Appeal from Superior Court of Whatcom County. Docket No: 95-1-00524-4. Date filed: 10/11/95. Judge signing: Hon. Michael F. Moynihan.
Authored by C. Kenneth Grosse. Concurring: Faye C. Kennedy, Susan R. Agid.
The opinion of the court was delivered by: Grosse
GROSSE, J. -- The statutory phrase "more onerous than typical" contained in the Sentencing Reform Act of 1981's provisions for exceptional sentences involving major drug offenses does no more than amplify the required Conclusion that an offense is "major." We believe the Legislature intended the statute to read as the Supreme Court has paraphrased it: " drug trafficking offense which is a 'major violation . . . more onerous than the typical offense of its statutory definition' is an aggravating factor warranting the imposition of an exceptional sentence." *fn1 Therefore, in these two appeals, we affirm the trial courts' Conclusions that because each involved one or more statutory aggravating factors the crimes were major drug offenses more onerous than typical and justified an exceptional sentence.
Foster was convicted of possession with intent to deliver after he participated in a controlled buy of cocaine and the police subsequently discovered in his room approximately 13 ounces of cocaine divided into small packages, weighing from 100 grams to one ounce. The police found a large amount of cash, $14,455, which Foster admitted he obtained partially from drug sales, and they also found indicia of drug distribution--scales, a cutting agent, baggies, a pan, and a razor. The trial court imposed an exceptional sentence of 42 months after finding that Foster possessed a quantity of cocaine substantially larger than for personal use and finding that he held a high position in the drug distribution hierarchy, as evidenced by his use of a middleman. Foster had a zero offender score and the standard range was 21 to 27 months, with a statutory maximum of 10 years.
Hrycenko was convicted of possession of marijuana with intent to deliver after attempting to transport four pounds of marijuana, divided into nine bundles, across the United States-Canada border. He admitted to knowingly transporting the drugs for delivery in Seattle. The court imposed an exceptional sentence of 12 months after finding that the attempted transfer involved drug quantities substantially larger than for personal use and finding that the crime involved a broad geographic area.
The court concluded that "the current offense was a major violation of the Uniform Controlled Substances Act relating to the trafficking in controlled substances, more onerous than the typical offense of its statutory definition." Hrycenko had an offender score of zero and the standard range was one to three months, with a maximum of five years.
Former RCW 9.94A.390 *fn2 allows a court to impose an exceptional sentence:
If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A.120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4).
The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
(2) Aggravating Circumstances
(d) The current offense was a major violation of the Uniform Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to trafficking in controlled substances, which was more onerous than the typical offense of its statutory definition: The presence of ANY of the following may identify a current offense as a major VUCSA:
(i) The current offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; or
(ii) The current offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially ...