      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            )
 STATE OF WASHINGTON,                       )         No. 75528-5-1
                                            )
                      Respondent,           )         DIVISION ONE
                                            )
              V.                            )
                                            )
 DONALD WAYNE DAVIDSEN,                     )         UNPUBLISHED
                                            )
                      Appellant.            )         FILED: November 13, 2017
                                            )


       Cox, J. — Donald Davidsen appeals his judgment and sentence, arguing

that the trial court abused its discretion by inadequately considering his request

for a mitigated exceptional sentence. We hold that the trial court adequately

considered Davidsen's request. As such, it did not abuse its discretion. Thus,

we affirm the judgment and sentence.

       The State charged Davidsen with failing to update his sex offender

registration upon changing addresses. He pleaded guilty as charged and sought

a mitigated exceptional sentence.

       The sentencing court engaged in two days of colloquy and reviewed the

parties' briefs. Davidsen requested an exceptional sentence based on

improvements he had made in his life. He explained that he had found

employment, entered treatment, become active in his community, and was

expecting his first child soon. He had begun to overcome a long term drug
No. 75528-5-1/2


addiction. But he had recently relapsed, based on a narcotic pain medication he

was prescribed. Allegedly, that relapse factored into his failure to register.

       The sentencing court concluded that these arguments did not provide

legal grounds to justify a mitigated exceptional sentence. Accordingly, it denied

Davidsen's request and imposed a standard range sentence of 17 months

confinement and 36 months community custody.

                     MITIGATED EXCEPTIONAL SENTENCE

       Davidsen argues that the trial court abused its discretion by failing to

recognize its own authority to impose a mitigated exceptional sentence based on

circumstances not expressly stated in RCW 9.94A.535. We disagree.

       A defendant generally cannot appeal a standard range sentence.1 But

every "defendant is entitled to ask the trial court to consider [an exceptional]

sentence and to have the alternative actually considered."2 Thus, a trial court

that refuses categorically to consider such a request abuses its discretion.3 The

trial court also abuses its discretion when it sentences based on a legal

misunderstanding of its own discretion.4

       We review for abuse of discretion the trial court's consideration of a

request for a mitigated exceptional sentence.5


          RCW 9.94A.585(1).
      2 State   v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183(2005).
       3 Id.

          In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 334, 166 P.3d 677
(2007).
      5   Grayson, 154 Wn.2d at 341-42.

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       In re Personal Restraint of Mulholland6 is instructive on the exercise of

discretion in this regard. The trial court had sentenced Daniel Mulholland for six

counts of first degree assault, and one count of drive-by shooting. Despite

Mulholland's request, the trial court declined to impose concurrent sentences,

concluding that it lacked the discretion to do so.7

       The supreme court reversed this conclusion, noting that the trial court had

"made statements on the record which indicated some openness toward an

exceptional sentence."8 Although this did "not show that it was a certainty that

the trial court would have imposed a mitigated exceptional sentence if it had

been aware that such a sentence was an option. . . [its] remarks indicate that it

was a possibility."6 Remand was proper when it could not be said that the

sentence would have been the same had the trial court better understood its own

discretion.1°

       RCW 9.94A.535 governs the trial court's consideration in determining

whether to grant an exceptional sentence. Under that statute, the trial court may •

impose an exceptional sentence if justified by "substantial and compelling

reasons."11 The defendant can provide these reasons by proving certain



      6    161 Wn.2d 322, 166 P.3d 677(2007).
       7 Id. at 326.

       8   Id. at 333.
       9   Id. at 334.
       10 Id.
       11   RCW 9.94A.535.


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mitigating circumstances by a preponderance of the evidence.12 These

circumstances are those that "distinguish [the crime]from other crimes of the

same statutory category."13 They are not "personal characteristics" of the

defendant.14 The statute provides a list of illustrative circumstances and clarifies

that these are not exhaustive.15

       Here, the sentencing court did not fail to recognize the scope of its

discretion. Nor did it abuse the discretion it had. Davidsen and the State both

acknowledged to the sentencing court that RCW 9.94A.535's list of enumerated

circumstances was not exhaustive. The record does not suggest that the

sentencing court concluded otherwise.

       Davidsen presented as mitigating circumstances that he had found stable

housing and employment, and had a child on the way. Recognizing that he had

a "significant drug and alcohol problem," he explained that he was making

progress, and after 30 days of inpatient treatment, had reached sobriety.16

       Instead of rejecting these arguments, the sentencing court considered

them at length. It expressed some concern whether these grounds provided a

legal basis for a mitigated exceptional sentence. In this, the sentencing court




      12   RCW 9.94A.535(1).
      13 State   v. Pennington, 112 Wn.2d 606, 610, 772 P.2d 1009 (1989).
      14   State v. Murray, 128 Wn. App. 718, 724-25, 116 P.3d 1072(2005).
      15   RCW 9.94A.535(1).
      16   Report of Proceedings Vol. 1 (July 11, 2016)at 4.


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correctly adhered to the principle that an exceptional mitigated sentence cannot

be justified by the defendant's personal characteristics.

       The sentencing court further expressed concern that "almost every

defendant could probably argue" the same.17 It elaborated that were it to grant a

mitigated exceptional sentence,"every. . . defendant that's had time, between

the time they committed the offense and the time they come in to sentencing, if

they've made improvements in their life can ask for an exceptional sentence

below the standard range."19

       The sentencing court also discussed a previous mitigated exceptional

sentence that Davidsen had received, based on the "same exact" grounds he

presented now.19 Given that precedent, the sentencing court wondered "how

many chances" Davidsen should get.29 It concluded that it did not "think the fact

that[Davidsen had] modified his life and . . . made these significant changes is

an appropriate basis for an exceptional sentence."21

      The sentencing court did not misconstrue the extent of its discretion. It

considered the bases presented and discussed them with counsel and Davidsen.

It provided reasons for rejecting them, specifically whether they were relevant

under the Sentencing Reform Act, and whether Davidsen should be granted



      17   Id. at 3.
      18   Id. at 8.
      19   Id. at 9.
      20   Id.

      21   Id. at 18.


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another mitigated exceptional sentence for arguments he had made in the past,

only to reoffend again. This was not an abuse of discretion.

       Davidsen further argues that the trial court abused its discretion in failing *

to adequately consider his claim that a drug relapse justified a mitigated

exceptional sentence. This argument is unpersuasive.

      Two illustrative circumstances identified in RCW 9.94A.535 are relevant

here. RCW 9.94A.535(1)(c) arises when "[t]he defendant committed the crime

under duress, coercion, threat, or compulsion insufficient to constitute a complete

defense but which significantly affected his or her conduct." RCW

9.94A.535(1)(e) arises when "[t]he 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."

       State v. Hutse1122 assists our understanding of these two circumstances.

The sentencing court had granted Allen Hutsell a mitigated exceptional sentence

on his forgery conviction.23 It based that decision on Hutsell's cocaine use,

rendered involuntary by psychological addiction.24 The State appealed.

       Hutsell argued to the supreme court that the downward departure had

been justified based on the two circumstances we listed above.25 But the court


      22 120 Wn.2d       913, 845 P.2d 1325 (1993).
      23   Id. at 916.
      24   Id.
      25   Id. at 918.


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No. 75528-5-1/7


disagreed. Regarding RCW 9.94A.535(1)(c), it held that the terms "duress,

coercion, threat, or compulsion" connote the influence of some force coming from

outside the defendant.26 Addiction was not such a force.27

       Regarding RCW 9.94A.535(1)(e), the court held that intoxication was only.

involuntary if forced or fraudulently induced, not caused by addiction.28 Thus,

any intoxication caused by Hutsell's addiction was voluntary.

       Here, Davidsen's relapse argument fails for the same reasons.

A doctor had recently prescribed him narcotic pain medications, which triggered

his addiction. He claimed that although his addiction was a "personal"

characteristic, it was also related to his crime. Specifically, he alleged that this

relapse caused him to neglect his obligation to update his registration.

       The doctor's prescription did not constitute "duress, coercion, threat, or

compulsion" within the meaning of RCW 9.94A.535(1)(c). Whatever its effect

upon Davidsen's addiction, that addiction was an internal force within Davidsen.

       Nor did the doctor force Davidsen to ingest the painkillers by prescribing

them, so as would render his intoxication involuntary. "Force" as a legal term,

connotes "[plower, violence, or pressure directed against a person."29 As a verb,

it means "[t]o compel by physical means or by legal requirement."3°



       26   Id.
       27   Id.
       28   Id. at 922.
       28   BLACK'S LAW DICTIONARY 760 (10th ed. 2014).
       30 Id. at 761.


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      The doctor did not physically or legally require Davidsen to ingest the

specific painkillers. As the sentencing court suggested, Davidsen may have

been able to tell "his doctor he has a substance abuse problem and he needs

non-narcotics."31 After his relapse, Davidsen "red-flagged" himself to avoid

receiving such prescriptions in the future. Presumably he could have done so

when originally prescribed. Any intoxication that followed was "voluntary" under

Hutsell.

                               APPELLATE COSTS

       Davidsen asks this court to deny the State its costs. The State has

responded that it is not seeking costs on appeal. Accordingly, no costs shall be

awarded to the State.

      We affirm the judgment and sentence.
                                                                     S.




WE CONCUR:




      31   Report of Proceedings Vol. I (July 11, 2016) at 13.

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