In re Mulholland
| Decision Date | 30 August 2007 |
| Docket Number | No. 79150-3.,79150-3. |
| Citation | 166 P.3d 677,161 Wn.2d 322 |
| Court | Washington Supreme Court |
| Parties | In the Matter of the Personal Restraint of Daniel C. MULHOLLAND, Respondent. |
Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Petitioner.
Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.
¶ 1 A Pierce County jury found Daniel Mulholland guilty of six counts of first degree assault and one count of drive-by shooting. The jury also determined that Mulholland was armed with a firearm during each of the assaults. The trial court thereafter ordered Mulholland's first degree assault sentences to be served consecutively, concluding that it was without discretion to impose concurrent sentences for separate serious violent offenses. Mulholland later filed a personal restraint petition (PRP) with the Court of Appeals. That court granted the petition, determining that the "trial court erred in concluding that it had no discretion" to impose concurrent sentences for the assaults as an exceptional sentence. Order Granting Petition, In re Pers. Restraint of Mulholland, No. 34484-0-II, at 3 (Wash.Ct.App. July 24, 2006). We granted the State's petition for review and now affirm the Court of Appeals.
¶ 2 Mulholland was charged in Pierce County Superior Court with six counts of first degree assault with a firearm and one count of drive-by shooting. The evidence produced at trial demonstrated that in November 2001, Mulholland visited the Tacoma home of Jeannine Tullar. During an encounter outside that home, Mulholland threatened Joshua Tullar, Jeannine Tullar's grandson, indicating that he would retaliate for a television set that was allegedly taken by Joshua's uncle. Later that evening, a series of gunshots were fired at the Tullar home while six people were eating dinner inside.
¶ 3 One of Jeannine Tullar's neighbors identified Mulholland's van as being in the vicinity of Tullar's home at the time the gunshots were fired. Tacoma police officers recovered three shell casings at the scene and later matched them to shell casings they found in Mulholland's van. When questioned by Tacoma police officers, Mulholland admitted that he had been at the Tullar residence earlier in the day and had asked about a television set. He denied being responsible for the shooting, however, saying that he had been buying his wife jewelry at the time of the shooting. Although Mulholland offered a receipt to confirm his alibi, the receipt related to a purchase that had been made two weeks before the shooting.
¶ 4 A jury found Mulholland guilty of the six first degree assault charges and made a special finding that he was armed with a firearm during each assault. He was also found guilty of the drive-by shooting charge. First degree assault is a "`[s]erious violent offense.'" RCW 9.94A.030(41)(a)(v). Under RCW 9.94A.589(1)(b), sentences for multiple serious violent offenses "shall be served consecutively to each other." Mulholland argued to the trial court that, notwithstanding the provisions of (1)(b), his sentence for the assaults should be served concurrently pursuant to RCW 9.94A.589(1)(a), on the basis that the assaults constituted the "`[s]ame criminal conduct.'" The trial court rejected Mulholland's argument because there were six different victims of the assaults. Consequently, it imposed consecutive sentences for each assault. In doing so, it concluded that it did not "have the discretion to" run the assault sentences "at the same time." Pers. Restraint Pet., App. H at 588.1 The trial court imposed a sentence of 927 months.2
¶ 5 Mulholland appealed to Division Two of the Court of Appeals, which affirmed. State v. Mulholland, noted at 121 Wash.App. 1081, 2004 WL 1303160 (2004). He thereafter filed a timely PRP in that court, asserting that he "was deprived of his constitutional right to effective assistance of counsel" because his counsel "fail[ed] to request an exceptional sentence below the standard range." Pers. Restraint Pet. at 8. He also claimed that the trial court abused its discretion by "fail[ing] to recognize" its authority to impose such a sentence. Id. The Court of Appeals granted his PRP, concluding that the trial court erred in determining it was without discretion to impose a mitigated exceptional sentence.
The State filed a petition for review with this court, asserting that the Court of Appeals did not use the "standards set forth for determining" a PRP. Pet. for Review at 5. The State argued that Mulholland's PRP must be viewed as a collateral attack on the judgment and sentence and that, therefore, he must show a "`fundamental defect which inherently results in a complete miscarriage of justice'" to proceed. Pet. for Review at 6 (quoting In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990)). Mulholland asserts the trial court's failure to recognize that it had discretion to impose the concurrent sentences as an exceptional sentence is a fundamental defect. We granted the State's petition.
¶ 6 We are confronted with two questions: (1) does a sentencing court have discretion to impose concurrent sentences for separate serious violent offenses as an exceptional sentence; and (2) if it does possess such discretion, was the failure of the sentencing court to recognize that it had such discretion a basis for granting Mulholland's PRP?
¶ 7 As we have noted above, each of the six assaults that Mulholland committed is a serious violent offense and sentences for such offenses "shall be served consecutively to each other." RCW 9.94A.589(1)(b). The question with which we are confronted is whether, notwithstanding the language of this statute, 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. This is a question we have not directly addressed.
¶ 8 In concluding that the sentencing court possessed the discretion to impose concurrent sentences for separate serious violent offenses, the Court of Appeals relied upon the language of RCW 9.94A.535. It provides, "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. The Court of Appeals focused on the fact that this statute does not differentiate between RCW 9.94A.589(1)(a) and (1)(b), and instead, refers broadly to the provisions of RCW 9.94A.589(1). Noting the absence of a distinction between the subsections, the Court of Appeals determined that sections (1)(a) and (1)(b) of RCW 9.94A.589 are treated similarly under RCW 9.94A.535 and concluded, therefore, that if mitigating circumstances are present, concurrent sentences may be imposed by the sentencing court as an exceptional sentence. Consequently, it determined that the sentencing court erred in holding it was without discretion to impose concurrent sentences on the assault convictions.
¶ 9 In support of its contention that the Court of Appeals was incorrect, the State argues that the focus should be on the text of RCW 9.94A.589(1), as opposed to RCW 9.94A.535. Specifically, the State asserts that there is a critical difference between subsections (1)(a) and (1)(b) of RCW 9.94A.589 in that only one of the subsections, (1)(a), refers back to RCW 9.94A.535.3 See Pet. for Review at 14-15. That subsection expressly provides that sentences imposed under it should run concurrently and that exceptional sentences "may only be imposed under the exceptional sentence provisions of RCW 9.94A.535." RCW 9.94A.589(1)(a). In contrast, (1)(b), the section under which Mulholland was sentenced, requires sentences for separate serious violent offenses to be served consecutively. It does not, the State points out, have a similar reference back to the exceptional sentence provisions of RCW 9.94A.535. The State reasons that the proper inference to draw from the omission in RCW 9.94A.589(1)(b) of a reference to RCW 9.94A.535 is that the legislature did not intend the exceptional sentence statute to apply when the sentencing is under (1)(b) because "`each word of a statute is to be accorded meaning.'" Pet. for Review at 13-14 (quoting State ex. rel. Schillberg v. Barnett, 79 Wash.2d 578, 584, 488 P.2d 255 (1971)).
¶ 10 In our judgment, the State's argument fails because it pays too little heed to the plain language of RCW 9.94A.535. As we have observed above, it provides that exceptional sentences may be imposed when sentencing takes place under RCW 9.94A.589(1). Because it does not differentiate between subsections (1)(a) and (1)(b), it can be said that a plain reading of the statute leads inescapably to a conclusion that exceptional sentences may be imposed under either subsection of RCW 9.94A.589(1).
¶ 11 Mulholland's interpretation of the relevant statutes is further supported by the fact that RCW 9.94A.535 permits the defendant or the State to appeal a sentence that departs from the standards governing concurrent and consecutive sentences. It provides that "[a] departure from the standards in RCW 9.94A.589 (1) . . . may be appealed by the offender or the state." RCW 9.94A.535 (emphasis added). This is instructive because it illustrates that the State may be the aggrieved party when an exceptional sentence is imposed under RCW 9.94A.589(1). The State would be the aggrieved party only if concurrent sentences are imposed where consecutive sentences are presumptively called for, as they would be if a defendant, like Mulholland, was sentenced under (1)(b).
¶ 12 The State argues that Mulholland's interpretation of the relevant statutes is inconsistent with State v. Flett, 98 Wash.App. 799, 992 P.2d 1028 (2000). We disagree. In Flet...
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