State v. Solis-Diaz

• Decision Date: 17 May 2016
• Docket Number: No. 46002–5–II.,46002–5–II.
• Citation: 376 P.3d 458,194 Wash.App. 129
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Guadalupe SOLIS–DIAZ, Appellant.

194 Wash.App. 129

376 P.3d 458

STATE of Washington, Respondent

v.Guadalupe SOLIS–DIAZ, Appellant.

No. 46002–5–II.

Court of Appeals of Washington, Division 2.

May 17, 2016.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.

BJORGEN, C.J.

Guadalupe Solis–Diaz, tried and sentenced as an adult for crimes committed while a juvenile, appeals his sentence of 1,111 months (92.6 years) in prison on six counts of first degree assault with firearm enhancements, one count of drive-by shooting, and one count of unlawful possession of a firearm. Solis–Diaz argues, and the State concedes, that the sentencing court erred by refusing to consider whether application of the multiple offense policy warranted an exceptional downward sentence. He also argues that the trial court erred by refusing to consider his youth as a mitigating factor and by imposing a 1,111–month prison term on a juvenile offender in violation of constitutional prohibitions on cruel and unusual punishment. Finally, Solis–Diaz asks us to disqualify the sentencing judge from hearing the case if we remand for resentencing, arguing that the judge's statements at the previous sentencing hearing created the appearance of bias.

¶ 2 We agree with Solis–Diaz that the sentencing court erred by failing to consider an exceptional sentence below the standard range in mitigation of consecutive sentences imposed under the multiple offense policy. We also hold that the sentencing court erred by failing to consider Solis–Diaz's age as a basis for a sentence below the standard range. Accordingly, we vacate Solis–Diaz's sentence and remand for resentencing. On remand, the sentencing court must conduct a meaningful, individualized inquiry into whether Solis–Diaz's youth should mitigate his sentence. Because we remand on other grounds, we do not consider whether Solis–Diaz's sentence violates the constitutional prohibitions on cruel and unusual punishment. We decline to mandate the sentencing judge's disqualification, but we acknowledge that Solis–Diaz is free to move for disqualification on remand.

FACTS

¶ 3 Solis–Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of first degree assault, each with a firearm sentencing enhancement; one count of drive-by shooting; and one count of second degree unlawful possession of a firearm. He was tried as an adult pursuant to former RCW 13.04.030(1)(e)(v)(A) (2005) and former RCW 9.94A.030(46)(v) (2006). The jury found him guilty on all counts, and the trial court imposed a standard-range sentence of 1,111 months in prison. Judge Nelson Hunt presided over the original sentencing.

¶ 4 Solis–Diaz brought a personal restraint petition challenging his sentence in this court. In an unpublished opinion, we reversed the sentence for ineffective assistance of counsel and remanded for resentencing. In re Pers. Restraint of Diaz, 170 Wash.App. 1039, 2012 WL 5348865, *1 (2012). Among the grounds for concluding that Solis–Diaz received ineffective assistance was his counsel's failure to properly inform the trial court that Solis–Diaz's case was automatically declined to adult court. Id. We did not decide whether a 1,111–month fixed term sentence violated the federal constitutional prohibition of cruel and unusual punishment or the state constitutional prohibition of cruel punishment.

¶ 5 Judge Hunt also presided over the resentencing. Solis–Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981¹ (SRA) operated to impose a clearly excessive sentence and that Solis–Diaz's age indicated diminished capacity to understand the wrongfulness and consequences of his actions. Judge Hunt denied the request and again imposed a standard-range sentence of 1,111 months in prison.

In making his ruling, Judge Hunt “ha[d] some comments to make about the finding that [Solis–Diaz's counsel at the original sentencing] was ineffective.” Report of Proceedings (RP) at 34. He called the reasoning underlying our holding

an insult to all the trial judges in this state. To postulate that a judge would be so ignorant, lazy or stupid as to not know or inquire at some point why this 17–year–old was in adult court is incredible to me.

....

In my case, it's particularly insulting as [counsel] well understood my background, which consists of 17 years in prosecution, nine years in private practice, ... and at the time three years on the bench.

....

[I]t is simply ludicrous to think that I would not have known what [counsel] meant when he said the defendant was ... auto-declined.

RP at 34–35. Judge Hunt then outlined at length his reasons for imposing a sentence at the top of the standard range:

The sentence is precisely what the Legislature intended and is frankly the only result which would withstand a legal analysis.

