State v. Brown

Madsen, J.

(dissenting) — Once again, a majority of this court has interpreted provisions of the Sentencing Reform Act of 1981 (SRA), RCW 9.94A, so as to limit discretion of sentencing judges, an interpretation unsupported by statutory language, thereby disserving the purposes of the SRA. I write to dissent from this interpretation which effectively creates mandatory minimum sentences for Class B felonies committed with a deadly weapon under RCW 9.94A-.310(4)(e), overriding the discretion given to sentencing courts under RCW 9.94A.120(2). As a practical consideration, I dissent because the trial judge in this case did exactly what he was directed to do under RCW 9.94A.310(4) and the State of Washington Sentencing Guidelines Comm’n, Adult Sentencing Guidelines Manual (1997).

The purposes of the SRA are set out in RCW 9.94A.010. That section warrants being stated in full:

The purpose of this chapter 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, and to add a new chapter to Title 9 RCW designed to:

(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history;

(2) Promote respect for the law by providing punishment which is just;

(3) Be commensurate with the punishment imposed on others committing similar offenses;

(4) Protect the public;

(5) Offer the offender an opportunity to improve him or herself; and

(6) Make frugal use of the state’s resources.

RCW 9.94A.010 (emphasis added).

The SRA replaced an indeterminate sentencing system with a determinate one; however, it preserved judicial discretion albeit limited by established guidelines. See State v. Ammons, 105 Wn.2d 175, 181, 713 P.2d 719 (1986). One of the provisions which preserves discretion is RCW 9.94A. 120(2), permitting courts to impose exceptional sentences. Without such discretion, sentencing judges would be hard pressed to fulfill certain purposes of the SRA through the sentences they imposed. This court has stated that by passing sentencing reform, “[t]he emphasis was shifted from rehabilitation to proportionality, equality and justice.” State v. Barnes, 117 Wn.2d 701, 710, 818 P.2d 1088 (1991). However, the majority asserts that RCW 9.94A.310(4)(e), the section amended by Initiative 159, now trumps judicial discretion under RCW 9.94A.120(2). Such an interpretation is unsupported.

Initiative 159, referred to as the “Hard Time for Armed Crime” initiative, was passed by the Legislature in 1995. Its official ballot title was “Shall penalties and sentencing standards be increased for crimes involving a firearm, and sentences and plea agreements be public records?” State v. Broadaway, 133 Wn.2d 118, 123, 942 P.2d. 363 (1997). Its legislative title was, “An Act Relating to increasing penalties for armed crimes. . . .” Id.

The initiative, when passed, did what its titles suggest; it increased penalty enhancements for certain offenses. When passed, the initiative specifically amended subsections of RCW 9.94A.310. It did not amend either the exceptional sentence provision (RCW 9.94A.120(2)) or the mandatory minimum sentencing provision (RCW 9.94A.120(4)). However, the majority opinion suggests that the mere phrase, “Notwithstanding any other provision of law,” in RCW 9.94A.310(4)(e), absent amendment of any other section, bars a sentencing court from imposing an exceptional sentence below the 12-month deadly weapon enhancement. Although the court has properly included the 12-month enhancement in calculating the standard sentencing range, the majority nevertheless creates a mandatory minimum sentence of 12 months for a Class B felony committed with a deadly weapon even though the mandatory minimum sentencing provision was not amended by Initiative 159 to include Class B felonies committed with a deadly weapon.

This court, in In re Post Sentencing Review of Charles, 135 Wn.2d 239, 253, 955 P.2d 798 (1998),⁶ considered RCW 9.94A.310(3)(e), which contains identical language related to penalty enhancements for felonies committed with firearms. We unanimously held that despite the wording of that particular subsection, other provisions of the SRA were still controlling. Without clearer direction from the Legislature, whose responsibility it is to establish criminal penalties, this court should not infer from silence the indirect amending of two additional provisions of the SRA. It is instructive to note that the Persistent Offender Accountability Act, Initiative 593, was passed by the Legislature in 1993 and specifically amended RCW 9.94A.120(4). See State v. Thorne, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). Initiative 159 did not amend RCW 9.94A.120(4).

A penalty enhancement and a mandatory minimum sentence are distinct. This court has stated, “An enhancement increases the presumptive or standard sentence.” State v. Silva-Baltazar, 125 Wn.2d 472, 475, 886 P.2d 138 (1994). In other words, an enhancement “stiffen[s] the penalty for the substantive offense.” Id. The standard range is the presumptive sentence. State v. Parker, 132 Wn.2d 182, 186, 937 P.2d 575 (1997). “An enhancement is not a separate sentence; rather, it is a statutorily-mandated increase to an offender’s sentence range because of a specified factor in the commission of the offense.” In re Post Sentencing Review of Charles, 135 Wn.2d at 253.

