State v. Fowler

• Citation: 38 P.3d 335,145 Wn.2d 400,145 Wash.2d 400
• Decision Date: 17 January 2002
• Docket Number: No. 70481-3.,70481-3.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Joshua James FOWLER, Petitioner.

38 P.3d 335

145 Wn.2d 400

145 Wash.2d 400

STATE of Washington, Respondent, v. Joshua James FOWLER, Petitioner.

No. 70481-3.

Supreme Court of Washington, En Banc.

Argued June 12, 2001.

Decided January 17, 2002.

Washington Appellate Project, Jason Brett Saunders, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, William M. Berg, Deputy, Seattle, for Respondent.

ALEXANDER, C.J.

We granted Joshua Fowler's petition to review a decision of the Court of Appeals in which that court reversed the sentencing court's imposition of a sentence below the standard range following Fowler's plea of guilty to a charge of first degree robbery. We conclude that the Court of Appeals did not err in reversing the exceptional sentence and, therefore, affirm that court, concluding, as it did, that Fowler should be resentenced within the standard range.

I. FACTS

On October 30, 1997, Joshua Fowler joined his friends Donald Aho and Denise Sables at "Fast Freddy's Tavern" in Kent. Report of Proceedings (RP) (Apr. 29, 1999) at 32. Fowler, who had gone without sleep for three days while drinking alcohol and using methamphetamine, ingested additional alcohol and methamphetamine at the tavern.

At the instigation of Sables, Fowler departed the tavern with Sables and Aho and went with them to Ken Carroll's home. His purpose in going to Carroll's home was to collect a debt he believed Carroll owed to him. Before entering Carroll's home, Fowler armed himself with a handgun and knife. Once inside the apartment, an argument ensued between Fowler and Carroll. This led to Fowler hitting Carroll in the head with the gun that Fowler was carrying. Carroll was then taken to a back bedroom where, after being bound by Aho, he was threatened and beaten by Fowler. As Fowler administered the beating, he told Carroll that he would "cut him" in order to "teach him a lesson." Id. at 9. Carroll's roommate, Thomas Gochanour, who had also been bound by Aho, was struck in the face by Fowler with the flat side of the knife that Fowler was carrying. Fowler also threatened to cut Gochanour's throat with the knife. After engaging in this activity, Fowler and his accomplices fled taking some videotapes, a cellular phone, a wallet, and some money from the apartment.

Eighteen months after the above-described incident, Fowler turned himself into the police. He was thereafter charged with and pleaded guilty to first degree robbery.¹ At sentencing, the trial court determined that because Fowler had no prior criminal history, the standard sentencing range for the offense was 31 to 41 months, plus a mandatory 60 month firearm enhancement penalty. Fowler sought an exceptional sentence of six months, exclusive of the firearm enhancement, basing his request on what he claimed was the presence of three statutory mitigating factors. Although the trial court did not find any of those factors present, it, nevertheless, imposed a 15 month exceptional sentence based on its determination that Fowler: (1) had no history of violent behavior and no pertinent criminal history; (2) was experiencing symptoms of extreme sleep deprivation at the time of the offense; (3) exhibited behavior at the time of the offense that was aberrational and represented an isolated incident of violence; (4) had strong family support; and (5) was a low to moderate risk to reoffend. The State appealed the sentence to the Court of Appeals, contending that the reasons given by the trial court did not support an exceptional sentence. The Court of Appeals agreed with the State and reversed the sentence, remanding for resentencing within the standard range. Fowler thereafter petitioned this court for review and we granted his petition.

II. ANALYSIS

Fowler contends that the Court of Appeals erred in setting aside his exceptional sentence and directing the trial court to impose a sentence within the sentence range established in the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW. He argues, in support of his contention, that the reasons relied on by the sentencing court "are substantial and compelling enough to justify the exceptional sentence." Pet. for Review at 10. The State responds that we should affirm the Court of Appeals, asserting that the reasons relied on by the trial court do not justify an exceptional sentence downward because they have already been taken into account in the computation of the presumptive range for the offense and/or do not distinguish the defendant's crime from others in the same category.

A court must generally impose a sentence within the standard sentence range. RCW 9.94A.120(1). It may, however, impose a sentence above or below the standard range for reasons that are "substantial and compelling." RCW 9.94A.120(2). The SRA contains a list of aggravating and mitigating factors "which the court may consider in the exercise of its discretion to impose an exceptional sentence." RCW 9.94A.390. Although this list is not exclusive, any such reasons must relate to the crime and make it more, or less, egregious. State v. Akin, 77 Wash. App. 575, 584, 892 P.2d 774 (1995).

In imposing a sentence below the standard range here, the sentencing court did not rely on any of the mitigating factors listed in the statute. Instead it concluded that an exceptional sentence downward was justified by a combination of factors that were "not in and of themselves" grounds for an exceptional sentence.² Clerk's Papers (CP) at 51. Although, as noted above, the list of mitigating factors is not exclusive, any reasons that are relied on for deviating from the standard range must "distinguish the defendant's crime from others in the same category." State v. Gaines, 122 Wash.2d 502, 509, 859 P.2d 36 (1993) (citing State v. Grewe, 117 Wash.2d 211, 216, 813 P.2d 1238 (1991)). A sentencing court may not, in imposing an exceptional sentence, take into account the defendant's criminal history and the seriousness level of the offense because those are considered in computing the presumptive range for the offense. See State v. Nordby, 106 Wash.2d 514, 518 n. 4, 723 P.2d 1117 (1986)

.

Appellate review of a sentence outside the range is governed by RCW 9.94A.210(4). Under that statute, the appellate court is to engage in a three-part analysis. First, the court must determine if the record supports the reasons given by the sentencing court for imposing an exceptional sentence. As this is a factual inquiry, the trial court's reasons will be upheld unless they are clearly erroneous. Id. at 517-18, 723 P.2d 1117. The appellate court must next determine, as a matter of law, whether the reasons given justify the imposition of an exceptional sentence. Id. at 518, 723 P.2d 1117. The sentencing court's reasons must, as we observed above, be "substantial and compelling." RCW 9.94A.120(2). Finally, the court is to examine whether the sentence is clearly excessive or clearly lenient under the "abuse of discretion" standard. RCW 9.94A.210(4); State v. Jeannotte, 133 Wash.2d 847, 855-56, 947 P.2d 1192 (1997) (citing State v. Allert, 117 Wash.2d 156, 163, 815 P.2d 752 (1991)).

The first factor the sentencing court relied on in imposing an exceptional sentence was that the "defendant ha[d] no history of violent behavior and no pertinent criminal history." CP at 51. Although Fowler concedes that a defendant's lack of criminal history alone is an insufficient ground for a sentence below the standard range, he asserts that a clean record combined with a complete absence of police contacts may be a substantial and compelling reason for imposing an exceptional sentence.

This argument is without merit. Saying that the defendant had no history of violent behavior and no pertinent criminal history is essentially equivalent to saying that he has no criminal record. As we have noted, a lack of a criminal history is not a mitigating factor because criminal history is already encompassed in the sentencing guidelines.³ See State v. Pascal, 108 Wash.2d 125, 736 P.2d 1065 (1987)

(lack of criminal history already accounted for in standard range). The only exception to this general rule is that a lack of criminal history may be considered "in combination with the finding that the defendant was `induced' to commit the crime" or lacked a predisposition to commit the crime. State v. Ha'mim, 132 Wash.2d 834, 842-43, 940 P.2d 633 (1997); see State v. Nelson, 108 Wash.2d 491, 740 P.2d 835 (1987) and State v. Baucham, 76 Wash.App. 749, 887 P.2d 909 (1995). Here, the trial court rejected a finding that Fowler was either induced by others to commit the crime or that he lacked a predisposition to commit the crime. In that regard, the trial court stated:

[I]t was his [Fowler's] choice to take [the gun] into the house. Even though Mr. Aho said let's go get the money, Mr. Aho did not say let's go beat up Carroll. I don't think Mr. Fowler did anything just for grins.

RP (Apr. 30, 1999) at 35-36. Because no such finding was made, the fact that he lacked a criminal record and was not violent in the past does not independently or in combination with other factors justify an exceptional sentence.

The trial court also found that a downward exceptional sentence was justified on the basis that Fowler's behavior during the commission of the crime was aberrational and represented an isolated incident of violence. Specifically the trial court stated:

I have absolutely no trouble believing the defendant when he said and his family said that the behavior that occurred on the night of this incident was an aberration. It was unusual. It was out of character for him....

I believe the defendant when he says that his behavior was fueled by some form of chemical imbalance, whether it was chronic depression I can't say. I certainly think there is every indication that it was fueled by sleep deprivation, ingestion of methamphetamines, ingestion of alcohol.

Id. at 33-34. The Court of Appeals rejected this reason as a basis for an exceptional sentence,...