State Of Washington, / Cross- App. v. Donald Wayne Davidsen, / Cross-res. ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) No. 75528-5-1
)
Respondent, ) DIVISION ONE
)
V. )
)
DONALD WAYNE DAVIDSEN, ) UNPUBLISHED
)
Appellant. ) FILED: November 13, 2017
)
Cox, J. — Donald Davidsen appeals his judgment and sentence, arguing
that the trial court abused its discretion by inadequately considering his request
for a mitigated exceptional sentence. We hold that the trial court adequately
considered Davidsen's request. As such, it did not abuse its discretion. Thus,
we affirm the judgment and sentence.
The State charged Davidsen with failing to update his sex offender
registration upon changing addresses. He pleaded guilty as charged and sought
a mitigated exceptional sentence.
The sentencing court engaged in two days of colloquy and reviewed the
parties' briefs. Davidsen requested an exceptional sentence based on
improvements he had made in his life. He explained that he had found
employment, entered treatment, become active in his community, and was
expecting his first child soon. He had begun to overcome a long term drug
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addiction. But he had recently relapsed, based on a narcotic pain medication he
was prescribed. Allegedly, that relapse factored into his failure to register.
The sentencing court concluded that these arguments did not provide
legal grounds to justify a mitigated exceptional sentence. Accordingly, it denied
Davidsen's request and imposed a standard range sentence of 17 months
confinement and 36 months community custody.
MITIGATED EXCEPTIONAL SENTENCE
Davidsen argues that the trial court abused its discretion by failing to
recognize its own authority to impose a mitigated exceptional sentence based on
circumstances not expressly stated in RCW 9.94A.535. We disagree.
A defendant generally cannot appeal a standard range sentence.1 But
every "defendant is entitled to ask the trial court to consider [an exceptional]
sentence and to have the alternative actually considered."2 Thus, a trial court
that refuses categorically to consider such a request abuses its discretion.3 The
trial court also abuses its discretion when it sentences based on a legal
misunderstanding of its own discretion.4
We review for abuse of discretion the trial court's consideration of a
request for a mitigated exceptional sentence.5
RCW 9.94A.585(1).
2 State v. Grayson, 154 Wash. 2d 333, 342, 111 P.3d 1183(2005).
3 Id.
In re Pers. Restraint of Mulholland, 161 Wash. 2d 322, 334, 166 P.3d 677
(2007).
5 Grayson, 154 Wash. 2d at 341-42.
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In re Personal Restraint of Mulholland6 is instructive on the exercise of
discretion in this regard. The trial court had sentenced Daniel Mulholland for six
counts of first degree assault, and one count of drive-by shooting. Despite
Mulholland's request, the trial court declined to impose concurrent sentences,
concluding that it lacked the discretion to do so.7
The supreme court reversed this conclusion, noting that the trial court had
"made statements on the record which indicated some openness toward an
exceptional sentence."8 Although this did "not show that it was a certainty that
the trial court would have imposed a mitigated exceptional sentence if it had
been aware that such a sentence was an option. . . [its] remarks indicate that it
was a possibility."6 Remand was proper when it could not be said that the
sentence would have been the same had the trial court better understood its own
discretion.1°
RCW 9.94A.535 governs the trial court's consideration in determining
whether to grant an exceptional sentence. Under that statute, the trial court may •
impose an exceptional sentence if justified by "substantial and compelling
reasons."11 The defendant can provide these reasons by proving certain
6 161 Wash. 2d 322, 166 P.3d 677(2007).
7 Id. at 326.
8 Id. at 333.
9 Id. at 334.
10 Id.
11 RCW 9.94A.535.
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mitigating circumstances by a preponderance of the evidence.12 These
circumstances are those that "distinguish [the crime]from other crimes of the
same statutory category."13 They are not "personal characteristics" of the
defendant.14 The statute provides a list of illustrative circumstances and clarifies
that these are not exhaustive.15
Here, the sentencing court did not fail to recognize the scope of its
discretion. Nor did it abuse the discretion it had. Davidsen and the State both
acknowledged to the sentencing court that RCW 9.94A.535's list of enumerated
circumstances was not exhaustive. The record does not suggest that the
sentencing court concluded otherwise.
Davidsen presented as mitigating circumstances that he had found stable
housing and employment, and had a child on the way. Recognizing that he had
a "significant drug and alcohol problem," he explained that he was making
progress, and after 30 days of inpatient treatment, had reached sobriety.16
Instead of rejecting these arguments, the sentencing court considered
them at length. It expressed some concern whether these grounds provided a
legal basis for a mitigated exceptional sentence. In this, the sentencing court
12 RCW 9.94A.535(1).
13 State v. Pennington, 112 Wash. 2d 606, 610, 772 P.2d 1009 (1989).
14 State v. Murray, 128 Wash. App. 718, 724-25, 116 P.3d 1072(2005).
15 RCW 9.94A.535(1).
16 Report of Proceedings Vol. 1 (July 11, 2016)at 4.
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correctly adhered to the principle that an exceptional mitigated sentence cannot
be justified by the defendant's personal characteristics.
The sentencing court further expressed concern that "almost every
defendant could probably argue" the same.17 It elaborated that were it to grant a
mitigated exceptional sentence,"every. . . defendant that's had time, between
the time they committed the offense and the time they come in to sentencing, if
they've made improvements in their life can ask for an exceptional sentence
below the standard range."19
The sentencing court also discussed a previous mitigated exceptional
sentence that Davidsen had received, based on the "same exact" grounds he
presented now.19 Given that precedent, the sentencing court wondered "how
many chances" Davidsen should get.29 It concluded that it did not "think the fact
that[Davidsen had] modified his life and . . . made these significant changes is
an appropriate basis for an exceptional sentence."21
The sentencing court did not misconstrue the extent of its discretion. It
considered the bases presented and discussed them with counsel and Davidsen.
It provided reasons for rejecting them, specifically whether they were relevant
under the Sentencing Reform Act, and whether Davidsen should be granted
17 Id. at 3.
18 Id. at 8.
19 Id. at 9.
20 Id.
21 Id. at 18.
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another mitigated exceptional sentence for arguments he had made in the past,
only to reoffend again. This was not an abuse of discretion.
Davidsen further argues that the trial court abused its discretion in failing *
to adequately consider his claim that a drug relapse justified a mitigated
exceptional sentence. This argument is unpersuasive.
Two illustrative circumstances identified in RCW 9.94A.535 are relevant
here. RCW 9.94A.535(1)(c) arises when "[t]he defendant committed the crime
under duress, coercion, threat, or compulsion insufficient to constitute a complete
defense but which significantly affected his or her conduct." RCW
9.94A.535(1)(e) arises when "[t]he 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. Voluntary use of drugs or
alcohol is excluded."
State v. Hutse1122 assists our understanding of these two circumstances.
The sentencing court had granted Allen Hutsell a mitigated exceptional sentence
on his forgery conviction.23 It based that decision on Hutsell's cocaine use,
rendered involuntary by psychological addiction.24 The State appealed.
Hutsell argued to the supreme court that the downward departure had
been justified based on the two circumstances we listed above.25 But the court
22 120 Wash. 2d 913, 845 P.2d 1325 (1993).
23 Id. at 916.
24 Id.
25 Id. at 918.
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disagreed. Regarding RCW 9.94A.535(1)(c), it held that the terms "duress,
coercion, threat, or compulsion" connote the influence of some force coming from
outside the defendant.26 Addiction was not such a force.27
Regarding RCW 9.94A.535(1)(e), the court held that intoxication was only.
involuntary if forced or fraudulently induced, not caused by addiction.28 Thus,
any intoxication caused by Hutsell's addiction was voluntary.
Here, Davidsen's relapse argument fails for the same reasons.
A doctor had recently prescribed him narcotic pain medications, which triggered
his addiction. He claimed that although his addiction was a "personal"
characteristic, it was also related to his crime. Specifically, he alleged that this
relapse caused him to neglect his obligation to update his registration.
The doctor's prescription did not constitute "duress, coercion, threat, or
compulsion" within the meaning of RCW 9.94A.535(1)(c). Whatever its effect
upon Davidsen's addiction, that addiction was an internal force within Davidsen.
Nor did the doctor force Davidsen to ingest the painkillers by prescribing
them, so as would render his intoxication involuntary. "Force" as a legal term,
connotes "[plower, violence, or pressure directed against a person."29 As a verb,
it means "[t]o compel by physical means or by legal requirement."3°
26 Id.
27 Id.
28 Id. at 922.
28 BLACK'S LAW DICTIONARY 760 (10th ed. 2014).
30 Id. at 761.
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The doctor did not physically or legally require Davidsen to ingest the
specific painkillers. As the sentencing court suggested, Davidsen may have
been able to tell "his doctor he has a substance abuse problem and he needs
non-narcotics."31 After his relapse, Davidsen "red-flagged" himself to avoid
receiving such prescriptions in the future. Presumably he could have done so
when originally prescribed. Any intoxication that followed was "voluntary" under
Hutsell.
APPELLATE COSTS
Davidsen asks this court to deny the State its costs. The State has
responded that it is not seeking costs on appeal. Accordingly, no costs shall be
awarded to the State.
We affirm the judgment and sentence.
S.
WE CONCUR:
31 Report of Proceedings Vol. I (July 11, 2016) at 13.
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