State v. McFarland

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/
.IP"l~l:E ~-
;;. CLEIIKI OFFICE . This opinion was filed for record
11J11BE C0URt l1l'TE OF WASHINGTON
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DATE AUG O3 2~
CHlliF JUSTICE ~~~. SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
NO. 92947-5
Respondent,

v.
ENBANC
CECILY ZORADA I\1cFARLAND,

Petitioner.
Filed AUG O3 2917

STEPHENS, J.-A jury convicted Cecily Zorada McFarland of first degree

burglary, 10 counts of theft of a firearm, and 3 counts of unlawful possession of a

firearm. The trial court imposed standard range sentences on each count and, relying

on RCW 9.41.040(6) and 9.94A.589(l)(c), ordered thatthe firearm-related sentences

be served concurrently as to the burglary sentence but consecutively as to each other.

This resulted in a total sentence of 237 months (19 years, 9 months).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. McFarland (Cecily Zorada), 92947-5

McFarland appealed, arguing for the first time that the sentencing court erred

by failing to recognize its discretion to impose an exceptional mitigated sentence by

running the firearm-related sentences concurrently based on the rationale of In re

Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). The Court of

Appeals refused to consider this issue, noting that the sentencing judge "cannot have

erred for failing to do something he was never asked to do." State v. McFarland,

No. 32873-2-III, slip op. at 16 (Wash. Ct. App. Mar. 8, 2016) (unpublished),

http://www.courts.wa.gov/opinions/pdf/328732.unp.pdf. The court also rejected

McFarland's claim of ineffective assistance of defense counsel due to "the lack of

any history of other counsel successfully making a similar argument." Id. at 18.

Today, we answer the question the appeals court's opinion left unresolved.

We conclude that the statutory analysis supporting our decision in Mulholland,

which involved sentencing for multiple serious violent felonies under subsection

(l)(b) ofRCW 9.94A.589, applies equally to sentencing for multiple firearm-related

offenses under subsection (1 )( c). We remand for resentencing to allow the trial court

the opportunity to consider whether to impose a mitigated sentence by running

McFarland's 13 firearm-related sentences concurrently.

FACTS AND PROCEDURAL HISTORY

McFarland and her boyfriend stole firearms, ammunition, checkbooks,

alcohol, and electronics from the home of Fred and Loretta Legault while Loretta

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State v. McFarland (Cecily Zorada), 92947-5

was not home and Fred was sleeping. The Legaults are the parents of McFarland's

former boyfriend, and McFarland became a prime suspect after she texted her former

boyfriend during the burglary to tell him she was in his mother's house. At trial, a

jury convicted McFarland as charged of first degree burglary as an accomplice, 10

counts of theft of a firearm as an accomplice, and 3 counts of second degree unlawful

possession of a firearm. 1

At sentencing, the State contended that the sentences for all of McFarland's

firearm-related convictions must run consecutively to each other pursuant to RCW

9.41.040(6) and 9.94A.589(1)(c). Defense counsel agreed with the State as to

running the firearm-related sentences consecutively, but requested sentences at the

bottom of the standard range. Defense counsel expressed concern about the overall

sentence length, noting that "if [McFarland] had been found guilty of stealing

toasters instead of firearms she'd be looking at a range of nine to twelve months'

confinement, versus 237 months['] to 306 months['] confinement. So, -- there's a

certain degree of -- lack of proportionality in the -- in the punishment based on the

consecutive sentences that are required by the legislature." Verbatim Tr. of

Proceedings (VTP) (Oct. 27, 2014) at 23-24. The trial judge responded, "237

months is -- just a little shy of 20 years, which is what people typically get for murder

1
A charge of trafficking in stolen property was dismissed. Verbatim Report of
Proceedings (Oct. 17, 2014) at 276.

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State v. McFarland (Cecily Zorada), 92947-5

in the second degree," and defense counsel commented, "I think that's a fairly apt

analogy." Id. at 24. Nonetheless, defense counsel did not request and the sentencing

court did not consider imposing an exceptional sentence downward by running the

firearm-related sentences concurrently. The court said, "I don't have -- apparently

[I] don't have much discretion, here. Given the fact that these charges are going to

be stacked one on top of another, I don't think -- I don't think [the] high end is called

for, here." Id. at 25. The court accepted defense counsel's recommendation to

impose sentences at the bottom of the standard range for each of the firearm-related

convictions and entered a total sentence of 237 months (19 years and 9 months). Id.

at 25-26.

McFarland appealed, contending the trial court erred by not running her

firearm-related sentences concurrently as an exceptional sentence on the mistaken

belief it could not do so. In the alternative, McFarland contended that trial counsel

was ineffective for failing to request concurrent sentencing as an exceptional

sentence. The Court of Appeals affirmed.

This court granted McFarland's petition for review. State v. McFarland, 186

Wn.2d 1001, 380 P.3d 438 (2016). 2

2
McFarland's petition for review raised a separate issue concerning the admission
of a body camera video taken at the time of her arrest. She subsequently moved to
withdraw that issue from consideration. The court has unanimously determined it is
appropriate to grant her motion, so that issue is not addressed in this opinion.

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State v. McFarland (Cecily Zorada), 92947-5

ANALYSIS

The Sentencing Reform Act of 1981 (SRA) is an attempt to "make the criminal

justice system accountable to the public by developing a system for the sentencing of

felony offenders." RCW 9.94A.010. Among its many objectives, the SRA seeks to

"[e]nsure that the punishment for a criminal offense is proportionate to the seriousness

of the offense and the offender's criminal history" and "commensurate with the

punishment imposed on others committing similar offenses." RCW 9.94A.010(1), (3).

The SRA operates to provide structure to sentencing, "but does not eliminate[]

discretionary decisions affecting [offender] sentences." RCW 9.94.010. Consistent

with the SRA, a court "may impose a sentence outside the standard sentence range for

an offense if it finds, considering the purpose of [the SRA], that there are substantial

and compelling reasons justifying an exceptional sentence." RCW 9.94A.535.

Multiple sentencing statutes apply to McFarland's firearm-related convictions.

Washington's firearms and dangerous weapons statute provides in relevant part that

"[n]otwithstanding any other law," if an offender is convicted of either unlawful

possession of a firearm in the first or second degree, or for the felony crime of theft

of a firearm, or both, "then the offender shall serve consecutive sentences for each

of the felony crimes of conviction." RCW 9.41.040(6). The multiple offense

subsection of the SRA provides in relevant part that if an offender is convicted under

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State v. McFarland (Cecily Zorada), 92947-5

R CW 9. 41. 040, " [t ]he offender shall serve consecutive sentences for each conviction

of the felony crimes listed in this subsection (1 )( c), and for each firearm unlawfully

possessed." RCW 9.94A.589(l)(c). From these statutes, lower courts have

concluded that the standard sentences for multiple firearm-related convictions must

be served consecutively. State v. McReynolds, 117 Wn. App. 309, 342-43, 71 P.3d

663 (2003) (noting that RCW 9.41.040(6) "clearly and unambiguously prohibits

concurrent sentences" for firearm-related crimes); State v. Murphy, 98 Wn. App. 42,

49,988 P.2d 1018 (1999).

In Mulholland, we recognized that "notwithstanding the language of [RCW

9.94A.589(l)(b)], a sentencing court may order that multiple sentences for serious

violent offenses run concurrently as an exceptional sentence if it finds there are

mitigating factors justifying such a sentence." 161 Wn.2d at 327-28 (emphasis

added). The question in this case is whether the rationale of Mulholland applies

equally to sentencing under RCW 9.94A.589(l)(c). For the reasons that follow, we

conclude it does.

I. RCW 9.94A.535 Authorizes Concurrent Sentencing as an Exceptional
Sentence for Multiple Firearm Convictions under RCW 9.94.589(l)(c)

This court in Mulholland recognized the authority of a sentencing court to

impose an exceptional downward sentence for serious violent offenses by running

presumptively consecutive sentences under RCW 9.94A.589(l)(b) concurrently

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State v. McFarland (Cecily Zorada), 92947-5

pursuant to RCW 9.94A.535. In the course of our analysis, we noted that section

.535 "does not differentiate between subsections (l)(a) and (l)(b) [of RCW

9.94A.589]." Mulholland, 161 Wn.2d at 329-30; see also State v. Graham, 181

Wn.2d 878, 884, 337 P.3d 319 (2014) (noting there is no "legal basis to reject or

depart from [this court's] prior interpretation" that RCW 9.94A.535 does not

differentiate between subsections (l)(a) and (l)(b) of RCW 9.94A.589). While

Mulholland involved serious violent offenses under 9.94A.589(1)(b) and not

firearm-related sentences under RCW 9.94A.589(l)(c), we find no statutory basis to

distinguish between the consecutive sentencing language in these two subsections.

Both are plainly encompassed within "the multiple offense policy of RCW

9.94A.589." RCW 9.94A.535(l)(g). There is no provision prohibiting exceptional

sentences for firearm-related convictions generally, and "[a] departure from the

standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be

served consecutively or concurrently is an exceptional sentence." RCW 9.94A.535;

see Graham, 181 Wn.2d at 884. There is thus nothing in the SRA precluding

concurrent exceptional sentences for firearm-related convictions.

We recognize that unlike serious violent offenses, firearm-related offenses are

also subject to RCW 9.41.040(6), which provides for consecutive sentencing

"[n]otwithstanding any other law." We must determine whether this difference

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State v. McFarland (Cecily Zorada), 92947-5

precludes extending the rationale of Mulholland. It is certainly possible to interpret

the "[n]otwithstanding any other law" language to allow only a reduced amount of

time on each count, rather than concurrent sentencing as an exceptional sentence.

McFarland, slip op. at 18. But, this would mean that instead of running multiple

sentences concurrently, a court could simply reduce the term for each consecutive

sentence and impose precisely the same term of total confinement, effectively

achieving a concurrent sentence in fact that was not allowed by law. Graham, 181

Wn.2d at 886. We must consult legislative history to resolve the ambiguity created

by such an apparently anomalous result. Id. at 882.

RCW 9.41.040(6) was originally enacted as part of the Hard Time for Armed

Crime Act, which the people brought to the legislature as an initiative in 1995. State

v. Broadaway, 133 Wn.2d 118, 124, 942 P.2d 363 (1997). Its relevant language has

not changed since that time. The title of the act states that its purpose is '"increasing

penalties for armed crimes."' Id. (quoting LAWS OF 1995, ch. 129). The findings

and intent are also all clearly aimed at singling out firearm-related offenses for

presumptively harsh penalties. LAWS OF 1995, ch. 129, § 1. There is no question

that the intent was to provide harsher standard range sentences, including

presumptively consecutive sentences, for firearm-related crimes. However, the act

does not preclude exceptional sentences downward.

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State v. McFarland (Cecily Zorada), 92947-5

The precursor to RCW 9.94A.589(1)(c) was first enacted in 1998, and its

language regarding consecutive sentencing has not changed. LAWS OF 1998, ch. 235,

§ 2(1)(c); State v. Haggin, 195 Wn. App. 315, 323, 381 P.3d 137 (2016). The

primary purpose was to reverse the holding in In re Post Sentencing Review of

Charles, 135 Wn.2d 239, 955 P.2d 798 (1998), ensuring that firearm-related

enhancements be served consecutively. State v. Conover, 183 Wn.2d 706, 714, 355

P.3d 1093 (2015). However, a clear effect of the enactment was to bring sentences

for firearm-related convictions within "the multiple offense policy of RCW

9.94A.589." RCW 9.94A.535(1)(g). Moreover, the legislature has not taken any

steps since Mulholland to restrict its holding to particular portions of RCW

9.94A.589(1), and its reasoning plainly encompasses both (l)(b) and (l)(c). Because

RCW 9.94A.589(1)(c) was enacted later and "[w]e presume the Legislature is aware

of its prior enactments and judicial construction of them," our interpretation ofRCW

9.94A.589(l)(c) controls. 3 State v. McCraw, 127 Wn.2d 281, 295, 898 P.2d 838

(1995) (Talmadge, J., dissenting) (citing Chandler v. Otto, 103 Wn.2d 268,274,693

P.2d 71 (1984)).

3
While the Court of Appeals has suggested that the enactment of RCW
9.94A.589(l)(c) did not change the consecutive sentencing provision in RCW 9.41.040(6),
McReynolds, 117 Wn. App. at 343 n.11, that case did not consider the possibility of
exceptional sentences, and it predated Mulholland.

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State v. McFarland (Cecily Zorada), 92947-5

Building on the logic of Mulholland, we hold that in a case in which standard

range consecutive sentencing for multiple firearm-related convictions "results in a

presumptive sentence that is clearly excessive in light of the purpose of [the SRA],"

a sentencing court has discretion to impose an exceptional, mitigated sentence by

imposing concurrent firearm-related sentences. RCW 9.94A.535(1)(g).

II. Resentencing Is Appropriate

McFarland seeks resentencing. She contends the trial court declined to

consider running her firearm-related sentences concurrently as an exceptional

sentence because it erroneously believed it could not do so. In the alternative, she

contends that trial counsel was ineffective for failing to request concurrent

exceptional sentencing. Following Mulholland, we conclude that McFarland should

be resentenced because the sentencing court erroneously believed it could not

impose concurrent sentences, and the record demonstrates that it might have done

so had it recognized its discretion under RCW 9.94A.535.

When a trial court is called on to make a discretionary sentencing decision, the

court must meaningfully consider the request in accordance with the applicable law.

State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). While no defendant

is entitled to challenge a sentence within the standard range, this rule does not preclude

a defendant from challenging on appeal the underlying legal determinations by which

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State v. McFarland (Cecily Zorada), 92947-5

the sentencing court reaches its decision; every defendant is entitled to have an

exceptional sentence actually considered. State v. Garcia-Martinez, 88 Wn. App. 322,

330, 944 P.2d 1104 (1997). A discretionary sentence within the standard range is

reviewable in "'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. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002)

(quoting Garcia-Martinez, 88 Wn. App. at 330). A trial court errs when "it refuses

categorically to impose an exceptional sentence below the standard range under any

circumstances" or when it operates under the "mistaken belief that it did not have the

discretion to impose a mitigated exceptional sentence for which [a defendant] may have

been eligible." Garcia-Martinez, 88 Wn. App. at 330; Mulholland, 161 Wn.2d at 333.

As noted above, the Court of Appeals determined that McFarland was not

entitled to resentencing unless she demonstrated ineffective assistance of trial counsel

to request a mitigated sentence pursuant to Mulholland. McFarland, slip op. at 17-18.

Rather than request a downward departure from the standard range as an exceptional

sentence, McFarland's counsel merely expressed concern for the harshness of the

punishment. He otherwise agreed with the State that the sentencing court was required

to impose consecutive sentences on the firearm-related charges, so the sentencing court

was never advised of its discretion to impose concurrent sentences as a mitigated

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State v. McFarland (Cecily Zorada), 92947-5

exceptional sentence. The Court of Appeals concluded that the sentencing court

committed no error given the arguments raised, and that defense counsel's performance

was not deficient "[i]n light of the lack of any history of other counsel successfully"

arguing to extend Mulholland to multiple :firearm-related offenses. Id. at 18.

What the Court of Appeals did not consider is the authority of an appellate court

to address arguments belatedly raised when necessary to produce a just resolution.

