State v. Graham

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 89869-3
Respondent, )
)
v. ) En Bane
)
· JASON ALLEN GRAHAM, )
)
Petitioner. ) Filed NOV 1 3 2014
__________________________ )
Yu, J.- The issue in this case is whether a sentencing court may impose an

exceptional sentence downward if the judge finds the multiple offense policy of

RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light

of the purposes of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A

RCW. We need look only to the plain language of the SRA to conclude the

sentencing court has such discretion.

FACTS AND PROCEDURAL HISTORY

This case results from Jason Allen Graham's methamphetamine-induced

shooting spree in January 2002. At about 1:00 a.m., a police officer stopped the

vehicle Graham was driving. Over the next several minutes, Graham used an AK-
State v. Graham, No. 89869-3

4 7 to fire at six different police officers during a foot chase through downtown

Spokane. Fortunately, he was the only person physically injured in the incident.

Graham was convicted by a jury in 2003 of 10 offenses, including 6 "serious

violent offenses" for sentencing purposes under the SRA. RCW 9.94A.030(45).

He received an aggregate sentence of 1,225.5 months, the result of an increased

offender score and consecutive sentences in accordance with RCW

9.94A.589(1)(b), in addition to several firearm enhancements.

The Court of Appeals affirmed the original judgment and sentence, but we

granted review and remanded to the Court of Appeals to reconsider the firearm

enhancements in light of State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913

(2010). State v. Graham, 169 Wn.2d 1005, 234 P.3d 210 (2010). On

reconsideration, the Court of Appeals vacated Graham's sentence and remanded

for resentencing. State v. Graham, noted at 163 Wn. App. 1011 (20 11 ), review

denied, 173 Wn.2d 1011 (2012).

At resentencing Graham asked for an exceptional sentence downward of 25

years. He argued RCW 9.94A.535(1)(g)-the "multiple offense policy" mitigating

factor-permitted both a departure from the standard range and imposition of

concurrent sentences. The original sentencing judge expressed regret at the

presumptive sentencing range for Graham's serious violent offenses. The judge

stated on the record that there was no authority to impose an exceptional sentence:

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State v. Graham, No. 89869-3

And quite frankly, in my mind [the presumptive sentence is] an awful
lot of time for this ....
. . . I don't agree with this sentence. I don't agree with it. I'm
not suggesting that you don't deserve a punishment. ... But without
some other mitigating circumstance, my hands are tied. Again, I don't
write the laws; the legislature writes the laws. And this type of a
scenario was something that was anticipated by the law-writers when
they wrote the law. So I don't believe that I have a choice but to
sentence you within the standard sentence range. It is going to be a
low-end sentence, however.

Verbatim Report of Proceedings at 28-29. The judge imposed a sentence at the

low end of the standard range for each serious violent offense to run consecutively,

for a total sentence of 82.1 years. Graham again appealed his sentence, and the

Court of Appeals affirmed. State v. Graham, 178 Wn. App. 580, 314 P.3d 1148

(2013). We granted review to determine whether RCW 9.94A.535(1)(g) permits

exceptional sentences for multiple serious violent offenses scored under RCW

9.94A.589(1)(b). State v. Graham, 180 Wn.2d 1013, 327 P.3d 55 (2014).

ANALYSIS

As with all statutes, we interpret the SRA de novo to discern and implement

the legislature's intent. State v. Jones, 172 Wn.2d 236,242,257 P.3d 616 (2011).

We look first to the plain language, which, if unambiguous, ends the inquiry. State

v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). We enforce the plain

meaning of statutes. If there is no plain meaning and the language is ambiguous,

we may glean the statute's intent from its legislative history. Id. at 110-11.

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State v. Graham, No. 89869-3

A

Under the SRA, a sentencing court generally must impose a sentence within

the standard sentencing range. RCW 9.94A.505(2)(a)(i). However, the SRA

authorizes a departure from the standard range in some circumstances. See RCW

9.94A.535. Specifically, .535(1) lists mitigating circumstances that a court might

rely upon depending on the facts of the particular case. The one at issue here is

.535(1)(g):

The court may impose an exceptional sentence below the standard
range if it finds that mitigating circumstances are established by a
preponderance of the evidence. The following are illustrative only and
are not intended to be exclusive reasons for exceptional sentences.

. . . 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 ofthis chapter, as expressed in RCW 9.94A.Ol0.

The "multiple offense policy ofRCW 9.94A.589" that .535(l)(g) references

contains five subsections. Those relevant in this case are subsections (l)(a) and

(1 )(b), which advise sentencing courts when sentences for multiple current

offenses are presumed to run concurrent or consecutive to one another.

The State argues "the multiple offense policy ofRCW 9.94A.589" does not

include multiple serious violent offenses under .589(l)(b) because its sole purpose

"is to permit consecutive sentences in an otherwise concurrent mandate." Suppl.

Br. at 5. The State contends the legislature intended to foreclose exceptional

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State v. Graham, No. 89869-3

sentences for serious violent offenses. So we must decide if .535(1)(g) applies

equally to subsections (l)(a) and (l)(b) of .589.

B

We need look only to .535(1)(g)'s plain meaning to conclude the legislature

considered exceptional sentences possible for some serious violent offenses. There

is no textual support for the State's position that the phrase "multiple offense

policy," as it appears in .535(1 )(g), refers only to multiple violent and nonviolent

offenses and not to multiple serious violent offenses. The State does not explain

why .535(1)(g)'s broad reference to "RCW 9.94A.589" means only subsection

(l)(a). All five subsections in .589 deal with sentencing multiple offenses. The

legislature knows how to cite specific subsections and twice cited subsection

.589(1)(a) specifically, including within the SRA. See RCW 61.34.030; RCW

9.94A.525(5)(a)(i). The legislature also separately identified subsections .589(1)

and (2) elsewhere in the text of .535, implying its failure to separately identify

subsections .589(1)(a) and (b) was a deliberate policy choice. RCW 9.94A.535.

We found the plain text of .535 dispositive in In re Personal Restraint of

Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). There the defendant sought

concurrent sentences for six counts of first degree assault, a serious violent offense

under the SRA. The State similarly argued .535(1)(g) did not apply because

.589(1 )(b) mandated consecutive sentences for all serious violent offenses. Id. at

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State v. Graham, No. 89869-3

328-29. We unanimously concluded the sentencing judge could rely on .535(1)(g)

to impose concurrent sentences:

[T]he State's argument fails because it pays too little heed to the plain
language of RCW 9.94A.535. . . . Because [.535(1)(g)] does not
differentiate between subsections (l)(a) and (l)(b) [of .589], it can be
said that a plain reading of the statute leads inescapably to a conclusion
that exceptional sentences may be imposed under either subsection of
RCW 9.94A.589(1).

!d. at 329-30. Mulholland is controlling, and this case does not provide a factual or

legal basis to reject or depart from our prior interpretation of .535.

We find additional support for our holding elsewhere in the SRA. Unlike

sentences for other crimes, the legislature has not expressly revoked discretion to

impose exceptional sentences for serious violent offenses. For example,

exceptional sentences downward are not available for persistent offenders, offenses

with mandatory minimums, or some sex offenses. See RCW 9.94A.507(3)(c)(ii),

.540(1), .570. Sentencing enhancements, the lengths ofwhich the sentencing judge

cannot modify, also increase some sentences even if facts permit a departure from

the standard range for the underlying offense. RCW 9.94A.533. No similar

provisions bar exceptional sentences for serious violent offenses scored under

.589(1)(b).

The only rationale offered by the State and the unpublished cases cited by

the Court of Appeals is the legislature's intent that serious violent offenses carry

more severe punishment than other crimes. These authorities often rely on a single

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State v. Graham, No. 89869-3

sentence in Professor David Boerner's seminal treatise. DAVID BOERNER,

SENTENCING IN WASHINGTON§ 9.12(e) at 9-32 (1985). But ifProfessor Boerner's

comments on the subject are read in context, he suggests only that the legislature

constructed the SRA to signal exceptional sentences for multiple offenses "ought

to be rare." !d. This is accomplished not by prohibiting exceptional sentences for

multiple serious violent offenses altogether, but by limiting them for presumptive

range sentences that are "clearly excessive," RCW 9.94A.535(1)(g), and where the

exceptional sentence is supported by "substantial and compelling reasons." RCW

9.94A.535. These constrictions refute the State's admonition that Mulholland has

stripped .589(l)(b) of practical effect or that we risk returning to the pre-SRA era

of disparate sentencing.

We take this opportunity to reaffirm that a sentencing judge may invoke

.535(1)(g) to impose exceptional sentences both for multiple violent and

nonviolent offenses scored under .589(l)(a) and for multiple serious violent

offenses under .589(1)(b).

c
The State challenges our holding in Mulholland in two ways. First, it argues

we erred in Mulholland by creating a rule contrary to the legislature's intent. But

we simply construed the unambiguous language of .535(1 )(g), which is the best

evidence of legislative intent. And the legislature has indicated its approval of our

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State v. Graham, No. 89869-3

interpretation by not amending .535 in the seven years since our decision.

Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778,

789,719 P.2d 531 (1986).

Second, the State suggests Mulholland allows only exceptional concurrent

sentences for serious violent offenses and does not permit downward departures

from the standard sentencing range. Our case law compels a different conclusion.

In State v. Batista, 116 Wn.2d 777, 784-85, 808 P.2d 1141 (1991), we considered

the scope of former RCW 9.94A.390(2)(f) (1988), which allowed upward

departures when "the multiple sentencing policy ofRCW 9.94A.[589] results in a

presumptive sentence that is clearly too lenient in light of the purpose of [the

SRA]." We held the sentencing judge could use this aggravator to impose two

types of exceptional sentences for offenses scored using .589(1 )(a). "If a

presumptive sentence is clearly too lenient, this problem could be remedied either

by lengthening concurrent sentences, or by imposing consecutive sentences." !d. at

785-86.

The form of current .535(1)(g) mirrors the language of former RCW

9.94A.390(2)(f) at issue in Batista. Both cure the same sentencing concern. The

legislature "adopted [these] parallel" provisions to address "the potential that its

multiple offense policy could operate to produce presumptive sentence ranges

inconsistent with the purposes ofthe [SRA]." BOERNER, supra§ 9.12(e), at 9-31

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State v. Graham, No. 89869-3

(footnote omitted). Following Batista's rationale, we hold .535(1)(g) empowers a

sentencing judge to reduce a "clearly excessive" sentence by lessening sentences

for the offenses and/or by imposing concurrent sentences.

The State offers no persuasive policy reason to limit .535(1 )(g) to imposing

concurrent standard range sentences for serious violent offenses. The legislature

recognized it could not craft a standard range that could account for all factual

variations underlying offenses and offenders. It adopted .535 as a safety valve.

State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986). Since concurrent

sentences are sometimes necessary to remedy injustices caused by the mechanical

application of grids and ranges, as we recognized in Mulholland, there is no reason

why downward departures from the standard range cannot accomplish the same

goal.

D

Finally, Graham asks us to clarify the factual finding a sentencing judge

must make to invoke the multiple offense policy mitigating factor of .535(1)(g).

We decline to do so because we think the statute is also clear on that point. It

directs the judge to consider if the presumptive sentence "is clearly excessive in

light of the purpose of this chapter, as expressed in RCW 9.94A.OJO." RCW

9.94A.535(1)(g) (emphasis added). RCW 9.94A.010 lists seven policy goals the

legislature intends the SRA to advance:

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State v. Graham, No. 89869-3

( 1) Ensure that the punishment for a criminal offense is
proportionate to the seriousness of the offense and the offender's
criminal history;
(2) Promote respect for the law by providing punishment which
is just;
(3) Be commensurate with the punishment imposed on others
committing similar offenses;
( 4) Protect the public;
( 5) Offer the offender an opportunity to improve himself or
herself;
(6) Make frugal use of the state's and local governments'
resources; and
(7) Reduce the risk of reoffending by offenders in the
community.

Sentencing judges should examine each of these policies when imposing an

exceptional sentence under .535(1 )(g).

CONCLUSION

We hold RCW 9.94A.535(1)(g) allows an exceptional sentence for multiple

current serious violent offenses scored under RCW 9.94A.589(1)(b) that is

achieved by departing downward from the standard ranges for the offenses and/or

by running sentences concurrently. We reverse the Court of Appeals and remand

for resentencing consistent with this opinion. We take no position on whether

Graham's sentence is "clearly excessive" under .535(1)(g) or on the virtues ofhis

25-year sentence recommendation, as those issues are properly left for the

sentencing judge.

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State v. Graham, No. 89869-3

WE CONCUR:

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