Opinion
No. 21882-1-III
Filed: August 31, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-02244-9. Judgment or order under review. Date filed: 02/28/2003. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent/Cross-Appellant, Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
A jury found that Sterling Oneal participated in two robberies committed with a firearm at Northtown Mall. In this appeal, Mr. Oneal contends the evidence at trial supported a finding that he was present at the scene of the robberies, but not that he acted as an accomplice to the other two individuals involved.
The State cross-appeals from the superior court's imposition of exceptional sentences below the standard ranges for these offenses. Among other things, the sentencing court found that Mr. Oneal, who was under 18 years old when the offenses occurred, had no predisposition to commit them and was induced to participate by two young men he knew from school. The court concluded that the standard range of 41 to 54 months confinement for the robberies, when added to the consecutive 60 months mandatory sentences for the firearm enhancements, was clearly excessive. The court therefore reduced the sentences for the robberies to one day each. When added to the two mandatory, consecutive five-year terms for the firearm enhancements, Mr. Oneal will serve 10 years plus 2 days in prison, with no reduction for good time.
We affirm the convictions and the exceptional sentences.
This court heard argument in Mr. Oneal's case one month before the United States Supreme Court issued its opinion in Blakely v. Washington, U.S., 124 S. Ct. 2531 (2004). There, the court held that aggravating factors used to increase a defendant's sentence had to be determined by a jury beyond a reasonable doubt. While it remains an open question whether Blakely also applies to mitigating factors, Mr. Oneal has not been prejudiced here because the sentencing court found in his favor and imposed a sentence below the standard range. See Blakely, 124 S. Ct. at 2549 (O'Connor, J., dissenting).
Around 9:30 p.m. on August 24, 2002, two men were held-up at gunpoint in the Northtown parking garage. The two victims described separate, but similar robberies. Michael Uhlenkott testified that he had left work and was walking inside the garage to his vehicle, when he passed three men walking together. He paused and looked back after he got to his car. The three men were 20 to 30 yards away from him and were running toward him. One of the men displayed a gun and took his wallet, which contained a small amount of change and a bank card. The other two men stood only one or two feet apart from the man with the gun. The three men then ran off together.
Kevin Simpson was also leaving work that night, when he heard footsteps behind him in the parking garage. He turned and was confronted by a young man with a gun, who took his wallet. Two other young men were standing about 10 feet away. These two men were looking around like they were checking to see if anyone else was in the vicinity. As the three left the scene together, Mr. Simpson called out, asking them to return his driver's license. The gunman returned the license, and one of the others said, `I don't f believe this.' Report of Proceedings (RP) at 50.
The police were immediately notified of the incidents and cordoned off several blocks around the mall. They found three men in different locations in that area. Two handguns were also recovered, and a fingerprint expert identified prints found on the weapons as those of the other two men, not those of Mr. Oneal. The police located Mr. Oneal with the help of a canine, under a tree in a backyard of a residence. Mr. Oneal stated that he had a fight with a family member and was walking around, trying to cool down, when he decided to sit under the tree.
One of the victims viewed Mr. Oneal in a show-up just after he was apprehended and said he was about 80 percent certain that Mr. Oneal was one of the men, other than the gunman, who had confronted him. The victim said the shirt Mr. Oneal was wearing looked like the shirt being worn by one of the men.
Mr. Oneal's co-defendants plead guilty. At trial, Mr. Oneal testified that he was walking around Northtown when he ran into two young men who he knew from school. He said he joined them, and they shopped a while longer. At some point, one of the men said, `we need to get some money.' RP at 127. The two showed Mr. Oneal that they had guns. When they explained they intended to rob someone, Mr. Oneal stated he told them he was not going to get involved. He stayed in the mall while the other two left for the garage.
After 10 to 15 minutes, Mr. Oneal went to the garage, where he found the other two men. They told him they had already robbed someone. Mr. Oneal walked along with them, and then the other two charged at a man and demanded his money. Mr. Oneal said he was shocked, and just stood there. Afterwards he ran, but not with the other two. Within a few minutes, he encountered them again, just as they confronted the second victim. That was when Mr. Oneal stated he said, `I can't freaking believe this.' RP at 136. He also told the co-defendant to `at least give him back his driver's license.' RP at 137.
The jury convicted Mr. Oneal on both counts and found by special verdicts that the robberies had been committed with a firearm.
MR. ONEAL'S APPEAL
When viewed in the light most favorable to the State, was the evidence sufficient for a rational trier of fact to find beyond a reasonable doubt that Mr. Oneal committed, as an accomplice, first degree robbery while armed with a firearm? See State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980).
A person commits robbery when he unlawfully takes personal property from the person of another . . . against his will by the use or threatened use of immediate force, violence, or fear of injury to that person[.]
(1) A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery[,] he or she:
(i) Is armed with a deadly weapon[.]
Mr. Oneal does not dispute that the facts support a finding that two first degree robberies occurred here; what he disputes is the jury's finding he was involved as an accomplice. While something other than mere presence is needed for accomplice liability, the testimony of the victims concerning their observations of the two men other than the gunman is sufficient to find that Mr. Oneal was ready to assist as needed. One victim testified that all three men ran 20 to 30 yards back to him after they initially had passed him in the garage. When one of the men pulled a gun, the other two men stood one to two feet away. The three men ran off `together.' RP at 25. The second victim testified the two men, other than the gunman, stood about 10 feet away and were looking around like they were checking to see who else was in the vicinity.
See In re Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979).
The evidence was sufficient to establish that Mr. Oneal acted as an accomplice.
Accordingly, Mr. Oneal's convictions are affirmed.
THE STATE'S CROSS-APPEAL
The State challenges the exceptional sentences, contending the sentences are neither legally nor factually supportable. In support of the exceptional sentences, the court entered the following findings of fact and conclusions of law:
I. FINDINGS OF FACT
(1) The defendant is 18 years of age, and was less than 18 at the time of the crimes herein.
(2) The defendant has no prior felony convictions, and one non-violent juvenile misdemeanor conviction.
(3) . . . The defendant did not possess a weapon, but under an accomplice theory the jury also found that the defendant was `armed' with a firearm during the commission of each count.
(4) The defendant had no predisposition to commit the crimes, and his participation was induced by others.
(5) The defendant did not command, solicit or encourage the commission of the crimes.
(6) The offenses were principally accomplished by convicted co-defendants Anthony Burden and Adran Francis, both of whom possessed pistols. The defendant was not armed and did not direct the principals. At one point, O'Neal urged the principals to return property to the victim.
(7) The firearms were not discharged, and the victims were not touched, or harmed.
(8) Both armed co-defendants entered plea agreements after the defendant's trial, and are subject to lesser sentences than that faced by the defendant.
II. CONCLUSIONS OF LAW
(1) The defendant has an `offender score' of 2, and a presumptive sentence range of 41 to 54 months confinement. With the two mandatory non-suspendable consecutive 60-month firearm enhancements, the defendant faces a total `standard range' sentence of 141 to 174 months.
(2) A standard range sentence of 141-174 months is clearly excessive.
(3) There are substantial and compelling reasons to depart from the standard range sentence in this case.
(4) A sentence of 120 months and one day is consistent with the purposes of the Sentence Reform Act and RCW 9.94A.010, and is not too lenient.
(CP 45-47) (emphasis added.)
A sentencing court may sentence an offender outside the standard range if, considering the purposes of the Sentencing Reform Act of 1981, it finds `substantial and compelling reasons justifying an exceptional sentence.' RCW 9.94A.535. The statute contains a non-exclusive list of mitigating factors that may support an exceptional sentence below the standard range, including
(d) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
. . . .
(f) The offense was principally accomplished by another person and the defendant manifested extreme caution or sincere concern for the safety or well-being of the victim.
(g) The 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.
Review of an exceptional sentence is governed by RCW 9.94A.585(4). The appellate court engages in a three-part analysis. First, the court determines if the record supports the sentencing court's reasons. The reasons are upheld unless they are clearly erroneous. Second, the court determines, as a matter of law, whether the reasons justify an exceptional sentence. These reasons must be substantial and compelling. Third, the court examines whether the sentence is clearly excessive or clearly too lenient.
An appellate court can uphold an exceptional sentence even if it overturns all but one of the sentencing court's reasons. State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993). Remand is necessary only in circumstances in which it is not clear that the sentencing court would have imposed an exceptional sentence on the basis of the one factor upheld. Id.
Here, the parties' arguments focus mainly on finding of fact (4) (no predisposition to commit crime, and participation was induced by others) and findings of fact (3), (5), and (6) (Mr. Oneal's involvement in the offenses was minimal), as follows:
Some of the other reasons cited by the superior court do not justify a sentence below the standard range. For example, the fact his co-defendants received lesser sentences is not a reason for imposing a downward sentence for Mr. Oneal. Disparate sentences based upon differences in pleas do not offend equal protection. State v. Caffee, 117 Wn. App. 470, 481, 68 P.3d 1078 (2002), cert. denied, 124 S. Ct. 834 (2003).
A. Are the Reasons Supported by the Record?
Contrary to the State's assertion, the evidence supports the superior court's finding that the other two men `induced' Mr. Oneal to commit the robberies. He testified that they were the ones who suggested it. And, the fact that the guns belonged to the other two men and the fact that Mr. Oneal was not carrying a gun indicates that the other men had planned their criminal activity before they went to the mall. Mr. Oneal, on the other hand, testified he went to the mall without any criminal intent. It is true that the jury rejected Mr. Oneal's testimony that he was merely present when the robberies occurred and did not assist or encourage them in any way. But, the sentencing court could rely on Mr. Oneal's testimony that the other two suggested the robberies and not be inconsistent with the jury's verdict.
The court's finding that Mr. Oneal lacked the predisposition to commit these offenses is supported by his lack of a criminal record, other than the prior misdemeanor juvenile adjudication for possession of stolen property. A court could reasonably find that such an offense does not indicate that the offender has a predisposition to commit crimes of violence, such as the armed robberies here.
The record also supports the sentencing court's findings to the effect that Mr. Oneal's involvement in the robberies was minimal. He was not armed, he did not command or solicit the commission of the robberies, and the offenses were principally accomplished by the other two men.
B. Do the Reasons Justify an Exceptional Sentence?
Generally, lack of criminal history is not a mitigating factor because the sentencing guidelines already encompass criminal history. State v. Fowler, 145 Wn.2d 400, 406, 38 P.3d 335 (2002). `The only exception to this general rule is that a lack of criminal history may be considered `in combination with the finding that the defendant was `induced' to commit the crime' or lacked a predisposition to commit the crime.' Id. at 406-07 (quoting State v. Ha'mim, 132 Wn.2d 834, 842-43, 940 P.2d 633 (1997)). "The lack of the individual's previous inclination to commit the crime, together with the fact that he or she was induced by someone else to participate in the crime, may reduce the culpability of the defendant. . . ." State v. Jeannotte, 133 Wn.2d 847, 853, 947 P.2d 1192 (1997) (quoting Ha'mim, 132 Wn.2d at 843)) (emphasis omitted).
An accomplice's minimal involvement is also a proper factor for the court to consider in imposing an exceptional sentence below the standard range. State v. Moore, 73 Wn. App. 789, 796-97, 871 P.2d 642 (1994).
Accordingly, the reasons given by the superior court — that Mr. Oneal lacked a predisposition to commit the robberies, was induced to do so by the other two men involved, and his involvement was minimal — justify an exceptional sentence downward.
C. Is the Sentence Clearly Too Lenient?
The sentence of 120 months plus 2 days is not clearly too lenient to punish Mr. Oneal in the circumstances present here.
For the above reasons, the exceptional sentences are affirmed.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to
KATO, C.J. and BROWN, J., concur.