A mandatory minimum sentence has been defined as a “statutory provision^ binding courts to impose specific criminal penalties for certain criminal conduct.” Philip Oliss, Mandatory Minimum Sentencing: Discretion, the Safety Valve, and the Sentencing Guidelines, 63 U. Cin. L. Rev. 1851, 1851 (1995). “Under such mandatory minimum laws, the judiciary may not use traditional discretionary powers to alleviate sentences, suspend sentences, or even impose probation. Rather, the minimum penalty acts as a floor at which sentencing must begin.” Lisa E. Cowart, Legislative Prerogative vs. Judicial Discretion: California’s Three Strikes Law Takes a Hit, 47 DePaul L. Rev. 615, 634 (1998) (footnote omitted).

It is this unsupportable transformation of a sentence enhancement into a mandatory minimum sentence that I find most disturbing. It robs judges of the discretion the SRA expressly gives them in order to fulfill certain purposes of the act. Professor Stephen Schulhofer, Director of the Center for Studies in Criminal Justice, has asserted that mandatory minimum sentences result in “ ‘arbitrarily harsh sentences disproportionate to culpability, unwarranted uniformity among unlike cases, and disparate treatment of like cases due to haphazard and discriminatory practice in charge bargaining.’ ” Daniel W. Stiller, Initiative 593: Washington’s Voters Go Down Swinging, 30 Gonz. L. Rev. 433, 458 (1994-95).

RCW 9.94A.120(4) lists five offenses for which mandatory minimum sentences exist. The crime of second degree assault, with or without a deadly weapon, is not among them. The rule of expressio unius est exclusio alterius applies here. In other words, “[wjhere a statute specifically designates the things upon which it operates, there is an inference that the Legislature intended all omissions.” Queets Band of Indians v. State, 102 Wn.2d 1, 5, 682 P.2d 909 (1984).

The circumstances of this particular case underscore the importance of preserving judicial discretion in sentencing and not eliminating it through inference. In its findings of fact (none of which were challenged on appeal), the trial court stated:

1. Based almost entirely upon the testimony of the victim, the following are the operative facts of the offense. The defendant did not set out to harm the victim on the date of the offense. Rather, when the defendant arrived at the victim’s home, she implored of him “Why can’t we still be friends?” The victim’s response was “Don’t bother talking; I’m not listening.” With a number of the assembled young people getting very animated over some small financial debt owed by defendant’s friend to the victim’s sister, the victim went out to where the cars were parked and made comments about going and collecting the debt from that person’s parents. The defendant continued to express a wish to patch things up with the victim. When she commented “Everyone who hates me is here,” the victim responded sarcastically “Kevin isn’t.” Aware that the defendant did not approve of his smoking, the victim had a cigarette in his mouth and, the Court concludes, blew smoke into the defendant’s face.

2. With the victim in close proximity and with some basis for believing the emotional confrontation was about to escalate to a physical plane, the defendant brought from her pocket the knife that she, like the victim, routinely carried for use as a tool and not a weapon. With unjustified force, she then slashed at his face inflicting a serious wound on his nose. . . .

3. The psychiatrist with whom the defendant is treating has informed the Court and the DOC [Department of Corrections] that the defendant suffers from a species of post-traumatic stress disorder, experiences panic attacks, has been hospitalized for this condition in the past. He believes this condition contributed to her commission of this offense which is markedly out of character.

4. When it returned its verdict of guilty in the case, the twelve person jury submitted to the Court a document signed by all of them asking that the Court exercise “leniency” in imposing sentence on the defendant. It stated that their request was “based upon the testimony of the defendant and the other witnesses.” The request was a genuine expression of the jury’s view of the case and was not the product of anyone’s solicitation nor of any compromise on their part. . . .

Opening Br. of Appellant (Findings and Conclusions for Exceptional Sentences).

Based upon these findings, the trial court concluded that the defendant’s mental and emotional state “was such that she was prone to making an impulsive, panicked overreaction in this confrontational situation. This circumstance resulted in a significant impairment of her ability to fully appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of law.” Opening Br. of Appellant (Conclusions of Law (Jan. 17, 1997)). In addition, the court stated that the jury “was properly appreciative that the circumstances [of this case] make this defendant’s offense different from the typical assault in the second degree. To ignore their request would be to disserve those statutory goals [of promoting respect for the law and providing punishment that is commensurate with specific criminal activity].” Opening Br. of Appellant (Conclusions of Law (Jan. 17, 1997)).

It is precisely for this unique set of circumstances that judicial discretion is most appropriate. The majority’s interpretation of the effect of RCW 9.94A.310(4)(e) is far too sweeping given the absence of supporting language. It is not within the authority of this court to create, through implication, mandatory minimum sentences and limit judicial discretion further.

This court has stated that a statute should be construed so as to best advance its legislative purposes. In re Personal Restraint of Young, 122 Wn.2d 1, 22, 857 P.2d 989 (1993). The majority view does not support the purposes of the SRA, but instead elevates one purpose, namely punishment, above all others.⁷ Because the other provisions were not amended, RCW 9.94A.310(4)(e) is ambiguous at best. Consequently, the rule of lenity requires this court to adopt an interpretation most favorable to the criminal defendant. In re Personal Restraint of Hopkins, 137 Wn.2d 897, 901, 976 P.2d 616 (1999). Given that the enhancement has already been added to the standard sentencing range, RCW 9.94A.310(4)(e) should not be interpreted so as to eliminate the court’s discretion under RCW 9.94A. 120(2) to impose a sentence less than the 12-month enhancement range.

In this case, the sentencing court did what the statutory language requires. RCW 9.94A.370 states, “[t]he intersection of the column defined by the offender score and the row defined by the offense seriousness score determines the presumptive sentencing range . . . The additional time for deadly weapon findings . . . shall he added to the entire presumptive sentence range. The court may impose any sentence within the range that it deems appropriate.” See also State of Washington Sentencing Guidelines Comm’n, Adult Sentencing Guidelines Manual, at 1-16 (1997). The Judgment and Sentence form indicates that an enhancement is added to the standard range which results in the total standard range. More importantly, RCW 9.94A.310(4) itself states that the “additional times shall be added to the presumptive sentence . . . .”⁸ Had the sentencing court refused to add the deadly weapon enhancement to the standard range, then under the language of RCW 9.94A.310-(4)(e), which makes the enhancement mandatory, the court would have abused its discretion. Instead, the court did what the statute requires, and then, under RCW 9.94A.120(2), chose to make a downward departure.

A sentence enhancement should not be transformed into a mandatory minimum sentence through inference. Nor should judicial discretion be limited in a way that conflicts with the express purposes of the SRA. “If the heart of a criminal justice system is the criminal code, its conscience resides in the power of the jury to acquit against the evidence and the power of the sentencing judge to look beyond the definition of the offense in fashioning an appropriate sanction for a particular defendant.” John M. Junker, Guidelines Sentencing The Washington Experience, 25 U.C. Davis L. Rev. 715, 739 (1992). Proportionality, equality, and justice demand that judicial discretion be preserved to impose exceptional sentences including downward departures. By reading a mandatory minimum sentence into RCW 9.94A.310(4)(e), the majority sacrifices individualized determinations of proportionality.

Durham, Johnson, and Sanders, JJ., concur with Madsen, J.

6 In State v. Fuller, 89 Wn. App. 136, 947 P.2d 1281 (1997), the Court of Appeals held, inter alia, that a defendant could not receive home detention for a six-month deadly weapon enhancement under RCW 9.94A.310(4)(e). The court asserted that the Legislature intended this section to take precedence over other provisions including RCW 9.94A.120(2). The only citation was to State v. Lewis, 86 Wn. App. 716, 937 P.2d 1325 (1997), which this court reversed and remanded in In re Post Sentencing Review of Charles, 135 Wn.2d 239, 255, 955 P.2d 798 (1998).

7 One commentator has written that this court has “crowned” punishment as the primary purpose of guidelines sentencing even though there is little doctrinal support. John M. Junker, Guidelines Sentencing: The Washington Experience, 25 U.C. Davis L. Rev. 715, 748 (1992). “What remains to be explained is why courts, which have the responsibility to promote all of the goals of the statute, including those that may entail exceptional sentences based on personal characteristics and circumstances that are not easily quantified, have instead mimicked the gridlocked mindset of the commission.” Id. at 749.

8 In the Court of Appeals’ opinion in this case, which was subsequently-withdrawn, the court stated, “We agree with Brown that deadly weapon enhancements are to be added to both ends of the underlying crime’s sentencing range to arrive at a total standard range.” State v. Brown, No. 40183-1-I (Wash. Ct. App. May 18, 1998).