State Of Washington v. Cameron F. Patterson ( 2019 )

2019 FEB -5 AM 10: 33
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 77437-9-1
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
CAMERON F. PATTERSON, )
)
Appellant. ) FILED: February 5, 2019
)
ANDRUS, J. — Cameron Patterson pleaded guilty to robbery in the first
degree and unlawful imprisonment after participating in an armed robbery of a
marijuana dispensary. CP 29-30. The court sentenced Patterson to 36 months
for count one (robbery), a concurrent 3-month sentence for count two (unlawful
imprisonment), and a 60-month firearm enhancement, to be served consecutively
to the 36-month sentence. We affirm Patterson's sentence.
FACTS
Patterson agreed to participate in what he thought was the organized
robbery of the Have a Heart marijuana dispensary in the Greenwood neighborhood
of Seattle at the suggestion of his friend, John Stewart. CP 31. Patterson believed
it was an "inside job" in which all of the employees knew what was going to happen
and intended to split the proceeds. RP (8/25/17) 16. One of the dispensary
No. 77437-9-1/2
employees, Sean Sylve, assured Patterson that the robbery would be a "grab and
go," where the marijuana and money would be in plain view and easily available
for taking. OP 56.
On the evening of August 7, 2016, Patterson, Stewart, and Sylve executed
the plan. OP 31. Slyve was working at the dispensary, along with his co-workers,
Alanna Wells and McKenna O'Meara. OP 31. Wells and O'Meara were unaware
of the plan. While Sylve checked the outside perimeter of the premises, a routine
closing duty, Patterson and Stewart donned Halloween masks and approached
him. OP 31. Sylve knocked on the store's locked door which Wells opened for
him. OP 31. Sylve whispered to Wells to lock the door because they were being
robbed. OP 31. When Wells tried to close the door, Patterson and Stewart pushed
the door open and entered the dispensary. OP 31. Holding a gun, Stewart
demanded that Sylve and Wells lie down on the floor with their hands behind their
backs. OP 31. Patterson and Stewart used zip ties to bind the employees' hands
together. OP 31. Patterson and Stewart spotted O'Meara, who was in a different
room counting her cash tray. OP 31. They ordered her to lie down on the floor,
again at gunpoint, as they zip tied her hands together. OP 32.
Patterson took $900 from the dispensary's safe, while Stewart removed
approximately $20,000 worth of marijuana products from the display case. OP 32.
The dispensary's manager, who watched the events unfold through the store's
surveillance system, called 9-1-1. OP 32. Seattle police officers responded and
set up a containment area outside of the dispensary. OP 32. The officers watched
Stewart and Patterson exit the store with two large duffel bags containing cash, a
- 2-
No. 77437-9-1/3
money counting machine, marijuana, and other products. OP 32. When ordered
to stop, Stewart and Patterson dropped the bags, the gun, their Halloween masks,
and additional zip ties, and were eventually taken into custody. OP 32.
Patterson was initially charged with one count of first degree robbery and
one count of first degree kidnapping, OP 2, but following negotiations, Patterson
pleaded guilty to the robbery and unlawful imprisonment, OP 12, 14. Patterson
agreed to a minimum standard range sentence for both counts: 36 months for the
robbery and 3 months for the unlawful imprisonment, with a firearm enhancement
of 60 months to be served consecutive to the robbery sentence. OP 18.
Patterson asked the court to follow the agreed sentencing recommendation.
He argued that the low end sentence was appropriate because he was a loving,
supportive father of seven young children, had experienced a difficult upbringing
surrounded by poverty and gang and domestic violence, during which he had
observed his mother cut his father's throat, had demonstrated high moral character
and strong family and community support, had no prior felony convictions, and had
intended to commit only a theft, not a robbery. OP 44-56; RP (8/25/17) at 11-17.
At his sentencing hearing, Patterson's counsel argued Patterson lacked the intent
to engage in an armed robbery:
And that's been a very hard lesson for Mr. Patterson to learn because
he never intended to be a part of a robbery. He never held the gun
in his hand, he didn't think that his codefendant would have the gun;
but his codefendant did come in with a gun to Mr. Patterson's
surprise and at that point he was involved in a robbery and not a
theft. And, hence, the long sentence that he's getting, here.
