State v. Wright

• Decision Date: 24 August 2021
• Docket Number: No. 37445-9-III,37445-9-III
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Anthony Laurence WRIGHT, Appellant.

493 P.3d 1220

STATE of Washington, Respondent,

v.Anthony Laurence WRIGHT, Appellant.

No. 37445-9-III

Court of Appeals of Washington, Division 3.

FILED AUGUST 24, 2021

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 Sw Morrison St., Ste. 1025, Portland, OR, 97205-3813, for Appellant(s).

Larry D. Steinmetz, Brett Ballock Pearce, Gretchen Eileen Verhoef, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent(s).

PUBLISHED OPINION

Siddoway, J.

¶ 1 Eighteen years after being convicted of a gang-related shooting and receiving a sentence that included eight firearm enhancements, Anthony Wright was resentenced as the result of an offender score error. At a full resentencing in 2020, Mr. Wright presented impressive evidence of his rehabilitation.

¶ 2 By correcting Mr. Wright's offender score and imposing low-end sentences for all counts and exceptional concurrent sentencing for most of the counts, the resentencing court reduced what had been Mr. Wright's sentence of approximately 138 years to a sentence of approximately 76 years. Mr. Wright also requested that his firearm enhancements run concurrently and that his rehabilitation be relied on to impose even shorter, exceptional sentences, but the resentencing court concluded that neither was statutorily authorized.

¶ 3 Mr. Wright asks us to hold that the resentencing court had discretion it believed it lacked, but the resentencing court was right about the limits of its discretion. Relief for Mr. Wright must come from the executive branch or the legislature. We affirm.¹

FACTS AND PROCEDURAL BACKGROUND

¶ 4 In 2001, 28-year-old Anthony Wright and other members of his gang fired shots into a house, killing three-year-old Pasheen Bridges, injuring a young woman, and missing four other adults and two children. State v. Wright , noted at 119 Wn. App. 1052, slip op. at 1, 2003 WL 22970974 (2003). The State charged Mr. Wright with first degree murder, attempted first degree murder, and six counts of first degree assault, all with firearm enhancements. A jury found Mr. Wright guilty as charged. In 2002, the court imposed a sentence of 1,660 months.

¶ 5 In 2019, Mr. Wright's CrR 7.8 motion for resentencing based on a Weatherwax² error was granted. Although the error affected only two of the counts, the court granting his motion agreed to conduct a full resentencing.

¶ 6 At the resentencing, Mr. Wright was examined by defense counsel about his 2001 crimes. He expressed remorse and explained that shame he feels for what he did has driven him to rehabilitate himself and try to help others realize their full potential.

¶ 7 Mr. Wright submitted many supportive letters from people who operate or work alongside him in the many prison programs in which he has participated throughout his incarceration, a parent of one of his mentees, one of his students, and a retired state representative. All had nothing but the highest praise for Mr. Wright and his work on himself and with other inmates.

¶ 8 Defense counsel argued that the excessive length of Mr. Wright's consecutive sentences and his rehabilitation following his incarceration justified an exceptional mitigated sentence. After comparing Mr. Wright's sentence to his codefendants’ sentences and other similar cases, the court agreed that the operation of the multiple offense policy resulted in a presumptive sentence that was clearly excessive. See RCW 9.94A.535(1)(g). It imposed exceptional concurrent sentencing for all counts other than the first degree murder count. It concluded it lacked the discretion to run the firearm enhancements concurrently, however. It also concluded that it could not rely on Mr. Wright's postconviction rehabilitation as a basis for altering the sentences imposed for the crimes.

¶ 9 The court imposed the mandatory 40-year sentence for the eight firearm enhancements, and the lowest possible sentence within the standard range for Mr. Wright's crimes. The result is a total sentence of 915.75 months of confinement. Mr. Wright appeals.

ANALYSIS

¶ 10 A trial court's mistaken belief that it lacks discretion to impose a mitigated exceptional sentence is error. State v. McFarland , 189 Wash.2d 47, 56, 399 P.3d 1106 (2017) ( McFarland I ).³ Mr. Wright contends that the trial court misapprehended its discretion to sentence him more leniently in three respects.

¶ 11 Mr. Wright's lawyer is well aware of Washington cases that stand as barriers to the more lenient sentencing he seeks for his client: principally State v. Law , 154 Wash.2d 85, 92, 110 P.3d 717 (2005), and State v. Brown , 139 Wash.2d 20, 29, 983 P.2d 608 (1999), overruled as to juvenile offenders by State v. Houston-Sconiers , 188 Wash.2d 1, 391 P.3d 409 (2017) ). Drawing on legislative and case law developments, however, he urges us to conclude that the law has changed. For reasons we explain, we are unpersuaded.

Rehabilitation does not qualify as a mitigating factor under the Sentencing Reform Act of 1981, chapter 9.94A RCW (SRA)

¶ 12 Fixing appropriate penalties for crime is a legislative function.⁴ The legislature's authority is plenary, limited only by the federal and state constitutions. Law , 154 Wash.2d at 92, 110 P.3d 717. Under the indeterminate sentencing regime that existed before enactment of the SRA, judges set minimum and maximum terms of imprisonment and the Board of Prison Terms and Paroles would determine just how much of the sentence would be served.

State v. McFarland , No. 37422-0-III, ––– Wash.App.2d ––––, ––––, 492 P.3d 829, 832–34 (Wash. Ct. App. July 29, 2021), https://www.courts.wa.gov/opinions/pdf/374220_pub.pdf ( McFarland II ). The legislative goal was to allow for rehabilitation and redemption. Id. , ––– Wash.App.2d at ––––, 492 P.3d 829, 832–34 (citing DAVID BOERNER , SENTENCING IN WASHINGTON : A LEGAL ANALYSIS OF THE SENTENCING REFORM ACT OF 1981, § 9.2 (1985)). Judges had near unfettered discretion to decide when to run sentences concurrently or consecutively. McFarland II, ––– Wash.App.2d at ––––, 492 P.3d 829, 832–34 (citing former RCW 9.92.080 (1971)).

¶ 13 The goal of indeterminate sentencing was often not realized. Id. slip op. at 10, ––– Wash.App.2d at ––––, ––– P.3d ––––, 2021 WL 3240237 at *3–4. "Instead, pre-SRA sentences were frequently disproportionate and racially skewed." Id. (citing Dan Kilpatric & Jack Brummel, Sentencing Study , 52 WASH. L. REV. 103, 118 (1976)). "The SRA was enacted to address these shortcomings by structuring a judge's discretion in a way that ties sentencing decisions to the crime or crimes of conviction." Id. Under the SRA, each count of conviction is assigned a determinate sentencing range based on the statute of conviction and the defendant's offender score (calculated from the defendant's criminal history). Id. When, as here, a defendant is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the sentences imposed are to be served consecutively to each other. RCW 9.94A.589(1)(b).

¶ 14 While the SRA reduced judicial discretion, it did not eliminate it altogether. McFarland II, slip op. at 10, ––– Wash.App.2d at ––––, 492 P.3d 829, 832–34. RCW 9.94A.535 authorizes judges to depart from standard sentencing ranges, but the ability to depart is limited. To impose a sentence outside the standard range, the court must find, "considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. RCW 9.94A.535(1) sets forth a nonexclusive list of factors that justify a mitigated sentence. A departure from RCW 9.94A.589(2) ’s requirement of consecutive sentencing for serious violent offenses is an exceptional sentence subject to these limitations. RCW 9.94A.535.

¶ 15 Longstanding case law establishes a two-part test for determining whether a factor that is not statutorily identified will support a downward departure from the standard range:

"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 factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category."

State v. Smith , 123 Wash.2d 51, 57, 864 P.2d 1371 (1993) (emphasis added) (quoting State v. Grewe , 117 Wash.2d 211, 215-16, 813 P.2d 1238 (1991) ), overruled in part on other grounds , State v. Hughes , 154 Wash.2d 118, 140, 110 P.3d 192 (2005).

¶ 16 In Law , our Supreme Court reversed a downward exceptional sentence that the trial court based in part on progress made by a criminal defendant in her relationship with her son and her continued participation in a 12-step program for her substance abuse. 154 Wash.2d at 90, 110 P.3d 717. The court held these factors were not a valid basis for a downward departure under the SRA. Rather, the SRA "requires factors that serve as justification for an exceptional sentence to relate to the crime, the defendant's culpability for the crime, or the past criminal record of the defendant." Id. at 89, 110 P.3d 717. It continued, "Factors which are personal and unique to the particular defendant, but unrelated to the crime, are not relevant under the SRA." Id . It cited prior cases in which it held that a defendant's altruistic past and concern for others and another defendant's strong family support were not considerations that could support a downward departure. Id. at 97-99, 110 P.3d 717 (citing State v. Freitag , 127 Wash.2d 141, 144-45, 896 P.2d 1254 (1995) ; State v. Fowler , 145 Wash.2d 400, 411, 38 P.3d 335 (2002) ).

¶ 17 Mr. Wright contends that the SRA's requirements have evolved. Yet his first argument for this evolution is from the stated purposes of the SRA, four of which he argues relate to rehabilitation—and the stated purposes on which he relies predate Law . In fact, three of them were relied on by the trial court in Law as support for its downward...