                                                                  FILED 

                                                               APRIL 22, 2014 

                                                         In the Office of the Clerk of Court 

                                                       W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 31189-9-111
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
TAYLORD.W. MAREAN,                           )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, J. - Taylor Marean appeals the standard range sentence

imposed for his conviction for vehicular homicide. He claims the trial court abused its

discretion in denying his request for an exceptional sentence below the standard range

because it incorrectly assumed it did not have legal authority to impose such a sentence.

Finding no error, we affirm.

                                         FACTS

      During the evening of February 13,2010, Brooke Reese and Jacoby Bryant, both

teenagers, went to a party at a friend's house. Taylor Marean and Ryan Perizzo showed

up at the party around midnight. All four were drinking alcohol. Ms. Reese and Ms.

Bryant left the party about 2:00 a.m. in Ms. Reese's car. Mr. Marean and Mr. Perizzo
No. 31 189-9-II1
State v. Marean


followed them in a car driven by Mr. Marean.

       According to Ms. Reese, Mr. Marean would speed up and pass her, slow down to

let her catch up, and then pass her again at a high rate of speed. At one point, he rolled

down his window and said, "let's race." Ex. 2 at 3. Mr. Marean took off at a high rate of

speed, and Ms. Reese accelerated in an attempt to catch up with him. As she approached

an intersection for a left-hand tum, she lost control of her car, and Mr. Marean's car

struck her car along the driver's side, driving her car sideways across a curb and into a

tree. Ms. Bryant was killed instantly as a result of the collision. The cause of death was

severance of her brain stem and blunt force trauma. Mr. Marean's blood alcohol level at

the time of the collision was 0.13 grams per milliliter.

       The State charged Mr. Marean with vehicular homicide. J After two years of

unsuccessful plea negotiations, Mr. Marean entered a guilty plea as charged in exchange

for the prosecutor's agreement to recommend a sentence within the standard range of 31

to 41 months.

       At sentencing, Mr. Marean sought an exceptional sentence downward of 24

months based on his allegation that Ms. Bryant was a "willing participant" in the offense

under RCW 9.94A.535(l)(a). He asked the court to consider two supporting exhibits-a


       1 The   State also charged Ms. Reese with vehicular homicide.

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No. 31 189-9-III
State v. Marean


toxicology report indicating that Ms. Bryant's blood alcohol level was 0.12 at the time of

her death and a supplemental police report. The court accepted highlighted portions of

the supplemental police report, but rejected the toxicology report, finding it irrelevant to

the sentencing issues. Based on the police report, defense counsel then argued:

               I'm not blaming the victim but I want you to know what it sounded
       like then. It says in the report he [Mr. Marean] spoke to Reese and Bryant.
       And all we know from the report is he said, "Let's race." And it sounds
       like-I wasn't there, Judge, but it sounds like they agreed.

Report of Proceedings (RP) at 83.

       The court denied Mr. Marean's request and imposed a mid-range standard range

sentence of 36 months, explaining, "I do not believe we have the legal basis for a willing

participant criteria that the Court can use to allow a downward." RP at 97. Mr. Marean

appeals the sentence.

                                        ANALYSIS

       Mr. Marean contends the trial court committed reversible error by

categorically refusing to consider the "willing participant" mitigating factor under

RCW 9.94A.535(1)(a). He also maintains the court erroneously eliminated evidence of

Ms. Bryant's blood alcohol level and "then determined as a matter of law that the defense

was off limits because the victim was a passenger." Br. of Appellant at 18.




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No. 31189-9-111
State v. Marean


       Initially, we note that a standard range sentence is generally not appealable. But a

criminal defendant "may appeal a standard range sentence if the sentencing court failed to

comply with procedural requirements of the SRA [Sentencing Reform Act of 1981,

ch. 9.94A RCW] or constitutional requirements." State v. Osman, 157 Wn.2d 474,481­

82, 139 P.3d 334 (2006). "[W]here a defendant has requested an exceptional sentence

below the standard range, review is limited to circumstances where the court has refused

to exercise its discretion at all or has relied on an impermissible basis for refusing to

impose an exceptional sentence below the standard range." State v. Garcia-Martinez, 88

Wn. App. 322, 330, 944 P.2d 1104 (1997).

       "A court refuses to exercise its discretion if it refuses categorically to impose an

exceptional sentence below the standard range under any circumstances; i.e., it takes the

position that it will never impose a sentence below the standard range." Id. For example,

a court relies on an impermissible basis for declining to impose an exceptional sentence

below the standard range if it takes the position that no drug dealer should get an

exceptional sentence down or it refuses to consider the request because of the defendant's

race, sex, or religion. Id.

