STATE v. DENNIS, 48258-1-I (Wash.App. 5-28-2002)

No. 48258-1-IThe Court of Appeals of Washington, Division One.
Filed: May 28, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 001083129, Hon. Michael C. Hayden, February 23, 2001, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Marilyn A. Nowogroski, King County Prosecuting Attorney, W554 King Co Courthouse, 516 3rd Ave., Seattle, WA 98104.

PER CURIAM.

A sentencing court’s reasons for imposing an exceptional sentence must distinguish the defendant’s crime from others in the same category. Because Desmond Dennis’ illness does not distinguish his crime from other cases of unlawful possession of a firearm, the extraordinary cost of treatment for his illness was not a legally available mitigating factor, and the sentencing court properly denied his request for an exceptional sentence below the standard range.

FACTS
The trial court convicted Desmond Dennis of first degree unlawful possession of a firearm and third degree driving with a suspended license. Dennis requested an exceptional sentence below the standard range (which was 26 to 34 months confinement) based on the extraordinary cost of treating his advanced sickle-cell anemia, which requires hospitalization and treatment every 30 to 45 days. The Department of Corrections is unable to provide such treatment at DOC facilities, and instead must transport Dennis to a community hospital.

The sentencing court denied Dennis’ request for an exceptional sentence on the ground that the extraordinary cost of treatment for his illness was not a valid legal basis for a downward departure. The court stated that if such a mitigating factor was legally available, it would likely have granted Dennis’ request. Dennis appeals his standard range sentence, arguing the trial court erred by failing to recognize the extraordinary cost of his treatment as a valid legal basis for a downward departure.

DISCUSSION
Under former RCW 9.94A.210, a standard range sentence generally cannot be appealed. Former RCW 9.94A.210(1) (1984) (recodified as RCW 9.94A.585(1) by Laws of 2001, ch. 10, sec. 6). This statute, however, precludes only appellate review of “challenges to the amount of time imposed when the time is within the standard range.” State v. Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997) (quoting State v. Herzog, 112 Wn.2d 419, 423, 771 P.2d 739 (1989)). Appellate courts can therefore review a court’s decision to impose a standard range sentence in “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.” Garcia-Martinez, 88 Wn. App. at 330.

A sentencing court refuses to exercise its discretion by categorically rejecting an exceptional sentence under any circumstances; it relies on an impermissible basis if, for example, “it refuses to consider the request because of the defendant’s race, sex or religion.”Garcia-Martinez, 88 Wn. App. at 330. A court that has considered the facts and concluded there is no basis for an exceptional sentence, however, has exercised its discretion, and the defendant cannot appeal that ruling. Garcia-Martinez, 88 Wn. App. at 330.

A sentencing court may impose an exceptional sentence only if it finds, considering the purposes of the Sentencing Reform Act (SRA), substantial and compelling reasons to justify it. Former RCW 9.94A.120(2) State v. McClarney, 107 Wn. App. 256, 262, 26 P.3d 1013 (2001). A central purpose of the SRA is “meting out the appropriate punishment for a particular crime, rather than tailoring the sentence to a particular individual.” McClarney, 107 Wn. App. at 263. A court’s reasons for imposing an exceptional sentence must therefore distinguish the defendant’s crime from others in the same category. McClarney, 107 Wn. App. at 262-63. Dennis’ illness does not distinguish his crime from other cases of unlawful possession of a firearm. The SRA applies “equally to offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous record of the defendant.” RCW 9.94A.340; State v. Ha’mim, 132 Wn.2d 834, 847, 940 P.2d 633 (1997). Here, the cost of treating Dennis’ illness does not relate to his record or the elements of unlawful possession of a firearm. We agree with the sentencing court that this rule has harsh effects here, and we agree with Dennis that this analysis would seem to foreclose consideration of another express objective of the SRA frugal use of the State’s resources. See RCW 9.94A.010(6). But the trial court was correct that under Ha’mim, the cost of treatment for an inmate’s illness is not a legally available mitigating factor, no matter how extraordinary the cost or how little the public safety impact of a lesser sentence, because the illness is not related to the crime or to the defendant’s previous record. The court therefore properly denied the request for an exceptional sentence below the standard range. As the court did not rely upon an impermissible basis or refuse to exercise its discretion, Dennis cannot challenge his standard range sentence.

Affirmed.