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IN THE SUPREME COURT OFTHE STATE OFWASHINGTON STATE OF WASHINGTON, Respondent,


### v.

·JASON ALLEN GRAHAM, Petitioner. ) ) ) ) ) ) ) ) )



### __________________________ 

## ) No. 89869-3
En Bane

Filed 

### NOV 1 3 2014 Yu, J.- The issue in this case is whether a sentencing court may impose an exceptional sentence downward ifthejudge finds the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light ofthe purposes ofthe Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. We need look only to the plain language ofthe SRAto conclude the sentencing courthas such discretion. FACTS AND PROCEDURAL HISTORY 

### This case results from Jason Allen Graham's methamphetamine-induced shooting spree in January 2002. At about 1:00 a.m., a police officer stoppedthe vehicle Graham was driving. Overthe next several minutes, Graham used an AK-

### State v. Graham, No. 89869-3 4 7 to fire at six different police officers during a foot chase through downtown Spokane. Fortunately, he was the onlyperson physically injured in the incident. Graham was convicted by ajuryin 2003 of 10 offenses, including 6 "serious violent offenses" for sentencing purposes under the SRA. RCW 9.94A.030(45). He received an aggregate sentence of 1,225.5 months, the result ofan increased offender score and consecutive sentences in accordance with RCW 9.94A.589(1)(b), in addition to several firearm enhancements. The Court ofAppeals affirmed the originaljudgment and sentence, but we grantedreview and remanded to the Court ofAppeals to reconsider the firearm enhancements in light of

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

### State v. Graham, 169 Wn.2d 1005, 234 P.3d 210 (2010). On reconsideration, the Court ofAppeals vacated Graham's sentence and remanded for resentencing. 

### State v. Graham, noted at 163 Wn. App. 1011 (2011), 

### review denied, 173 Wn.2d 1011 (2012). Atresentencing Graham asked for an exceptional sentence downward of25 years. He argued RCW 9.94A.535(1)(g)-the "multiple offense policy" mitigating factor-permitted both a departure from the standard range and imposition of concurrent sentences. The original sentencingjudge expressed regret at the presumptive sentencing range for Graham's serious violent offenses. Thejudge stated on the record thatthere was no authority to impose an exceptional sentence:
2State v. Graham, No. 89869-3 And quite frankly, in my mind [the presumptive sentence is] an awful lot oftime for this
.... . . . I don't agree with this sentence. I don't agree with it. I'm not suggesting that you don't deserve a punishment.
... But without some other mitigating circumstance, my hands are tied. Again, I don't write the laws; the legislature writes the laws. And this type of a scenario was something that was anticipated by the law-writers when they wrote the law. So I don't believe that I have a choice but to sentence you within the standard sentence range. It is going to be a low-end sentence, however. Verbatim Report ofProceedings at 28-29. Thejudge imposed a sentence atthe low end ofthe standardrange for each serious violent offense to run consecutively, for a total sentence of82.1 years. Graham again appealedhis sentence, andthe Court ofAppeals affirmed. State v. Graham, 178 Wn. App. 580, 314 P.3d 1148 (2013). We granted reviewto determine whether RCW 9.94A.535(1)(g) permits exceptional sentences for multiple serious violent offenses scored underRCW 9.94A.589(1)(b). State v. Graham, 180 Wn.2d 1013, 327 P.3d 55 (2014). ANALYSIS As with all statutes, we interpretthe SRA de novo to discern and implement the legislature's intent. State v. Jones, 172 Wn.2d 236,242,257 P.3d 616 (2011). We look first to the plain language, which, ifunambiguous, ends the inquiry. State
v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). We enforcetheplain meaning ofstatutes. Ifthere is no plain meaning andthe language is ambiguous,
we may glean the statute's intent from its legislative history. Id. at 110-11.

3

### State v. Graham, No. 89869-3 A Underthe SRA, a sentencing court generally must impose a sentence within the standard sentencing range. RCW 9.94A.505(2)(a)(i). However, the SRA authorizes a departure from the standard range in some circumstances. 

### See RCW 9.94A.535. Specifically, .535(1) lists mitigating circumstances that a court might relyupon depending onthe facts ofthe particular case. The one at issue here is .535(1)(g): The court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance ofthe evidence. The following are illustrative only and are not intendedto be exclusivereasons for exceptional sentences.

. . . The operation of the multiple offense policy of RCW 9.94A.589 results in apresumptive sentencethat is clearlyexcessivein light ofthe purpose ofthis chapter, as expressedin RCW 9.94A.Ol0. The "multiple offense policy ofRCW9.94A.589" that .535(l)(g)references contains five subsections. Those relevant in this case are subsections (l)(a) and (1)(b), which advise sentencing courts when sentences for multiple current offenses are presumed to run concurrent orconsecutive to one another. The State argues "the multiple offensepolicyofRCW 9.94A.589" does not include multiple serious violent offenses under .589(l)(b) because its sole purpose "is to permit consecutive sentences in an otherwise concurrent mandate." Suppl. Br. at 5. The State contends the legislature intendedto foreclose exceptional



### 4

### State v. Graham, No. 89869-3 sentences for serious violent offenses. So we must decide if.535(1)(g) applies equally to subsections (l)(a) and (l)(b) of.589. B We need look only to .535(1)(g)'s plain meaningto conclude the legislature considered exceptional sentences possible for some serious violent offenses. There is no textual support for the State's positionthat the phrase "multiple offense policy," as it appears in .535(1)(g), refers onlyto multiple violent and nonviolent offenses and notto multiple serious violent offenses. The State does not explain why .535(1)(g)'s broad reference to "RCW 9.94A.589" means only subsection (l)(a). All five subsections in .589 deal with sentencing multiple offenses. The legislature knows how to cite specific subsections and twice cited subsection .589(1)(a) specifically, including withinthe SRA. 

### See RCW 61.34.030; RCW 9.94A.525(5)(a)(i). The legislature also separately identified subsections .589(1) and (2) elsewhere in the text of.535, implying its failure to separately identify subsections .589(1)(a) and (b) was a deliberate policy choice. RCW 9.94A.535. We found the plain text of.535 dispositive in

### In re PersonalRestraintof Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). There the defendant sought concurrent sentences for six counts offirst degree assault, a serious violent offense under the SRA. The State similarly argued .535(1)(g) did not apply because .589(1)(b) mandated consecutive sentences for all serious violent offenses. 

### I d. at


### 5

### State v. Graham, No. 89869-3 328-29. We unanimously concludedthe sentencingjudge could rely on .535(1)(g) to impose concurrent sentences: [T]he State's argument fails because itpays too little heed to the plain language of RCW 9.94A.535.
. . . Because [.535(1)(g)] does not differentiate between subsections (l)(a) and (l)(b) [of .589], it can be said that aplainreading ofthe statute leads inescapably to a conclusion that exceptional sentences may be imposed under either subsection of RCW 9.94A.589(1). !d. at 329-30. Mulholland is controlling, andthis case does not provide a factual or legal basis to reject or depart from ourprior interpretation of.535. We find additional support for our holding elsewhere in the SRA. Unlike sentences for other crimes, the legislature has not expressly revoked discretion to impose exceptional sentences for serious violent offenses. For example, exceptional sentences downward are not available for persistent offenders, offenses with mandatory minimums, or some sex offenses. See RCW 9.94A.507(3)(c)(ii), .540(1), .570. Sentencing enhancements, the lengths ofwhichthe sentencingjudge cannot modify, also increase some sentences even iffacts permit a departure from the standard range for the underlying offense. RCW 9.94A.533. No similar provisions bar exceptional sentences for serious violent offenses scoredunder .589(1)(b). The only rationale offeredby the State and the unpublished cases citedby the Court ofAppeals is the legislature's intentthat serious violent offenses carry
more severe punishmentthan other crimes. These authorities often rely on a single
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### State v. 

### Graham, No. 89869-3 sentence inProfessorDavid Boerner's seminal treatise. DAVID BOERNER, SENTENCING INWASHINGTON§ 9.12(e) at 9-32 (1985). ButifProfessorBoerner's comments onthe subject are read in context, he suggests onlythat the legislature constructedthe SRAto signal exceptional sentences for multiple offenses "ought to be rare."

### !d. This is accomplished not byprohibiting exceptional sentences for multiple serious violent offenses altogether, but bylimiting them for presumptive range sentences that are "clearly excessive," RCW9.94A.535(1)(g), and where the exceptional sentence is supportedby "substantial and compelling reasons." RCW 9.94A.535. These constrictions refute the State's admonition that

### Mulhollandhas stripped .589(l)(b) ofpractical effect orthat we riskreturning to the pre-SRA era ofdisparate sentencing. We take this opportunityto reaffirmthat a sentencingjudgemay invoke .535(1)(g) to impose exceptional sentences both for multiple violent and nonviolent offenses scoredunder .589(l)(a) and for multiple serious violent offenses under .589(1)(b). 

# c The State challenges ourholding in

### Mulhollandintwo ways. First, it argues
we erred in

### Mulhollandby creating a rule contraryto the legislature's intent. But
we simply construedthe unambiguous language of.535(1)(g), which is thebest evidence oflegislative intent. Andthe legislature has indicated its approval ofour


### 7State v. Graham, No. 89869-3 interpretation by not amending .535 in the sevenyears since our decision. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789,719 P.2d 531 (1986). Second, the State suggestsMulholland allows only exceptional concurrent sentences for serious violent offenses and does notpermit downward departures from the standard sentencing range. Our case law compels a different conclusion. InState v. Batista, 116 Wn.2d 777, 784-85, 808 P.2d 1141 (1991), we considered the scope offormer RCW 9.94A.390(2)(f) (1988), which allowedupward departures when "the multiple sentencing policy ofRCW 9.94A.[589] results in a presumptive sentence that is clearly too lenient in light ofthe purpose of [the SRA]." We heldthe sentencingjudge coulduse this aggravatorto impose two types ofexceptional sentences for offenses scoredusing .589(1)(a). "Ifa presumptive sentence is clearly too lenient, this problem couldbe remedied either by lengthening concurrent sentences, orby imposing consecutive sentences." 

### !d. at 785-86. The form ofcurrent .535(1)(g) mirrors the language offormer RCW 9.94A.390(2)(f) at issue in Batista. Both cure the same sentencing concern. The legislature "adopted [these] parallel" provisions to address "the potential that its multiple offense policy could operate to produce presumptive sentence ranges inconsistent withthe purposes ofthe [SRA]." BOERNER, supra§ 9.12(e), at 9-31
8

### State v. Graham, No. 89869-3 (footnote omitted). Following 

### Batista's rationale, we hold .535(1)(g) empowers a sentencingjudge to reduce a "clearly excessive" sentence by lessening sentences for the offenses and/or by imposing concurrent sentences. The State offers no persuasive policyreason to limit .535(1)(g) to imposing concurrent standard range sentences for serious violent offenses. The legislature recognized it could not craft a standard range that could account for all factual variations underlying offenses and offenders. It

### adopted .535 as a safety valve. 

### State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986). Since concurrent sentences are sometimes necessary to remedy injustices causedby the mechanical application ofgrids and ranges, as we recognized in

### Mulholland, there is no reason why downward departures from the standard range cannot accomplish the same goal. D 

### Finally, Graham asks us to clarify the factual finding a sentencingjudge must make to invoke the multiple offense policy mitigating factor of.535(1)(g). We decline to do so because we think the statute is also clear on that point. It directs thejudgeto consider ifthe presumptive sentence "is clearly excessive in light ofthe purpose ofthis chapter, 

### as expressed in RCW9.94A.OJO."

### RCW 9.94A.535(1)(g) (emphasis added). RCW 9.94A.010 lists sevenpolicy goals the legislature intends the SRAto advance:
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### State v. Graham, No. 89869-3 (1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history; (2) Promote respect for the law by providing punishment which isjust;(3) Be commensurate with the punishment imposed on others committing similar offenses; (4) Protectthe public; (5) Offer the offender an opportunity to improve himself or herself; (6) Make frugal use of the state's and local governments' resources; and (7) Reduce the risk of reoffending by offenders in the community. Sentencingjudges should examine each ofthese policies when imposing an exceptional sentence under .535(1)(g). CONCLUSION We hold RCW 9.94A.535(1)(g) allows an exceptional sentence for multiple current serious violent offenses scored under RCW 9.94A.589(1)(b) that is achieved by departing downward from the standard ranges for the offenses and/or by running sentences concurrently. We reverse the Court ofAppeals and remand for resentencing consistent with this opinion. We take no position on whether Graham's sentence is "clearly excessive" under .535(1)(g) or onthe virtues ofhis 25-year sentence recommendation, as those issues are properly left for the sentencingjudge.

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### State v. Graham, No. 89869-3

WE CONCUR:

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