Opinion
No. 33073-3-II.
May 31, 2006.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 04-1-00732-9, Stephen M. Warning, J., entered March 24, 2005.
Counsel for Appellant(s), Amie L. Hunt, Hall of Justice, Cowlitz Prosecuting Attorneys Office, 312 SW 1st Ave, Kelso, WA 98626-1739.
Counsel for Respondent(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Hunt, J.
The State appeals from an exceptional sentence downward imposed following Russell David Keisala's jury conviction for bail jumping. The State argues that the sentencing court's reasons do not justify a downward departure from the standard range sentence. We remand for clarification of the sentencing court's reasons.
Facts
On March 8, 2005, a jury found Keisala guilty of bail jumping. The parties stipulated to the following felony criminal history:
A violation of RCW 9A.76.170(1). The jury acquitted him of a first degree theft charge. The court dismissed the counts of taking a motor vehicle without owner's permission and second degree theft.
As proof of the 1995 conviction, the director of the Cowlitz County Law Enforcement Records presented records showing Keisala's arrest on April 7, 1995, for DWLS. The Cowlitz County District Court administrator testified that the court did not have a hard copy of Keisala's conviction but that both the District Court Information System (DISCIS) and the Woodland Municipal Court system referred to a May 4, 1995 DWLS conviction. Additionally, a Woodland Police sergeant testified to filing a citation against Keisala for DWLS 3.
The sentencing court found that the State had proven the 1995 DWLS 3 based primarily on the DISCIS records. But the court was not satisfied that the standard range sentence was appropriate:
Now, having said that, I think it's just one more example of the utter lunacy of the sentencing guidelines that a ten-year old conviction for DWLS in the Third Degree, which is, I think, the lowest level of crime that I can think of, makes a difference, basically, between what, one to three months and two to three years sentence? And, while it may be sufficient to revive those prior convictions, I want everyone to know right now I am not going to be sentencing Mr. Keisala in accordance with what that range would produce, because it's just — it would be a sentence that's clearly too harsh under the guidelines.
Report of Proceedings (RP) (Mar. 16, 2005) at 27-28. Defense counsel then argued for an exceptional sentence downward, explaining:
Mr. Keisala has absolutely turned his life around since his last felony charge. He's got a family — a daughter and a wife — that are waiting for him in Arizona. He's been waiting to get this matter resolved, so he can join them down there. He's got a good job waiting for him. It certainly is in everyone's best interests that he get down there and start earning some money, because he's going to have some — some money to pay back this court.
RP (Mar. 16, 2005) at 29. The court then explained its view of the conviction:
Mr. Keisala, I guess what struck me about this whole proceeding is you were sitting here, obviously reasonable minds can differ about how much sense your story about the truck/trailer — or, pardon me, the trailer actually made, but there was no question but what you were in the boat you were in because, at some point, you just chose to kind of ignore the whole thing. And, you got into the same boat then on the crime you were convicted of, the Bail Jump, because you chose to ignore the whole thing. And, I don't mean this in a derogatory manner, but this is — how I view this thing, the conduct that you're being sentenced on is not so much a matter of an attempt to break the law, as just sort of felony stupid.
RP (Mar. 16, 2005) at 29-30. The court then imposed a two-month sentence and at a later hearing entered the following findings of fact and conclusions of law:
I. FINDINGS OF FACT
1. The defendant was found guilty following a jury trial of bail jumping on a class C felony.
2. The defendant stipulated and the court finds that the defendant has six prior felony convictions with sentencing dates between March 11, 1987 and January 27, 1993, each of which count for scoring purposes under the Sentence Reform Act.
3. There is a preponderance of evidence to show that the defendant was convicted on May 4, 1995, by his plea, for the crime of driving while license suspended under citation 9771 WPD issued by the Woodland Police Department on October 31, 1994.
4. The defendant admitted and the court finds that the defendant was convicted of assault in the fourth degree on March 16, 2000.
5. The defendant's six felony convictions would wash out for scoring purposes but for either one of the defendant's two gross misdemeanor convictions the 1995 driving while license suspended in the third degree or the 2000 assault in the fourth degree.
6. The defendant's standard sentence range, with six prior felonies that count for scoring purposes, for bail jumping on a class C felony is 22 to 29 months.
7. If the defendant's 1995 and 2000 convictions did not exist, the defendant's prior felonies would wash out and his standard sentence range for bail jumping on a class C felony would be 1 to 3 months.
II. CONCLUSIONS OF LAW
1. Given the purposes of the Sentence Reform Act, a sentence within the standard sentence range of 22 to 29 months is too harsh.
2. An exceptional sentence below the standard sentencing range of 2 months['] confinement is appropriate.
3. The [two] misdemeanor convictions do not accurately portray the defendant's danger to the community, [and] had the DWLS been sentenced [one] month differently, the prior felonies would not count. A [two] year difference in sentence range based on a [ten] year old 3 DWLS is neither rational nor appropriate.
CP at 19. The State appeals.
