State v. Nelson

• Decision Date: 23 July 1987
• Docket Number: No. 53116-1,53116-1
• Citation: 740 P.2d 835,108 Wn.2d 491
• Parties: STATE of Washington, Respondent, v. Gary Tyrone NELSON, Petitioner.
• Court: Washington Supreme Court

Page 491

108 Wn.2d 491

740 P.2d 835

STATE of Washington, Respondent, v.Gary Tyrone NELSON, Petitioner.

No. 53116-1.

Supreme Court of Washington En Banc.

July 23, 1987.

[740 P.2d 836] Michael R. Johnson, Dept. of Assigned Counsel, Tacoma, for petitioner.

John W. Ladenburg, Pierce County Prosecutor, Barbara L. Corey-Boulet, Appellate Deputy, Tacoma, for respondent.

UTTER, Justice.

Gary Nelson seeks review of a Court of Appeals decision vacating his exceptional sentence and directing the trial court to impose a sentence within the guideline range of RCW 9.94A, the Sentencing Reform Act of 1981 (SRA).At issue is whether the trial court found adequate reasons to impose a sentence below the 31-41 months defined as the standard range by the SRA.The Court of Appeals found no evidence to support one finding by the trial court, and held that the second two findings do not describe mitigating factors justifying a nonstandard range sentence.

We affirm the Court of Appeals ruling that Nelson's secondary role in the crime did not constitute a substantial and compelling reason to leave the standard range.However, we agree with the trial court in finding that Nelson lacked the predisposition to commit the crime.This factor, in combination with Nelson's cooperation and assistance to the State, justifies the exceptional sentence imposed.Nelson's cooperation was helpful in the State's prosecution of his codefendant in the first count and vital in the second, as Nelson provided the only eyewitness identification against his codefendant for that count.We also hold that the sentence was not "clearly too lenient" within the meaning of RCW 9.94A.210(4)(b).Accordingly, we reinstate the exceptional sentence imposed by the trial court.

Gary Nelson joined the army in 1983.On January 21, 1985, he and Edward Moore, another soldier stationed at Fort Lewis, robbed two service stations in Tacoma.During both robberies, Moore held a gun and demanded money, while Nelson held the bag into which the money was to be placed.Moore also drove the getaway car.After his arrest, Nelson confessed to both robberies, the proceeds of which amounted to less than $300.

The Pierce County Prosecuting Attorney charged Moore and Nelson with two counts of first degree robbery.The State also sought to enhance the defendants' sentences under RCW 9.94A.125(the deadly weapon statute).Nelson agreed to plead guilty to one count of first degree robbery, without the deadly weapon finding, and to testify against Moore.In exchange, the prosecutor agreed to dismiss the other robbery count and to recommend a term of 36 months (within the standard range of 31-41 months).The State agreed further to recommend that Nelson be placed in a prison facility in his home state of Michigan.Nelson's testimony at Moore's trial on two counts of armed robbery was particularly significant, as there was no other eyewitness able to provide positive identification of Moore on one count.At the sentencing hearing, the prosecutor lowered his recommendation to 31 months, in consideration of Nelson's fulfillment of his promise to cooperate fully.

Defense counsel asked the court to impose a sentence below the minimum under the standard range guidelines, as did the probation officer assigned to prepare the presentence report.The sentencing judge agreed with these assessments.During the sentencing hearing, the judge (who had also presided over Moore's bench trial) emphasized the fact that Nelson grew up in the inner-city section of Detroit, Michigan, and yet had no police record (felony, misdemeanor, or arrest) and had obtained a high school diploma.The judge also noted that Nelson had a clean Army record.Defense counsel noted to the judge that Nelson's family in Detroit had expressed concern by calling 8 or 9 times.Nelson sent the judge a letter, which was made part of the record at sentencing, wherein Nelson expressed remorse and explained the robberies as being caused by his involvement with an undesirable peer group.Attorneys for both the prosecution and the defense, as well as the probation officer, agreed that the crimes were in all probability isolated incidents in Nelson's life and not likely to recur.The trial judge made several findings to support an exceptional sentence:

VIII.

[T]he defendant has no criminal history whatsoever ... and ... has, prior to this incident, led an honorable life.

IX.

[W]ithin the meaning of ... RCW 9.94A.390(4), the defendant, with no apparent predisposition to do so, was induced by another to participate in the crime(s).

X.

[T]he defendant has or will suffer the loss of his military career in addition to any punishment meted out by the court.

CONCLUSIONS OF LAW

I

That there are substantial and compelling reasons justifying an exceptional sentence, including: ... b) the lack of predisposition to commit the crime; c) the cooperation and assistance provided to the state by the defendant; d) the defendant's secondary role in the acts.

Clerk's Papers, at 18.

The court thus sentenced Nelson to 12 months in the county jail, followed by 2 years of community supervision to be served in Michigan, pursuant to the Interstate Corrections Compact, RCW 72.74.The court also ordered Nelson to make complete restitution to both service stations, as well as court costs, victim assessment, and recoupment for defense attorney's fees.The State appealed to Division Two of the Court of Appeals, which reversed the trial court's decision and remanded for imposition of a sentence within the statutory guidelines.

The three issues presented by Nelson's appeal are (1) whether the reasons supplied by the trial court judge to justify the exceptional sentence are supported by the record and, (2) if so, do these reasons justify imposition of a nonstandard range as a matter of law?(3) Finally, was the exceptional sentence "clearly too lenient" within the meaning of RCW 9.94A.210(4)(b)?

I

With two limited exceptions, ¹ the SRA requires the sentencing court to "impose a sentence within the sentence range for the offense."RCW 9.94A.120(1).The trial court imposed an exceptional sentence under the second statutory exception, which allows a nonstandard sentence if there are "substantial and compelling reasons justifying" such a sentence.RCW 9.94A.120(2).The SRA further provides that whenever a sentence outside the standard range is imposed, the sentencing court must set forth the reasons for its decision in written findings of fact and conclusions of law.RCW 9.94A.120(3).The statute provides a nonexclusive list of "illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence".RCW 9.94A.390.In sentencing Nelson, the trial court relied on one of the mitigating factors listed in this section: the defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.RCW 9.94A.390(1)(d).The court also found two reasons not listed under the statute: Nelson's cooperation with the police and prosecutor, and his secondary role in the acts.

Appellate review of the trial court's sentence is governed by RCW 9.94A.210(4), which provides in pertinent part:

To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

The Court of Appeals overturned the trial court under subsection (a) of RCW 9.94A.210(4), and therefore expressly declined to determine, under subsection (b), whether the sentence was "clearly too lenient."Appellate review under subsection (a) is a 2-step process.

First, the appellate court must decide if the sentencing judge's reasons for imposing an exceptional sentence are supported by the record.As this is a factual determination, the appellate court is to uphold the sentencing judge's reasons if they are not clearly erroneous.

State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117(1986).

The Court of Appeals examined the first reason offered by the sentencing judge: "the defendant, with no apparent predisposition to do so, was induced by another to participate in the crime".Clerk's Papers, at 18.The Court of Appeals reviewed and rejected this finding of fact in summary fashion:

Although Nelson did not instigate the robbery, he clearly participated in it for his own reasons.In his letter to the sentencing judge, he admitted that he joined in the crime "... in order to support my family and drug problem."While his desire to commit the crime may not have been as great as his confederate's, he certainly was predisposed to take part and did so of his own volition.The record does not support this reason given by the sentencing judge.

(Italics ours.)State v. Nelson, 43 Wash.App. 871, 876, 719 P.2d 961(1986).The Court of Appeals cited no legal authority for its position, and appears to have simply substituted its judgment on the question of Nelson's predisposition for that of the trial court because Nelson did not act under duress.The Court of Appeals seems to have confused "predisposition" with "motive."Nelson's letter to the sentencing judge certainly established a need for money.However, such a need does not establish criminal predisposition, measured under the SRA by a history of prior convictions.RCW 9.94A.360.

The distinction between criminal predisposition and motive or intent is sharply drawn in ER404(b), which prohibits the use of evidence of a person's character in order to prove that he or she acted in conformity therewith on a particular occasion--in other words, his or her propensity to act in a criminal manner.To this general prohibition, however, ER404(b) excepts and distinguishes other purposes...