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Washington v. Creekmore11/6/1989
ence within the standard range would be nonreviewable. The actual sentence imposed, and now rendered nonreviewable in the majority opinion, is 720 months. The vast range of discretion is candidly acknowledged by the majority, at 864:
Stated otherwise, the "clearly excessive" prong of appellate review under the sentencing reform act gives courts near plenary discretion to affirm the length of an exceptional sentence,
just as the trial court has all but unbridled discretion in setting the length of the sentence.
As Justice Goodloe prophetically observed, the practical effect of an abuse of discretion standard is to guarantee that an appellate court will rarely, if ever, overturn an exceptional sentence because of its length. The majority places the responsibility for this essentially uncontrolled discretion upon the Legislature. "This necessarily follows from the lack of a legislative definition of 'clearly excessive' and from the abuse-of-discretion standard of review." Majority, at 864.
I find the term "clearly excessive" a fair and reasonable standard. No formula will dictate the results. It is a normal and essential function of appellate courts to give specific content to broad general terms such as "due process of law." The United States Supreme Court deals comfortably with the broad general standard of "cruel and unusual punishment". So too have the Washington courts. In State v. Fain, the Supreme Court held that a sentence of life imprisonment was cruel and unusual when imposed upon a person found to be a habitual criminal based on three convictions for minor offenses not involving offenses to persons or property. In State v. Ross, this court upheld a life sentence imposed on a person found to be a habitual offender based on seven convictions for offenses involving severe penalties.
This is analogous to the type of review that would be involved in deciding that in a given case, a sentence of 700 months is "clearly excessive" while a sentence of 600 months is not. In my view, it is the courts' responsibility to
implement "clearly excessive" in light of the purposes of the SRA. Furthermore, it is the courts that chose the abuse of discretion standard, not the Legislature. A frequently stated test for abuse of discretion is a decision "no reasonable judge would have made"; State v. Nelson specifically applies this test to sentencing. The other classic formulation of the abuse of discretion standard is a decision that is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker. In the sentencing context, before reaching the issue of duration, tenable grounds and tenable reasons for the exceptional sentence have already been found. Therefore, the two formulas yield identical results: Is the sentence one that no reasonable judge would impose?
It is unfortunate that this formula has been adopted, as it focuses on the judge's mental state instead of the reasons for his decision. An experienced and reasonable trial judge does not suddenly become "unreasonable" on a particular day. He may make an erroneous or unreasonable decision, just as a normally prudent driver can be negligent and cause an accident. The true question is always: Do the facts and reasons given justify the result in question?
To emphasize the fallacy of this test for abuse of discretion, let me pose an unlikely hypothetical. A motion for reconsideration is made on the basis that the judge abused his discretion. In opposition to the motion, the affidavits of two recently retired superior court judges are filed, each one stating he has reviewed the facts and circumstances and he woul
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