State v. McFarland, 35703-1-III

CourtCourt of Appeals of Washington
Writing for the CourtLAWRENCE-BERREY, C.J.
Docket NumberNo. 35703-1-III,35703-1-III
Decision Date02 May 2019

LAWRENCE-BERREY, C.J.Cecily McFarland appeals the sentencing court's decision not to impose an exceptional mitigated sentence. Here, the sentencing court refused to impose an exceptional mitigated sentence because it believed that the law did not permit it to impose such a sentence. Because the sentencing court's reasoning is inconsistent with State v. McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017), we reverse and remand for resentencing.


Ms. McFarland and her boyfriend stole firearms, ammunition, checkbooks, alcohol, and electronics from the home of her ex-boyfriend's parents. Ms. McFarland's boyfriend entered into a plea agreement with the State and received a 41-month drug offender sentencing alternative (DOSA) sentence.

A jury found Ms. McFarland guilty of first degree burglary as an accomplice, 10 counts of theft of a firearm as an accomplice, and 3 counts of second degree unlawful possession of a firearm. Relying on RCW 9.41.040(6) and RCW 9.94A.589(1)(c), the trial court ordered the 13 firearm-related convictions to be served consecutively. This resulted in a standard range sentence of 237 months (19 years, 9 months). The trial court noted that the sentence was commensurate with what people typically received for second degree murder, but believed it lacked discretion to run the firearm-related convictions concurrent with each other.


On appeal, the Washington Supreme Court reversed Ms. McFarland's sentence. McFarland, 189 Wn.2d at 59. The court first gave an overview of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. In its overview, the court emphasized that the SRA operates to provide structure to sentencing, but does not eliminate a trial court's discretion when sentencing an offender. Id. at 52. "Consistent with the SRA, a 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 reasonsjustifying an exceptional sentence.'" Id. (alteration in original) (quoting RCW 9.94A.535).

The court next discussed RCW 9.41.040(6) and RCW 9.94A.589(1)(c). Those provisions require a sentencing court to impose consecutive sentences for multiple firearm-related convictions. However, the court determined that the mandatory language of those provisions is subject to RCW 9.94A.535(1)(g). Id. at 55. RCW 9.94A.535(1) provides:

The court may impose an exceptional sentence below the standard range if . . . .
. . . .
(g) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

Quoting RCW 9.94A.535(1)(g), the court held, "in a case in which standard range consecutive sentencing for multiple firearm-related convictions 'results in a presumptive sentence that is clearly excessive in light of the purpose of [the SRA],' a sentencing court has discretion to impose an exceptional, mitigated sentence by imposing concurrent firearm-related sentences." Id. The court remanded for resentencing "to allow the trial court the opportunity to consider whether to impose a mitigated sentence by running [one or more of] McFarland's 13 firearm-related sentences concurrently." Id. at 50.

On remand, McFarland requested that the sentencing court impose an exceptional mitigated sentence of 41 months. She argued (1) an exceptional sentence was appropriate because the standard range sentence is comparable to a sentence for second degree murder, (2) her codefendant received a 41-month DOSA sentence even though his culpability was greater than hers, and (3) she has since been rehabilitated and, therefore, public safety did not require a lengthy and costly prison sentence.

The sentencing court heard argument and issued a written decision. The court noted the Supreme Court gave it authority to impose concurrent sentences for multiple firearm-related convictions, but only if it concluded that the presumptive sentence was "clearly excessive in light of the purpose of the [SRA]." Clerk's Papers (CP) at 126. The court noted that sentences outside the standard range must be supported by written findings of fact and conclusions of law. But the court complained, "Neither the Supreme Court nor Ms. McFarland's counsel has suggested what this court should write in order to satisfy this requirement. Furthermore, the reasons suggested are insufficient as a matter of law." CP at 127.

The sentencing court addressed McFarland's three bases for imposing an exceptional mitigated sentence. Citing State v. Allert, 117 Wn.2d 156, 169, 815 P.2d 752 (1991), the court wrote, "This Court's subjective determination that Ms. McFarland'sstandard range is unwise or that it does not advance the goals of the SRA does not justify a mitigated sentence." CP at 128. Citing State v. Rice, 159 Wn. App. 545, 574-75, 246 P.3d 234 (2011), aff'd, 174 Wn.2d 884, 279 P.3d 849 (2012), the court wrote, "disparities resulting from plea bargaining are not inconsistent with the purposes of the SRA." CP at 128. Citing cases such as State v. Roberts, 77 Wn. App. 678, 685, 894 P.2d 1340 (1995), the court wrote, "Neither Ms. McFarland's good conduct following commission of the crime, nor her need for treatment, nor her amenability to improvement by means other than incarceration, nor her remorse, make[s] her sentence clearly excessive under the policies of the SRA." CP at 129 (citations omitted).

Ultimately, the sentencing court blamed prosecutorial discretion for McFarland's excessive sentence. The court wrote:

As must be evident from this Court's previous remarks, this Court does feel a sentence of almost twenty years in prison in Ms. McFarland's case is excessive. If, as it appears, she is really being punished for refusing a plea bargain, fourteen years (the difference, more or less, in her sentence and her co-defendant's) is still excessive. But if it is excessive, it is so because of the charging decision the prosecution made in this case.

CP at 129.

The sentencing court concluded:

For this Court to accept . . . a veiled invitation from our highest court to disregard the above cited authorities would be inconsistent with this Court's duty to follow the law. It also . . . would enable our higher courts toavoid the difficulties presented by applying substantive due process requirements to prosecutorial discretion. For these reasons, this Court declines to impose a mitigated sentence in Ms. McFarland's case.

CP at 130.


Ordinarily, a standard range sentence may not be appealed. RCW 9.94A.585(1). But "[r]emand for resentencing is often necessary where a sentence is based on a trial court's erroneous interpretation of or belief about the governing law." State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002).

Here, the Supreme Court directed the sentencing court to exercise its discretion to consider an exceptional mitigated sentence in accordance with RCW 9.94A.535(1)(g). RCW 9.94A.535(1)(g) explicitly requires the sentencing court to consider the purpose of the SRA, as expressed in RCW 9.94A.010. To the extent, if any, the authorities cited by the sentencing court forbid it from considering the purpose of the SRA, those authorities are not controlling under an RCW 9.94A.535(1)(g) analysis. For this reason, we review and reverse the trial court's standard range sentence.

RCW 9.94A.535(1)(g) permits imposition of an exceptional mitigated sentence when "[t]he operation of the multiple offense policy of RCW 9.94A.589 results in apresumptive sentence that is clearly excessive in light of this purpose of [the SRA], as expressed in RCW 9.94A.010." Here, the presumptive sentence is nearly 20 years.

According to RCW 9.94A.010, the purpose of the SRA is to provide a system for sentencing felony offenders that structures but does not eliminate sentencing discretion, and to:

(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve himself or herself;
(6) Make frugal use of the state's and local governments' resources; and
(7) Reduce the risk of reoffending by offenders in the community.

On remand, the trial court should consider the seven policies listed in RCW 9.94A.010. See State v. Graham, 181 Wn.2d 878, 887, 337 P.3d 319 (2014) ("Sentencing judges should examine each of these policies when imposing an exceptional sentence under [the multiple offense policy mitigating factor of] .535(1)(g)."). To the extent some policies are relevant, the trial court should discuss those; to the extent other policies are not relevant, the trial court should say so. If the presumptive sentence of nearly 20 years is clearly excessive in light of the purpose of the SRA as expressed inRCW 9.94A.010, the trial court should impose an exceptional mitigated sentence by running one or more of the 13 firearm-related convictions concurrent.

The dissent cites intermediate appellate cases for the proposition that RCW 9.94A.589(1)(c) is reserved for instances when the effect of the additional crimes is "'nonexistent, trivial or trifling.'" Dissent at 3 (citing State v. Sanchez, 69 Wn. App. 255, 261, 848 P.2d 208 (1993); State v. Calvert, 79 Wn. App. 569, 582-83, 903 P.2d 1003 (1995); State v. Hortman, 76 Wn. App. 454, 463, 886 P.2d 234 (1994)). The dissent suggests, on remand, the trial court need only reiterate its prior conclusion that the theft and possible distribution of 12 firearms to up to 12 unknown persons has a far greater risk to society than the theft of a single...

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