RP (8/25/17) at 16. Patterson also presented letters from family members and
friends attesting to his good character, writing about the respect they have for his
-3
No. 77437-9-1/4
leadership in the community, his commitment to his family, and his kindness. They
all expressed how uncharacteristic his crime was. CF 59-108.
The sentencing court accepted the recommended sentence. CF 113. The
court acknowledged the harshness of the sentence and indicated it had looked to
see if it could impose an exceptional sentence but found an insufficient basis for
departing from the standard sentencing range. RP(8/25/17) 20. The court stated:
And I'm sure as your attorney has explained there are very, very few
circumstances under which this court could make an exceptional sentence.
And, trust me, I looked. I looked if there was any duress. I looked if there
was anything.
But what I see is a man who, albeit making a horrible decision. And as I
read those letters, I don't understand what you're doing here. I don't
understand how you are before me having gone through what you went
through as a child, having seen what you saw as a child, how that decision
would be made.
You don't have the benefit of being a young, stupid kid who's not mature
enough. You did this at age 36. You don't have the benefit of saying, "I
didn't know what I was doing." You put on a mask. I mean, I — as I sit there
and look for it, this was — you — there's nothing I can say.
I recognize that the punishment that has been imposed by the legislature,
frankly, is harsh. And I know that not every case fits into these
circumstances, but there's very, very limited circumstances in which I can
change those sentences. And as much as I look to that, I can't find it in this
case.
I'm going to impose the minimum. I will note that even that minimum, given
the weapons enhancement, may seem unfair. But I want you to know that
it's because of certain legislative dictates. That if there was what I felt to be
any wiggle room in terms of as I look at what exceptional sentences mean
and what are the standards under which they can be applied where — where
somebody would think I'm not abusing my discretion, I would go there. I've
done it. But I can't find it here.
RP (8/25/17) 19-21.
-4
No. 77437-9-1/5
Patterson appeals his sentence, arguing the court refused to consider his
failed "lack of intent to commit armed robbery" defense and the "aberrational
conduct" information provided by his family and friends, both of which justified an
exceptional sentence. He also argues the court abused its discretion in not
reducing the duration of the firearm enhancement.
ANALYSIS
The Sentencing Reform Act (SRA) states that a sentence within the
standard range may not be appealed. RCW 9.94A.585(1); see also State v.
Herzog, 112 Wash. 2d 419, 423, 771 P.2d 739 (1989)("When the sentence given is
within the presumptive sentence range then as a matter of law there can be no
abuse of discretion and there is no right to appeal"). A defendant may, however,
challenge the procedure by which a standard range sentence is calculated. When
a defendant challenges the denial of an exceptional sentence, review is limited to
whether the sentencing court categorically refused to impose an exceptional
sentence downward under any circumstance or relied on an impermissible basis
for refusing to do so. State v. Garcia-Martinez, 88 Wash. App. 322, 329-30, 944 P.2d
1104 (1997); see also State v. O'Dell, 183 Wash. 2d 680, 697, 358 P.3d 359, 367
(2015)(a court abuses its discretion when it fails to consider a mitigating factor on
the mistaken belief it is barred from such consideration).
Patterson did not request an exceptional sentence. During the plea hearing,
Patterson acknowledged the low end sentence was the product of an agreement
"so that we cannot ask for a downward departure." RP (8/8/17) at 24. He
nevertheless argues on appeal that the sentencing court refused to recognize his
-5-
No. 77437-9-1/6
failed mens rea defense and aberrational conduct arguments justified an
exceptional sentence. App. Br. at 8-9. He claims the sentencing court's "failure to
exercise discretion" is itself an abuse of discretion subject to reversal under O'Dell,
183 Wash. 2d at 697. App. Br. at 13-14.
The State contends Patterson cannot claim on appeal the trial court abused
its discretion because he never asked the court to exercise discretion in the first
place, citing Colorado Structures, Inc. v. Blue Mountain Plaza, LLC, 159 Wash. App.
654, 660, 246 P.3d 835 (2011) and State v. Lile, 188 Wash. 2d 766, 787, n.14, 398
P.3d 1052(2017). But neither Colorado Structures nor Le dealt with a trial court's
purported refusal to consider mitigating circumstances.
A defendant's failure to request an exceptional sentence does not
necessarily preclude a challenge on appeal. In State v. McFarland, the defendant
did not request an exceptional sentence, despite facing 237 months confinement
due to consecutively-imposed firearm enhancements, because both defense
counsel and the sentencing court erroneously concluded an exceptional sentence
was foreclosed by law. 189 Wash. 2d 47, 49, 399 P.3d 1106 (2017).
The Supreme Court did not reject McFarland's appeal simply because she
did not seek an exceptional sentence from the trial court. It reversed McFarland's
sentence, holding that when consecutive sentences for multiple firearm-related
convictions result in a sentence that is "clearly excessive" under RCW
9.94A.535(1)(g), a sentencing court has discretion to impose an exceptional,
mitigated sentence by running the firearm-related sentences concurrently. Id. at
55. The Supreme Court remanded the case for resentencing, concluding that "the
-6-
No. 77437-9-1/7
record suggests at least the possibility that the sentencing court would have
considered imposing concurrent firearm-related sentences had it properly
understood its discretion to do so." Id. at 56, 59; see also State v. McGill, 112 Wn.
App 95, 100, 47 P.3d 173 (2002)(court erroneously believed it lacked discretion
to depart from the standard range; this court reversed and remanded, reasoning
that "the trial court's comments indicate it would have considered an exceptional
sentence had it known it could").
Under McFarland, a defendant may appeal a standard sentence if the
record establishes the sentencing court erroneously concluded an exceptional
sentence was not available to a defendant.
Patterson contends the sentencing court erroneously held it lacked
discretion to consider his failed lack of intent defense and his aberrational conduct
arguments. We conclude the sentencing court considered his failed lack of intent
defense and found it insufficient to justify an exceptional sentence, a decision
Patterson may not appeal. And we conclude the sentencing court did not have the
discretion to consider Patterson's "aberrational conduct" argument.
To determine if a factor supports departure from the standard sentencing
range, we apply a two-part test. O'Dell, 183 Wash. 2d at 690. First, a factor cannot
support the imposition of an exceptional sentence if the legislature necessarily
considered that factor when it established the sentence range. Id. This is a
question of law reviewed de novo. Id. at 688.
Second, in order to justify an exceptional sentence, a factor must be
"sufficiently substantial and compelling to distinguish the crime in question from
-7-
No. 77437-9-1/8
others in the same category." Id. at 690. The Supreme Court has said that "any
such reasons must relate to the crime and make it more, or less, egregious." State
v. Fowler, 145 Wash. 2d 400, 404, 38 P.3d 335 (2002). If a sentencing court finds a
particular factor meets the "substantial and compelling" test, the standard of review
is clearly erroneous. Ha'mim, 132 Wash. 2d at 840.
The Supreme Court has recognized, and the State does not dispute, that a
trial court has the discretion to consider failed defenses, such as self-defense,
duress, mental conditions not amounting to insanity, and entrapment, when
evaluating the appropriateness of an exceptional sentence. State v. Jeannotte,
133 Wash. 2d 847, 852, 947 P.2d 1192 (1997). "By allowing failed defenses to be
treated as mitigating circumstances, the Legislature recognized there may be
circumstances that led to the crime, even though falling short of establishing a legal
defense, [that] justify distinguishing the conduct from that in other similar cases."
Id. at 852 (internal quotation marks omitted)(quoting Hutsell, 120 Wash. 2d at 921).
The record establishes that the sentencing court considered this failed
defense. While the sentencing court did not explicitly mention it, Patterson raised
this defense in both his sentencing memo and at the hearing itself. The court said
it considered all possible mitigating factors it could find in the materials presented:
I'm sure as your attorney has explained there are very, very few
circumstances under which this court could make an exceptional
sentence. And, trust me, I looked. I looked if there was any duress. I
looked if there was anything.
