State Of Washington, V Fred Henery Carpenter, IV

CourtCourt of Appeals of Washington
DecidedDecember 13, 2022
Docket56482-3
StatusUnpublished

This text of State Of Washington, V Fred Henery Carpenter, IV (State Of Washington, V Fred Henery Carpenter, IV) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Of Washington, V Fred Henery Carpenter, IV, (Wash. Ct. App. 2022).

Opinion

Filed Washington State Court of Appeals Division Two

December 13, 2022

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 56482-3-II

Respondent,

v.

FRED HENERY CARPENTER, IV, UNPUBLISHED OPINION

Appellant.

VELJACIC, J. — Fred Carpenter appeals the exceptional sentence imposed at his

resentencing. He argues that adding the same 20-month exceptional term to his standard range

sentence that the trial court added at his original sentencing hearing was clearly excessive. He

contends his offender score and standard sentencing range have since been lowered, rendering the

accompanying exceptional term disproportionate.

We hold that the trial court did not abuse its discretion in imposing the same exceptional

term at the resentencing hearing. We also hold that a reduction in an appellant’s offender score

and standard range does not require a proportionate reduction in the length of a previously imposed

exceptional term. Accordingly, we affirm the sentence imposed by the trial court.

FACTS

On August 22, 2012, Carpenter was found guilty after a jury trial of two counts of assault

in the second degree while in the presence of a child (counts I and II), two counts of felony

harassment while in the presence of a child (counts III and IV), one count of assault in the fourth

degree (count V), and one count of obstruction of a law enforcement officer (count VI). Carpenter 56482-3-II

was sentenced to 104 months on counts I and II, 60 months on count III and IV, and 364 days on

counts V and VI. At sentencing, the standard range for counts I and II was 63 to 84 months. The

court imposed an exceptional sentence, adding a term of 20 months to the high end of the standard

range, based on the jury finding counts I and II were “aggravated domestic violence offenses.”

Clerk’s Papers at 72, 74. The total sentence was 104 months of confinement and community

custody for 16 months. Count II was vacated after appeal.

The original sentence was predicated on Carpenter’s offender score of 10 for counts I and

II and an offender score of 9 for counts III and IV. However, two of his convictions were void

pursuant to State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).

A resentencing hearing pursuant to offender score changes brought about by Blake was

held on November 4, 2021. Carpenter’s offender score was reduced to 7. In turn, the lower

offender score reduced his standard sentencing range to 43 to 57 months. At the resentencing

hearing, the court imposed 57 months, plus the same 20 months for the exceptional term despite

the reduced offender score and standard sentencing range. This resulted in a total of 77 months of

confinement and 18 months of community custody. After hearing arguments from both parties,

the court stated: “The jury made a finding. They found aggravating factors. . . . [I]t would be very

unusual that the court would ignore a jury’s special finding of an aggravating factor.” Report of

Proceedings at 38-39.

Carpenter appeals.

ANALYSIS

Carpenter argues that his exceptional sentence was clearly excessive because once his

criminal history score was lowered from 10 to 7, the standard sentencing range was lowered, and

the accompanying exceptional term should be lowered as well. We disagree.

2 56482-3-II

I. LEGAL PRINCIPLES

We review an alleged excessive exceptional sentence for an abuse of discretion. State v.

Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).

The trial court abuses its discretion when it bases its decision on untenable reasons or

grounds or the decision is manifestly unreasonable. State v. Solomon, 3 Wn. App. 2d 895, 910,

419 P.3d 436 (2018). Once the sentencing court finds substantial and compelling reasons for

imposing an exceptional sentence, the court is permitted to use its discretion to determine the

precise length of that sentence. State v. Ross, 71 Wn. App. 556, 568, 861 P.2d 473, 883 P.2d 329

(1994). A sentencing court need not state reasons in addition to those relied on to justify the

imposition of an exceptional sentence above the standard range in the first instance. Id. at 573.

In order to abuse its discretion in determining the length of an exceptional sentence above

the standard range, “the trial court must do one of two things: rely on an impermissible reason (the

‘untenable grounds/untenable reasons’ prong of the standard) or impose a sentence which is so

long that, in light of the record, it shocks the conscience of the reviewing court (the ‘no reasonable

person’ prong of the standard).” Id. at 571. In Ross, this court explained:

[O]nce a reviewing court has determined that the facts support the reasons given for exceeding the range and that those reasons are substantial and compelling, there is often nothing more to say. The trial and appellate courts simply reiterate those reasons to explain why a particular number of months is appropriate. . . . [T]he length of the sentence must have some basis in the record.

Id. at 571-72 (internal quotation marks omitted).

Additionally, in State v. Barberio, the court stated:

Unless the length of the sentence is clearly excessive or drawn out of thin air, or unless, at a resentencing such as this one, there is evidence that the same sentence is imposed out of vindictiveness . . . an appellate court will not find an abuse of discretion simply because a trial court, after consideration of valid aggravating factors, reimposes the same sentence after a change in the offender score.

3 56482-3-II

66 Wn. App. 902, 908, 833 P.2d 459 (1992) (internal citation omitted).

The circumstances presented in this case are similar to those presented in Barberio. In that

case, the court held that a reduction in an appellant’s offender score and standard range does not

require any reduction in the length of a previously imposed exceptional sentence. Id. at 906. The

appellant in Barberio claimed that because he previously had been sentenced to 72 months when

the standard range for the offense was 26-34 months, when the standard range was reduced to 2 to

27 months, his sentence should have been proportionately reduced as well. Id.

The court disagreed, finding that the trial court was not required as a matter of law to reduce

the exceptional sentence in light of the reduced offender score and reduced standard range. Id.

The court reasoned that:

Nothing in the [Sentencing Reform Act] or our case law indicates that a person’s exceptional sentence must necessarily be reduced based on a recalculation of an offender score. Clearly, a trial court must determine whether to impose an exceptional sentence after considering the correct offender score and the correct standard range, but this was done in the present case. Contrary to appellant’s contention, the trial court did not “automatically” reimpose the same sentence on remand. The trial court listened to appellant’s arguments with respect to the aggravating factors, although none of them had been challenged in the first appeal, and concluded that the crime warranted a sentence closer to the statutory maximum than to the upper end of the standard range.

Id. at 907.

II.

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Related

State v. Ross
883 P.2d 329 (Court of Appeals of Washington, 1994)
State v. Law
110 P.3d 717 (Washington Supreme Court, 2005)
State v. Barberio
833 P.2d 459 (Court of Appeals of Washington, 1992)
State Of Washington v. Joshua Joseph Solomon
419 P.3d 436 (Court of Appeals of Washington, 2018)
State v. Law
154 Wash. 2d 85 (Washington Supreme Court, 2005)
State v. Blake
Washington Supreme Court, 2021

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