                                                                         FILED
                                                                     JANUARY 25, 2018
                                                                 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. 34933-1-111
                       Respondent,             )
                                               )
       V.                                      )
                                               )
JONATHAN S. KINSMAN,                           )         UNPUBLISHED OPINION
                                               )
                       Appellant.              )

       KORSMO, J. -Jonathan Kinsman appeals from a standard range sentence for ten

counts of possessing and disseminating child pornography. Since the trial court was not

convinced that he established the mitigating factor he was relying on, there was no error.

                                           FACTS

       Mr. Kinsman receives disability benefits du� to several psychological conditions,

including one that an evaluator described as a developmental 1 disorder, which makes

social interactions stressful to him. Nonetheless, his cognitive abilities rank toward the

higher end of the "average" spectrum.




       1   Also described as "high functioning autistim." Clerk's Papers at 71.
No. 34933-1-111
State v. Kinsman


       A police child pornography investigation led to the issuance of a search warrant

for Mr. Kinsman's computer. Police recovered over 1100 images of suspected child

pornography, leading prosecutors to file 21 charges. An agreement was reached and Mr.

Kinsman pleaded guilty to nine counts of possession of a minor engaging in explicit

sexual conduct and one count of disseminating such images. The prosecutor agreed to

recommend a sentence of 96 months in prison, while the defense sought an exceptional

sentence.

       The defense sought a treatment based sentence consistent with the approach of a

special sexual offender sentencing alternative (SSOSA), arguing that three mitigating

factors were available: (1) Mr. Kinsman was unable to appreciate the wrongfulness of his

conduct, (2) the appropriate sentencing alternative was not available, and (3) the sentence

was clearly excessive. The argument was supported by evaluations, including from a

treatment provider, suggesting that prison would only exacerbate Mr. Kinsman's

problems.

       The trial judge concluded that Mr. Kinsman had not established that his condition

rose to the level of being unable to appreciate the wrongfulness of his conduct, the

absence of SSOSA for his offenses was not a basis for declaring an exceptional sentence,

and that the standard range was not excessive for his conduct. The court imposed a low

end term of 87 months in prison and 36 months of community supervision.



                                             2
No. 34933-1-111
State v. Kinsman


       This court permitted Mr. Kinsman to file an untimely appeal due to lack of advice

at sentencing concerning his appeal rights. A panel considered the case without

argument.

                                          ANALYSIS

       Mr. Kinsman argues on appeal that the trial court abused its discretion in denying

his request for an exceptional sentence due to his mental health condition.2 We disagree.

       An exceptional sentence is appropriate when the facts of a case are atypical and

result in a harm either more or less egregious than the norm. E.g., State v. Akin, 77 Wn.

App. 575,892 P.2d 774 (1995) (escape was less egregious than typical,justifying

mitigated sentence). "A sentence within the standard sentence range . .. for an offense

shall not be appealed." RCW 9.94A.585(1). This means,generally,that a party cannot

appeal a standard range sentence. State v. Williams, 149 Wn.2d 143,146,65 P.3d 1214

(2003). Thus,"so long as the sentence falls within the proper presumptive sentencing

ranges set by the legislature,there can be no abuse of discretion as a matter of law as to

the sentence's length." Id. at 146-147.




      2
         Although Mr. Kinsman argues that the purposes of the Sentencing Reform Act
also justified an exceptional sentence,those purposes cannot alone justify an exceptional
sentence since those purposes are already reflected in the legislature's determination of
the standard range. E.g., State v. Law, 154 Wn.2d 85,97, 110 P.3d 717 (2005). We
consider his argument as supporting his chosen sentence rather than as a separate basis
for imposing a mitigated sentence.

                                             3
No. 34933-1-III
State v. Kinsman


       There are some exceptions to this general prohibition. Id. at 147. A party's right

to "challenge the underlying legal conclusions and determinations by which a court

comes to apply a particular sentencing provision" is not barred by the prohibition. Id.

An appellate court may review a standard range sentence resulting from constitutional

error,procedural error,an error of law,or the failure to exercise discretion. E.g., id.

(State can appeal determination of a defendant's eligibility for a sentencing alternative);

State v. Mail, 121 Wn.2d 707,712,854 P.2d 1042 (1993) (defendant can challenge a trial

court's failure to follow a specific sentencing provision); State v. Ammons, 105 Wn.2d

175,183,713 P.2d 719,718 P.2d 796 (1986) (defendant can challenge trial court's

failure to comply with mandatory procedures); State v. McGill, 112 Wn. App. 95,100,47

P.3d 173 (2002) (sentencing court erred when it failed to recognize it had authority to

impose an exceptional sentence).

       Trial judges exercise structured discretion given by the legislature. Ammons, 105

Wn.2d at 182-183. Discretion is abused when it is exercised on untenable grounds or for

untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

A reviewing court does not find facts and has no ability to believe that which the trial

court chose not to believe. Quinn v. Cherry Lane Auto Plaza, 153 Wn. App. 710,717,

225 P Jd 266 (2009).




                                             4
No. 34933-1-III
State v. Kinsman


       Here, Mr. Kinsman argued at trial that a statutory mitigating factor applied:

       The 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 of drugs or alcohol is excluded.

RCW 9.94A.535(1)(e). 3 On appeal, Mr. Kinsman argues that the mitigating factors

recognized in our statutes are illustrative and not exclusive, and, thus, the trial court could

have found his mental health to be a mitigating factor even if his condition did not arise

to the level of the statutory mitigating factor. While that observation is correct, it is

legally unavailing.

       The primary problem is that Mr. Kinsman attempted to establish the statutory

mitigating factor rather than a different, unarticulated standard. The trial court cannot be

faulted for failing to exercise discretion in favor of a mitigating factor it was not asked to

consider.

       A second problem is that Mr. Kinsman now focuses on his own condition instead

of how that condition related to the commission of the crime. Since the enactment of our



       3 Tojustify an exceptional sentence under this provision, a defendant must prove
impairment in his or her capacity to think and act in conformity with the law. State v.
Rogers, 112 Wn.2d 180, 185, 770 P.2d 180 (1989). Impairedjudgment and irrational
thinking, alone, are insufficient to establish the mitigating circumstance. Id. Mr. Rogers
was a 50-year-old, highly-educated former schoolteacher and school principal, whom the
trialjudge determined was acting under severe stress. Id. at 182, 184. On review, the
court found no proof that the stress Rogers experienced significantly impaired his
capacity to appreciate the wrongfulness of his conduct. Id. at 185. The court reversed on
that basis and made clear that the test is "stringent." Id.

                                              5
No. 34933-1-111
State v. Kinsman


current sentencing act, trial courts must apply the statutes equally "without discrimination

as to any element that does not relate to the crime or the previous record of the

defendant." RCW 9.94A.340. The personal circumstances of an adult actor are relevant

only as they relate to the criminal incident. Here, Mr. Kinsman appropriately made that

argument to the trial court in terms of how his condition made him unable to appreciate

the wrongfulness of his conduct. He did not attempt to explain what other impact his

condition might have had on the criminal activity.

       Mr. Kinsman made a pitch for the statutory factor and failed to establish it. The

trial court had a very tenable reason for exercising its discretion as it did. There was no

abuse of that discretion.

       The judgment is 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.




WE CONCUR:




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