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State v. McFarland

Supreme Court of Washington, En Banc

August 3, 2017


          STEPHENS, J.

          A jury convicted Cecily Zorada McFarland of first degree burglary, 10 counts of theft of a firearm, and 3 counts of unlawful possession of a firearm. The trial court imposed standard range sentences on each count and, relying on RCW 9.41.040(6) and 9.94A.589(1)(c), ordered that the firearm-related sentences be served concurrently as to the burglary sentence but consecutively as to each other. This resulted in a total sentence of 237 months (19 years, 9 months).

         McFarland appealed, arguing for the first time that the sentencing court erred by failing to recognize its discretion to impose an exceptional mitigated sentence by running the firearm-related sentences concurrently based on the rationale of In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). The Court of Appeals refused to consider this issue, noting that the sentencing judge "cannot have erred for failing to do something he was never asked to do." State v. McFarland, No. 32873-2-III, slip op. at 16 (Wash.Ct.App. Mar. 8, 2016) (unpublished), The court also rejected McFarland's claim of ineffective assistance of defense counsel due to "the lack of any history of other counsel successfully making a similar argument." Id. at 18.

         Today, we answer the question the appeals court's opinion left unresolved. We conclude that the statutory analysis supporting our decision in Mulholland, which involved sentencing for multiple serious violent felonies under subsection (1)(b) of RCW 9.94A.589, applies equally to sentencing for multiple firearm-related offenses under subsection (1)(c). We remand for resentencing to allow the trial court the opportunity to consider whether to impose a mitigated sentence by running McFarland's 13 firearm-related sentences concurrently.


         McFarland and her boyfriend stole firearms, ammunition, checkbooks, alcohol, and electronics from the home of Fred and Loretta Legault while Loretta was not home and Fred was sleeping. The Legaults are the parents of McFarland's former boyfriend, and McFarland became a prime suspect after she texted her former boyfriend during the burglary to tell him she was in his mother's house. At trial, a jury convicted McFarland as charged of first degree burglary as an accomplice, 10 counts of theft of a firearm as an accomplice, and 3 counts of second degree unlawful possession of a firearm.[1]

         At sentencing, the State contended that the sentences for all of McFarland's firearm-related convictions must run consecutively to each other pursuant to RCW 9.41.040(6) and 9.94A.589(1)(c). Defense counsel agreed with the State as to running the firearm-related sentences consecutively, but requested sentences at the bottom of the standard range. Defense counsel expressed concern about the overall sentence length, noting that "if [McFarland] had been found guilty of stealing toasters instead of firearms she'd be looking at a range of nine to twelve months' confinement, versus 237 months['] to 306 months['] confinement. So, -- there's a certain degree of- lack of proportionality in the -- in the punishment based on the consecutive sentences that are required by the legislature." Verbatim Tr. of Proceedings (VTP) (Oct. 27, 2014) at 23-24. The trial judge responded, "237 months is -just a little shy of 20 years, which is what people typically get for murder in the second degree, " and defense counsel commented, "I think that's a fairly apt analogy." Id. at 24. Nonetheless, defense counsel did not request and the sentencing court did not consider imposing an exceptional sentence downward by running the firearm-related sentences concurrently. The court said, "I don't have -- apparently [I] don't have much discretion, here. Given the fact that these charges are going to be stacked one on top of another, I don't think -- I don't think [the] high end is called for, here." Id. at 25. The court accepted defense counsel's recommendation to impose sentences at the bottom of the standard range for each of the firearm-related convictions and entered a total sentence of 237 months (19 years and 9 months). Id. at 25-26.

         McFarland appealed, contending the trial court erred by not running her firearm-related sentences concurrently as an exceptional sentence on the mistaken belief it could not do so. In the alternative, McFarland contended that trial counsel was ineffective for failing to request concurrent sentencing as an exceptional sentence. The Court of Appeals affirmed.

