123 Wn.2d 250, STATE v. FRIEDERICH-TIBBETS

Feb. 1994

[No. 60713-3. En Banc. February 10, 1994.]

STATE v. FRIEDERICH-TIBBETS

THE STATE OF WASHINGTON, Petitioner, v. BRIAN L. FRIEDERICH-TIBBETS, Respondent.

[1] Criminal Law Punishment Sentence Within Standard Range No Right of Appeal Nature of Mitigating Circumstances. A trial court's determination of what constitutes a mitigating factor is not a procedural issue that would permit appellate review of a standard range sentence over the prohibition of RCW 9.94A.210(1).

Nature of Action: Prosecution for possession of a controlled substance with intent to deliver.

Superior Court: The Superior Court for King County, No. 91-1-02926-8, Steven G. Scott, J., on July 22, 1991, entered a judgment on a plea of guilty and a sentence within the standard range.

Court of Appeals: At 70 Wn. App. 93, the court reversed the sentence and remanded for consideration of a sentence below the standard range, holding that the trial court's findings set forth reasons sufficient to justify a sentence below the standard range.

Supreme Court: Holding that the defendant's standard range sentence could not be appealed, the court grants the petition for review, reverses the decision of the Court of Appeals, and reinstates the trial court's sentence.

Norm Maleng, Prosecuting Attorney, and Peter Goldman, Deputy, for petitioner.

Neal J. Philip of Washington Appellate Defender Association, for respondent.

PER CURIAM. Upon conviction of possession of cocaine with intent to deliver, the trial court imposed a standard range sentence. The defendant appealed seeking an exceptional sentence below the standard range. The Court of Appeals reversed and remanded for consideration of an exceptional sentence below the standard range. The State seeks review, contending there was no lawful basis for imposing such a sentence. We grant review and reverse the Court of Appeals.

BACKGROUND

In July 1991, Mr. Tibbets entered a plea of guilty to one count of possession of cocaine with intent to deliver, in violation of RCW 69.50.401(a)(1)(i). The standard range sentence was 26 to 34 months' imprisonment. The trial court imposed a 26-month sentence with 12 months' community placement. The trial court made findings attesting to the defendant's cooperation, genuine signs of remorsefulness at sentencing, maturation, the substantial and significant changes in defendant's life and lifestyle, the defendant having obtained steady employment for the past 2 years, and having remained crime free. The court also noted that the defendant had successfully completed substance abuse treatment and had participated in Alcoholics Anonymous, having not used alcohol or controlled substances for almost 2 years. The court further found that the most frugal use of the State's resources would be a work release program to allow the defendant to continue in a positive direction, maintain his job and family, and minimize the risk of reoffending. The court determined that more probably than not both the public and the defendant would benefit more from such a sentence than incarceration in a penal institution. However, in the conclusions of law the court noted: "None of the above facts, alone or in combination, constitute substantial and compelling mitigating factors sufficient to justify an exceptional sentence below the standard range of 26-34 months." The court then imposed the standard range sentence. The Court of Appeals reversed, citing RCW 9.94A.010 and United States v. Rogers, 972 F.2d 489 (2d Cir. 1992), and remanded for resentencing.

ANALYSIS

[1] RCW 9.94A.210(1) provides that "[a] sentence within the standard range for the offense shall not be appealed." The Court of Appeals held that this statute did not apply inasmuch as this was a case involving a "procedural" error where the challenge was to the court's legal conclusions as to what constituted a mitigating factor. This holding is in opposition to State v. Mail, 121 Wn.2d 707, 854 P.2d 1042 (1993), where this court held that RCW 9.94A.210(1) barred the defendant's appeal which challenged the trial court's refusal to impose a sentence below the standard range. We note that State v. Mail, supra, was decided before the Court of Appeals filed its decision in this case.

CONCLUSION

We reverse the Court of Appeals and affirm the trial court.