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State v. Graham

Supreme Court of Washington, En Banc

November 13, 2014

The State of Washington, Respondent ,
v.
Jason Allen Graham, Petitioner

Argued October 2, 2014

Steven Witchley (of Holmes & Witchley PLLC ), for petitioner.

Steven J. Tucker, Prosecuting Attorney, and Mark E. Lindsey and Andrew J. Metts III, Deputies, for respondent.

WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud.

OPINION

Page 320

 Mary I. Yu, J.

[181 Wn.2d 880] [¶ 1] The issue in this case is whether a sentencing court may impose an exceptional sentence downward if the judge finds the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purposes of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We need look only to the plain language of the SRA to conclude the sentencing court has such discretion.

Facts and Procedural History

[¶2] This case results from Jason Allen Graham's methamphetamine-induced shooting spree in January 2002. At about 1:00 a.m., a police officer stopped the vehicle Graham was driving. Over the next several minutes, Graham used an AK-47 to fire at six different police officers during a foot chase through downtown Spokane. Fortunately, he was the only person physically injured in the incident. Graham was convicted by a jury in 2003 of 10 offenses, including 6 " serious violent offenses" for sentencing purposes under the SRA. RCW 9.94A.030(45). He received an aggregate sentence of 1,225.5 months, the result of an increased [181 Wn.2d 881] offender score and consecutive sentences in accordance with RCW 9.94A.589(1)(b), in addition to several firearm enhancements.

[¶3] The Court of Appeals affirmed the original judgment and sentence, but we granted review and remanded to the Court of Appeals to reconsider the firearm enhancements in light of State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010). State v. Graham, 169 Wn.2d 1005, 234 P.3d 210 (2010). On reconsideration, the Court of Appeals vacated Graham's sentence and remanded for resentencing. State v. Graham, noted at 163 Wn.App. 1011 (2011), review denied, 173 Wn.2d 1011 (2012).

[¶4] At resentencing Graham asked for an exceptional sentence downward of 25 years. He argued RCW 9.94A.535(1)(g)--the " multiple offense policy" mitigating factor--permitted

Page 321

both a departure from the standard range and imposition of concurrent sentences. The original sentencing judge expressed regret at the presumptive sentencing range for Graham's serious violent offenses. The judge stated on the record that there was no authority to impose an exceptional sentence:

And quite frankly, in my mind [the presumptive sentence is] an awful lot of time for this. ...
... I don't agree with this sentence. I don't agree with it. I'm not suggesting that you don't deserve a punishment. ... But without some other mitigating circumstance, my hands are tied. Again, I don't write the laws; the legislature writes the laws. And this type of a scenario was something that was anticipated by the law-writers when they wrote the law. So I don't believe that I have a choice but to sentence you within the standard sentence range. It is going to be a low-end sentence, however.

Verbatim Report of Proceedings at 28-29. The judge imposed a sentence at the low end of the standard range for each serious violent offense to run consecutively, for a total sentence of 82.1 years. Graham again appealed his sentence, and the Court of Appeals affirmed. State v. Graham, 178 Wn.App. 580, 314 P.3d 1148 (2013). We granted review [181 Wn.2d 882] to determine whether RCW 9.94A.535(1)(g) permits exceptional sentences for multiple ...


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