State v. Graham
| Decision Date | 26 December 2013 |
| Docket Number | No. 31020–5–III.,31020–5–III. |
| Citation | 314 P.3d 1148,178 Wash.App. 580 |
| Parties | STATE of Washington, Respondent, v. Jason Allen GRAHAM, Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Steven Witchley, Holmes & Witchley PLLC, Seattle, WA, for Appellant.
Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Andrew J. Metts, III, Spokane County Pros. Offc., Spokane, WA, for Respondent.
¶ 1 In 2006, this court affirmed Jason A. Graham's attempted first degree murder, first degree assault, second degree assault, and first degree possession of stolen property convictions. See State v. Jones, noted at 136 Wash.App. 1009, 2006 WL 3479055 at *12( Graham I). Mr. Graham's sentence was partly based on several firearm enhancements even though the jury found deadly weapon enhancements. Id. Our Supreme Court accepted review solely regarding the imposition of the firearm enhancements. State v. Graham, 169 Wash.2d 1005, 234 P.3d 210 (2010)( Graham II). The Supreme Court remanded the matter to this court for reconsideration in light of a later decided case, State v. Williams–Walker, 167 Wash.2d 889, 225 P.3d 913 (2010). Under Williams–Walker, a sentencing court must impose a deadly weapon enhancement when the jury finds the defendant was armed with a deadly weapon even if the weapon was a firearm.
¶ 2 This court then remanded the matter to the trial court for resentencing consistent with Williams–Walker.State v. Graham, noted at 163 Wash.App. 1011, 2011 WL 3570120 at *3( Graham III). At resentencing the court corrected and reduced Mr. Graham's standard-range sentence from a total of 1,225.5 months to a total of 985.5 months after considering and reluctantly rejecting his multiple offense policy arguments under RCW 9.94A.589. Mr. Graham appealed his standard-range sentence, contending the court erred in denying his request for a mitigated exceptional sentence because it failed to apply multiple offense policy principles of RCW 9.94A.589(1)(a) to RCW 9.94A.589(1)(b).
¶ 3 We conclude the trial court correctly reasoned the multiple offense policy applies to RCW 9.94A.589(1)(a), but not to serious violent offenses sentenced under RCW 9.94A.589(1)(b). Additionally, in imposing Mr. Graham's standard-range sentence under RCW 9.94A.589(1)(b), the trial court properly exercised its discretion in rejecting his multiple offense arguments when reasoning the differences in his criminal behaviors were not nonexistent, trivial, or trifling. Accordingly, we affirm.
¶ 4 In January 2002, a police officer stopped Mr. Graham in downtown Spokane for speeding. Graham III, at *1. Gunfire erupted, and Mr. Graham's car sped away. Eventually the car crashed, and Mr. Graham engaged in a gun battle with several officers. He was shot and arrested.
¶ 5 The State charged Mr. Graham with six counts of attempted first degree murder, one count of first degree assault, one count of unlawful possession of a firearm, one count of first degree possession of stolen property, and one count of taking a motor vehicle without permission. The trial court instructed the jury on the procedure for deciding the special verdicts regarding deadly weapon enhancements. Graham III, 2011 WL 3570120 at *1. The jury found Mr. Graham guilty of two counts of attempted first degree murder, four counts of first degree assault, one count of second degree assault, one count of unlawful possession of a firearm, one count of possession of stolen property, and one count of taking a motor vehicle without permission. The jury also found by special verdicts that Mr. Graham was armed with a deadly weapon in the commission of the attempted murder and assault offenses. Despite the jury's findings that Mr. Graham was armed with a deadly weapon, the trial court imposed seven consecutive firearm enhancements, resulting in a sentence of 1,225.5 months. Of that sentence, 33 years consisted of mandatory consecutive firearm enhancements. Graham III, 2011 WL 3570120 at *2.
¶ 6 On appeal, this court affirmed Mr. Graham's convictions and sentence. Graham I, 2006 WL 3479055 at *1. Mr. Graham filed a petition for review with the Washington Supreme Court, which granted the petition solely on the enhancement issue and remanded for this court's reconsideration. Graham II, 169 Wash.2d 1005, 234 P.3d 210. Thereafter, this court remanded “for resentencing consistent with the decision in Williams–Walker.” Graham III, 2011 WL 3570120 at *3.
