State v. Gaines

• Decision Date: 07 October 1993
• Docket Number: No. 59468-6,59468-6
• Citation: 859 P.2d 36,122 Wn.2d 502
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Michael Deshon GAINES, Respondent. En Banc

Page 502

122 Wn.2d 502

859 P.2d 36

STATE of Washington, Petitioner, v. Michael Deshon GAINES, Respondent.

No. 59468-6.

Supreme Court of Washington,

En Banc.

Oct. 7, 1993.

Norm Maleng, Pros. Atty., Theresa Fricke, Sr. Pros. Atty., Seattle, for petitioner.

Washington Appellate Defender Ass'n, Helen A. Anderson, Seattle, for respondent.

Robert C. Boruchowitz, Richard B. Cowan, Seattle, amicus curiae for respondent on behalf of Washington Defender Ass'n.

GUY, Justice.

The King County Prosecutor seeks reversal of a Court of Appeals decision upholding Michael Gaines's exceptional sentence below the standard range for delivery of cocaine. We remand for resentencing.

I Facts

On February 12, 1990, Seattle Police Department Officer M. Alphin made contact with Gaines while working undercover narcotics detail. Alphin asked Gaines if he had a "twenty", a street term for a $20 piece of rock cocaine. Gaines got in Alphin's car, said that he could get some cocaine, and called to a juvenile female who was on the street. The young woman walked over to the car and got into the back seat. Alphin gave Gaines a $20 bill, which Gaines handed to the juvenile female. The juvenile female then handed some cocaine to Gaines, and he gave it to Alphin. Gaines later explained that his reason for assisting in this transaction was that he hoped to obtain a small amount of cocaine for his own use from either the buyer or the seller. Shortly thereafter, Gaines and the juvenile female were arrested.

At the time of his arrest, Gaines was 19 years old. He had one prior adult felony conviction for a violation of the Uniform Controlled Substances Act, and two juvenile felony-level convictions, one for taking a motor vehicle without permission and the other for promoting prostitution. He also had misdemeanor convictions for hit and run, alcohol offense, menacing (two convictions), simple assault, theft (two convictions), trespass (three convictions), false reporting, and prostitution.

Gaines pled guilty to the charge of delivery of cocaine and was convicted. The standard sentence range for his offense was 31 to 41 months. The presentence investigator recommended a 36-month term. The prosecutor recommended 41 months. Defense counsel urged the court to impose an exceptional sentence consisting of 12 months in custody followed by release into the Seadrunar inpatient treatment program for a period of 9 to 12 months. In support of this request, the defense submitted a diagnostic substance abuse evaluation prepared by TASC (Treatment Alternatives to Street Crime). The TASC report details Gaines's substance abuse problems, which apparently began when he was 14 years old. The report states that Gaines dropped out of school at the age of 16, and that he worked briefly as a janitor and an actor. The report further states that Gaines "presented a history which is consistent with a diagnosis of middle stage alcoholism, and cocaine and marijuana addiction", and concludes that his prognosis is poor. The report recommends drug treatment and states that if Gaines were to complete a residential treatment program and all recommendations of aftercare, "it is unlikely he would be as high of risk to re-offend."

The trial court gave Gaines an exceptional sentence of 12 months' confinement and 12 months of community supervision. To support the exceptional sentence, the trial court entered the following findings of fact:

1.3 The defendant is addicted and/or abused a number of substances, including alcohol, marijuana, heroin, amphetamines and cocaine. Defendant's prior and current criminal activity is directly related to his addiction and substance abuse dependency.

1.4 That a standard sentencing range of total confinement would not promote the State's interest in both punishing the defendant for his criminal offenses and rehabilitating the defendant so that future criminal offenses do not occur. Treatment professionals indicate that the defendant requires intensive inpatient treatment, beyond that which is available in the Department of Corrections facilities.

1.5 That defendant is amenable to a long term residential drug treatment program ...

1.6 Without treatment for drug dependency, defendant is very likely to reoffend. Society would be better protected by placing defendant, at his own request, in a treatment program ...

Clerk's Papers, at 20. The trial court also cited Gaines's minor role in the crime as a basis for application of the statutory mitigating factor stated in RCW 9.94A.390(1)(f). RCW 9.94A.390(1)(f) allows for mitigation when "[t]he offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim."

The State appealed Gaines's exceptional sentence to the Court of Appeals, which affirmed the sentence. State v. Gaines 65 Wash.App. 790, 830 P.2d 367 (1992). We granted the State's petition for review.

II The Trial Court's Findings

The State argues that the trial court's findings of fact in support of the exceptional sentence were not adequately supported by the record. We agree with the Court of Appeals that the record adequately supported the findings.

The Sentencing Reform Act of 1981 (SRA) requires trial courts to sentence a criminal offender within a presumptive, or standard, range. RCW 9.94A.370. The trial court may impose a sentence outside the standard range--an "exceptional sentence"--when there are "substantial and compelling" reasons for doing so. RCW 9.94A.120(2). Appellate review of an exceptional sentence is governed by RCW 9.94A.210(4), which provides in part that the reviewing court may reverse a sentence outside the standard range if the record before the sentencing judge does not support the reasons for the durational departure.

In the present case, the State challenges three of the findings the trial court provided to justify the durational departure: findings 1.3, 1.4, and 1.6. A trial court's findings of fact will be upheld unless they are clearly erroneous. E.g., State v. Allert, 117 Wash.2d 156, 163, 815 P.2d 752 (1991).

Finding 1.3 states:

The defendant is addicted and/or abused a number of substances, including alcohol, marijuana, heroin, amphetamines and cocaine. Defendant's prior and current criminal activity is directly related to his addiction and substance abuse dependency.

The TASC report states that Gaines's substance abuse problems began when he was 14 years old and have continued through the present, and that all his offenses have been drug related. The record also indicates that Gaines committed the present offense for no other purpose than to obtain a small amount of cocaine for his own use. This is sufficient to establish finding 1.3.

The State also challenges the statement expressed by the second sentence of finding 1.6: "Society would be better protected by placing defendant, at his own request, in a treatment program". As the Court of Appeals observed, this statement expresses a conclusion of law, not a finding of fact. Gaines, at 795, 830 P.2d 367. A conclusion of law that is erroneously denominated a finding of fact is reviewed as a conclusion of law. Gaines, at 795, 830 P.2d 367 (citing State v. Williams, 96 Wash.2d 215, 220-21, 634 P.2d 868 (1981)); see also Willener v. Sweeting, 107 Wash.2d 388, 394, 730 P.2d 45 (1986). A conclusion of law will be upheld if it is supported by the findings. Williams, at 220-21, 730 P.2d 45.

Finding 1.3 provides that Gaines's drug addiction has been a cause of all his criminal activity, and the unchallenged first sentence of finding 1.6 states that without treatment for drug dependency Gaines is likely to reoffend. These findings adequately support the conclusion of law contained in the second sentence of finding 1.6 that society would be better protected if Gaines is given treatment for his addiction.

Finally, the State challenges the first sentence in finding 1.4, which provides:

That a standard sentencing range of total confinement would not promote the State's interest in both punishing the defendant for his criminal offenses and rehabilitating the defendant so that future criminal offenses do not occur.

This statement is also a conclusion of law and we review it as such. The trial court found that "[t]reatment professionals indicate that the defendant requires intensive inpatient treatment, beyond that which is available in the Department of Corrections facilities." Clerk's Papers, at 20. If Gaines needs drug treatment beyond what is available in Department of Corrections (DOC) facilities, and if Gaines's criminal activity is related to his drug addiction, then confinement in a DOC facility would not serve the State's interest in rehabilitation. See RCW 9.94A.010(5) (identifying rehabilitation as one of the SRA's goals). This adequately supports the statement expressed by the first sentence of finding 1.4.

We conclude the record supports the trial court's reasons for imposing an exceptional sentence.

III Drug Addiction as the Basis for an Exceptional Sentence

The State further contends that the trial court's reasons were not adequate as a matter of law to support an exceptional sentence below the standard range.

Whether the reasons supplied by the trial court justify an exceptional sentence is a question of law. State v. Allert, 117 Wash.2d at 163, 815 P.2d 752. Those reasons must be "substantial and compelling", RCW 9.94A.120(2), and must distinguish the defendant's crime from others in the same category. E.g., State v. Grewe, 117 Wash.2d 211, 216, 813 P.2d 1238 (1991).

In the present case, the trial court's grounds for departing from the standard sentence range focus on Gaines's drug addiction and the fact that it was directly related to his crime. This was error. Drug addiction and its causal role in an addict's offense may not serve to justify a durational departure from a standard range sentence.

This conclusion is required under our recent...