### FILED SEPTEMBER 14, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

v. TYLER SCOTT FIFE, Appellant. ) ) ) ) ) ) ) ) ) No. 

### 34442-8-111

UNPUBLISHED OPINION

FEARING, C.J. -TylerFife challenges the trial court's sentence onthe basis that the court applied the wrong legal standards and ignored one ofhis statedreasons for a downward exceptional sentence. We agree withFife and remand for resentencing. FACTS TylerFife confessed that he and three other individuals burglarizedtwo homes and

an attached garage to one home. Duringtrial, Fife testified that he and another participant, his girlfriend Samantha Garcia,joinedinthe crimes only from fear that Sean Dahlquist, the ring leader ofthe gaggle, wouldphysically harm each ifeitherrespectively refused to assist. Garcia confirmed Fife'stestimony. According to TylerFife, SeanDahlquistthreatenedto stab him with a knife ifheNo. 34442-8-III State v. Fife

did not help burglarize the first home. When Fife tarried, Dahlquistyanked Fife from a
car. Dahlquist stroked a gun as he demanded Fife tojoin Chantelle Mendivil and him in burglarizing the second house. While acting hinky, Dahlquisttold Fifethat the former did not trust the latter to remain behind while the other two entered the secondhome. PROCEDURE The State ofWashington charged Tyler Fife with thirteen counts related to the crime spree: first degree burglary, residential burglary, second degree burglary, first degree theft, second degree theft, first degree possession ofstolen property, theft ofa motor vehicle, possession ofa stolen motor vehicle, theft ofa firearm, two counts of possession ofa controlled substance other than marijuana, and two counts ofthird degree malicious mischief. Fife asserted the defense ofduress. The trial court instructed the jury on the defense: Duress is a defense to a charge if: (a) The defendant participated in the crime under compulsionby another who by threat or use offorce created an apprehension in the mind ofthe defendant that in case ofrefusal the defendant or anotherperson would be liable to immediate death or immediate grievous bodily injury; and (b) Such apprehension was reasonable upon the part ofthe defendant; and (c) The defendant would not have participated in the crime except for the duress involved. The defense ofduress is not available ifthe defendant intentionally or recklessly placed himselfin a situation in which it was probable that he would be subject to duress. The defendant has the burden ofproving this defense by a preponderance ofthe evidence. Preponderance ofthe evidence means that you must be persuaded, considering all the evidence in 2No. 34442-8-111 State v. Fife

the case, that it is more probably true than not true. Ifyou find that the defendant has established this defense, it will be your duty to return a verdict ofnot guilty. Clerk's Papers at 80. In closing argument, defense counsel conceded TylerFife played a role in burglarizing the two homes by helping remove items from eachhome after Sean Dahlquist entered the abode. Counsel characterized the sole issue as being whetherFife acted under duress as a result ofDahlquistthreatening to stab and shoot him. Thejury rejected Fife's defense and convicted him on all counts. Before the sentencing hearing, the trial court reviewed TylerFife's sentencing brief, the State's sentencing brief, and statements ofthe two victims. During the sentencing hearing, the trial court entertained comments from the State, defense counsel, and Tyler Fife. The State recommended a standard range sentence. Fife requested an exceptional sentence downward based on the argument that he acted under duress and lacked apredisposition for criminal behavior. In response, the State argued that the trial court should not question thejury's finding that Fife did not committhe crimes under duress. The State's counsel remarked: The other one-thiswas thejury's determination that he was not under duress. I don'tthink that it's really appropriate for, you know, the court during sentencing to question that. Report ofProceedings (RP) at 464. The trial court rejected TylerFife's request for an exceptional sentence. The 3No. 34442-8-III State v. Fife

court, in an oral ruling, discussed the reasons given by thejury for rejecting Fife's duress defense. The courtthen commented: Counsel,-! felt compelled to talk with Mr. Fife, andreally with everyone, about whatthejury felt was important. And 

### Iparticularly think it's important that

### I mention it because ifthejurywas not able to find by a preponderance thatthere was duress, then, Mr. Prince [defense trial counsel] and Mr. Fife, the court surely cannot find today thatthere is substantial and compelling basis upon which to find duress andthus a basis for an exceptional sentence. Therejust isn't. Ifthe court were to say thatthere's substantial and compelling evidence to deviate from the guidelines, in effectwhat I wouldbe doing is to overrule thejury's determination by a lesser standardthat there wasn't duress. That's difficult to follow and 

### I hope it makes sense to you. Again, you don't have to like it. Butmy hope is thatyou understand it. I'mjust goingto say this one otherway. And that is thatthose twelve people felt there was no duress. 

### It would be inappropriate for me, given a higher standard-Ihave tofind by substantialandcompelling evidence that there was duress. Ifthere's no preponderance, there certainly isn'tthis higher standard. And-and so while on one hand, Mr. Fife, I'm sorry that 

### I can't grant you an exceptional sentence, on the otherhand I would say to you that in my view, having listened to the case, it would be totally inappropriate. RP at 484-85 (emphasis added). The trial court made no mention ofFife's request for an exceptional sentence on the basis thathe lacked a predisposition for criminal behavior. The trial court imposed a standard range sentence on all counts withthe sentences to run concurrently. The highest sentence was 89.5 months for first degree burglary. LAWAND ANALYSIS TylerFife contends the trial court appliedthe wrong legal standard in assessing whether it held authority to impose a mitigated exceptional sentence. He argues the trial 4No. 34442-8-III State v. Fife

court abused its discretion when it determined thejury'srejection ofFife's duress defense necessarily precluded an exceptional sentence based on duress. Fife also maintains that the trial court erroneously reasoned that Fife needed to establish his defense, for purposes ofsentencing, by substantial and compelling evidence. Finally, Fife assigns error to the trial court's failure to address his request for an exceptional sentence because ofa lack ofa predisposition to commit a crime. The State responds that, under RCW 9.94A.585(1), Fife may not challenge his ~tandard range sentence on appeal. The State recognizes a defendant may complain ofthe sentencingprocedure on appeal, but the State contends that the law limits procedural errors to the trial court's failure to consider information as mandated by RCW 9.94A.500. We agree with Tyler Fife's contentions. Wejuxtapose subsections oftwo important statutes within the Sentencing Reform Act of 1981, chapter 9.94A RCW. First, RCW 9.94A.585 declares, in part: (1) A sentence within the standard sentence range, under RCW 9.94A.5IO or 9.94A.517, for an offense shall not be appealed. Second, RCW 9.94A.535 reads, in relevant part: The court may impose a sentence outside the standard sentence range for an offenseifit finds, considering the purpose ofthis chapter, that there are substantialandcompelling reasonsjustifying an exceptional sentence.... (1) Mitigating Circumstances-Courtto Consider The court may impose an exceptional sentence below the standard range ifit finds that mitigating circumstances are established by a

5No. 34442-8-III State v. Fife preponderance of the evidence. The following are illustrative only and are not intendedto be exclusive reasons for exceptional sentences. ( c) The defendant committedthe crime under duress, coercion, threat, or compulsion insufficientto constitute a complete defense but which significantly affected his or her conduct. (d) The ~efendant, with no apparent predispositionto do so, was induced by others to participate in the crime. (Emphasis added.) The trial court sentenced Tyler Fife within the standard sentence range for each crime. Therefore, within the confines ofthese two statutes, we pose t~e following interrelated questions. First, does the former statute disqualify Fife from appealing his sentence? Second, ifnot, was the trial courtprecluded from ordering an exceptional sentence because thejury's verdict rejected Fife's duress defense? Third, ifthe answer to the first question is no, did the trial court employ the correct burden ofproofwhen stating that Fife must present substantial and compelling evidence ofduress? Despite the uncompromising language ofRCW 9.94A.585, a defendant may appeal the procedure the trial court followed when imposing a standardrange sentence. State v. Knight, 176 Wn. App. 936, 957, 309 P.3d 776 (2013). While no defendant is entitled to an exceptional sentence below the standardrange, every defendant is entitled to ask the trial court to consider such a sentence and to have the alternative actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). Failureto consider an exceptional sentence is reversible error. State v. Grayson, 154 Wn.2d at 342.

6No. 34442-8-111 State v. Fife

When a defendantrequested an exceptional sentence, this court may review whetherthe trial courtrefused to exercise discretion at all orrelied on an impermissible basis for refusing to impose an exceptional sentence below the standardrange. State v. GarciaMartinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). Also, when the sentencing court acts outside the structure setby the Sentencing Reform Actthe appellate court may review any such departure. State v. Parker, 132 Wn.2d 182, 188, 937 P.2d 575 (1997). TylerFife's trial court did not categorically refuse to exercise its discretion when sentencing Fife within the standard range. The court did, however, rely on an impermissible basis by applying the wrong legal standard when exercising its discretion. The trial court mistakenly believed it neededto find duress by substantial and compelling evidence. RCW 9.94A.535 demands a substantial and compelling reason for an exceptional sentence downward. Nevertheless, the statute imposes no such evidentiary standard. Instead, RCW 9.94A.535 only requires that the defendant show duress, coercion, or inducementby a preponderance ofevidence. The trial court alsoerred when reasoning thatthejury'srejection ofthe defense of duress precludedthe court from considering duress when meting the sentence. RCW 9.94A.535 assumes thatthejury already rejected the defense. The statute references the defendant as possessing an incomplete defense. Ifa court automatically followed the jury'sruling, the statute would become meaningless, because thejurywill have always rejected the defense. Otherwise, the trial court wouldnot engage in sentencing. When 7No. 34442-8-III 

### State v. Fife interpreting a statute, we strive to avoid a construction that would render a portion ofa statute meaningless. 

### John DoeAv. Washington State Patrol, 185 Wn.2d 363, 381-82, 374 P.3d 63 (2016). The State contends that the trial court's comments during the sentencing hearing confirm that the trial court would have rejected a downward sentence for duress. We note that, at least, one comment by the court supports the State's argument. The trial court stated that after listening to the evidence, accepting Fife's contention wouldbe inappropriate. Nevertheless, we do not know, by what standard ofproof, the court , uttered this short comment. Also, the court repeatedly statedthat it would notreaddress the question ofduress because oftliejuryverdict. The State invited errorby arguing that the sentencing court should not revisit thejuryverdict. Finally, the trial court, when sentencing Tyler Fife failed to address one ofFife's contentions. The trial court mentioned its reasons for denying the exceptional sentence

on the basis ofduress. Nevertheless, the trial court never ruled on whetherFife qualified for a mitigated sentence on the ground that he lacked a predisposition to crime and

someone induced him to committhe crime. Every defendant is entitledto have the trial court consider an alternative argued. 

### State v. Grayson, 154 Wn.2d at 342 (2005). The State argues that the trial court silently recognized TylerFife's other argument for an exceptional sentence and silently and impliedly rejected the argument. We might accept the State's argument ifthe trial court simply statedthat the courtrejected the 8No. 34442-8-III State v. Fife request for a downward sentence or rejected the request under both alternatives. Nevertheless, the trial court extensively addressed Fife's claim ofduress and then ignored the request based on inducement. CONCLUSION We remand for resentencing ofTylerFife. The trial court should, consistent with this opinion, consider whether to grant a downward sentence based on Fife's claim that he suffered duress, coercion, or inducement. Otherwise, we render no decision on the merits ofwhether an exceptional sentence downward isjustified. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

Fearing, C.J. WE CONCUR: 

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