STATE v. MURRAY, 124 Wn. App. 1019 (2004)

The State appeals the trial court's imposition of an exceptional sentence downward for Louis Murray's conviction of escape in the first degree, and Murray challenges the sufficiency of the evidence in his cross-appeal. Because the State presented sufficient evidence to support a finding of each essential element of the crime, we affirm Murray's conviction. However, because the trial court's reasons do not justify an exceptional sentence, we reverse Murray's sentence and remand for resentencing. Following his felony conviction, the Department of Corrections placed Louis Murray in a work release facility. Community Corrections Officer Dennis Lee reviewed the work release program rules with Murray on January 15, 2003. Lee authorized a job search pass for Murray for January 24, 2003, for the hours of 12:30 to 4:30 p.m.

When Community Corrections Officer Walter Allen learned that Murray had not checked in by 4:30, he reviewed Murray's activities sheet and determined that Murray had signed out. Allen directed staff members to search the facility and take a head count. Allen then notified his supervisor, Annette Thomas, who authorized escape procedures requiring telephone calls to police departments, jails and hospitals, and an incident report to be sent to Olympia before requesting a warrant. Allen supervised Lee as he followed the escape procedures, which yielded no information of Murray's whereabouts. Lee next saw Murray in jail on January 28.

The State charged Murray with first degree escape. Following the jury's guilty verdict, the trial court imposed an exceptional sentence of 26 months, below Murray's standard range of 53 to 70 months. The State appeals the sentence and Murray cross-appeals, challenging the sufficiency of the evidence supporting the conviction. Murray contends that the State failed to present sufficient evidence that he `knowingly escape[d] from custody or a detention facility while being detained pursuant to a conviction of a felony' in violation of RCW9A.76.110(1). In particular, he contends that the State failed to present any testimony from witnesses with personal knowledge that Murray left the facility and failed to return, and no evidence that he knew what time he was expected or that he stayed out past that time. According to Murray, without such evidence, his conviction is based on pure speculation. We disagree.

Evidence is sufficient if, viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Theroff,95 Wn.2d 385,388,622 P.2d 1240(1980), citing Jackson v. Virginia,443 U.S. 307,319,99 S. Ct. 2781,61 L. Ed. 2d 560(1979). Circumstantial evidence is as reliable and probative as direct evidence. State v. Kroll,87 Wn.2d 829,842,558 P.2d 173(1976). A fact finder can infer specific intent as a logical probability from all the facts and circumstances of a case. State v. Wilson,125 Wn.2d 212,217,883 P.2d 320(1994).

Here, Lee testified that he reviewed the rules of the work release program with Murray. Although residents who had jobs were allowed to leave the facility for up to 16 hours depending on work schedules and travel time, Lee testified that that job search passes allowed residents to leave the facility from 7:30 a.m. to 11:30 a.m. or from 12:30 p.m. to 4:30 p.m. He also testified that he approved an afternoon job search pass for Murray on January 24. Viewed in the light most favorable to the State, this testimony supports an inference that Murray knew what time he was required to return to the facility.

Although no witness testified to seeing Murray leave the facility or to personally performing a facility search and head count, Allen testified that he saw Murray's signature on the sign-out log and that he learned from staff members that Murray wasn't found at the facility after the search and that no information was discovered through phone calls to police departments, jails, and hospitals. Given Lee's testimony that he saw Murray in the jail four days later, the jury could draw the reasonable inference that Murray willfully failed to return to the work release facility by 4:30 p.m. on January 24, and find the essential elements of the crime of escape in the first degree beyond a reasonable doubt.

The State appeals the exceptional sentence. An exceptional sentence may be imposed for substantial and compelling reasons. RCW9.94A.535. An exceptional sentence will be reversed only where the reviewing court finds that the reasons relied upon by the appellate court are not supported by the record under a clearly erroneous standard; that the reasons relied upon do not justify an exceptional sentence under a de novo standard of review; or that the sentence imposed is clearly excessive or clearly too lenient, under an abuse of discretion standard.

State v. Jackson,150 Wn.2d 251,273-74,76 P.3d 217(2003), citing RCW9.94A.585(4) (formerly 9.94A.210(4)); State v. Borg,145 Wn.2d 329,336,36 P.3d 546(2001); State v. Nordby,106 Wn.2d 514,517-18,723 P.2d 1117(1986). An appellate court can uphold an exceptional sentence even if it overturns all but one of the sentencing court's reasons. State v. Gaines,122 Wn.2d 502,512,859 P.2d 36(1993). Remand is necessary only in circumstances in which it is not clear that the sentencing court would have imposed an exceptional sentence on the basis of the one factor upheld. Id.