         This court granted McFarland's petition for review. State v. McFarland, 186 Wn.2d 1001, 380 P.3d 438 (2016).[2]


         The Sentencing Reform Act of 1981 (SRA) is an attempt to "make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders." RCW 9.94A.010. Among its many objectives, the SRA seeks to "[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history" and "commensurate with the punishment imposed on others committing similar offenses." RCW 9.94A.010(1), (3). The SRA operates to provide structure to sentencing, "but does not eliminate [] discretionary decisions affecting [offender] sentences." RCW 9.94.010. Consistent with the SRA, a court "may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of [the SRA], that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535.

         Multiple sentencing statutes apply to McFarland's firearm-related convictions. Washington's firearms and dangerous weapons statute provides in relevant part that "[n]otwithstanding any other law, " if an offender is convicted of either unlawful possession of a firearm in the first or second degree, or for the felony crime of theft of a firearm, or both, "then the offender shall serve consecutive sentences for each of the felony crimes of conviction." RCW 9.41.040(6). The multiple offense subsection of the SRA provides in relevant part that if an offender is convicted under RCW 9.41.040, "[t]he offender shall serve consecutive sentences for each conviction of the felony crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed." RCW 9.94A.589(1)(c). From these statutes, lower courts have concluded that the standard sentences for multiple firearm-related convictions must be served consecutively. State v. McReynolds, 117 Wn.App. 309, 342-43, 71 P.3d 663 (2003) (noting that RCW 9.41.040(6) "clearly and unambiguously prohibits concurrent sentences" for firearm-related crimes); State v. Murphy, 98 Wn.App. 42, 49, 988 P.2d 1018 (1999).

         In Mulholland, we recognized that "notwithstanding the language of [RCW 9.94A.589(1)(b)], a sentencing court may order that multiple sentences for serious violent offenses run concurrently as an exceptional sentence if it finds there are mitigating factors justifying such a sentence." 161 Wn.2d at 327-28 (emphasis added). The question in this case is whether the rationale of Mulholland applies equally to sentencing under RCW 9.94A.589(1)(c). For the reasons that follow, we conclude it does.

         I. RCW 9.94A.535 Authorizes Concurrent Sentencing as an Exceptional Sentence for Multiple Firearm Convictions under RCW 9.94.589(1)(c)

         This court in Mulholland recognized the authority of a sentencing court to impose an exceptional downward sentence for serious violent offenses by running presumptively consecutive sentences under RCW 9.94A.589(1)(b) concurrently pursuant to RCW 9.94A.535. In the course of our analysis, we noted that section .535 "does not differentiate between subsections (1)(a) and (1)(b) [of RCW 9.94A.589]." Mulholland, 161 Wn.2d at 329-30; see also State v. Graham, 181 Wn.2d 878, 884, 337 P.3d 319 (2014) (noting there is no "legal basis to reject or depart from [this court's] prior interpretation" that RCW 9.94A.535 does not differentiate between subsections (1)(a) and (1)(b) of RCW 9.94A.589). While Mulholland involved serious violent offenses under 9.94A.589(1)(b) and not firearm-related sentences under RCW 9.94A.589(1)(c), we find no statutory basis to distinguish between the consecutive sentencing language in these two subsections. Both are plainly encompassed within "the multiple offense policy of RCW 9.94A.589." RCW 9.94A.535(1)(g). There is no provision prohibiting exceptional sentences for firearm-related convictions generally, and "[a] departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence." RCW 9.94A.535; see Graham, 181 Wn.2d at 884. There is thus nothing in the SRA precluding concurrent exceptional sentences for firearm-related convictions.

         We recognize that unlike serious violent offenses, firearm-related offenses are also subject to RCW 9.41.040(6), which provides for consecutive sentencing "[notwithstanding any other law." We must determine whether this difference precludes extending the rationale of Mulholland. It is certainly possible to interpret the "[notwithstanding any other law" language to allow only a reduced amount of time on each count, rather than concurrent sentencing as an exceptional sentence. McFarland, slip op. at 18. But, this would mean that instead of running multiple sentences concurrently, a court could simply reduce the term for each consecutive sentence and impose precisely the same term of total confinement, effectively achieving a concurrent sentence in fact that was not allowed by law. Graham, 181 Wn.2d at 886. We must consult legislative history to resolve the ambiguity created by such an apparently anomalous result. Id. at 882.

         RCW 9.41.040(6) was originally enacted as part of the Hard Time for Armed Crime Act, which the people brought to the legislature as an initiative in 1995. State v. Broadaway, 133 Wn.2d 118, 124, 942 P.2d 363 (1997). Its relevant language has not changed since that time. The title of the act states that its purpose is '"increasing penalties for armed crimes.'" Id. (quoting Laws of 1995, ch. 129). The findings and intent are also all clearly aimed at singling out firearm-related offenses for presumptively harsh penalties. Laws of 1995, ch. 129, § 1. There is no question that the intent was to provide harsher standard range sentences, including presumptively consecutive sentences, for firearm-related crimes. However, the act does not preclude exceptional sentences downward.

         The precursor to RCW 9.94A.589(1)(c) was first enacted in 1998, and its language regarding consecutive sentencing has not changed. Laws of 1998, ch. 235, §2(1)(c); State v. Haggin, 195 Wn.App. 315, 323, 381 P.3d 137 (2016). The primary purpose was to reverse the holding in In re Post Sentencing Review of Charles, 135 Wn.2d 239, 955 P.2d 798 (1998), ensuring that firearm-related enhancements be served consecutively. State v. Conover, 183 Wn.2d 706, 714, 355 P.3d 1093 (2015). However, a clear effect of the enactment was to bring sentences for firearm-related convictions within "the multiple offense policy of RCW 9.94A.589." RCW 9.94A.535(1)(g). Moreover, the legislature has not taken any steps since Mulholland to restrict its holding to particular portions of RCW 9.94A.589(1), and its reasoning plainly encompasses both (1)(b) and (1)(c). Because RCW 9.94A.589(1)(c) was enacted later and "[w]e presume the Legislature is aware of its prior enactments and judicial construction of them, " our interpretation of RCW 9.94A.589(1)(c) controls.[3] State v. McCraw, 127 Wn.2d 281, 295, 898 P.2d 838 (1995) (Talmadge, J., dissenting) (citing Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d71(1984)).

         Building on the logic of Mulholland, we hold that in a case in which standard range consecutive sentencing for multiple firearm-related convictions "results in a presumptive sentence that is clearly excessive in light of the purpose of [the SRA], " a sentencing court has discretion to impose an exceptional, mitigated sentence by imposing concurrent firearm-related sentences. RCW 9.94A.535(1)(g).

         II. Resentencing Is Appropriate

         McFarland seeks resentencing. She contends the trial court declined to consider running her firearm-related sentences concurrently as an exceptional sentence because it erroneously believed it could not do so. In the alternative, she contends that trial counsel was ineffective for failing to request concurrent exceptional sentencing. Following Mulholland, we conclude that McFarland should be resentenced because the sentencing court erroneously believed it could not impose concurrent sentences, and the record demonstrates that it might have done so had it recognized its discretion under RCW 9.94A.535.

         When a trial court is called on to make a discretionary sentencing decision, the court must meaningfully consider the request in accordance with the applicable law. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). While no defendant is entitled to challenge a sentence within the standard range, this rule does not preclude a defendant from challenging on appeal the underlying legal determinations by which the sentencing court reaches its decision; every defendant is entitled to have an exceptional sentence actually considered. State v. Garcia-Martinez, 88 Wn.App. 322, 330, 944 P.2d 1104 (1997). A discretionary sentence within the standard range is reviewable in '"circumstances where the court has refused to exercise discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range.'" State v. McGill, 112 Wn.App. 95, 100, 47 P.3d 173 (2002) (quoting Garcia-Martinez, 88 Wn.App. at 330). A trial court errs when "it refuses categorically to impose an exceptional sentence below the standard range under any circumstances" or when it operates under the "mistaken belief that it did not have the discretion to impose a mitigated exceptional sentence for which [a defendant] may have been eligible." Garcia-Martinez, 88 Wn.App. at 330; Mulholland, 161 Wn.2d at 333. As noted above, the Court of Appeals determined that McFarland was not entitled to resentencing unless she demonstrated ineffective assistance of trial counsel to request a mitigated sentence pursuant to Mulholland. McFarland, slip op. at 17-18. Rather than request a downward departure from the standard range as an exceptional sentence, McFarland's counsel merely expressed concern for the harshness of the punishment. He otherwise agreed with the State that the sentencing court was required to impose consecutive sentences on the firearm-related charges, so the sentencing court was never advised of its discretion to impose concurrent sentences as a mitigated exceptional sentence. The Court of Appeals concluded that the sentencing court committed no error given the arguments raised, and that defense counsel's performance was not deficient "[i]n light of the lack of any history of other counsel successfully" arguing to extend Mulholland' to multiple firearm-related offenses. Id. at 18.

         What the Court of Appeals did not consider is the authority of an appellate court to address arguments belatedly raised when necessary to produce a just resolution. Proportionality and consistency in sentencing are central values of the SRA, and courts should afford relief when it serves these values.[4] McFarland's situation is not so different from that in Mulholland. The trial court in Mulholland imposed consecutive sentences under RCW 9.94A.589(1)(b) without the benefit of any argument that it could consider an exceptional sentence under RCW 9.94A.545. The sole argument raised by defense counsel at sentencing was that the offenses at issue constituted the '"[s]ame criminal conduct.'" Mulholland, 161 Wn.2d at 326 (alteration in original) (quoting RCW 9.94A.589(1)(a)). The sentencing court properly rejected this argument but was never advised of the argument-raised for the first time on appeal-that the multiple offense policy of RCW 9.94A.535 authorized a discretionary exceptional sentence created by running the serious violent offense terms concurrently. We entertained this argument on appeal in part because of the central importance of ensuring appropriate, consistent sentences. Mulholland, 161 Wn.2d at 332-33; see also Grayson, 154 Wn.2d at 342 (holding that while not an abuse of discretion, the sentencing judge's failure to exercise meaningful discretion by "categorically" refusing to consider defendant's drug offender sentencing alternative request justified resentencing). Indeed, our opinion in Mulholland recognized that an erroneous sentence, imposed without due consideration of an authorized mitigated sentence, constitutes a "fundamental defect" resulting in a miscarriage of justice. 161 Wn.2d at 332. We remanded for resentencing because the record indicated "that it was a possibility" the court would have imposed a mitigated sentence had it recognized its discretion to do so. Id. at 334. The sentencing court had made "statements on the record which indicated some openness toward an exceptional sentence." Id. at 333; see also McGill, 112 Wn.App. at 100-01 (remanding for resentencing because the trial court's comments indicated it may have considered an exceptional sentence if it had known it could, and because the reviewing court was unsure the sentencing court would have imposed the same sentence had it known an exceptional sentence was available); Stale v. Bonisisio, 92 Wn.App. 783, 797, 964 P.2d 1222 (1998) (remanding for resentencing because the record indicated the trial court likely would have imposed a different sentence had it correctly interpreted a statute to allow concurrent firearm enhancements), review denied, 137 Wn.2d 1024 (1999).

         In McFarland's case, while the sentencing court's language did not indicate the same level of sympathy or discomfort with the sentence as expressed by the court in Mulholland, the court indicated some discomfort with his apparent lack of discretion and even commented that McFarland's standard range sentence was equivalent to that imposed for second degree murder. VTP (Oct. 27, 2014) at 24. As in Mulholland, the record suggests at least the possibility that the sentencing court would have considered ...

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