Appeal from Spokane Superior Court. Docket No: 02-1-00202-2. Date filed: 06/22/2012. Judge signing: Honorable Maryann C Moreno.
Steven Witchley (of Holmes & Witchley PLLC ), for appellant.
Steven J. Tucker, Prosecuting Attorney, and Mark E. Lindsey and Andrew J. Metts III, Deputies, for respondent.
AUTHOR: Stephen M. Brown, J. WE CONCUR: Teresa C. Kulik, J., George B. Fearing, J.
[178 Wn.App. 582] Brown,
¶ 1 In 2006, this court affirmed Jason A. Graham's attempted first degree murder, first degree assault, second degree assault, and first degree possession of stolen property convictions. See State v. Jones, noted at 136 Wn.App. 1009, 2006 WL
3479055, at *12 ( Graham I). Mr. Graham's sentence was partly based on several firearm enhancements even though the jury found deadly weapon enhancements. Id. Our Supreme Court accepted review solely regarding the imposition of the firearm enhancements. State v. Graham, 169 Wn.2d 1005, 234 P.3d 210 (2010) ( Graham II). The Supreme Court remanded the matter to this court for
reconsideration in light of a later decided case, State v. Williams-Walker, 167 Wn.2d 889, [178 Wn.App. 583] 225 P.3d 913 (2010). Under Williams-Walker, a sentencing court must impose a deadly weapon enhancement when the jury finds the defendant was armed with a deadly weapon even if the weapon was a firearm.
¶ 2 This court then remanded the matter to the trial court for resentencing consistent with Williams-Walker. State v. Graham, noted at 163 Wn.App. 1011, 2011 WL
3570120, at *3 ( Graham III). At resentencing the court corrected and reduced Mr. Graham's standard-range sentence from a total of 1,225.5 months to a total of 985.5 months after considering and reluctantly rejecting his multiple offense policy arguments under RCW 9.94A.589. Mr. Graham appealed his standard-range sentence, contending the court erred in denying his request for a mitigated exceptional sentence because it failed to apply multiple offense policy principles of RCW 9.94A.589(1)(a) to RCW 9.94A.589(1)(b).
¶ 3 We conclude the trial court correctly reasoned the multiple offense policy applies to RCW 9.94A.589(1)(a), but not to serious violent offenses sentenced under RCW 9.94A.589(1)(b). Additionally, in imposing Mr. Graham's standard-range sentence under RCW 9.94A.589(1)(b), the trial court properly exercised its discretion in rejecting his multiple offense arguments when reasoning the differences in his criminal behaviors were not nonexistent, trivial, or trifling. Accordingly, we affirm.
¶ 4 In January 2002, a police officer stopped Mr. Graham in downtown Spokane for speeding. Graham III, 2011 WL
3570120, at *1. Gunfire erupted, and Mr. Graham's car sped away. Eventually the car crashed, and Mr. Graham engaged in a gun battle with several officers. He was shot and arrested.
¶ 5 The State charged Mr. Graham with six counts of attempted first degree murder, one count of first degree [178 Wn.App. 584] assault, one count of unlawful possession of a firearm, one count of first degree possession of stolen property, and one count of taking a motor vehicle without permission. The trial court instructed the jury on the procedure for deciding the special verdicts regarding deadly weapon enhancements. Graham III, 2011 WL
3570120, at *1. The jury found Mr. Graham guilty of two counts of attempted first degree murder, four counts of first degree assault, one count of second degree assault, one count of unlawful possession of a firearm, one count of possession of stolen property, and one count of taking a motor vehicle without permission. The jury also found by special verdicts that Mr. Graham was armed with a deadly weapon in the commission of the attempted murder and assault offenses. Despite the jury's findings that Mr. Graham was armed with a ...