                                                                        FILED
                                                                    JANUARY 17, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 35539-0-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
JEFFRY LEE MCFADDEN,                          )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, C.J. — Jeffry Lee McFadden appeals the exceptional

sentence imposed for his 2015 Grant County convictions upon a plea of guilty to first

degree unlawful possession of a firearm, distribution of marijuana to a minor, and

intimidating a witness. He contends the trial court acted without statutory authority under

the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, in imposing an

exceptional sentence in the form of consecutive sentences. We affirm.

                                   FACTS AND PROCEDURE

       Prior to entering his guilty plea, Mr. McFadden faced trial on charges of first

degree rape, first degree kidnapping, second degree assault, and first degree unlawful

possession of a firearm. His criminal history included Oklahoma convictions for first

degree rape and robbery with a firearm. As part of a negotiated plea agreement, the State
No. 35539-0-III
State v. McFadden


agreed to amend the charges to first degree unlawful possession of a firearm (count 1),

distribution of marijuana to a minor (count 2), and intimidating a witness (count 3) so that

Mr. McFadden would avoid a persistent offender sentence of life without possibility of

parole. Mr. McFadden’s offender score was then “6” for the current crimes.

       Consistent with the parties’ agreed plea recommendation and stipulation at

sentencing, the court imposed an exceptional sentence comprised of above-range terms of

114 months for the firearm possession and 115 months for the intimidating a witness, and

a 114-month standard range term for the marijuana distribution—with all three counts to

run consecutively for a total 343-month sentence. The court found as substantial and

compelling reasons to justify the exceptional sentence the parties’ stipulation that justice

is best served by imposition of the exceptional sentence, and that the exceptional sentence

furthers and is consistent with the interests of justice and the purposes of the SRA. Mr.

McFadden appeals the exceptional sentence.1

                                        ANALYSIS

       The sole issue is whether the trial court lacked authority under the SRA to impose

an exceptional sentence in the form of consecutive sentences for Mr. McFadden’s crimes.




       1
        Mr. McFadden did not file a notice of appeal from the 2015 judgment and
sentence until August 31, 2017. On November 30, 2017, our commissioner granted
McFadden’s motion under RAP 18.8(b) to extend the time for filing the notice of appeal
based upon extraordinary circumstances and to avoid a miscarriage of justice.

                                              2
No. 35539-0-III
State v. McFadden


       It is fundamental that “[a] trial court only possesses the power to impose sentences

provided by law.” In re Pers. Restraint of Carle, 93 Wn.2d 31, 33, 604 P.2d 1293

(1980). Our Supreme Court “has often reaffirmed the principle that a sentence in excess

of statutory authority is subject to challenge, and the defendant is entitled to be

resentenced.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 869, 50 P.3d 618

(2002). “[A] defendant cannot, by way of a negotiated plea agreement, agree to a

sentence in excess of that authorized by statute and thus cannot waive a challenge to such

a sentence.” Id. at 872.

       Applying these principles, Mr. McFadden contends the controlling statute here is

RCW 9.94A.589(1)(a), and that it does not authorize consecutive sentences for his

crimes. The statute provides in pertinent part:

       (1)(a) Except as provided in (b), (c), or (d) of this subsection, whenever a person is
       to be sentenced for two or more current offenses, the sentence range for each
       current offense shall be determined by using all other current and prior convictions
       as if they were prior convictions for the purpose of the offender score:
       PROVIDED, That if the court enters a finding that some or all of the current
       offenses encompass the same criminal conduct then those current offenses shall be
       counted as one crime. Sentences imposed under this subsection shall be served
       concurrently. Consecutive sentences may only be imposed under the exceptional
       sentence provisions of RCW 9.94A.535.

RCW 9.94A.589 (emphasis added).

       Mr. McFadden correctly points out that none of his current crimes fall within the

above-referenced subsections (b) (serious violent offenses), (c) (unlawful possession of a

firearm in the first or second degree and felony theft of a firearm or possession of a stolen

                                              3
No. 35539-0-III
State v. McFadden


firearm or both), or (d) (certain driving offenses) that provide for consecutive sentencing.

He thus posits that because he was sentenced for multiple “current offenses” the statute

plainly requires that his sentences “shall be served concurrently.” He then acknowledges,

but wholly discounts, the statute’s next sentence that references consecutive exceptional

sentence authority under RCW 9.94A.535. He reasons that RCW 9.94A.535(2)(c)

(defendant has committed multiple current offenses and high offender score results in

some of current offenses going unpunished) does not apply because his offender score

was only “6.” He concludes that no other provision of the SRA expressly authorizes the

court to impose consecutive sentences in his case, notwithstanding the parties’ stipulation

to an exceptional sentence. His arguments fail.

       The controlling statute is RCW 9.94A.535(2)(a)—the basis on which the court

imposed Mr. McFadden’s exceptional sentence. The statute provides:

               (2) Aggravating Circumstances—Considered and Imposed by the
       Court
               The trial court may impose an aggravated exceptional sentence
       without a finding of fact by a jury under the following circumstances:
               (a) The defendant and the state both stipulate that justice is best
       served by the imposition of an exceptional sentence outside the standard
       range, and the court finds the exceptional sentence to be consistent with and
       in furtherance of the interests of justice and the purposes of the sentencing
       reform act.

RCW 9.94A.535(2)(a). And as quoted in italics above, RCW 9.94A.589(1)(a) plainly

authorizes a trial court to impose consecutive sentences under the exceptional sentence

provisions of RCW 9.94A.535. Contrary to Mr. McFadden’s further contention, no

                                             4
No. 35539-0-III
State v. McFadden


additional statutory basis is needed to support his exceptional sentence. See State v.

Chambers, 176 Wn.2d 573,586,293 P.3d 1185 (2013) (defendant's stipulation under

RCW 9.94A.535(2)(a) is substantial and compelling reason for imposing exceptional

sentence); In re Pers. Restraint ofBreedlove, 13 8 Wn.2d 298, 300, 979 P .2d 417 ( 1999)

(same).

       Mr. McFadden's consecutive exceptional sentence was authorized under the SRA.

There is no error.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-Berrey,   c.i       •   c.. ~
WE CONCUR:




                                          Pennell, J.




                                             5