       In State v. Cole, 117 Wn. App. 870, 73 P.3d 411 (2003), the defendant

unsuccessfully requested a below range sentence and then challenged the court's refusal


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No. 31189-9-111
State v. Marean


to impose an exceptional sentence on appeal. The court held that the defendant could not

appeal from a standard range sentence where the trial court considered the defendant's

request for the application of a mitigating factor, heard argument on the issue, and then

exercised its discretion by denying the request. Id. at 881. Similarly, in Garcia-Martinez,

involving an equal protection challenge to a standard range sentence, the court held that a

trial court that has considered the facts and concluded no basis exists for an exceptional

sentence has exercised its discretion and the defendant may not appeal that ruling.

Garcia-Martinez, 88 Wn. App. at 330.

       Under RCW 9.94A.535(1), a court may impose an exceptional sentence below the

standard range if the court finds that mitigating circumstances are established by a

preponderance of the evidence. Mitigating circumstances may be found if, "[t]o a

significant degree, the victim was an initiator, willing participant, aggressor, or provoker

of the incident." RCW 9.94A.535(1)(a). The "willing participant" factor is applicable

where both the defendant and the victim engaged in the conduct that caused the offense to

occur. State v. Hinds, 85 Wn. App. 474, 481,936 P.2d 1135 (1997).

       Mr. Marean claims that as a result of the court's categorical rejection of the

"willing participant" mitigating factor, the court refused to consider a toxicology report

revealing Ms. Bryant's blood a1cohollevel of 0.12 at the time of the collision. According



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No. 31189-9-111
State v. Marean


to Mr. Marean, this blood alcohol level explained why "[Ms. Bryant's] decision-making

capacity might be impaired to the point where, as the record suggests, all four persons

involved were there willingly and were participating in the race." Br. of Appellant at 20.

Mr. Marean further contends that it is fair to infer that Ms. Bryant was aware the drivers

were intoxicated, that Ms. Reese was not holding her hostage, and that she agreed to the

race because she was directly across from Mr. Marean when he rolled down his window

and invited Ms. Reese and Ms. Bryant to race.

       Contrary to Mr. Marean's assertion, the record reveals that the court was aware of

its discretion to impose a sentence below the standard range and did not misunderstand

the law. Nothing in the court's oral decision indicates that it rejected the exceptional

sentence based on a belief that a passenger, by definition, could not be a "willing

participant" under RCW 9.94A.535(1)(a). A plain reading of the oral decision

demonstrates that the court considered the proposed mitigating factor and found it legally

and factually insufficient to warrant an exceptional sentence downward.

       During the guilty plea hearing, the court heard evidence that (1) witnesses saw the

cars speeding, (2) Ms. Reese admitted to drinking four shots of vodka prior to the

collision, (3) all four teenagers were drinking, (4) Ms. Reese was speeding and lost

control of the car, and (5) Ms. Reese accepted Mr. Marean's challenge to race. The court



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No. 31189-9-III
State v. Marean


disagreed that these facts supported an inference that Ms. Bryant accepted the challenge

to race or that she was "to a significant degree" a willing participant in the incident. As

the court explained, "[t]he passenger in the vehicle, the young girl who is dead, that's

who we're talking about. She wasn't driving. She didn't participate in anything other

than being in the vehicle." RP at 97. "Without an adequate factual or legal basis to

permit it to step outside the standard range, the court decided it could not impose a

sentence other than one within the standard range. This is an appropriate exercise of the

sentencing discretion." Garcia-Martinez, 88 Wn. App. at 331.

       We also reject Mr. Marean's argument that the court erred in refusing to consider

the toxicology report. Sentencing courts have wide discretion over the sources and types

of information they consider in determining the length of a sentence within the standard

range. State v. Herzog, 112 Wn.2d 419,424,771 P.2d 739 (1989) (quoting Williams v.

New York, 337 U.S. 241, 246, 69 S. Ct. 1079,93 L. Ed. 1337 (1949». Here, the court

was well within its discretion in concluding that the toxicology report was of marginal

relevance to mitigation. The facts before the court indicated Ms. Bryant had been

drinking. But even assuming Ms. Bryant's judgment was impaired to the extent indicated

in the toxicology report, it does not necessarily follow that she agreed to the race or

otherwise significantly participated in the events that led to her death. The court was well



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No. 31189-9-111
State v. Marean


within its discretion to disregard the report.

       We affirm.

       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, 1.

WE CONCUR:




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