FILED 


JAN. 29, 2015 


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. 32046-4-111 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

TROY R. HOL WAY, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. - A jury found Troy Holway guilty ofthree counts of 

delivery of a controlled substance-heroin, each with a school zone sentence 

enhancement. Mr. Holway contends that the State failed to present a witness qualified to 

testify to the location of the school bus zone to support the exceptional sentence 

enhancements on counts two and three. He also contends that the trial court relied on an 

impermissible basis when it declined to impose an exceptional sentence below the 

standard range. He maintains that the court considered the absence of mitigating factors 

when denying the request and that these factors were inappropriate for sentencing. 

Finding no error, we affirm. 
No. 32046-4-III 

State v. Holway 

FACTS 

In three undercover narcotics transactions, Mr. Holway sold heroin to an informant 

working for Detective Alan Quist. In the first transaction on October 12,2011, Mr. 

Holway sold the informant 0.9 grams ofheroin for $70 at the McDonalds on Third 

Avenue in Spokane. In the second transaction on October 14 and the third transaction on 

October 19, Mr. Holway sold the informant 1.0 grams and 0.7 grams respectively, each 

for $70. These latter two transactions occurred at the Zip Trip on Sinto and Division. 

After each transaction, the informant gave the heroin to Detective Quist. 

The State charged Mr. Holway with three counts of delivery of a controlled 

substance-heroin, with enhancements for each count for delivery of a controlled 

substance within 1,000 feet of a protected zone. 

A jury trial was held. In addition to testimony regarding the drug transactions, two 

witnesses provided evidence relating to the sentence enhancements. Joel Edgar, a 

Spokane County geographic informations systems technician provided a map showing the 

area within 1,000 feet ofthe Third Avenue location, with stars representing the bus stop 

locations. Mr. Edgar provided a similar map showing the area within 1,000 feet of Sinto 

and Division, with stars representing the bus stop locations. 

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No. 32046-4-III 

State v. Holway 

Rhonda McLellan, a transportation liaison in charge of regular education routing 

for Spokane School District 81, explained that the stars on Mr. Edgar's maps were bus 

stops for elementary schools and possibly a middle school. She also identified the 

location of Lewis and Clark High School near Third Avenue. 

The jury found Mr. Holway guilty of three counts of delivery of a controlled 

substance-heroin. The jury was given a special verdict form asking whether Mr. 

Holway delivered the controlled substance within 1,000 feet of a school bus route stop 

designated by a school district or within 1,000 feet of the perimeter of a school ground. 

The jury answered "yes" to the enhancement for all three counts. Clerk's Papers (CP) at 

29. 

For sentencing, Mr. Holway's past and current offenses resulted in an offender 

score of 7 and a standard sentencing range of 60 to 120 months. Defense counsel asked 

the court to find that Mr. Holway's presumptive sentence would be clearly excessive 

under the multiple offense policy and to impose a lesser range sentence. He relied on 

State v. Sanchez, 69 Wn. App. 255, 260,848 P.2d 208 (1993) where the sentencing court 

found that the multiple offense policy resulted in a sentence that was clearly excessive 

when the convictions involved multiple deliveries of a small amount of the same 

substance to the same person under control of the police. Mr. Holway argued that ifhe 

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No. 32046-4-111 

State v. Holway 

was convicted of only one delivery charge, his offender score would be 5 with a standard 

sentence of 20 to 60 months. 

In response, the State contended that the exceptional sentence requested by Mr. 

Holway was too lenient. The State highlighted Mr. Holway's extensive criminal history. 

The State pointed out Mr. Holway's most recent prior convictions were a few years 

earlier for three counts of delivery of a controlled substance-heroin. And, within two 

and one-half months after serving a prison drug offender sentencing alternative sentence 

for these crimes, Mr. Holway was arrested for the current offenses involving the same 

controlled substance. The State argued that Sanchez was distinguishable from Mr. 

