State v. Allert

• Decision Date: 01 August 1991
• Docket Number: No. 57281-0
• Citation: State v. Allert, 117 Wn.2d 156, 815 P.2d 752 (Wash. 1991)
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Terry Lee ALLERT, Respondent.

Page 156

117 Wn.2d 156

815 P.2d 752

The STATE of Washington, Petitioner, v. Terry Lee ALLERT, Respondent.

No. 57281-0.

Supreme Court of Washington En Banc.

Aug. 1, 1991.

Reconsideration Denied Oct. 22, 1991.

Donald C. Brockett, Spokane County Prosecutor and Kevin M. Korsmo, Deputy County Prosecutor, Spokane, for petitioner.

Keyer & Schrawyer, Lewis M. Schrawyer, Spokane, for respondent.

FACTS OF CASE

ANDERSEN, Justice.

The State appeals an exceptional sentence below the standard range imposed on the defendant, Terry Lee Allert, following his conviction on two counts of first degree robbery. We reverse and remand for resentencing within the standard range.

On November 27, 1987, the defendant entered Bill's Foods in Spokane County and robbed a clerk of $374. He wore a ski mask and carried a pistol which police later determined to be a pellet gun. Later that same evening, the defendant in a similar manner robbed Barney's Soopermarket, also in Spokane County, of $546. He pleaded guilty to two counts of first degree robbery. The defendant is a former police officer and was at one time Chief of Police at Ritzville, Washington.

At the sentencing hearing the trial court considered the following: a Presentence Investigation Report; an evaluation by the Alcohol Information Network; a report and testimony by Dr. Robert A. Wetzler, a psychiatrist; a report and testimony by Dr. E. Clay Jorgensen, a psychologist; a Victim Impact Statement and a letter from the defendant's employer. The standard sentencing range for the two robberies is concurrent terms of 41 to 54 months. The trial court, however, sentenced the defendant to an exceptional sentence of just 12 months in work release to be served in the Spokane County-City detention center to be followed by 24 months of community supervision. The defendant also was ordered to pay restitution and court costs and to abstain from the use of alcohol or drugs and to participate in counseling as directed by the community corrections officer.

At the sentencing hearing, Dr. Wetzler testified that the defendant suffered from depression, compulsive personality and alcohol addiction. Dr. Wetzler testified that those three problems interlocked to produce a serious psychiatric problem and mental disorder, and that the defendant's ability to perceive and understand was impaired.

The most relevant portions of Dr. Wetzler's testimony are as follows:

Q. Can you draw a distinction then between perhaps in [the defendant]'s case knowing physically what he was doing, yet at the same time not having the guilt mechanism, the perception of what he was doing and the perception of wrongfulness?

A. That's what I am trying to say. Perhaps I am not saying it well. That the ability to perceive and to understand is impaired. The intent, perhaps what he is doing is there. But the ability to understand and perceive and stop doing it or seek some other alternative, and these are all impaired.

* * * * * *

* * *

Q. Could he distinguish right from wrong?

A. I don't think that at this time I have to deal with right and wrong. I am not saying this man is insane. I am talking about a diminished capacity to understand and perceive. I don't think it reaches the level of an insanity defense offer [sic ] plea. I am quite sure that in looking back when a person is driving who is drunk doesn't have the time to perceive or understand what is right and wrong. So I think there is a diminished area also there.

Q. You also spoke, if I understand correctly, that he did not feel a sense of guilt, did not feel a sense of a conscience that bothered him?

A. I think you are misinterpreting perhaps what I said. I think he does have a guilt, but at the time this occurred his guilt signal was not present. He could not tell him to stop. Do you say this I only use it as an example of sometimes when I am doing something, if it is wrong or I am starting to do something, can I have the signal to say this is not wise, this is not good, this is not bad. Those are judgments and he didn't have the judgment to make that.

* * * * * *

Q. Would it not indicate that he had a perception of what he was doing in that he was taking steps to avoid detection by use of the ski mask, other steps to avoid identification, telling the people in the store to lie down, not look at him, that sort of thing? Doesn't that indicate that he had a perception what he was doing, that it was wrong and he had to do it in such a way as to avoid detection?

A. I can agree and disagree in the same breath. Perception is to know and to understand. To call upon background material in terms of information, intelligence, conception of past behavior. At that time he perceived, yes, but the perception and contact with reality was diminished and impaired.

Q. Found the method, didn't he, to do these things because he felt he needed money and couldn't get it any other way?

A. Yes, that's the error. In other words, you and I would not do these things because we could find an alternative, but he had none because of his mental illness.

Dr. Jorgensen essentially agreed with Dr. Wetzler. When asked whether the defendant knew the difference between right and wrong, Dr. Jorgensen testified:

A. I think [the defendant] was impaired in terms of his judgment and thinking and ability to reason out what was happening or what he was doing at that time.

Q. He could recognize that what he was doing was wrong but he was doing it for a number of reasons, whether those be good reasons or bad reasons?

A. I am not sure he was able to determine that.

The trial court entered the following findings, all of which are challenged by the State with the exceptions of findings 1.5 and 1.6.

I. FINDINGS

1.1 Defendant, at the time of the commission of these offenses, suffered from three medically recognized mental disorders, i.e., depression, severe compulsive personality, and alcoholism.

1.2 Because of the separate and combined effects of each mental disorder, the defendant's capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law was significantly impaired.

1.3 Based on the reports and testimony of Dr. Robert Wetzler and Dr. Clay Jorgensen, this court finds that had the defendant plead [sic ] not guilty, the defense of diminished capacity would have been viable and might well have resulted in acquittal.

1.4 An exceptional sentence of 12 months in work release confinement, followed by 24 months of community supervision, with the conditions of abstaining from use or possession of alcohol and drugs, and of TASC [Treatment Alternatives to Street Crime] monitoring, including Antabuse if appropriate, and of alcohol, drug and mental treatment, provides sufficient protection to society, and punishment to the defendant to accomplish the purposes of RCW Ch. 9.94A.

1.5 The defendant currently has stable employment and can remain employed while serving a work release sentence,

and his current employer has supplied this court with a letter of recommendation and support to that effort.

1.6 The pre-sentence investigation report prepared by Beverly Joplin of the Department of Corrections, recommends an exceptional sentence of 12 months in jail with work release, followed by 24 months of community supervision with the conditions of monitoring and treatment.

1.7 The treatment needs of the defendant can be met in the community, and while this factor is not sufficient alone to justify an exceptional sentence, it does help to establish that the purposes of RCW 9.94A will be satisfied with the imposition of an exceptional sentence.

1.8 The defendant does not suffer from an antisocial personality disorder, and objective psychological tests conducted by Dr. Jorgensen suggest the defendant's profile is not consistent with that of a criminal offender. As such, defendant is not a future risk to the community in terms of criminal, violent, or assaultive behavior, given the terms of the exceptional sentence as suggested by the Department of Corrections.

Based on these findings, the court concluded:

II. CONCLUSIONS

2.1 Considering the purpose of RCW Ch. 9.94A, there are substantial and compelling reasons justifying the exceptional sentence.

2.2 The above findings provide ample substantial and compelling reasons for an exceptional sentence; however, the significant impairment of the defendant's capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law; by itself provides the requisite substantial and compelling reasons for a departure.

2.3 The exceptional sentence as outlined above and in the body of the Judgment and Sentence herein is neither clearly too excessive nor clearly too lenient, and it satisfied the purpose of the Sentencing Reform Act.

The State appealed the sentence and the defendant filed a motion on the merits to affirm. A commissioner for the Court of Appeals entered an order reversing the trial court's exceptional sentence and remanded for resentencing. The defendant's motion to modify the commissioner's ruling was granted and in a published opinion, the Court of Appeals affirmed the trial court's exceptional sentence. ¹ 1] This court granted the Spokane County Prosecuting Attorney's request for review.

One issue is determinative.

ISSUE

Did the trial court err in imposing an exceptional sentence below the standard range?

DECISION

CONCLUSION. The reasons given by the trial court to support the defendant's exceptional sentence were either unsupported by the record or not legally sufficient to support such a sentence. Voluntary use of alcohol is not a mitigating sentencing factor under the current sentencing statutes.

Review of an exceptional sentence is governed by RCW 9.94A.210(4). An appellate court is to analyze the appropriateness of an exceptional sentence by answering the following three questions under the indicated standards of review: ²

1. Are the...