Opinion
No. 36598-7-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-05449-2, Linda CJ Lee, J., entered June 27, 2007.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Houghton, J.
The State of Washington appeals an exceptional sentence downward imposed by the Pierce County Superior Court following Joe Berlanga's pleas of guilty to possession of cocaine with intent to deliver (count I) and second degree unlawful possession of a firearm (count II). The court imposed 12 months on electronic home monitoring (EHM). The State contends that there is no basis for an exceptional sentence and EHM is precluded because of Berlanga's drug offense.
At sentencing, Berlanga asked for home detention. He presented evidence that he suffers from complications of a second liver transplant. These include the need for quarterly surgery to clear obstructions in his digestive system. In addition, he must take immunosuppression medications on a daily basis, making him vulnerable to viruses and diseases.
The standard ranges for Berlanga's crimes were 12 months plus one day to 20 months for count I and 3 to 8 months for count II. The State recommended the low end of both ranges. The trial court imposed concurrent sentences of 12 months and 8 months and provided that they be served on EHM. It based this sentence on the following findings:
II.
The mitigating factor of a medical condition (liver failure and other gastrointestinal problems) is applicable to Counts I and II. The evidence of this mitigating factor is the documents provided to the court regarding the defendant's medical condition and continuing need for multiple surgeries over an extended period of time. The legislature did not consider this factor in determining the standard range.
III.
Because of the presence of the above mitigating factor, and considering the purposes of the Sentencing Reform Act, sentencing with the standard range is not an appropriate sentence.
Clerk's Papers at 56.
It is true, as the State asserts, that RCW 9.94A.734(1)(c) prohibits the imposition of EHM for offenders convicted of any drug crime. Berlanga's medical condition does not exempt him from this prohibition. See former RCW 9.94A.734(3)(c) (2003); State v. Fuller, 89 Wn. App. 136, 141, 947 P.2d 1281 (1997).
However, the commission of a drug offense does not preclude an exceptional sentence downward. See State v. Fitch, 78 Wn. App. 546, 552-53, 897 P.2d 424 (1995). If an exceptional sentence is appropriate, the trial court has substantial discretion in determining the duration and could, in an appropriate case, impose no full-time incarceration. See State v. Smith, 124 Wn. App. 417, 436-38, 102 P.2d 158 (2004), aff'd, 159 Wn.2d 778, 154 P.3d 873 (2007). Thus, it would seem that, if an exceptional sentence is appropriate here, the trial court would surely have the discretion to impose EHM.
In reviewing that sentence, we will reverse only if (1) the trial court's reasons for imposing the sentence are not supported by the record, (2) as a matter of law, those reasons do not justify an exceptional sentence, or (3) the sentence imposed is clearly excessive or clearly too lenient. RCW 9.94A.585(4).
The record clearly supports the finding that Berlanga has a health-related condition that would be difficult to treat in prison and would jeopardize his health and possibly the health of those with whom he came in contact. The only question is does the law preclude reliance on that condition as a mitigating factor. Mitigating factors must relate to the crime committed and distinguish it from other crimes of the same statutory category. State v. Law, 154 Wn.2d 85, 98, 110 P.3d 717 (2005). In addition, because the presumptive sentence ranges represent the legislative judgment as to how the purposes of the Sentencing Reform Act can best be served, those purposes, in and of themselves, cannot be mitigating factors. See State v. Murray, 128 Wn. App. 718, 724, 116 P.3d 1072 (2005); State v. Kinneman, 120 Wn. App. 327, 347, 84 P.3d 882 (2003), review denied, 152 Wn.2d 1022 (2004).
Mitigating factors must relate to the crime and the only bases provided by the superior court for the exceptional sentence relate to the defendant, not the crime. Such characteristics may be relevant in making a decision involving prosecutorial discretion or an executive decision regarding clemency or pardon, but they are not considerations the legislature has allowed judicial officers. Therefore, under a plain reading of the law, they are legally insufficient to support an exceptional sentence downwards. Accordingly, we are compelled to remand for resentencing.
On remand, the court may consider whether other circumstances, which relate to the circumstances of the crime and are supported by the record, constitute legally cognizable mitigating factors. See Murray, 128 Wn. App. at 725-26; State v. Modest, 88 Wn. App. 239, 253, 944 P.2d 417 (1997), review denied, 134 Wn.2d 1017 (1998).
The sentence is vacated and this matter is remanded for resentencing in a manner consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, C.J., concur.