         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



THE STATE OF WASHINGTON,                        No. 73721-0-1


                    Respondent,
                                                DIVISION ONE
                    v.



AUNARAY MARKEYS LUCKETT,                        UNPUBLISHED OPINION

                    Appellant.
                                                FILED: October 10, 2016


      Mann, J. — Aunaray Luckett appeals his standard range sentence on the grounds

that the court abused its discretion in failing to consider Luckett's request for an

exceptional sentence downward. Finding no error, we affirm.

                                        FACTS

      Jacqueline Nelson was the protected party of a domestic violence no-contact order

against her son, Aunaray Luckett. The protective order prohibited Luckett from contacting

Ms. Nelson or coming within 150 feet of her residence.          On June 12, 2014, police

responded to Nelson's residence after a neighbor reported screaming and possible

gunshots fired. When the police arrived they heard screaming from inside. Police entered

the residence, made contact with Nelson, and arrested Luckett.
No. 73721-0-1/2


      The State charged Aunaray Luckett with violation of a no-contact order with the

aggravating factor that he was on community custody at the time he committed the

offense; the offense was elevated to a felony due to two previous no-contact order

violations. After a one-day trial, the jury found Luckett guilty as charged. The standard

range was 33 to 43 months confinement. The court sentenced Luckett to 43 months

confinement.

      At the initial sentencing hearing, the State requested a standard range sentence.

Luckett moved for an exceptional sentence downward to 12 months plus one day on the

basis that: (1) Nelson invited the contact; and (2) Luckett's low level of mental functioning

contributed to the offense. The judge then questioned Nelson, and she acknowledged

that she invited her son over to the residence on the night in question. The sentencing

hearing was postponed after Luckett started acting erratically in the courtroom and had

to be restrained by court marshals and taken into custody.

       The judge ordered a mental health evaluation by a qualified professional before

proceeding to sentencing. The evaluation took place and the report concluded that

Luckett had no signs of mental health issues or competency issues, with the exception

that Luckett agreed he needed drug and/or alcohol treatment.

       The sentencing hearing resumed the following week. The State requested the

court impose the high end of the range of 43 months based on the Luckett's six prior

domestic violence related convictions and his blatant disregard for the law.         Luckett

reiterated the request for an exceptional sentence downward.

       The court did not to grant an exceptional sentence. In making this ruling the judge

addressed Luckett, stating, "I heard from your mother last week. I was considering what


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No. 73721-0-1/3


Ms. Rancourt was asking the Court to do when it became apparent to the Court that you

had a problem."1 He continued: "I don't think I can consider the request of Ms. Rancourt

at this time for an exceptional sentence downward. I'm going to provide for a standard

range sentence of 43 months confinement."2 The judgment and sentence reflected a

standard range sentence of 43 months confinement.

       Luckett appeals.

                                           ANALYSIS

       Luckett contends that the trial court abused its discretion in failing to consider

Luckett's request for an exceptional sentence downward. Under the Sentencing Reform

Act (SRA), a sentencing court generally must impose a sentence within the standard

sentencing range. RCW 9.94A.505(2)(a)(i); State v. Graham. 181 Wn.2d 878, 882, 337

P.3d 319 (2014). However, the SRA authorizes a departure from the standard range in

some circumstances. See RCW 9.94A.535. A "court may impose a sentence outside the

standard sentence range for an offense if it finds, considering the purpose of this chapter,

that there are substantial and compelling reasons justifying an exceptional sentence"

RCW 9.94A.535. "The court may impose an exceptional sentence below the standard

range if it finds that mitigating circumstances are established by a preponderance of the

evidence."    RCW 9.94A.535(1).          Mitigating circumstances include: whether "[t]o a

significant degree, the victim was an initiator, willing participant, aggressor, or provoker

of the incident;" and, whether "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




       1Report of Proceedings RP (June 25, 2015) at 17.
       2 RP (June 25, 2015) at 17.

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No. 73721-0-1/4


significantly impaired.      Voluntary use of drugs or alcohol is excluded."             RCW

9.94A.535(a), (e).

       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. State v. Garcia-Martinez. 88 Wn. App. 322,

330,944 P.2d 1104 (1997); State v. Grayson, 154 Wn.2d 333,342,111 P.3d 1183 (2005).

Review, however, 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. Garcia-Martinez. 88 Wn. App. at 330.

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

sentence below the standard range under any circumstances; i.e., it takes the position

that it will never impose a sentence below the standard range. Garcia-Martinez. 88 Wn.

App. at 330. The failure to consider an exceptional sentence is reversible error. Grayson,

154Wn.2dat342.


       In this case, there is no evidence that the judge refused "categorically to impose

an exceptional sentence below the standard range under any circumstances." During

sentencing the judge responded to Luckett's motion by addressing Luckett and stating, "I

heard from your mother last week. I was considering what Ms. Rancourt was asking the

Court to do when it became apparent to the Court that you had a problem— I don't think

I can consider the request of Ms. Rancourt at this time for an exceptional sentence

downward. I'm going to provide for a standard range sentence of 43 months

confinement."3 Although the judge used the term "I don't think I can consider the request"



       3 RP (June 25, 2015) at 17.

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No. 73721-0-1/5


it is clear from his earlier statements that he had considered exercising his discretion to

impose an exceptional sentence downward but determined that it should not be applied

in this case, not that it could never be applied. "So long as the trial court has considered

whether there is a basis to impose a sentence outside the standard range, decided that

it is either factually or legally insupportable and imposed a standard range sentence, it

has not violated the defendant's right to equal protection." Garcia-Martinez. 88 Wn. App.

at 330.


                                       CONCLUSION

          Because the trial court did consider Luckett's motion for an exceptional sentence

and determined it was not appropriate in these circumstances, the court holds that the

trial judge did not abuse his discretion when he ruled that Luckett should serve a sentence

within the standard range.

          Affirmed.




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WE CONCUR:



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