¶ 7 At the 2012 resentencing hearing, Mr. Graham asked the trial court to impose an exceptional sentence downward of 25 years' confinement. Mr. Graham argued an exceptional sentence was legally authorized by the “multiple offense policy” mitigating factor set forth in RCW 9.94A.535(1)(g). He argued the convictions arose from a single incident and that “[g]iven the lack of incremental harm engendered by each additional shot, application of the multiple offense policy on the specific facts of this case results in a sentence which is clearly excessive in light of the stated purposes of the SRA [Sentencing Reform Act of 1981, ch. 9.94A RCW].” Clerk's Papers (CP) at 89. Mr. Graham presented evidence demonstrating his rehabilitationduring his over 10 years of incarceration.
¶ 8 The trial court was “very impressed” with Mr. Graham's rehabilitation, and stated, “[T]here's really no doubt in my mind that you've become a changed person since you've been in prison.” Report of Proceedings (RP) at 24–25. Nevertheless, the court concluded that it did not have a legal basis to impose a mitigated exceptional sentence, stating:
Your lawyer has argued one, basically one [mitigating factor] to me, and that is the application of the multiple offense policy. I spent some time with this.... [RCW] 9.94A.589(1)(a) talks about when you're scoring an offense and you have other current offenses, if there are too many other current offenses, it might be appropriate to impose an exceptional sentence. But if you look at Subpart B, the multiple offense policy doesn't really apply to Subpart B, because with serious violents you aren't scoring, you aren't taking into consideration the other current offenses.
RP at 26–27. The court went on to state, RP at 29. The court further stated, “Certainly in a situation where we have someone firing a weapon at an officer, firing on another officer who's driving a motor vehicle, firing on a patrol vehicle containing three other officers, I hate to even use the words ‘nonexistent, trivial, or trifling.’ ” RP at 29.
¶ 9 The court then imposed a 985.5 month standard-range sentence (240 months less than the previous sentence). RP at 29. The reduced sentence reflected the court's imposition of six 24–month deadly weapon enhancements (down from six 60–month enhancements) and one 12–month deadly weapon enhancement (down from one 36–month enhancement).1 CP at 172. The court ordered all sentences to be served consecutively. The court stated, RP at 29. Mr. Graham appealed.
¶ 10 The issue is whether the trial court erred in rejecting Mr. Graham's mitigated exceptional sentencing request based on the multiple offense policy and imposing a standard-range sentence under RCW 9.94A.589(1)(b). Mr. Graham contends the trial court improperly failed to consider the application of the multiple offense policy.
¶ 11 Initially, the State contends Mr. Graham's issues are not appealable because the trial court was limited to resentencing consistent with Williams–Walker. Any issue outside the enhancement issue, the State argues, is not properly before this court.
¶ 12 In State v. Toney, 149 Wash.App. 787, 205 P.3d 944 (2009), Division Two of this court addressed whether a defendant may raise and argue issues in a second appeal despite failing to raise those issues in the first appeal. Mr. Toney originally argued former RCW 9.94A.310 (1996) did not mandate firearm enhancements to run consecutively. The Toney court agreed and “remanded for resentencing under ‘proceedings consistent with this opinion.’ ” Toney, 149 Wash.App. at 790, 205 P.3d 944. The trial court sentenced Mr. Toney, per the appellate court's direction, but conducted a new sentencing hearing prior to imposing the sentence. Mr. Toney again appealed, this time challenging community placement and raising double jeopardy concerns. The State responded that these issues could not be raised for the first time on a second appeal. The Toney court held a defendant “may raise sentencing issues on a second appeal if, on the first appeal, the appellate court vacates the original sentence or remands for an entirely new sentencing proceeding, but not when the appellate court remands for the trial court to enter only a ministerialcorrectionof the original sentence.” Toney, 149 Wash.App. at 792, 205 P.3d 944.
¶ 13 Here, this court remanded “for resentencing consistent with the decision in Williams–Walker ” Graham III, 2011 WL 3570120 at *3. This language is distinct from Toney because this court specifically limited the resentencing to one case, but like the court in Toney, the court conducted a new sentencing hearing. While the court resentenced Mr. Graham to reflect the enhancement corrections, it considered Mr. Graham's argument for a mitigated sentence and decided against it. When a court exercises “independent judgment” and rules again, then that issue becomes an “appealable question.” State v. Barberio, 121 Wash.2d 48, 50, 846 P.2d 519 (1993).
¶ 14 Turning to whether Mr. Graham may appeal his standard-range sentence, the law is well settled that generally a defendant cannot appeal a standard-range sentence. SeeRCW 9.94A.585(1); State v. Williams, ...
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