State v. Alexander

• Decision Date: 26 January 1995
• Docket Number: No. 61054-1
• Citation: State v. Alexander, 125 Wn.2d 717, 888 P.2d 1169 (Wash. 1995)
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. James Maurice ALEXANDER, and Cesar Leal Villela and each of them, Defendants.

Page 717

125 Wn.2d 717

888 P.2d 1169

The STATE of Washington, Respondent, v. James Maurice ALEXANDER, and Cesar Leal Villela and each of them, Defendants.

No. 61054-1.

Supreme Court of Washington En Banc.

Jan. 26, 1995.

Seattle-King County Public Defender Ass'n, Jeff Ellis, Seattle, for petitioner.

Norm Maleng, King County Pros. Atty., Timothy Bradshaw, Theresa Fricke, Sr. Deputy Pros. Attys., Seattle, for respondent.

UTTER, Justice.

James M. Alexander seeks reversal of a Court of Appeals decision vacating an exceptional sentence and directing the trial court to impose a sentence within the standard range as calculated under RCW 9.94A, the Sentencing Reform Act of 1981 (SRA). We reverse the Court of Appeals decision and reinstate Alexander's exceptional sentence as calculated and imposed by the trial court.

Background

On June 26, 1991, James M. Alexander approached an undercover police officer, R. Ceja, on a city block in Seattle and asked if Officer Ceja wanted some "coca" (cocaine). Officer Ceja said yes and asked, "how about a viente?" ($20 worth of cocaine). Alexander led Officer Ceja to a donut shop in the area and walked around for some time before contacting Cesar Leal Villela. Officer Ceja attempted to give Villela $20 of police department buy money in exchange for cocaine, but Alexander intercepted the money. Alexander kept $5 of the intercepted buy money and gave Villela $15. In exchange for the $15, Villela gave Alexander a bindle of cocaine which Alexander then passed to Officer Ceja. The cocaine was later estimated to weigh .03 gram and to be too small to remeasure. Alexander was arrested shortly thereafter and charged with delivery of a controlled substance in contravention of RCW 69.50.401(a)(1)(i). ¹

After a jury convicted Alexander as charged, the trial court proceeded to sentence him under the sentencing guidelines established by the SRA and codified at RCW Chapter 9.94A. Despite a minimum standard sentence of 36 months, ² the trial court judge, the Honorable Anne Ellington, entered an exceptional sentence of 18 months. The reasons furnished by Judge Ellington for the downward departure from the standard sentence guidelines were roughly as follows: (1) the amount of controlled substance was extraordinarily small; (2) Alexander exhibited a low level of involvement or sophistication in committing the crime; and (3) Alexander's participation in the drug hierarchy was only peripheral. She also noted that the exceptional sentence furthered the SRA's concern for proportionality and just punishment.

The State appealed the sentence, arguing the amount of the controlled substance involved in the crime, Alexander's lack of sophistication in committing the crime, and the trial court's concern for proportionality, did not constitute substantial and compelling reasons to depart from the standard range. The State further argued that even if those reasons constituted substantial and compelling reasons justifying a downward departure from the guidelines, the exceptional sentence imposed on the basis of these reasons was too lenient and as such was a reversible abuse of the trial court's discretion. The Court of Appeals agreed with the State on most of its claims, holding an extraordinarily small amount of a controlled substance, a trial court's concern to impose a proportionate punishment, and a trial court's concern to provide a just punishment ³ were not legally supportable reasons for downward departure from the standard sentence range. On the State's claim regarding lack of sophistication, the Court of Appeals appears to have held a "low degree of sophistication and peripheral participation in the drug hierarchy" ⁴ was a substantial and compelling reason for departure, but to have concluded the trial court's finding of fact on this issue to have been clearly erroneous. ⁵ Holding on the facts of this case that there were no substantial and compelling reasons justifying departure from the standard sentence range, the Court of Appeals reversed Alexander's exceptional sentence and remanded for resentencing within the standard range.

We granted Alexander's petition for review of the Court of Appeals decision pursuant to RAP 13.4(b). Alexander's petition presents the following issues for review: ⁶ (1) is an extraordinarily small amount of controlled substance a substantial and compelling reason for downward departure from the standard sentence guideline?; (2) is a person's low level of involvement or sophistication in executing a crime a substantial and compelling reason for downward departure from the standard sentence guideline?; and, (3) is a person's peripheral participation in the drug hierarchy a substantial and compelling reason for downward departure from the standard sentence guideline? ⁷

Analysis

Sentences must generally fall within the standard sentence range established by the SRA. RCW 9.94A.120(1). There are three exceptions to this general rule. Two concern first-time and sexual offenders respectively and are not applicable in this case. ⁸ This case involves a third exception which provides:

The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

(Italics ours.) RCW 9.94A.120(2). In reviewing a challenge to an exceptional sentence imposed pursuant to RCW 9.94A.120(2), this court applies a 3-prong test. ⁹

I. Factual Determinations Are Treated as Verities on Appeal

First, we examine whether the record supports the findings of fact used to justify the exceptional sentence. RCW 9.94A.210(4)(a). Appellate courts ordinarily review a finding of fact to see whether the finding is "clearly erroneous". State v. Estrella, 115 Wash.2d 350, 355, 798 P.2d 289 (1990) (citing State v. Pennington, 112 Wash.2d 606, 608, 772 P.2d 1009 (1989)). However, because the State did not properly contest the findings that the crime involved an "extraordinarily small amount" of cocaine, that Alexander's crime reflected a low degree of involvement or sophistication, or that Alexander had only "peripheral participation in the drug hierarchy", ¹⁰ we treat such facts as verities on appeal. Morris v. Woodside, 101 Wash.2d 812, 815, 682 P.2d 905 (1984) (because State failed to provide verbatim report of proceedings which constituted evidence relevant to the disputed findings of fact, Court of Appeals would consider factual findings to be verities on appeal); see also State v. Alexander, 70 Wash.App. 608, 612, 854 P.2d 1105 (1993) (citing Morris v. Woodside, 101 Wash.2d 812, 815, 682 P.2d 905 (1984)). ¹¹

II. Downward Departure From Standard Range Is Legally Justified

Second, we examine whether each factual finding constitutes a "substantial and compelling" reason for departing from the standard range as a matter of law. RCW 9.94A.210(4)(a); RCW 9.94A.120(2); State v. Allert, 117 Wash.2d 156, 168, 815 P.2d 752 (1991). We conclude the first two reasons (an extraordinarily small amount of a controlled substance; and a defendant's low level of involvement in committing the crime) may each be properly advanced by a trial court as a substantial and compelling reason for departure, but the third (a defendant's peripheral participation in the drug hierarchy) may not.

In an effort to assist trial courts which make the initial determination whether a factual finding may support downward departure from the standard sentence range, the Legislature has provided in RCW 9.94A.390(1) a list of expressly non-exclusive factors justifying downward departures. Because none of the statutorily-defined reasons identified as legitimate reasons for downward departure by RCW 9.94A.390 is at issue in this case, we must determine judicially whether the reasons justify departure.

The trial court held that because RCW 9.94A.390(2) permits exceptional sentences upward for crimes involving quantities of drugs substantially greater than for personal use, a high degree of sophistication, or a defendant in a high position in the drug hierarchy, then "[b]y logical corollary" a very small amount of drugs, a low degree of involvement or sophistication, and a defendant's very low position in the drug hierarchy are justifications for a sentence below the standard range. ¹² We agree with the Court of Appeals which rejected this reasoning on the ground "[t]he lack of an aggravating circumstance does not create a mitigating circumstance". Alexander, 70 Wash.App. at 613, 854 P.2d 1105, (citing State v. Armstrong, 106 Wash.2d 547, 551, 723 P.2d 1111 (1986)). However, it is nevertheless possible that another theory supports treatment of the three reasons under review as substantial and compelling reasons for departure. See RCW 9.94A.390 (statutory list of mitigating circumstances is illustrative only and not exclusive).

All of the reasons currently under review are related to the execution of the crime itself. ¹³ The Legislature's recognition that "not all exceptional fact patterns can be anticipated" informs our inquiry as to whether a fact which is specific to the commission of a crime may constitute a judicially recognized "substantial and compelling" reason for departure from the standard range. State v. McAlpin, 108 Wash.2d 458, 465, 740 P.2d 824 (1987) (citing Washington Sentencing Guidelines Comm'n, Sentencing Guidelines Implementation Manual § 9.94A.390 cmt. (1984)). As one commentator has suggested, "while factors which truly distinguish the crime from others of the same statutory category may justify an exception, those which are inherent in that class of crimes and do not distinguish the defendant's behavior from that inherent in all crimes of that classification may not". D. Boerner, Sentencing in Washington, § 9.6 at 9-13 (1985). Accordingly, in determining whether a factor legally supports departure from the standard sentence range, we employ a 2-part test:

First,...