The trial court gave the following reasons finding that `each of these presents a substantial and compelling reason to depart from the standard sentencing range': (1) imposition of the multiple offense policy results in an egregious sentence; (2) the degree of culpability does not warrant a standard range sentence; (3) the circumstances pale in comparison to the typical escape case. Clerk's Papers at 40-41.

The State first contends that the trial court improperly relied on the multiple offense policy. The trial court's written order states:

Imposition of the multiple offense policy in this matter results in an egregious sentence. Mr. Murray's standard range in this matter is fifty-three to seventy months. Mr. Murray's sentence on the underlying conviction was twenty-two months. Therefore imposition of the multiple offense policy in this matter results in the egregious result that if Mr. Murray is sentenced to a period of incarceration within the standard range, he will be required to serve greater than twice the amount of time he is required to serve on the underlying offense. But as the State points out, the multiple offense policy actually applies to sentencing decisions involving multiple current offenses that encompass the same criminal conduct. RCW9.94A.589(1)(a); see also, State v. Sanchez,69 Wn. App. 255,848 P.2d 208(1993). The multiple offense policy does not apply to justify an exceptional sentence here, where Murray was being sentenced for one count of first degree escape. Given the fact that Murray's sentence on the underlying felony was the result of an exceptional sentence downward pursuant to a plea agreement, it is not egregious or even surprising that his standard range sentence for the escape would be significantly greater.

Next, the State challenges the trial court's second reason for the exceptional sentence:

The degree of culpability here does not warrant a sentence within the standard sentencing range. As noted above, Mr. Murray had permission to leave the facility and there is no evidence that he engaged in any form of criminal or violent activity while he was outside the facility. Moreover, there is evidence in the record that Mr. Murray was likely intoxicated at the time he was required to return to the work release facility. Mr. Murray's drug and alcohol problems were known to the Judge who sentenced him on his underlying conviction, and who ordered that he receive drug and alcohol treatment while in custody and while on Community Custody. Mr. Murray's culpability in this matter does not, therefore, rise to the level that would justify imposition of a sentence within the standard sentencing range. In making this finding, the Court is not ruling that Mr. Murray's voluntary intoxication alone justifies an exceptional sentence below the standard range. Rather the Court is finding that Mr. Murray's voluntary intoxication is relevant to the issue of his culpability. In its list of illustrative factors that the court may consider when deciding whether to impose an exceptional sentence, the Legislature included as a mitigating factor that `[t]he defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded.' RCW9.94A.535(1)(e). It is clear that the Legislature intended that voluntary use of drugs and alcohol cannot be considered as a mitigating factor, either alone, or as a relevant consideration to degree of culpability. See, e.g., State v. Fowler,145 Wn.2d 400,411,38 P.3d 335(2002) (because there was evidence that defendant's sleep deprivation was associated with his voluntary consumption of alcohol and drugs, it could not serve as a basis for an exceptional sentence). This reason cannot justify an exceptional sentence. In concluding that the circumstances were not typical of an escape case, the trial court relied on its findings that Murray had permission to leave the facility but simply failed to return at the proper time, that he did not use force or harm anyone in order to leave, and that he did not lie or manipulate anyone in order to secure his release. Clerk's Papers at 37-38, 41. Because the State does not challenge these findings, they are verities on appeal. State v. Hill,123 Wn.2d 641,644,870 P.2d 313(1994). Instead, the State argues that factors such as `use of force,' `injury to others,' and `manipulation' are not elements of first degree escape, and cites examples of published appellate opinions addressing escape cases that do not involve those factors.¹

But the key questions are whether the factors at issue were necessarily considered by the Legislature in establishing the standard range and whether those factors are sufficiently substantial and compelling to distinguish the crime in question from others in the same category. State v. Alexander,125 Wn.2d 717,725,888 P.2d 1169(1995).

Until July 1, 2001, the act of willfully failing to return to work release was prohibited by former RCW 72.65.070, repealed by 2001 c. 264 sec.sec. 7-8, and the State was required to charge defendants accused of such acts under that statute rather than under RCW9A.76.110, the general escape statute. See, e.g., State v. Newman,40 Wn. App. 353,358,707 P.2d 1356(1985) (noting that the separate statutes demonstrated that the Legislature distinguished between "`going over a prison wall,' covered by the general escape statute, `and not returning to a specified place of custody', covered by the specific work-release escape statute.') (citations omitted). In repealing former RCW 72.65.270, therefore, the Legislature necessarily considered that the general escape statute would thereafter include both the act of simply failing to return to work release after leaving with permission and more violent or carefully planned escape scenarios. As such, the stated reason does not justify an exceptional sentence. Reversed and remanded for resentencing.

COLEMAN, J. and BECKER, J., concur.