State v. Gaines

*520 Madsen, J.

(dissenting) — The Sentencing Reform Act of 1981 (hereafter referred to as the SRA) was enacted by the Washington State Legislature to serve several purposes which are enumerated in the "Purpose" section of the SRA, RCW 9.94A.Q10.

(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 (in part).-

The Legislature has not indicated that any one of these objectives is any more significant than another. However, in construing the SRA, this court has determined that the primary objectives of the statute are to ensure punishment, protect the public, and offer rehabilitative opportunities. State v. Rice, 98 Wn.2d 384 , 655 P.2d 1145 (1982); State v. Bernhard, 108 Wn.2d 527 , 741 P.2d 1 (1987).

At times there is tension among these acknowledged purposes.

The tension between utilitarian purposes, in which the goal is to accomplish some future objective, and principles of retribution and desert, which focus on what has occurred in the past, is deep and persistent. Historically, most theoreticians have denied the possibility that these purposes could be integrated. . . .

. . . The Sentencing Reform Act's statement of purposes is drawn from and based upon the thesis that this integration can be accomplished.

. .. [I]t is clear that the Act does not accept the argument of those theoreticians who argue for just deserts as the sole purpose for which punishment should be imposed.

State v. Barnes, 117 Wn.2d 701, 715-16 , 818 P.2d 1088 (1991) (Dolliver, J., dissenting) (quoting D. Boemer, Sentencing in Washington 2-30 through 2-34 (1985)).

*521 As Justice DoUiver observed, "[w]hile arguably at odds with the ideal of just deserts, these utilitarian objectives are no less a part of the overaU scheme of the SRA." Barnes , at 715 (DoUiver, J., dissenting).

The drafters of the SRA noted in the "Purpose" section that the statute "does not eliminate . . . discretionary decisions affecting sentences". RCW 9.94A.010. This is in line with earlier decisions from this court. See State v. Oxborrow, 106 Wn.2d 525 , 723 P.2d 1123 (1986) (adopting an abuse of discretion standard based on the language of RCW 9.94A.010); see also State v. Stalker, 42 Wn. App. 1 , 707 P.2d 1371 (1985) (noting that RCW 9.94A.390 provides some discretion in determining what factors may justify departure from the standard range), review denied, 107 Wn.2d 1018 (1986). Courts interpreting the federal sentencing reform act have likewise held that the sentencing guidelines do not aboHsh the trial court's discretion in regard to standard range departures. In United States v. Rogers, 972 F.2d 489, 493 (2d Cir. 1992), the court cataloged the numerous nonstatutory mitigating circumstances justifying, in the judge's discretion, an exceptional sentence downward. See also United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992) (number, age, and circumstances of children in sole custodial care of defendant constitute "extraordinary parental responsibilities" warranting departure); United States v. Skinner, 946 F.2d 176, 179 (2d Cir. 1991) (departure could be considered from guidelines range for money laundering where there was only de minimis evidence that transaction was entered into to promote or conceal narcotics trafficking); United States v. Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990) (downward departure may be warranted for defendant's lack of sophistication in "unsurreptitiously" bribing official with personal check); United States v. Lara, 905 F.2d 599, 602 (2d Cir. 1990) (downward departure warranted where defendant's physical and emotional condition made him particularly vulnerable in a prison setting); United States v. Mickens, 926 F.2d 1323, 1332 (2d Cir. 1991) (a defendant who exhibits a higher degree of contrition than contemplated by United States Sentencing Comm'n, Guidelines Manual § *522 3E1.1 (Nov. 1990) "may, in an appropriate case, [receive] a downward departure."), cert. denied, _U.S._, 117 L. Ed. 2d 111 , 112 S. Ct. 940 (1992). "The drafters of the [Washington] statute recognized that 'not all exceptional fact patterns can be anticipated', Washington Sentencing Guidelines Comm’n, Implementation Manual § 9.94A390, Comment (1984), and that the sentencing court must be permitted to tailor the sentence to the facts of each particular case." Oxborrow , at 530. RCW 9.94A.390, which sets out illustrative statutory factors constituting mitigating circumstances for a standard range departure, states that "[t]he [examples] are illustrative only and are not intended to be exclusive reasons for exceptional sentences." RCW 9.94A.390.

Contrary to the majority's position, this court has recognized that voluntary use of drugs and alcohol can be a non-statutory factor supporting an exceptional sentence downward. State v. Bernhard, supra. In Bernhard , the trial court had imposed an exceptional sentence based on the following "substantial and compelling reasons" under RCW 9.94A.120: (1) the defendant's past and current criminal behavior was a direct result of his addiction; (2) that the defendant asked for the opportunity to be placed in long-term inpatient treatment; (3) that incarceration without treatment would not prevent the commission of further crimes; (4) and that both society and the defendant would be better protected by placing the defendant in a treatment facility. The trial court heard expert testimony in support of these findings. Bernhard , at 543.

The State challenged the propriety of considering the defendant's addiction to drugs and alcohol in support of an exceptional sentence pursuant to RCW 9.94A.390. In a unanimous decision, this court held that there are circumstances under which addiction may properly provide a nonstatutory mitigating circumstance to justify a departure from the standard sentencing range. Bernhard , at 543. This court then found the reasons relied on by the lower court were both supported by the facts and constituted "substantial and com *523 pelling reasons justifying an exceptional sentence." RCW 9.94A. 120(2). Bernhard , at 544-45.

As it did in Bernhard , the State now argues that because voluntary use of drugs or alcohol cannot support a statutory mitigating circumstance under RCW 9.94A.390(1)(e), neither can it serve to support a nonstatutory mitigating circumstance. We rejected this argument in Bernhard pointing out that the statutory mitigating circumstance in RCW 9.94A-.390(1)(e) deals explicitly with the defendant's capacity to appreciate the wrongfulness of his crime. Conversely, the trial court considered Bernhard's addictions as "a direct cause of Bernhard's criminal conduct, from which the public could not be protected unless Bernhard received treatment for his addictions." Bernhard , at 543.

As additional authority, the State now cites State v. Allert, 117 Wn.2d 156 , 815 P.2d 752 (1991) and State v. Hutsell, 120 Wn.2d 913 , 845 P.2d 1325 (1993) as support for its argument. However, neither of these cases supports a departure from our holding in Bernhard . In Allert , this court was restricted by clear language prohibiting reliance on voluntary drug and alcohol use to support an exceptional sentence pursuant to RCW 9.94A.390(1)(e). 1 Later, Hutsell interpreted the meaning of "voluntary" in RCW 9.94A.390(1)(e) as including drug or alcohol addiction. Hutsell also construed the term "compulsion" in RCW 9.94A.390(1)(c). 2 By applying the doctrine of ejusdem generis, the court noted that the other terms in that section connoted influence coming from an outside source. *524 Based on the meaning given these other terms, the court disallowed consideration of voluntary drug or alcohol addiction as factors supporting an exceptional sentence. As in Allert , the Hutsell court was constrained by the language of statutory provisions.

In this case, we are considering a nonstatutory basis and are not, therefore, confronted by the same constraints of language. Nothing in either Hutsell or Allert compels a departure from our decision in Bernhard allowing a trial court to consider drug or alcohol addiction as one of the nonstatutory mitigating factors justifying imposition of an exceptional sentence. Moreover, this court has approved Bernhard in State v. Pennington, 112 Wn.2d 606 , 772 P.2d 1009 (1989) and State v. Estrella, 115 Wn.2d 350, 358 , 798 P.2d 289 (1990).

In Pennington , this court reviewed an exceptional sentence supported by a finding of drug addiction. In that case, the trial court findings were nearly identical to those listed in Bern-hard. The difference, the court found, was that none of the findings were supported by the record except that the defendant had a drug or alcohol problem. Pennington , at 609. Rather than overruling Bernhard , the court distinguished it, finding that drug or alcohol addiction alone cannot support an exceptional sentence. Pennington , at 611. Again, in Estrella , this court cited Bernhard with approval saying that "[w]e do not dispute the contention that under some circumstances rehabilitative conditions may be imposed as part of an exceptional sentence." Estrella , at 358.

The crux of my dispute with the majority is whether consideration of the circumstances presented by an individual defendant may, under exceptional circumstances, constitute the basis for a standard range departure. In Pennington, Estrella, and other cases, this court has observed that an exceptional sentence is appropriate only when the circumstance of the crime is distinguished from other crimes in the same category. Estrella , at 359. To the extent that these cases can be read to hold that a sentencing court may not base an exceptional sentence on circumstances which distinguish one defendant from another, our cases are in conflict. *525 In State v. Nordby, 106 Wn.2d 514, 516 , 723 P.2d 1117 (1986), the fact that the defendant acted intentionally rather than merely recklessly in a vehicular assault case was a "substantial and compelling" reason to depart from the standard range. Likewise, in State v. Creekmore, 55 Wn. App. 852, 860, 783 P.2d 1068 (1989), review denied, 114 Wn.2d 1020 (1990), the defendant's lack of remorse was held to be a "substantial and compelling" reason to support an exceptional sentence. Accord, State v. Ratliff, 46 Wn. App. 466, 470 , 731 P.2d 1114 (1987). In these cases we affirmed exceptional sentences based on the defendant's state of mind or level of remorse, necessarily peculiar to the defendant.

Rather than read our cases so narrowly, I would find that what is exceptional may also relate to the defendant's individual situation as it relates to the commission of the crime when supported by the record and constituting "substantial and compelling" reasons to depart from the standard range. This, as noted earlier, is the direction in which the federal cases are bound.

Moreover, such a reading is in harmony with RCW 9.94A-.390(l)(b) which states that the court can depart from the standard range where

Before detection, the defendant compensated, or made a good faith effort to compensate, the victim of the criminal conduct for any damage for injury sustained.

This statutory factor takes into consideration a circumstance, specific to the defendant, which differentiates him or her from other defendants. See Junker, Guidelines Sentencing: The Washington Experience, 25 U.C. Davis L. Rev. 715 , 744-46 (1992).

Applying the criteria of Bernhard and Pennington to the facts in this case, the exceptional sentence given by the trial court is justified by "substantial and compelling" circumstances which distinguish it from other crimes or criminals in the same category. The defendant in this case was a young man who committed a minor drug offense for the purpose of acquiring a small quantity of drugs to support his own habit. Based on the record, the Court of Appeals correctly con- *526 eluded that the factors relied on by the trial court to impose an exceptional sentence were supported by the evidence. Expert testimony was offered to support the court's findings that (1) the defendant was drug and/or alcohol addicted; (2) that the defendant's prior and current criminal activity was directly related to his addiction; (3) that intensive, inpatient treatment was required to rehabilitate the defendant so that future criminal offenses would not occur; (4) that such treatment was not available in the Department of Corrections; and (5) that the defendant was amenable to treatment and desired to have such treatment. These findings are virtually identical to those in Bernhard which this court found to be "substantial and compelling". I would likewise find that the factors relied on here were substantial and compelling and would affirm the exceptional sentence in this case.

The majority's second conclusion is also contrary to prior cases from this court. The majority finds that even if drug or alcohol use may form the basis for a court to find "substantial and compelling" reasons to justify an exceptional sentence, the court may depart only from standard conditions, not from standard duration. In Bernhard , this court determined that a departure from standard conditions, as with standard duration, requires the court to find "substantial and compelling" reasons to grant an exception under the SRA. Bernhard , at 543. "Once this requirement has been met, however, the sentencing court is permitted to use its discretion to determine the precise length of the exceptional sentence." Oxborrow , at 530. Thereafter, the only review will be to determine whether the sentence is "clearly excessive" or "clearly too lenient". RCW 9.94A.210(4)(b). While the majority wishes, to limit the discretion of the trial court to imposing exceptional conditions after it has found "substantial and compelling" reasons to grant an exceptional sentence, this is not supported by any decision of this court.

Trial court judges are asking this court to allow them to impose sentences which they believe are appropriate under the totality of circumstances. Hutsell , at 924. See also State *527 v. Harper, 62 Wn. App. 69, 78 , 813 P.2d 593 (1991), review denied, 118 Wn.2d 1017 (1992). We have set up the framework for this in the Bernhard decision. I see nothing which compels a reversal of that case, the result of which will be to further limit judges in the exercise of their discretion. We must take care when interpreting the SRA that we do not eliminate "justice" from the criminal justice system by so far limiting the trial court's discretion to impose an exceptional sentence where the facts and circumstances of a particular case justify the court's actions. Consideration of the human being in the context of the crime is at the heart of judging. We should recognize that judges are highly trained professionals who, having the parties before them, are in the best position to dispense justice.

Johnson, J., concurs with Madsen, J.

"(I) Mitigating Circumstances

"(e) 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 (voluntary use of drugs or alcohol is excluded)." RCW 9.94A.390(l)(e).

”(1) Mitigating Circumstances

"(c) The 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.390(l)(c).