....

I believe the original sentence accurately reflects what the legislative intent for this situation is, and there are no substantial and compelling reasons to deviate from the standard range.

[T]he legislative intent is clear, and under the Sentencing Reform Act, punishment and accountability are the primary foci of sentencing, and serious violent offenses will be punished severely, particularly if there are multiple counts. Older teenagers will be treated as adults. And, finally, if you commit serious violent offenses while armed with a firearm, you'll receive a severe sentence.

One of the purposes of sentencing is the message that is sent to others contemplating a similar offense. ....

I don't know where the people live who made the claim that assaults in Lewis County have remained relatively steady, but for those of us who do live here, we know this. There had been many similar incidents of gang-related violence in Centralia with the use of firearms. From the day this sentence was pronounced, there have been no similar crimes in Centralia. Gang-related violence with firearms ha[ve] been virtually eliminated from Centralia.

RP at 37–44.

¶ 7 Judge Hunt rejected Solis–Diaz's request to impose an exceptional sentence below the standard range. He explained that under an earlier, now reversed, decision of Division Three of our court, State v. Graham (Graham I ), 178 Wash.App. 580, 314 P.3d 1148 (2013), rev'd, 181 Wash.2d 878, 337 P.3d 319 (2014), he had no authority to impose an exceptional downward sentence on multiple offense policy grounds because Solis–Diaz's convictions were for serious violent offenses, as defined in the SRA. He similarly stated that he believed State v. Ha'mim, 132 Wash.2d 834, 847, 940 P.2d 633 (1997), and State v. Scott, 72 Wash.App. 207, 219, 866 P.2d 1258 (1993), aff'd sub nom., State v. Ritchie, 126 Wash.2d 388, 894 P.2d 1308 (1995), prohibited him from considering Solis–Diaz's youth as an indicator of diminished capacity.

¶ 8 Solis–Diaz appeals his sentence.

ANALYSIS

I. Consideration of Mitigating Factors: Multiple Offense Policy

¶ 9 Solis–Diaz argues that the sentencing court erred by failing to consider as a mitigating factor the excessive nature of the standard range sentence produced by application of the SRA's multiple offense policy in this case. The State concedes that the sentencing court erred in refusing to consider this matter and we accept the concession.

¶ 10 We review a sentencing court's decision to deny an exceptional sentence to determine whether it failed to exercise discretion or abused its discretion by ruling on an impermissible basis. State v. McGill, 112 Wash.App. 95, 100, 47 P.3d 173 (2002). Where the sentencing court fails to exercise its discretion because it incorrectly believes it is not authorized to do so, it abuses its discretion. State v. O'Dell, 183 Wash.2d 680, 696–97, 358 P.3d 359 (2015) ; see also State v. Grayson, 154 Wash.2d 333, 342, 111 P.3d 1183 (2005) (noting that a sentencing court abuses its discretion by categorically refusing to consider an authorized and requested exceptional sentence).

¶ 11 Under the SRA, a sentencing court must generally sentence a defendant within the standard range. State v. Graham (Graham II ), 181 Wash.2d 878, 882, 337 P.3d 319 (2014). Pursuant to the SRA's multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively. RCW 9.94A.589(1)(b).² However, “[t]he court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence.” RCW 9.94A.535(1).³ One such mitigating circumstance exists if “[t]he 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.” RCW 9.94A.535(1)(g).⁴ When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “ ‘substantial and compelling reasons' ” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional sentence. Graham II, 181 Wash.2d at 885, 337 P.3d 319 (quoting RCW 9.94A.535).

¶ 12 The sentencing court in this case declined to consider an exceptional sentence below the standard range because it believed that the SRA's multiple offense policy could not be the basis for mitigation of resulting consecutive sentences. It based its belief on Division Three's opinion in Graham I. In that case, the court held that operation of the multiple offense policy to serious violent offenses was not a proper basis for an exceptional sentence. 178 Wash.App. at 590, 314 P.3d 1148.

¶ 13 However, after Solis–Diaz's resentencing our Supreme Court reversed the decision in Graham I and clarified that “a sentencing judge may invoke .535(1)(g) to impose exceptional sentences both for multiple violent and nonviolent offenses scored under .589(1)(a) and for multiple serious violent...