Seattle Attorneys Blog
A court may only impose a sentence above the standard range in a Washington criminal case if it finds substantial and compelling reasons that justify it. This finding must be based on specific aggravating circumstances that have been determined beyond a reasonable doubt by the jury. In drug trafficking cases, a “major violation” of the Uniform Controlled Substances Act (“VUCSA”) can support a sentence greater than the standard range. One factor that may identify a major violation of VUCSA is if the current offense involves multiple transactions. RCW 9.94A.535. A defendant recently challenged her exceptional sentence, based on the multiple transactions aggravator.
According to the appeals court’s opinion, the defendant sold methamphetamine and pills that appeared to be Oxycodone but were actually fentanyl three separate times over a three month period.
The state charged her with a separate charge for each type of drug she sold at each sale and three charges for each sale of counterfeit Oxycodone. The state included a sentence enhancement, arguing each offense was a major violation pursuant to RCW 9.94A.535(3)(e)(i), the multiple transgressions aggravator.
The jury convicted the defendant of all charges and found each was a major trafficking violation.
In calculating the offender score, the trial court included deliveries occurring on the same day as the same conduct. The court calculated an offender score of “2,” based on the three separate deliveries. The court sentenced the defendant to a 40 month exceptional sentence for each conviction, but ran them concurrently.
The defendant appealed, arguing the trial court erred by applying the aggravator.
The multiple transaction aggravator applies when “[t]he current offense involved at least three separate transactions in which controlled substances were sold, transfierred, or possessed with intent to do so.” RCW 9.94A.535(3)(e)(i).
The defendant argued the multiple transaction aggravator only applies when the multiple transactions are charged together in one offense, meaning three separate transactions must be included in a single charge.
The appeals court noted RCW 9.94A.535 does not include a definition of “current offense,” but the term is used throughout chapter 9.94A RCW to mean “the charged crime of conviction for which a sentence is being calculated.” Upon reviewing how the term is used in the chapter, the appeals court concluded “’current offense” refers to a single charge rather than the entire case.”
The appeals court then considered the meaning of “involved” as used in the statute. The court looked to the dictionary definition and determined the plain meaning is “included.” The court then concluded the multiple transactions aggravator may be applied “when the individual charge includes at least three separate transactions.”
The appeals court noted that prosecutors have discretion to charge incidents together or separately. In this case, the state chose to charge the incidents separately so the multiple transactions aggravator could not be applied to increase the sentence beyond the standard range.
The case conceded that the victim penalty assessment (“VPA”) and DNA collection fee should be stricken based on statutory changes that prevent those legal financial obligations from being imposed on indigent defendants.
The appeals court remanded the case to the trial court with directions to re-sentence the defendant within the standard range and strike the VPA and DNA collection fee.
In this case, the trial court improperly applied the multiple transgression aggravator. If you are facing criminal drug charges, a knowledgeable Washington criminal defense attorney can help you fight to protect your rights. Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.