I recognize that the punishment that has been imposed by the
legislature, frankly, is harsh. And I know that not every case fits into
these circumstances, but there's very, very limited circumstances in
which I can change those sentences. And as much as 1 look to that, I
can't find it in this case.
-8
No. 77437-9-1/9
RP (8/25/17) 19-20 (emphasis added). This record demonstrates the sentencing
court knew an exceptional sentence was an option, considered the facts to see if
it could justify an exceptional sentence, and concluded it could not. There is
nothing in the record to suggest the sentencing court categorically refused to
consider Patterson's failed defense argument.
Patterson also contends the sentencing court refused to consider that this
crime was uncharacteristic (or an aberration) for him. App. Br. at 14. Patterson
relies on federal case law and Justice Madsen's dissent in State v. Fowler, 145
Wash. 2d 400, 412, 38 P.3d 335 (2002)for the proposition that aberrational behavior
and a low risk of re-offending are sufficient bases for an exceptional sentence.
Fowler pleaded guilty to first degree robbery which carried a standard range
of 31-41 months. Id. The sentencing court imposed a 15-month exceptional
sentence because Fowler had no criminal history, his behavior during the crime
was aberrational, and Fowler was unlikely to re-offend. Id. at 403-04. A majority
of the Supreme Court reversed the exceptional sentence. It refused to follow
federal cases that held aberrational conduct is a valid mitigating factor. Id. at 407.
The majority reasoned that Fowler's aberrational conduct argument was similar to
arguing "the defendant has not done anything like this before," analogous to saying
the defendant has no criminal history, a factor already taken into account in the
standard sentencing ranges under the SRA. Id. at 408("The fact that a defendant's
criminal conduct is exceptional or aberrant does not distinguish the defendant's
crime from others in the same category"). Under Fowler, a sentencing court may
not consider the fact that a defendant's crime was an aberration because this factor
-9-
No. 77437-9-1/10
was necessarily taken into account by the legislature when it set standard
sentence ranges.
Patterson argues that O'Dell abrogated Fowler sub silentio. He contends
that under O'Dell, a sentencing court has the discretion to consider personal
characteristics of a defendant. We disagree with this reading of O'Dell. In that
case, the Supreme Court held the legislature had not necessarily considered youth
when it established standard range sentences under the SRA. O'Dell, 183 Wash. 2d
at 690. As a result, it concluded that a trial court must be allowed to consider youth
as a mitigating factor, explicitly disavowed any contrary holding in Ha'mim. We
can find no language in O'Dell that broadens its holding to a defendant's aberrant
conduct or a low likelihood to reoffend. Nor can we conclude the Supreme Court
intended to abrogate Fowler; its decision in O'Dell did not analyze whether Fowler
had been incorrectly decided. See State v. Stalker, 152 Wash. App. 805, 812, 219
P.3d 722(2009)(Supreme Court abrogates prior decisions only if party seeking to
have decision overruled demonstrates precedent is both incorrect and harmful).
Because our state Supreme Court has explicitly held, under a similar set of
facts, that a sentencing court does not have the discretion to consider, as a
mitigating factor, whether a defendant's conduct was an aberration from his
general character, the sentencing court did not abuse its discretion in this case.
Finally, Patterson argues that the SRA gives the sentencing court discretion
to shorten the duration of the 60-month firearm enhancement as an exceptional
sentence. RCW 9.94A.533(3) provides that the firearm enhancement, if
applicable, is mandatory, "notwithstanding any other provision of law." In State v.
- 10-
No. 77437-9-1/11
Brown, 139 Wash. 2d 20, 29, 983 P.2d 608 (1999), overruled on other grounds by
State v. Houston-Sconiers, 188 Wash. 2d 1, 391 P.3d 409(2017), our Supreme Court
held that "[fludicial discretion to impose an exceptional sentence does not extend
to a deadly weapon enhancement." Id. at 29. Although the Court's recent decision
in Houston-Sconiers modified Brown, it did so only with respect to juvenile
offenders and Eighth Amendment considerations. 188 Wash. 2d at 34. The Court
did not modify Brown's applicability to adult defendants.
Thus, under Brown, the sentencing court had no authority to shorten the
duration of Patterson's firearm enhancement.
Affirmed.
WE CONCUR: