                                                                         FILED 

                                                                       DEC. 26, 2013 

                                                              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. 31020-5-111
                                            )
                    Respondent,             )
                                            )
             v.                             )
                                            )
JASON ALLEN GRAHAM,                         )        PUBLISHED OPINION
                                            )
                    Appellant.              )

      BROWN, J. -In 2006, this court affirmed Jason A. Graham'S attempted first

degree murder, first degree assault, second degree assault, and first degree possession

of stolen property convictions. See State v. Jones, noted at 136 Wn. App. 1009,2006

WL 3479055 at *12 (Graham I). Mr. Graham'S sentence was partly based on several

firearm enhancements even though the jury found deadly weapon enhancements. Id.

Our Supreme Court accepted review solely regarding the imposition of the firearm

enhancements. State v. Graham, 169 Wn.2d 1005,234 P.3d 210 (2010) (Graham II).

The Supreme Court remanded the matter to this court for reconsideration in light of a

later decided case, State v. Williams-Walker, 167 Wn.2d 889, 225 P.3d 913 (2010).

Under Williams-Walker, a sentencing court must impose a deadly weapon
No. 31020-5-111
State v. Graham


enhancement when the jury finds the defendant was armed with a deadly weapon even

if the weapon was a firearm.

       This court then remanded the matter to the trial court for resentencing consistent

with Williams-Walker. State v. Graham, noted at 163 Wn. App. 1011, 2011 WL

3570120 at *3 (Graham III). At resentencing the court corrected and reduced Mr.

Graham's standard-range sentence from a total of 1,225.5 months to a total of 985.5

months after considering and reluctantly rejecting his multiple offense policy arguments

under RCW 9.94A.589. Mr. Graham appealed his standard-range sentence,

contending the court erred in denying his request for a mitigated exceptional sentence

because it failed to apply multiple offense policy principles of RCW 9.94A.589(1 )(a) to

RCW 9.94A.589(1)(b).

       We conclude the trial court correctly reasoned the multiple offense policy applies

to RCW 9.94A.589(1)(a), but not to serious violent offenses sentenced under RCW

9.94A.589(1)(b). Additionally, in imposing Mr. Graham's standard-range sentence

under RCW 9.94A.589(1)(b), the trial court properly exercised its discretion in rejecting

his multiple offense arguments when reasoning the differences in his criminal behaviors

were not nonexistent, trivial, or trifling. Accordingly, we affirm.

                                           FACTS

       In January 2002, a police officer stopped Mr. Graham in downtown Spokane for

speeding. Graham III, at *1. Gunfire erupted; and Mr. Graham's car sped away.

Eventually the car crashed, and Mr. Graham



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No. 31020-5-111
State v. Graham


       engaged in a gun battle with several officers. He was shot and arrested.

       The State charged Mr. Graham with six counts of attempted first degree murder,

one count of first degree assault, one count of unlawful possession of a firearm, one

count of first degree possession of stolen property, and one count of taking a motor

vehicle without permission. The trial court instructed the jury on the procedure for

deciding the special verdicts regarding deadly weapon enhancements. Graham III,

2011 WL 3570120 at *1. The jury found Mr. Graham guilty of two counts of attempted

first degree murder, four counts of first degree assault, one count of second degree

assault, one count of unlawful possession of a firearm, one count of possession of

stolen property, and one count of taking a motor vehicle without permission. The jury

also found by special verdicts that Mr. Graham was armed with a deadly weapon in the

commission of the attempted murder and assault offenses. Despite the jury's findings

that Mr. Graham was armed with a deadly weapon, the trial court imposed seven

consecutive firearm enhancements, resulting in a sentence of 1,225.5 months. Of that

sentence, 33 years consisted of mandatory consecutive firearm enhancements.

Graham III, 2011 WL 3570120 at *2.

      On appeal, this court affirmed Mr. Graham's convictions and sentence. Graham

I, 2006 WL 3479055 at *1. Mr. Graham filed a petition for review with the Washington

Supreme Court, which granted the petition solely on the enhancement issue and

remanded for this court's reconsideration. Graham 11,169 Wn.2d 1005. Thereafter, this




                                            3

No. 31020-5-111
State v. Graham


court remanded "for resentencing consistent with the decision in Williams-Walker."

Graham III, 2011 WL 3570120 at *3.

       At the 2012 resentencing hearing, Mr. Graham asked the trial court to impose an

exceptional sentence downward of 25 years' confinement. Mr. Graham argued an

exceptional sentence was legally authorized by the "multiple offense policy" mitigating

factor set forth in RCW 9.94A.535(1)(g). He argued the convictions arose from a single

incident and that U[g]iven the lack of incremental harm engendered by each additional

shot, application of the multiple offense policy on the specific facts of this case results in

a sentence which is clearly excessive in light of the stated purposes of the SRA

[Sentencing Reform Act of 1981, ch. 9.94A RCW]." Clerk's Papers (CP) at 89. Mr.

Graham presented evidence demonstrating his rehabilitation during his over 10 years of

incarceration.

       The trial court was "very impressed" with Mr. Graham'S rehabilitation, and stated,

U[T]here's really no doubt in my mind that you've become a changed person since

you've been in prison." Report of Proceedings (RP) at 24-25. Nevertheless, the court

concluded that it did not have a legal basis to impose a mitigated exceptional sentence,

stating:

                 Your lawyer has argued one, basically one [mitigating factor]
                 to me, and that is the application of the multiple offense
                 policy. I spent some time with this .... [RCW]
                 9.94A.589(1 )(a) talks about when you're scoring an offense
                 and you have other current offenses, if there are too many
                 other current offenses, it might be appropriate to impose an
                 exceptional sentence. But if you look at Subpart B, the
                 multiple offense policy doesn't really apply to Subpart B,


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I
I
,   No. 31020-5-111

!   State v. Graham


                  because with serious violents you aren't scoring, you aren't
                  taking into consideration the other current offenses.

    RP at 26-27. The court went on to state, "[I]1's the very rare occasion when you should

    be utilizing the multiple offense policy to reduce a sentence. There is a discussion

    within these opinions regarding an analysis of whether they are-the additional current

    charges are nonexistent, trivial, or trifling." RP at 29. The court further stated,

    "Certainly in a situation where we have someone firing a weapon at an officer, firing on

    another officer who's driving a motor vehicle, firing on a patrol vehicle containing three

    other officers, 1hate to even use the words 'nonexistent, trivial, or trifling.'" RP at 29.

           The court then imposed a 985.5 month standard-range sentence (240 months

    less than the previous sentence). RP at 29. The reduced sentence reflected the court's

    imposition of six 24-month deadly weapon enhancements (down from six 60-month

    enhancements) and one 12-month deadly weapon enhancement (down from one 36­

    month enhancement).1 CP -at 172. The court ordered all sentences to be served

    consecutively. The court stated, "I don't agree with this sentence .... But without

    some other mitigating circumstance, my hands are tied." RP at 29. Mr. Graham

    appealed.

                                             ANALYSIS

           The issue is whether the trial court erred in rejecting Mr. Graham's mitigated

    exceptional sentencing request based on the multiple offense policy and imposing a



           1 The State erroneously asserts in its brief (Resp't's Br. at 4) that the sentencing
    court reduced the sentence beyond the enhancement corrections. Based on this

                                                  5
    No. 31020-5-111
    State v. Graham



j   standard-range sentence under RCW 9.94A.589(1)(b). Mr. Graham contends the trial

    court improperly failed to consider the application of the multiple offense policy.


I
j
           Initially, the State co~tends Mr. Graham's issues are not appealable because the

    trial court was limited to resentencing consistent with Williams-Walker. Any issue

I   outside the enhancement issue, the State argues, is not properly before this court.

           In State v. Toney, 149 Wn. App. 787,205 P.3d 944 (2009), Division Two of this

    court addressed whether a ~efendant may raise and argue issues in a second appeal

    despite failing to raise those issues in the first appeal. Mr. Toney originally argued

    former RCW 9.94A310 (1996) did not mandate firearm enhancements to run

    consecutively. The Toney court agreed and "remanded for resentencing under

    'proceedings consistent wit~ this opinion.'" Toney, 149 Wn. App. at 790. The trial court

    sentenced Mr. Toney, per the appellate court's direction, but conducted a new

    sentencing hearing prior to imposing the sentence. Mr. Toney again appealed, this time

    challenging community placement and raising double jeopardy concerns. The State

    responded that these issues could not be raised for the first time on a second appeal.

    The Toney court held a defendant "may raise sentencing issues on a second appeal if,

    on the first appeal, the appellate court vacates the original sentence or remands for an

    entirely new sentencing proceeding, but not when the appellate court remands for the

    trial court to enter only a ministerial correction of the original sentence." Toney, 149

    Wn. App. at 792.


    incorrect assertion, the State requests affirmative relief. Even if the State were correct,
    RAP 5.1 (d) requires the filing of a notice of cross review to request affirmative relief.

                                                 6
    No. 31020-5-111
    State v. Graham
J


I
1
           Here, this court remanded "for resentencing consistent with the decision in

    Williams-Walker." Graham III, 2011 WL 3570120 at *3. This language is distinct from


I   Toney because this court specifically limited the resentencing to one case, but like the

I   court in Toney, the court conducted a new sentencing hearing. While the court

    resentenced Mr. Graham to reflect the enhancement corrections, it considered Mr.
1
i
    Grahams argument for a mitigated sentence and decided against it. When a court
f
1   exercises "independent judgment" and rules again, then that issue becomes an


I
I
    "appealable question." State v. Barberio, 121 Wn.2d 48,50,846 P.2d 519 (1993).

           Turning to whether Mr. Graham may appeal his standard-range sentence, the


I   law is well settled that generally a defendant cannot appeal a standard-range sentence.

    See RCW 9.94A.585(1); State v. Williams, 149 Wn.2d 143, 146,65 P.3d 1214 (2003).

    Nevertheless, a criminal defendant "may appeal a standard range sentence if the

    sentencing court failed to comply with procedural requirements of the SRA or

    constitutional requirements." State v. Osman, 157 Wn.2d 474, 481-82, 139 P.3d 334

    (2006). "[W]here a defendant has requested an exceptional sentence below the

    standard range[,] review 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." State v. Garcia-Martinez, 88 Wn.

    App. 322, 330, 944 P.2d 1104 (1997). "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



                                                7

No. 31020-5-111
State v. Graham


below the standard range." Id. at 330. A court relies on an impermissible basis for

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.

       In State v. Cole, 117 Wn. App. 870, 880,73 P.3d 411 (2003), the defendant

unsuccessfully requested a below-range sentence and then challenged the court's

refusal to impose an exceptional sentence on appeal. The court held the defendant

could not appeal from a standard-range sentence where the trial court considered the

defendant's request for the application of a mitigating factor, heard extensive argument

on the subject, and then exercised its discretion by denying the request. Id. at 881.

Similarly, in Garcia-Martinez, involving an equal protection challenge to a standard-

range sentence, the court held a trial court that has considered the facts and concluded

no basis exists for an exceptional sentence has exercised its discretion and the

defendant may not appeal that ruling. 88 Wn. App. at 330.

      Here, the trial court found no legal support existed for a mitigated sentence

based on the multiple offense policy "because with serious violents you aren't scoring,

you aren't taking into consideration the other current offenses." RP at 27.

      RCW 9.94A.535(1)(g) provides a nonexclusive list of mitigating factors for

awarding exceptional sentences, one of which is a finding that "[t]he operation of the

multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is

clearly excessive in light of the purpose of this chapter, as expressed in RCW



                                            8

No. 31020-5-111
State v. Graham


9.94A.010." RCW 9.94A.535(1)(g). RCW 9.94A.589 specifies the rules for sentencing

defendants with multiple convictions. Generally, sentences for multiple offenses set at

one sentencing hearing are served concurrently. But, where two or more serious violent

offenses are presented, the multiple offense policy provides the defendant's offender

score for the crime with the highest seriousness level shall be computed using other

current convictions that are not serious violent offenses, and the sentence range for

other serious violent offenses shall be determined by using an offender score of zero.

RCW 9.94A.589(1)(b). The sentences are then imposed consecutively. Id.

       Mr. Graham argues if the resulting sentence under RCW 9.94A.589(1)(b) is

clearly excessive, then the court may impose a mitigated exceptional sentence under

RCW 9.94A.535(1)(g). We have found no published Washington cases applying the

mitigating factor of RCW 9.94A.535(1)(g) to serious violent offenses. Professor David

Boerner sheds some light on why, "In particular, the addition by the Legislature of

special provisions governing multiple 'serious violent' crimes is clear evidence of its

belief that just punishment for such offenders required significant terms of confinement."

