IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 82069-9-I ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) GABRIEL HARLEN NORMAN, ) ) Appellant. )
BOWMAN, J. — Gabriel Harlen Norman pleaded guilty to one count of
domestic violence second degree assault and agreed to a standard-range
sentence of 72 months’ confinement and an exceptional term of 36 months’
community custody. The court imposed a standard-range sentence of 78
months’ confinement and the agreed exceptional term of 36 months’ community
custody. Norman appeals, claiming the court exceeded its sentencing authority.
We affirm.
FACTS
The State charged Norman with four counts of domestic violence second
degree assault of a three-month-old child with aggravating factors that Norman
knew or should have known the victim “was particularly vulnerable or incapable
of defense” and that the victim’s injuries “substantially exceed the level of bodily
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82069-9-I/2
harm necessary to satisfy the elements of the offense.” Norman agreed to plead
guilty to one count of domestic violence second degree assault. Based on an
offender score of 24, Norman’s standard-range sentence was 63 to 84 months’
confinement and 18 months of community custody. The parties agreed to
recommend to the court a standard-range sentence of 72 months’ confinement.
But the parties stipulated to an exceptional term of 36 months’ community
custody. The prosecutor explained to the court that Norman “clearly suffers from
a meth[amphetamine] problem” and that the agreed 36 months of community
custody “will ensure that [for] [3] years he is watched and forced to comply with
what DOC[1] recommends.”
The trial court accepted Norman’s plea and sentenced him to 78 months
of confinement. It then imposed the agreed exceptional term of 36 months of
community custody. The parties stipulated to findings of fact and conclusions of
law in support of the exceptional term of community custody, which the court
found to be “appropriate.”
Norman appeals his sentence.
ANALYSIS
Norman argues that the court exceeded its authority “by entering an
exceptional sentence beyond that to which [he] had agreed” and without first
finding that the sentence was “consistent with the purposes of the” Sentencing
Reform Act of 1981 (SRA), chapter 9.94A RCW. We disagree.
1 Department of Corrections.
2 No. 82069-9-I/3
Standard-Range Sentence
Norman contends that he agreed to “an exceptional sentence of 72
months of confinement and 36 months of community custody, for a total of 108
months,” but “the court imposed an exceptional sentence over and beyond that to
which [he] had agreed” of 114 months. The State argues that Norman agreed to
a standard-range term of confinement and an exceptional term of community
custody. It contends that Norman cannot appeal his standard-range sentence of
78 months. We agree with the State.
Generally, a defendant cannot appeal a standard-range sentence. RCW
9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). And
a sentencing court is not bound by any recommendations in a plea agreement.
State v. Harrison, 148 Wn.2d 550, 557, 61 P.3d 1104 (2003). Judges are
afforded “nearly unlimited discretion” in determining an appropriate sentence
within the standard range. State v. Mail, 121 Wn.2d 707, 711 n.2, 854 P.2d 1042
(1993).
Here, Norman conflates his agreement to a standard-range sentence of
confinement with his agreed exceptional term of community custody. In his plea
paperwork, Norman acknowledged that his standard range was 63 to 84 months
of confinement and that his statutory term of community custody was 18 months.
Norman agreed to a recommendation of 72 months’ confinement. He also
agreed to an additional 18 months of community custody and an “exceptional
sentence to permit the additional [community custody].” The trial court chose not
3 No. 82069-9-I/4
to follow the agreed recommendation of 72 months of confinement and imposed
78 months instead. Because Norman’s term of confinement falls within the
proper presumptive sentencing range set by the legislature, “there can be no
abuse of discretion as a matter of law as to the sentence’s length.” Williams, 149
Wn.2d at 146-47.2
Exceptional Term of Community Custody
Norman argues that the sentencing court exceeded its authority by
entering an exceptional sentence “without first finding that doing so was
‘consistent with the purposes of the [SRA].’ ” In re Pers. Restraint of Breedlove,
138 Wn.2d 298, 310, 979 P.2d 417 (1999). We disagree.
Under the SRA, a trial court may impose an exceptional sentence if it
finds, considering the purposes of the SRA, that there are “substantial and
compelling reasons” to justify punishment beyond the standard range. RCW
9.94A.535; State v. Gaines, 121 Wn. App. 687, 697, 90 P.3d 1095 (2004). This
includes an exceptional term of community custody. In re Postsentence Petition
of Smith, 139 Wn. App. 600, 604, 161 P.3d 483 (2007). A stipulation by the
parties is a substantial and compelling reason justifying an exceptional sentence.
State v. Dillon, 142 Wn. App. 269, 277, 174 P.3d 1201 (2007); see Breedlove,
138 Wn.2d at 309-10. And “[w]here the parties agree that an exceptional
sentence is justified, the purposes of the SRA are generally served by accepting
2 Because we conclude that the court sentenced Norman to confinement within the
standard range, we do not reach his argument that his “offender score cannot form the basis for his exceptional sentence because he did not stipulate that a standard[-]range sentence would have been ‘clearly too lenient’ ” under RCW 9.94A.535(2)(d).