Proportionality and consistency in sentencing are central values of the SRA, and courts

should afford relief when it serves these values. 4 McFarland's situation is not so

different from that in Mulholland. The trial court in Mulholland imposed consecutive

sentences under RCW 9 .94A.589(1 )(b) without the benefit of any argument that it could

consider an exceptional sentence under RCW 9.94A.545. The sole argument raised by

defense counsel at sentencing was that the offenses at issue constituted the "' [sJame

criminal conduct."' Mulholland, 161 Wn.2d at 326 (alteration in original) (quoting

RCW 9.94A.589(l)(a)). The sentencing court properly rejected this argument but was

never advised of the argument-raised for the first time on appeal-that the multiple

offense policy of RCW 9.94A.535 authorized a discretionary exceptional sentence

4
Under RAP 2.5(a) appellate courts may entertain issues raised for the first time on
appeal in the interest of justice. See generally State v. Card, 48 Wn. App. 781, 784, 741 P.2d
65 (1987) (noting RAP 2.5(a) allow courts discretion to consider issues for the first time on
appeal "when fundamental justice so requires"); Greerv. Nw. Nat'! Ins. Co., 36 Wn. App. 330,
339, 674 P.2d 1257 (1984) (noting fundamental justice required review of a previously
unchallenged insurance clause to determine if it violated public policy).

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State v. McFarland (Cecily Zorada), 92947-5

created by running the serious violent offense terms concurrently. We entertained this

argument on appeal in part because of the central importance of ensuring

appropriate, consistent sentences. Mulholland, 161 Wn.2d at 332-33; see also

Grayson, 154 Wn.2d at 342 (holding that while not an abuse of discretion, the

sentencing judge's failure to exercise meaningful discretion by "categorically" refusing

to consider defendant's drug offender sentencing alternative request justified

resentencing). Indeed, our opinion in Mulholland recognized that an erroneous

sentence, imposed without due consideration of an authorized mitigated sentence,

constitutes a "fundamental defect" resulting in a miscarriage of justice. 161 Wn.2d

at 332. We remanded for resentencing because the record indicated "that it was a

possibility" the court would have imposed a mitigated sentence had it recognized its

discretion to do so. Id. at 334. The sentencing court had made "statements on the

record which indicated some openness toward an exceptional sentence." Id. at 333;

see also McGill, 112 Wn. App. at 100-01 (remanding for resentencing because the

trial court's comments indicated it may have considered an exceptional sentence if

it had known it could, and because the reviewing court was unsure the sentencing

court would have imposed the same sentence had it known an exceptional sentence

was available); State v. Bonisisio, 92 Wn. App. 783, 797, 964 P.2d 1222 (1998)

(remanding for resentencing because the record indicated the trial court likely would

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State v. McFarland (Cecily Zorada), 92947-5

have imposed a different sentence had it correctly interpreted a statute to allow

concurrent firearm enhancements), review denied, 137 Wn.2d 1024 (1999).

In McFarland's case, while the sentencing court's language did not indicate the

same level of sympathy or discomfort with the sentence as expressed by the court in

Mulholland, the court indicated some discomfort with his apparent lack of discretion

and even commented that McFarland's standard range sentence was equivalent to that

imposed for second degree murder. VTP (Oct. 27, 2014) at 24. As in Mulholland, the

record suggests at least the possibility that the sentencing court would have considered

imposing concurrent firearm-related sentences had it properly understood its discretion

to do so. Remand for resentencing is therefore warranted.

CONCLUSION

The reasoning of our decision in Mulholland extends to sentencing for firearm-

related offenses under RCW 9.94A.589(l)(c). We reverse the Court of Appeals, vacate

McFarland's sentence, and remand to the superior court for resentencing in

accordance with this opinion.

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State v. McFarland (Cecily Zorada), 92947-5

WE CONCUR:

,_.-.-"~

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State v. McFarland, No. 92947-5
Fairhurst, C.J. (dissenting)

No. 92947-5

FAIRHURST, C.J. (dissenting)-While I agree that the trial court was under

no obligation to raise the issue sua sponte, I disagree that if defense counsel had done

so here, the trial court had the discretion to impose exceptional concurrent sentences

to Cecily McFarland's convictions for the crimes of unlawful possession of a firearm

and theft of a firearm. 1 Therefore, I respectfully dissent.

ANALYSIS

Both the majority and Justice Yu's dissent conclude that the Sentencing

Reform Act of 1981, specifically RCW 9.94A.535, provides a trial court the

discretion to impose an exceptional concurrent sentence to convictions for the crimes

of unlawful possession of a firearm and theft of a firearm. Both rely on an extension

of our holding in In re Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d

677 (2007), to do so. Such an extension is misplaced. The plain language of RCW

1
But I express no opinion on whether consecutive sentences must be imposed for all counts
of unlawful possession of a firearm and theft of a firearm. RCW 9.41.040(6) could be read to
indicate that this is not required.
1
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State v. McFarland, No. 92947-5
Fairhurst, C.J. (dissenting)

9.41.040(6) precludes it. Even if the language ofRCW 9.41.040(6) were ambiguous,

the majority's interpretation is inconsistent with the intent behind RCW 9 .41. 040( 6).

Finally, an extension of Mulholland to RCW 9.41.040(6) is inappropriate because

Mulholland applies to RCW 9.94A.589. And RCW 9.41.040(6) is materially

different from RCW 9.94A.589.

A. This holding is inconsistent with the plain language of RCW 9 .41. 040( 6)

Notwithstanding any other law, if the offender is convicted under this
section for unlawful possession of a firearm in the first or second degree
and for the felony crimes of theft of a firearm or possession of a stolen
firearm, or both, then the offender shall serve consecutive sentences for
each of the felony crimes of conviction listed in this subsection.

RCW 9.41.040(6) (emphasis added). When the language of a statute is clear, we

must respect it. Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10,

43 P.3d 4 (2002). "Notwithstanding" any other law means to the preclusion of any

other law. See BLACK' s LA w DICTIONARY 1231 (10th ed. 2014) ( defining the term

as"[ d]espite; in spite of'). The majority argues the discretion afforded a sentencing

court by RCW 9.94A.535 somehow trumps this language, despite the fact that

former RCW 9.94A.390 (1984), the predecessor to RCW 9.94A.535, predates the

promulgation ofRCW 9.41.040(6) by more than 10 years. Compare LAWS OF 1983,

ch. 115, § 10, with LAWS OF 1995, ch. 129, § 16(6); see also W. Plaza, LLC v. Tison,

184 Wn.2d 702, 712, 364 P.3d 76 (2015) (more recent provision generally prevails

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State v. McFarland, No. 92947-5
Fairhurst, C.J. (dissenting)

over older provision). IfRCW 9.41.040(6) were intended to be conditional on other

statutes, as the majority and Justice Yu's dissent conclude, it could easily have been

accomplished through use of qualified language. But no such language was used.

B. This holding is inconsistent with the intent expressed by the authors of the
Hard Time for Armed Crime Initiative

RCW 9.41.040(6) was the result of a voter initiative-the "Hard Time for

Armed Crime" initiative of 1995 (HTACI). 2 Voters brought it forth as an initiative

to the legislature. The legislature, in tum, adopted the HTACI without amendment.

LAWS OF 1995, ch. 129, § 16; see also Cmty. Care Coal. of Wash. v. Reed, 165 Wn.2d

606, 612-13, 200 P.3d 701 (2009) (describing the initiative process). The HTACI

included a statement of findings and intent, which was also adopted by the legislature

without amendment. According to the statement, the HTACI was intended to

"[d]istinguish between the gun predators and criminals carrying other deadly

weapons and provide greatly increased penalties for gun predators and for those

offenders committing crimes to acquire firearms" and to make such offenses "not

worth the sentence received upon conviction." LAWS OF 1995, ch. 129, § 1(2)(c),

(2)(b) (emphasis added). The HTACI' s authors clearly wished to make punishments

2
It followed failed legislation the year prior. That proposed legislation contained
provisions largely similar to the HTACI. But it did not include the provision at issue here. Compare
H.B. 2921, 53d Leg., Reg. Sess. (Wash. 1994), with LAWS OF 1995, ch. 129, § 16(6).
3
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State v. McFarland, No. 92947-5
Fairhurst, C.J. (dissenting)

for certain firearm offenses harsh. McFarland is no more than an unfortunate case in

point.

C. While extending Mulholland to RCW 9.94A.589(1)(c) is legally supportable,
extending it to RCW 9.41.040(6) is not

In Mulholland, this court recognized that a sentencing court had discretion to

impose an exceptional downward sentence to the presumptively consecutive

sentences imposed by RCW 9.94A.589(1)(b). 161 Wn.2d at 331. The majority seeks

to extend this holding to RCW 9.94A.589(1)(c) because there is "no statutory basis

to distinguish between the consecutive sentencing language" of RCW

9.94A.589(1)(b) with that of (l)(c). Majority at 7. While this may be true, there is a

statutory basis to distinguish between the language of RCW 9.94A.589(1)(c) and

RCW 9.41.040(6). There are three, in fact. The majority fails to address these

distinctions. 3

First, RCW 9.94A.535(1)(g) lists the multiple offense policy of RCW

9.94A.589 as illustrative of a mitigating circumstance supporting a sentencing

court's use of discretion in applying an exceptional downward sentence. It makes no

comparable reference to RCW 9.41.040(6). Next, only RCW 9.41.040(6) contains

3
Instead, the majority summarily justifies its holding on the basis that "the act does not
preclude exceptional sentences downward." Majority at 8. But, in fact, the act does preclude such
sentences by indicating that its provisions applied "[n]otwithstanding any other law." LA ws OF
1995, ch. 129, § 16(6). Such "other law" would have included the predecessor to RCW 9.94A.535,
which, as discussed above, was in effect at the time of the act.
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State v. McFarland, No. 92947-5
Fairhurst, C.J. (dissenting)

the critical and unconditional "[n]otwithstanding any other law" language. Finally,

RCW 9.94A.589(1)(c) is arguably harsher than RCW 9.41.040(6). RCW

9.94A.589(1)(c) indicates that consecutive sentences must be imposed for each

count of unlawful possession and theft of a firearm an offender is convicted for, see

RCW 9.94A.589(1)(c) ("The offender shall serve consecutive sentences for each

conviction of the felony crimes listed in this subsection (l)(c), and for each firearm

unlawfully possessed."), whereas, a plausible reading ofRCW 9.41.040(6) indicates

that consecutive sentences need only be imposed between the crimes of unlawful

possession and theft of a firearm-not for each count of each crime. See RCW

9.41.040(6) ("[T]he offender shall serve consecutive sentences for each of the felony

crimes of conviction listed in this subsection."). 4 Given this differing language,

RCW 9.94A.589(1)(c) may produce a much harsher result than RCW 9.41.040(6),

4
This issue was not briefed or argued by either party. It is a debatable point for which I am
not expressing an opinion. I point it out only to demonstrate the textual differences between the
two provisions. Intuitively, if, absent other charges, 10 firearm theft convictions need not result in
consecutive sentences across counts, it seems curious that a single unlawful possession conviction
would change this result. The legislative history in adopting the HT ACI, while sparse, seems to
support this conclusion. See H.B. REP. ON H.I. 159, at 6, 54th Leg., Reg. Sess. (Wash. 1995) ("If
the person is also serving time for possession of a stolen firearm or stealing a firearm, the time
served for unlawful possession of firearms must be served consecutively with the other offenses.").
That being said, the Court of Appeals has issued seemingly conflicting opinions on the matter.
Compare State v. McReynolds, 117 Wn. App. 309, 342-43, 71 P.3d 663 (2003) (finding that RCW
9.41.040(6) unambiguously requires consecutive sentences for each count of conviction for the
firearm crimes specified in the statute), and State v. Murphy, 98 Wn. App. 42, 49, 988 P.2d 1018
(1999) (same holding), with State v. Haggin, 195 Wn. App. 315,321,381 P.3d 137 (2016) (holding
that under RCW 9 .41. 040( 6) "if a person is convicted of multiple counts but only in one category
(i.e., multiple counts of unlawful possession), the trial court must run those sentences
concurrently").
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State v. McFarland, No. 92947-5
Fairhurst, C.J. (dissenting)

thereby justifying application of the discretion afforded by RCW 9.94A.535 to RCW

9.94A.589(1)(c), but not to RCW 9.41.040(6).

For the reasons stated above, I dissent. Both the majority and Justice Yu's

dissent summarily conclude that Mulholland can be extended to an offender

convicted of the crimes of unlawful possession of a firearm and theft of a firearm.

But in reaching this conclusion, both opinions give short shrift to the plain language

of RCW 9 .41.040( 6), the intent of the authors of the HTACI, and the textual

distinctions between RCW 9.41.040(6) and RCW 9.94A.589(1)(c). All of these

mandate the imposition of consecutive sentences between these two crimes.

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State v. McFarland, No. 92947-5
Fairhurst, CJ. (dissenting)

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

No. 92947-5

YU, J. (dissenting)- Some legal principles are so basic that there should be

no need to reaffirm them. One such principle is that this court will not reverse a

trial court's decision on direct appeal unless the record shows that the decision was

made in error. However, on direct appeal in this case, the majority reverses the

sentence imposed by the trial court but does not (and on the record presented

cannot) show that any sentencing error occurred. Moreover, nothing in the record

demonstrates that an exceptional sentence would be factually or legally justified. I

cannot conceive of any legitimate reason for the majority's approach to this case. I

therefore dissent.

ANALYSIS

I agree with some key points in the majority opinion. I appreciate that the

majority declines to reverse the Court of Appeals holding that trial counsel was not

ineffective for failing to raise a novel argument to extend the reasoning of In re

Personal Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007), in support

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

of an exceptional sentence in this case. I further agree with the majority's

Mulholland analysis on its merits. 1 And I applaud the majority's restraint to the

extent that it appears to stop short of explicitly holding that the trial court abused

its discretion by failing to raise a novel legal argument sua sponte or by failing to

consider an exceptional sentence that no party requested.

I would approach the above issues differently and explicitly affirm the Court

of Appeals. Nevertheless, once we have rejected (whether explicitly or implicitly)

every claim of error that has been raised on direct appeal, our analysis should be

over.

The majority, however, treats the need to locate error in the record as little

more than an inconvenient formality by invoking its authority to consider issues

raised for the first time on appeal "when necessary to produce a just resolution."

Majority at 12. I fully support just resolutions, but a remand for resentencing in

this case is precisely the opposite.

The problem is not merely that the argument to extend Mulholland' s

reasoning was "belatedly raised." Id. The problem is that the record in this case

1
I do, however, disagree with any suggestion that the Court of Appeals erred in declining
to consider the merits of the Mulholland issue. See majority at 12. The Court of Appeals
properly determined that this case should be decided in favor of the State regardless of whether
Mulholland should be extended. State v. McFarland, No. 32873-2-111, slip op. at 18 (Wash. Ct.
App. Mar. 8, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/328732.unp.pdf.
While the Court of Appeals has discretion to consider an issue that is unnecessary to the
resolution of the case presented, I cannot agree that it erred in declining to do so.

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

reveals neither a sentencing error nor any legally justifiable basis for imposing an

exceptional sentence. Therefore, a just resolution of this case is the resolution

reached by the Court of Appeals. We should affirm. If there is information

outside the record that would support resentencing, then petitioner Cecily Zorada

McFarland must do what every other similarly situated defendant is required to do

and file a collateral attack.

A. The court should explicitly affirm the Court of Appeals

As noted above, the majority does not appear to actually hold that the trial

court abused its discretion or that trial counsel was ineffective. I would explicitly

affirm the Court of Appeals and hold that neither claim of error is supported by the

record. Indeed, the unsound rationale of the majority's decision in this case

demonstrates that this is an area of law in need of some clarification.

1. No abuse of discretion

It cannot be said that the trial court abused its discretion. It is, of course,

well settled that "while trial judges have considerable discretion under the

[Sentencing Reform Act of 1981], they are still required to act within its strictures

and principles of due process of law." State v. Grayson, 154 Wn.2d 333, 342, 111

P.3d 1183 (2005); ch. 9.94A RCW. Therefore, when the trial court is called on to

make a discretionary sentencing decision, the court must meaningfully consider the

request in accordance with the applicable law. Id. However, no exceptional

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

sentence was requested here. This simply cannot be described as a situation

"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) (emphasis added). Courts do not refuse to do things that they are never

asked to do. 2

To the extent that the Court of Appeals has suggested otherwise, it was

incorrect. In State v. McGill, the Court of Appeals remanded for resentencing even

though defense counsel did not request the trial court to impose an exceptional

sentence. 112 Wn. App. 95, 97, 47 P.3d 173 (2002). Its reasoning, however, is

paradoxical. On the one hand, McGill holds that resentencing was required

because "the trial court refused to exercise its discretion to consider an exceptional

sentence." Id. at 100. On the other hand, McGill holds that resentencing was also

required because a court cannot "exercise its discretion if it is not told it has

discretion to exercise." Id. at 102. It is difficult to understand how a trial court can

simultaneously refuse to exercise discretion and be unable to exercise discretion.

2
In a very limited number of cases, we have indicated that the failure to raise certain
issues sua sponte can be reversible error. E.g., State v. Ramos, 187 Wn.2d 420,443,387 P.3d
650 (2017), petition for cert. filed,_ U.S.L.W. _ (U.S. May 23, 2017) (No. 16-9363). I
cannot come up with any legitimate reason to hold that the circumstances of this case qualify for
such special treatment. The majority does not acknowledge that it gives this case special
treatment and therefore does not explain why it does so.

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

Moreover, this reasoning places an unreasonable burden on trial courts to raise

issues sua sponte and interferes with the independence of trial counsel. We should

reject it.

Even if the record in this case actually showed that the trial court had an

erroneous view of the law (which, as I discuss further below, it does not), a court

abuses its discretion only by actually making a decision based on an erroneous

view of the law, not by expressing an erroneous view of a legal rule that does not

apply to the issues presented. There was no abuse of discretion in this case.

2. No ineffective assistance of counsel

The majority does not address the merits of this issue, but we should

explicitly hold that the Court of Appeals correctly held that trial counsel in this

case was not ineffective.

To establish ineffective assistance of counsel, "the defendant must show that

counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish deficient performance,

"the defendant must show that counsel's representation fell below an objective

standard of reasonableness." Id. at 688.

McFarland argues that reasonable trial counsel would have known that

Mulholland extends to firearm-related convictions because no published appellate

cases have squarely held that concurrent sentences are not available as an

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

exceptional sentence for firearm-related convictions. But there are no published

appellate cases that hold such concurrent sentences are available, either. And

while I join the majority in extending Mulholland's reasoning to multiple firearm-

related convictions, the State's argument on that point is certainly defensible and

has never been rejected in a published appellate case.

McFarland also places great weight on the fact that Mulholland was not a

"significant change in the law" for purposes ofRCW 10.73.100(6). State v. Miller,

185 Wn.2d 111, 114, 371 P.3d 528 (2016). However, the inquiries are entirely

different. Assessing deficient performance "requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's

perspective at the time." Strickland, 466 U.S. at 689. Meanwhile, "[a] 'significant

change in the law' requires that the law, not counsels' understanding of the law on

an unsettled question, has changed." Miller, 185 Wn.2d at 116 (quoting RCW

10.73.100(6)).

To hold trial counsel was deficient in this case, we would have to hold that

trial counsel has a duty to raise all nonfrivolous arguments for extensions of

current law that might occur to appellate counsel. Such a holding would severely

undercut the "strong presumption" that trial counsel rendered effective assistance.

State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251 (1995). It would also be

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

an unprecedented expansion of the scope of trial counsel's duty that "would place

an unreasonable burden on defense counsel and set a standard for diligence that

obliges counsel to raise issues in anticipation of any possible change in the law."

State v. Brown, 159 Wn. App. 366,373,245 P.3d 776 (2011). Another reasonable

trial attorney might have raised the Mulholland argument, but that is not a basis on

which to hold that trial counsel in this case was deficient.

Therefore, I would explicitly affirm the Court of Appeals and hold that the

trial court did not abuse its discretion and McFarland has not shown that she

received ineffective assistance of counsel.

B. There is no evidence in the record to support a remand for resentencing

Even though the record does not demonstrate error, the majority believes

that affirming McFarland's sentence would be unjust. I do not question their

sincerity, and I do not rule out the possibility that in some cases, the record could

support such a conclusion. This is not one of those cases. It is not clear from the

record that the trial court even had an erroneous view of the law, and nothing in the

record indicates that an exceptional sentence would be factually or legally justified

in this case.

I cannot agree with the majority's assertion that "McFarland's situation is

not so different from that in Mulholland." Majority at 12. Even though

Mulholland did not request concurrent sentences as an exceptional sentence at the

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

trial court level, he did request concurrent sentences based on a"' same criminal

conduct argument."' Mulholland, 161 Wn.2d at 326 n.1. The trial court

determined that Mulholland's offenses were not the same criminal conduct and

went on to explicitly state, "'I think the law requires me to run them consecutive

[sic]. I don't believe there's any discretion that this court has in that regard."' Id.

(emphasis added) (alteration in original). The record in Mulholland thus clearly

showed that the trial court had an erroneous view of the law. Cf McGill, 112 Wn.

App. at 98 ("'I'm sure you are aware that the legislature has decided that judges

should not have discretion beyond a certain sentencing range on these matters."').

In light of this clear record, we held on collateral review that "the trial court's

incorrect interpretation of the statutes that applied to the assault sentences is a

fundamental defect." 3 Mulholland, 161 Wn.2d at 332-33.

Meanwhile, the trial court in this case said only, "I don't have -- apparently

don't have much discretion, here." Verbatim Tr. of Proceedings (VTP) (Oct. 27,

2014) at 25. It is not clear whether the court thought it lacked discretion because it

had an erroneous view of the law or because it had an accurate view of the scope of

the parties' arguments. State v. McFarland, No. 32873-2-III, slip op. at 16 n.9

(Wash. Ct. App. Mar. 8, 2016) (unpublished), http://www.courts.wa.gov/

3
We in fact denied review of Mulholland's direct appeal. State v. Mulholland, 153
Wn.2d 1018, 108 P.3d 1228 (2005).

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

opinions/pdf/328732.unp.pdf. This inconclusive record cannot be sufficient to

show there was a fundamental defect.

Moreover, there is nothing in the record indicating an exceptional sentence

would have been legally available in this case. RCW 9.94A.535(1)(g) allows

exceptional sentencing where "[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 [the Sentencing Reform Act], as expressed in RCW 9.94A.010."

The record simply does not address how the Sentencing Reform Act's purpose as

expressed in RCW 9.94A.010 applies to this case.

Instead, the record shows that defense counsel supported its request for

sentencing at the bottom of the standard range by noting that if McFarland "had

been found guilty of stealing toasters instead of firearms," her sentence would be

much shorter. VTP (Oct. 27, 2014) at 23. McFarland was not found guilty of

stealing toasters. She was found guilty of stealing firearms. The legislature has

chosen to impose presumptively harsher sentences for stealing firearms than for

stealing toasters. Disagreement with that legislative judgment is a not a legally

appropriate basis on which to impose an exceptional sentence. State v. Alexander,

125 Wn.2d 717, 724-25, 888 P.2d 1169 (1995). This would be true even if we

could impute trial counsel's disagreement with the legislature to the trial court, as

the majority appears to do. Majority at 14.

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

The record thus does not actually show that the trial court had an erroneous

view of the law, and nothing in the record indicates that an exceptional sentence

would have been justified. McFarland's sentence should be affirmed. She is free

to seek collateral review with supporting evidence outside the record. McFarland,

slip op. at 18-19. I am dismayed that a majority of this court holds that her

standard-range sentence is infected by a fundamental defect solely because "the

record suggests at least the possibility that the sentencing court would have

considered imposing concurrent firearm-related sentences had it properly

understood its discretion to do so." Majority at 14.

CONCLUSION

Some may wonder why we should require McFarland to go through the

extra step of seeking collateral review with supporting evidence instead of simply

remanding and giving her a chance to submit new evidence to the trial court now.

My response is simple: because that is what we require of every criminal defendant

who cannot demonstrate error based on the record presented on direct appeal.

State v. Grier, 171 Wn.2d 17, 29-30, 246 P.3d 1260 (2011); State v. Elmore, 139

Wn.2d 250, 302, 985 P.2d 289 (1999); McFarland, 127 Wn.2d at 335; 2 WASH.

STATEBARAss'N, WASHINGTON APPELLATEPRACTICEDESKBOOK § 32.2(2)(c) at

32-7 (3d ed. 2005).

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

While I do not question the majority's sincere belief that resentencing is the

just result for McFarland, I respectfully submit that this result is extremely unjust

for the thousands of other criminal defendants who file matters with this court

every year. Sentencing decisions, while individualized, should nevertheless be

based on a fair and predictable process, which should not be altered because a

particular defendant appears harmless or sympathetic to a particular justice on

review. Though many of the defendants who appear in o.ur court remain faceless

to us, and many more are depicted in the record only in their mugshots, each one of

them possesses the same inherent human dignity. Each one of them is therefore

entitled to equal treatment in our courts. I dissent.

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State v. McFarland, No. 92947-5
(Yu, J., dissenting)

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