(dissenting) — I dissent. Although I agree a sentence above the standard range is appropriate in light of the aggravated facts of the crime, in my view, the record does not support the 900-month sentence imposed without explanation or justification. The case should be remanded for resentencing.
The duration of an exceptional sentence is reviewed under the abuse of discretion standard to determine whether it is clearly excessive.5 Such a standard need not preclude effective review. The proper exercise of discretion in imposing this sentence requires a comparison with the facts and duration of other sentences for the same crime; in short, a proportionality analysis.6 The current review of the duration of an exceptional sentence as expressed in the majority opinion is so deferential that it is effectively no review at all but *223merely a rubber stamp approval.7 Such a procedure is contrary to the philosophy of the Sentencing Reform Act of 1981 (SRA), fails to provide equal protection to similarly situated defendants, and needs connection.
The abuse of discretion standard of review is applied to a wide variety of trial court rulings.8 The generality of the term obscures the fact that some decisions are scrutinized much more closely than others. A trial court must make decisions in the course of a trial for which there is no absolutely right answer and which, individually, have a very small impact on the conduct of a trial. Thus, rulings on continuances, the scope of cross examination and the like are reviewed for reasonableness, and on appeal great deference is given to the trial judge's ruling and a case will not be reversed unless a serious error is made. If appellate courts reversed every time they found such rulings questionáble, the system would be overwhelmed with retrials at great prejudice and expense to the parties and to the public.
Other decisions may have a much greater impact upon the outcome of a trial. Such rulings are subjected to more strin*224gent scrutiny. Thus, for instance, a decision to admit expert testimony, evidence of prior bad acts, or a defendant's prior convictions, is structured by court rule and case law. On review, an appellate court will more readily find an abuse of discretion if a trial court has failed to consider the required factors in making its decision.9 Despite the undesirable consequences, a new trial will be ordered if the erroneous decision, even though an exercise of discretion, was critical to the decision in the case.
A trial court's determination of the length of an exceptional sentence may be the most significant exercise of discretion in the entire trial for a criminal defendant. Exceptional sentences are relatively rare.10 Few, appeals focus on the propriety of the length of the sentence. Remand, if necessary, would normally not require additional testimony but merely argument by counsel and further consideration by the trial court. The vital importance to the defendant of the duration of a sentence, and the very modest burden on the system a remand would occasion, require the highest degree of scrutiny. An award of attorney fees is given more searching and careful review than the length of an exceptional sentence.11
The top of the standard range for Scott was 320 months. The court imposed a 900-month (75-year) sentence on a 17-*225year-old defendant, very likely, although not certainly, a life sentence.12 Yet, the trial court gave no reason or explanation for the length of the sentence nor any suggestion of why 440 months (top of the standard range plus 10 years), 560 months (top of the standard range plus 20 years) or 640 months (double the top of the standard range) would not be fair and proportional punishment for the crime. In my view, the failure to offer any reasoning or explanation is an egregious abuse of discretion requiring remand.
Abuse of discretion may be found when discretion is not exercised. State v. Pettitt, 93 Wn.2d 288, 296, 609 P.2d 1364 (1980). Although we review the court's decision for abuse of discretion, [State v.] Oxborrow, [106 Wn.2d 525,] at 530 [723 P.2d 1123 (1986)], the term of the exceptional sentence must nevertheless have some tenable basis in the record. It is difficult to determine from this record any reason for the sentencing court imposing the maximum term: In the absence of reasons, the present record gives the appearance the trial court failed to exercise any discretion at all. "[T]he length of an exceptional sentence cannot come out of thin air." State v. Wood, 42 Wn. App. 78, 84, 709 P.2d 1209 (1985), review denied, 105 Wn.2d 1010 (1986).
State v. Pryor, 56 Wn. App. 107, 123, 782 P.2d 1076 (1989), aff’d, 115 Wn.2d 445, 799 P.2d 244 (1990).
When making many routine discretionary decisions as, for example, the admission of a prior conviction pursuant to ER 609, the trial court is required to place its reasons on the record.13 Yet the majority is untroubled by the failure of the trial court to explain its reasons in this much more serious and weighty decision. It merely says, "[t]he rational basis for the length of the sentence can be implicit in the record." Majority, at 221. To me, this suggests that this court is acting as a sentencing court and not a reviewing court.14 *226Clearly, the majority would also approve a sentence of 640 months, yet the record would be the same. If the same record would justify both a sentence of 640 months and a sentence of 900 months, to me, it is plain that the record alone does not contain a "rational basis". Basic notions of justice require and, indeed, the philosophy of the SR A mandates, some rational explanation for the selection of a sentence of 75 years for the 17-year-old defendant, 21 years longer than a sentence of double the maximum of the standard range and very possibly a life sentence.
How is this to be done? Aggravating factors standing in isolation simply cannot themselves give the answer. In this case, the trial court should have compared the facts of this crime with the facts of at least some of the other cases in which exceptional sentences were imposed for murder in the first degree.15
*227A consideration of such cases would assist the trial court in its heavy responsibility of exercising discretion when the defendant faces the possibility of many years in prison. Consideration would substitute an informed judgment for a gut reaction. Such a process would also permit meaningful appellate review by focusing on the comparison of factual situations to assess whether the trial court's result was an abuse of discretion. To rationally decide whether a sentence is "excessive", there must be a standard. Analogous sentences furnish that standard and should be considered by this court. It is important to note that this does not assume that any of the sentences to which a comparison is made are necessarily ideal or the only sentences that would be approved on appeal. However, the sentences represent the considered judgment of another trial judge dealing with the same class of crime and imposing an exceptional sentence, and the judgment of an appellate court, albeit under an excessively deferential standard; that the sentence is not excessive. Such comparison would engender a comparison of the aggravating factors enumerated, and beyond that to consideration of the facts which make the same crime more or less reprehensible.
Unless appellate courts go beyond the perfunctory statement that "we are unable to say no reasonable judge would impose such a sentence"16 and actually discuss the various aggravating elements of real cases, we will never develop the common law of sentencing that was contemplated by the SRA.
Professor Boemer in the leading treatise on the SRA in Washington recognized:
The Legislature realized the impossibility of establishing statutory limitations for cases in which, by definition, substantial and compelling differences from the norm exist, and relied instead on judicial review to insure that the necessary discretion granted to sentencing-judges to respond to the individual special case not result in unjustified disparity, case-to-case and court-to-court.
*228(Italics mine.) D. Boerner, Sentencing in Washington § 9.33, at 9-72 (1985). He goes on to suggest essentially the approach I believe is required; namely, a proportionality analysis derived by analogy from the analysis required when a death sentence is imposed. See RCW 10.95.130; see also Coker v. Georgia, 433 U.S. 584, 592, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977) (using a proportionality analysis, a sentence of death was held to be "grossly disproportionate and excessive punishment for the crime of rape"). Professor Boerner notes that while a proportionality analysis is most frequently utilized to review death sentences, such analysis has also been used to review sentences in noncapital cases.17 Such analysis is essential to this sentence:
[A]s a practical matter, an exceptional sentence of no more than twice the length of the presumptive sentence will on appellate review be less likely to be held to constitute an abuse of discretion than one which probes the outermost limits of the statutory maximum.
State v. Oxborrow, 106 Wn.2d at 538-39 (Andersen, J., concurring.) This 75-year sentence probes the outermost limits of the statutory maximum of life.
The Supreme Court's discussion in State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980) supports the use of a proportionality analysis:
In recent years, the proportionality doctrine has been expanded in noncapital cases to help courts decide whether sentences of ordinary imprisonment are commensurate with the crimes for which such sentences are imposed. While not expressly adopted by the judiciary in Washington, the principle is implied in some of our cases. Moreover, the legislature has recognized the principle in its most recent version of the criminal code, RCW Title 9A:
(1) The general purposes of the provisions governing the definition of offenses are:
(d) To differentiate on reasonable grounds between serious and minor offenses, and to prescribe proportionate penalties for each.
RCW 9A.04.020(l)(d).
*229As the State points out, the application of proportionality standards to a specific set of facts is not an easy undertaking. Proportionality is an illusive concept which has developed gradually in response to society's changes. As the United States Supreme Court has said in reference to the Eighth Amendment, its scope is not static; rather, it "must draw its meaning from the evolving standards of decency that mark the progress of a. maturing society." Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958).
In attempting to employ proportionality analysis, courts have sought to use objective standards to minimize the possibility that the merely personal preferences of judges will decide the outcome of each case.
We have previously indicated that the standards enunciated in Hart [v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 938, 39 L. Ed. 2d 495, 94 S. Ct. 1454 (1974)] may be useful in analyzing a claim of cruel punishment. In Hart, the court considered four factors to determine whether a life sentence was disproportionate to the underlying offenses in a habitual criminal case. The factors were: (1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment defendant would have received in other jurisdictions for the same offense; and (4) the punishment meted out for other offenses in the same jurisdiction. Hart, at 140-43. Subjected to that analysis, the court found the sentence of life imprisonment "wholly disproportionate to the nature of the offenses he committed, . . ."[.] Hart, at 143.
(Footnote and citations omitted.) State v. Fain, 94 Wn.2d at 396-97.18
Justice Cardozo's famous statement as to judicial discretion applies with particular force to discretion in fixing the length of an exceptional sentence:
*230The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains.
(Footnote omitted.) Cardozo, The Nature of the Judicial Process, Yale University Press 141 (1921).
(Italics mine.) Rehak v. Rehak, 1 Wn. App. 963, 965, 465 P.2d 687 (1970) (quoting State v. Potts, 1 Wn. App. 614, 620, 464 P.2d 742 (1969)).
I am firmly convinced that the present review of the duration of exceptional sentences constitutes an abdication of the appellate court's statutory responsibility to review the duration of an exceptional sentence to determine whether it is "excessive".
APPENDIX
The classic statement of the standard of review of discretionary rulings is:
where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The majority, however, also relies on a test that finds a sentence to constitute an abuse of discretion " 'if no reasonable person would impose it". Majority, at 219 (quoting State v. Creekmore, 55 Wn. App. 852, 863, 783 P.2d 1068 (1989), review denied, 114 Wn.2d 1020 (1990)). I cannot fault the majority because the use of this phrase has been sanctioned by the Supreme Court. See, e.g., State v. Nelson, 108 Wn.2d 491, 740 P.2d 835 (1987); State v. Pascal, 108 Wn.2d 125, 736 P.2d 1065 (1987); State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986). Nonetheless I would urge that it be abandoned.
The issue is not whether the judge is unreasonable, but whether the decision is unreasonable. Trial judges have frequently been reversed for their exercise of discretion by the Washington appellate courts and I do *231not believe that all of such judges were unreasonable. Yet, if the test is correct, the judge must be "unreasonable". One need not be an unreasonable judge to err in exercising discretion in imposing a sentence. This formula makes an already deferential "abuse of discretion" standard even more deferential because reversal labels the judge making the decision an unreasonable person.
The phrase has come into sentencing law, as far as I can ascertain, without examination or analysis. The history appears to be as follows: In Delno v. Market St. Ry., 124 F.2d 965 (9th Cir. 1942) the court found no abuse of discretion in the trial court's dismissal of a petition for a declaratory judgment. In the course of the decision the following language was used: "[discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court." Delno, at 967. There is no analysis of the phrase nor any citation of authority. The phrase entered Washington jurisprudence in Rehak v. Rehak, 1 Wn. App. 963, 465 P.2d 687 (1970), where the court quoted from Delno in upholding a trial court's property award as not constituting abuse of discretion. The phrase entered Washington criminal law in State v. Hurst, 5 Wn. App. 146, 148, 486 P.2d 1136 (1971) (citing Rehak, at 965), where the court made the following statement:
We have stressed the necessity for the record to reveal a basis for the exercise of the discretionary determination and have indicated where this basis is present, we will hold that discretion is abused only where it can be said no reasonable man would take the view adopted by the trial court.
The phrase is repeated in State v. Harris, 10 Wn. App. 509, 513, 518 P.2d 237 (citing Hurst, 5 Wn. App. at 148), review denied, 83 Wn.2d 1013 (1974). In defining "clearly excessive", the court in State v. Strong, 23 Wn. App. 789, 599 P.2d 20 (1979) cited the classic statement of the abuse of discretion standard set forth in State ex rel. Carroll v. Junker, 79 Wn.2d at 26, but added the phrase "or an action that no reasonable person would have taken" to the definition. Strong, 23 Wn. App. at 794 (citing Harris).
Finally, the court in State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986) quoted the following language from State v. Strong, 23 Wn. App. at 794.
