State v. Allert

791 P.2d 932, 58 Wash. App. 200, 1990 Wash. App. LEXIS 220
CourtCourt of Appeals of Washington
DecidedJune 7, 1990
DocketNo. 9627-1-III
StatusPublished
Cited by4 cases

This text of 791 P.2d 932 (State v. Allert) 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 v. Allert, 791 P.2d 932, 58 Wash. App. 200, 1990 Wash. App. LEXIS 220 (Wash. Ct. App. 1990).

Opinion

Thompson, J. —

The State appeals an exceptional sentence, below the standard range, imposed on Terry Lee Allert for his conviction on two counts of first degree robbery. We affirm.

Mr. Allert, former police chief of Ritzville, Washington, robbed two grocery stores with a pellet gun on November 27, 1987. He pleaded guilty to two counts of first degree robbery in July 1988.

At the sentencing hearing, psychiatrist Dr. Robert Wetz-ler testified Mr. Allert had three disorders: depression, compulsive personality and alcohol addiction. Dr. Wetzler testified Mr. Allert's ability to perceive and to understand was impaired:

Q. Can you draw a distinction then between perhaps in Terry Allert's case knowing physically what he was doing, yet at the same time not having the guilt mechanism, the perception of what he was doing and the perception of wrongfulness?
A. That's what I am trying to say. Perhaps I am not saying it well. That the ability to perceive and to understand is impaired. The intent, perhaps what he is doing is there. But the ability to understand and perceive and stop doing it or seek some other alternative, and these are all impaired.

When asked on cross examination whether Mr. Allert could distinguish right from wrong, Dr. Wetzler testified:

A. I don't think that at this time I have to deal with right and wrong. I am not saying this man is insane. I am talking about a diminished capacity to understand and perceive. I don't think it reaches the level of an insanity defense [or] plea. I am quite sure that in looking back when a person is driving who is drunk doesn't have the time to perceive or understand what is right and wrong. So I think there is a diminished area also there.
Q. You also spoke, if I understand correctly, that he did not feel a sense of guilt, did not feel a sense of a conscience that bothered him?
A. I think you are misinterpreting perhaps what I said. I think he does have a guilt, but at the time this occurred his guilt signal was not present. He could not tell him to stop. Do you say this I only use it as an example of sometimes when [203]*203I am doing something, if it is wrong or I am starting to do something, can I have the signal to say this is not wise, this is not good, this is not bad. Those are judgments and he didn't have the judgment to make that.

When asked whether Mr. Allert's preparation for the crimes indicated he had a perception his conduct was wrong, Dr. Wetzler replied:

A. I can agree and disagree in the same breath. Perception is to know and to understand. To call upon background material in terms of information, intelligence, conception of past behavior. At that time he perceived, yes, but the perception and contact with reality was diminished and impaired.

Dr. E. Clay Jorgensen, a clinical psychologist, testified as follows when asked whether Mr. Allert knew the difference between right and wrong:

A. I think Mr. Allert was impaired in terms of his judgment and thinking and ability to reason out what was happening or what he was doing at that time.
Q. He could recognize that what he was doing was wrong but he was doing it for a number of reasons, whether those be good reasons or bad reasons?
A. I am not sure he was able to determine that.

The court entered the following findings, all of which are challenged by the State:

1.1 Defendant, at the time of the commission of these offenses, suffered from three medically recognized mental disorders, i.e., depression, severe compulsive personality, and alcoholism.
1.2 Because of the separate and combined effects of each mental disorder, the defendant's capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law was significantly impaired.
1.3 Based on the reports and testimony of Dr. Robert Wetzler and Dr. Clay Jorgensen, this court finds that had the defendant plead [sic] not guilty, the defense of diminished capacity would have been viable and might well have resulted in acquittal.
1.4 An exceptional sentence of 12 months in work release confinement, followed by 24 months of community supervision, with the conditions of abstaining from use or possession of alcohol and drugs, and of TASC monitoring, including Antabuse if appropriate, and of alcohol, drug and mental treatment, provides sufficient protection to society, and punishment, to the defendant to accomplish the purposes of RCW Ch. 9.94A.
[204]*2041.7 The treatment needs of the defendant can be met in the community, and while this factor is not sufficient alone to justify an exceptional sentence, it does help to establish that the purposes of RCW 9.94A will be satisfied with the imposition of an exceptional sentence.
1.8 The defendant does not suffer from an antisocial personality disorder, and objective psychological tests conducted by Dr. Jorgensen suggest the defendant's profile is not consistent with that of a criminal offender. As such, defendant is not a future risk to the community in terms of criminal, violent, or assaultive behavior, given the terms of the exceptional sentence as suggested by the Department of Corrections.

Based on these findings, the court concluded:

2.1 Considering the purpose of RCW Ch. 9.94A, there are substantial and compelling reasons justifying the exceptional sentence.
2.2 The above findings provide ample substantial and compelling reasons for an exceptional sentence; however, the significant impairment of the defendant's capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law; by itself provides the requisite substantial and compelling reasons for a departure.

The court imposed an exceptional sentence of 12 months in work release, followed by 24 months of community supervision. The standard range was 41 to 54 months on each count.

Review of an exceptional sentence is governed by RCW 9.94A.210(4), which provides for a 3-step inquiry: (1) whether the reasons supplied by the sentencing judge are supported by the record, a factual determination that must be upheld absent a finding the reasons are clearly erroneous, State v. Nordby, 106 Wn.2d 514, 517-18, 723 P.2d 1117 (1986); (2) whether these reasons justify an exceptional sentence as a matter of law, Nordby, at 518; and (3) whether the sentencing judge abused his discretion by imposing a sentence that was "clearly excessive" or "clearly too lenient". RCW 9.94A.210(4)(b); State v. Oxborrow, 106 Wn.2d 525, 529-30, 723 P.2d 1123 (1986).

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Related

State v. Allert
815 P.2d 752 (Washington Supreme Court, 1991)
State v. Hobbs
801 P.2d 1028 (Court of Appeals of Washington, 1990)
State v. Sherman
801 P.2d 274 (Court of Appeals of Washington, 1990)

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Bluebook (online)
791 P.2d 932, 58 Wash. App. 200, 1990 Wash. App. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-allert-washctapp-1990.