David Boerner, Sentencing in Washington, 9-32 (1985).

       The "multiple offense policy" refers to the trade-off recognized by the legislature

in the first subsection of RCW 9.94A.589(1). State v. Batista, 116 Wn.2d 777, 786-87,

808 P.2d 1141 (1991). When dealing with most cases involving multiple crimes, the

offenses are counted as if they were prior criminal history when calculating the offender




                                             9

     No. 31020-S-111
     State v. Graham


     score for each offense. Sentences computed in such a manner are then served

     concurrently unless a basis for an exceptional sentence exists. RCW 9.94A.S89(1)(a).

            However, the trade-off in RCW 9.94A.S89(1)(a) is nonexistent when sentencing

     serious violent offenses under RCW 9.94A.S89(1)(b). Instead, multiple serious violent

     offenses do not count in the offender score for any other serious violent offenses. The

     most serious crime is sentenced considering the defendant's whole criminal history,
I
   excluding other current serious violent offenses and a standard range computed in the

I    normal manner. For all other serious violent offenses, the crimes are scored with an


I
I
     offender score of zero and are directed to run consecutively to the most serious offense.

           As clarified in Batista) "It is important to remember what is meant by the 'multiple
I
     offense policy' . . . . The statute sets out a precise, detailed scheme to follow where

     multiple offenses are involved. Where multiple current offenses are concerned, except

     in specified instances involving multiple violent felonies, presumptive sentences for

     multiple current offenses consist of concurrent sentences, each computed with the

     others treated as criminal history utilized in calculating the offender score." 116 Wn.2d

     at 786 (emphasis added). In other words, the multiple offense policy refers to

     sentencing proceedings under RCW 9.94A.S89(1)(a); it does not apply to sentencing

     under subsection (1 )(b) ,that involves multiple violent felonies. As Mr. Graham correctly

     pOints out, it is possible for a mitigated exceptional sentence involving concurrent terms

     under RCW 9.94A.S89(1)(b). See In re Pers. Restraint of Mulholland, 161 Wn.2d 322,

     166 P.3d 677 (2007) (holding a trial court's discretion to impose an exceptional



                                                 10 

No. 31020-5-111
State v. Graham


sentence includes discretion to impose concurrent sentences where consecutive

sentences are presumptively called for). But, the multiple offense policy of subsection

(1)(a) is not itself a basis for an exceptional sentence under subsection (1)(b) of RCW

9.94A.589. The trial court properly concluded likewise.

       Moreover, even if the RCW 9.94A.589(1)(a) multiple offense policy did apply, the

court considered this basis for a mitigated sentence and rejected it. Again, if a trial

court considers the facts and rejects that basis for an exceptional sentence, then a

defendant may not appeal that ruling. Garcia-Martinez, 88 Wn. App. at 330. Here, the

trial court similarly considered the basis for a mitigated sentence suggested by Mr.

Graham and rejected it. The court determined, "[Ilt's the very rare occasion when you

should be utilizing the multiple offense policy" and that there is "an analysis of whether

they are-the additional current charges are nonexistent, trivial, or trifling." RP at 29.

The court reasoned, "Certainly in a situation where we have someone firing a weapon at

an officer, firing on another officer who's driving a motor vehicle, firing on a patrol

vehicle containing three other officers, I hate to even use the words 'nonexistent, trivial,

or trifling.'" RP at 29. Thus, the trial court considered the factual circumstances and

determined the case was not one warranting a lowered sentence. Therefore, the court
                             -
exercised its discretion and decided a standard-range sentence was appropriate.

Accordingly, Mr. Graham cannot prevail on this challenge to his standard-range

sentence.




                                              11 

I

I
   No. 31020-5-111
     State v. Graham

1
I            In sum, the court did not wrongly refuse to exercise discretion; nor did the court

     rely on an impermissible basis in denying Mr. Graham's request.
j           Affirmed.
I
f                                                        Brown, J.
I
~

1    WE CONCUR:




     Kulik, J.
                                                          3
                                                         Fearin~




                                                  12 

