FILED JANUARY 25, 2018 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STATE OF WASHINGTON, ) ) No. 34933-1-111 Respondent, ) ) V. ) ) JONATHAN S. KINSMAN, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Jonathan Kinsman appeals from a standard range sentence for ten
counts of possessing and disseminating child pornography. Since the trial court was not
convinced that he established the mitigating factor he was relying on, there was no error.
FACTS
Mr. Kinsman receives disability benefits du� to several psychological conditions,
including one that an evaluator described as a developmental 1 disorder, which makes
social interactions stressful to him. Nonetheless, his cognitive abilities rank toward the
higher end of the "average" spectrum.
1 Also described as "high functioning autistim." Clerk's Papers at 71. No. 34933-1-111 State v. Kinsman
A police child pornography investigation led to the issuance of a search warrant
for Mr. Kinsman's computer. Police recovered over 1100 images of suspected child
pornography, leading prosecutors to file 21 charges. An agreement was reached and Mr.
Kinsman pleaded guilty to nine counts of possession of a minor engaging in explicit
sexual conduct and one count of disseminating such images. The prosecutor agreed to
recommend a sentence of 96 months in prison, while the defense sought an exceptional
sentence.
The defense sought a treatment based sentence consistent with the approach of a
special sexual offender sentencing alternative (SSOSA), arguing that three mitigating
factors were available: (1) Mr. Kinsman was unable to appreciate the wrongfulness of his
conduct, (2) the appropriate sentencing alternative was not available, and (3) the sentence
was clearly excessive. The argument was supported by evaluations, including from a
treatment provider, suggesting that prison would only exacerbate Mr. Kinsman's
problems.
The trial judge concluded that Mr. Kinsman had not established that his condition
rose to the level of being unable to appreciate the wrongfulness of his conduct, the
absence of SSOSA for his offenses was not a basis for declaring an exceptional sentence,
and that the standard range was not excessive for his conduct. The court imposed a low
end term of 87 months in prison and 36 months of community supervision.
2 No. 34933-1-111 State v. Kinsman
This court permitted Mr. Kinsman to file an untimely appeal due to lack of advice
at sentencing concerning his appeal rights. A panel considered the case without
argument.
ANALYSIS
Mr. Kinsman argues on appeal that the trial court abused its discretion in denying
his request for an exceptional sentence due to his mental health condition.2 We disagree.
An exceptional sentence is appropriate when the facts of a case are atypical and
result in a harm either more or less egregious than the norm. E.g., State v. Akin, 77 Wn.
App. 575,892 P.2d 774 (1995) (escape was less egregious than typical,justifying
mitigated sentence). "A sentence within the standard sentence range . .. for an offense
shall not be appealed." RCW 9.94A.585(1). This means,generally,that a party cannot
appeal a standard range sentence. State v. Williams, 149 Wn.2d 143,146,65 P.3d 1214
(2003). Thus,"so long as the sentence falls within the proper presumptive sentencing
ranges set by the legislature,there can be no abuse of discretion as a matter of law as to
the sentence's length." Id. at 146-147.
2 Although Mr. Kinsman argues that the purposes of the Sentencing Reform Act also justified an exceptional sentence,those purposes cannot alone justify an exceptional sentence since those purposes are already reflected in the legislature's determination of the standard range. E.g., State v. Law, 154 Wn.2d 85,97, 110 P.3d 717 (2005). We consider his argument as supporting his chosen sentence rather than as a separate basis for imposing a mitigated sentence.
3 No. 34933-1-III State v. Kinsman
There are some exceptions to this general prohibition. Id. at 147. A party's right
to "challenge the underlying legal conclusions and determinations by which a court
comes to apply a particular sentencing provision" is not barred by the prohibition. Id.
An appellate court may review a standard range sentence resulting from constitutional
error,procedural error,an error of law,or the failure to exercise discretion. E.g., id.
(State can appeal determination of a defendant's eligibility for a sentencing alternative);
State v. Mail, 121 Wn.2d 707,712,854 P.2d 1042 (1993) (defendant can challenge a trial
court's failure to follow a specific sentencing provision); State v. Ammons, 105 Wn.2d
175,183,713 P.2d 719,718 P.2d 796 (1986) (defendant can challenge trial court's
failure to comply with mandatory procedures); State v. McGill, 112 Wn. App. 95,100,47
P.3d 173 (2002) (sentencing court erred when it failed to recognize it had authority to
impose an exceptional sentence).
