 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                          DIVISION ONE
                          Respondent,
                                                          No. 78510-9-1
                 V.
                                                          UNPUBLISHED OPINION
 BRIAN JOSEPH WAYLAND,

                         Appellant.                       FILED: November 12, 2019


        DWYER, J. — Brian Wayland pled guilty to 11 counts of robbery in the first

degree and was given a standard range sentence of 129 months of incarceration.

He appeals from his sentence, asserting that the sentencing court abused its

discretion when it declined to impose an exceptional sentence below the

standard range. Because the sentencing court properly exercised its discretion,

we affirm.

                                                1

        Between March and May 2016, Brian Wayland robbed 11 banks in King,

Pierce, and Thurston counties, stealing approximately $28,000 in cash.

Following his arrest in May, Wayland confessed to the robberies. He then pled

guilty to 11 counts of robbery in the first degree.1

        At his sentencing, Wayland requested an exceptionally lenient sentence of

time served and release to community custody so that he could receive treatment


       1 Although the robberies occurred in multiple counties, all the robbery charges against
Wayland were consolidated under a single cause number in King County.
No. 78510-9-1/2

for posttraumatic stress disorder(PTSD). Wayland asked the court to find that

his capacity to appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of the law was significantly impaired and to grant an

exceptional sentence downward based on RCW 9.94A.535(1)(e).2 In support of

his request, Wayland presented testimony from an expert, Dr. April Gerlock, who

specializes in psychiatric nursing. Gerlock testified that, in her opinion,

Wayland's experience as a soldier in Afghanistan and Iraq, which left him with a

gunshot wound, traumatic brain injuries, and an extreme case of PTSD, resulted

in an impaired ability to conform his conduct to the requirements of the law. Dr.

Gerlock further opined that Wayland needed in-patient treatment to manage his

PTSD.

       The State requested that the sentencing court impose a sentence of 129

months, at the low end of the standard range. The State argued that Wayland's

robberies had significantly traumatized the bank employees he had robbed and

that his PTSD did not significantly impair his "ability to make decisions about

committing [the robberies]." The State also argued that Wayland posed a

significant risk of reoffending if released, as he had been given an exceptionally




      2ROW 9.94A.535(1)(e) states:
              (1) Mitigating Circumstances — Court to Consider
               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. The following are illustrative only and are not intended to be
      exclusive reasons for exceptional sentences.

               (e) 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.


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No. 78510-9-1/3

lenient sentence for prior robbery convictions and had resumed robbing banks

shortly after his release.

       The sentencing court denied Wayland's request for an exceptional

sentence, noting that "[t]he substantial and compelling reason standard is a high

bar. 1 don't find that it's been met," and sentenced Wayland as requested by the

State. The sentencing court concluded that there were no

       substantial and compelling reasons justifying an exceptional
       sentence below the range. The record shows that Mr. Wayland
       does suffer from a mental condition. I don't find a connection
       between that condition and a significant impairment of Mr.
       Wayland's ability to appreciate the wrongfulness of his conduct or
       to conform his conduct to the requirements of the law.

       Explaining the reasons for its decision, the sentencing court further

stated that

              [t]he witness for the defense testified that Mr. Wayland's
      ability to conform was impaired as a result of post-traumatic stress
      disorder and traumatic brain injury, and it could very well be that
      Mr. Wayland engaged in this activity in part to get relief from that,
      but that doesn't mean, at least in my view, that his capacity to
      appreciate the wrongfulness of his conduct was significantly
      impaired. And I underscore that word "significantly."
              On the one hand, robbing banks can seem impulsive and
      irrational like a lot of crimes that are committed. On the other hand,
      Mr. Wayland committed these crimes over a series of weeks in
      multiple counties, and I don't find that to the extent Mr. Wayland
      suffers from post-traumatic stress disorder and traumatic brain
      injury that he was so impaired that he didn't have time, for example,
      to think about the dangers presented by these crimes.

                                         11

      Wayland contends that the sentencing court erred when it declined to give

him an exceptionally lenient sentence. This is so, Wayland asserts, because (1)

the sentencing court applied the wrong standard of proof for determining whether




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No. 78510-9-1/4

there was a substantial and compelling reason to grant an exceptional sentence

and (2) the sentencing court did not consider whether Wayland's capacity to

appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law was significantly impaired.

       Our review of the record, however, leads us to conclude that the

sentencing judge both applied the proper standard of proof and properly

considered Wayland's arguments and evidence before deciding that no

exceptional sentence was warranted herein.

                                        A

       Generally, a sentence within the standard range sentencing guidelines set

forth in the Sentencing Reform Act of 1981 (SRA) may not be appealed. RCW

9.94A.585(1); State v. Osman, 157 Wn.2d 474, 481, 139 P.3d 334 (2006). There

is an exception, however, for when a defendant seeks to challenge the procedure

through which an exceptional sentence is denied and a standard range sentence

is imposed. State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989). In such

circumstances, review is limited to determining whether the sentencing court

abused its discretion by (1) categorically refusing to impose an exceptional

sentence downward under any circumstances,(2) relying on an impermissible

basis for refusing to impose an exceptional sentence below the standard range,

or (3)failing to recognize that it has discretion to impose an exceptional sentence

downward. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104

(1997); accord State v. O'Dell, 183 Wn.2d 680, 697, 358 P.3d 359 (2015); In re

Pers. Restraint of Mulholland, 161 Wn.2d 322, 332-33, 166 P.3d 677(2007).




