Opinion
No. 56834-5-I.
November 27, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-03453-8, William L. Downing, J., entered August 8, 2005.
Counsel for Appellant(s), Brian Martin Mcdonald, King County Prosecutor's Office, Seattle, WA.
Counsel for Respondent(s), Eric Broman, Nielsen Broman Koch PLLC, Seattle, WA.
Jennifer L Dobson, Attorney at Law, Seattle, WA.
Reversed and remanded by unpublished per curiam opinion.
Alexander Phillips punched a man in the face, and his co-defendant then kicked the victim numerous times. Phillips had a prior criminal record, while his co-defendant did not. The trial court balanced what it perceived as the greater culpability of the co-defendant with Phillips's criminal record and concluded that equal sentences for both defendants would serve the goals of consistency, proportionality, and promoting respect for the law as laid out in the Sentencing Reform Act of 1981. To accomplish its goal of equal sentences, the court imposed an exceptional sentence down on Phillips. The State appeals, and we reverse.
Ch. 9.94A RCW.
Kevin Maloney went to a tavern to meet some friends. On his way, he got a cell phone call from his ex-girlfriend, Sylvia McWilliams. While no longer romantically involved, the two kept in regular contact. When Maloney told her where he was going, McWilliams said she would join him. As soon as McWilliams arrived at the tavern, she took Maloney by the hand and led him onto the dance floor.
Shortly before she called Maloney, McWilliams had quarreled with her new boyfriend, Steven Cliff. Cliff, his friend, defendant Alexander Phillips, and a third man, Tonatiuh Simiano, arrived at the tavern and observed Maloney and McWilliams dancing together.
When Maloney went to the restroom, Cliff and Phillips confronted him. Phillips struck Maloney in the face with his fist. Maloney fell back against the wall and then collapsed to the floor. Cliff then proceeded to kick Maloney a number of times in the head and upper torso. Cliff, Phillips, and Simiano fled the bar immediately after the assault.
Maloney sustained injuries to his brain, as well as injuries to his neck and face.
Cliff and Phillips were charged and convicted of second degree assault at a joint jury trial. Phillips had an offender score of two and faced a standard range sentence of 12 to 14 months confinement. His criminal record included four felony juvenile adjudications dated between 1993 and 1995 when he was between 12 and 15 years old. Cliff had no prior felonies and faced a lower standard range sentence of 3 to 9 months.
At the sentencing hearing, the court described the assault as a brutal and unjustified act by both defendants, but it was troubled by what it perceived as an inequitable disproportionality in the sentences each defendant faced. The court felt that Cliff bore a greater responsibility for Maloney's injuries than Phillips did, and that sentencing Phillips to a longer term than Cliff when his culpability was less would not serve the interests of justice. The court imposed identical sentences on each defendant, imposing an exceptional sentence down on Phillips in order to bring it into alignment with the sentence imposed on Cliff. The State appeals the exceptional sentence down on Phillips.
Standard of Review
When reviewing an exceptional sentence, we ask three questions: (1) are the reasons supplied by the sentencing judge supported by the record; (2) do those reasons justify a sentence outside the standard range; and (3) was the sentence clearly excessive or too lenient. We apply a clearly erroneous standard to the first question, a de novo standard to the second, and an abuse of discretion standard to the third.
State v. Borg, 145 Wn.2d 329, 336, 36 P.3d 546 (2001).
Discussion
In its findings of fact and conclusions of law on exceptional sentence, the trial court stated that Maloney's brain injuries were principally the result of Cliff's kicks to the victim's head and torso. This conclusion is not supported by the record.
The emergency room physician who examined CT scans taken of Maloney's skull was not able to testify whether the injuries to his brain were the result of his being punched and knocked against the wall, or being kicked while on the ground. Nor was a neuroradiologist who testified able to make a determination as to the specific cause of Maloney's brain injury. While Tonatiuh Simiano testified that Phillips's blow "didn't seem like it was a very hard punch" and was "not . . . full force," Phillips himself testified that he intended to strike Maloney in the face with sufficient force to cause a black eye. Indeed, he struck with great enough force to cause Maloney to bounce back against the wall before collapsing to the floor. Simiano, who was a close friend of Phillips, testified that Phillips threw a weak punch, which "brushed up against the shoulder and roughly in the neck area." However, when confronted with his previous statement to police, he conceded that Phillips struck Maloney in the face.
Report of Proceedings (RP) (June 29, 2005) at 54.
RP (June 29, 2005) at 70.
RP (June 29, 2005) at 54.
Phillips was convicted of second degree assault, requiring proof of an intentional assault which recklessly inflicts substantial bodily harm. Any reasonable person knows that punching someone in the face could result in substantial bodily harm. Given the apparent force of Philips's blow and the ricochet of Maloney's body off the wall, as well as the inability of the two testifying physicians to determine the specific cause of Maloney's brain injuries, the court's finding that Maloney's injuries were principally caused by defendant Cliff does not appear to be supported by the record.
State v. R.H.S., 94 Wn. App. 844, 846, 974 P.2d 1253 (1999).
R.H.S., 94 Wn. App at 847.
In its written findings, the trial court cited one statutory mitigating circumstance which would allow it to impose an exceptional sentence below the standard range: "[t]he 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."
RCW 9.94A.535(1) permits an exceptional sentence below the standard range if the court finds that mitigating circumstances are established by a preponderance of the evidence. Evidence of such mitigating circumstances is not to be found in the record. It is undisputed that Phillips struck the first unprovoked blow against Maloney. He did not seek to restrain Cliff, left the tavern immediately after the assault, and did not attempt to aid Maloney or see that he was attended to. When he was contacted by a Seattle police detective, Phillips lied about his involvement in the assault, claiming never to have hit Maloney. The record does not demonstrate by a preponderance of the evidence that Phillips manifested extreme caution or sincere concern for Maloney's safety. While the list of aggravating and mitigating factors justifying an exceptional sentence set out in RCW 9.94A.535(1) is illustrative only and not exclusive, it is clear that the Legislature intended lesser participation to be a mitigating circumstance only when it is combined with concern for the victim. No such concern being manifested, the finding is unsupported by the record.
State v. Nelson, 43 Wn. App. 871, 876, 719 P.2d 961 (1986). This portion of Nelson was upheld in State v. Nelson 108 Wn.2d 491, 492-93, 740 P.2d 835 (1998).
Nelson, 43 Wn. App. at 876-877.
The court described the assault as a brutal and unjustified act by both defendants. Nevertheless, it was troubled by the prospect of Phillips receiving a longer sentence than Cliff, whom the court found to be the more culpable of the two. To remedy the disparity, the court balanced Cliff's perceived greater culpability with Phillips's worse criminal record and concluded that equal sentences for the two men would serve the statutory goals of consistency, proportionality, and promoting the respect for the law.
The purpose of the Sentencing Reform Act is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences. One of the principles laid out in the Act is that sentences be commensurate with the punishment imposed on others committing similar offenses. The purposes of the Sentencing Reform Act enumerated in RCW 9.94A.010 are not in and of themselves mitigating circumstances. Rather, they may provide support for the imposition of an exceptional sentence once a proper mitigating circumstance has been identified by the trial court. The presumptive sentence ranges established by the Sentencing Reform Act for each crime represent the legislative judgment as to how these interests shall best be accommodated. The trial court's subjective determination that these ranges are unwise, or that they do not adequately advance the above goals, is not a substantial and compelling reason justifying a departure. Once a valid mitigating factor is identified by the trial court, the purposes section of RCW 9.94A.010 may properly be considered by the court in fashioning an appropriate sentence.
RCW.9.94A.010.
RCW.9.94A.010(3).
State v. Alexander, 125 Wn.2d 717, 730, 888 P.2d 1169 (1995).
State v. Pascal, 108 Wn.2d 125, 137-38, 736 P.2d 1065 (1987).
Alexander, 125 Wn.2d at 730.
The court was not persuaded that Phillips's prior juvenile record justified adhering to the standard sentencing range. However, a sentencing court may not base an exceptional sentence on the defendant's criminal history and the seriousness level of the offense, because those factors are considered in computing the presumptive range for the offense. To dismiss the consequences of a defendant's prior criminal record because it would mandate a higher sentence than that given to a co-defendant flies in the face of the clear purpose of the Sentencing Reform Act, which is to ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history.
State v. Fowler, 145 Wn.2d 400, 405, 38 P.3d 335 (2002).
Phillips cites State v. Alexander and State v. Moore for the proposition that minimal involvement in an offense, as compared to other actors committing the same offense, is a substantial and compelling reason for imposing a downward departure. The key distinction lies in the word "minimal." The defendants in Moore and Alexander were both given exceptional sentences down, and those sentences were upheld on appeal.
125 Wn.2d 717, 888 P.2d 1169 (1995).
73 Wn. App. 789, 871 P.2d 642 (1994).
Alexander, 125 Wn.2d at 729; Moore, 73 Wn. App. at 798-99.
The defendant in Moore was given a sentence 27 months below the standard range after the trial court found that his involvement in a marijuana sales operation was minimal. On appeal, the court agreed with the trial court that Moore's participation was merely incidental to the overall criminal enterprise, that his primary function was to perform handyman work around his co-defendant's residence, and that his only ties to the marijuana-stolen property operation were that he accompanied his co-defendant to the sites of most transactions in order to lift stolen property.
Moore, 73 Wn. App. at 796-97.
Similarly, in Alexander, the court upheld a downward departure from the standard range on the grounds that the defendant was in possession of an "extraordinarily small amount" of cocaine (estimated to weigh .03 grams and to be too small to remeasure), and that the defendant's involvement with a drug transaction was "very minor."
Alexander, 125 Wn.2d at 726-29.
The Legislature's recognition that not all exceptional fact patterns can be anticipated informs our inquiry whether a fact which is specific to the commission of a crime may constitute a judicially recognized "substantial and compelling" reason for departure from the standard range. "`[W]hile factors which truly distinguish the crime from others of the same statutory category may justify an exception, those which are inherent in that class of crimes and do not distinguish the defendant's behavior from that inherent in all crimes of that classification may not.'"
Alexander, 125 Wn.2d at 724-25.
Alexander, 125 Wn.2d at 725 (quoting David Boerner, Sentencing in Washington, § 9.6, at 9-13 (1985)).
In the present case, Phillips's actions cannot be described as minor or merely incidental. Phillips initiated the assault on Maloney by striking him in the face. Phillips's participation in the assault was not so incidental or insignificant that it can be said that he was a lesser participant. The entire assault was over in a matter of moments, and Phillips's involvement cannot reasonably be teased apart from his co-defendant's and likened to that of a drug dealer's handyman or an intermediate's possession of minute amounts of cocaine. Even if Phillips's involvement in the assault were of a lesser degree than Cliff's, "`[i]n order for a lesser degree of participation to be considered a mitigating factor, the defendant's participation must be significantly out of the ordinary for the crime in question.'" As discussed above, Phillips's act was entirely within the characterization of second degree assault which recklessly inflicts substantial bodily harm.
Moore, 73 Wn. App. at 798 (quoting Nelson, 108 Wn.2d at 501).
The reasons cited by the trial court do not justify a sentence outside the standard range.
REVERSED AND REMANDED.
BAKER, DWYER and COX, JJ.