Opinion
No. 30348-5-II, (Consolidated with 30351-5-II; 30358-2-II; 31558-1-II; 31568-8-II; 31571-8-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 03-1-00083-3. Judgment or order under review. Date filed: 04/24/2003. Judge signing: Hon. James B. II Sawyer.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Michael Ellsworth pleaded guilty to residential burglary, intimidating a witness, third degree assault, felony harassment, malicious mischief, and fourth degree assault. The trial court imposed consecutive sentences for the felonies, reasoning that because of Ellsworth's prior criminal history and offender score, concurrent sentences would result in `free crimes.' Ellsworth moved to withdraw his pleas, arguing that his pleas were not voluntary because his counsel failed to explain the exceptional sentence to him, misadvised him about consecutive sentences, and failed to explain his exposure to an `abnormally lengthy sentence.' He also claimed that he was under extreme duress when he pleaded guilty because his attorney told him that he faced a three-strikes life sentence. The trial court denied Ellsworth's motion to withdraw his pleas. On appeal, Ellsworth renews his trial court arguments and also contends that under Blakely, a jury should have decided the aggravating factors that supported his exceptional sentence. We affirm.
Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
FACTS
The State originally charged Michael Ellsworth with one count of residential burglary, one count of felony harassment, one count of third degree malicious mischief, one count of fourth degree assault, and one count of tampering with a witness. Months later, he was also charged with intimidating a witness and third degree assault.
Ellsworth's criminal history included two-strike offenses under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. After filing the original charges, the prosecution informed defense counsel that it would amend the charge of residential burglary to first degree burglary, putting Ellsworth in jeopardy of a third-strike conviction. He faced a similar predicament in the charge of attempted second degree assault, which also carries a potential third-strike under the POAA.
After reaching a plea agreement with Ellsworth, the State amended the information from second degree attempted assault to third degree assault. Ellsworth entered Alford pleas to residential burglary, felony harassment, intimidating a witness, and third degree assault. The State agreed not to pursue a charge of witness tampering.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The State explained that it was `not binding itself to any sentencing range' and that it would `not be recommending within the sentencing range.' 2 Report of Proceedings (RP) at 42. Ellsworth said he understood the prosecution would recommend sentencing outside of the standard range. He also said he understood that the charges involved separate and distinct crimes.
The court and Ellsworth had the following exchange:
The Court: So by [the State's] statement we can assume that [the State is] going to recommend an exceptional sentence, however the maximum penalty would be the ten years in prison so far as the Class B felony is concerned — do you understand that?
Ellsworth: I understand that, Your Honor.
The Court: They, of course, could also argue for consecutive sentences, which would increase the amount of time that might be imposed, but it is also your understanding that by entering this plea you are avoiding a third strike?
Ellsworth: I understand, Your Honor.
The Court: Okay. The showing is sufficient to support the plea — the defendant's plea is obviously made freely, voluntarily, knowingly and intelligently, and the court will accept this plea and find him guilty of all four counts.
2 RP at 42-43.
The court explained to Ellsworth the class and maximum statutory penalty for each crime. Ellsworth said he understood. The court also explained that Ellsworth's offender score would probably be more than nine and what the standard range for each crime would be. Ellsworth again said he understood.
After the State presented the factual basis for the pleas, Ellsworth agreed that there was a reasonable probability he would be found guilty if he proceeded to trial. The court then concluded that Ellsworth knowingly, voluntarily, and intelligently pleaded guilty to the charges.
I. Sentencing April 24, 2003
At sentencing, the State recommended exceptional consecutive sentences.
Ellsworth's prior convictions and current offenses gave him an offender score of 14 for residential burglary and an offender score of 12 for the charges of felony harassment, intimidating a witness, and third degree assault.
Ellsworth claimed that he was intimidated into pleading guilty by the State's threats of a third strike. The court stated, `I don't know what your attorneys advised you of, but I can certainly understand why they would have attempted to persuade you to take advantage of this [the plea] rather than run the risk of life in prison without the possibility of parole.' 3 RP at 96. Then the court explained that it would impose consecutive sentences because Ellsworth's offenses concerned `three different incidents over a course of time, with multiple victims.' 3 RP at 97. In addition, the court explained that `for [Ellsworth] to serve [the sentences] concurrent would be for him to essentially not receive punishment for the offenses that he has been charged with.' 3 RP at 97. The court acknowledged that `a high offender score alone can not justify an exceptional sentence.' 3 RP at 98. But `[c]urrent multiple offenses may justify sentences exceeding standard range when those in excess of numbers necessary . . . to reach the maximum range and would otherwise run unpunished, and that is the circumstance that Mr. Ellsworth brings respectfully to the court at this time.' 3 RP at 98.
The court sentenced Ellsworth to 55.5 months for third degree assault, 73.5 months for residential burglary, with the misdemeanors from that cause number running concurrently, and 89.5 months for intimidating a witness. The total sentence amounted to 218.5 months (or 18.2 years).
The court said, `I am not suspending any time on the gross misdemeanors, I am running them concurrent.' 3 RP at 104.
In support of the exceptional sentences, the court found: Findings of Fact
The defendant's offender score of 9+ as to each of the felonies sentenced in the above cause numbers, combined with multiple current felony offenses, would result in `free crimes,' i.e. crimes for which there would be no additional penalty if the court imposed statutorily prescribed concurrent sentences in the above causes, a result which would be clearly too lenient in light of the purposes of Chapter 9.94A RCW.
Conclusions of Law
There are substantial and compelling reasons justifying an exceptional sentence in these causes, considering the purposes of Chapter 9.94A RCW, by way of imposing consecutive sentences as to each of the separate causes above.
Clerk's Papers (CP), Cause No. 02-1-00476-8, at 18.
II. Motion to Withdraw Guilty Pleas
Several months later, Ellsworth moved to withdraw his guilty pleas. In his supporting affidavit, Ellsworth stated that his counsel did not advise him that he was at risk for consecutive sentences. He claimed that his trial counsel advised him that `regardless of States [sic] stipulations in plea agreement (to retain right to seek an exceptional sentence in causes) the defendant would not be at legal risk to an exceptional sentence and that no legal grounds or justification existed to support such a sentence.' Second Supplemental Clerk's Papers (SSCP) at 43. He also asserted that his trial counsel failed to explain the meaning of `Exceptional Sentence.' SSCP at 43. And he stated that he was not advised `as to what abnormally lengthy sentence [he] would be . . . in jeopardy of [receiving] if he entered into same plea agreement.' SSCP at 43.
Ellsworth claimed that he was under `extreme duress' at the time he changed his pleas because of his fear of life in prison without parole, but he did not tell the court because he was afraid that he would lose his plea bargain. 4 RP at 123-24. He explained that he would not have made his pleas if he had not been under such extreme duress.
The court denied Ellsworth's motion, finding that Ellsworth made his pleas knowingly, voluntarily, and intelligently.
The court explained:
Mr. Ellsworth, at the time of the taking of pleas in this matter there was a rather extensive dialogue between the court and yourself, and the court and counsel, regarding the pleas and multiple cases, the affect that it would have on your cases, and your understanding of the effect that these pleas would have.
You indicate that your pleas were involuntary because they were coerced by the State's indication that if you did not plea they would pursue a third strike. That simply is an explanation of the circumstances that brought you before the court.
. . .
Additionally, your contention is that you simply did not understand the potential for an exceptional sentence in your case, and the record simply does not bear out your position . . . the State clearly stated, prior to the acceptance of the plea, that it was their intention to forgo the potential for a third strike, however, in doing so it was their intention to request an exceptional sentence.
. . .
I went on to explain that another form of exceptional sentence that could conceivably be inquired into, was a consecutive sentence, and you indicated that you understood that concept as well.
The record, I believe, is very clear, that although you may not have been happy with the process of entering pleas. . . . Your pleas were made freely, voluntarily, knowingly, and intelligently, and your Motion to Withdraw Plea is denied.
4 RP at 128-31.
ANALYSIS
Ellsworth argues that his attorneys were ineffective in guiding him through the plea process. In the alternative, Ellsworth contends that the trial court violated his Sixth Amendment right to a jury trial on the exceptional sentence, pointing out that he did not admit, and no jury found, the supporting facts beyond a reasonable doubt. Finally, Ellsworth argues that the trial court abused its discretion by imposing an excessive exceptional sentence.
I. Standard of Review
We review a trial court's denial of a motion to withdraw a guilty plea under an abuse of discretion standard. State v. Olmsted, 70 Wn.2d 116, 118, 422 P.2d 312 (1966); State v. Jamison, 105 Wn. App. 572, 589-90, 20 P.3d 1010 (2001). A court abuses its discretion if its decision is based on clearly untenable or manifestly unreasonable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); Jamison, 105 Wn. App. at 589-90.
A guilty plea must be `knowing, intelligent, and voluntary in order to satisfy due process requirements.' State v. Stowe, 71 Wn. App. 182, 186, 858 P.2d 267 (1993) (citing Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976)); In re Hews, 108 Wn.2d 579, 590, 741 P.2d 983 (1987); In re Montoya, 109 Wn.2d 270, 277, 744 P.2d 340 (1987). But when a defendant fills out a written plea statement under CrR 4.2(g) and acknowledges that he has read and understands it and that its contents are true, we presume that the plea is voluntary. State v. Smith, 134 Wn.2d 849, 852, 953 P.2d 810 (1998) (citing State v. Perez, 33 Wn. App. 258, 261, 654 P.2d 708 (1982)). In addition, `[w]hen the judge goes on to inquire orally of the defendant and satisfies himself on the record of the existence of the various criteria of voluntariness, the presumption of voluntariness is well nigh irrefutable.' Perez, 33 Wn. App. at 262 (citing State v. Ridgley, 28 Wn. App. 351, 623 P.2d 717 (1981)).
CrR 4.2(g) presents the form that a defendant fills out when making a guilty plea. Ellsworth used this form.
Here, the presumption that Ellsworth voluntarily pleaded guilty is `well nigh irrefutable.' Ellsworth signed statements on plea of guilty for each charge. Moreover, the trial court reviewed with Ellsworth his rights and confirmed that he understood the consequences of his pleas on all three cases. The court also explicitly stated that it was satisfied that Ellsworth was making his pleas knowingly, voluntarily, and intelligently.
Nevertheless, CrR 4.2(f) allows a defendant to withdraw his plea of guilty whenever it appears that withdrawal is necessary to correct a `manifest injustice.' A manifest injustice is "an injustice that is obvious, directly observable, overt, not obscure." State v. Saas, 118 Wn.2d 37, 42, 820 P.2d 505 (1991) (quoting State v. Taylor, 83 Wn.2d 594, 596, 521 P.2d 699 (1974)); see also, State v. Martinez-Lazo, 100 Wn. App. 869, 873, 999 P.2d 1275 (2000); State v. Branch, 129 Wn.2d 635, 641, 919 P.2d 1228 (1996). Although the burden is demanding, a defendant who can show that counsel was ineffective in advising him during the plea process has met the high standard for showing a manifest injustice. See Branch, 129 Wn.2d at 641; Taylor, 83 Wn.2d at 597.
`The task force, in its comments, has suggested four indicia of `manifest injustice.' They are: `(1) denial of effective counsel, (2) plea . . . not ratified by the defendant or one authorized (by him) to do so, (3) plea was involuntary, (4) plea agreement was not kept by the prosecution." Taylor, 83 Wn.2d at 597.
1. Ineffective Assistance of Counsel
Ellsworth claims that his attorneys did not advise him of the meaning of `exceptional sentence,' the possibility of consecutive sentences, or the range of the exceptional sentence the State would likely recommend. Brief of Appellant at 22-29. The record shows otherwise.
To demonstrate that counsel was ineffective, Ellsworth must show that: (1) defense counsel's representation was deficient, and (2) the deficient representation prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If Ellsworth cannot satisfy both parts of the test, his ineffective assistance claim fails. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (citing State v. Lord, 117 Wn.2d 829, 894, 822 P.2d 177 (1991)).