4 No. 82069-9-I/5
the agreement as a substantial and compelling reason for imposing an
exceptional sentence.” Breedlove, 138 Wn.2d at 309. The trial judge knows the
facts of the incident and the negotiating parties, and “the law provides protection
to the defendant and to the public to ensure that a plea agreement is consistent
with the interests of justice” and the SRA. Breedlove, 138 Wn.2d at 310.
Norman agreed to an exceptional term of community custody in exchange
for a reduction in charges from four counts of second degree assault of a child to
one count of assault in the second degree. The parties stipulated to findings of
fact in support of the exceptional community custody term. The court found
Norman made his plea of guilty “knowingly, intelligently and voluntarily” and
approved the parties’ stipulation to the exceptional term of community custody as
“appropriate.” As a result, the court’s sentence served the purposes of the SRA.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 82069-9-I ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) GABRIEL HARLEN NORMAN, ) ) Appellant. )
BOWMAN, J. — Gabriel Harlen Norman pleaded guilty to one count of
domestic violence second degree assault and agreed to a standard-range
sentence of 72 months’ confinement and an exceptional term of 36 months’
community custody. The court imposed a standard-range sentence of 78
months’ confinement and the agreed exceptional term of 36 months’ community
custody. Norman appeals, claiming the court exceeded its sentencing authority.
We affirm.
FACTS
The State charged Norman with four counts of domestic violence second
degree assault of a three-month-old child with aggravating factors that Norman
knew or should have known the victim “was particularly vulnerable or incapable
of defense” and that the victim’s injuries “substantially exceed the level of bodily
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82069-9-I/2
harm necessary to satisfy the elements of the offense.” Norman agreed to plead
guilty to one count of domestic violence second degree assault. Based on an
offender score of 24, Norman’s standard-range sentence was 63 to 84 months’
confinement and 18 months of community custody. The parties agreed to
recommend to the court a standard-range sentence of 72 months’ confinement.
But the parties stipulated to an exceptional term of 36 months’ community
custody. The prosecutor explained to the court that Norman “clearly suffers from
a meth[amphetamine] problem” and that the agreed 36 months of community
custody “will ensure that [for] [3] years he is watched and forced to comply with
what DOC[1] recommends.”
The trial court accepted Norman’s plea and sentenced him to 78 months
of confinement. It then imposed the agreed exceptional term of 36 months of
community custody. The parties stipulated to findings of fact and conclusions of
law in support of the exceptional term of community custody, which the court
found to be “appropriate.”
Norman appeals his sentence.
ANALYSIS
Norman argues that the court exceeded its authority “by entering an
exceptional sentence beyond that to which [he] had agreed” and without first
finding that the sentence was “consistent with the purposes of the” Sentencing
Reform Act of 1981 (SRA), chapter 9.94A RCW. We disagree.
1 Department of Corrections.
2 No. 82069-9-I/3
Standard-Range Sentence
Norman contends that he agreed to “an exceptional sentence of 72
months of confinement and 36 months of community custody, for a total of 108
months,” but “the court imposed an exceptional sentence over and beyond that to
which [he] had agreed” of 114 months. The State argues that Norman agreed to
a standard-range term of confinement and an exceptional term of community
custody. It contends that Norman cannot appeal his standard-range sentence of
78 months. We agree with the State.
Generally, a defendant cannot appeal a standard-range sentence. RCW
9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003). And
a sentencing court is not bound by any recommendations in a plea agreement.
State v. Harrison, 148 Wn.2d 550, 557, 61 P.3d 1104 (2003). Judges are
afforded “nearly unlimited discretion” in determining an appropriate sentence
within the standard range. State v. Mail, 121 Wn.2d 707, 711 n.2, 854 P.2d 1042
(1993).
Here, Norman conflates his agreement to a standard-range sentence of
confinement with his agreed exceptional term of community custody. In his plea
paperwork, Norman acknowledged that his standard range was 63 to 84 months
of confinement and that his statutory term of community custody was 18 months.
