FILED 


APRIL 22, 2014 


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. 31189-9-111 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

TAYLORD.W. MAREAN, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. - Taylor Marean appeals the standard range sentence 

imposed for his conviction for vehicular homicide. He claims the trial court abused its 

discretion in denying his request for an exceptional sentence below the standard range 

because it incorrectly assumed it did not have legal authority to impose such a sentence. 

Finding no error, we affirm. 

FACTS 

During the evening ofFebruary 13,2010, Brooke Reese and Jacoby Bryant, both 

teenagers, went to a party at a friend's house. Taylor Marean and Ryan Perizzo showed 

up at the party around midnight. All four were drinking alcohol. Ms. Reese and Ms. 

Bryant left the party about 2:00 a.m. in Ms. Reese's car. Mr. Marean and Mr. Perizzo 
No. 31 1 89-9-II1 

State v. Marean 

followed them in a car driven by Mr. Marean. 

According to Ms. Reese, Mr. Marean would speed up and pass her, slow down to 

let her catch up, and then pass her again at a high rate of speed. At one point, he rolled 

down his window and said, "let's race." Ex. 2 at 3. Mr. Marean took off at a high rate of 

speed, and Ms. Reese accelerated in an attempt to catch up with him. As she approached 

an intersection for a left-hand tum, she lost control of her car, and Mr. Marean's car 

struck her car along the driver's side, driving her car sideways across a curb and into a 

tree. Ms. Bryant was killed instantly as a result of the collision. The cause of death was 

severance of her brain stem and blunt force trauma. Mr. Marean's blood alcohol level at 

the time of the collision was 0.13 grams per milliliter. 

The State charged Mr. Marean with vehicular homicide. J After two years of 

unsuccessful plea negotiations, Mr. Marean entered a guilty plea as charged in exchange 

for the prosecutor's agreement to recommend a sentence within the standard range of 31 

to 41 months. 

At sentencing, Mr. Marean sought an exceptional sentence downward of 24 

months based on his allegation that Ms. Bryant was a "willing participant" in the offense 

under RCW 9.94A.535(l)(a). He asked the court to consider two supporting exhibits-a 

1 The State also charged Ms. Reese with vehicular homicide. 

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No. 31 1 89-9-III 

State v. Marean 

toxicology report indicating that Ms. Bryant's blood alcohol level was 0.12 at the time of 

her death and a supplemental police report. The court accepted highlighted portions of 

the supplemental police report, but rejected the toxicology report, finding it irrelevant to 

the sentencing issues. Based on the police report, defense counsel then argued: 

I'm not blaming the victim but I want you to know what it sounded 

like then. It says in the report he [Mr. Marean] spoke to Reese and Bryant. 

And all we know from the report is he said, "Let's race." And it sounds 

like-I wasn't there, Judge, but it sounds like they agreed. 

Report of Proceedings (RP) at 83. 

The court denied Mr. Marean's request and imposed a mid-range standard range 

sentence of 36 months, explaining, "I do not believe we have the legal basis for a willing 

participant criteria that the Court can use to allow a downward." RP at 97. Mr. Marean 

appeals the sentence. 

ANALYSIS 

Mr. Marean contends the trial court committed reversible error by 

categorically refusing to consider the "willing participant" mitigating factor under 

RCW 9.94A.535(1)(a). He also maintains the court erroneously eliminated evidence of 

Ms. Bryant's blood alcohol level and "then determined as a matter of law that the defense 

was off limits because the victim was a passenger." Br. of Appellant at 18. 

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No. 31189-9-111 

State v. Marean 

Initially, we note that a standard range sentence is generally not appealable. But a 

criminal defendant "may appeal a standard range sentence if the sentencing court failed to 

comply with procedural requirements of the SRA [Sentencing Reform Act of 1981, 

ch. 9.94A RCW] or constitutional requirements." State v. Osman, 157 Wn.2d 474,481­

82, 139 P.3d 334 (2006). "[W]here a defendant has requested an exceptional sentence 

below the standard range, review is limited to circumstances where the court has refused 

to exercise its discretion at all or has relied on an impermissible basis for refusing to 

impose an exceptional sentence below the standard range." State v. Garcia-Martinez, 88 

Wn. App. 322, 330, 944 P.2d 1104 (1997). 

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

exceptional sentence below the standard range under any circumstances; i.e., it takes the 

position that it will never impose a sentence below the standard range." Id. For example, 

a court relies on an impermissible basis for declining to impose an exceptional sentence 

below the standard range if 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. 

In State v. Cole, 117 Wn. App. 870, 73 P.3d 411 (2003), the defendant 

unsuccessfully requested a below range sentence and then challenged the court's refusal 

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No. 31189-9-111 

State v. Marean 

to impose an exceptional sentence on appeal. The court held that the defendant could not 

appeal from a standard range sentence where the trial court considered the defendant's 

request for the application of a mitigating factor, heard argument on the issue, and then 

exercised its discretion by denying the request. Id. at 881. Similarly, in Garcia-Martinez, 

involving an equal protection challenge to a standard range sentence, the court held that a 

trial court that has considered the facts and concluded no basis exists for an exceptional 

sentence has exercised its discretion and the defendant may not appeal that ruling. 

Garcia-Martinez, 88 Wn. App. at 330. 

Under RCW 9.94A.535(1), a court may impose an exceptional sentence below the 

standard range ifthe court finds that mitigating circumstances are established by a 

preponderance ofthe evidence. Mitigating circumstances may be found if, "[t]o a 

significant degree, the victim was an initiator, willing participant, aggressor, or provoker 

ofthe incident." RCW 9.94A.535(1)(a). The "willing participant" factor is applicable 

where both the defendant and the victim engaged in the conduct that caused the offense to 

occur. State v. Hinds, 85 Wn. App. 474, 481,936 P.2d 1135 (1997). 

Mr. Marean claims that as a result of the court's categorical rejection ofthe 

"willing participant" mitigating factor, the court refused to consider a toxicology report 

revealing Ms. Bryant's blood a1cohollevel of 0.12 at the time ofthe collision. According 

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No. 31189-9-111 

State v. Marean 

to Mr. Marean, this blood alcohol level explained why "[Ms. Bryant's] decision-making 

capacity might be impaired to the point where, as the record suggests, all four persons 

involved were there willingly and were participating in the race." Br. ofAppellant at 20. 

Mr. Marean further contends that it is fair to infer that Ms. Bryant was aware the drivers 

were intoxicated, that Ms. Reese was not holding her hostage, and that she agreed to the 

race because she was directly across from Mr. Marean when he rolled down his window 

and invited Ms. Reese and Ms. Bryant to race. 

Contrary to Mr. Marean's assertion, the record reveals that the court was aware of 

its discretion to impose a sentence below the standard range and did not misunderstand 

the law. Nothing in the court's oral decision indicates that it rejected the exceptional 

sentence based on a beliefthat a passenger, by definition, could not be a "willing 

participant" under RCW 9.94A.535(1)(a). A plain reading of the oral decision 

demonstrates that the court considered the proposed mitigating factor and found it legally 

and factually insufficient to warrant an exceptional sentence downward. 

During the guilty plea hearing, the court heard evidence that (1) witnesses saw the 

cars speeding, (2) Ms. Reese admitted to drinking four shots ofvodka prior to the 

collision, (3) all four teenagers were drinking, (4) Ms. Reese was speeding and lost 

control of the car, and (5) Ms. Reese accepted Mr. Marean's challenge to race. The court 

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No. 31189-9-III 

State v. Marean 

disagreed that these facts supported an inference that Ms. Bryant accepted the challenge 

to race or that she was "to a significant degree" a willing participant in the incident. As 

the court explained, "[t]he passenger in the vehicle, the young girl who is dead, that's 

who we're talking about. She wasn't driving. She didn't participate in anything other 

than being in the vehicle." RP at 97. "Without an adequate factual or legal basis to 

permit it to step outside the standard range, the court decided it could not impose a 

sentence other than one within the standard range. This is an appropriate exercise ofthe 

sentencing discretion." Garcia-Martinez, 88 Wn. App. at 331. 

We also reject Mr. Marean's argument that the court erred in refusing to consider 

the toxicology report. Sentencing courts have wide discretion over the sources and types 

of information they consider in determining the length of a sentence within the standard 

range. State v. Herzog, 112 Wn.2d 419,424,771 P.2d 739 (1989) (quoting Williams v. 

New York, 337 U.S. 241, 246, 69 S. Ct. 1079,93 L. Ed. 1337 (1949». Here, the court 

was well within its discretion in concluding that the toxicology report was ofmarginal 

relevance to mitigation. The facts before the court indicated Ms. Bryant had been 

drinking. But even assuming Ms. Bryant's judgment was impaired to the extent indicated 

in the toxicology report, it does not necessarily follow that she agreed to the race or 

otherwise significantly participated in the events that led to her death. The court was well 

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No. 31189-9-111 

State v. Marean 

within its discretion to disregard the report. 

We 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, 1. 

WE CONCUR: 

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