                                                         2019 FEB -5 AM 10: 33



      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                         )         No. 77437-9-1
                                             )
                    Respondent,              )         DIVISION ONE
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
CAMERON F. PATTERSON,                        )
                                             )
                    Appellant.               )         FILED: February 5, 2019
                                             )


       ANDRUS, J. — Cameron Patterson pleaded guilty to robbery in the first

degree and unlawful imprisonment after participating in an armed robbery of a

 marijuana dispensary. CP 29-30. The court sentenced Patterson to 36 months

for count one (robbery), a concurrent 3-month sentence for count two (unlawful

imprisonment), and a 60-month firearm enhancement, to be served consecutively

to the 36-month sentence. We affirm Patterson's sentence.

                                      FACTS

       Patterson agreed to participate in what he thought was the organized

 robbery of the Have a Heart marijuana dispensary in the Greenwood neighborhood

 of Seattle at the suggestion of his friend, John Stewart. CP 31. Patterson believed

 it was an "inside job" in which all of the employees knew what was going to happen

 and intended to split the proceeds. RP (8/25/17) 16. One of the dispensary
No. 77437-9-1/2

employees, Sean Sylve, assured Patterson that the robbery would be a "grab and

go," where the marijuana and money would be in plain view and easily available

for taking. OP 56.

      On the evening of August 7, 2016, Patterson, Stewart, and Sylve executed

the plan. OP 31. Slyve was working at the dispensary, along with his co-workers,

Alanna Wells and McKenna O'Meara. OP 31. Wells and O'Meara were unaware

of the plan. While Sylve checked the outside perimeter of the premises, a routine

closing duty, Patterson and Stewart donned Halloween masks and approached

him. OP 31. Sylve knocked on the store's locked door which Wells opened for

him. OP 31. Sylve whispered to Wells to lock the door because they were being

robbed. OP 31. When Wells tried to close the door, Patterson and Stewart pushed

the door open and entered the dispensary. OP 31. Holding a gun, Stewart

demanded that Sylve and Wells lie down on the floor with their hands behind their

backs. OP 31. Patterson and Stewart used zip ties to bind the employees' hands

together. OP 31. Patterson and Stewart spotted O'Meara, who was in a different

room counting her cash tray. OP 31. They ordered her to lie down on the floor,

again at gunpoint, as they zip tied her hands together. OP 32.

      Patterson took $900 from the dispensary's safe, while Stewart removed

approximately $20,000 worth of marijuana products from the display case. OP 32.

The dispensary's manager, who watched the events unfold through the store's

surveillance system, called 9-1-1. OP 32. Seattle police officers responded and

set up a containment area outside of the dispensary. OP 32. The officers watched

Stewart and Patterson exit the store with two large duffel bags containing cash, a


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No. 77437-9-1/3

money counting machine, marijuana, and other products. OP 32. When ordered

to stop, Stewart and Patterson dropped the bags, the gun, their Halloween masks,

and additional zip ties, and were eventually taken into custody. OP 32.

       Patterson was initially charged with one count of first degree robbery and

one count of first degree kidnapping, OP 2, but following negotiations, Patterson

pleaded guilty to the robbery and unlawful imprisonment, OP 12, 14. Patterson

agreed to a minimum standard range sentence for both counts: 36 months for the

robbery and 3 months for the unlawful imprisonment, with a firearm enhancement

of 60 months to be served consecutive to the robbery sentence. OP 18.

       Patterson asked the court to follow the agreed sentencing recommendation.

He argued that the low end sentence was appropriate because he was a loving,

supportive father of seven young children, had experienced a difficult upbringing

surrounded by poverty and gang and domestic violence, during which he had

observed his mother cut his father's throat, had demonstrated high moral character

and strong family and community support, had no prior felony convictions, and had

intended to commit only a theft, not a robbery. OP 44-56; RP (8/25/17) at 11-17.

At his sentencing hearing, Patterson's counsel argued Patterson lacked the intent

to engage in an armed robbery:

      And that's been a very hard lesson for Mr. Patterson to learn because
      he never intended to be a part of a robbery. He never held the gun
      in his hand, he didn't think that his codefendant would have the gun;
      but his codefendant did come in with a gun to Mr. Patterson's
      surprise and at that point he was involved in a robbery and not a
      theft. And, hence, the long sentence that he's getting, here.

RP (8/25/17) at 16. Patterson also presented letters from family members and

friends attesting to his good character, writing about the respect they have for his

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leadership in the community, his commitment to his family, and his kindness. They

all expressed how uncharacteristic his crime was. CF 59-108.

      The sentencing court accepted the recommended sentence. CF 113. The

court acknowledged the harshness of the sentence and indicated it had looked to

see if it could impose an exceptional sentence but found an insufficient basis for

departing from the standard sentencing range. RP(8/25/17) 20. The court stated:

      And I'm sure as your attorney has explained there are very, very few
      circumstances under which this court could make an exceptional sentence.
      And, trust me, I looked. I looked if there was any duress. I looked if there
      was anything.

      But what I see is a man who, albeit making a horrible decision. And as I
      read those letters, I don't understand what you're doing here. I don't
      understand how you are before me having gone through what you went
      through as a child, having seen what you saw as a child, how that decision
      would be made.

      You don't have the benefit of being a young, stupid kid who's not mature
      enough. You did this at age 36. You don't have the benefit of saying, "I
      didn't know what I was doing." You put on a mask. I mean, I — as I sit there
      and look for it, this was — you — there's nothing I can say.

      I recognize that the punishment that has been imposed by the legislature,
      frankly, is harsh. And I know that not every case fits into these
      circumstances, but there's very, very limited circumstances in which I can
      change those sentences. And as much as I look to that, I can't find it in this
      case.

      I'm going to impose the minimum. I will note that even that minimum, given
      the weapons enhancement, may seem unfair. But I want you to know that
      it's because of certain legislative dictates. That if there was what I felt to be
      any wiggle room in terms of as I look at what exceptional sentences mean
      and what are the standards under which they can be applied where — where
      somebody would think I'm not abusing my discretion, I would go there. I've
      done it. But I can't find it here.

RP (8/25/17) 19-21.




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       Patterson appeals his sentence, arguing the court refused to consider his

failed "lack of intent to commit armed robbery" defense and the "aberrational

conduct" information provided by his family and friends, both of which justified an

exceptional sentence. He also argues the court abused its discretion in not

reducing the duration of the firearm enhancement.

                                    ANALYSIS

       The Sentencing Reform Act (SRA) states that a sentence within the

standard range may not be appealed. RCW 9.94A.585(1); see also State v.

Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989)("When the sentence given is

within the presumptive sentence range then as a matter of law there can be no

abuse of discretion and there is no right to appeal"). A defendant may, however,

challenge the procedure by which a standard range sentence is calculated. When

a defendant challenges the denial of an exceptional sentence, review is limited to

whether the sentencing court categorically refused to impose an exceptional

sentence downward under any circumstance or relied on an impermissible basis

for refusing to do so. State v. Garcia-Martinez, 88 Wn. App. 322, 329-30, 944 P.2d

1104 (1997); see also State v. O'Dell, 183 Wn.2d 680, 697, 358 P.3d 359, 367

(2015)(a court abuses its discretion when it fails to consider a mitigating factor on

the mistaken belief it is barred from such consideration).

       Patterson did not request an exceptional sentence. During the plea hearing,

Patterson acknowledged the low end sentence was the product of an agreement

"so that we cannot ask for a downward departure." RP (8/8/17) at 24. He

nevertheless argues on appeal that the sentencing court refused to recognize his



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failed mens rea defense and aberrational conduct arguments justified an

exceptional sentence. App. Br. at 8-9. He claims the sentencing court's "failure to

exercise discretion" is itself an abuse of discretion subject to reversal under O'Dell,

183 Wn.2d at 697. App. Br. at 13-14.

       The State contends Patterson cannot claim on appeal the trial court abused

its discretion because he never asked the court to exercise discretion in the first

place, citing Colorado Structures, Inc. v. Blue Mountain Plaza, LLC, 159 Wn. App.

