State v. Nordby ( 1986 )

Utter, J.

(dissenting) — The Sentencing Reform Act of 1981 provides a structure for the exercise of discretion by public officials. The trial court escaped the confines of this structure to impose a sentence outside the act's presumptive sentencing range. I do not agree with the majority that two of the reasons articulated by the trial court justify the exceptional sentence imposed. First, the "particular vulnerability" of the victim as a pedestrian, while true, is present in too many vehicular assault cases for this one to be characterized as exceptional. Second, allowing a prosecutor to present proof of intent as an aggravating factor in sentencing for a nonintentional crime violates a specific provision of the act.

The Sentencing Reform Act of 1981 authorizes a trial court to impose a sentence outside of the standard sentence range if the court finds "substantial and compelling reasons" that justify an exceptional sentence. RCW 9.94A-.120(2); see also Laws of 1985, ch. 443, § 8, p. 1916. The act also provides a nonexclusive, illustrative list of aggravating factors that a court can consider in the exercise of its discretion to impose an exceptional sentence; one of the factors is that "[t]he defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health." RCW 9.94A.390(2). In this case, Tia Gibson was pushing her bicycle along the roadside when Nordby steered the car into her. The majority argues that as a pedestrian Gibson was more vulnerable than a potential victim in a car, and that this vulnerability justifies an exceptional sentence.

A sentence outside the presumptive sentencing range is appropriate only when the circumstances of the crime distinguish it from other crimes of the same statutory category. D. Boerner, Sentencing in Washington § 9.6, at 9-13 (1985). The Legislature considers the typical circumstances of a crime when it establishes the severity of a statutory offense, and probably considers the "worst case" when it establishes the maximum prison sentence. Zimring, Sentencing Reform in the States: Some Sobering Lessons From the 1970's, 2 N. Ill. U. L. Rev. 1, 14 (1981). A court therefore should rely only on factors that the Legislature would consider exceptional to impose a sentence outside the presumptive sentencing range. State v. Peterson, 329 N.W.2d 58, 60 (Minn. 1983);⁵ State v. Higson, 310 N.C. 418, 312 S.E.2d 437, 441 (1984).

The fact that the victim of Nordby's vehicular assault was a pedestrian is not exceptional. A significant number of the motor vehicle accidents that produce injury or death involve pedestrians. See Nat'l Safety Coun., Accident Facts 61 (1985). Nationwide, collisions involving pedestrians account for the largest number of fatal motor vehicle accidents in urban areas. Accident Facts, at 47. When the Legislature enacted the vehicular assault statute in 1983, this state's leading decisions on vehicular homicide involved pedestrians. See State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960) (pedestrian on sidewalk); State v. Pyles, 9 Wn. App. 246, 511 P.2d 1374 (1973) (pedestrian running alongside car). In light of these statistics it would be erroneous to assume that the Legislature did not consider accidents involving pedestrians when it adopted the sentencing guidelines for vehicular assault. The majority errs when it concludes that the fact that Nordby hit a pedestrian is a factor that justifies an exceptional sentence.

The second factor invoked by the trial court and accepted by the majority to justify an exceptional sentence is "Nordby's intentional mental state when he committed the crime". The prosecutor argues that traditionally a more culpable mental state is associated with a greater severity of punishment. The prosecutor asserts that because Nord-by's conduct constituted second degree assault with a deadly weapon, which has a presumptive sentence of 18 to 24 months, the trial court appropriately fixed Nordby's sentence at 16 months.

The flaw in the prosecutor's reasoning is that Nordby has not been proven to have acted with specific intent to commit a crime, the type of intent that justifies more severe punishment. RCW 9A.08.010(1).⁶ Nordby pleaded guilty to vehicular assault, a nonintentional crime. See RCW 46.61-.522.⁷ The prosecutor failed to charge Nordby with a more serious intentional crime.⁸ A significant criticism of indeterminate sentencing is that prosecutors have been able to obtain guilty pleas by offering reduced charges, knowing that the real facts of the case would be considered in sentencing. D. Boerner, § 9.15, at 9-49. The result has been illusory bargains as well as convictions that misrepresent a defendant's actual conduct and criminal history. D. Boer-ner, § 9.15, at 9-49. Professor Boerner notes that the public has grown increasingly dissatisfied "with a system of criminal justice where everything appear [s] negotiable, and where truth and accountability [are] relegated to secondary status." D. Boerner, § 9.16, at 9-49.

In response to this criticism, the Sentencing Reform Act of 1981 directs trial courts not to consider during sentencing facts that have not been proven or admitted:

In determining any sentence, the trial court may use no more information than is admitted by the plea agreement, and admitted to or acknowledged at the time of sentencing. . . . Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. . . . Real facts that establish elements of a higher crime, a more serious crime, or additional crimes cannot be used to go outside the presumptive sentence range except upon stipulation.

