State v. Ritchie

• Citation: 894 P.2d 1308,126 Wn.2d 388
• Decision Date: 11 May 1995
• Docket Number: Nos. 61175-1,61237-4 and 61361-3,s. 61175-1
• Parties: STATE of Washington, Respondent, v. Steven W. RITCHIE, Petitioner. STATE of Washington, Respondent, v. Jeffrey M. HAMRICK, Petitioner. STATE of Washington, Respondent, v. Jai-Mar Eli SCOTT, Petitioner.
• Court: Washington Supreme Court

Page 388

126 Wn.2d 388

894 P.2d 1308

STATE of Washington, Respondent, v. Steven W. RITCHIE, Petitioner.

STATE of Washington, Respondent, v. Jeffrey M. HAMRICK, Petitioner.

STATE of Washington, Respondent, v. Jai-Mar Eli SCOTT, Petitioner.

Nos. 61175-1, 61237-4 and 61361-3.

Supreme Court of Washington,

En Banc.

May 11, 1995.

Crawford, McGilliard, Peterson, Yelish & Dixon, Steven Dixon, Port Orchard, WA, for Ritchie.

Law Offices of Monte E. Hester, Inc., P.S. Wayne C. Fricke, Tacoma, WA, for Hamrick.

Washington Appellate Defender Ass'n, Constance M. Krontz, Seattle, WA, for Scott.

Russell D. Hauge, Kitsap County Prosecutor, Pamela B. Loginsky and Ione S. George, Deputies, Port Orchad, WA, Nelson Hunt, Lewis County Prosecutor, Chehalis, WA, Norm Maleng, King County Prosecutor, Kerry J. Keefe, Sr. Deputy, Seattle, WA, for respondent.

Jeff Ellis, Seattle, WA, amicus curiae for petitioners on behalf of Washington Defender Ass'n.

ROBERT F. BRACHTENBACH, Justice Pro Tem. ^*

These cases involve exceptional sentences above the standard range. State v. Scott, 72 Wash.App. 207, 866 P.2d 1258 (1993); State v. Hamrick, unpublished decision noted at 71 Wash.App. 1071 (1993), review granted, 125 Wash.2d 1007, 889 P.2d 499 (1994); and State v. Ritchie, unpublished commissioner's decision, review granted, 125 Wash.2d 1007, 889 P.2d 499 (1994). We granted petitions for review, but limited review to the length of the exceptional sentence. We affirm in each case.

Defendants and amicus curiae urge that we judicially impose requirements and limitations on the length of exceptional sentences above the standard range. Our references to exceptional sentences are limited to those above the standard range.

The requirements and limitations urged by Defendants and amicus curiae are summarized as follows: (1) trial courts must state the reasons for a particular length of an exceptional sentence which reasons cannot be at odds with the purpose of the Sentencing Reform Act of 1981 (SRA); (2) such sentence must be proportionate to all sentences in similar cases with the same salient factors; (3) such sentence must be compared to the average sentence for the involved crime; (4) comparison must be made to the average sentence for more serious crimes; and (5) comparison must be made to the midpoint sentence of the standard range for this crime. We reject all of the suggested requirements and limitations.

The foundation of Defendants' suggestions is the general declaration of purpose in the SRA, citing particularly RCW 9.94A.010(1) and (3) which provide:

(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;

....

(3) Be commensurate with the punishment imposed on others committing similar offenses;

Equally important are sections (2) and (4):

(2) Promote respect for the law by providing punishment which is just;

....

(4) Protect the public[.]

We start with the relevant sections of the statute. The trial court may impose an exceptional sentence only "if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). It is important to note that the trial court, when deciding to impose an exceptional sentence, is directed specifically to consider the purpose of the SRA. No such direction is given to the appellate court in RCW 9.94A.210 which governs the method and extent of appellate review. Indeed, the statute provides an exceptional sentence is "subject to review only as provided for in RCW 9.94A.210(4)". (Italics ours.) RCW 9.94A.390. None of the suggested requirements or limitations is provided for in RCW 9.94A.210(4), nor is any implied.

Thus the SRA itself rejects the idea that appellate review is subordinated to the general declaration of purpose. In contrast, only in deciding to impose an exceptional sentence is any court directed to consider the general statement of purpose of the SRA. Rather, review is specifically restricted and constrained by the declaration that it shall be only as provided for in RCW 9.94A.210(4). RCW 9.94A.390.

We first consider whether the trial court must articulate reasons for the length of an exceptional sentence. No language in the SRA imposed such a requirement; indeed, the statute strongly suggests otherwise. When the Legislature wanted a statement of reasons for a particular decision it so stated in clear language. RCW 9.94A.120(3) requires the trial court to set forth reasons for its decision to impose an exceptional sentence. There is no such statutory requirement as to the length of an exceptional sentence.

As noted, appellate review is limited by the statute. An exceptional sentence must be reversed if the reasons for the exceptional sentence are not supported by the record or if those reasons do not justify an exceptional sentence. RCW 9.94A.210(4). If the reasons are supported by the record, and justify an exceptional sentence, then, to reverse an exceptional sentence, we must find "that the sentence imposed was clearly excessive or clearly too lenient ". (Italics ours.) RCW 9.94A.210(4)(b).

Starting with State v. Oxborrow, 106 Wash.2d 525, 530, 723 P.2d 1123 (1986), we consistently have held that the "length of an exceptional sentence should not be reversed as 'clearly excessive' absent an abuse of discretion." Oxborrow, at 530, 723 P.2d 1123. State v. McAlpin, 108 Wash.2d 458, 467, 740 P.2d 824 (1987); State v. Dunaway, 109 Wash.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987); State v. Pryor, 115 Wash.2d 445, 450, 799 P.2d 244 (1990); State v. Stephens, 116 Wash.2d 238 245, 803 P.2d 319 (1991); State v. Batista, 116 Wash.2d 777, 792, 808 P.2d 1141 (1991).

The statute does not define "clearly excessive", but Oxborrow provided a definition. There we explained that our adoption of the abuse of discretion standard was based on three important sources. First, we examined the language of the SRA. Second, we noted that the Sentencing Guidelines Commission stated that an exceptional sentence "shall be subject to review only for abuse of discretion". Third, Oxborrow adopted the interpretation of identical language in the Juvenile Justice Act of 1977. Oxborrow, at 530-31, 723 P.2d 1123.

The term "clearly excessive" is not defined in the Juvenile Justice Act of 1977 and, therefore, must be given its plain and ordinary meaning. Action is excessive if it "goes beyond the usual, reasonable, or lawful limit." Thus, for action to be clearly excessive, it must be shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.

Oxborrow, at 531, 723 P.2d 1123 (quoting State v. Strong, 23 Wash.App. 789, 794, 599 P.2d 20 (1979)). The rationale of Oxborrow bears repeating because it is solidly grounded and remains valid.

Thus, from 1979 in State v. Strong, supra, and from 1986 in Oxborrow, the Legislature has known the judicial definition of the standard of "clearly excessive" and that it is subject to an abuse of discretion standard of review. The Legislature is presumed to be aware of judicial interpretation of its statutes. Friends of Snoqualmie Vly. v. King Cy. Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992).

Another principle of statutory construction lends compelling weight to adhering to the Oxborrow holdings. "Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction." Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993). The Legislature has amended RCW 9.94A.210, but did not change the "clearly excessive" language. Laws of 1989, ch. 214, § 1.

Legislative acquiescence is significant in light of various dissents in our cases which have quarreled with the consistent majority opinions defining and applying the abuse of discretion standard. See, e.g., State v. Armstrong, 106 Wash.2d 547, 552, 723 P.2d 1111 (1986); Oxborrow, at 539, 723 P.2d 1123. Interestingly the majority of our cases applying the abuse of discretion standard of review are unanimous. See, e.g., State v. McAlpin, supra; State v. Dunaway, supra; State v. Pryor, supra; State v. Stephens, supra.

Fixing of punishment for crimes is a legislative function. State v. Ammons, 105 Wash.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986). We have observed that any judicial dissatisfaction with the sentencing scheme goes to the "wisdom of the dispositional standards" and "it is the function of the legislature and not the judiciary to alter the sentencing process." (Citation omitted.) State v. Bryan, 93 Wash.2d 177, 181, 606 P.2d 1228 (1980). To impose the requirements and limitations proposed by Defendants would be contrary to legislative intent.

We turn to the particular proposals of Defendants. First, they would require the trial court to state reasons for the length of a sentence outside the standard range. As discussed above, the language of the SRA not only does not mandate that, but strongly militates against such interpretation. We have never held that there is any such requirement, despite the urging of the dissent in State v. Smith, 123 Wash.2d 51, 59, 864 P.2d 1371 (1993) (Madsen, J., dissenting).

Decisions of the Court of Appeals which take a contrary view are not correct. For example, State v. Elsberry, 69 Wash.App. 793, 796, 850 P.2d 590 (1993) states that "[t]enable grounds or tenable reasons for any exceptional sentence must be stated in the record.... [T]here must be a reasonable connection between the reasons given and the duration of the sentence." For the latter proposition, Elsberry cites State v. Chadderton, 119 Wash.2d 390, 399, 832 P.2d 481 (1992). In fact, Chadderton has nothing to do with the length of an exceptional sentence; it concerned only the reasons for imposing an exceptional sentence. The foundation of Elsberry 's...