State v. Alvarado

192 P.3d 345
CourtWashington Supreme Court
DecidedSeptember 18, 2008
Docket81069-9
StatusPublished
Cited by238 cases

This text of 192 P.3d 345 (State v. Alvarado) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alvarado, 192 P.3d 345 (Wash. 2008).

Opinion

192 P.3d 345 (2008)

STATE of Washington, Respondent,
v.
Alexander Hill ALVARADO, Appellant.

No. 81069-9.

Supreme Court of Washington, En Banc.

Argued May 20, 2008.
Decided September 18, 2008.

*346 Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Hilary A. Thomas, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondent.

STEPHENS, J.

¶ 1 Alexander Alvarado seeks reversal of his exceptional sentence for residential burglary. Alvarado was convicted at trial of multiple crimes and had a high criminal offender score. Concluding that some of his current offenses would otherwise go unpunished within the meaning of RCW 9.94A.535(2)(c), the trial court imposed an exceptional sentence of 120 months for count I residential burglary to run concurrently with the standard range sentences on the remaining counts. We hold that the trial court properly applied RCW 9.94A.535(2)(c) in concluding that some of Alvarado's offenses would go unpunished absent the exceptional sentence and that application of the statute in this case did not violate Alvarado's Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, we affirm.

FACTS

¶ 2 In 2006, Alvarado was charged with six felonies and two gross misdemeanors. Alvarado's charged felonies included two counts of residential burglary (counts I and V), one *347 count of first degree theft (count II), two counts of first degree possession of stolen property (counts III and IV), and one count of second degree possession of stolen property (count VI). Alvarado's charged misdemeanors included unlawful possession of marijuana and unlawful possession of a dangerous weapon. In December 2006, at trial, the jury found him guilty as charged.

¶ 3 Prior to sentencing, the State filed a memorandum and notice of intent to seek an exceptional sentence against Alvarado. During sentencing, the deputy prosecutor determined that Alvarado's offender score was 21 based upon his current crimes and prior lengthy criminal history. The trial court imposed standard range sentences on counts II (57 months), III (57 months), IV (57 months), V (84 months), VI (29 months), VII (90 days), and VIII (365 days). Relying on RCW 9.94A.535(2)(c), the trial court imposed an exceptional sentence on count I (residential burglary) of 120 months' imprisonment and held that the exceptional sentence was to run concurrently with the other counts.[1]

¶ 4 The trial court remarked that an exceptional sentence was appropriate because Alvarado had committed multiple current offenses and his offender score was the highest that the trial judge had seen in 14 years. Sentencing Alvarado within the standard range, the trial court concluded, would have resulted in five current offenses going unpunished.

¶ 5 Alvarado appealed the exceptional sentence to Division One of the Court of Appeals. On January 11, 2008, the Court of Appeals transferred the appeal to this court under RAP 4.4 to promote the orderly administration of justice.

ANALYSIS

¶ 6 An appellate court analyzes the appropriateness of an exceptional sentence by asking: (1) Are the reasons given by the sentencing judge supported by the record under the clearly erroneous standard? (2) Do the reasons justify a departure from the standard range under the de novo review standard? and (3) Is the sentence clearly too excessive or too lenient under the abuse of discretion standard? State v. Law, 154 Wash.2d 85, 93, 110 P.3d 717 (2005) (quoting State v. Ha'mim, 132 Wash.2d 834, 840, 940 P.2d 633 (1997)); RCW 9.94A.585(4).

¶ 7 RCW 9.94A.535 states in relevant part:

The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.

RCW 9.94A.535(2)(c) states when an exceptional sentence may be imposed by a court without findings of fact by a jury:

The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
....
(c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.

A defendant's standard range sentence reaches its maximum limit at an offender score of nine. RCW 9.94A.510.

¶ 8 Alvarado contends that the trial court erroneously misinterpreted the meaning of the word "unpunished" under RCW 9.94A.535(2)(c) because State v. Womac, 160 Wash.2d 643, 657-58, 160 P.3d 40 (2007), held that punishment is merely the fact of conviction. Thus, because Alvarado was punished by the fact of his convictions on counts II-VIII, he contends the trial court erroneously imposed an exceptional sentence under RCW 9.94A.535(2)(c). We reject this argument.

¶ 9 We review issues of statutory interpretation de novo. Tingey v. Haisch, 159 Wash.2d 652, 657, 152 P.3d 1020 (2007). Our purpose when interpreting a statute is to determine and enforce the intent of the legislature. City of Spokane v. Spokane County, 158 Wash.2d 661, 673, 146 P.3d 893 (2006). Where the meaning of statutory language is *348 plain on its face, we must give effect to that plain meaning as an expression of legislative intent. Id.; see also Koenig v. City of Des Moines, 158 Wash.2d 173, 181, 142 P.3d 162 (2006) (holding that plain language does not require construction). In discerning the plain meaning of a provision, we consider the entire statute in which the provision is found, as well as related statutes or other provisions in the same act that disclose legislative intent. City of Spokane,

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Bluebook (online)
192 P.3d 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alvarado-wash-2008.