Opinion
No. 57581-3-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for King County, No. 05-8-04462-6, Michael S. Spearman, J., entered January 4, 2006.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA.
Nielsen Broman Koch PLLC, Attorney at Law, Seattle, WA.
Andrew Peter Zinner, Nielsen, Broman Koch, PLLC, Seattle, WA.
Counsel for Respondent(s), Alexandra Keller, King County Prosecutors Office, Seattle, WA.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.
Alexandra Keller, King County Prosecutors Office, Seattle, WA.
Affirmed by unpublished per curiam opinion.
D.J. appeals his standard range disposition for first-degree robbery. He argues that the trial court erred in refusing to impose a manifest injustice disposition. We disagree and hold that the trial court neither refused to exercise its discretion nor rested its decision upon an impermissible basis. Therefore, the standard range disposition is not reviewable. We affirm.
D.J. was convicted of first-degree robbery on December 16, 2005, after a bench trial. He was 16 years old when he committed the offense. During the sentencing proceedings, the State recommended the standard range disposition of 103 to 129 weeks of confinement. D.J. requested that the trial court make a finding of manifest injustice under RCW 13.40.0357 and impose a disposition of 20 weeks of confinement. D.J. cited several statutory and non-statutory mitigating factors to support his request. The State conceded the existence of at least one of the mitigating factors, but argued that several aggravating factors existed, making an exceptional disposition inappropriate.
If a court concludes that a disposition within the standard sentencing range would "effectuate a manifest injustice," it may depart from the standard range. RCW 13.40.0357; RCW 13.40.160(2).
The trial court considered the parties' arguments and imposed the standard range disposition of 103 to 129 weeks. During his oral ruling, the judge explained his reasons for imposing the standard disposition. These included, among other things, D.J.'s recent pattern of "distressing behavior," his behavior during confinement, the violent nature of the crime, and a lack of acknowledgment of his participation in the crime. The court then made some comments that are the subject of this appeal. D.J. made an oral motion for reconsideration of the court's decision, which was denied.
D.J. appeals.
APPEAL OF A STANDARD RANGE DISPOSITION
Subject to limited exceptions, a disposition within the standard range under the Sentencing Reform Act is not appealable. Although a person may not appeal the sentencing decision itself, he or she may challenge the underlying factual and legal conclusions, such as the violation of a required procedure. More specifically, an appellate court may review a trial court's refusal to impose a disposition outside the standard range only if the trial court has refused to exercise discretion at all or has relied upon an impermissible basis in its decision. For example, a trial court's refusal to grant an exceptional disposition is reviewable if the court refused to exercise its discretion to depart from the standard range "because it erroneously believed it lacked the authority to do so." A remand is appropriate under those circumstances to allow the trial court to correctly exercise its discretion.
State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003).
State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002).
Id.
A remand is not appropriate, however, "when the reviewing court is confident that the trial court would impose the same sentence" once the error is corrected. Likewise, a court has exercised its discretion, and its decision is thus not reviewable, if it has "considered the facts and concluded there is no legal or factual basis for an exceptional sentence." In State v. McGill, remand was appropriate because the trial court erroneously believed it did not have the authority to depart from the standard range, and the trial court's comments indicated that it might do so if it knew it had such authority.
Id.
Id.
Id.
In D.J.'s case, the trial court stated during its oral ruling,
I think that if there was some sort of middle ground that I could find between the credit for time served [approximately 20 weeks] and probation and the 103 to 129 weeks I think that [D.J.] might be a good candidate for that. Because I do think he needs a period of time when he's under close supervision before he goes back into the community. And maybe 129 or 103 weeks is too much. But the law doesn't provide me with any sort of middle. I don't have the option from — it's either credit for time served and probation or 103 to 129 weeks.
Given these choices, I'm satisfied that the standard range is the appropriate sentence. It's the sentence that would provide [D.J.] with the necessary services that he needs to at least take the opportunity to rehabilitate himself. Provide him with the necessary supervision that he needs. And it also holds him accountable for his participation in this offense.
As I said, in many ways this was a difficult decision for me. I don't know that I have made the perfect decision, or even the right decision. But I think it's the best decision I could make under the circumstances. So, I will impose the standard range sentence of 103 to 129 weeks. . . .
Report of Proceedings (January 4, 2006) at 17-19 (emphasis added).
At the conclusion of the oral ruling, D.J.'s counsel informed the court, without legal citation, that the trial court had discretion to make a finding of manifest injustice and impose any disposition it thought appropriate under the circumstances. Counsel stated that the court could impose a disposition that followed neither the State's recommendation (the standard range) nor D.J.'s recommendation, but was somewhere in the middle. Counsel asked the court to reconsider its ruling. The court replied, "I'm not inclined to do that."
The court's initial comments suggest that the trial court believed it did not have the authority to impose a disposition in between the 20 weeks requested by D.J. and the standard range of 103 to 129 weeks. If the trial court actually believed this, it was an error. The court also made comments suggesting that it might impose a "middle ground" if it had the authority to do so. Despite these statements, there are crucial distinctions between this case and McGill. Here, D.J.'s counsel specifically corrected the trial judge's error. Yet after listening to the correct description of its authority, the court stated that it was "not inclined" to change its ruling. There is no evidence that the trial judge disbelieved counsel's statements. As explained in McGill, a remand would not be appropriate because we are confident that the trial court would reach the same decision if we were to remand the case.
See State v. Tauala, 54 Wn. App. 81, 86, 771 P.2d 1188 (1989) (stating the court has broad discretion to impose any sentence it chooses once it decides to depart from the standard range based on a manifest injustice finding).
In short, the trial court considered the facts and came to a reasoned decision that the standard sentencing range would be appropriate for D.J. Although the judge may have initially believed it had only two choices — 20 weeks or the standard range — D.J.'s counsel corrected this apparent error. After being enlightened, the trial court declined to change its ruling. This decision was not a refusal to exercise discretion at all or reliance on an impermissible basis. Therefore, the decision is not reviewable.
We affirm the trial court's disposition.
ELLINGTON and GROSSE, JJ., concur.