State v. Mitchell

Full title: THE STATE OF WASHINGTON, Respondent, v. TOMMIE DESHAWN MITCHELL, Appellant

Court: The Court of Appeals of Washington, Division One

Date published: Feb 25, 2008

143 Wn. App. 1013 (Wash. Ct. App. 2008)

143 Wash. App. 1013

Opinion

No. 55446-8-I.

February 25, 2008.

Appeal from a judgment of the Superior Court for King County, No. 03-1-10008-7, Nicole MacInnes, J., entered December 10, 2004.

Reversed and remanded by unpublished per curiam opinion.

PER CURIAM.

This case was remanded to us by our Supreme Court for reconsideration in light of In re Personal Restraint of Mulholland. ¹

1 161 Wn.2d 322, 166 P.3d 677 (2007).

Tommie Mitchell was found guilty on three counts of first degree assault, with enhancements on all three assault charges for the use of a firearm. Mitchell requested an exceptional sentence down, and the State agreed an exceptional sentence was appropriate. While expressing its discomfort with the length of Mitchell's sentence, the court ruled that it did not have the authority under the sentencing statutes to impose concurrent, rather than consecutive, sentences.

Mitchell challenged the trial court's conclusion that it had no legal authority to impose concurrent sentences. This court affirmed the trial court's rulings under RCW 9.94A.589.

RCW 9.94A.589 provides that when a person is sentenced for two or more serious violent offenses arising from separate and distinct criminal conduct, the sentences "shall be served consecutively to each other."² In Mulholland, the Supreme Court held that, the mandatory language of the statute notwithstanding, a sentencing court may order multiple sentences for serious violent offenses to run concurrently, rather than consecutively, as an exceptional sentence under RCW 9.94A.535.³

2 RCW 9.94A.589(1)(b)

3 Mulholland, 161 Wn.2d at 327-30. The relevant section of the statute cited by the court reads: "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 subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A.585 (2) through (6)." RCW 9.94A.535.

Given our Supreme Court's holding in Mulholland, we reverse and remand for reconsideration of the sentence imposed. Under Mulholland, the trial court has the discretion to impose an exceptional sentence by ordering the sentences to run concurrently.

REVERSED and REMANDED.