Holway's situation because the defendant in Sanchez had no prior criminal record, the 

defendant was functionally illiterate, the sentence for delivery was subject to a multiplier 

based on sentencing statutes that have now been repealed, and the State in Sanchez did 

not argue that the exceptional sentence was too lenient. The State maintained that none of 

these factors were present in Mr. Holway's case. 

The court agreed with the State and chose not to impose an exceptional sentence 

downward. The court held, "I think there is a distinction to be made between the 

circumstances presented in Mr. Holway's case compared to those presented in Mr. 

Sanchez's case, and indeed it appears that Mr. Sanchez had many mitigating factors 

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No. 32046-4-111 

State v. Holway 

present to be advanced in favor of his request for an exceptional sentence that are absent 

here in Mr. Holway's case .... I believe that the court is constrained under these 

combined factors that are present in Mr. Holway's case to respectfully deny the request 

for an exceptional sentence downward." Report of Proceedings (RP) at 186-87. The 

court found that a sentence at the low end of the sentencing range was appropriate and 

sentenced Mr. Holway to 60 months and one day for the three counts of delivery, plus 

another 72 months for the school zone enhancements. In total, Mr. Holway was 

sentenced to 132 months. 

Mr. Holway appeals. He contends that the school zone enhancements for counts 

two and three are not supported by sufficient evidence. He also contends that the trial 

court abused its discretion when it declined to impose a mitigating sentence. 

ANALYSIS 

Whether there was sufficient admissible evidence to support the sentence 

enhancements on counts two and three 

Mr. Holway contends that the State failed to prove that the school district 

designated the school bus route stops located within 1,000 feet of the delivery location for 

counts two and three. He maintains that the State did not produce evidence 

that Ms. McLellan had the authority to designate school bus stops as mandated by 

RCW 69.50.435. 

5 

No. 32046-4-111 

State v. Holway 

In every criminal prosecution, due process requires that the State prove, beyond a 

reasonable doubt, every fact necessary to constitute the charged crime. In re Winship, 

397 U.S. 358, 364, 90 S. Ct. lO68, 25 L. Ed. 2d 368 (1970). When a defendant 

challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing 

the evidence in the light most favorable to the State, any rational trier of fact could have 

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P .2d 

lO68 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of 

the State and interpreted most strongly against the defendant." Id. The appellant admits 

the truth of the State's evidence and all inferences that can reasonably be drawn from it, 

giving equal weight to circumstantial and direct evidence. State v. Hermann, 138 Wn. 

App. 596,602, 158 P.3d 96 (2007). We defer to the trier of fact on issues of conflicting 

testimony, credibility of witnesses, and persuasiveness of the evidence. State v. 

Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064, review denied, 174 Wn.2d 1007, 

278 P.3d 1112 (2012). 

Under RCW 69.50.435(1)(c), a defendant convicted of delivery of a controlled 

substance within 1,000 feet of a school bus route stop is subject to a sentencing 

enhancement. The statute defines a "school bus route stop" as "a school bus stop as 

designated by a school district." RCW 69.50.435(6)(c). A school district may delegate 

6 

No. 32046-4-II1 

State v. Holway 

authority to its agents or employees to designate school bus stop locations, and such an 

agent's testimony that he or she has designated certain school bus stops is sufficient as to 

the location ofthose bus stops. See State v. Sanchez, 104 Wn. App. 976, 978-79, 17 P.3d 

1275 (2001). 

The State produced sufficient evidence to establish school bus stops within 1,000 

feet of delivery for counts two and three. Ms. McLellan acted as the school district's 

agent when designating the bus stops in question. Ms. McLellan identified herself as the 

Spokane School District 81 transportation liaison in charge of regular education routing. 

She testified that she was called to identify any bus stops that District 81 had within a 

certain distance of an address on Division Street and that the bus stops were within one 

block ofthe address. Ms. McLellan located these bus stops on a map introduced by the 

State. Mr. Holway did not object to Ms. McLellan's testimony or the introduction of the 

map. Based on the evidence presented, a rational trier of fact could have found beyond a 

reasonable doubt that Mr. Holway delivered a controlled substance within 1,000 feet of a 

school bus route stop. 

Whether the trial court abused its discretion when it declined to impose an 

exceptional sentence downward 

Mr. Holway contends that the court should have reduced his standard range 

sentence and erred when it distinguished Sanchez. 

7 

No. 32046-4-III 

State v. Holway 

Generally, a party cannot appeal a trial court's refusal to impose an exceptional 

sentence which necessarily results in a standard range sentence. State v. FriederichTibbets, 123 Wn.2d 250,252,866 P.2d 1257 (1994). However, a party may "challenge 

the underlying legal conclusions and determinations by which a court comes to apply a 

particular sentencing provision." State v. Williams, 149 Wn.2d 143, 147,65 P.3d 1214 

(2003). A standard range sentence can be challenged on the basis that the court refused to 

exercise discretion or relied upon an improper basis for declining to consider an 

exceptional sentence request. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 

1104 (1997). Under such circumstances, it is the trial court's refusal to exercise 

discretion that is appealable, not the sentence. Id. 

A court refuses to exercise its discretion if it refuses categorically to impose an 

exceptional sentence below the standard range under any circumstances. Id. A court 

relies on an impermissible basis when 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. 

The Sentencing Reform Act of 1981, chapter 9.94A RCW, and applicable case law 

limit the trial court's discretionary authority on sentencing matters. A trial court has the 

8 

No. 32046-4-111 

State v. Holway 

discretion to impose a sentence outside ofthe standard sentencing range if it finds a 

substantial and compelling reason to do so. RCW 9.94A.535. The trial court exercises its 

discretion in sentencing by considering the nonexclusive list of mitigating factors in 

RCW 9.94A.535(1). As part of this list, a trial court has the authority to impose an 

exceptional sentence downward under RCW 9.94A.535(1)(g) ifthe multiple offense 

policy ofRCW 9.94A.589 results in a presumptive sentence that is clearly excessive in 

light ofthe purpose ofthe Sentencing Reform Act. 

Under the multiple offense policy ofRCW 9.94A.589(l )(a), 1 when a defendant is 

convicted ofmultiple current offenses, the offender score for each offense is 

calculated by scoring the other current offenses as ifthey were prior criminal history. As 

a result, the accumulated offender points for all current offenses increase the standard 

range sentence. A sentencing court is permitted to find that the standard range sentence is 

clearly excessive under the multiple offense policy ifthere is no meaningful difference 

between the effects ofthe first current criminal act and the cumulative effects ofthe 

subsequent acts. Sanchez, 69 Wn. App. at 261. 

1 RCW 9.94A.589(1)(a) prescribes that sentences for multiple current offenses are 

served concurrently. The other current offenses count as prior convictions for the purpose 

of the offender score, unless the court finds that two or more crimes required the same 

criminal intent, were committed at the same time and place, and involved the same 

victim. Those offenses encompass the same criminal conduct and count as one crime. 

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No. 32046-4-111 

State v. Holway 

A sentence resulting from multiple convictions for repeat deliveries of a controlled 

substance may be clearly excessive ifthe drug buys were initiated and controlled by 

investigators; involved the same substance, the same buyer and same seller; occurred 

inside a residence; and involved a small amount of drugs. Sanchez, 69 Wn. App. at 261. 

A sentencing court does not abuse its discretion by choosing not to apply Sanchez. See 

State v. McCollum, 88 Wn. App. 977, 986, 947 P.2d 1235 (1997). 

In Sanchez, the trial court ordered an exceptional sentence downward after Mr. 

Sanchez was convicted ofthree counts of delivery of cocaine. Sanchez, 69 Wn. App. at 

257-58. The convictions were a result of three "controlled buys" involving law 

enforcement, the same buyer, and a small amount of drugs, all which occurred within a 

nine-day span. Id. at 256-57. Mr. Sanchez had no prior criminal history, but his three 

current convictions were subject to a statutory multiplier, resulting in an offender score of 

6. Id. at 257. In support ofthe sentence outside the standard range, the trial court found 

that (1) Mr. Sanchez had limited education, (2) the deliveries involved small amounts of 

cocaine delivered to the same person over a brief time, and (3) the police had control over 

the deliveries. Id. at 259-60. The appellate court upheld the mitigated sentence for Mr. 

Sanchez based on the trial court's second and third findings, while invalidating the first 

finding. Id. at 261-63. "Because the difference between the first buy and all three buys 

10 

No. 32046-4-II1 

State v. Holway 

was trivial or trifling, the sentencing judge was pennitted to use RCW 9.94A.390(1)(g) in 

order to reconcile (1) the absence of additional effects from the second and third buys 

with (2) the multiple use policy ofRCW 9.94AA00(1)(a). Thus, the sentencing judge did 

not err when he imposed a sentence greater than the standard range for one delivery, but 

less than the standard range for three deliveries." ld. at 262.2 

Here, the sentencing court exercised its discretion and considered Mr. Holway's 

request for an exceptional sentence. From the record, it is clear that the court understood 

its options and detennined that an exceptional sentence downward was pennissible but, in 

this case, was not appropriate. This is an appropriate exercise of sentencing discretion. 

Likewise, the court did not rely on improper reasons when declining to impose the 

exceptional sentence. Mr. Holway is correct when he argues that his criminal history, his 

experience in dealing drugs, and the actions ofthe police are not acceptable reasons to 

impose an exceptional sentence.3 But, the court did not use these reasons to impose a 

2 RCW 9.94A.390(1)(g) was recodified as RCW 9.94A.535(1)(g) by LAWS OF 

2001, ch. 10, § 6. RCW 9.94AA00(1)(a) was recodified as RCW 9.94A.589(1)(a) by 

LAWS OF 2001, ch. 10, § 6. 

3 See Sanchez, 69 Wn. App. at 259-60 (holding that limited education alone is not 

a substantial and compelling reason for an exceptional sentence); State v. Freitag, 127 

Wn.2d 141, 144, 896 P .2d 1254 (1995) (holding that lack of criminal history is an 

insufficient ground for sentencing below the standard range); State v. Fitch, 78 Wn. App. 

546,552,897 P.2d 424 (1995) (rejecting imposition of an exceptional sentence as a 

sanction for police practices). 

11 

No. 32046-4-III 

State v. Holway 

sentence outside the standard range. Instead, the court found these reasons sufficient to 

keep the sentence within the standard range. Distinguishing Sanchez based on these 

factors did not make the trial court's decision improper. The fact that a court exercised its 

discretion in Sanchez to adjust the sentence downward does not imply that the sentencing 

court here abused its discretion. See McCollum, 88 Wn. App. at 986. The court 

considered the facts in Mr. Holway's situation and found that his sentence, while 

substantial, was appropriate. 

Mr. Holway is not entitled to a sentence outside of the standard range simply 

because his case involved mUltiple conditions for delivery of small amounts of the same 

substance to the same police informant that occur within a relatively short time frame. 

The multiple offense mitigating factor in RCW 9.94A.535(l )(g) does not require a trial 

court to impose an exceptional sentence. The statute simply provides a basis for the 

sentencing court to depart from the standard range if it finds there is no meaningful 

difference between the effects of the first current criminal act and the cumulative effects 

ofthe subsequent acts, making the standard range sentence clearly excessive. Here, after 

considering the facts of the case, the court made no such finding. The trial court did not 

find a substantial and compelling reason to impose an exceptional sentence based on 

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No. 32046-4-II1 

State v. Holway 

Sanchez and RCW 9.94A.535(l)(g). The sentencing court properly exercised its 

discretion in refusing Mr. Holway's request for an exceptional sentence downward. 

Affirm. 

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. 

Lawrence-Berrey, J. 

WE CONCUR: 

Fearing, J. 

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