State v. McGill, 47686-6-I.
|Court of Appeals of Washington
|47 P.3d 173,112 Wash.App. 95
|03 June 2002
|STATE of Washington, Respondent, v. O'Keith (NMI) McGILL, Appellant.
Melinda J. Young, King County Prosecutors Office, Seattle, for Respondent.
O'Keith McGill appeals his sentence on three drug convictions, asserting that (1) the sentencing court erred in failing to recognize that it had authority to impose an exceptional sentence and (2) he did not have effective assistance of counsel at sentencing because his attorney did not cite the authorities which would permit the court to impose an exceptional sentence below the standard range. In State v. Sanchez1 and State v. Hortman2 we held that, in circumstances similar to those in this case, a trial judge could impose an exceptional sentence down because the multiple offense policy of the Sentencing Reform Act (SRA) resulted in an excessive sentence. McGill's defense counsel did not cite this precedent to the trial court, and the court was apparently not aware of it. We agree with McGill that the sentencing court erroneously believed it could not depart from a standard range sentence even though it expressed a desire to do so. We therefore vacate McGill's sentence and remand so the trial court can consider an exceptional sentence.
Raymond Meeth worked for the Kent Police Department as a confidential informant. He originally assisted in undercover narcotics purchases to work off a forgery arrest. After he satisfied that obligation, he continued to work as an informant for money. In February 2000, Meeth's neighoor bought crack cocaine from O'Keith McGill. Meeth told Detective Matthew Holmes about the deal, and the Kent Police Department arranged
The first purchase was on February 9, 2000. Meeth called McGill, agreed to buy $60 worth of cocaine, and arranged to meet him at a local grocery store. Detectives Holmes and David Trogdan gave Meeth money to buy the cocaine, drove him to the store, and positioned themselves to witness the sale. In exchange for cocaine, Meeth gave McGill $60. Meeth returned to the detectives and gave them the cocaine. The other two transactions, the following day and six days later, occurred essentially the same way.
Detective Holmes obtained a search warrant and executed it on February 17. McGill was arrested, and the officers found two bags of cocaine on him. The State charged him with three counts of delivery of cocaine and one count of possession of cocaine with intent to deliver. A jury convicted him of two counts of delivery of cocaine and one count of possession with intent to deliver cocaine. Defense counsel argued for a sentence at the low end of the standard range, but did not request an exceptional sentence. The sentencing court, believing it had to impose a standard range sentence, gave McGill 87 months, the bottom of the standard range. McGill timely appeals his sentence.
McGill maintains that his case should be remanded for resentencing because the sentencing court erred in failing to recognize its authority to consider an exceptional sentence. Even though McGill's counsel had not asked for an exceptional sentence below the standard range, at sentencing, the trial court stated:
I'm sure you are aware that the legislature has decided that judges should not have discretion beyond a certain sentencing range on these matters. And sometimes some of these drug cases, it seems like, when you compare them to some of the really violent and dangerous offenses, it doesn't seem to be justified. But it's not my call to determine the standard range. The legislature has done that for me.
So I have no option but to sentence you within the range on these of 87 months to 116 months. But I do get to decide where in that range the sentence is appropriate.
And you do have a fairly significant criminal history, and certainly a lot of times that means you are going to be sentenced to the middle or high end of that range.
But given the support that you've got, obviously you've got a lot of family support and friends, the efforts that you've made while in custody, and knowing that you'll be probably facing a long time in prison, you've still chosen to do that, and I think that you are serious about your receiving treatment and recovery, I'm going to impose the low end of the standard range, 87 months ....3
The court's belief that it lacked authority to impose an exceptional sentence was incorrect. Under RCW 9.94A.535(1)(g), it is within the discretion of a sentencing court to consider and impose an exceptional...
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State v. Miller
...court is confident that the trial court would impose the same sentence” after properly exercising its discretion. State v. McGill, 112 Wash.App. 95, 100, 47 P.3d 173 (2002). If “the [sentencing] court's comments indicate it would have considered an exceptional sentence had it known it could......
State v. Houston-Sconiers
...an exceptional sentence was an option,’ " remand is proper. Mulholland, 161 Wash.2d at 334, 166 P.3d 677 (quoting State v. McGill , 112 Wash.App. 95, 100-01, 47 P.3d 173 (2002) ). Based on the sentencing court's statements, we cannot say that it would have imposed the same lengthy sentence ......
State v. Knight, 42130–5–II.
...believed it could not depart from a standard range sentence even though it expressed a desire to do so.” McGill, 112 Wash.App. at 97, 47 P.3d 173. Here, in contrast with McGill, there is no indication that the trial court would have considered or imposed even a low end standard sentence, le......
State v. Ramos, 30279-2-III
...imposed the same sentence had it known an exceptional sentence was an option, " remand is proper. State v. McGill, 112 Wn.App. 95, 100-01, 47 P.3d 173 (2002). As we said in Grayson, "[w]hile defendant is entitled to an exceptional sentence ..., every defendant is entitled to ask the trial c......