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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 66848-0-I
                     v.                     )
                                            )       UNPUBLISHED OPINION
VICTORIA HARRIET SMITH,                     )
                                            )
                      Appellant.            )       FILED: May 29, 2012
________________________________)

       Dwyer, J.  --  Victoria Smith was serving a jail sentence for a felony drug 

conviction when, following an authorized leave, she failed to return to the work 

release program to which she had been assigned.  Smith was thereafter 

convicted of one count of escape in the first degree.  Based upon her offender 

score, Smith faced a standard range sentence for that crime of 63 to 84 months 

of incarceration.  At sentencing, Smith requested an exceptional sentence below 

the standard range, in part because she had escaped only four days prior to the 

end of her sentence.

       The trial court denied Smith's request and imposed a sentence of 63 

months.  On appeal, Smith contends that the trial court erred by failing to 

recognize that it had the discretion to impose an exceptional sentence below the 

standard range.  However, the record amply demonstrates that the trial court  

No. 66848-0-I/2

both understood that it had such discretion and exercised its discretion in 

denying Smith's request.  Accordingly, we affirm.

                                            I

       On August 19, 2010, Smith pleaded guilty to conspiracy to deliver cocaine 

in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, and 

was sentenced to four months in the King County jail and King County work 

release.  On October 5, 2010, Smith was authorized to briefly leave the work 

release facility in order to obtain medications from Harborview Medical Center.  

Smith failed to return to the facility.  She was arrested on a bench warrant six 

days later.  

       Smith was thereafter charged by information with escape in the first 

degree based upon her failure to return to the work release facility following the 

authorized leave.  Having waived her right to a jury trial, Smith was convicted as 

charged following a bench trial.  

       Based upon Smith's offender score, she faced a standard range sentence 

of 63 to 84 months of incarceration.  Smith requested an exceptional sentence 

below the standard range of eight months of incarceration.  She contended that 

such an exceptional sentence was warranted because she had escaped work 

release by simply not returning, thus escaping in a "non-violent, non-threatening 

way," and because she had done so "with only four days remaining on her 

sentence."  Moreover, Smith requested that the trial court impose an exceptional 

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No. 66848-0-I/3

sentence below the standard range because her criminal history consisted 

almost entirely of drug convictions.  

       A sentencing hearing was held on March 4, 2011.  The trial court denied 

Smith's request for an exceptional sentence, instead imposing a sentence at the 

low end of the standard range.  Although the court expressed reservations about 

imposing the sentence, the court determined that it could not "find within 

statutory provisions the ability to find that there are mitigating circumstances that 

would allow this Court to depart from the standard sentencing range."  The trial 

court acknowledged that "obviously there is discretion here."  However, the court 

rejected defense counsel's argument that this case is similar to cases in which 

an exceptional sentence below the standard range is imposed because only a 

small amount of drugs was involved.  The court concluded that 

       [t]he end result may not be what I like or what you like[,] but I just 
       cannot intellectually be honest about this and do anything else 
       other than impose a sentence within the standard range[.]  [A]nd I 
       will do so at the very bottom of that range but I cannot go outside 
       the standard range in this case.  So I will be imposing a sentence 
       of 63 months.  

       Smith appeals.

                                           II

       Smith contends that the trial court abused its discretion by failing to 

recognize that it had the discretion to impose an exceptional sentence below the 

standard range.  Because the record demonstrates that the trial court both 

recognized its discretion and exercised that discretion, we disagree.

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No. 66848-0-I/4

       Where a defendant has requested an exceptional sentence below the 

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

to exercise 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).  "While no defendant is 

entitled to an exceptional sentence below the standard range, 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).  Thus, "[t]he failure to consider an exceptional sentence is 

reversible error."  Grayson, 154 Wn.2d at 342.  Similarly, "[a] trial court's 

erroneous belief that it lacks the discretion to depart downward from the 

standard sentencing range is itself an abuse of discretion warranting remand."  

State v. Bunker, 144 Wn. App. 407, 421, 183 P.3d 1086 (2008), aff'd, 169 Wn.2d 

571, 283 P.3d 487 (2010).

       Here, Smith asserts that the trial court erroneously believed that it could 

not impose an exceptional sentence below the standard range absent an 
applicable mitigating factor listed in RCW 9.94A.535.1 However, the record 

clearly indicates that the trial court recognized that it had the discretion to 

impose such a sentence -- indeed, the trial judge explicitly stated, "I have to 

       1 RCW 9.94A.535 provides that "[t]he court may impose an exceptional sentence below 
the standard range if it finds that mitigating circumstances are established by a preponderance of 
the evidence."  The statute then lists several potential mitigating factors, indicating that those 
factors are "illustrative only and are not intended to be exclusive reasons for exceptional 
sentences."  See also RCW 9.94A.535(a)-(j).

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No. 66848-0-I/5

apply the law, and I don't do it in a way that's like a machine.  I mean obviously 

there is discretion here."  The trial judge then indicated that she disagreed with 

defense counsel's assertion that this case is analogous to cases in which an 

exceptional sentence below the standard range is imposed based upon the 

small amount of drugs involved.  The trial judge further acknowledged her 

discretion in imposing such a sentence when she stated:  "Ms. Smith, you 

walked away, you had signed conditions, you knew that you couldn't and, 

because it's a small amount of time doesn't necessarily in my mind go to why it is 

I should excuse you or me from following what the law requires."  

       In other words, contrary to Smith's contention, the trial court recognized 

that it had the discretion to impose an exceptional sentence below the standard 

range notwithstanding the fact that no statutorily-listed mitigating factor applied; 

the court simply disagreed with Smith's assertion that the relevant facts 

warranted the imposition of such a sentence.  "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 of sentencing discretion."  Garcia-Martinez, 88 Wn. App. 

at 331.

       Affirmed.

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No. 66848-0-I/6

We concur:

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