Norman agreed to a recommendation of 72 months’ confinement. He also
agreed to an additional 18 months of community custody and an “exceptional
sentence to permit the additional [community custody].” The trial court chose not
3 No. 82069-9-I/4
to follow the agreed recommendation of 72 months of confinement and imposed
78 months instead. Because Norman’s term of confinement falls within the
proper presumptive sentencing range set by the legislature, “there can be no
abuse of discretion as a matter of law as to the sentence’s length.” Williams, 149
Wn.2d at 146-47.2
Exceptional Term of Community Custody
Norman argues that the sentencing court exceeded its authority by
entering an exceptional sentence “without first finding that doing so was
‘consistent with the purposes of the [SRA].’ ” In re Pers. Restraint of Breedlove,
138 Wn.2d 298, 310, 979 P.2d 417 (1999). We disagree.
Under the SRA, a trial court may impose an exceptional sentence if it
finds, considering the purposes of the SRA, that there are “substantial and
compelling reasons” to justify punishment beyond the standard range. RCW
9.94A.535; State v. Gaines, 121 Wn. App. 687, 697, 90 P.3d 1095 (2004). This
includes an exceptional term of community custody. In re Postsentence Petition
of Smith, 139 Wn. App. 600, 604, 161 P.3d 483 (2007). A stipulation by the
parties is a substantial and compelling reason justifying an exceptional sentence.
State v. Dillon, 142 Wn. App. 269, 277, 174 P.3d 1201 (2007); see Breedlove,
138 Wn.2d at 309-10. And “[w]here the parties agree that an exceptional
sentence is justified, the purposes of the SRA are generally served by accepting
2 Because we conclude that the court sentenced Norman to confinement within the
standard range, we do not reach his argument that his “offender score cannot form the basis for his exceptional sentence because he did not stipulate that a standard[-]range sentence would have been ‘clearly too lenient’ ” under RCW 9.94A.535(2)(d).
4 No. 82069-9-I/5
the agreement as a substantial and compelling reason for imposing an
exceptional sentence.” Breedlove, 138 Wn.2d at 309. The trial judge knows the
facts of the incident and the negotiating parties, and “the law provides protection
to the defendant and to the public to ensure that a plea agreement is consistent
with the interests of justice” and the SRA. Breedlove, 138 Wn.2d at 310.
Norman agreed to an exceptional term of community custody in exchange
for a reduction in charges from four counts of second degree assault of a child to
one count of assault in the second degree. The parties stipulated to findings of
fact in support of the exceptional community custody term. The court found
Norman made his plea of guilty “knowingly, intelligently and voluntarily” and
approved the parties’ stipulation to the exceptional term of community custody as
“appropriate.” As a result, the court’s sentence served the purposes of the SRA.
Norman disagrees. Citing State v. Gronnert, 122 Wn. App. 214, 221, 93
P.3d 200 (2004), he argues that “[a]bsent an independent finding that an
exceptional sentence is consistent with the purposes of the SRA,” the court lacks
authority to impose a sentence beyond the standard range, “even when it is
agreed to by the parties.” In Gronnert, the defendant agreed to plead guilty to a
reduced charge of possession of ephedrine with intent to manufacture. Gronnert,
122 Wn. App. at 218. He had an offender score of 0 but stipulated to a 60-month
exceptional sentence if he violated the terms of his temporary release. Gronnert,
122 Wn. App. at 224, 218. Gronnert violated the terms of release and the court
imposed a 60-month sentence. Gronnert, 122 Wn. App. at 218. We
“consider[ed] the context of the plea” and concluded that it did not serve the
5 No. 82069-9-I/6
purposes of the SRA because Gronnert’s exceptional sentence was
disproportionate to his crime and offender score and not commensurate with the
punishment imposed on others for similar offenses. Gronnert, 122 Wn. App. at
223-24.
In contrast, Norman received a significant benefit from his stipulation to an
exceptional term of community custody. The State first charged Norman with
four counts of assault of a child in the second degree with domestic violence
designations and multiple allegations of aggravating circumstances. The State
warned Norman that it planned to seek an exceptional sentence based on the
aggravating factors. But recognizing Norman’s methamphetamine addiction, the
State reduced the charges to a single count of second degree assault with an
exceptional term of 36 months’ community custody. The State explained to the
court:
The Defendant’s range for assault of a child in the second degree, which is essentially the same type of crime as what he is pleading to, is 120 months. There would be no possibility of community custody based on that. In reviewing the case, and with the proposed recommendation from Defense, our office, including myself as well as my boss, sat down and considered the idea of additional community custody in this matter.
Ultimately, the parties agreed that the exceptional term of community
custody would “ensure that . . . [Norman] is watched and forced to comply with
what DOC recommends.” Indeed, Norman’s attorney represented to the court
that “being on DOC supervision for an additional period of time is a good idea for
all concerned, certainly for Mr. Norman and for the community.” The trial court
6 No. 82069-9-I/7
did not exceed its authority by imposing the agreed exceptional term of 36
months of community custody.3
Affirmed.
WE CONCUR:
3 Neither does Norman’s combined 114 months of incarceration and community custody
exceed the 120-month statutory maximum for the class B felony of assault in the second degree. RCW 9A.36.021(2)(a); RCW 9A.20.021(1)(b). “As long as the confinement and the community placement do not exceed the statutory maximum sentence, there is no error.” In re Application for Relief from Pers. Restraint of Caudle, 71 Wn. App. 679, 680, 863 P.2d 570 (1993).