State v. McFarland

189 Wash.2d 47

399 P.3d 1106

STATE of Washington, Respondent,

v.Cecily Zorada MCFARLAND, Petitioner.

No. 92947-5

Supreme Court of Washington.

Argued Feb. 2, 2017

Filed Aug. 3, 2017

Kristina M. Nichols, Jill Shumaker Reuter, Nichols and Reuter, PLLC, P.O. Box 19203, Eastern Washington Appellate Law, Spokane, WA, 99219-9203, for Petitioner.

Garth Louis Dano, Attorney at Law, 35 C St. N.W., P.O. Box 37, Ephrata, WA, 98823-1685, Katharine W. Mathews, Grant County Prosecuting Attorney's Office, P.O. Box 37, Ephrata, WA, 98823-0037, for Respondent.

STEPHENS, J.

¶1 A jury convicted Cecily Zorada McFarland of first degree burglary, 10 counts of theft of a firearm, and 3 counts of unlawful possession of a firearm. The trial court imposed standard range sentences on each count and, relying on RCW 9.41.040(6) and 9.94A.589(1)(c), ordered that the firearm-related sentences be served concurrently as to the burglary sentence but consecutively as to each other. This resulted in a total sentence of 237 months (19 years, 9 months).

¶2 McFarland appealed, arguing for the first time that the sentencing court erred by failing to recognize its discretion to impose an exceptional mitigated sentence by running the firearm-related sentences concurrently based on the rationale of In re Pers. Restraint of Mulholland , 161 Wash.2d 322, 166 P.3d 677 (2007). The Court of Appeals refused to consider this issue, noting that the sentencing judge "cannot have erred for failing to do something he was never asked to do."

State v. McFarland , No. 32873-2-III, slip op. at 16, 2016 WL 901088 (Wash. Ct. App. Mar. 8, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/328732.unp.pdf. The court also rejected McFarland's claim of ineffective assistance of defense counsel due to "the lack of any history of other counsel successfully making a similar argument." Id. at 18.

¶3 Today, we answer the question the appeals court's opinion left unresolved. We conclude that the statutory analysis supporting our decision in Mulholland, which involved sentencing for multiple serious violent felonies under subsection (1)(b) of RCW 9.94A.589, applies equally to sentencing for multiple firearm-related offenses under subsection (1)(c). We remand for resentencing to allow the trial court the opportunity to consider whether to impose a mitigated sentence by running McFarland's 13 firearm-related sentences concurrently.

FACTS AND PROCEDURAL HISTORY

¶4 McFarland and her boyfriend stole firearms, ammunition, checkbooks, alcohol, and electronics from the home of Fred and Loretta Legault while Loretta was not home and Fred was sleeping. The Legaults are the parents of McFarland's former boyfriend, and McFarland became a prime suspect after she texted her former boyfriend during the burglary to tell him she was in his mother's house. At trial, a jury convicted McFarland as charged of first degree burglary as an accomplice, 10 counts of theft of a firearm as an accomplice, and 3 counts of second degree unlawful possession of a firearm.¹

¶5 At sentencing, the State contended that the sentences for all of McFarland's firearm-related convictions must run consecutively to each other pursuant to RCW 9.41.040(6) and 9.94A.589(1)(c). Defense counsel agreed with the State as to running the firearm-related sentences consecutively, but requested sentences at the bottom of the standard range. Defense counsel expressed concern about the overall sentence length, noting that "if [McFarland] had been found guilty of stealing toasters instead of firearms she'd be looking at a range of nine to twelve months' confinement, versus 237 months['] to 306 months['] confinement. So,—there's a certain degree of—lack of proportionality in the—in the punishment based on the consecutive sentences that are required by the legislature." Verbatim Tr. of Proceedings (VTP) (Oct. 27, 2014) at 23-24. The trial judge responded, "237 months is—just a little shy of 20 years, which is what people typically get for murder in the second degree," and defense counsel commented, "I think that's a fairly apt analogy." Id. at 24. Nonetheless, defense counsel did not request and the sentencing court did not consider imposing an exceptional sentence downward by running the firearm-related sentences concurrently. The court said, "I don't have—apparently [I] don't have much discretion, here. Given the fact that these charges are going to be stacked one on top of another, I don't think—I don't think [the] high end is called for, here." Id. at 25. The court accepted defense counsel's recommendation to impose sentences at the bottom of the standard range for each of the firearm-related convictions and entered a total sentence of 237 months (19 years and 9 months). Id. at 25-26.

¶6 McFarland appealed, contending the trial court erred by not running her firearm-related sentences concurrently as an exceptional sentence on the mistaken belief it could not do so. In the alternative, McFarland contended that trial counsel was ineffective for failing to request concurrent sentencing as an exceptional sentence. The Court of Appeals affirmed.

¶7 This court granted McFarland's petition for review. State v. McFarland , 186 Wash.2d 1001, 380 P.3d 438 (2016).²

ANALYSIS

¶8 The Sentencing Reform Act of 1981 (SRA) is an attempt to "make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders." RCW 9.94A.010. Among its many objectives, the SRA seeks to "[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history" and "commensurate with the punishment imposed on others committing similar offenses." RCW 9.94A.010(1), (3). The SRA operates to provide structure to sentencing, "but does not eliminate[ ] discretionary decisions affecting [offender] sentences." RCW 9.94.010. Consistent with the SRA, a court "may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of [the SRA], that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535.

¶9 Multiple sentencing statutes apply to McFarland's firearm-related convictions. Washington's firearms and dangerous weapons statute provides in relevant part that "[n]otwithstanding any other law," if an offender is convicted of either unlawful possession of a firearm in the first or second degree, or for the felony crime of theft of a firearm, or both, "then the offender shall serve consecutive sentences for each of the felony crimes of conviction." RCW 9.41.040(6). The multiple offense subsection of the SRA provides in relevant part that if an offender is convicted under RCW 9.41.040, "[t]he offender shall serve consecutive sentences for each conviction of the felony crimes listed in this subsection (1)(c), and for each firearm unlawfully possessed." RCW 9.94A.589(1)(c). From these statutes, lower courts have concluded that the standard sentences for multiple firearm-related convictions must be served consecutively.

State v. McReynolds , 117 Wash. App. 309, 342-43, 71 P.3d 663 (2003) (noting that RCW 9.41.040(6)"clearly and unambiguously prohibits concurrent sentences" for firearm-related crimes); State v. Murphy , 98 Wash. App. 42, 49, 988 P.2d 1018 (1999).

¶10 In Mulholland , we recognized that "notwithstanding the language of [ RCW 9.94A.589(1)(b) ], a sentencing court may order that multiple sentences for serious violent offenses run concurrently as an exceptional sentence if it finds there are mitigating factors justifying such a sentence." 161 Wash.2d at 327-28, 166 P.3d 677 (emphasis added). The question in this case is whether the rationale of Mulholland applies equally to sentencing under RCW 9.94A.589(1)(c). For the reasons that follow, we conclude it does.

I. RCW 9.94A.535 Authorizes Concurrent Sentencing as an Exceptional Sentence for Multiple Firearm Convictions under RCW 9.94.589(1)(c)

¶11 This court in Mulholland recognized the authority of a sentencing court to impose an exceptional downward sentence for serious violent offenses by running presumptively consecutive sentences under RCW 9.94A.589(1)(b) concurrently pursuant to RCW 9.94A.535. In the course of our analysis, we noted that section .535 "does not differentiate between subsections (1)(a) and (1)(b) [of RCW 9.94A.589 ]." Mulholland , 161 Wash.2d at 329-30, 166 P.3d 677 ; see also State v. Graham , 181 Wash.2d 878, 884, 337 P.3d 319 (2014) (noting there is no "legal basis to reject or depart from [this court's] prior interpretation" that RCW 9.94A.535 does not differentiate between subsections (1)(a) and (1)(b) of RCW 9.94A.589 ). While Mulholland involved serious violent offenses under 9.94A.589(1)(b) and not firearm-related sentences under RCW 9.94A.589(1)(c), we find no statutory basis to distinguish between the consecutive sentencing language in these two subsections. Both are plainly encompassed within "the multiple offense policy of RCW 9.94A.589." RCW 9.94A.535(1)(g). There is no provision prohibiting exceptional sentences for firearm-related convictions generally, and "[a] departure from the standards in RCW 9.94A.589 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence." RCW 9.94A.535 ; see Graham , 181 Wash.2d at 884, 337 P.3d 319. There is thus nothing in the SRA precluding concurrent exceptional sentences for firearm-related convictions.

¶12 We recognize that unlike serious violent offenses, firearm-related offenses are also subject to RCW 9.41.040(6), which provides for consecutive sentencing "[n]otwithstanding any other law." We must determine whether this difference precludes extending the rationale of Mulholland. It is certainly possible to interpret the "[n]otwithstanding any other law" language to allow only a reduced amount of time on each count, rather than concurrent sentencing as an exceptional sentence. McFarland , slip op. at 18. But,...