The term "clearly excessive" is not defined in the Juvenile Justice Act of 1977 and, therefore, must be given its plain and ordinary meaning. Action is excessive if it "goes beyond the usual, reasonable, or lawful limit." Thus, for action to be clearly excessive, it must be shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.
The court in State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986) repeated this language and cited Oxborrow. State v. Pascal, 108 Wn.2d *232125, 736 P.2d 1065 (1987) repeated the phrase and cited Armstrong. State v. Nelson, 108 Wn.2d 491, 740 P.2d 835 (1987), used the phrase, this time citing to Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 599 P.2d 1289 (1979). Averbeck was reviewing the court's vacation of an order of default and cited to Morgan v. Burks, 17 Wn. App. 193, 563 P.2d 1260 (1977). Burks cites State v. Batten, 16 Wn. App. 313, 556 P.2d 551 (1976). Batten quotes State ex rel. Carroll v. Junker, supra, but then adds the "no reasonable man" standard to the definition of abuse of discretion, citing State v. Birdwell, 6 Wn. App. 284, 299, 492 P.2d 249, review denied, 80 Wn.2d 1009, cert. denied, 490 U.S. 973 (1972). Batten, 16 Wn. App. at 314. Birdwell cites to Hurst. So the phrase both as used in Oxborrow and as independently used in Nelson can, based on the cited authorities, be traced back through Hurst to Delno. I think this pedigree is less than compelling.
Although repeated many times, as far as I can ascertain, no Washington court has examined the desirability of the standard or considered whether, even if it were appropriate in civil cases, from whence it came, it should apply in reviewing the duration of an exceptional sentence in criminal cases.
In my view, the State ex rel. Carroll v. Junker, supra, test is an appropriate standard for reviewing discretionary rulings, and it would be desirable to eliminate the "no reasonable person" alternative formulation.
Review granted at 124 Wn.2d 1001 (1994).
State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986); State v. Armstrong, 106 Wn.2d 547, 551-52, 723 P.2d 1111 (1986); State v. George, 67 Wn. App. 217, 227, 834 P.2d 664 (1992), review denied, 120 Wn.2d 1023 (1993).
I continue to believe this is an inappropriate standard for the reasons stated in my concurring opinion in State v. Creekmore, 55 Wn. App. 852, 873, 783 P.2d 1068 (1989) (Forrest, J., concurring), review denied, 114 Wn.2d 1020 (1990), and for the reasons forcefully articulated by Justice Goodloe in his dissent in State v. Armstrong, supra.
State v. Solberg, 122 Wn.2d 688, 861 P.2d 460 (1993) was published just as this dissent was being placed in circulation. Solberg rejected a proportionality analysis evaluating the grounds for an exceptional sentence in a drug case. This holding does not preclude utilizing a proportionality analysis in examining the duration of a very long exceptional sentence to determine whether it is exces*223sive. Chief Justice Andersen, the author of Solberg, has previously recognized that such sentences merit special attention.
[A]s a practical matter, an exceptional sentence of no more than twice the length of the presumptive sentence will on appellate review be less likely to be held to constitute an abuse of discretion than one which probes the outermost limits of the statutory maximum.
State v. Oxborrow, 106 Wn.2d at 538-39 (Andersen, C.J., concurring).
As Justice Goodloe accurately predicted in 1986, under this deferential standard of review an appellate court will "rarely, if ever," overturn an exceptional sentence because of its length. State v. Armstrong, 106 Wn.2d at 553 (Goodloe, J., dissenting). In the ensuing 7 years, between 300 and 400 exceptional sentences have been imposed per year, but we find only three reversals for duration. State v. Elsberry, 69 Wn. App. 793, 850 P.2d 590 (1993); State v. Delarosa-Flores, 59 Wn. App. 514, 799 P.2d 736 (1990), review denied, 116 Wn.2d 1010 (1991); State v. Pryor, 56 Wn. App. 107, 782 P.2d 1076 (1989), aff'd, 115 Wn.2d 445, 799 P.2d 244 (1990).
Such rulings include: vacating defaults, setting limits on cross examination, ruling on various evidentiary matters, imposing sanctions for discovery violations under CR 37, determining the amount of attorney fees under various statutory provisions and CR 11, granting or denying new trials, and giving jury instructions.
To structure the trial court's exercise of discretion, appellate courts have formulated guidelines. See, e.g., State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984) (factors to determine reliability of hearsay statements of child victims of sexual abuse); State v. Holland, 98 Wn.2d 507, 656 P.2d 1056 (1983) (factors to consider when determining whether to waive juvenile jurisdiction); State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980) (factors to weigh in determining admissibility of prior convictions under ER 609); State v. Kendrick, 47 Wn. App. 620, 736 P.2d 1079 (factors to determine whether danger of unfair prejudice substantially outweighs probative value of evidence), review denied, 108 Wn.2d 1024 (1987).
For example, in 1992, a total of 16,554 felony sentences were imposed but only 372 of these were above the standard range. See Washington Sentencing Guidelines Comm'n, A Statistical Summary of Adult Felony Sentencing table 10 (1992).
See, e.g., Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 859 P.2d 1210 (1993); Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 675 P.2d 193 (1983).
At age 18, when Scott was sentenced, his life expectancy was 54.18 years. 6 Wash. Prac. app. B (1989).
State v. Fowler, 114 Wn.2d 59, 68, 785 P.2d 808 (1990).
Although under a different standard of review, this court's examination of the record might be appropriate, such action is inconsistent with the standard that the court is applying. Such a procedure in reviewing an exceptional sen*226tence was unequivocally rejected in State v. Hobbs, 60 Wn. App. 19, 26, 801 P.2d 1028 (1990), review denied, 116 Wn.2d 1022 (1991):
The imposition of an exceptional sentence is a decision for the sentencing court to make "in the exercise of its discretion . . .". (Italics ours.) ROW 9.94A-.390. We do not have the discretion to decide that an exceptional sentence should be sustained because we have noted facts in the record which might have supported the sentence, but which the trial court did not rely on at all. Thus, we do not consider Hobbs' alternative theory.
(Footnote omitted.)
In State v. Harmon, 50 Wn. App. 755, 750 P.2d 664, review denied, 110 Wn.2d 1033 (1988), the court upheld an exceptional sentence of 648 months. The defendant bragged he had cut the victim's neck at least three times and that he was " 'jumping around like a chicken with his head cut off — running around the house and trying to hold onto his throat'". Harmon, 50 Wn. App. at 756. After the victim collapsed, the defendant waited and slit his throat again, then waited for an hour until the body stopped twitching and then cut his throat yet again. In State v. Russell, 69 Wn. App. 237, 848 P.2d 743, review denied, 122 Wn.2d 1003 (1993), the court held an 828-month sentence for homicide by abuse, which the court stated is equal in seriousness to first degree murder, was not clearly excessive. The standard range was 250 to 333 months. In State v. Smith, 64 Wn. App. 620, 825 P.2d 741 (1992), the court-upheld a 500-month exceptional sentence but did not address the clearly excessive issue. In State v. Stuhr, 58 Wn. App. 660, 794 P.2d 1297 (1990), review denied, 116 Wn.2d 1005 (1991), the court upheld a 425-month sentence for first degree murder where the standard range was 250 to 333 months, but did not address the clearly excessive issue.
I attach as an appendix my objections to the majority's repetition as part of the test for an excessive sentence the phrase "no reasonable person would impose". Majority, at 219.
D. Boerner, Sentencing in Washington § 9.22, at 9-62 (1985).
Although made in considering the legality of a death sentence for juveniles, the following statement by Justice Utter is equally applicable to this juvenile's 75-year sentence:
"To make this determination, we must compare the facts and circumstances of Furman’s crime with those of others who have committed aggravated first degree murder while still juveniles. This involves taking into account the presence or absence of aggravating factors. See [State v.] Lord, 117 Wn.2d [829,] 940[, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 113 S. Ct. 164 (1992)] (citing [In re] Jeffries II, 114 Wn.2d [485, 789 P.2d 731 (1990)] at 490). Yet we must do more than compare numbers of victims or aggravating circumstances. We must engage in a 'careful examination of the circumstances of the crimes and the defendants' personal characteristics. Jeffries II, 114 Wn.2d at 490 (citing State v. Rupe, 108 Wn.2d 734, 768-70, 743 P.2d 210 (1987), cert. denied, 486 U.S. *2301061 (1988)); State v. Rice, 110 Wn.2d 577, 625-28, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989)." State v. Furman, 122 Wn.2d 440, 462, 858 P.2d 1092 (1993) (Utter, J., concurring).