State v. Cunningham

¶1Petitioner Brook Cunningham was convicted of first degree (armed) robbery and was sentenced to prison. She appealed solely on the ground that the trial judge assertedly abused his discretion by voicing a rigid sentencing policy. The Court of Appeals affirmed, as do we.

¶2Petitioner stipulated that she had participated in the robbery of a service station, while being armed. She contended, however, that due to consumption of drugs she had a diminished mental capacity and could not have formed the requisite specific intent. The trial judge rejected the defense after hearing both petitioner and conflicting expert testimony. The rejected defense is not an issue on appeal.

¶3Prior to trial, and later at the sentencing proceedings, the judge made it clear he would not grant probation in this or other cases of first degree robbery. He acknowledged that State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), gave him discretion to grant probation, but stated he would not exercise that discretion for several reasons. He felt armed robbery was a "very, very serious offense," yet he was concerned that Workmanhad apparently made it almost a privileged crime. He pointed out that under Workmandefendants convicted of first degree robbery, a class A felony, were eligible to receive a suspended or deferred sentence, while all other persons found to have been armed while committing a felony, whether a class A, B or C felony, would automatically be sentenced to an institution regardless of individualized factors. RCW 9.41.025. The judge noted that it would cause him a "great deal of inner conflict" to grant probation in this case while being required to incarcerate another defendant equally worthy of probation who had committed a less serious offense while armed. He *33also felt it would violate any policy of applying the law equally in the "interest of uniform justice in the community." Further, he noted the legislature generally felt that those committing felonies while armed should be incarcerated.1 Finally, he felt it would have a deterrent effect if other young offenders were certain that conviction of armed robbery would result in a prison term.

¶4The judge also mentioned other factors related specifically to this case. He noted petitioner's youth and her involvement with drugs. He commented on the hold-up letter found in her possession which said "I will not hesitate to kill", although he was under the mistaken impression that the note had been handed to the station attendant. There was also the use of a deadly weapon. In addition, he had read and considered many laudatory letters received from her friends and relatives as well as the presentence report which recommended probation. The judge observed that he found it a "very difficult thing" to sentence her to an institution, but he also felt that in good judicial conscience he could do nothing else. Ultimately he sentenced her to 20 years, the shortest possible term for a class A felony under RCW 9A.20.020(l)(a). The trial judge did not impose or recommend a minimum term of confinement, and made no special finding regarding the use of a deadly weapon under RCW 9.95.040 thus placing no restriction on her parole opportunities.2 These considerations amounted to an exercise of discretion.

¶5Petitioner argues that because the trial judge had a rigid sentencing policy, as evidenced by some of his statements, *34there was an abuse of discretion. We do not agree.

¶6The sentencing of criminals is subject to the exercise of sound judicial discretion which will not be set aside absent an abuse. State v. Blight, 89 Wn.2d 38, 569 P.2d 1129 (1977); State v. Dainard, 85 Wn.2d 624, 626, 537 P.2d 760 (1975). An abuse of discretion occurs only when the decision or order of the court is "'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons'". State v. Blight, supra at 41; State v. Sponburgh, 84 Wn.2d 203, 210, 525 P.2d 238 (1974). It exists "only where it can be said no reasonable man would take the view adopted by the trial court." State v. Blight, supra at 41; State v. Derefield, 5 Wn. App. 798, 799-800, 491 P.2d 694 (1971).

¶7 RCW 9.95.200 gives trial courts the power to grant probation. It reads in full:

After conviction by plea or verdict of guilty of any crime, the court upon application or its own motion, may summarily grant or deny probation, or at a subsequent time fixed may hear and determine, in the presence of the defendant, the matter of probation of the defendant, and the conditions of such probation, if granted. The court may, in its discretion, prior to the hearing on the granting of probation, refer the matter to the secretary of social and health services or such officers as the secretary may designate for investigation and report to the court at a specified time, upon the circumstances surrounding the crime and concerning the defendant, his prior record, and his family surroundings and environment.

¶8The legislature does not require the trial judge to consider a presentence report. While such consideration may be an aid to sentencing and normally will be appropriate, the judge is, in fact, authorized to summarily grant or deny probation. Probation is not a right, it is a matter of privilege and grace authorized by the legislature and implemented through judicial discretion. State v. Blight, supra; State v. Damon, 16 Wn. App. 845, 852, 559 P.2d 1365 (1977). Thus, even though a judge must exercise discretion in sentencing and even though that discretion may not be *35exercised in an arbitrary or unreasonable manner, the judge has been given discretion to determine the procedures to be employed and the matters that will be taken into account.

¶9In this case the trial judge determined that the reasons for imposing imprisonment in first degree robbery cases would always outweigh individual factors opposing imprisonment. He came to this conclusion only after considering and weighing numerous factors, however. He did not refuse to listen to or consider individualized factors; he merely decided, after extensive reasoning, that he could see no reason why the individualized factors would allow him, in good judicial conscience, to give probation after a conviction of armed robbery. We cannot say such a determination is so unreasonable that it amounts to an abuse of discretion. After all, this is basically what the legislature did in enacting RCW 9.41.025 and its amendment, Substitute Senate Bill 4131, 47th Legislature (1981).

¶10Petitioner has drawn our attention to several federal cases in which sentences were vacated when it was perceived the trial judge employed a mechanistic sentencing policy. E.g., United States v. Wardlaw, 576 F.2d 932 (1st Cir. 1978);3United States v. Hartford, 489 F.2d 652 (5th Cir. 1974); Woosley v. United States, 478 F.2d 139, 143 (8th Cir. 1973). Some state cases have held similarly. E.g., People v. Bolyard, 61 Ill. 2d 583, 338 N.E.2d 168 (1975).4 However, except in death penalty cases, there is no constitutional requirement that there be individualized sentencing determinations. Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976). Further, the cited cases did not deal with a situation in which the *36trial judge had expressed reasonable grounds for his sentencing policy. The latter factor also distinguishes this case from State v. Pettitt, 93 Wn.2d 288, 609 P.2d 1364 (1980), and its companion cases in which we held impermissible a prosecutor's policy of invariably filing habitual criminal actions if they could be proven. Further, unlike the instant case, the prosecutor in Pettittrefused to consider any mitigating factors whatsoever. 93 Wn.2d at 296.

¶11The dilemma confronting trial judges in situations like the instant case is unique. In most cases a fixed sentencing policy would not be justifiable. Here, however, even though that resolution of the problem is neither mandatory nor preferred, we cannot say it was so arbitrary or unreasonable as to manifest an abuse of discretion in light of the trial judge's clearly articulated reasons.

¶12The trial judge is affirmed.

¶13Brachtenbach, C.J., and Rosellini, Dolliver, Dore, and Dimmick, JJ., concur.