                                                                FILED 

                                                              JAN. 29, 2015 

                                                      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. 32046-4-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
TROY R. HOL WAY,                              )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. - A jury found Troy Holway guilty of three counts of

delivery of a controlled substance-heroin, each with a school zone sentence

enhancement. Mr. Holway contends that the State failed to present a witness qualified to

testify to the location of the school bus zone to support the exceptional sentence

enhancements on counts two and three. He also contends that the trial court relied on an

impermissible basis when it declined to impose an exceptional sentence below the

standard range. He maintains that the court considered the absence of mitigating factors

when denying the request and that these factors were inappropriate for sentencing.

Finding no error, we affirm.
No. 32046-4-III
State v. Holway


                                          FACTS

       In three undercover narcotics transactions, Mr. Holway sold heroin to an informant

working for Detective Alan Quist. In the first transaction on October 12,2011, Mr.

Holway sold the informant 0.9 grams of heroin for $70 at the McDonalds on Third

Avenue in Spokane. In the second transaction on October 14 and the third transaction on

October 19, Mr. Holway sold the informant 1.0 grams and 0.7 grams respectively, each

for $70. These latter two transactions occurred at the Zip Trip on Sinto and Division.

After each transaction, the informant gave the heroin to Detective Quist.

       The State charged Mr. Holway with three counts of delivery of a controlled

substance-heroin, with enhancements for each count for delivery of a controlled

substance within 1,000 feet of a protected zone.

       A jury trial was held. In addition to testimony regarding the drug transactions, two

witnesses provided evidence relating to the sentence enhancements. Joel Edgar, a

Spokane County geographic informations systems technician provided a map showing the

area within 1,000 feet of the Third Avenue location, with stars representing the bus stop

locations. Mr. Edgar provided a similar map showing the area within 1,000 feet of Sinto

and Division, with stars representing the bus stop locations.




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No. 32046-4-III
State v. Holway


       Rhonda McLellan, a transportation liaison in charge of regular education routing

for Spokane School District 81, explained that the stars on Mr. Edgar's maps were bus

stops for elementary schools and possibly a middle school. She also identified the

location of Lewis and Clark High School near Third Avenue.

       The jury found Mr. Holway guilty of three counts of delivery of a controlled

substance-heroin. The jury was given a special verdict form asking whether Mr.

Holway delivered the controlled substance within 1,000 feet of a school bus route stop

designated by a school district or within 1,000 feet of the perimeter of a school ground.

The jury answered "yes" to the enhancement for all three counts. Clerk's Papers (CP) at

29.

       For sentencing, Mr. Holway's past and current offenses resulted in an offender

score of 7 and a standard sentencing range of 60 to 120 months. Defense counsel asked

the court to find that Mr. Holway's presumptive sentence would be clearly excessive

under the multiple offense policy and to impose a lesser range sentence. He relied on

State v. Sanchez, 69 Wn. App. 255, 260,848 P.2d 208 (1993) where the sentencing court

found that the multiple offense policy resulted in a sentence that was clearly excessive

when the convictions involved multiple deliveries of a small amount of the same

substance to the same person under control of the police. Mr. Holway argued that ifhe


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No. 32046-4-111
State v. Holway


was convicted of only one delivery charge, his offender score would be 5 with a standard

sentence of 20 to 60 months.

       In response, the State contended that the exceptional sentence requested by Mr.

Holway was too lenient. The State highlighted Mr. Holway's extensive criminal history.

The State pointed out Mr. Holway's most recent prior convictions were a few years

earlier for three counts of delivery of a controlled substance-heroin. And, within two

and one-half months after serving a prison drug offender sentencing alternative sentence

for these crimes, Mr. Holway was arrested for the current offenses involving the same

controlled substance. The State argued that Sanchez was distinguishable from Mr.

Holway's situation because the defendant in Sanchez had no prior criminal record, the

defendant was functionally illiterate, the sentence for delivery was subject to a multiplier

based on sentencing statutes that have now been repealed, and the State in Sanchez did

not argue that the exceptional sentence was too lenient. The State maintained that none of

these factors were present in Mr. Holway's case.

      The court agreed with the State and chose not to impose an exceptional sentence

downward. The court held, "I think there is a distinction to be made between the

circumstances presented in Mr. Holway's case compared to those presented in Mr.

Sanchez's case, and indeed it appears that Mr. Sanchez had many mitigating factors



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No. 32046-4-111
State v. Holway


present to be advanced in favor of his request for an exceptional sentence that are absent

here in Mr. Holway's case .... I believe that the court is constrained under these

combined factors that are present in Mr. Holway's case to respectfully deny the request

for an exceptional sentence downward." Report of Proceedings (RP) at 186-87. The

court found that a sentence at the low end of the sentencing range was appropriate and

sentenced Mr. Holway to 60 months and one day for the three counts of delivery, plus

another 72 months for the school zone enhancements. In total, Mr. Holway was

sentenced to 132 months.

       Mr. Holway appeals. He contends that the school zone enhancements for counts

two and three are not supported by sufficient evidence. He also contends that the trial

court abused its discretion when it declined to impose a mitigating sentence.

                                       ANALYSIS

      Whether there was sufficient admissible evidence to support the sentence
enhancements on counts two and three

       Mr. Holway contends that the State failed to prove that the school district

designated the school bus route stops located within 1,000 feet of the delivery location for

counts two and three. He maintains that the State did not produce evidence

that Ms. McLellan had the authority to designate school bus stops as mandated by

RCW 69.50.435.

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No. 32046-4-111
State v. Holway


       In every criminal prosecution, due process requires that the State prove, beyond a

reasonable doubt, every fact necessary to constitute the charged crime. In re Winship,

397 U.S. 358, 364, 90 S. Ct. lO68, 25 L. Ed. 2d 368 (1970). When a defendant

challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d

lO68 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant." Id. The appellant admits

the truth of the State's evidence and all inferences that can reasonably be drawn from it,

giving equal weight to circumstantial and direct evidence. State v. Hermann, 138 Wn.

App. 596,602, 158 P.3d 96 (2007). We defer to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and persuasiveness of the evidence. State v.

Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064, review denied, 174 Wn.2d 1007,

278 P.3d 1112 (2012).

       Under RCW 69.50.435(1)(c), a defendant convicted of delivery of a controlled

substance within 1,000 feet of a school bus route stop is subject to a sentencing

enhancement. The statute defines a "school bus route stop" as "a school bus stop as

designated by a school district." RCW 69.50.435(6)(c). A school district may delegate



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No. 32046-4-II1
State v. Holway


authority to its agents or employees to designate school bus stop locations, and such an

agent's testimony that he or she has designated certain school bus stops is sufficient as to

the location of those bus stops. See State v. Sanchez, 104 Wn. App. 976, 978-79, 17 P.3d

1275 (2001).

       The State produced sufficient evidence to establish school bus stops within 1,000

feet of delivery for counts two and three. Ms. McLellan acted as the school district's

agent when designating the bus stops in question. Ms. McLellan identified herself as the

Spokane School District 81 transportation liaison in charge of regular education routing.

She testified that she was called to identify any bus stops that District 81 had within a

certain distance of an address on Division Street and that the bus stops were within one

block of the address. Ms. McLellan located these bus stops on a map introduced by the

State. Mr. Holway did not object to Ms. McLellan's testimony or the introduction of the

map. Based on the evidence presented, a rational trier of fact could have found beyond a

reasonable doubt that Mr. Holway delivered a controlled substance within 1,000 feet of a

school bus route stop.

       Whether the trial court abused its discretion when it declined to impose an
exceptional sentence downward

      Mr. Holway contends that the court should have reduced his standard range

sentence and erred when it distinguished Sanchez.

                                              7

No. 32046-4-III
State v. Holway


       Generally, a party cannot appeal a trial court's refusal to impose an exceptional

sentence which necessarily results in a standard range sentence. State v. Friederich-

Tibbets, 123 Wn.2d 250,252,866 P.2d 1257 (1994). However, a party may "challenge

the underlying legal conclusions and determinations by which a court comes to apply a

particular sentencing provision." State v. Williams, 149 Wn.2d 143, 147,65 P.3d 1214

(2003). A standard range sentence can be challenged on the basis that the court refused to

exercise discretion or relied upon an improper basis for declining to consider an

exceptional sentence request. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d

1104 (1997). Under such circumstances, it is the trial court's refusal to exercise

discretion that is appealable, not the sentence. Id.

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

exceptional sentence below the standard range under any circumstances. Id. A court

relies on an impermissible basis when declining to impose an exceptional sentence below

the standard range if, for example, 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.

       The Sentencing Reform Act of 1981, chapter 9.94A RCW, and applicable case law

limit the trial court's discretionary authority on sentencing matters. A trial court has the



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No. 32046-4-111
State v. Holway


discretion to impose a sentence outside of the standard sentencing range if it finds a

substantial and compelling reason to do so. RCW 9.94A.535. The trial court exercises its

discretion in sentencing by considering the nonexclusive list of mitigating factors in

RCW 9.94A.535(1). As part of this list, a trial court has the authority to impose an

exceptional sentence downward under RCW 9.94A.535(1)(g) if the multiple offense

policy ofRCW 9.94A.589 results in a presumptive sentence that is clearly excessive in

light of the purpose of the Sentencing Reform Act.

       Under the multiple offense policy ofRCW 9.94A.589(l )(a), 1 when a defendant is

convicted of multiple current offenses, the offender score for each offense is

calculated by scoring the other current offenses as if they were prior criminal history. As

a result, the accumulated offender points for all current offenses increase the standard

range sentence. A sentencing court is permitted to find that the standard range sentence is

clearly excessive under the multiple offense policy if there is no meaningful difference

between the effects of the first current criminal act and the cumulative effects of the

subsequent acts. Sanchez, 69 Wn. App. at 261.


       1 RCW 9.94A.589(1)(a) prescribes that sentences for multiple current offenses are
served concurrently. The other current offenses count as prior convictions for the purpose
of the offender score, unless the court finds that two or more crimes required the same
criminal intent, were committed at the same time and place, and involved the same
victim. Those offenses encompass the same criminal conduct and count as one crime.

                                             9

No. 32046-4-111
State v. Holway


       A sentence resulting from multiple convictions for repeat deliveries of a controlled

substance may be clearly excessive if the drug buys were initiated and controlled by

investigators; involved the same substance, the same buyer and same seller; occurred

inside a residence; and involved a small amount of drugs. Sanchez, 69 Wn. App. at 261.

A sentencing court does not abuse its discretion by choosing not to apply Sanchez. See

State v. McCollum, 88 Wn. App. 977, 986, 947 P.2d 1235 (1997).

       In Sanchez, the trial court ordered an exceptional sentence downward after Mr.

Sanchez was convicted of three counts of delivery of cocaine. Sanchez, 69 Wn. App. at

257-58. The convictions were a result of three "controlled buys" involving law

enforcement, the same buyer, and a small amount of drugs, all which occurred within a

nine-day span. Id. at 256-57. Mr. Sanchez had no prior criminal history, but his three

current convictions were subject to a statutory multiplier, resulting in an offender score of

6. Id. at 257. In support of the sentence outside the standard range, the trial court found

that (1) Mr. Sanchez had limited education, (2) the deliveries involved small amounts of

cocaine delivered to the same person over a brief time, and (3) the police had control over

the deliveries. Id. at 259-60. The appellate court upheld the mitigated sentence for Mr.

Sanchez based on the trial court's second and third findings, while invalidating the first

finding. Id. at 261-63. "Because the difference between the first buy and all three buys



                                             10 

No. 32046-4-II1
State v. Holway


was trivial or trifling, the sentencing judge was pennitted to use RCW 9.94A.390(1)(g) in

order to reconcile (1) the absence of additional effects from the second and third buys

with (2) the multiple use policy ofRCW 9.94AA00(1)(a). Thus, the sentencing judge did

not err when he imposed a sentence greater than the standard range for one delivery, but

less than the standard range for three deliveries." ld. at 262.2

       Here, the sentencing court exercised its discretion and considered Mr. Holway's

request for an exceptional sentence. From the record, it is clear that the court understood

its options and detennined that an exceptional sentence downward was pennissible but, in

this case, was not appropriate. This is an appropriate exercise of sentencing discretion.

       Likewise, the court did not rely on improper reasons when declining to impose the

exceptional sentence. Mr. Holway is correct when he argues that his criminal history, his

experience in dealing drugs, and the actions of the police are not acceptable reasons to

impose an exceptional sentence. 3 But, the court did not use these reasons to impose a



       2 RCW 9.94A.390(1)(g) was recodified as RCW 9.94A.535(1)(g) by LAWS OF
2001, ch. 10, § 6. RCW 9.94AA00(1)(a) was recodified as RCW 9.94A.589(1)(a) by
LAWS OF 2001, ch. 10, § 6.
       3 See Sanchez, 69 Wn. App. at 259-60 (holding that limited education alone is not
a substantial and compelling reason for an exceptional sentence); State v. Freitag, 127
Wn.2d 141, 144, 896 P .2d 1254 (1995) (holding that lack of criminal history is an
insufficient ground for sentencing below the standard range); State v. Fitch, 78 Wn. App.
546,552,897 P.2d 424 (1995) (rejecting imposition of an exceptional sentence as a
sanction for police practices).

                                             11 

No. 32046-4-III
State v. Holway


sentence outside the standard range. Instead, the court found these reasons sufficient to

keep the sentence within the standard range. Distinguishing Sanchez based on these

factors did not make the trial court's decision improper. The fact that a court exercised its

discretion in Sanchez to adjust the sentence downward does not imply that the sentencing

court here abused its discretion. See McCollum, 88 Wn. App. at 986. The court

considered the facts in Mr. Holway's situation and found that his sentence, while

substantial, was appropriate.

       Mr. Holway is not entitled to a sentence outside of the standard range simply

because his case involved mUltiple conditions for delivery of small amounts of the same

substance to the same police informant that occur within a relatively short time frame.

The multiple offense mitigating factor in RCW 9.94A.535(l )(g) does not require a trial

court to impose an exceptional sentence. The statute simply provides a basis for the

sentencing court to depart from the standard range if it finds there is no meaningful

difference between the effects of the first current criminal act and the cumulative effects

of the subsequent acts, making the standard range sentence clearly excessive. Here, after

considering the facts of the case, the court made no such finding. The trial court did not

find a substantial and compelling reason to impose an exceptional sentence based on




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No. 32046-4-II1
State v. Holway


Sanchez and RCW 9.94A.535(l)(g). The sentencing court properly exercised its

discretion in refusing Mr. Holway's request for an exceptional sentence downward.

      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, J.

WE CONCUR:




                                         Fearing, J.




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