FILED JULY 29, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37422-0-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) CECILY ZORADA MCFARLAND, ) ) Appellant. )
PENNELL, C.J. — In 2014, Cecily McFarland received a 237-month standard
range sentence for first degree burglary and 13 related firearm offenses. Ms. McFarland’s
sentence was largely driven by a multiple offense aggravator, requiring the firearm
convictions to run consecutively. In two prior appeals, Ms. McFarland’s sentence
was remanded for consideration of an exceptional sentence downward based on the
possible excessive impact of the multiple offense aggravator. During both remand No. 37422-0-III State v. McFarland
proceedings, the sentencing judge declined to change Ms. McFarland’s sentence, citing
a lack of discretion. In the most recent proceeding, the court did not even resentence
Ms. McFarland. It instead issued a written order declining to modify Ms. McFarland’s
sentence.
We again remand. Ms. McFarland is entitled to resentencing, not just a written
order. At resentencing, the court shall assess whether Ms. McFarland should receive an
exceptional sentence downward based on the excessive impact of the multiple offense
aggravator. The prior appellate decisions resulting in remand have held that an
exceptional sentence is legally available in Ms. McFarland’s case. The only barrier to
imposition is the factual question of whether operation of the multiple offense aggravator
results in an excessive sentence. Answering this question requires assessing the nature
of Ms. McFarland’s convictions and their cumulative impact. Contrary to the position of
the sentencing judge and the State, the analysis is not governed by sentences imposed
on other individuals or the appropriateness of the prosecutor’s charging decisions.
The question is essentially whether running all Ms. McFarland’s firearm convictions
consecutively overstates the seriousness of her offense conduct.
During Ms. McFarland’s previous remand hearings, the sentencing judge
expressed frustration with the analysis set forth in the prior decisions of this court and
2 No. 37422-0-III State v. McFarland
the Washington Supreme Court. This dissatisfaction appears to have interfered with the
judge’s willingness to abide by the remand orders. Given this circumstance, and in the
interest of finality, we order Ms. McFarland’s resentencing hearing be conducted before
a different sentencing judge.
FACTS
In 2014, Cecily McFarland and her boyfriend burgled a Moses Lake home. Among
other items, the homeowner reported a loss of 18 firearms. The day after the burglary,
police recovered 10 of the missing firearms from the home of Ms. McFarland’s
boyfriend. The remaining firearms were never located. Ms. McFarland and her boyfriend
admitted to trading multiple stolen firearms for methamphetamine. The State charged
Ms. McFarland with one count of first degree burglary as an accomplice, 10 counts of
theft of a firearm as an accomplice, one count of first degree trafficking in stolen property
as an accomplice, and three counts of second degree unlawful possession of a firearm.
The firearm charges stemmed from the 10 guns that were recovered the day after the
burglary.
Ms. McFarland’s boyfriend resolved his case through a plea agreement. He
received a prison-based drug offender sentencing alternative term of 78.75 months.
3 No. 37422-0-III State v. McFarland
Ms. McFarland turned down the same offer and exercised her right to a jury trial. She
was convicted on all counts except trafficking in stolen property.
At sentencing, Ms. McFarland faced a sentencing range of 237 to 306 months’
imprisonment. The range was largely driven by a multiple offense aggravator, requiring
all firearm convictions to run consecutively. RCW 9.94A.589(1)(c); RCW 9.41.040(6).
At sentencing, Ms. McFarland asked for a low-end sentence. Her lawyer pointed out
that if she had stolen toasters, not firearms, her sentencing range would have been 9
to 12 months. The sentencing court seemed to agree Ms. McFarland’s sentence was
disproportionate to her crime, noting 237 months in prison was more in line with a second
degree murder sentence. Nevertheless, the court imposed a low-end sentence, citing a
lack of discretion.
In an initial appeal, we affirmed Ms. McFarland’s convictions and sentence. 1
Our Supreme Court granted review and reversed Ms. McFarland’s sentence. State v.
McFarland, 189 Wn.2d 47, 399 P.3d 1106 (2017) (McFarland II). The court held:
[I]n a case in which standard range consecutive sentencing for multiple firearm-related convictions “results in a presumptive sentence that is clearly excessive in light of the purpose of the SRA [Sentencing Reform Act of 1981, chapter 9.94A RCW],” a sentencing court has discretion to impose an
1 State v. McFarland, No. 32873-2-III (Wash. Ct. App. Mar. 8, 2016) (unpublished) (McFarland I), https://www.courts.wa.gov/opinions/pdf/328732.unp.pdf, reversed, 189 Wn.2d 47, 399 P.3d 1106 (2017) (McFarland II).
4 No. 37422-0-III State v. McFarland
exceptional, mitigated sentence by imposing concurrent firearm-related sentences.
Id. at 55 (quoting RCW 9.94A.535(1)(g)). The Supreme Court concluded the “sentencing
court erroneously believed it could not impose concurrent sentences.” Id. at 56. The court
remanded for resentencing so the sentencing court would have the opportunity to exercise
discretion on the issue of whether to impose an exceptional sentence downward under
RCW 9.94A.535.
Resentencing took place in 2017. Ms. McFarland requested an exceptional
mitigated sentence of 41 months, which represented a low-end sentence after running
all counts of conviction concurrently. The sentencing court declined to impose a different
sentence. The court agreed with defense counsel that Ms. McFarland’s sentence was
excessive, but opined this was more a result of the prosecutor’s charging decisions.
The court determined it lacked authority to disregard the charging decisions and impose
a different sentence.
Ms. McFarland again appealed her judgment and sentence. In an unpublished
decision, a majority of this court reversed and again remanded for resentencing. State v.
McFarland, No. 35703-1-III (Wash. Ct. App. May 2, 2019) (unpublished) (McFarland
III), https://www.courts.wa.gov/opinions/pdf/357031_ord.pdf. We explained the
sentencing court failed to exercise its sentencing discretion, as set forth in McFarland II.
5 No. 37422-0-III State v. McFarland
On remand, we directed the sentencing court to consider the seven policies constituting
the purpose of the SRA listed in RCW 9.94A.010. 2 Id. at 7.
This second remand to the sentencing court was mandated in 2019. On remand, the
court conducted a series of hearings with counsel and Ms. McFarland. Ms. McFarland’s
attorney again requested the court run all counts of conviction concurrently, for a total
sentence of 41 months. The State argued the court should abide by its original sentence.
Although the Supreme Court in McFarland II held that the sentencing court possessed
discretion to impose an exceptional sentence downward, the State argued the court could
not act on this discretion unless Ms. McFarland showed her sentence was excessive in
comparison to other similarly situated individuals.
2 The seven policies of RCW 9.94A.010 are:
(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 himself or herself; (6) Make frugal use of the state's and local governments' resources; and (7) Reduce the risk of reoffending by offenders in the community.
6 No. 37422-0-III State v. McFarland
During the proceedings on remand, the sentencing court continued to express
dissatisfaction with the State’s charging decisions. It also criticized the State’s decision
not to seek review of our decision in McFarland III. The court stated it did not understand
our ruling in McFarland III. 3 At the close of a hearing on November 21, 2019, the court
stated it would take Ms. McFarland’s case under advisement. While Ms. McFarland
was present for the various court hearings, she was never provided an opportunity for
allocution.
In January 2020, the sentencing court issued a letter ruling, setting forth its
analysis. The court provided a thoughtful discussion of the SRA and lamented the law
provides prosecutors with unrestrained power to dictate overly harsh sentences through
their charging decisions. The court indicated it remained sympathetic to Ms. McFarland’s
request for a lower sentence. Nevertheless, the court declared it would not modify the
sentence unless it received a ruling from the Washington Supreme Court allowing the
use of RCW 9.94A.535(1)(g)’s downward departure provision as a method for enforcing
prosecutorial charging standards set by the SRA. See RCW 9.94A.401, et seq.
3 “I don’t understand why the Court of Appeals . . . ruled the way they did. . . . I don’t understand why this case came back at all.” Report of Proceedings (Aug. 21, 2019) at 31-32. Counsel for the State agreed, “I share your confusion. I don’t understand it either.” Id. at 32.
7 No. 37422-0-III State v. McFarland
The sentencing court subsequently issued a written order stating the November 14,
2017, amended felony judgment and sentence remained in effect. Ms. McFarland was not
resentenced. Ms. McFarland timely appeals from the sentencing court’s decision.
ANALYSIS
The standards governing our review of Ms. McFarland’s sentencing appeal are
well established. A standard range sentence, such as the one imposed on Ms. McFarland,
is generally not appealable. RCW 9.94A.589(1). However, Ms. McFarland, like all
defendants, has the right to challenge the legality of a sentencing judge’s procedural
decisions. State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989). As she has done
in the past, Ms. McFarland argues the sentencing court violated her procedural rights by
failing to recognize its discretion to impose an exceptional sentence downward. This is
a reviewable claim. State v. Grayson, 154 Wn.2d 333, 341-42, 111 P.3d 1183 (2005).
Ms. McFarland is entitled to resentencing
We readily agree Ms. McFarland’s resentencing proceeding was legally flawed.
In McFarland III, we remanded Ms. McFarland’s case for resentencing. Yet no
resentencing took place. The court instead declined to modify its prior sentence. This did
not comport with our mandate. Our prior decision required a resentencing hearing at
which the court would exercise its discretion on the issue of whether to grant an
8 No. 37422-0-III State v. McFarland
exceptional sentence downward based on operation of the multiple offense aggravator.
Because this did not happen, Ms. McFarland is entitled to resentencing.
Resentencing is also required because Ms. McFarland’s current sentence has been
enhanced by a prior conviction for possession of a controlled substance. Under the recent
case of State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), a conviction for possession
of a controlled substance is void and therefore cannot be used to enhance a defendant’s
current sentence. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 718 P.2d 796
(1986) (“[A] prior conviction . . . which is constitutionally invalid on its face may not be
considered” as part of the offender score.). Ms. McFarland is entitled to resentencing so
her offender score may be adjusted to comport with Blake.
Theoretically, our analysis could end here. However, because the sentencing court
and parties have expressed confusion over the meaning of McFarland III, we write to
provide additional guidance for the proceedings on remand.
Background of the SRA
The SRA was enacted in 1981. Prior to that time, judges enjoyed broad sentencing
discretion. Judges would set minimum and maximum terms of imprisonment and the
Board of Prison Terms and Paroles would determine just how much of the sentence
would be served. See generally former chapter 9.95 RCW (1979). Under the
9 No. 37422-0-III State v. McFarland
indeterminate sentencing regime, judges had near unfettered discretion to decide when
to run sentences concurrently or consecutively. Former RCW 9.92.080 (1971). The
extensive power reserved for sentencing judges left little room for appellate review.
See DAVID BOERNER, SENTENCING IN WASHINGTON: A LEGAL ANALYSIS OF THE
SENTENCING REFORM ACT OF 1981 §9.2 (1985).
The goal of pre-SRA indeterminate sentencing was to allow for rehabilitation
and redemption. Id. at 1-1. But this was not often realized. Instead, pre-SRA sentences
were frequently disproportionate and racially skewed. Dan Kilpatrick & Jack Brummel,
Sentencing Study, 52 WASH. L. REV. 103, 118 (1976). The SRA was enacted to address
these shortcomings by structuring a judge’s discretion in a way that ties sentencing
decisions to the crime or crimes of conviction. Under the SRA, each count of conviction
is assigned a determinate sentencing range based on the statute of conviction and the
defendant’s offender score (calculated from the defendant’s criminal history). When a
defendant is convicted of multiple counts of conviction under the SRA, the counts must
generally run concurrently. RCW 9.94A.589(1)(a). But there are some exceptions for
certain types of convictions, including firearms. RCW 9.94A.589(1)(b)-(d).
While the SRA reduced judicial discretion at sentencing, it did not eliminate it
altogether. RCW 9.94A.535 authorizes judges to depart from standard sentencing ranges.
10 No. 37422-0-III State v. McFarland
But the ability to depart is limited. To impose a sentence below the standard range,
the sentencing court must find “substantial and compelling” mitigating circumstances,
“established by a preponderance of the evidence.” RCW 9.94A.535(1). The current
version of the SRA provides a list of 11 legislatively recognized circumstances a
sentencing court may consider for purposes of a downward departure. Id. This list is
not “exclusive.” Id.
In deciding whether a particular circumstance qualifies for departure from the
standard range, the focus is on legislative intent. The legislature is tasked with defining
crimes and setting the parameters for punishment. State v. Law, 154 Wn.2d 85, 92,
110 P.3d 717 (2005). In imposing a sentence under the SRA, a court must give deference
to the legislature’s prerogatives. Id. Judges cannot impose sentences outside the
legislatively directed standard range based on policy disagreements. Id. at 95-96. In the
same vein, a judge cannot impose a nonstandard range sentence based on the judge’s
assessment of factors that have already been taken into account by the legislature.
Id. at 95-97.
Another change brought by the SRA is increased appellate review. Imposition
of a standard range sentence is not subject to appellate review. RCW 9.94A.585(1).
But appellate courts have a role to play in assessing whether departures from the standard
11 No. 37422-0-III State v. McFarland
ranges are or are not appropriate. RCW 9.94A.585(4). The legislature has encouraged
the appellate courts to develop “a common law of sentencing within the state.”
RCW 9.94A.585(6).
Ms. McFarland’s eligibility for a nonstandard range sentence under the SRA
Ms. McFarland’s case is governed by one of the 11 legislatively recognized bases
for an exceptional sentence downward. RCW 9.94A.535(1)(g). Given this circumstance,
the question of whether to grant a sentencing departure is not governed by whether
Ms. McFarland’s case presents a mitigating fact not already taken into account by the
legislature. Cf. Law, 154 Wn.2d at 95 (two-part test governs the question of whether
a nonenumerated factor qualifies for departure). By enacting RCW 9.94A.535(1)(g),
the legislature has recognized the SRA does not take into account the appropriateness of
all sentences imposed pursuant to RCW 9.94A.589’s multiple offense aggravator. Thus,
if a sentencing court finds the legislatively prescribed presumptive sentence is “clearly
excessive” in light of the purposes of RCW 9.94A.010, it may award a downward
departure. RCW 9.94A.535(1)(g).
This court has held in prior decisions that a sentencing court can find exceptional
circumstances based on operation of the multiple offense aggravator only when the effect
of additional crimes is “nonexistent, trivial or trifling.” State v. Sanchez, 69 Wn. App.
12 No. 37422-0-III State v. McFarland
255, 261, 848 P.2d 208 (1993); see also State v. Kinneman, 120 Wn. App. 327, 346,
84 P.3d 884 (2003); State v. Calvert, 79 Wn. App. 569, 582-83, 903 P.2d 1003 (1995);
State v. Fitch, 78 Wn. App. 546, 551, 897 P.2d 424 (1995); State v. Hortman, 76 Wn.
App. 454, 463-64, 886 P.2d 234 (1994).
As we recognized in McFarland III, the nonexistent/trifling test does not account
for our Supreme Court’s decision in McFarland II. McFarland II makes plain that the test
for whether operation of the multiple offense aggravator results in a clearly excessive
sentence turns on analysis of the purposes of the SRA, as expressed in RCW 9.94A.010.
McFarland II’s emphasis on RCW 9.94A.010 instead of the nonexistent/trifling
test is important. Prior cases establishing the nonexistent/trifling test all addressed
circumstances where a sentencing court took an all-or-nothing approach to the question
of whether to grant relief from operation of the multiple offense aggravator. In those
cases, the question was whether there was an appreciable difference, in terms of the
impact of the crime, between the defendant being convicted of one charge or all charges.
But nothing in RCW 9.94A.535(1)(g) requires an all-or-nothing approach. A judge may
decide the multiple offense aggravator will not result in an excessive sentence so long
as some, but not all, counts of conviction are ordered to run consecutively.
13 No. 37422-0-III State v. McFarland
Focusing on the RCW 9.94A.010 factors allows for a more nuanced assessment
of the excessive punishment question than the pre-McFarland II nonexistent/trifling test.
RCW 9.94A.010’s policy concerns generally recognize that a defendant who commits
multiple crimes should be punished more harshly than one who commits only one crime.
Proportionate sentencing, 4 respect for law, 5 commensurate punishment, 6 and public
safety7 typically require this result. As recognized in our prior case law, the need for a
harsher penalty is not borne out if the difference between one crime and multiple crimes
is trifling or trivial. But the question regarding excessive punishment is not answered
simply by asking the singular question of whether the difference in severity of the
defendant’s offenses is trifling or nonexistent. Instead, the sentencing court should look at
each count of conviction and ask whether, with each additional conviction, the impact of
the defendant’s offense conduct becomes duplicative in terms of the policy considerations
set forth in RCW 9.94A.010. If at some point added punishment becomes excessive, the
court may decide an exceptional sentence downward is appropriate.
4 RCW 9.94A.010(1). 5 RCW 9.94A.010(2). 6 RCW 9.94A.010(3). 7 RCW 9.94A.010(4), (7).
14 No. 37422-0-III State v. McFarland
Determining that operation of the multiple offense aggravator results in excessive
punishment does not require finding that the prosecution engaged in misconduct. See
Sanchez, 69 Wn. App. at 262. The executive branch of our state government is tasked
with charging decisions. Sentencing, in contrast, lies with the courts. While a sentencing
court must defer to the legislature’s guidelines regarding punishment, there is no separate
requirement that the court defer to the prosecutor’s charging decisions. “The question
facing a sentencing court is whether the multiple offense [aggravator] results in a
sentence which is clearly excessive, not the [State’s] rationale for charging multiple
offenses in the first place.” Fitch, 78 Wn. App. at 554.
Nor does RCW 9.94A.535(1)(g)’s departure analysis turn on whether the
defendant’s sentence is excessive when compared to other individuals convicted or
charged with similar crimes. Our Supreme Court long ago rejected the relevance of such
comparisons under the SRA:
An accurate record of all similar cases, with the same salient factors (whatever that means) would require proof of the facts of such cases from all other 38 counties. Who makes the choice? Who bears the burden to produce? Short of production of the entire trial record, how can the court determine what are the same salient factors? It appears obvious to us that the Legislature never contemplated such a burden and delay as would result from such a requirement and we decline to adopt it.
State v. Ritchie, 126 Wn.2d 388, 397, 894 P.2d 1308 (1995).
15 No. 37422-0-III State v. McFarland
Rather than focusing on the appropriateness of a prosecutor’s charging decisions
or a comparison between the defendant’s sentence and that of others similarly situated,
a departure from the multiple offense aggravator under RCW 9.94A.535(1)(g) involves
analyzing the case currently before the court and the qualities of each of the defendant’s
counts of conviction. For example, in Sanchez, we held there was no qualitative
difference between the harm caused by one conviction for an undercover drug sale as
opposed to convictions for three sales, all to the same informant and under similar
circumstances within a nine-day period of time. 69 Wn. App. at 261-62. By contrast,
in Kinneman, we recognized there was a qualitative difference between an initial theft
of $400 and 67 acts of theft resulting in a total loss of over $200,000 in addition to the
foreclosure on four properties. 120 Wn. App. at 346. Thus, we upheld the trial court’s
decision to treat three counts of conviction as one offense in Sanchez, but we reversed
the decision to treat 67 acts of theft as one offense in Kinneman. 8
Ms. McFarland is entitled to a resentencing hearing at which the court assesses
the propriety of an RCW 9.94A.535(1)(g) departure as set forth in this opinion. In
ordering resentencing we are not preordaining any particular result. The defense bears the
8 Kinneman did not ask us to address whether at some point between a single count and 67 counts there ceased to be a qualitative difference in the impact of the defendant’s criminal conduct. Instead, Kinneman took an all-or-nothing approach.
16 No. 37422-0-III State v. McFarland
burden of establishing grounds for departure. This cannot be met merely by (incorrectly)
claiming our court has given a green light to a sentence below the standard range. 9 At the
same time, the proceedings on remand must not be treated as a mere formality or useless
act. The exercise of sentencing discretion is an awesome power. It involves far more than
reciting some magical words or checking boxes on a form. The sentencing court must
carefully consider the circumstances of Ms. McFarland’s case and the statutory standard
set forth at RCW 9.94A.010 and ask whether, at some point between one firearm
conviction and 13, 10 the amount of punishment contemplated by a technical operation
of the multiple offense aggravator becomes excessive.
Resentencing must occur before a different judge
Ms. McFarland’s sentencing judge has extensive experience as a judicial officer,
prosecutor, and defense lawyer. He possesses great knowledge of Washington law and
the history of the SRA. But the judge’s oral and written remarks indicate he has become
9 Nor, as explained elsewhere in this opinion, can the defense discharge its burden by pointing out that Ms. McFarland’s boyfriend received a different sentence. The focus is on Ms. McFarland’s conduct, not sentences received by others or the prosecutor’s different charging decisions. 10 In its briefing, the State suggests Ms. McFarland should be held accountable for 18 firearms, including the 8 firearms that were never recovered. The convictions here do not encompass all 18 stolen firearms. In deciding whether Ms. McFarland’s punishment is excessive, the court is confined to the counts of conviction. Unproven conduct is not part of the analysis. RCW 9.94A.530(2).
17 No. 37422-0-III State v. McFarland
entrenched in a view of the law that is not shared by a majority of our Supreme Court
or this court. The judge’s repeated failure to comply with orders on remand raises a
reasonable concern over his ability to impartially comply with a third remand order.
Both Ms. McFarland and the State deserve finality. Reassignment to a different judicial
officer for resentencing is warranted under these circumstances.
CONCLUSION
Ms. McFarland’s judgment and sentence is reversed. This matter is remanded for
resentencing before a different judicial officer pursuant to the terms of this opinion as
well as the decisions in McFarland II and McFarland III.
_________________________________ Pennell, C.J.
WE CONCUR:
______________________________ Siddoway, J.
Staab, J.