### FILED 

### JAN. 29, 2015 In the Office ofthe ClerkofCourt W A State Court ofAppeals, 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### v. ) UNPUBLISHED OPINION ) TROYR. HOLWAY, ) ) Appellant. ) LAWRENCE-BERREY, 

### J.

- Ajury found Troy Holwayguilty ofthree counts of delivery ofa controlled substance-heroin, each with a school zone sentence enhancement. Mr. Holway contends that the State failed topresent a witness qualified to testify to the location ofthe school bus zone to supportthe exceptional sentence enhancements on counts two and three. He also contends that the trial courtrelied on an impermissiblebasis when it declined to impose an exceptional sentence belowthe standardrange. He maintains thatthe court considered the absence ofmitigating factors when denying the request and that these factors were inappropriate for sentencing. Findingno 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 atthe 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 chargedMr. Holway with three counts ofdelivery ofa controlled substance-heroin, with enhancements for each count for delivery ofa controlled substance within 1,000 feet ofa protected zone. Ajurytrial was held. In addition to testimony regarding the drug transactions, two witnesses provided evidencerelating 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. Edgarprovided a similar map showingthe area within 1,000 feet ofSinto and Division, with stars representing the bus stop locations.

2No. 32046-4-III State v. Holway
Rhonda McLellan, a transportation liaison in charge ofregular education routing for Spokane School District 81, explained thatthe stars on Mr. Edgar's maps were bus stops for elementary schools and possibly a middle school. She also identified the location ofLewis and Clark High School nearThird Avenue. Thejury found Mr. Holway guilty ofthree counts ofdelivery ofa controlled substance-heroin. Thejury was given a special verdict form asking whetherMr. Holway delivered the controlled substance within 1,000 feet ofa school bus route stop designated by a school district or within 1,000 feet oftheperimeter ofa school ground. Thejury 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 of7 and a standard sentencing range of60 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 thatthe multiple offense policyresulted in a sentence that was clearly excessive when the convictions involved multiple deliveries ofa small amount ofthe same substance to the same person under control ofthe police. 

### Mr. Holway argued that ifhe

3No. 32046-4-111 State v. Holway

was convicted ofonly one delivery charge, his offender score would be 5 with a standard sentence of20 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 outMr. Holway's mostrecentprior convictions were a few years earlier for three counts ofdelivery ofa controlled substance-heroin. And, within two and one-halfmonths 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 arguedthat Sanchez was distinguishable from Mr. Holway's situation because the defendant in Sanchezhad no prior criminal record, the defendant was functionally illiterate, the sentence for delivery was subjectto a multiplier based on sentencing statutes that have nowbeenrepealed, and the State in Sanchez did not argue thatthe 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, "Ithink there is a distinction to be made betweenthe circumstances presented in Mr. Holway's case comparedto those presented in Mr. Sanchez's case, and indeed it appears that Mr. Sanchez had many mitigating factors

4No. 32046-4-111 State 

### v. Holway presenttobe advanced in favor ofhis 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 therequest for an exceptional sentence downward." Report ofProceedings (RP) at 186-87. The court found that a sentence at the low end ofthe sentencing range was appropriate and sentenced Mr. Holway to 60 months and one day for the three counts ofdelivery, plus another 72 months for the school zone enhancements. In total, Mr. Holway was sentencedto 132 months. Mr. Holway appeals. He contends thatthe 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 toimpose a mitigating sentence. ANALYSIS Whether there was sufficientadmissible evidence to supportthe sentence enhancements on counts two andthree Mr. Holway contends thatthe State failed to prove that the school district designated the school bus route stops located within 1,000 feet ofthe delivery location for counts two and three. He maintains that the State did notproduce evidence that Ms. McLellan had the authority to designate school bus stops as mandated by RCW 69.50.435. 5No. 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 ofthe evidence, the proper inquiry is "whether, after viewing the evidence in the light most favorable to the State, any rational trier offact couldhave 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 ofthe 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 offact onissues ofconflicting testimony, credibility ofwitnesses, andpersuasiveness ofthe 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 ofdelivery ofa controlled substance within 1,000 feet ofa 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

6No. 32046-4-II1 State 

### v. Holway authority to its agents oremployees to designate school bus stop locations, and such an agent'stestimonythat 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 Stateproduced sufficient evidenceto establish school bus stops within 1,000 feet ofdelivery for counts two and three. Ms. McLellan acted as the school district's agent when designating the bus stops in question. Ms. McLellan identified herselfas the Spokane School District 81 transportation liaison in charge ofregular education routing. She testifiedthat shewas calledto identify any bus stops that District 81 had within a certain distance ofan address onDivision Street andthat the bus stops were within one block ofthe address. Ms. McLellan locatedthesebus stops on a map introduced bythe State. 

### Mr. Holway did not objecttoMs. McLellan'stestimony orthe introduction ofthe map. Based onthe evidence presented, a rational trier offact could have found beyond a reasonable doubtthat Mr. Holway delivered a controlled substance within 1,000 feet ofa school bus route stop. Whether the trial courtabused its discretion when itdeclinedto impose an exceptionalsentence downward Mr. Holway contends that the court should have reducedhis standardrange sentence and erred when it distinguishedSanchez. 7No. 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 courtcomes to apply a particular sentencingprovision." 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 orrelied 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'srefusal to exercise discretion that is appealable, not the sentence. 

### Id. A courtrefuses to exercise its discretion ifit refuses categorically to impose an exceptional sentencebelowthe standard range under any circumstances. 

### Id. A court relies on an impermissible basis when decliningto 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 considerthe request because ofthe defendant's race, sex, orreligion. 

### Id. The SentencingReformAct of 1981, chapter 9.94A RCW, and applicable case law limitthe trial court's discretionary authority on sentencing matters. A trial court has the

8No. 32046-4-111 State v. Holway

discretion to impose a sentence outside ofthe standard sentencingrange ifit finds a substantial and compellingreason to do so. RCW 9.94A.535. The trial court exercises its discretion in sentencing by considering the nonexclusive list ofmitigating factors in RCW 9.94A.535(1). As part ofthis 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 SentencingReform Act. Underthe multiple offense policy ofRCW 9.94A.589(l)(a), 1when a defendant is convicted ofmultiple current offenses, the offender score for each offense is calculated by scoringthe othercurrent offenses as ifthey were prior criminal history. As

aresult, the accumulated offenderpoints for all current offenses increase the standard range sentence. A sentencing court is permittedto find thatthe standard range sentence is clearly excessive underthe multiple offensepolicy 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.

1RCW 9.94A.589(1)(a) prescribes that sentences for multiple current offenses are served concurrently. The other current offenses count as priorconvictions for the purpose ofthe offender score, unless the court finds thattwo ormore 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. 

### 9No. 32046-4-111 

### State v. 

### Holway

A sentence resulting from multiple convictions for repeat deliveries ofa controlled substance may be clearly excessive ifthe drug buys were initiated and controlledby investigators; involved the same substance, the same buyer and same seller; occurred inside a residence; and involved a small amount ofdrugs. 

### 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 ofdelivery ofcocaine. 

### Sanchez, 69 Wn. App. at 257-58. The convictions were a result ofthree "controlledbuys" involving law enforcement, the same buyer, and a small amount ofdrugs, all which occurred within a nine-day span. 

### Id. at 256-57. Mr. Sanchezhad no priorcriminal history, buthis three current convictions were subjectto a statutorymultiplier, 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 deliveredto the sameperson over a brieftime, and (3)thepolice had control over the deliveries. 

### Id. at 259-60. The appellate courtupheld the mitigated sentence for Mr. Sanchezbased onthe trial court's second and third findings, while invalidating the first finding. 

### Id. at 261-63. "Becausethe difference betweenthe first buy and all three buys

10No. 32046-4-II1 State 

### v. Holway

was trivial ortrifling, the sentencingjudgewaspennittedtouse RCW 9.94A.390(1)(g) in order to reconcile (1) the absence ofadditional effects from the second and third buys with (2) the multiple usepolicy ofRCW9.94AA00(1)(a). Thus, the sentencingjudgedid not err when he imposed a sentence greaterthan the standardrange for one delivery, but less thanthe 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 courtunderstood its options and detenninedthat an exceptional sentence downward waspennissible but, in this case, was not appropriate. This is an appropriate exercise ofsentencing discretion. Likewise, the court did notrely on improperreasons 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 acceptablereasons to impose an exceptional sentence. 3 But, the court did notusethese reasons to impose a

2RCW9.94A.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 ofcriminal 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 ofan exceptional sentence as a sanction for police practices). 11No. 32046-4-III State 

### v. Holway

sentence outside the standardrange. Instead, the court found these reasons sufficientto keep the sentence within the standard range. DistinguishingSanchez 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 ofthe standard range simply because his case involved mUltiple conditions for delivery ofsmall amounts ofthe same substance to the samepolice informant that occurwithin a relatively short time frame. The multiple offense mitigating factor in RCW 9.94A.535(l)(g) does notrequire a trial courtto impose an exceptional sentence. The statute simplyprovides a basis for the sentencing court to depart from the standardrange ifit finds there is no meaningful difference between the effects ofthe first current criminal act and the cumulative effects ofthe subsequent acts, making the standard range sentence clearly excessive. Here, after considering the facts ofthe case, the court made no such finding. The trial court did not find a substantial and compellingreason to impose an exceptional sentence based on

12No. 32046-4-II1 State v. Holway Sanchez and RCW 9.94A.535(l)(g). The sentencing courtproperly exercised its discretion in refusing Mr. Holway's request for an exceptional sentence downward. Affirm. A majority ofthe panel has determined this opinion will not be printed in the WashingtonAppellate Reports, but it will be filed for public record pursuant to RCW2.06.040. Lawrence-Berrey, J. WE CONCUR:

Fearing, 

### J.



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