Opinion
No. 22333-7-III, Cons. w/No. 22335-3-III
Filed: February 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-01073-2. Judgment or order under review. Date filed: 07/31/2003. Judge signing: Hon. Gregory D. Sypolt.
Counsel for Appellant(s), Carl Edward Hueber, Winston Cashatt Lawyers, 601 W Riverside Ave Ste 1900, Spokane, WA 99201-0695.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
James Crabtree pleaded guilty in one of two consolidated cases to four counts of delivery of a controlled substance and one count of possession of a controlled substance (No. 22333-7-III). Mr. Crabtree mainly contends the sentencing court erred in not granting a mitigated exceptional sentence under State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993). Because we disagree, we do not address the offender score issue raised in Mr. Crabtree's other appeal (No. 22335-3-III). We affirm.
FACTS
In January 2002, the State charged Mr. Crabtree with single counts of vehicular assault and possession of a controlled substance (cocaine) in connection with a 2001 head-on car crash that seriously injured a Spokane County sheriff's deputy (Spokane County Cause No. 02-1-00319-3). While that matter was pending, on April 10, 2003, the State charged Mr. Crabtree with four counts of delivery of a controlled substance (cocaine) and one count of possession of a controlled substance (cocaine) in connection with a series of transactions occurring in late March and the first week of April 2003 (Spokane County Cause No. 03-1-01073-2).
On June 17, 2003, the superior court accepted Mr. Crabtree's guilty plea to all five of the 2003 drug charges. The plea agreement set Mr. Crabtree's offender score as `6' with a standard range of 57 to 75 months on each of the four delivery charges. The agreement provided that the State would ask for a total sentence of 60 months with no enhancements. The agreement further stated Mr. Crabtree would ask for an exceptional sentence. The agreement provided that all sentences were to be concurrent. The plea form partly stated: `If the sentence is within the standard range, no one can appeal the sentence.' Clerk's Papers (CP) at 8.
On the same date, the trial court accepted Mr. Crabtree's guilty plea to vehicular assault and possession of a controlled substance in connection with the 2002 charges. The plea agreement set Mr. Crabtree's offender score as `6' with a standard range of 33 to 43 months on the vehicular assault charge. The agreement provided the State would ask for a standard range sentence concurrent with the 60-month sentence requested in the drug delivery matter. Again, Mr. Crabtree stated his intent to ask for an exceptional sentence. Again, the plea form provided that the parties could not appeal a standard range sentence.
Mr. Crabtree asked for a mitigated exceptional sentence for two reasons: (1) as a former law enforcement officer, he would be acutely vulnerable in prison; and (2) the increased offender score flowing from multiple controlled buys warranted a downward departure under the multiple offense rationale discussed in State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993).
After an evidentiary hearing, the trial court reasoned the four individual drug transactions were sufficiently different from each other so as to fall outside the Sanchez rationale for an exceptional sentence. The trial court was not persuaded that Mr. Crabtree's law enforcement experience in the early to mid 1980s would expose him to increased hazards in prison. Accordingly, the trial court denied Mr. Crabtree's request for a mitigated exceptional sentence.
On the vehicular assault and drug possession matter, the court imposed concurrent standard-range sentences of 43 and 22 months. On the drug delivery and possession matter, the court sentenced Mr. Crabtree to concurrent standard-range 60-month sentences on the four delivery counts and a concurrent standard-range 22-month sentence on the possession count.
Mr. Crabtree appealed. This court consolidated the appeals.
ANALYSIS
The dispositive issue is whether the trial court abused its discretion in denying Mr. Crabtree's request for a mitigated exceptional sentence under State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993).
Initially, we must determine whether review on the merits is available to Mr. Crabtree. Generally, a party cannot appeal a standard-range sentence. RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003); State v. Watson, 120 Wn. App. 521, 527, 86 P.3d 158 (2004); State v. Smith, 118 Wn. App. 288, 292, 75 P.3d 986 (2003); State v. Cole, 117 Wn. App. 870, 73 P.3d 411 (2003), review denied, 151 Wn.2d 1005 (2004). `This precept arises from the notion that, so long as the sentence falls within the proper presumptive sentencing ranges set by the legislature, there can be no abuse of discretion as a matter of law as to the sentence's length.' Williams, 149 Wn.2d at 146-47 (citing State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719, 718 P.2d 796 (1986)); see also State v. Medrano, 80 Wn. App. 108, 111-12, 906 P.2d 982 (1995).
Likewise, a party generally cannot appeal a trial court's refusal to impose an exceptional sentence, which necessarily results in a standard-range sentence. State v. Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994); State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002); Medrano, 80 Wn. App. at 112; State v. Rousseau, 78 Wn. App. 774, 776, 898 P.2d 870 (1995); State v. Duke, 77 Wn. App. 532, 536, 892 P.2d 120 (1995). `When a court has considered the facts and concluded there is no legal or factual basis for an exceptional sentence, it has exercised its discretion, and the defendant cannot appeal that ruling.' McGill, 112 Wn. App. at 100 (citing State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997)).
Notwithstanding the general prohibition against review of standard-range sentences, a party may `challenge the underlying legal conclusions and determinations by which a court comes to apply a particular sentencing provision.' Williams, 149 Wn.2d at 147 (citing State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993)). `Thus it is well established that appellate review is still available for the correction of legal errors or abuses of discretion in the determination of what sentence applies.' Williams, 149 Wn.2d at 147 (citing State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999); State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989); State v. Channon, 105 Wn. App. 869, 876, 20 P.3d 476 (2001)).
Consequently, an appellate court will review a standard-range sentence resulting from constitutional error, procedural error, an error of law, or the trial court's failure to exercise its discretion. See, e.g., Williams, 149 Wn.2d at 147; Mail, 121 Wn.2d at 713; Ammons, 105 Wn.2d at 183; Watson, 120 Wn. App. at 527; McGill, 112 Wn. App. at 100; Garcia-Martinez, 88 Wn. App. at 329; State v. Sandefer, 79 Wn. App. 178, 181, 900 P.2d 1132 (1995).
Mr. Crabtree argues the trial court abused its discretion, or refused to exercise its discretion when it declined to apply the rationale set forth in State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208 (1993). Thus, to the extent these arguments assert legal error or the failure to exercise discretion, review is appropriate.
Mr. Crabtree mistakenly contends that the trial court refused to exercise its discretion. The record shows the trial court took considerable evidence and argument before it considered Sanchez, and ultimately decided not to follow that case because of what the court reasoned to be important distinguishing facts. The trial court did not refuse to exercise discretion on the matter. See McGill, 112 Wn. App. at 100.
Mr. Crabtree next argues the trial court abused its discretion. Generally, a trial court abuses its discretion if its exercise of discretion is manifestly unreasonable or its decision is based on untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). `If there is one overriding purpose for the exercise of discretion, it is the necessity of applying a general principle of law to a specific set of facts.' In re Parentage of Jannot, 110 Wn. App. 16, 19, 37 P.3d 1265 (2002) (citing Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 643 n. 19 (1971)), aff'd, 149 Wn.2d 123, 65 P.3d 664 (2003). `Deference to a trial judge's discretion recognizes that there must be some `individualizing agent' in the administration of justice.' Jannot, 110 Wn. App. at 20 (quoting Roscoe Pound, Discretion, Dispensation and Mitigation: The Problem of the Individual Special Case, 35 N.Y.U.L. Rev. 925 (1960)).
The abuse of discretion standard is not, of course, unbridled discretion. Through case law, appellate courts set parameters for the exercise of the judge's discretion. At one end of the spectrum the trial judge abuses his or her discretion if the decision is completely unsupportable, factually. On the other end of the spectrum, the trial judge abuses his or her discretion if the discretionary decision is contrary to applicable law.
Jannot, 110 Wn. App. at 22.
Here, the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, and applicable case law limit the trial court's discretionary authority on sentencing matters. A trial court has discretion to impose a sentence outside the standard range `if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.' RCW 9.94A.535.
In exercising its discretion regarding an exceptional sentence below the standard range, the sentencing court may consider a non-exclusive list of mitigating circumstances. RCW 9.94A.535(1). One of the mitigating factors the court may consider is that the multiple offense policy of RCW 9.94A.589, which accumulates offender points for multiple current offenses, `results in a presumptive sentence that is clearly excessive' in light of the SRA's purpose. RCW 9.94A.535(a)(g).
In Sanchez, the trial court imposed a mitigated exceptional sentence for reasons analogous to the multiple offense criteria set forth in RCW 9.94A.535(a)(g) (formerly RCW 9.94A.390(1)(g)). Sanchez, 69 Wn. App. at 260. Division Two of this court affirmed, focusing `on the difference between (a) the effects of the first buy alone and (b) the cumulative effects of all three buys.' Id. at 261.
`It is this difference, if any, that the multiple offense policy is designed to take into account. If it can be shown that this difference is nonexistent, trivial or trifling, the multiple offense policy should not operate; rather, the sentencing judge should be permitted to given an exceptional sentence downward on grounds that the `operation of the multiple offense policy . . . results in a presumptive sentence that is clearly excessive."
Sanchez, 69 Wn. App. at 261 (quoting former RCW 9.94A.390(1)(g) (1984)).
The Sanchez court concluded `the difference between the first buy, viewed alone, and all three buys, viewed cumulatively, was trivial or trifling.' Sanchez, 69 Wn. App. at 261.
All three buys were initiated and controlled by the police. All three involved the same buyer, the same seller, and no one else. All three occurred inside a residence within a 9-day span of time. All three involved small amounts of drugs. The second and third buys had no apparent purpose other than to increase Sanchez's presumptive sentence. We conclude, as the sentencing court apparently did, that the second and third buys added little or nothing to the first.
Id.
Following Sanchez, Division One of this court affirmed an exceptional sentence downward where there were two drug deliveries for small amounts of cocaine, sold at the same residence, to the same police officer, in deliveries controlled by the police. State v. Hortman, 76 Wn. App. 454, 461-62, 886 P.2d 234 (1994). This court also followed Sanchez and Hortman in affirming an exceptional sentence downward where an undercover police officer and a confidential informant bought illegal drugs from the defendant at the defendant's house three times over a four-day period. State v. Fitch, 78 Wn. App. 546, 549, 897 P.2d 424 (1995). `As we have noted, all three drug deliveries were controlled by the police. All involved small quantities of drugs delivered to the same person.' Id. at 552. `[T]he difference between the three buys was nonexistent, trivial, or trifling.' Id. (citing Hortman, 76 Wn. App. at 458; Sanchez, 69 Wn. App. at 261).
Here, the trial court considered the facts and concluded important distinguishing characteristics existed between Mr. Crabtree's case, Sanchez, and Hortman. Significantly, the trial court noted that Mr. Crabtree initiated two of the controlled buys, the first and the fourth, by contacting a confidential informant. The trial court further observed that the first and third transactions also occurred at two separate locations outside of Mr. Crabtree's residence. The trial court found Mr. Crabtree controlled the location of the four transactions, as well as who could be there, and in the first transaction he controlled another person who made the actual delivery. Looking at the three transactions, the trial court concluded `they are not trivial, nonexistent or trifling, but they are different.' Report of Proceedings (RP) at 159.
Mr. Crabtree contends the trial court disregarded conflicting testimony as to whether he initiated some of the transactions. To the contrary, the trial court specifically noted that it found `by the more persuasive evidence' that Mr. Crabtree contacted the informant to set up drug transactions. RP at 157. In general, an appellate court will not disturb a trial court's determination of witness credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Given the facts, the trial court had a tenable basis for not following Sanchez and its progeny. There were non-trivial differences between the first and subsequent transactions. Therefore, we cannot say the trial court abused its discretion in not imposing an exceptional sentence. Given this conclusion, we need not examine the dependant offender score issue related to his vehicular assault and cocaine possession convictions.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KURTZ, J., concur.