(Italics mine.) Former RCW 9.94A.370, in part. This "real facts policy" was adopted to insure that facts not proven as an element of the conviction — or of the plea — would not be used in the sentencing decision or to justify a departure from the presumptive sentence range. Washington Sentencing Guidelines Comm'n, Implementation Manual 11-35 (1984). Professor Boerner applauds the Legislature's prohibition of the use of unproven facts in sentencing decisions:

Defendants will be held accountable for what they have been convicted of, but not for crimes that the prosecution either could not or chose not to prove. The fact that plea agreements are no longer illusory will go far to insure that they are entered into carefully and that they are "necessary and in the public interest." . . . This policy judgment. . . will go far to bring integrity to the process of determining guilt and imposing punishment, thus fulfilling the purpose of the Sentencing Reform Act to " [pjromote respect for the law by providing punishment which is just."

(Footnotes omitted.) D. Boerner, § 9.16, at 9-50.

In this case the trial court violated RCW 9.94A.370. State of mind is an issue of fact that can be proven by direct or circumstantial evidence. See, e.g., State v. Caliguri, 99 Wn.2d 501, 505-06, 664 P.2d 466 (1983). By relying on the prosecutor's assertion that Nordby acted intentionally, the court used more information than admitted by the plea agreement. Moreover, at the sentencing hearing Nordby's counsel objected to the prosecutor's statement that Nordby acted intentionally. Although the sentencing judge's action is understandable, RCW 9.94A.370 plainly prohibits the judge from imposing an exceptional sentence because of a material fact that the defendant disputes unless the fact is proven at an evidentiary hearing. No evidentiary hearing was held in this case.

The purposes of the Sentencing Reform Act of 1981 can be achieved only if the act is honored in its spirit as well as its letter. Orland, Is Determinate Sentencing an Illusory Reform?, 62 Judicature 381, 386-88 (1979). Affirmance in this case expands the exercise of discretion beyond the parameters intended by the Legislature. For these reasons, I respectfully dissent.

Pearson and Goodloe, JJ., concur with Utter, J.

5 The Washington Sentencing Guidelines Commission unanimously recommended that the Legislature adopt Minnesota's standard for exceptional sentences as that standard was construed by the Minnesota Supreme Court. D. Boerner, Sentencing in Washington § 9.3, at 9-6 (1985). The Legislature concurred. Minnesota decisions on what factors are sufficiently "substantial and compelling" to justify an exceptional sentence thus provide especially persuasive authority for Washington courts.

6 RCW 9A.08.010(1) defines the different levels of culpability:

"(a) Intent. A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.

"(b) Knowledge. A person knows or acts knowingly or with knowledge when: "(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or

"(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.

"(c) Recklessness. A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.

"(d) Criminal negligence. A person is criminally negligent or acts with criminal negligence when he fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation.”

7 Vehicular assault is defined as follows:

"(1) A person is guilty of vehicular assault if he operates or drives any vehicle: "(a) In a reckless manner, and this conduct is the proximate cause of serious bodily injury to another; or

"(b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and this conduct is the proximate cause of serious bodily injury to another." (Italics mine.) RCW 46.61.522(1).

8 The prosecutor's office argues — without citing any authority — that the charge of assault "was not available" against Nordby because our decisions require that the more specific statute of vehicular assault be used. This argument is not persuasive. This court held in State v. Collins, 55 Wn.2d 469, 348 P.2d 214 (1960) that when both the negligent vehicular homicide statute, former RCW 46.56.040, and the manslaughter statute, RCW 9.48.060 (now 9A.32.060-.070), apply to the same case, only the vehicular homicide statute can control. This court did not rule, however, that the vehicular homicide statute preempts the intentional homicide statutes. Similarly, it does not follow that the vehicular assault statute preempts the intentional assault statutes. The predominant purpose of the vehicular homicide statute — and, presumably, the vehicular assault statute — is to prohibit reckless and drunken driving. 7A Am. Jur. 2d Automobiles and Highway Traffic § 341, at 526 (1980); see generally State v. Costello, 59 Wn.2d 325, 332, 367 P.2d 816 (1962) (Foster, J., concurring). Neither our vehicular homicide nor our vehicular assault statute is appropriate for the prosecution of a truly intentional crime. See generally 7A Am. Jur. 2d Automobiles and Highway Traffic § 342 (1980); see also State v. McDonald, 1 Wn. App. 592, 595, 463 P.2d 174 (1969).