Appeal from Superior Court of King County. Docket No: 95-1-04704-8. Date filed: 11/06/95. Judge signing: Hon. Donald Haley.
Authored by Ronald E. Cox. Concurring: C. Kenneth Grosse, Ann L. Ellington.
The opinion of the court was delivered by: Cox
COX, J. -- David Lee Long appeals his exceptional sentence above the standard range for possession of methamphetamine with intent to deliver. His sentence was based on the statutory aggravating factor in former RCW 9.94A.390(2)(d)(ii). That factor targets sale or attempted sale of a controlled substance in an amount substantially larger than for personal use. The record supports the trial court's finding that he attempted to sell an amount substantially larger than for personal use, and that finding justifies an exceptional sentence as a matter of law. Moreover his sentence was not clearly excessive, and the statutory aggravating factor is not unconstitutionally vague as applied in this case. Finally, the factor does not violate the state and federal equal protection clauses. Accordingly, we affirm.
In June 1995, Seattle Police Detective Carl Moore received a telephone call from a Raymond Anderson, a confidential informant with whom Moore had worked in the past. Anderson and Detective Moore arranged for sale of five pounds of methamphetamine for $40,000 to undercover officers.
Later that day, Detective Moore and several other officers rented two adjacent rooms at a Seattle motel. In one of the rooms, they set up video and audio surveillance of the other. Detective Todd Jakobsen waited for Long and Anderson in the room under surveillance. Long and Anderson, carrying Long's duffel bag, arrived shortly thereafter. After introducing Long to Jakobsen, Anderson went into the bathroom. When Jakobsen questioned Long regarding the drug sale, Long removed three packages from the duffel bag. Viewing the packages, Jakobsen disputed that they contained the 2.5 kilograms that he had agreed to purchase for $40,000. Jakobsen stated that it looked like about one kilogram. Long insisted that the entire agreed amount was there. Jakobsen then signaled the officers in the adjacent room. They entered the room and arrested Long.
The State charged Long with one count of possession of methamphetamine with intent to deliver. Long waived his right to a jury trial, and the trial court convicted him as charged. The court entered an exceptional sentence of 36 months' imprisonment, nine months longer than the top of the standard range of 21 to 27 months. Long appeals.
Long argues that the trial court erred by imposing an exceptional sentence based on the amount of methamphetamine involved in the transaction. We disagree.
A trial court may impose a sentence outside the standard range if it finds "substantial and compelling reasons" to do so. *fn1 An exceptional sentence may be reversed only if (1) the trial court's reasons for imposing the exceptional 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. *fn2 We apply the clearly erroneous standard when reviewing the trial court's findings under the first prong of the test. *fn3 A finding of fact is clearly erroneous only if no substantial evidence supports it. *fn4 The second prong, whether factual findings justify an exceptional sentence, is a legal issue we review de novo. *fn5 The Grewe test governs this inquiry: first, whether the Legislature necessarily considered the aggravating factor in establishing the standard sentencing range; and second, whether the aggravating factor is sufficiently substantial and compelling to distinguish the crime in question from others in the same category. *fn6 Finally, we review the length of an exceptional sentence for abuse of discretion. *fn7 "A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds." *fn8 Long challenges his sentence under all three prongs of this test.
Long first claims that the trial court erred by entering as an undisputed finding that the drug sale involved 1,100 grams of methamphetamine because the record did not support that amount. We reject this contention.
The trial court's findings of fact and Conclusions of law on the bench trial state that the parties stipulated that Long delivered 1,100 grams of methamphetamine. The record demonstrates that Long stipulated to admission of the report from the Washington State Patrol's Crime Laboratory. That report states that the lab received three sealed evidence envelopes and examined one, which contained three heat-sealed bags. The lab opened one of the packages and found methamphetamine weighing 122 grams. The report contains no measurement of the total amount of methamphetamine. Therefore, as Long argues, the record does not reflect that he stipulated that the different packages aggregated to 1,100 grams.
But Long testified at trial that he agreed to sell what he believed was two kilograms. Detective Moore, who arranged the sale with Long's friend Anderson, testified that the agreed amount was five pounds for $40,000. Detective Jakobsen stated that when he saw the drugs in the motel room, he claimed that there was only one kilogram, but Long insisted that the entire agreed amount was present. Therefore, there was no dispute that Long attempted to deliver a large amount of methamphetamine.
This court has stated that an erroneous finding of fact that does not materially affect the Conclusions of law is harmless error. *fn9 Here, the trial court based its exceptional sentence on former RCW 9.94A.390(2)(d)(ii), which identifies as a major violation "an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use." The testimony at trial indicated that the methamphetamine weighed at least a kilogram, if not more, and the trial court so found in its oral findings. Whether the amount was one kilogram ...