Trial judges exercise structured discretion given by the legislature. Ammons, 105
Wn.2d at 182-183. Discretion is abused when it is exercised on untenable grounds or for
untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
A reviewing court does not find facts and has no ability to believe that which the trial
court chose not to believe. Quinn v. Cherry Lane Auto Plaza, 153 Wn. App. 710,717,
225 P Jd 266 (2009).
4 No. 34933-1-III State v. Kinsman
Here, Mr. Kinsman argued at trial that a statutory mitigating factor applied:
The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.
RCW 9.94A.535(1)(e). 3 On appeal, Mr. Kinsman argues that the mitigating factors
recognized in our statutes are illustrative and not exclusive, and, thus, the trial court could
have found his mental health to be a mitigating factor even if his condition did not arise
to the level of the statutory mitigating factor. While that observation is correct, it is
legally unavailing.
The primary problem is that Mr. Kinsman attempted to establish the statutory
mitigating factor rather than a different, unarticulated standard. The trial court cannot be
faulted for failing to exercise discretion in favor of a mitigating factor it was not asked to
consider.
A second problem is that Mr. Kinsman now focuses on his own condition instead
of how that condition related to the commission of the crime. Since the enactment of our
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JANUARY 25, 2018 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. 34933-1-111 Respondent, ) ) V. ) ) JONATHAN S. KINSMAN, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Jonathan Kinsman appeals from a standard range sentence for ten
counts of possessing and disseminating child pornography. Since the trial court was not
convinced that he established the mitigating factor he was relying on, there was no error.
FACTS
Mr. Kinsman receives disability benefits du� to several psychological conditions,
including one that an evaluator described as a developmental 1 disorder, which makes
social interactions stressful to him. Nonetheless, his cognitive abilities rank toward the
higher end of the "average" spectrum.
1 Also described as "high functioning autistim." Clerk's Papers at 71. No. 34933-1-111 State v. Kinsman
A police child pornography investigation led to the issuance of a search warrant
for Mr. Kinsman's computer. Police recovered over 1100 images of suspected child
pornography, leading prosecutors to file 21 charges. An agreement was reached and Mr.
Kinsman pleaded guilty to nine counts of possession of a minor engaging in explicit
sexual conduct and one count of disseminating such images. The prosecutor agreed to
recommend a sentence of 96 months in prison, while the defense sought an exceptional
sentence.
The defense sought a treatment based sentence consistent with the approach of a
special sexual offender sentencing alternative (SSOSA), arguing that three mitigating
factors were available: (1) Mr. Kinsman was unable to appreciate the wrongfulness of his
conduct, (2) the appropriate sentencing alternative was not available, and (3) the sentence
was clearly excessive. The argument was supported by evaluations, including from a
treatment provider, suggesting that prison would only exacerbate Mr. Kinsman's
problems.
The trial judge concluded that Mr. Kinsman had not established that his condition
rose to the level of being unable to appreciate the wrongfulness of his conduct, the
absence of SSOSA for his offenses was not a basis for declaring an exceptional sentence,
and that the standard range was not excessive for his conduct. The court imposed a low
end term of 87 months in prison and 36 months of community supervision.
2 No. 34933-1-111 State v. Kinsman
This court permitted Mr. Kinsman to file an untimely appeal due to lack of advice
at sentencing concerning his appeal rights. A panel considered the case without
argument.
ANALYSIS
Mr. Kinsman argues on appeal that the trial court abused its discretion in denying
his request for an exceptional sentence due to his mental health condition.2 We disagree.
An exceptional sentence is appropriate when the facts of a case are atypical and
result in a harm either more or less egregious than the norm. E.g., State v. Akin, 77 Wn.
App. 575,892 P.2d 774 (1995) (escape was less egregious than typical,justifying
mitigated sentence). "A sentence within the standard sentence range . .. for an offense
shall not be appealed." RCW 9.94A.585(1). This means,generally,that a party cannot
appeal a standard range sentence. State v. Williams, 149 Wn.2d 143,146,65 P.3d 1214
(2003). Thus,"so long as the sentence falls within the proper presumptive sentencing
ranges set by the legislature,there can be no abuse of discretion as a matter of law as to
the sentence's length." Id. at 146-147.
