FILED 

JUNE 06, 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. 30575-9-III 

) 

Respondent, ) 

) 

v. ) 

) UNPUBLISHED OPINION 

ROBERT TODD WALKER, ) 

) 

Appellant. ) 

KORSMO, C.J. - Robert Walker appeals his conviction for manufacturing 

methamphetamine and the accompanying exceptional sentence, raising numerous 

arguments. Concluding that he has not established any prejudicial error, we affirm. 

FACTS 

An effort to manufacture methamphetamine caused a fire in Joe Leckenby's 

bedroom on September 14, 2003. Robert Walker's cousin observed him jump out of 

Leckenby's bedroom window, climb back inside and throw something from the room out 

the window, and then jump back outside again. While his cousin called the fire 

department, Mr. Walker left the scene. A responding fire fighter saw him depart in a car. 
No.30575-9-III 

State v. Walker 

Outside the window of the bedroom, investigators found a can of acetone and a 

brown liquor bottle with a white substance on the bottle opening. Inside the bedroom, 

police found the remnants of a methamphetamine lab, including: dry ice, a propane torch, 

a water cooler with two pieces of clear plastic tubing with tape, a one-pint glass mason 

jar containing a clear tan liquid that had an I8-inch tube attached to it that was tied at one 

end and contained a white granular substance, a plastic Dr. Pepper bottle containing a 

yellow liquid and clear granules, a two-quart glass jar containing rock salt and yellow 

liquid, small Ziploc "baggies" with residue, a mirror with residue, two glass smoking 

pipes, a can of acetone, and a jar containing acetone. The granules, liquid, and residue 

were found to be methamphetamine. Ex. 23. The report from the crime laboratory, 

Exhibit 23, was entered into evidence at trial without objection; defense counsel 

recognized that it was "self-authenticating." 

The prosecutor charged Mr. Walker with one count ofmanufacturing 

methamphetamine in June 2004. He subsequently failed to appear for an omnibus 

hearing, resulting in the addition of a bail jumping charge. He later failed to appear for a 

trial date. I Trial eventually began in July 2007. At that time, the prosecutor removed the 

bail jumping charge. 

I Mr. Walker's sporadic appearances for mandatory court hearings ultimately 

became the basis for several bail jumping charges. See State v. Walker, 153 Wn. App. 

701,224 P.3d 814 (2009). 

2 
No.30575-9-Ill 

State v. Walker 

A deputy clerk testified to Mr. Walker's failure to appear for three different court 

dates. The trial court, over defense objection, instructed the jury on accomplice liability. 

The defense theory of the case was to blame his uncle, Mr. Leckenby, for the 

manufacturing. Nonetheless, the jury found Mr. Walker guilty on the manufacturing 

count. 

The defense successfully moved to consolidate three bail jumping convictions 

under two other cause numbers for sentencing with this case. The trial court 

subsequently granted a motion to dismiss the manufacturing charge. This court reversed 

and remanded for sentencing. See cause no. 27286-9-Ill. On remand, the trial court 

imposed an exceptional sentence by running the IOO-month manufacturing sentence 

consecutive to the 51-month sentence imposed for three bail jumping convictions. 

Mr. Walker then timely appealed to this court. 

ANALYSIS 

Mr. Walker raises nine issues on appeal. We will address, sometimes quite 

briefly, eight of those contentions largely in the order in which they are presented in the 

briefing? 

2 His final contention is a claim of cumulative error, which we need not discuss at 

all because we conclude he has failed to establish any prejudicial error. 

3 
No.30575-9-III 

State v. Walker 

Laboratory Report 

Appellant first contends that his Sixth Amendment right of confrontation was 

violated when Exhibit 23 was entered at trial. He also contends that his counsel was 

ineffective by not requiring the laboratory analyst to testify at trial. 

Both ofthese contentions have been rejected in recent decisions. The right of 

confrontation is not violated by the admission of laboratory reports in accordance with 

CrR 6.l3(b). State v. Schroeder, 164 Wn. App. 164, 168,262 P.3d 1237 (2011). The 

right must be asserted or it is waived. Id.; State v. O'Cain, 169 Wn. App. 228, 247-48, 

279 P.3d 926 (2012). Furthermore, the tactical decision whether or not to demand the 

presence ofthe witness is one for trial counsel to make. O'Cain, 169 Wn. App. at 244­

45. Typically, tactical decisions are not subject to an ineffectiveness challenge. 

Strickland v. Washington, 466 U.S.668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). 

We can see many reasons why defense counsel would not want an analyst to 

testify at trial and buttress the conclusions expressed in the report. It is far easier to raise 

questions to a jury in closing argument than it is to obtain useful answers from the 

opposing side's expert witness. Seldom will there be a need to have the expert testify. 

The Sixth Amendment right to confrontation was not violated. Counsel similarly 

was not ineffective by declining to demand the analyst testify at trial. 

4 

No. 30S7S-9-III 

State v. Walker 

Flight Evidence 

Mr. Walker next contends that the trial court erred by permitting evidence at trial 

that he fled from the area and that he missed several court dates. This argument was 

waived by his failure to object at trial. 

RAP 2.S(a) states the general rule-except for manifest constitutional and 

jurisdictional matters, a party must object at trial in order to preserve an issue for 

appellate review. With respect to evidentiary issues, the rules are even tighter. In order 

to present an evidentiary argument on appeal, the party must have challenged the 

admission of evidence at trial on the same grounds that it raises on appeal. State v. 

Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). As explained in Guloy: 

As to statement (d), counsel objected but on the basis that it was not proper 

impeachment nor was it within the scope of redirect. A party may only 

assign error in the appellate court on the specific ground of the evidentiary 

objection made at trial. Since the specific objection made at trial is not the 

basis the defendants are arguing before this court, they have lost their 

opportunity for review. 

Id. (citation omitted). 

The admission of other "bad acts" evidence under ER 404(b) does not present a 

constitutional issue. Dowling v. United States, 493 U.S. 342,352, 110 S. Ct. 668, 107 L. 

Ed. 2d 708 (1990). It likewise does not implicate the jurisdiction of the trial court. 

Accordingly, there is no basis for this court to consider the argument. RAP 2.5(a). 

5 

No.30575-9-III 

State v. Walker 

The challenge to the flight evidence was waived by the failure to present the 

matter to the trial court. 

Prosecutor's Closing Argument 

Mr. Walker next argues that the prosecutor erred in closing argument by allegedly 

commenting on his right to remain silent, telling the jury the right decision was to find 

the defendant guilty, and expressing the prosecutor's personal opinion. He did not 

challenge any of these statements at trial. We conclude that he has not met the high 

burden applicable to this type of challenge. 

The appellant bears the burden ofdemonstrating prosecutorial misconduct on 

appeal. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997). The appellant must 

establish that the conduct was both improper and prejudicial. Id. Prejudice occurs where 

there is a substantial likelihood that the misconduct affected the jury's verdict. Id. at 718­

19. Reversal is not required where the alleged error could have been obviated by a 

curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). 

Moreover, the failure to object constitutes a waiver unless the remark was so flagrant and 

ill-intentioned that it evinced an enduring and resulting prejudice that could not have 

been neutralized by an admonition to the jury. Id. Moreover, a prosecutor has "wide 

latitude" in arguing inferences from the evidence presented. Stenson, 132 Wn.2d at 727. 

6 

No. 30575-9-III 

State v. Walker 

Right to Remain Silent. Mr. Walker argues first that by mentioning his flight and 

failure to appear in court during closing argument, the prosecutor commented on his right 

to remain silent in derogation ofthe Fifth Amendment. This novel argument has no 

support in law or fact. 

A statement will only be considered a comment on the right to remain silent if it 

was intended to be a comment on the right; otherwise, mention of silence constitutes a 

"~mere reference'" that is not a violation unless prejudice is shown. State v. Burke, 163 

Wn.2d 204, 216, 181 P.3d 1 (2008) (citing State v. Crane, 116 Wn.2d 315, 804 P.2d 10 

(1991) and State v. Lewis, 130 Wn.2d 700,927 P.2d 235 (1996». A subtle and brief 

remark does not normally amount to a comment on the right to remain silent. Burke, 163 

Wn.2d at 216; Crane, 116 Wn.2d at 331. 

The prosecutor did discuss Mr. Walker's flight at some length, as well as his 

failures to appear in court and his "omissions by conduct." The discussion was not 

"subtle and brief." The question remaining is whether the discussion was clearly 

intended to be a comment on the right to remain silent. It was not. 

The trial court permitted the prosecutor to offer flight evidence. He therefore was 

free to comment on it during argument. Mr. Walker did more than flee the scene of a 

fire; he also abruptly departed the area and had to be extradited back from Oklahoma.3 It 

3 State v. Walker, 153 Wn. App. 701, 707, 224 P.3d 814 (2009). 

7 

No. 30575-9-111 

State v. Walker 

is very difficult to understand how this evidence should be considered an assertion ofthe 

right to remain silent. It is even more difficult to classity the prosecutor's discussion of 

the evidence as commentary on the defendant's exercise of a constitutional right. 

The prosecutor's argument addressing the flight evidence did not constitute 

misconduct. 

"Get This Right." Mr. Walker next argues that the prosecutor erred by telling the 

jury to "get this right" and find the defendant gUilty. In the context ofthe argument, the 

statement was not improper, and to the extent it could have been viewed otherwise, it was 

capable of correction by timely objection. 

During rebuttal argument, the prosecutor addressed defense counsel's statements 

about the testimony ofthe defendant's cousin and the first responding fire fighter, stating 

near the end of his remarks: 

The fact is Ms. Brown and John Hodge are consistent on that. It's 

him. He was the one there at the scene actively going in, going out, tossing 

things out the window. He was the one that fled. Ladies and gentlemen, 

I'm asking you to hold this person accountable for what he did. You need to 

get this right, and the right decision, the right verdict is to find the 

defendant gUilty. 

Report of Proceedings (RP) at 163 (emphasis added). 

In context, this statement appears to be little more than indicating that the proper 

conclusion to be drawn from the testimony was that Mr. Walker was the person tossing 

8 

No.30575-9-III 

State v. Walker 

items out of the bedroom and then fleeing the scene. Telling the jury to reject the defense 

argument and return the correct verdict was not improper. 

Other states have found similar arguments by the prosecutor to be improper when 

they do not relate to the evidence. E.g., State v. Musser, 721 N.W.2d 734 (Iowa 2006); 

Impson v. State, 721 N.E.2d 1275, 1283 (Ind. Ct. App. 2000); Lisle v. State, 113 Nev. 

540, 937 P.2d 473 (1997). In Musser, for instance, the Iowa Supreme Court interpreted 

the prosecutor's remarks as arguing that the jury could find the evidence insufficient but 

still convict the defendant because it was the right thing to do. 721 N.W.2d at 755-56. 

That same problem does not arise here. The prosecutor's argument was grounded 

in a discussion of the evidence as he transitioned to the conclusion of his remarks. He did 

not argue that the jury should convict despite the evidence. Under these circumstances, 

the statement was not erroneous. 

Lastly, Mr. Walker contends that the prosecutor twice expressed his personal 

opinion of the defendant's guilt during closing argument. On the first occasion, the 

prosecutor stated: "Now, I'm not here telling you the only person involved in this is the 

defendant. I do not know, but I know that he - I think the evidence shows that he is 

involved without any question." RP at 151. On the second occasion, the prosecutor 

explained why the defendant had fled when he should have been letting a jury decide the 

9 

No. 30575-9-III 

State v. Walker 

case: "The reason he doesn't is that he knows-I know he knows what the outcome 

should be." RP at 154. 

A prosecuting attorney is not allowed to state his personal opinion regarding the 

defendant's guilt. State v. Copeland, 130 Wn.2d 244,290,922 P.2d 1304 (1996). 

Neither of the now-challenged remarks is a statement of personal opinion concerning the 

defendant's guilt. The first comment was quickly corrected from "I know" to "I think the 

evidence shows" and did not come across as a personal opinion of gUilt. The second 

statement ("I know he knows B) does come across as a personal opinion, but it is not an 

opinion about guilt. Instead, it is a personal opinion about the defendant's own opinion 

of the case as demonstrated by his repeated flight. 

The challenged statements do not amount to misconduct. The statements, to the 

extent any of them were erroneous, also were not so tlagrant or ill-intentioned that they 

were beyond cure from a timely objection. Any misperception easily could have been 

corrected by a timely word from the trial court. For that reason, too, this issue is without 

merit. 

Ineffective Assistance 

Mr. Walker next argues that his trial counsel failed him in several ways, including 

trial preparation and theory of the case, and by not objecting to certain evidence or the 

10 

No.30575-9-III 

State v. Walker 

prosecutor's closing argument. He has failed to satisfY the heavy burden that governs 

this challenge. 

Well understood standards govern our review of the Sixth Amendment guarantee 

of the right to counsel. The mere presence of an attorney does not satisfY the 

constitutional command. Instead, the attorney must perform to the standards of the 

profession. Counsel's failure to live up to those standards will require a new trial when 

the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 

334-35,899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be 

highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for 

finding error. Strickland, 466 U.S. at 689-91. To prevail on a claim of ineffective 

assistance, the defendant must show both that his counsel erred and that the error was so 

significant, in light of the entire trial record, that it deprived him ofa fair trial. Id. at 690­

92. When a claim can be disposed on one of the Strickland prongs, a reviewing court 

need not consider both prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 

(2007). 

Mr. Walker's varied challenges to his counsel's performance implicate many of 

these principles. We will address his complaints in a somewhat different order than he 

presents them. 

11 

No. 30575-9-III 

State v. Walker 

One of Mr. Walker's complaints is that trial counsel did not subpoena witnesses 

for a pretrial hearing and did not investigate his uncle's role in the case. Since the 

witnesses did testify at the pretrial hearing, counsel apparently had no need to compel 

them to do so. It is doubtful there was any error and most certainly there was no harm. 

The record does reflect that Mr. Leckenby was no longer living in the area when 

Mr. Walker's case finally was tried; it does not tell us whether or not defense counsel 

ever spoke with him. In light of Mr. Leckenby's statement to police that Mr. Walker was 

manufacturing the methamphetamine, there is no basis for believing that he would have 

been helpful to the defense. Mr. Walker has simply not established either that his counsel 

failed him in this regard or that he was harmed by counsel's actions. 

Mr. Walker also contends that counsel erred by not pursuing a third party 

perpetrator theory at trial. This was clearly a strategic decision by counsel; the theory of 

the case is a matter left to trial counsel. In re Pers. Restraint a/Stenson, 142 Wn.2d 710, 

734-35,16 P.3d 1 (2001). Moreover, it was a sound one. The presence of others at the 

scene-whether Mr. Leckenby or the mysterious "Raymond"-did not establish Mr. 

Walker's innocence. Counsel understandably focused on the evidence suggesting Mr. 

Walker was not involved rather than taking on the task of proving who did manufacture 

the methamphetamine. The approach to the case was a strategic matter left to counsel. 

The fact that other approaches could have been tried does not establish that counsel erred. 

12 

No. 30575-9-111 

State v. Walker 

F or similar reasons, counsel's failure to challenge the testimony of witnesses who 

addressed defendant's flight and how the manufacturing operation could cause a fire does 

not establish ineffective assistance. These likewise were tactical decisions by counsel. 

The flight evidence was admissible; an objection would likely have been fruitless. See, 

e.g., Neal v. Green, 68 Wn.2d 415, 421-22,413 P.2d 339 (1966); State v. Price, 126 Wn. 

App. 617,645, 109 P.3d 27 (2005). The fact that a fire occurred was undisputed; 

evidence of how the fire might have been started helped complete the story for the jury, 

but it was not a matter the jury needed to resolve. There was no reason to object to the 

testimony and no harm to the defense by failing to challenge it-ifthere even was a basis 

for doing so. Neither of these tactical choices suggests that counsel erred in some 

manner, let alone that the defense was prejudiced. 

Finally, Mr. Walker argues that his counsel should have challenged the previously 

noted arguments by the prosecutor. We have concluded that there was no error. Thus, 

there is no basis for further analyzing the derivative claim of ineffective assistance of 

counsel. The prosecutor did not err, so defense counsel could not have erred. 

There are many ways to try a criminal case. Mr. Walker has not established that 

his trial counsel's approach to this case failed to conform to the standards of the 

profession or that he suffered prejudicial error. Accordingly, he has not shown that 

counsel performed ineffectively. 

13 
No.30575-9-II1 

State v. 'Walker 

Accomplice Liability Instruction 

Mr. Walker next argues that the court erred by instructing the jury on accomplice 

liability. The evidence supported the instruction; there was no error. 

Trial courts have an obligation to provide instructions that correctly state the law, 

are not misleading, and allow the parties to argue their respective theories ofthe case. State 

V. Dana, 73 Wn.2d 533, 536-37,439 P.2d 403 (1968). The trial court also is granted broad 

discretion in determining the wording and number ofjury instructions. Petersen v. State, 

100 Wn.2d 421, 440,671 P.2d 230 (1983). Discretion is abused when it is exercised on 

untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12, 

26,482 P.2d 775 (1971). 

A person is an accomplice of another person in the commission of a crime if: 

(a) With knowledge that it will promote or facilitate the commission 

of the crime, he or she: 

(i) Solicits, commands, encourages, or requests such other person to 

commit it; or 

(ii) Aids or agrees to aid such other person in planning or 

committing it. 

RCW 9A.08.020(3)(a)(i)-(ii). 

The State's case showed that someone was manufacturing 

methamphetamine at Leckenby's house and that Mr. Walker was seen trying to 

dismantle some of the operation before fleeing the scene. There also was evidence 

that the crime occurred in Leckenby's bedroom, not Mr. Walker's, and that 

14 
No. 30575-9-III 

State v. Walker 

Leckenby and a "Raymond" were also present. On this evidence, it was unclear 

whether the operation was solely attributable to the efforts of Mr. Walker or ifhe 

was working in conjunction with the others. Accordingly, the evidence supported 

giving this instruction and it"was necessary in order for the State to argue its 

theory ofthe case. 

The instruction also did not harm the defense. Mr. Walker was able to 

argue that he was not present and, even ifhe was, it was someone else's operation .. 

Thus, the trial court properly gave the instruction. 

Jury Inquiries 

The trial court responded to three jury inquiries, but the record does not 

reflect whether counsel was consulted before the responses. From this, the 

appellant argues that his CrR 6.15 and due process rights were violated, while 

respondent contends that Mr. Walker has not established any error occurred. 

The court responded to the three inquiries by telling the jury (1) it could not 

have a transcript ofMs. Brown's testimony, (2) it must rely on its own memory of 

the evidence, and (3) it should continue its deliberation. The responses came 3, 

16, and less than 1 minute after the inquiries were received. 

CrR 6.15(t) requires that the court notify the parties of any jury inquiry and 

allow comment thereon. It also requires the court to make a record ofthe inquiry, 

15 
No.30575-9-II1 

State v. Walker 

any response, and any objection to the response. The rule does not require the 

court to make a record of its 'compliance with the duty to notify and consult the 

parties. Here, it is highly likely the court did not consult the parties unless counsel 

happened to be present when the questions were received. Recent authority, 

however, is suggestive to the contrary. On a record where the court responded to 

an inquiry eight minutes after it was received, Division One of this court 

concluded in the face of a silent record that the trial court had not notified the 

parties as required. State v. Jasper, 174 Wn.2d 96, 102,271 P.3d 876 (2012). The 

Washington Supreme Court disagreed and refused to consider the defendant's 

argument in light ofthe fact he had not shown that the court had not contacted 

him. Id. at 124. 

Under the reasoning ofJasper, we cannot presume error from a silent 

record. 4 This issue was better left to a personal restraint petition. State v. 

Norman, 61 Wn. App. 16,27-28,808 P.2d 1159 (1991). We do not decide the 

4 "'On a partial or incomplete record, the appellate court will presume any 

conceivable state of facts within the scope ofthe pleadings and not inconsistent with the 

record which will sustain and support the ruling or decision complained of; but it will not, 

for the purpose of finding reversible error, presume the existence of facts as to which the 

record is silent.'" Barker v. Weeks, 182 Wash. 384, 391,47 P.2d 1 (1935) (quoting 4 C.J. 

Appeal and Error § 2666, at 736 (1916). 

16 

No. 30575-9-III 

State v. Walker 

issue on this basis, however. Previous authority establishes that any error here 

was harmless. 

A "negative" communication between the court and the jury is one that 

conveys no information. State v. Safford, 24 Wn. App. 783, 794, 604 P.2d 980 

(1979) (citing cases). It long has been settled that a negative communication to 

the jury is harmless error. State v. Co/son, 9 Wn.2d 424,426-27, 115 P.2d 677 

(1941); State v. Russell, 25 Wn. App. 933, 948, 611 P.2d 1320 (1980); Safford, 24 

Wn. App. at 794. 

The court's responses to the jury in this case all were "negative" in nature. 

They conveyed no new information to the jury. Thus, the errors in responding to 

the inquiries without notice to and consultation with the parties, if such was the 

case, were harmless. 

Sufficiency ofthe Evidence 

Mr. Walker also contends that the evidence did not support the conviction, 

primarily arguing that the State failed to establish his active participation as an 

accomplice. Properly viewed, the evidence permitted the jury to draw the 

conclusion that it did. 

The question presented is whether there is sufficient evidence to support the 

determination that each element of the crime was proved beyond a reasonable 

17 

No.30575-9-III 

State v. Walker 

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 

(1979); State v. Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). The 

reviewing court will consider the evidence in a light most favorable to the 

prosecution. Green, 94 Wn.2d at 221-22. There is no need for the reviewing 

court to weigh evidence or sift through competing testimony. 

A person is guilty ofmanufacturing a controlled substance when he 

prepares, processes, or produces a controlled substance. RCW 69.50.101(p); 

RCW 69.50.401(1). An accomplice is someone who, with knowledge that he is 

facilitating the commission of a crime, aids another in committing the offense. 

RCW 9A.08.020(3)(a)(ii). 

The evidence easily supports the jury's determination that manufacture of a 

controlled substance occurred at the Leckenby residence. While not as 

overwhelming, the evidence also supported the determination that Mr. Walker was 

assisting the operation and knew what he was doing. He was with the operation 

when the fire broke out, left and returned into the room through the window, threw 

an object outside, and fled when the authorities were contacted rather than attempt 

to fight the fire as his uncle was doing. Two incriminating objects-a bottle with 

methamphetamine on it and a can of acetone-were recovered near the window 

Mr. Walker used for ingress and egress. 

18 

No. 30575-9-III 

State v. Walker 

On this evidence, the jury was quite justified in deciding that Mr. Walker 

knew what was going on and attempted to dismantle the operation (or at least 

remove the incriminating components) before choosing to flee rather than face the 

authorities. These are not the actions of an innocent person; rather, they reflect 

someone who had something to hide. He was at least an assistant in the operation 

if not the primary figure. 

The evidence supported the jury's determination. 

Exceptional Sentence 

The final challenge is to the court's imposition of an exceptional sentence 

by ordering the term of the manufacturing sentence served consecutively to the 

term ofthe bail jumping convictions. The court properly exercised its sentencing 

discretion in imposing this exceptional sentence. 

An exceptional sentence may be imposed if the trial court finds "substantial and 

compelling" reasons to go outside the standard range. RCW 9.94A.535. The trial court 

must enter written findings of fact and conclusions of law if it does impose an 

exceptional sentence. ld. A nonexclusive list of mitigating factors is recognized by 

statute. RCW 9.94A.535(1). However, an exceptional sentence above the standard range 

must be based on a recognized statutory factor. RCW 9.94A.535(2), (3). 

19 

No. 30575-9-III 

State v. Walker 

Either party may appeal an exceptional sentence. RCW 9.94A.585(2). The 

statutory scheme for review of an exceptional sentence has long been in place. An 

exceptional sentence is reviewed to see if either (a) the reasons for the exceptional 

sentence are not supported by the record or do not justify an exceptional sentence, 

or (b) the sentence imposed is clearly excessive or clearly too lenient. RCW 

9.94A.585(4). Thus, appellate courts review to see ifthe exceptional sentence has 

a factual basis in the record, is a legally justified reason, and is not too excessive 

or lenient. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005). Differing 

standards of deference or nondeference apply to those three issues. Id. 

It is an aggravating factor, entitling the court to exceed the standard range, 

if "[t]he defendant has committed multiple current offenses and the defendant's 

high offender score results in some of the current offenses going unpunished." 

RCW 9.94A.535(2)(c). For a level 3 drug offense, the range for an offender with 

a score of 6 or higher is 100 to 120 months. RCW 9.94A.517. Mr. Walker had 

prior criminal history totaling 6 points based on 4 adult felonies (one point each) 

and 4 prior juvenile felonies (112 point each). The 3 current bail jumping offenses 

raised his offender score to 9. 

The trial court correctly recognized that the bail jumping counts did not 

increase Mr. Walker's standard range on the manufacturing conviction and that if 

20 

No. 30575-9-III 

State v. Walker 

served concurrently, there would be no additional punishment resulting from those 

3 convictions.5 The exceptional sentence ordering consecutive terms was 

authorized by RCW 9.94A.535(2)(c). 

The court did not err by imposing the exceptional sentence. 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Korsmo, C.J. 

WE CONCUR: 

Brown, 1. 

5 In part this situation resulted from the defendant's request to join the bail 

jumping convictions for sentencing on the same day, thus squarely treating them as other 

current offenses subject to concurrent sentences under RCW 9.94A.589(1)(a). The 

timing of these convictions is not in our record, but it is possible that they might 

otherwise have been subject to RCW 9.94A.589(3), which accords trial judges discretion 

to impose concurrent or consecutive sentences to cases that are sentenced serially. 

21