State v. Ha'mim, 64315-6

• Citation: 940 P.2d 633,132 Wn.2d 834
• Decision Date: 24 July 1997
• Docket Number: No. 64315-6,64315-6
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Anzala HA'MIM, Petitioner.

Page 834

132 Wn.2d 834

940 P.2d 633

STATE of Washington, Respondent, v. Anzala HA'MIM, Petitioner.

No. 64315-6.

Supreme Court of Washington,

En Banc.

Argued March 25, 1997.

Decided July 24, 1997.

Nielson & Acosta, David Koch, Erick Nielson, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Howard Schneiderman, Deputy, Seattle, for respondent.

GUY, Justice.

After Anzala Ha'mim was convicted of first degree robbery, the trial court imposed an exceptional sentence below the standard range set by the Sentencing Reform Act of 1981 because Ha'mim had no prior contacts with the police and because she was 18 years old when she committed the crime. The Court of Appeals reversed and remanded to the trial court for resentencing. We affirm the Court of Appeals and remand for resentencing in light of this decision.

FACTS

On May 1, 1994, Anzala Ha'mim, her twin sister, and a male companion went into a hair salon in Seattle. Joseph Baril and Hon Nan Yan were in the front of the shop. Anzala Ha'mim pulled a .38 caliber revolver from her coat and pointed it at Hon Nan Yan and ordered her into the back of the shop. King Fai Yan, Hon Nan Yan's brother, was in the back and Ha'mim pointed the gun at him and ordered him to the floor. With the gun pointed at his head, she took his wallet from his back pocket.

Meanwhile, in the front of the shop, the male companion demanded money from Mr. Baril who is hearing impaired and unable to hear the instructions. Mr. Baril ordered the male companion out of the salon. Anzala Ha'mim came out of the back and pointed the gun at Mr. Baril when Mr. Baril refused to permit the male companion access to the cash register. King Fai Yan came to the front of the The State charged Anzala Ha'mim with robbery in the first degree of King Fai Yan and attempted robbery in the first degree of Joseph Baril, alleging both were committed while she was armed with a deadly weapon. Ha'mim pled guilty to first degree robbery and admitted to being armed with a deadly weapon. Pursuant to the plea agreement, the State dismissed the attempted robbery charge. Ha'mim had an offender score of zero. The standard sentencing range, including the (24 month) deadly weapon enhancement, was 55 to 65 months.

shop and both he and Mr. Baril struggled with Anzala Ha'mim. The gun went off and fired through the salon's plate glass window. Anzala Ha'mim's twin sister and the male companion ran out of the salon. Anzala also tried to flee, but Mr. Baril held her until the police arrived. The entire robbery was filmed by the salon's video camera.

Ha'mim was 18 years old when she committed the robbery. She requested an exceptional sentence below the standard range based upon her youth and her absence of any prior police contacts. Defense counsel argued that her lack of prior contacts with the police showed she had "no predisposition to commit the crime." The State did not dispute the fact that the Defendant had no known prior convictions or arrests.

At the initial sentencing hearing, Ha'mim told the judge that she had committed the robbery under duress and coercion in that she had been forced by a male co-conspirator to rob the salon. The sentencing judge ruled that there had been no showing of coercion or duress but continued the matter to allow the defense time to see if there was any other legitimate basis for an exceptional sentence. ¹

At the second sentencing hearing, the judge said she was taking into account the Defendant's age and the fact she had no prior offenses in imposing an exceptional sentence below the standard range. Defense counsel clarified 1. The Court finds as a mitigating factor that the defendant is young, being only 18 years old at the time of this offense;

that the judge was not accepting the coercion argument but was finding that the lack of any "predisposition" to commit the crime, based on lack of any prior contact with the police, and the Defendant's youth were mitigating circumstances. The findings of fact for the exceptional sentence state:

2. The Court finds as a mitigating factor that, pursuant to State v. Freitag, 74 Wash.App. 133, 873 P.2d 548 (1994),[ ²] the defendant's lack of prior contacts with the police[ ³] show[s] no apparent disposition to commit this crime.

3. The court expressly rejects any claim of mitigation by the defendant that she committed this crime under duress, coercion, threat or compulsion.

Clerk's Papers at 25. Based on these findings, the court imposed an exceptional sentence of 31 months which is a departure from the standard range of 55 to 65 months.

The State appealed the imposition of the exceptional sentence. The Court of Appeals reversed, finding neither reason given by the sentencing judge justified a sentence outside of the standard range. Because the opinion upon We accepted review and now affirm the decision and the sentencing remand order of the Court of Appeals.

which the trial court had relied had been reversed after Ha'mim's sentencing, the Court of Appeals did not mandate imposition of a standard range sentence but gave the trial court an opportunity to reevaluate the exceptional sentence in light of State v. Freitag, 127 Wash.2d 141, 896 P.2d 1254 (1995). State v. Ha 'mim, 82 Wash.App. 139, 916 P.2d 971, review granted, 130 Wash.2d 1007, 928 P.2d 413 (1996).

ISSUES

Does the lack of any misdemeanors or juvenile offenses in the Defendant's record constitute a proper reason to justify the imposition of an exceptional sentence below the standard range set by the Sentencing Reform Act of 1981(SRA)? Is the fact that the Defendant was 18 years old at the time of the crime a reason justifying an exceptional sentence below the standard range?

DISCUSSION

A court must generally impose a sentence within the standard sentence range established by the SRA for the offense. RCW 9.94A.120(1). However, there are some exceptions to this general rule. RCW 9.94A.120. The SRA authorizes judges to impose sentences outside the standard range if, considering the purposes ⁴ of the SRA, "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2); State v. Ritchie, 126 Wash.2d 388, 391, 894 P.2d 1308 (1995).

Appellate review of an exceptional sentence is governed by RCW 9.94A.210(4). An appellate court analyzes the appropriateness of an exceptional sentence by answering the following three questions under the indicated standards of review:

1. Are the reasons given by the sentencing judge supported by evidence in the record? As to this, the standard of review is clearly erroneous.

2. Do the reasons justify a departure from the standard range? This question is reviewed de novo as a matter of law.

3. Is the sentence clearly too excessive or too lenient? The standard of review on this last question is abuse of discretion. RCW 9.94A.210(4); State v. Branch, 129 Wash.2d 635, 645-46, 919 P.2d 1228 (1996); State v. Allert, 117 Wash.2d 156, 163, 815 P.2d 752 (1991).

The focus in this case is on the second question above, that is, whether the reasons given--youth and lack of a prior criminal or juvenile record--justify departure. Therefore, our review is de novo.

In determining whether a factor legally supports departure from the standard sentence range, this Court employs a two-part test: first, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in establishing the standard sentence range; second, the asserted aggravating or mitigating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category. State v. Alexander, 125 Wash.2d 717, 725, 888 P.2d 1169 (1995).

We accepted review of Defendant Ha'mim's case partially because of a conflict between the divisions of the Courts of Appeals on the issue of whether the portion of a defendant's prior criminal history which is not used to determine his or her offender score can be used by a sentencing court as a factor to impose an exceptional sentence below the standard range. Compare State v. Baucham, 76 Wash.App. 749, 887 P.2d 909 (1995) with Ha 'mim, 82 Wash.App. 139, 916 P.2d 971. We also recognized that there is apparent inconsistency between this Court's cases on this issue. Compare Freitag, 127 Wash.2d 141, 896 P.2d 1254 with State v. Nelson, 108 Wash.2d 491, 740 P.2d 835 (1987).

In reversing the trial court's decision in this case, the Court of Appeals correctly relied on our recent case of Freitag, 127 Wash.2d 141, 896 P.2d 1254. In Freitag, the trial court imposed an exceptional sentence below the standard range after Angela Freitag pled guilty to vehicular assault while driving under the influence of alcohol. One of the factors the court relied on was her complete "lack of criminal history." The Court of Appeals considered that in addition to having a zero offender score, Ms. Freitag also had no prior offenses that had "washed out," no misdemeanors, and no juvenile record. The court affirmed the trial court and held that Ms. Freitag's "complete lack of any police contacts whatsoever" justified a departure downward from the standard range. State v. Freitag, 74 Wash.App. 133, 140-41, 873 P.2d 548 (1994), rev 'd, 127 Wash.2d 141, 896 P.2d 1254 (1995). We accepted review and issued an opinion reversing the Court of Appeals. We stated:

[W]e consistently have held that lack of criminal history is an insufficient ground for sentencing below the standard range since the Legislature specifically considered criminal history when establishing standard sentencing ranges. "Because criminal history is one of the components used to compute the presumptive range for an offense, it may not be used as a mitigating factor." State v. Rogers, 112 Wash.2d 180, 183, 770 P.2d 180 (1989) (citing State v. Pascal, 108 Wash.2d 125, 137, 736 P.2d 1065 (1987)).

Freitag, 127 Wash.2d at 144, 896 P.2d 1254.

Both the majority and the dissenting opinions in the Court of Appeals...