654, 660, 246 P.3d 835 (2011) and State v. Lile, 188 Wn.2d 766, 787, n.14, 398

P.3d 1052(2017). But neither Colorado Structures nor Le dealt with a trial court's

purported refusal to consider mitigating circumstances.

       A defendant's failure to request an exceptional sentence does not

necessarily preclude a challenge on appeal. In State v. McFarland, the defendant

did not request an exceptional sentence, despite facing 237 months confinement

due to consecutively-imposed firearm enhancements, because both defense

counsel and the sentencing court erroneously concluded an exceptional sentence

was foreclosed by law. 189 Wn.2d 47, 49, 399 P.3d 1106 (2017).

       The Supreme Court did not reject McFarland's appeal simply because she

did not seek an exceptional sentence from the trial court. It reversed McFarland's

sentence, holding that when consecutive sentences for multiple firearm-related

convictions result in a sentence that is "clearly excessive" under RCW

9.94A.535(1)(g), a sentencing court has discretion to impose an exceptional,

mitigated sentence by running the firearm-related sentences concurrently. Id. at

55. The Supreme Court remanded the case for resentencing, concluding that "the


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No. 77437-9-1/7

record suggests at least the possibility that the sentencing court would have

considered imposing concurrent firearm-related sentences had it properly

understood its discretion to do so." Id. at 56, 59; see also State v. McGill, 112 Wn.

App 95, 100, 47 P.3d 173 (2002)(court erroneously believed it lacked discretion

to depart from the standard range; this court reversed and remanded, reasoning

that "the trial court's comments indicate it would have considered an exceptional

sentence had it known it could").

       Under McFarland, a defendant may appeal a standard sentence if the

record establishes the sentencing court erroneously concluded an exceptional

sentence was not available to a defendant.

       Patterson contends the sentencing court erroneously held it lacked

discretion to consider his failed lack of intent defense and his aberrational conduct

arguments. We conclude the sentencing court considered his failed lack of intent

defense and found it insufficient to justify an exceptional sentence, a decision

Patterson may not appeal. And we conclude the sentencing court did not have the

discretion to consider Patterson's "aberrational conduct" argument.

       To determine if a factor supports departure from the standard sentencing

range, we apply a two-part test. O'Dell, 183 Wn.2d at 690. First, a factor cannot

support the imposition of an exceptional sentence if the legislature necessarily

considered that factor when it established the sentence range. Id. This is a

question of law reviewed de novo. Id. at 688.

       Second, in order to justify an exceptional sentence, a factor must be

"sufficiently substantial and compelling to distinguish the crime in question from


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No. 77437-9-1/8

others in the same category." Id. at 690. The Supreme Court has said that "any

such reasons must relate to the crime and make it more, or less, egregious." State

v. Fowler, 145 Wn.2d 400, 404, 38 P.3d 335 (2002). If a sentencing court finds a

particular factor meets the "substantial and compelling" test, the standard of review

is clearly erroneous. Ha'mim, 132 Wn.2d at 840.

       The Supreme Court has recognized, and the State does not dispute, that a

trial court has the discretion to consider failed defenses, such as self-defense,

duress, mental conditions not amounting to insanity, and entrapment, when

evaluating the appropriateness of an exceptional sentence. State v. Jeannotte,

133 Wn.2d 847, 852, 947 P.2d 1192 (1997). "By allowing failed defenses to be

treated as mitigating circumstances, the Legislature recognized there may be

circumstances that led to the crime, even though falling short of establishing a legal

defense, [that] justify distinguishing the conduct from that in other similar cases."

Id. at 852 (internal quotation marks omitted)(quoting Hutsell, 120 Wn.2d at 921).

       The record establishes that the sentencing court considered this failed

defense. While the sentencing court did not explicitly mention it, Patterson raised

this defense in both his sentencing memo and at the hearing itself. The court said

it considered all possible mitigating factors it could find in the materials presented:

       I'm sure as your attorney has explained there are very, very few
       circumstances under which this court could make an exceptional
       sentence. And, trust me, I looked. I looked if there was any duress. I
       looked if there was anything.

       I recognize that the punishment that has been imposed by the
       legislature, frankly, is harsh. And I know that not every case fits into
       these circumstances, but there's very, very limited circumstances in
       which I can change those sentences. And as much as 1 look to that, I
       can't find it in this case.

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No. 77437-9-1/9



RP (8/25/17) 19-20 (emphasis added). This record demonstrates the sentencing

court knew an exceptional sentence was an option, considered the facts to see if

it could justify an exceptional sentence, and concluded it could not. There is

nothing in the record to suggest the sentencing court categorically refused to

consider Patterson's failed defense argument.

       Patterson also contends the sentencing court refused to consider that this

crime was uncharacteristic (or an aberration) for him. App. Br. at 14. Patterson

relies on federal case law and Justice Madsen's dissent in State v. Fowler, 145

Wn.2d 400, 412, 38 P.3d 335 (2002)for the proposition that aberrational behavior

and a low risk of re-offending are sufficient bases for an exceptional sentence.

       Fowler pleaded guilty to first degree robbery which carried a standard range

of 31-41 months. Id. The sentencing court imposed a 15-month exceptional

sentence because Fowler had no criminal history, his behavior during the crime

was aberrational, and Fowler was unlikely to re-offend. Id. at 403-04. A majority

of the Supreme Court reversed the exceptional sentence. It refused to follow

federal cases that held aberrational conduct is a valid mitigating factor. Id. at 407.

The majority reasoned that Fowler's aberrational conduct argument was similar to

arguing "the defendant has not done anything like this before," analogous to saying

the defendant has no criminal history, a factor already taken into account in the

standard sentencing ranges under the SRA. Id. at 408("The fact that a defendant's

criminal conduct is exceptional or aberrant does not distinguish the defendant's

crime from others in the same category"). Under Fowler, a sentencing court may

not consider the fact that a defendant's crime was an aberration because this factor

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was necessarily taken into account by the legislature when it set standard

sentence ranges.

       Patterson argues that O'Dell abrogated Fowler sub silentio. He contends

that under O'Dell, a sentencing court has the discretion to consider personal

characteristics of a defendant. We disagree with this reading of O'Dell. In that

case, the Supreme Court held the legislature had not necessarily considered youth

when it established standard range sentences under the SRA. O'Dell, 183 Wn.2d

at 690. As a result, it concluded that a trial court must be allowed to consider youth

as a mitigating factor, explicitly disavowed any contrary holding in Ha'mim. We

can find no language in O'Dell that broadens its holding to a defendant's aberrant

conduct or a low likelihood to reoffend. Nor can we conclude the Supreme Court

intended to abrogate Fowler; its decision in O'Dell did not analyze whether Fowler

had been incorrectly decided. See State v. Stalker, 152 Wn. App. 805, 812, 219

P.3d 722(2009)(Supreme Court abrogates prior decisions only if party seeking to

have decision overruled demonstrates precedent is both incorrect and harmful).

       Because our state Supreme Court has explicitly held, under a similar set of

facts, that a sentencing court does not have the discretion to consider, as a

mitigating factor, whether a defendant's conduct was an aberration from his

general character, the sentencing court did not abuse its discretion in this case.

       Finally, Patterson argues that the SRA gives the sentencing court discretion

to shorten the duration of the 60-month firearm enhancement as an exceptional

sentence.     RCW 9.94A.533(3) provides that the firearm enhancement, if

applicable, is mandatory, "notwithstanding any other provision of law." In State v.



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Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999), overruled on other grounds by

State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409(2017), our Supreme Court

held that "[fludicial discretion to impose an exceptional sentence does not extend

to a deadly weapon enhancement." Id. at 29. Although the Court's recent decision

in Houston-Sconiers modified Brown, it did so only with respect to juvenile

offenders and Eighth Amendment considerations. 188 Wn.2d at 34. The Court

did not modify Brown's applicability to adult defendants.

      Thus, under Brown, the sentencing court had no authority to shorten the

duration of Patterson's firearm enhancement.

      Affirmed.




WE CONCUR:
