IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


IN THE MATTER OF THE                                No. 65690-2-1
PERSONAL RESTRAINT OF:
                                                    DIVISION ONE                        S?
ALI ELMI,
                                                    UNPUBLISHED OPINION
                      Petitioner.
                                                    FILED:      SEP 2 3 2013

       PER CURIAM. AN Elmi filed a personal restraint petition challenging his

conviction by a jury of one count of attempted first degree murder, three counts of

first degree assault, and one count of violating a protection order for an incident in

which he fired shots into his estranged wife's house with her child and siblings

inside. The convictions on the four felony counts carried firearm enhancements.

In an order dated June 18, 2013, this court dismissed Elmi's claims that: (1) his

right to a public trial was violated when the trial court sealed juror questionnaires

without conducting the analysis required by State v. Bone-Club1: (2) appellate
counsel was ineffective for failing to raise the public trial issue on direct appeal;

and (3) post-trial concerns about the credibility of an expert witness merited a

reference hearing.




  128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
No. 65690-2-1/2



         The sole remaining issue is whether the sentencing court erred when it

stated that it had no discretion to impose concurrent instead of consecutive

sentences for separate serious violent offenses.

        At sentencing, the State argued that because the four felony counts were

serious violent offenses, the sentences were required to run consecutively.2 The
State also argued that the firearm enhancements were required to run

consecutively to the sentences for the underlying crimes.3 This resulted in a
standard range sentence of 459 to 651 months plus 240 months for the firearm

enhancements. Defense counsel argued for an exceptional sentence below the

standard range. The sentencing court stated:

                 I don't know that there is an easier way to put this, because
         this isn't an easy thing to do. There is no delight in sentencing
         someone to a great amount of prison time. No delight at all. Not for
         me, anyway. But I don't believe that the laws of the state of
         Washington allow me to do anything other than what I am about to
         do.


                Now, I would add to Mr. Elmi's situation, I would certainly
         indicate that from my own perspective, I believe that the standard
         range in this case is too high. I truly do believe that. However, I
         also believe that the law requires the imposition of a sentence of
         459 months, plus the 240 months, of which are to run consecutive. I
         believe that is what the law requires. I believe I don't have any other
         choice but to follow the law in this instance. That is 699 months.
         When you compare the 699 months in this case to the cases that
         Mr. Elmi has just pointed out, and the cases that [defense counsel]
         pointed out in her material, and to the cases I'm personally familiar
         with, there seems to be some disparity. And I certainly would agree
2
    Former RCW 9.94A.030(37)(a) (2002) lists crimes that constitute "serious violent
offenses," including first degree assault and attempted first degree murder. Pursuant to
RCW 9.94A.589(1)(b), sentences for multiple serious violent offenses "shall be served
consecutively to each other."
3 "[A]ll deadly weapon enhancements...shall run consecutively to all other sentencing
provisions[.]" Former RCW9.94A.510(4)(e) (2002).
No. 65690-2-1/3



      with that. But I would also agree with the State that the sentencing
      called for under the law is the sentence that I have just
      imposed... It's clear to me that all of those sentences have to be
      consecutive because of the nature of the crimes with which Mr. Elmi
      has been convicted.

The sentencing court sentenced Elmi to a total of 699 months, which included

consecutive sentences on the four felonies as well as consecutive firearm

enhancements.


       In In re Pers. Restraint of Mulholland. 161 Wn.2d 322,166 P.3d 677

(2007), the Washington Supreme Court held that a sentencing court has the

discretion to impose concurrent sentences for separate serious violent offenses as

an exceptional sentence, and that the failure to recognize such discretion

constitutes "a fundamental defect which inherently results in a complete

miscarriage of justice." Mulholland, 161 Wn.2d at 332-333.

              The record does not show that it was a certainty that the trial
       court would have imposed a mitigated exceptional sentence ifit had
       been aware that such a sentence was an option. Nonetheless, the
       trial court's remarks indicate that it was a possibility. In our view,
       this is sufficient to conclude that a different sentence might have
       been imposed had the trial court applied the law correctly. Where
       the appellate court "cannot say that the sentencing court would have
       imposed the same sentence had it known an exceptional sentence
       was an option," remand is proper. State v. McGill. 112 Wn. App. 95,
       100-01, 47 P.3d 173 (2002). As we said in Grayson, "[wjhile no
       defendant is entitled to an exceptional sentence ..., every defendant
       is entitled to ask the trial court to consider such a sentence and to
       have the alternative actually considered." Grayson. 154 Wn.2d at
       342, 111 P.3d 1183 (citing Garcia-Martinez. 88 Wn. App. at 330,
       944 P.2d 1104).

Mulholland. 161 Wn.2d at 334.

       Here, the sentencing court indicated a desire to give Elmi a mitigated

exceptional sentence but believed it could notdo so. The facts are identical to
No. 65690-2-1/4




those in Mulholland. Thus, like the court in Mulholland. we conclude that it is

appropriate to remand to the sentencing court for consideration of Elmi's request

for an exceptional sentence in light of applicable law.4

                                      For the court:




                                                       Vo^wjXL T<




4 We need not address Elmi's related claim that appellate counsel was ineffective for
failing to raise this issue on direct appeal.