In the context of his guilty plea, Ellsworth must show that his counsel failed to "actually and substantially [assist him] in deciding whether to plead guilty." State v. McCollum, 88 Wn. App. 977, 982, 947 P.2d 1235 (1997) (quoting State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984)). And to establish prejudice, he must demonstrate that `but for counsel's failure to adequately advise him, he would not have pleaded guilty.' McCollum, 88 Wn. App. at 982 (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).
2. The Meaning of `Exceptional Sentence'
Ellsworth claims that his attorneys failed to `actually and substantially assist' him in deciding to plead guilty because they did not advise him about the meaning of `exceptional sentence.' Brief of Appellant at 25. He also argues that the written plea statements neither warned him that the State intended to ask for an exceptional sentence nor explained the precise meaning of `exceptional sentence.' Brief of Appellant at 26.
Indeed, the plea agreements do not define the phrase `exceptional sentence.' Instead, each describes the crime to which Ellsworth pleaded, his offender score (9+), and the sentencing range for that offense. But the court reminded Ellsworth that the State intended to ask for an exceptional sentence and that this might take the form of asking for consecutive sentences. Ellsworth said he understood. And the court explained that the only thing exceptional about the sentences, which otherwise fell within the middle range, was that they might be served consecutively. Moreover, after discussing with Ellsworth the elements of each crime, his probable offender's score, and the standard ranges of the crimes, the court asked Ellsworth if he had reviewed the documents, thought about the plea, and was ready to enter a plea. Ellsworth said he was. We are satisfied that the trial court discussed with Ellsworth the charges and the possible sentences, including an exceptional sentence based on consecutive terms.
Even assuming that defense counsel failed to explain the meaning of `exceptional sentence,' Ellsworth has not shown that the failure caused him to plead guilty. The record tells us otherwise. The plea arrangement allowed Ellsworth to avoid a third strike conviction for which he would receive life in prison without the possibility of parole.
3. The Range and Meaning of Consecutive Sentences
Next, Ellsworth claims that his plea was not knowing, voluntary, and intelligent because his attorney failed to explain the meaning or possibility of consecutive sentences. He maintains that he did not understand that consecutive sentences could amount to 218.5 months; and he pleaded under `the strongest possible duress' because the State's attorney frightened him with the possibility of life in prison. Brief of Appellant at 27. He argues that `there [is] little appreciable difference between the actual sentence and the threat of life imprisonment that he faced if he went to trial.' Brief of Appellant at 29. Ellsworth reminds us that by the end of his 218.5-month sentence, he will be 66 years old.
Again, however, the record tells us otherwise. Specifically, the court informed Ellsworth of the standard range for each sentence. And the court explained that each sentence might be run consecutively — which would mean a longer sentence. Ellsworth said he understood. Finally, the court clarified with Ellsworth that he was pleading to avoid a possible third strike. As a result, the court found that his pleas were knowing, voluntary, and intelligent. And we are not persuaded that Ellsworth's bargain to avoid a life sentence was illusory. Ellsworth will be 66 years old when his full term runs. But he can reduce the full sentence for `good time.' 3 RP at 102-03. And we can readily understand why Ellsworth would negotiate to save some years of freedom.
In conclusion, the trial court did not err in denying Ellsworth's motion to withdraw his guilty plea. Ellsworth has not shown that his attorneys were ineffective or, if they were, that he was prejudiced. The trial court more than adequately explained to Ellsworth the standard ranges of his crimes, that the State intended to ask for an exceptional sentence, and that an exceptional sentence could consist of consecutive sentences. And he has not shown that he would have maintained his innocence but for his attorney's alleged failings; thus, he has not shown a manifest injustice caused by ineffective assistance of counsel.
III. The Effect of Blakely on Exceptional Sentences
Ellsworth argues that although he did not contest his offender score calculation at his sentence hearing or in his motion to withdraw his pleas, he did not stipulate to a finding that imposing a standard range sentence would result in unpunished offenses (`free crimes'). He argues that because the issue of `free crimes' was not submitted to a jury, or proved beyond a reasonable doubt, imposition of the exceptional sentence violates Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 125 S. Ct. 21 (2004).
Under Washington's Sentencing Reform Act, a court may impose a sentence above the standard range if the court finds substantial and compelling `reasons justifying an exceptional sentence.' RCW 9.94A.120(2), recodified as RCW 9.94A.505 by Laws of 2001, ch. 10, sec. 6. The Act lists aggravating factors that justify such a departure. RCW 9.94A.535. An aggravating factor exists when `[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.' RCW 9.94A.535(i). An exceptional sentence is justified `whenever `the defendant's high offender score is combined with multiple current offenses so that a standard sentence would result in free crimes — crimes for which there is no additional penalty." State v. Smith, 123 Wn.2d 51, 56, 864 P.2d 1371 (1993) (citations omitted).
Since Blakely, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The "[f]ree crime' analysis is a function of determining the defendant's offender score from the record of his prior and current criminal convictions.' State v. Van Buren, 123 Wn. App. 634, 653, 98 P.3d 1235 (2004). As such, `[i]t does not require weighing evidence, determining credibility, or making a finding of disputed facts.' Van Buren, 123 Wn. App. at 653. Accordingly, Blakely does not require the State to prove the `free crime' basis for an exceptional sentence to a jury beyond a reasonable doubt. Van Buren, 123 Wn. App. at 653. See also State v. Alkire, 124 Wn. App. 169, 100 P.3d 837, 840 (2004).
IV. Reviewing Exceptional Sentences
When reviewing an exceptional sentence, we ask whether `(1) under a clearly erroneous standard, the reasons supplied by the sentencing court are supported in the record that was before the judge; (2) under a de novo standard, those reasons justify a sentence outside the standard range; and (3) under an abuse of discretion standard, the sentence imposed was clearly excessive.' Van Buren, 123 Wn. App. at 653; see also, State v. Rotko, 116 Wn. App. 230, 242, 67 P.3d 1098 (2003); State v. Solberg, 122 Wn.2d 688, 705, 861 P.2d 460 (1993). A sentence is excessive if it is "clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken." State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995) (quoting State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986)). Once a court establishes that it has the discretion to impose an exceptional sentence outside the standard range, it also has the discretion to either lengthen the sentence or impose consecutive sentences. See State v. Batista, 116 Wn.2d 777, 784, 808 P.2d 1141 (1991).
1. Exceptional Sentence
Here, substantial evidence supports the trial court's findings and its reason for imposing the exceptional sentence. Ellsworth admitted to his criminal history and understood that his criminal offender score was over nine. Because of this, the court concluded that some of his current crimes would go unpunished. Thus, the court did not err in imposing an exceptional sentence.
2. Excessive Sentence
We will reverse an exceptional sentence as clearly excessive only for an abuse of discretion. Branch, 129 Wn.2d at 649. Ellsworth's 218.5-month sentence is not excessive in light of sentences from other cases. The Washington Supreme Court has upheld an exceptional sentence 15 times the top of the standard range, State v. Oxborrow, 106 Wn.2d at 526, and another sentence 16 times the standard range, Branch, 129 Wn.2d at 650.
The judge sentenced Ellsworth to 218.5 months (55.5 months for third degree assault, 73.5 months for residential burglary with the misdemeanors from that cause number being run concurrently, and 89.5 months for intimidating a witness). See RCW 9.94A.510; RCW 9.94A.515; RCW 9A.20.021. Ellsworth's standard range for third degree assault was 51-68 months with a statutory maximum of five years. See RCW 9.94A.510; RCW 9.94A.515; RCW 9A.20.021(c). His standard range for residential burglary was 63-84 months with a statutory maximum of 10 years. See RCW 9.94A.510; RCW 9.94A.515; RCW 9A.20.021(b). His standard range for intimidating a witness was 77-102 months with a statutory maximum of 10 years. See RCW 9.94A.510; RCW 9.94A.515; RCW 9A.20.021(b). If the court had imposed consecutive sentences at the top of the standard range for each crime, which was within his discretion under Batista, he would have given 254 months (approximately 21 years). If he had imposed the statutory maximum for all three crimes, he would have given 25 years (approximately 300 months). In light of these numbers, the court's choice to impose 218.5 months was not an abuse of discretion. The sentence of 218.5 months is less than three times the top of the standard range for Ellsworth's most serious offense, intimidating a witness.
3. One Aggravating Factor
In a statement of additional grounds (SAG), Ellsworth asserts that his sentence was excessive because the trial court relied on only one aggravating factor: `[t]hat his high offender score combined with his multiple offenses might result in leniency of sentencing if he were sentenced under the SRA guidelines.' SAG at 18. He reasons that without finding additional aggravating factors, such as serious violence, exceptional harm, or elements of a more serious crime, the court erred in imposing consecutive sentences.
RAP 10.10.
Ellsworth cites no authority that would limit the trial court's sentencing discretion if it finds only one aggravating factor. On the contrary, the court has upheld lengthy exceptional sentences based on one aggravating factor. Branch, 129 Wn.2d at 646 (relying on only one aggravating circumstance, `major economic offense,' to impose a sentence 16 times the standard range); State v. Stephens, 116 Wn.2d 238, 803 P.2d 319 (1991) (relying on `free crimes' as aggravating factor for defendant who committed eight burglaries would presumptively receive the same sentence as if he had committed two burglaries). Accordingly, the trial court was not required to find more than one aggravating factor to justify Ellsworth's exceptional sentence.
4. Consecutive Sentences
Ellsworth argues that he was given consecutive sentences based on circumstances that would support only a lengthened sentence — not consecutive sentences. SAG at 7, 14. He asserts that without finding additional aggravating factors, such as serious violence, exceptional harm, or elements of a more serious crime, the court erred in imposing consecutive sentences.
Ellsworth cites State v. Batista, 116 Wn.2d 777, 808 P.2d 1141 (1991), to support the proposition that the trial court acted improperly by imposing an exceptional sentence that was beyond both the standard range and consecutive. Indeed, Batista states that `[i]f a presumptive sentence is clearly too lenient, this problem could be remedied either by lengthening concurrent sentences, or by imposing consecutive sentences.' Batista, 116 Wn.2d at 785-86. But Batista also states that `[w]here multiple current offenses are concerned, in addition to lengthening of sentences, an exceptional sentence may also consist of imposition of consecutive sentences where concurrent sentencing is otherwise the standard.' Batista, 116 Wn.2d at 784. In addition, in Oxborrow, the court noted, `There is no requirement that the length of the consecutive sentences not exceed the presumptive range.' Oxborrow, 106 Wn.2d at 535. And the court may `impose an exceptional sentence which includes both sentencing components.' Smith, 123 Wn.2d at 58. The trial court was not required to find Ellsworth's crimes violent before imposing consecutive sentences.
Ellsworth also cites to State v. Stephens, 116 Wn.2d 238, 803 P.2d 319 (1991) and State v. Garnier, 52 Wn. App. 657, 763 P.2d 209 (1988). He claims that in those cases, both defendants had `9 or more' offender points, both had multiple nonviolent current offenses, and both received sentences that were less than the maximum term statutes allowed (10 years). He suggests that in those cases, the courts imposed lesser sentences because the crimes were nonviolent. While the offenses were nonviolent, the courts did not rely on the nonviolent character of the crimes in their rulings. Instead, Stephens overruled Garnier to the extent that Garnier stood for the proposition that a high offender score above `9 or more' is, in and of itself, justification for imposing an exceptional sentence. Stephens, 116 Wn.2d at 246. Stephens revised that rule stating: We do not hold that an offender score greater than 9, in and of itself, justifies an exceptional sentence. We hold that such an offender score, in conjunction with multiple current offenses, may warrant an exceptional sentence if imposition of a standard sentence would result in there being no additional punishment for one or more of the current convictions. Stephens, 116 Wn.2d at 246. While the Stephens court did not impose consecutive sentences, it did not hold that the nonviolent nature of the crimes would not support consecutive sentences. Neither did Garnier. Rather, in light of Batista, the Stephens case lends further support to the rule that consecutive sentences may be imposed to prevent a criminal from escaping punishment for crimes he committed.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, A.C.J. and HUNT, J., Concur.