                                            4
No. 78510-9-1/5

"Even in those instances, however, it is the refusal to exercise discretion or the

impermissible basis for the refusal that is appealable, not the substance of the

decision about the length of the sentence." Garcia-Martinez, 88 Wn. App. at 330.

       RCW 9.94A.535, which sets forth the circumstances in which a court may

deviate from the standard SRA guidelines, states that a court "may impose a

sentence outside the standard sentence range for an offense if it finds . . . that

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

The statute further provides that a 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). The statute then sets

forth a non-exhaustive list of mitigating circumstances which could justify the

imposition of an exceptional sentence below the standard sentence range for an

offense, one of which is that "Mlle 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).



       Wayland contends that the sentencing court applied the wrong standard of

proof and failed to consider the mitigating factor he urged justified the imposition

of an exceptionally lenient sentence. Upon this premise, Wayland asserts that

the sentencing court declined to give him an exceptional sentence because of an

improper reason, application of the wrong legal standard, and its failure to

recognize that it had discretion to impose an exceptional sentence. We disagree.




                                             5
No. 78510-9-1/6

        First, Wayland asserts that the sentencing court applied the wrong burden

of proof when considering Wayland's chosen mitigating factor because, when

announcing its decision, it stated that "[t]he substantial and compelling reason

standard is a high bar. I don't find that it's been met." According to Wayland, this

statement indicates that the sentencing court believed that the burden of proof

was greater than by a preponderance of the evidence. This is plainly wrong.

The sentencing court's statement says nothing about Wayland's burden of proof;

it was simply a recognition that it is difficult to prove the existence of a substantial

and compelling reason to impose an exceptional sentence.3 Wayland does not

identify any support in the record for his assertion that the trial court did not apply

the proper burden of proof.

        Second, Wayland asserts that the sentencing court did not consider the

mitigating factor that his ability to appreciate the wrongfulness of his conduct or

to conform his conduct to the requirements of the law was significantly impaired.4

This, again, is plainly incorrect. The sentencing court stated that there were no

        substantial and compelling reasons justifying an exceptional
        sentence below the range. The record shows that Mr. Wayland
        does suffer from a mental condition. I don't find a connection
        between that condition and a significant impairment of Mr.
        Wayland's ability to appreciate the wrongfulness of his conduct or
        to conform his conduct to the requirements of the law.


        3 Indeed, if it were otherwise, and exceptional sentences became the rule rather than the
exception, the standard range sentencing guidelines could hardly be considered standard.
        4 Wayland also contends that because he successfully proved, by a preponderance of
the evidence, that his ability to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law was significantly impaired, the sentencing court was
required to give him an exceptional sentence as a matter of law. Wayland is wrong. ROW
9.94A.535(1) is clear that a sentencing court may impose an exceptional sentence when a
mitigating factor is proved by a preponderance of the evidence. It does not require the
sentencing court to impose such a sentence but, rather, leaves it to the discretion of the
sentencing court.


                                                   6
No. 78510-9-1/7

        The sentencing court further explicitly acknowledged the testimony of

Wayland's expert and explained why it considered it insufficient to prove the

existence of a mitigating factor justifying an exceptional sentence:

                [t]he witness for the defense testified that Mr. Wayland's
        ability to conform was impaired as a result of post-traumatic stress
        disorder and traumatic brain injury, and it could very well be that
        Mr. Wayland engaged in this activity in part to get relief from that,
        but that doesn't mean, at least in my view, that his capacity to
        appreciate the wrongfulness of his conduct was significantly
        impaired. And I underscore that word "significantly."[5]
                On the one hand, robbing banks can seem impulsive and
        irrational like a lot of crimes that are committed. On the other hand,
        Mr. Wayland committed these crimes over a series of weeks in
        multiple counties, and I don't find that to the extent Mr. Wayland
        suffers from post-traumatic stress disorder and traumatic brain
        injury that he was so impaired that he didn't have time, for example,
        to think about the dangers presented by these crimes.

        In short, the record establishes that the sentencing court fully

considered Wayland's argument and the evidence presented by

Wayland's expert witness and concluded that Wayland's ability to

appreciate the wrongfulness of his conduct or to conform his actions to the

requirements of the law was not proved to be significantly impaired.

        The record establishes that the sentencing court exercised its

discretionary authority to consider whether to grant Wayland an

exceptional sentence and concluded that Wayland had failed to prove the

existence of a mitigating factor that could permit the court to impose such


         5 Wayland contends that this statement shows that the sentencing court considered only
whether Wayland's ability to appreciate the wrongfulness of his conduct was significantly
impaired and did not consider whether Wayland's ability to conform his conduct to the
requirements of the law was significantly impaired. The record rebuts this contention. The
sentencing court explicitly stated that it did not find a connection between Wayland's mental
health conditions and his "ability to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law." It plainly considered Wayland's asserted mitigating
factor in its entirety.


                                                    7
No. 78510-9-1/8

a sentence. Wayland's disagreement with the sentencing court's

conclusion regarding his ability to appreciate the wrongfulness of his

conduct and to conform his conduct to the requirements of the law is not

ground for reversal.

      Affirmed.



WE CONCUR:




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