State v. Friederich-Tibbets

853 P.2d 457, 70 Wash. App. 93, 1993 Wash. App. LEXIS 237

• Court: Court of Appeals of Washington
• Decided: May 24, 1993
• Docket: 29301-0-I
• Status: Published

Opinions

Webster, C.J.

Brian Friederich-Tibbets (Tibbets) appeals a trial court's decision denying his request for a "downward departure" from the standard range sentence imposed.

Facts

On July 22, 1991, Tibbets pleaded guilty to one count of possession of cocaine with intent to deliver in violation of RCW 69.50.401(a)(l)(i). The standard range was 26 to 34 months' imprisonment. The court imposed a 26-month sentence with 12 months' community placement.

At sentencing, held on September 27, 1991, the trial court made the following findings:

3. Immediately upon arrest, the defendant was completely remorseful and cooperative, giving a detailed and full confession. He exhibited genuine signs of remorse at sentencing.

4. The defendant's participation in this offense was as a middleman. He received $3,000 from an undercover officer posing as a buyer, delivered the money to a supplier of cocaine, and arranged for a meeting between the undercover officer and the supplier for purposes of a sale.

5. Since this offense, the defendant has matured and made substantial and significant changes in his life and lifestyle. He has completely turned his life around and is doing well in all aspects of his life.

7. For the last two years the defendant has maintained steady employment. He is very highly regarded by his employers.

8. Since this offense the defendant has remained crime free.

10. The defendant has successfully completed substance abuse treatment and has participated regularly in Alcoholics Anonymous. He has not used alcohol or controlled substances for almost two years. . . .

11. The most frugal use of the State's resources in this case would be a work release sentence in the King County Jail as recommended by the Department of Corrections. Such a sentence would allow the defendant to continue in a positive direction, maintain his job and family, and minimize the risk of reoffending over the long term.

12. A sentence within the standard range . . . would provide for a longer period of incarceration and would be more commensurate with the punishment imposed on others committing similar offenses and having similar criminal histories. However, such a sentence would result in the defendant's loss of employment, seriously disrupt the positive progress he has made, and increase the risk of his reoffending over the long term.

13. The balance of the above factors, considered as a whole and in light of all the general purposes of the Sentencing Reform Act, tips clearly in favor of the work release sentence recommended by the Department of Corrections. More probably than not, both the public and the defendant would benefit more from such a sentence.

Regardless of these findings, the trial court entered the following conclusion of law:

None of the above facts, alone or in combination, constitute substantial and compelling mitigating factors sufficient to justify an exceptional sentence below the standard range of 26-34 months.

The court, in explaining its reasoning dining the sentencing hearing, made the following comments:

Let me say at the outset that if I thought as a matter of law ... I had the discretion in this case to impose an exceptional sentence, I would.

. . . [However,] in order to justify an exceptional sentence, not only do I have to find that the standard range is inappropriate, hut there must he reasons and . . . those reasons must relate not to individual differences from one defendant or another, not to the fact that a defendant has had a drug problem or an alcohol problem and has addressed that problem or changed his life around.

(Italics ours.) The court continued:

[M]y conclusion is that none of these factors other than possibly the frugal use of the State's resources, which, again, does not relate to the nature of the crime or whether this is an exceptional example of this particular offense, . . . are . . .[,] as a matter of law[,] appropriate factors for the court to consider in granting an exceptional sentence.

[¶] owever, because I'm somewhat frustrated ... by this case . . . I'm going to do something which I have not done before, and that is, I'm going to make findings for purposes of the record.

Discussion

Tibbets claims the trial court erred when it held that the findings in this case were not, as a matter of law, the type of reasons under the Sentencing Reform Act of 1981 (SRA) that the court can consider for purposes of an exceptional sentence. We agree and, as the trial court has impliedly invited us to do, remand for resentencing.¹

RCW 9.94A.010 states that the SRA is designed to:

(I) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history;

(2) Promote respect to the law by providing punishment which is just;

(3) Be commensurate with the punishment imposed on others committing similar offenses;

(4) Protect the public;

(5) Offer the offender an opportunity to improve him or herself; and

(6) Make frugal use of the state's resources.

(Italics ours.) RCW 9.94A.010. In light of the Legislature's fifth and sixth stated purposes of the SRA, we find that the trial court erroneously concluded that it did not, as a matter of law, have discretion to find there were substantial and compelling reasons to impose an exceptional sentence downward.

Here, the trial court found that Tibbets had "completely turned his life around" by making "substantial and significant changes in his ... lifestyle", maintained steady employment for 2 years, and successfully completed alcohol and substance abuse treatment. As the trial court found, a sentence within, the standard range would result in Tibbets' loss of employment, disrupt the positive progress he has made, and increase the risk of his reoffending over the long term. Incarceration would not only sever Tibbets' ties to the conventional world but further increase his chances of becoming entrenched in deviant lifestyles and values. A work release sentence, as recommended by the Department of Corrections, would both allow Tibbets an opportunity to improve himself and make frugal use of the State's resources.

in addition, the drafters of the SRA, in listing the stated purposes, noted that the statute "does not eliminate . . . discretionary decisions affecting sentences". RCW 9.94A.010. This is in line with the numerous federal court decisions which have held that the federal SRA was not meant to completely abolish the trial court's discretion in regards to downward departures. E.g., United States v. Rogers, 972 F.2d 489 (2d Cir. 1992). Furthermore, RCW 9.94A.390, which sets out "illustrative factors" constituting mitigating circumstances for a downward departure, states that "[the examples] are illustrative only and are not intended to be exclusive reasons for exceptional sentences." RCW 9.94A.390. If a downward departure pursuant to the fifth and sixth purposes of the statute is not applicable here (i.e., to allow Tibbets an opportunity to improve himself and to make frugal use of the State's resources), it is hard to imagine a situation where they would be, and their presence in the statute would be superfluous. Under the facts of this case, these reasons are adequate considerations to justify a downward departure from the standard range sentence. To affirm the trial court's decision sentencing Tibbets to a jail term when it has been proved that he is rehabilitated, working in society, employed, and married while responsibly raising a family would frustrate the goals of the SRA. ²

The case is remanded to the sentencing court for proceedings consistent with this opinion.

Kennedy, J., concurs.

1 Tibbets claims, and we agree, that despite the general rule that a "sentence within the standard range . . . shall not be appealed” (RCW 9.94A.210(1)), State v. Ammons, 105 Wn.2d 175, 182-83, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986) and State v. Ward, 49 Wn. App. 427, 429-30, 743 P.2d 853 (1987) allow for such in this case. Here, as in Ward, we are asked to review a possible procedural error: whether the trial court erred in finding it could not, as a matter of law, impose an exceptional sentence downward. In addition, the federal courts have recognized that a district court's refusal to grant a downward departure is reviewable if, as is the case here, it is made under the mistaken conclusion that, as a matter of law, the court did not have the authority to depart. United States v. Rogers, 972 F.2d 489, 492 (2d Cir. 1992); United States v. Califano, 978 F.2d 65 (2d Cir. 1992); accord, United States v. Brown, 985 F.2d 478 (9th Cir. 1993).

2 We also note that there is no authority supporting the trial court's finding that departure is warranted only if objective factors common to the crime (as opposed to subjective factors relative to a particular defendant) are present. In fact, the statutory authority (RCW 9.94A.390) and the federal authority (e.g., Rogers) are inapposite, and the former clearly states that the factors listed are not exclusive.