State Of Washington, Respondent V. Gerard Gray, Appellant
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 39935-1-II Respondent, UNPUBLISHED OPINION v. GERARD GRAY, Appellant. Armstrong, P.J. Gerard Gray appeals his sentence for a third degree assault conviction, arguing that the trial court erred in running the sentence consecutive to his 2008 convictions of first degree kidnapping and second and fourth degree assault. Gray argues that the court failed to exercise its discretion under RCW 9.94A.589(3) to impose a concurrent sentence. Because the record is unclear as to whether the trial court understood it had discretion to grant a concurrent sentence, we vacate the sentence and remand for resentencing. Gray s 2008 convictions related to domestic violence incidents involving his pregnant girlfriend. At the July 18, 2008 preliminary sentencing hearing on those crimes, Gray became upset when the trial court refused to lift a no-contact order that prevented him from marrying his girlfriend. As the judge was leaving the courtroom, the prosecutor walked around her desk to pick up some paperwork from the clerk. Gray stood up and tipped the defense table over, striking the prosecutor s right upper calf and smashing her up against a wall. The State charged Gray with second degree assault for the incident, and a jury found him guilty of third degree assault. At sentencing for that conviction, the prosecutor asked for the high end standard range sentence of 57 months consecutive to the 30-year sentence for the 2008 No. 39935-1-II convictions. He argued that otherwise Gray would receive a freebie for the courtroom assault. Report of Proceedings (RP) (Oct. 26, 2009) at 5. Defense counsel asked for a concurrent sentence, pointing out that RCW 9.94A.589(3) requires concurrent sentences unless the court specifically imposes a consecutive sentence. He agreed that the court had discretion as to whether the sentence should be concurrent or consecutive. The court declined to impose a concurrent sentence, explaining: Basically, Mr. Gray, you had just been -- completed sentencing at the time this event took place, and I feel under those circumstances I do have to run it consecutive. I understand there may be some discretion, although, technically speaking, a new crime committed after the previous crimes had been com[m]itted; it leaves the Court with some discretion in that area. But basically the whole scheme would break down if one did not impose additional punishment in relation to the fact that the sentencing had taken place, the parties had now done the hearing and had reached its determination in the previous matters, and at this time it was now appropriate to be over with it. RP (Oct. 26, 2009) at 8-9. ANALYSIS When a person commits a felony before being sentenced for another felony, RCW 9.94A.589(3) grants the sentencing court broad discretion in deciding whether to impose a consecutive sentence. State v. King, 149 Wn. App. 96, 101, 202 P.3d 351 (2009). And the court is not required to explain the basis of its decision. King, 149 Wn. App. at 101. Nonetheless, we will reverse a sentencing court for abusing its discretion if the decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A court abuses its discretion if it misapplies the law. 2 No. 39935-1-II State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). Here the trial court s reasoning reveals that it apparently believed Gray had already been sentenced for the 2008 convictions when he assaulted the prosecutor. If so, the court would have been required to run Gray s later sentence consecutive. RCW 9.94A.589(2)(a). But the court had not yet sentenced Gray when he assaulted the prosecutor, and under these circumstances, RCW 9.94A.589(3) gives the court discretion to grant concurrent sentences. Although, the trial court said it understood there may be some discretion, it also explained to Gray that you had just been completed sentencing at the time this event took place, and I feel under those circumstances I do have to run it consecutive. RP (Oct. 26, 2009) at 8-9. These statements are at least ambiguous and one reasonable reading is that the trial court believed it was bound to impose a consecutive sentence. If so, the court misapplied the law. We reverse and remand for resentencing. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Armstrong, P.J. We concur: Hunt, J. Van Deren, J. 3
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