State Of Washington, Respondent V. Garrett Joseph Czerski,

COURT OF APPALS ^ .
STATE OF V.!A:H!--.niLi,;
2013 KftR II 	f.?H0'i*3
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
GARRETT J. CZERSKI,
Appellant.
No. 67656-3-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 11, 2013
Leach, 	C.J. 	— 	Garrett Czerski 	appeals the 	standard 	range 	sentence
imposed for his conviction for attempted rape in the second degree, unlawful
imprisonment, and burglary in the first degree. 	He claims that the trial court
abused 	its discretion when it denied his request for an exceptional sentence
below the standard range because it incorrectly assumed that it did 	not have
legal authority to impose such a sentence. 	Because the record demonstrates
that the court both understood that it had such discretion and properly exercised
its discretion in denying Czerski's request, we affirm.
Background
The 	State 	charged 	Czerski 	by 	information 	with 	indecent 	liberties 	by
forcible compulsion, attempted rape in the first degree, unlawful imprisonment,
and burglary in the first degree. 	Before trial, the court ordered a competency
evaluation and committed Czerski, who suffers from schizophrenia, to Western

No. 67656-3 / 2
State Hospital 	until 	he gained 	competence to 	stand 	trial. 	At a 	subsequent
hearing, the court determined that Czerski was competent to stand trial.
A jury 	convicted 	Czerski 	of 	indecent 	liberties 	by forcible 	compulsion,
attempted rape in the second degree, unlawful imprisonment, and burglary in the
first 	degree. 	At 	sentencing, 	the 	court vacated 	and 	dismissed 	the 	indecent
liberties conviction, finding that it merged with the conviction for attempted rape
in the second degree. 	Based upon his offender score, Czerski faced a standard
range sentence of 157.5 to 210.0 months in prison.
Czerski requested an exceptional sentence below the standard range of
87 	months 	in 	prison. 	He 	argued 	that 	this 	exceptional 	sentence, 	which
represented the low end of the standard range for the burglary conviction, was
warranted because "Mr. Czerski has never been incarcerated for more than 72
months, so in this case 87 months would be appropriately graduated upward to
reflect his prior history." 	He also asserted that "such a sentence would also
appropriately 	reflect the 	challenges and 	limitations under which 	Mr. 	Czerski
labors owing to his severe mental illness which significantly impairs his capacity
to appreciate the wrongfulness of his conduct and to conform his conduct to the
requirements of the law."
The court stated that it was "sympathetic" to Czerski's arguments and that
it "agree[d] that to some extent either small or very significant Mr. Czerski's long
time mental 	health 	issues contributed 	to this series of crimes." 	Despite its
reservations, the court expressed concern regarding the 	need to "protect the
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No. 67656-3 / 3
public 	from 	Mr. 	Czerski's 	mental 	health 	issues, 	which 	seem 	to 	manifest
themselves in continuing and worsening criminal conduct." 	In denying Czerski's
request, the court explained,
I feel I can do nothing less then [sic] a standard range sentence. 	I
don't feel that the facts of the case justify high-end of the range.
I'm going to sentence him to 160 months just above the low-end
and 	hope 	that. . . something 	can 	happen 	in treatment that will
make Mr. Czerski less of a threat or just the passage of time and
the aging process will do that.
The court also noted, "I think it's too much time too, but you know something I—
the law doesn't—I don't feel that the law allows me to do much different from
that. 	I gave you as little time as I could within the standard range." 	Czerski
appeals.
Analysis
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."1 	"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."2 	Thus, "[t]he failure to consider an
exceptional sentence is reversible error."3 	Similarly, "[a] trial court's erroneous
1State v. Garcia-Martinez. 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
2State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183(2005).
3 Grayson. 154 Wn.2d at 342.
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No. 67656-3/4
belief 	that 	it 	lacks 	the 	discretion 	to 	depart 	downward 	from 	the 	standard
sentencing range is itself an abuse of discretion warranting remand."4
Czerski claims that the trial court abused its discretion because it "failed to
recognize it had 	legal authority to impose a 	lesser sentence via a 	mitigated
exceptional sentence, as requested by Czerski," and that "the record reveals the
trial court would 	have done so had it recognized this authority." 	He cites the
court's statements acknowledging that Czerski's mental health issues contributed
to his acts and that the court "[didn't] feel that the law allows me to do much
different" from the standard range sentence.
In 	arguing 	for 	an 	exceptional 	sentence, 	Czerski 	relies 	upon 	RCW
9.94A.535(1). 	That statute permits a 	court to 	impose a 	sentence below the
standard 	range 	under 	certain 	mitigating 	circumstances, 	including 	if 	"[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."5
In State v. Schloredt,6 we held that "the record must establish not only the
existence of the mental condition, but also the requisite connection between the
condition and significant impairment of the defendant's ability to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirement of the
law." Here, the trial court heard expert testimony indicating that Czerski's mental
4 State v. Bunker. 144 Wn. App. 407, 421, 183P.3d 1086(2008).
5RCW9.94A.535(1)(e).
97 Wn. App. 789, 802, 987 P.2d 647 (1999).
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No. 67656-3 / 5
illness did not impair his capacity at the time of the incident. 	Czerski's expert
witness testified that during his evaluation, Czerski "described engaged behavior
that had a goal-directed intentional quality" and that it was "pretty clear there was
goal 	directed 	behavior on 	that 	date." 	The 	State's expert testified 	regarding
"whether or not he had the capacity to perceive, to know that those acts were—
know right from wrong with respect to those acts for which he was charged. 	The
answer to that in my opinion was yes." Additionally, he testified,
I can't deny that in most cases that most people who have chronic
schizophrenia 	are 	going 	to 	be 	impaired 	to 	some extent. 	The
question is to what degree is that person impaired. 	In my opinion
he wasn't significantly or seriously impaired.
To carry on activities that he had in mind to do those things,
to achieve the goals that he was trying to achieve.
Czerski compares this case to In re Personal Restraint of Mulholland.7 	In
Mulholland. the trial court sentenced the defendant under RCW 9.94A.589(1).8
The trial court concluded that it did not have discretion to run the defendant's
sentences 	concurrently 	because 	the 	law 	required 	the 	court 	to 	run 	them
consecutively.9 	The Supreme Court remanded, holding that the plain language
of RCW 9.94A.589(1) and RCW 9.94A.535 gave discretion to the trial court to
impose an exceptional sentence.10
Both Czerski's sentencing memorandum and the State's supplement to its
sentencing brief recognized that the trial court could consider an exceptional
7 161 Wn.2d 322, 166 P.3d 677 (2007).
8 Mulholland. 161 Wn.2d at 325-26.
9 Mulholland. 161 Wn.2d at 326.
10 Mulholland. 161 Wn.2d at 330-31.
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No. 67656-3 / 6
sentence below the standard 	range. 	At the sentencing hearing, both 	parties
addressed whether such a sentence would appropriately protect the public.
Contrary to 	Czerski's assertion, the 	record 	reveals that the court was
aware of its discretion to impose a sentence below the standard range. 	Unlike
Mulholland. nothing in the record indicates that the trial court misunderstood the
law. 	The court declined to impose such a sentence because it disagreed with
Czerski's arguments that the 	relevant facts supported a 	sentence below the
standard range. 	"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."11
Conclusion
Because the trial court did not abuse its discretion in determining that no
factual or legal basis supported a sentence below the standard range, we affirm.
^<r^Mt 	C-
WE CONCUR:
^ 	(I 	&XjJ
11 Garcia-Martinez, 88 Wn. App. at 331
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