is distinct from
I Toney because this court specifically limited the resentencing to one case, but like the
I court in Toney, the court conducted a new sentencing hearing. While the court
resentenced Mr. Graham to reflect the enhancement corrections, it considered Mr.
1
i
Grahams argument for a mitigated sentence and decided against it. When a court
f
1 exercises "independent judgment" and rules again, then that issue becomes an
I
I
"appealable question." State v. Barberio, 121 Wn.2d 48,50,846 P.2d 519 (1993).
Turning to whether Mr. Graham may appeal his standard-range sentence, the
I 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 discretion at all or has relied on an impermissible basis for refusing to impose
an exceptional sentence below the standard range." State v. Garcia-Martinez, 88 Wn.
App. 322, 330, 944 P.2d 1104 (1997). "A court refuses to exercise its discretion if it
refuses categorically to impose an exceptional sentence below the standard range
under any circumstances; i.e., it takes the position that it will never impose a sentence
7
No. 31020-5-111
State v. Graham
below the standard range." Id. at 330. A court relies on an impermissible basis for
declining to impose an exceptional sentence below the standard range if, for example, it
takes the position that no drug dealer should get an exceptional sentence down or it
refuses to consider the request because of the defendant's race, sex, or religion. Id.
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 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.
Here, the trial court found no legal support existed for a mitigated sentence
based on the multiple offense policy "because with serious violents you aren't scoring,
you aren't taking into consideration the other current offenses." RP at 27.
RCW 9.94A.535(1)(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 the purpose of this chapter, as expressed in RCW
8
No. 31020-5-111
State v. Graham
9.94A.010." RCW 9.94A.535(1)(g). RCW 9.94A.589 specifies the rules for sentencing
defendants with multiple convictions. Generally, sentences for multiple offenses set at
one sentencing hearing are served concurrently. But, where two or more serious violent
offenses are presented, the multiple offense policy provides the defendant's offender
score for the crime with the highest seriousness level shall be computed using other
current convictions that are not serious violent offenses, and the sentence range for
other serious violent offenses shall be determined by using an offender score of zero.
RCW 9.94A.589(1)(b). The sentences are then imposed consecutively. Id.
Mr. Graham argues if the resulting sentence under RCW 9.94A.589(1)(b) is
clearly excessive, then the court may impose a mitigated exceptional sentence under
RCW 9.94A.535(1)(g). We have found no published Washington cases applying the
mitigating factor of RCW 9.94A.535(1)(g) to serious violent offenses. Professor David
Boerner sheds some light on why, "In 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, 9-32 (1985).
The "multiple offense policy" refers to the trade-off recognized by the legislature
in the first subsection of RCW 9.94A.589(1). 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
9
No. 31020-S-111
State v. Graham
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.S89(1)(a).
However, the trade-off in RCW 9.94A.S89(1)(a) is nonexistent when sentencing
serious violent offenses under RCW 9.94A.S89(1)(b). Instead, multiple serious violent
offenses do not count in the offender score for any other serious violent offenses. The
most serious crime is sentenced considering the defendant's whole criminal history,
I
excluding other current serious violent offenses and a standard range computed in the
I normal manner. For all other serious violent offenses, the crimes are scored with an
I
I
offender score of zero and are directed to run consecutively to the most serious offense.
As clarified in Batista) "It is important to remember what is meant by the 'multiple
I
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.S89(1)(a); it does not apply to sentencing
under subsection (1 )(b) ,that involves multiple violent felonies. As Mr. Graham correctly
pOints out, it is possible for a mitigated exceptional sentence involving concurrent terms
under RCW 9.94A.S89(1)(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
10
No. 31020-5-111
State v. Graham
sentence includes discretion to impose concurrent sentences where consecutive
sentences are presumptively called for). But, the multiple offense policy of subsection
(1)(a) is not itself a basis for an exceptional sentence under subsection (1)(b) of RCW
9.94A.589. The trial court properly concluded likewise.
Moreover, even if the RCW 9.94A.589(1)(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 ruling. Garcia-Martinez, 88 Wn. App. at 330. Here, the
trial court similarly considered the basis for a mitigated sentence suggested by Mr.
Graham and rejected it. The court determined, "[Ilt's the very rare occasion when you
should be utilizing the multiple offense policy" and that there is "an analysis of whether
they are-the additional current charges are nonexistent, trivial, or trifling." RP at 29.
The court reasoned, "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. Thus, the trial court considered the factual circumstances and
determined the case was not one warranting a lowered sentence. Therefore, the court
-
exercised its discretion and decided a standard-range sentence was appropriate.
Accordingly, Mr. Graham cannot prevail on this challenge to his standard-range
sentence.
11
I
I
No. 31020-5-111
State v. Graham
1
I 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.
j Affirmed.
I
f Brown, J.
I
~
1 WE CONCUR:
Kulik, J.
3
Fearin~
12