Opinion
No. 64896-9-I.
Filed: February 28, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-1-01838-0, Susan J. Craighead, J., entered February 8, 2010.
Affirmed by unpublished opinion per Cox, J., concurred in by Grosse and Schindler, JJ.
In this consolidated appeal, Sou Saetern challenges his exceptional sentences on three counts of residential burglary and one count of attempting to elude a pursuing police vehicle. He asserts that the trial court improperly relied on one aggravating factor to impose multiple exceptional sentences: three concurrent sentences above the standard range and one standard range sentence to be served consecutively. Because Saetern fails to demonstrate any error, we affirm.
Saetern pleaded guilty to three counts of residential burglary, two counts of attempted residential burglary, and two counts of attempting to elude a pursuing police vehicle under three separate cause numbers. Finding that some of his current offenses would go unpunished because of his high offender score, the trial court imposed sentences above the standard range on each of the three residential burglary counts. Additionally, the court ordered that one of the standard range sentences for attempting to elude a pursuing police vehicle be served consecutively to all other sentences.
Saetern appeals.
EXCEPTIONAL SENTENCES
Saetern argues that the trial court erred by relying on the same aggravating factor to impose three sentences above the standard range and a standard range sentence to be served consecutively to all other sentences. We disagree.
The trial court may impose a sentence outside the standard sentencing range if there are "substantial and compelling reasons justifying an exceptional sentence." An exceptional sentence is subject to review under RCW 9.94A.585(4), which provides that in order to reverse a sentence, the reviewing court must find:
Id.
(a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
Consecutive sentences are exceptional sentences and subject to RCW 9.94A.535. Under that statute:
The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury [if]:. . . .
. . . .
(c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
The standard range sentence reaches its maximum at an offender score of nine.
Saetern does not challenge either the justification for or the lengths of the aggravated exceptional sentences. Rather, his sole challenge is to the authority of the court to impose multiple exceptional sentences, which are allegedly based on only one aggravating factor. That factor is stated in RCW 9.94A.535(2)(c): that he committed "multiple current offenses and [his] high offender score results in some of the current offenses going unpunished." He is mistaken.
Brief of Appellant at 4.
Here, the court sentenced Saetern for crimes charged under three separate cause numbers. Cause number 09-C-01838-0 included three counts of residential burglary and one count of attempted residential burglary. Saetern's offender score was 17 for each count. The maximum sentence within the standard range for an offender score over 9 for residential burglary and attempted residential burglary are 84 months and 60 months, respectively. The court imposed an exceptional sentence above the standard range of 96 months on each count of residential burglary, to be served concurrently with a standard range sentence of 60 months on the attempted residential burglary count.
Cause number 09-1-04303-1 included one count of attempting to elude a pursuing police vehicle. Saetern's offender score for this count was 10. Because his offender score was over nine, the standard range sentence was between 22 and 29 months. The court imposed a standard range sentence of 24 months to run concurrent with all other counts.
Finally, cause number 09-C-04422-4 included one count of attempted residential burglary and one count of attempting to elude a pursuing police vehicle. The trial court calculated Saetern's offender scores for attempted residential burglary and attempting to elude to be 17 and 10, respectively. Because both were over nine, the standard range sentence was 47.25 to 60 months for attempted burglary, and the standard range sentence for attempting to elude was 22 to 29 months. The trial court imposed standard range sentences on attempted burglary and attempting to elude of 60 and 24 months, respectively. But the court ordered the attempting to elude sentence to run consecutively to all other sentences. Thus, this sentence was also an exceptional sentence.
Based on unchallenged findings of fact, the court made the following conclusion of law in imposing the exceptional sentences:
This court . . . sentences the defendant to [exceptional sentences for the residential burglary convictions] above the presumptive range pursuant to RCW 9.94A.535(2)(c). Absent the imposition of an exceptional sentence pursuant to RCW 9.94A.535(2)(c), the operation of the multiple offense policy of RCW 9.94A.589 would result in a sentence that would allow some of the current offenses to go unpunished. This provides a substantial and compelling reason to depart from the presumption that these sentences should run concurrently.
Clerk's Paper at 251.
Saetern solely argues that State v. McClure, In re Personal Restraint of Holmes, and State v. Quigg require reversal. These cases relied on language from State v. Batista. He claims that the sentences in this case are erroneous because they rely on the same aggravating factor to both support three aggravated exceptional sentences and one standard range sentence to run consecutively to the other sentences.
64 Wn. App. 528, 827 P.2d 290 (1992).
69 Wn. App. 282, 848 P.2d 754 (1993), overruled on other grounds by State v. Calle, 125 Wn.2d 769, 888 P.2d 155 (1995).
72 Wn. App. 828, 866 P.2d 655 (1994).
116 Wn.2d 777, 785-86, 808 P.2d 1141 (1991).
Here, the trial court imposed one exceptional sentence on each of the three residential burglary counts and another on one attempting to elude count. It did not impose both an aggravated sentence above the standard range and a consecutive sentence on any one count, as argued in the cases on which Saetern relies. Thus, the rationale of those cases is not helpful here.
In any event, the rationale of those cases does not have any persuasive force in view of the supreme court's decision in State v. Smith and this court's decision in State v. Flake.
123 Wn.2d 51, 864 P.2d 1371 (1993), overruled in part on other grounds by State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005) (clarifying its earlier decision in Batista).
See State v. Flake, 76 Wn. App. 174, 883 P.2d 341 (1994) (noting the supreme court's implicit rejection of the rationale of McClure).
We affirm the judgment and sentence.
WE CONCUR: