Opinion
No. 64339-8-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05166-4, Christopher A. Washington, J., entered September 21, 2009.
Reversed and remanded by unpublished opinion per Cox, J., concurred in by Appelwick and Lau, JJ.
After Young pleaded guilty to theft of a motor vehicle, the trial court imposed a mitigated exceptional sentence of 10 months, 12 months less than the bottom of the standard range. The State appeals, arguing that the trial court erred by taking additional evidence and changing the legal basis for its decision following appeal of the judgment and sentence. The State also claims that there was an insufficient legal and factual basis for imposing an exceptional sentence and that the sentence is clearly too lenient. The trial court's finding that Young's mental capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired at the time of the crime because of his mental illness is not supported by the record. Accordingly, we reverse and remand for resentencing.
Brad Young and another individual stole a "bait car" that was owned by the Seattle Police Department. After the police were alerted that the car had been taken, Young was arrested. He pleaded guilty to the charge of theft of a motor vehicle.
Based on Young's offender score of seven, his standard range sentence was between 22 and 29 months. The defense sought an exceptional sentence down of time served. Defense counsel's request was primarily based on Young's self-initiated efforts following his arrest in June 2008 to identify and seek treatment for the underlying causes of his criminal behavior: long-standing drug addiction and previously untreated mental health problems. The State requested a standard range sentence of 25 months.
At the sentencing hearing, the court focused on Young's substantial efforts to obtain drug and mental health treatment and to change the course of his life. The court imposed a sentence of ten months and entered a judgment and sentence, which the State appealed. At a subsequent hearing, the court entered written findings of fact and conclusions of law in support of the exceptional sentence it previously imposed. In its written findings, the court stated:
See RCW 9.94A.535 (trial court must file findings of fact and conclusions of law when it imposes a sentence that departs from the standard range).
[A]t the time the current offense was committed, the defendant suffered from significant substance abuse and mental health-related issues. The court finds that the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired pursuant to RCW 9.94A.535(1) by his mental health diagnoses including major depressive disorder. In addition, since the commission of the instant offense, the defendant has taken remedial measures to successfully address these issues. The court finds that further punishment would not further any
rehabilitative purpose and that the defendant and society are better served by the defendant's participation in the programs considered above. Finally, the court finds that the defendant's strong family support, combined with the defendant's efforts noted above, will benefit the defendant and the community beyond any further punishment.
Clerk's Papers at 71.
The State appeals, arguing that the court took additional evidence at this hearing, violating RAP 7.2(b) because the judgment and sentence was then on appeal. It also argues that the trial court's findings do not support the imposition of an exceptional sentence below the standard range. We agree with the latter argument and need not address the former.
Generally, a sentencing court must impose a sentence within the standard range set out by the legislature. A trial court is authorized to impose an exceptional sentence if it finds substantial and compelling reasons to justify departure from the standard range and if those reasons are consistent with the purposes of the Sentencing Reform Act of 1981 (SRA).
The legislature has stated a nonexclusive list of mitigating and aggravating factors that may support a sentence outside the standard range if found by a preponderance of the evidence. Included among these factors is that the "defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired."
We review a trial court's imposition of an exceptional sentence in three steps. First, we analyze, under a clearly erroneous standard, whether the reasons given for the exceptional sentence are supported by the record. Second, we engage in de novo review to determine whether those reasons as a matter of law justify a departure from the standard range. Third, we determine, under an abuse of discretion standard, whether the sentence is clearly too excessive or too lenient.
State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005); see RCW 9.94A.585(4).
Law, 154 Wn.2d at 93.
Id.
Id.
The SRA applies "equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant." A trial court may not base an exceptional sentence on factors necessarily considered by the legislature in establishing the standard sentence range and the aggravating or mitigating factor relied upon must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Factors which are personal and unique to the particular defendant, but unrelated to the crime, are not relevant under the SRA and may not be relied upon as mitigating factors.
RCW 9.94A.340; State v. Ha'mim, 132 Wn.2d 834, 847, 940 P.2d 633 (1997).
Ha'mim, 132 Wn.2d at 840.
Law, 154 Wn.2d at 89, 97.
The court set forth three bases for its imposition of the exceptional sentence: impairment because of mental illness, remedial efforts, and family support. Young's efforts to obtain treatment after he committed the crime and his family support clearly are factors that do not relate to the crime, or make the commission of the crime less egregious. Instead, these bases relate to Young's personal circumstances and therefore, cannot support an exceptional sentence. The parties, accordingly, focus their arguments on whether the record supports the court's finding of impairment caused by mental illness.
See, e.g., Id. at 103-04 (progress in drug treatment and impact on relationships with children); State v. Freitag, 127 Wn.2d 141, 145, 896 P.2d 1254, 905 P.2d 355 (1995) (desire to improve through community service); State v. Estrella, 115 Wn.2d 350, 353-54, 798 P.2d 289 (1990) (willingness to rehabilitate and low risk to reoffend); State v. Hodges, 70 Wn. App. 621, 623, 855 P.2d 291 (1993) (community support and remedial efforts).
In order for the court to conclude that deviation from the standard range is warranted due to a significant impairment of a defendant's capacity, it must find proof, based upon the evidence, that the defendant's condition significantly impaired his capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law. In Rogers, the defendant was a 50-year-old, highly-educated former schoolteacher and school principal who committed armed bank robbery. The court imposed an exceptional sentence below the standard range finding, based on testimony and a psychologist's report, that the defendant was "under severe emotional and psychological stress at the time the offense was committed" and his judgment was "exceptionally impaired, his thinking irrational and his behavior impulsive." The supreme court concluded that, accepting the trial court's finding that Rogers was under severe emotional and psychological stress when he committed the bank robbery, there was no proof that the stress Rogers experienced significantly impaired his capacity to appreciate the wrongfulness of his conduct. Therefore, the court reversed, observing that the test under RCW 9.94A.535(1)(e) is "stringent" and if a trial court relies on the statutory language of RCW 9.94A.535(1)(e), there must be proof to meet that standard.
State v. Rogers, 112 Wn.2d 180, 185, 770 P.2d 180 (1989).
Id. at 184.
Id. at 185.
Id.
Here, the record contains no evidence establishing that Young's mental condition brought about an inability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. Although the court made a finding that Young acted "impulsively and was impaired" by his mental health diagnoses when he decided to drive the bait car, the evidence in the record does not substantiate this finding. Although defense counsel and the social worker who advocated for the imposition of the mitigated exceptional sentence referred to Young's mental health issues, neither addressed the relationship between Young's mental illness and his impairment at the time of the offense. Moreover, even had they done so, there is nothing in the record to show they had expertise to do so. Finally, the DSHS report, completed approximately ten months after the crime and submitted by the defense at the hearing on the proposed findings, did not cure the deficiency. The report lists several diagnoses and notes generally that Young's judgment and decision-making is impaired, but does not establish a causal connection between Young's diagnoses and the crime.
Young informed the court at sentencing that he could not "function normally without the aid of mental-health counseling and medication and drug treatment." And in response to the court's inquiry about his thought process when he decided to steal the car, Young said, "when I'm using and not taking my medication, I act compulsively. I don't think twice." But this vague and self-serving testimony is insufficient. In the absence of evidence demonstrating and explaining the specific causal nexus between the defendant's mental illness and his impaired capacity, the stringent test of Rogers cannot be met.
See State v. Hobbs, 60 Wn. App. 19, 24, 801 P.2d 1028 (1990) (evidence consisting of defendant's statement to the court at sentencing and attorney's assertion in presentence report was insufficient to support finding of significant impairment at time of the offense).
In light of this conclusion, we need not address the State's additional arguments regarding whether the sentence was clearly too lenient.
Because the reasons that the trial court gave in support of the mitigated exceptional sentence are neither supported by the record nor substantial or compelling, we reverse and remand for resentencing.
WE CONCUR: