State v. Bradley
| Decision Date | 17 February 2016 |
| Docket Number | 46421-7-II |
| Parties | STATE OF WASHINGTON, Appellant, v. RODREA VONSHON BRADLEY, Respondent. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Rodrea Bradley was convicted of first degree escape, and the trial court imposed an exceptional sentence below the standard range. The State appeals Bradley's exceptional sentence assigning error to three of the trial court's findings of fact and two of the trial court's conclusions of law relating to the sentence. Specifically, the State argues that the trial court erred in relying on reasons already encompassed by the purposes of the Sentencing Reform Act (SRA), chapter 9.94A RCW, to justify Bradley's downward exceptional sentence.
We hold that (1) the State waived its assignment of error that the record did not support findings of fact 3, 4, and 5 because the State failed to present argument in its brief on these assignments, (2) findings of fact 3 and 4 provide adequate legal justification to support the trial court's imposition of Bradley's downward exceptional sentence and (3) although finding of fact 5 would be invalid as a stand-alone reason for imposing the exceptional sentence because it relates to the SRA's purposes, we interpret that finding as merely providing support for the exceptional sentence. Accordingly, we affirm Bradley's exceptional sentence.
In December 2013, the trial court ordered Bradley to serve a sentence for a conviction for attempted unlawful possession of a controlled substance at the Alternative to Confinement Program (ATC) in Pierce County. The ATC program permitted Bradley to serve his sentence outside confinement, but the program imposed certain reporting obligations and requirements. Bradley started the program on January 2, 2014 but failed to report or comply with any of the program's requirements after that date. Bradley was convicted of first degree escape based on his failure to report to the ATC program.
At sentencing, the parties agreed that Bradley's offender score was 10, and that his standard sentence range was 63 to 84 months. Bradley requested a downward exceptional sentence. He argued that his ability to conform his conduct to the requirements of the law was significantly impaired because he had been evicted from his residence, did not have access to transportation to report to the ATC program, was unemployed with no income, was the sole provider for his two minor daughters, and spent his time attempting to find safe and stable housing for his family. In addition, Bradley argued that his conduct fell at the low end of the offending behavior that was contemplated by the first degree escape statute. The State argued that Bradley should be sentenced to the low end of the standard range.
The trial court made the following findings of fact:
Clerk's Papers (CP) at 49. The trial court entered the following conclusions of law:
The trial court sentenced Bradley to 14 months in confinement, which was well below the standard sentence range. The State appeals Bradley's sentence.
Under RCW 9.94A.535, a trial court "may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of [the SRA], that there are substantial and compelling reasons justifying an exceptional sentence." The legislature enacted the exceptional sentence provision of the SRA to authorize courts to tailor the sentence to the facts of the case, recognizing that not all individual cases fit the predetermined sentencing grid. State v. Davis, 146 Wn.App. 714, 719-20, 192 P.3d 29 (2008).
RCW 9.94A.535(1) provides a list of mitigating factors that can support a trial court's imposition of an exceptional sentence below the standard range if established by a preponderance of the evidence. The statute states that the factors are "illustrative only and are not intended to be exclusive reasons for exceptional sentences." RCW 9.94A.535(1). However, non statutory factors supporting an exceptional below-range sentence must "relate to the crime, the defendant's culpability for the crime, or the past criminal record of the defendant." State v. Law, 154 Wn.2d 85, 89, 110 P.3d 717 (2005).
Under RCW 9.94A.585(4), to reverse an exceptional sentence a reviewing court must find:
(a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
The standard of review is different for each of these three reasons. A reviewing court applies (1) a clearly erroneous standard for whether there is insufficient evidence in the record to support the reasons for imposing an exceptional sentence, (2) a de novo standard for whether the reasons supplied by the sentencing court do not justify a departure from the standard range, and (3) an abuse of discretion standard for whether the sentence is clearly excessive or clearly too lenient. State v. France, 176 Wn.App. 463, 469, 308 P.3d 812 (2013).
The trial court stated its reasons for imposing an exceptional sentence in findings of fact 3, 4, and 5. The State assigns error to these findings of fact, and apparently claims that there is insufficient evidence in the record to support these reasons. We hold that the State waived its assignments of error to the trial court's findings of fact because the State failed to present any argument regarding these assignments and therefore we treat the trial court's findings of fact as verities on appeal.
A party that offers no argument in its opening brief on an assignment of error to a finding of fact waives the assignment of error. State v. Radcliffe, 139 Wn.App. 214, 220, 159 P.3d 486 (2007). And we treat waived findings of fact as verities on appeal. See State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995) ().
As stated above, one basis for reversing an exceptional sentence is that the record does not support the reasons supplied by the sentencing court. RCW 9.94A.585(4). We apply a clearly erroneous standard of review for this basis. France, 176 Wn.App. at 469. The State's assignment of error to findings of fact 3, 4, and 5 - the trial court's reasons for imposing the exceptional sentence - apparently relates to this basis.
However, the State fails to provide any argument that the record does not support findings of fact 3, 4, and 5. The State's only reference to the evidentiary support for any of these findings comes in the last paragraph of the argument section of its brief. In discussing finding of fact 3, the State asserts that "a review of the record shows there is no support for such a finding." Br. of Appellant at 15. But the State fails to actually argue why the record does not support finding of fact 3. In fact, the State never refers to the record or to the clearly erroneous standard of review. Further, the State never even mentions findings of fact 4 and 5 in the argument section of its brief.
The State does provide some argument regarding finding of fact 3. The State argues that the trial court did not actually rely on finding of fact 3 in imposing the exceptional sentence, but instead relied on other improper factors. However, this argument (discussed below) does not address whether the record supports finding of fact 3. Instead, the argument seems to relate to the second basis for reversing an exceptional sentence: whether the trial court's reasons justify a sentence outside the standard sentence range.
Because the States provides no meaningful argument that the record does not support findings of fact 3, 4, and 5, we hold that the State waived its challenge to these findings of fact. Therefore, we treat findings of fact 3, 4, and 5 as verities on appeal.[1]
The State argues that the trial court's reasons for Bradley's exceptional sentence do not justify a sentence outside the standard range for first degree escape. We disagree.
A second basis for reversing an...
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