2 Although Mr. Kinsman argues that the purposes of the Sentencing Reform Act also justified an exceptional sentence,those purposes cannot alone justify an exceptional sentence since those purposes are already reflected in the legislature's determination of the standard range. E.g., State v. Law, 154 Wn.2d 85,97, 110 P.3d 717 (2005). We consider his argument as supporting his chosen sentence rather than as a separate basis for imposing a mitigated sentence.
3 No. 34933-1-III State v. Kinsman
There are some exceptions to this general prohibition. Id. at 147. A party's right
to "challenge the underlying legal conclusions and determinations by which a court
comes to apply a particular sentencing provision" is not barred by the prohibition. Id.
An appellate court may review a standard range sentence resulting from constitutional
error,procedural error,an error of law,or the failure to exercise discretion. E.g., id.
(State can appeal determination of a defendant's eligibility for a sentencing alternative);
State v. Mail, 121 Wn.2d 707,712,854 P.2d 1042 (1993) (defendant can challenge a trial
court's failure to follow a specific sentencing provision); State v. Ammons, 105 Wn.2d
175,183,713 P.2d 719,718 P.2d 796 (1986) (defendant can challenge trial court's
failure to comply with mandatory procedures); State v. McGill, 112 Wn. App. 95,100,47
P.3d 173 (2002) (sentencing court erred when it failed to recognize it had authority to
impose an exceptional sentence).
Trial judges exercise structured discretion given by the legislature. Ammons, 105
Wn.2d at 182-183. Discretion is abused when it is exercised on untenable grounds or for
untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
A reviewing court does not find facts and has no ability to believe that which the trial
court chose not to believe. Quinn v. Cherry Lane Auto Plaza, 153 Wn. App. 710,717,
225 P Jd 266 (2009).
4 No. 34933-1-III State v. Kinsman
Here, Mr. Kinsman argued at trial that a statutory mitigating factor applied:
The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.
RCW 9.94A.535(1)(e). 3 On appeal, Mr. Kinsman argues that the mitigating factors
recognized in our statutes are illustrative and not exclusive, and, thus, the trial court could
have found his mental health to be a mitigating factor even if his condition did not arise
to the level of the statutory mitigating factor. While that observation is correct, it is
legally unavailing.
The primary problem is that Mr. Kinsman attempted to establish the statutory
mitigating factor rather than a different, unarticulated standard. The trial court cannot be
faulted for failing to exercise discretion in favor of a mitigating factor it was not asked to
consider.
A second problem is that Mr. Kinsman now focuses on his own condition instead
of how that condition related to the commission of the crime. Since the enactment of our
3 Tojustify an exceptional sentence under this provision, a defendant must prove impairment in his or her capacity to think and act in conformity with the law. State v. Rogers, 112 Wn.2d 180, 185, 770 P.2d 180 (1989). Impairedjudgment and irrational thinking, alone, are insufficient to establish the mitigating circumstance. Id. Mr. Rogers was a 50-year-old, highly-educated former schoolteacher and school principal, whom the trialjudge determined was acting under severe stress. Id. at 182, 184. On review, the court found no proof that the stress Rogers experienced significantly impaired his capacity to appreciate the wrongfulness of his conduct. Id. at 185. The court reversed on that basis and made clear that the test is "stringent." Id.
5 No. 34933-1-111 State v. Kinsman
current sentencing act, trial courts must apply the statutes equally "without discrimination
as to any element that does not relate to the crime or the previous record of the
defendant." RCW 9.94A.340. The personal circumstances of an adult actor are relevant
only as they relate to the criminal incident. Here, Mr. Kinsman appropriately made that
argument to the trial court in terms of how his condition made him unable to appreciate
the wrongfulness of his conduct. He did not attempt to explain what other impact his
condition might have had on the criminal activity.
Mr. Kinsman made a pitch for the statutory factor and failed to establish it. The
trial court had a very tenable reason for exercising its discretion as it did. There was no
abuse of that discretion.
The judgment is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR: