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Washington v. Stephens

January 10, 1991

THE STATE OF WASHINGTON, PETITIONER,
v.
LEROY C. STEPHENS, RESPONDENT



En Banc. Callow, C.j. Utter, Brachtenbach, Dolliver, Dore, Andersen, Durham, Smith, and Guy, JJ., concur.

Author: Callow

In December 1988, LeRoy Stephens pleaded guilty to eight counts of second degree burglary. His offender score, including present and prior convictions, was 19. At that time, the Sentencing Reform Act of 1981 (SRA) standard sentence range for second degree burglary with "9 or more" offender points was 43 to 57 months. Stephens was sentenced to eight concurrent 96-month sentences. The trial court made the following findings in support of the exceptional sentence:

I

There were [ sic ] a series of offenses involving multiple victims and property loss during a 2 week period of time.

II

The criminal history score for each offense is 19.

III

The defendant has exhibited a behavior pattern which makes him a danger to the community.

IV

The imposition of 43 to 57 month sentences for these offenses with the crimes for which he is being sentenced is clearly too lenient in light of the purposes set forth in RCW 9.94A.010.

On appeal, the Court of Appeals reversed the exceptional sentence, holding that it had been improperly based on factors already taken into account in determining the standard range, and remanded for resentencing. State v. Stephens, 57 Wash. App. 748, 790 P.2d 199 (1990). We granted review. We hold that an exceptional sentence above the standard SRA range may be justified when a defendant's multiple current convictions, combined with his high offender score, would otherwise result in there being no additional penalty for some of his crimes. We reverse the Court of Appeals and reinstate the sentence imposed by the trial court.

I

Standard of Review

[1] The standard of review of an exceptional sentence set forth in RCW 9.94A.210(4) was explicated by this court in State v. Fisher, 108 Wash. 2d 419, 739 P.2d 683 (1987), as follows:

In reviewing an exceptional sentence under the standards in subsection (a), the appellate court must conduct a 2-part analysis. First, it must decide if the record supports the sentencing judge's reasons for imposing the exceptional sentence. Because this is a factual question, the sentencing judge's reasons must be upheld if they are not clearly erroneous. State v. Nordby, 106 Wash. 2d 514, 517-18, 723 P.2d 1117 (1986). Under the second part of RCW 9.94A.210(4)(a), the appellate court must determine independently, as a matter of law, if the sentencing judge's reasons justify the imposition of a sentence outside the presumptive range. Nordby, at 518. The reasons must be "substantial and ...


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