Discussion
Generally, a court must impose a sentence within the standard sentence range, but it may impose a sentence below the standard range for `substantial and compelling' reasons. RCW 9.94A.535. A reviewing court asks three questions in reviewing such a sentence: (1) Does evidence in the record support the sentencing court's reasons? We answer this question applying a clearly erroneous standard of review. (2) Do these reasons justify departing from the standard sentencing range? We answer this question applying de novo review. (3) Is the sentence imposed clearly too excessive or too lenient? We answer this question, reviewing for an abuse of discretion. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005); State v. Ha'mim, 132 Wn.2d 834, 840, 940 P.2d 633 (1997).
1. Findings of Fact.
While the State assigns error to the first three of the trial court's findings of fact, it is clear to us that it intended to assign error only to the conclusions of law in support of the exceptional sentence. See Br. of Appellant at 5-6 (`In this matter the State does not contest the trial court[']s Finding[s] of Fact. There is ample evidence in the record to support all the findings.'). We treat the findings then as verities and address only the court's conclusions of law. State v. Altum, 47 Wn. App. 495, 502, 735 P.2d 1356, review denied, 108 Wn.2d 1024 (1987).
2. Mitigating Reasons.
The sentencing court's first reason was that a standard range sentence was `too harsh' in light of the SRA's purposes. RP (Mar. 16, 2005) at 28. The court did not identify any particular purpose or explain this in its oral decision. See State v. Alexander, 125 Wn.2d 717, 730 n. 22, 888 P.2d 1169 (1995) (sentencing court must identify particular mitigating factors). As the Supreme Court explained in State v. Law, a sentencing court may not base an exceptional sentence on factors the legislature necessarily considered in establishing the standard sentence range and, importantly, the legislature necessarily considered the SRA's purposes in establishing the presumptive sentence range. Law, 154 Wn.2d at 95 (discussing State v. Pascal, 108 Wn.2d 125, 137-38, 736 P.2d 1065 (1987)). Significantly here, the court quoted its explanation from Pascal when it stated:
`[T]he trial court's subjective determination that these ranges are unwise, or that they do not adequately advance the above goals [defendant's lack of criminal history, low threat to the public, and frugal use of State resources], is not a substantial and compelling reason justifying a departure.'
Law, 154 Wn.2d at 95-96 (quoting Pascal, 108 Wn.2d at 137- 38). We cannot conclude from the record before us that the court violated this principle. Rather, the court's lack of explanation for this mitigating factor compels us to remand for clarification.
The sentencing court's next reason for the exceptional sentence downward was that Keisala's two misdemeanor convictions (i.e., the 1995 and 2000 convictions) did `not accurately portray the defendant's danger to the community.' CP at 19. This is an improper basis for an exceptional sentence. Clearly in choosing to use the phrase `any crime' in RCW 9.94A.525, the legislature intended that any crime, including minor misdemeanors, would prevent the wash-out provisions from applying. In making this choice, the legislature necessarily considered the danger to the community. State v. Fowler, 145 Wn.2d 400, 409, 38 P.3d 335 (2002). Therefore, the trial court's reason is improper because it relies on Keisala's criminal history and the seriousness of the current offense. These are not mitigating factors justifying a downward departure. Fowler, 145 Wn.2d at 405.
In Fowler, our Supreme Court held that the sentencing court improperly relied on a finding that Fowler `had no history of violent behavior and no pertinent criminal history' to support a downward sentence. Fowler, 145 Wn.2d at 406. The court reasoned that a defendant's criminal history cannot be used to justify an exceptional sentence downward, the only exception being that it can be considered in combination with a finding that the defendant was induced to commit the crime or lacked a predisposition to commit the offense. Fowler, 145 Wn.2d at 406-07. The court, here, made no such finding.
The court's mitigating reasons must "distinguish the defendant's crime from others in the same category." Fowler, 145 Wn.2d at 405 (quoting State v. Gaines, 122 Wn.2d 502, 509, 859 P.2d 36 (1993)). The trial court made no distinguishing findings.
The sentencing court also reasoned that had Keisala's sentencing for the DWLS 3 been one month later, his prior felonies would have washed out of his offender score and thus it is irrational and inappropriate to impose a standard range sentence. This appears to be a consideration of Keisala's criminal history and the seriousness of his offense, not anything that distinguishes his crime from others committing the same offense.
The State urges us to take the view that the sentencing court simply disagrees with the legislature, deems its choices as to use of criminal history and punishment as improper, and chose to impose a sentence without regard to legislative prerogative. See State v. Varga, 151 Wn.2d 179, 193, 86 P.3d 139 (2004) (legislature's power to set punishment is plenary and subject only to constitutional provisions). But we decline to do so without allowing the trial court to clarify its first reason in support of the exceptional sentence.
3. Length of Sentence.
Because we cannot assess the appropriateness of the sentencing court's reason for imposing an exceptional sentence absent clarification, we need not consider the propriety of the sentence imposed at this time.
This matter is remanded for the sentencing court to clarify its reason in support of the exceptional sentence. If upon further consideration, the sentencing court deems the length of the sentence imposed improper, it may resentence Keisala as it deems appropriate.
Remanded.
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.
HUNT, J. and VAN DEREN, A.C.J., concur.