                                                           COURT OF APPALS ^ .
                                                            STATE OF V.!A:H!--.niLi,;

                                                            2013 KftR II f.?H0'i*3



      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 67656-3-1
                     Respondent,
      v.                                         DIVISION ONE


GARRETT J. CZERSKI,                              UNPUBLISHED OPINION


                     Appellant.                  FILED: March 11, 2013


       Leach, C.J. — Garrett Czerski appeals the standard range sentence

imposed for his conviction for attempted rape in the second degree, unlawful

imprisonment, and burglary in the first degree.      He claims that the trial court

abused its discretion when it denied his request for an exceptional sentence

below the standard range because it incorrectly assumed that it did not have

legal authority to impose such a sentence.      Because the record demonstrates

that the court both understood that it had such discretion and properly exercised

its discretion in denying Czerski's request, we affirm.

                                    Background

       The State charged Czerski by information with indecent liberties by

forcible compulsion, attempted rape in the first degree, unlawful imprisonment,

and burglary in the first degree.   Before trial, the court ordered a competency

evaluation and committed Czerski, who suffers from schizophrenia, to Western
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State Hospital until he gained competence to stand trial.        At a subsequent

hearing, the court determined that Czerski was competent to stand trial.

       A jury convicted Czerski of indecent liberties by forcible compulsion,

attempted rape in the second degree, unlawful imprisonment, and burglary in the

first degree.     At sentencing, the court vacated and dismissed the indecent

liberties conviction, finding that it merged with the conviction for attempted rape

in the second degree. Based upon his offender score, Czerski faced a standard

range sentence of 157.5 to 210.0 months in prison.

       Czerski requested an exceptional sentence below the standard range of

87 months in prison.          He argued that this exceptional sentence, which

represented the low end of the standard range for the burglary conviction, was

warranted because "Mr. Czerski has never been incarcerated for more than 72

months, so in this case 87 months would be appropriately graduated upward to

reflect his prior history."   He also asserted that "such a sentence would also

appropriately reflect the challenges and limitations under which Mr. Czerski

labors owing to his severe mental illness which significantly impairs his capacity

to appreciate the wrongfulness of his conduct and to conform his conduct to the

requirements of the law."

       The court stated that it was "sympathetic" to Czerski's arguments and that

it "agree[d] that to some extent either small or very significant Mr. Czerski's long

time mental health issues contributed to this series of crimes."        Despite its

reservations, the court expressed concern regarding the need to "protect the


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public from Mr. Czerski's mental health issues, which seem to manifest

themselves in continuing and worsening criminal conduct." In denying Czerski's

request, the court explained,

         I feel I can do nothing less then [sic] a standard range sentence. I
        don't feel that the facts of the case justify high-end of the range.
        I'm going to sentence him to 160 months just above the low-end
        and hope that. . . something can happen in treatment that will
        make Mr. Czerski less of a threat or just the passage of time and
        the aging process will do that.

The court also noted, "I think it's too much time too, but you know something I—

the law doesn't—I don't feel that the law allows me to do much different from


that.   I gave you as little time as I could within the standard range."     Czerski

appeals.

                                       Analysis

        Where a defendant has requested an exceptional sentence below the

standard range, "review is limited to 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."1                "While no

defendant is entitled to an exceptional sentence below the standard range, every

defendant is entitled to ask the trial court to consider such a sentence and to

have the alternative actually considered."2 Thus, "[t]he failure to consider an

exceptional sentence is reversible error."3 Similarly, "[a] trial court's erroneous



        1State v. Garcia-Martinez. 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
        2State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183(2005).
        3 Grayson. 154 Wn.2d at 342.


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No. 67656-3/4




belief that it lacks the discretion to depart downward from the standard

sentencing range is itself an abuse of discretion warranting remand."4

      Czerski claims that the trial court abused its discretion because it "failed to


recognize it had legal authority to impose a lesser sentence via a mitigated

exceptional sentence, as requested by Czerski," and that "the record reveals the

trial court would have done so had it recognized this authority."      He cites the

court's statements acknowledging that Czerski's mental health issues contributed

to his acts and that the court "[didn't] feel that the law allows me to do much

different" from the standard range sentence.

      In arguing for an exceptional sentence, Czerski relies upon RCW

9.94A.535(1).   That statute permits a court to impose a sentence below the

standard range under certain mitigating circumstances, including if "[t]he

defendant's capacity to appreciate the wrongfulness of his or her conduct, or to

conform his or her conduct to the requirements of the law, was significantly

impaired. Voluntary use ofdrugs or alcohol is excluded."5

      In State v. Schloredt,6 we held that "the record must establish not only the

existence of the mental condition, but also the requisite connection between the

condition and significant impairment of the defendant's ability to appreciate the

wrongfulness of his conduct or to conform his conduct to the requirement of the

law." Here, the trial court heard expert testimony indicating that Czerski's mental


      4 State v. Bunker. 144 Wn. App. 407, 421, 183P.3d 1086(2008).
      5RCW9.94A.535(1)(e).
        97 Wn. App. 789, 802, 987 P.2d 647 (1999).

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No. 67656-3 / 5




illness did not impair his capacity at the time of the incident. Czerski's expert

witness testified that during his evaluation, Czerski "described engaged behavior

that had a goal-directed intentional quality" and that it was "pretty clear there was

goal directed behavior on that date."          The State's expert testified regarding

"whether or not he had the capacity to perceive, to know that those acts were—

know right from wrong with respect to those acts for which he was charged. The

answer to that in my opinion was yes." Additionally, he testified,

       I can't deny that in most cases that most people who have chronic
       schizophrenia are going to be impaired to some extent. The
       question is to what degree is that person impaired. In my opinion
       he wasn't significantly or seriously impaired.

              To carry on activities that he had in mind to do those things,
       to achieve the goals that he was trying to achieve.

       Czerski compares this case to In re Personal Restraint of Mulholland.7 In

Mulholland. the trial court sentenced the defendant under RCW 9.94A.589(1).8

The trial court concluded that it did not have discretion to run the defendant's


sentences concurrently because the law required the court to run them

consecutively.9 The Supreme Court remanded, holding that the plain language

of RCW 9.94A.589(1) and RCW 9.94A.535 gave discretion to the trial court to

impose an exceptional sentence.10

       Both Czerski's sentencing memorandum and the State's supplement to its

sentencing brief recognized that the trial court could consider an exceptional


      7 161 Wn.2d 322, 166 P.3d 677 (2007).
      8 Mulholland. 161 Wn.2d at 325-26.
      9 Mulholland. 161 Wn.2d at 326.
      10 Mulholland. 161 Wn.2d at 330-31.


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No. 67656-3 / 6




sentence below the standard range.       At the sentencing hearing, both parties

addressed whether such a sentence would appropriately protect the public.

       Contrary to Czerski's assertion, the record reveals that the court was

aware of its discretion to impose a sentence below the standard range. Unlike

Mulholland. nothing in the record indicates that the trial court misunderstood the

law. The court declined to impose such a sentence because it disagreed with

Czerski's arguments that the relevant facts supported a sentence below the

standard range. "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

sentencing discretion."11

                                    Conclusion


       Because the trial court did not abuse its discretion in determining that no

factual or legal basis supported a sentence below the standard range, we affirm.




                                                    ^<r^Mt C-
WE CONCUR:




^                  (I                                    &XjJ

       11 Garcia-Martinez, 88 Wn. App. at 331

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