State v. Worl , 129 Wash. 2d 416 ( 1996 )

Talmadge, J.

— The present case is the second appeal relating to the propriety of the trial court’s exceptional sentence for Billy Wayne Worl, Jr., who was convicted of malicious harassment under RCW 9A.36.080(1)(a). The Court of Appeals, without reference to the analysis in its earlier decision of the factors supporting an exceptional sentence, vacated Worl’s exceptional sentence, finding that the factors it had previously approved did not support an exceptional sentence. We hold that the law of the case doctrine precludes reconsideration by the Court of Appeals of conclusions it had reached previously on the factors supporting Worl’s exceptional sentence. We reverse the Court of Appeals, but remand the case to the trial court for reconsideration of whether the imposition of consecutive sentences is appropriate.

ISSUES

1. Does the law of the case doctrine bar reconsideration of issues the Court of Appeals decided in Worl’s first appeal with respect to his exceptional sentence?

2. Did the trial court clearly err in considering deliberate cruelty and multiple injuries to compute an exceptional sentence for malicious harassment?

FACTS

Worl and his friend, who were members of a local "skinhead” group, beat and slashed with a knife an African-American man early one morning in a Safeway parking lot in Spokane. The victim sustained five slash wounds, four of which required 20 or more stitches. State v. Worl, 58 Wn. App. 443, 443, 794 P.2d 31 (1990) (Worl I). After the jury had found him guilty of attempted second degree murder and malicious harassment, the trial judge sentenced Worl to 15 years, using several aggravating factors, including multiple injuries, future dangerousness, and deliberate cruelty, to support an exceptional sentence for the malicious harassment conviction. Although the standard range was 12 to 14 months, the court sentenced Worl to 60 months for malicious harassment. The sentence for the attempted second degree murder conviction was within the standard range, 120 months. The court ordered the sentences to run consecutively. State v. Worl, 74 Wn. App. 605, 608, 875 P.2d 659 (1994) (Worl II).

Worl appealed. The Court of Appeals, Division III, affirmed. Worl I, at 446. Worl then petitioned for review. This court granted Worl’s petition for review solely on the issue of whether future dangerousness can be an aggravating factor justifying an exceptional sentence for a nonsexual crime. State v. Worl, noted at 115 Wn.2d 1022, 804 P.2d 9 (1990). On review, this court held in State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991) (considering three consolidated cases, including Worl’s), that the trial court should not have used future dangerousness as one of the aggravating factors, and remanded the case without instructions for resentencing.

At the resentencing hearing, the same trial judge once again sentenced Worl to 15 years, even though future dangerousness was no longer an aggravating factor the trial court could consider to determine the sentence.

Worl appealed once again. Although the Court of Appeals had affirmed the trial court’s use of multiple injuries and deliberate cruelty as aggravating factors justifying the exceptional sentence the first time it heard Worl’s appeal, the Court of Appeals held in the second appeal that the trial court had improperly applied those factors to the malicious harassment charge.¹ The Court of Appeals remanded the case for resentencing within the standard range. Worl II, at 616.

The State then petitioned for review. Worl filed an answer and petitioned for review of his assertion that malicious harassment is not a substantive crime, but only a sentence enhancer. This court granted the State’s petition and denied Worl’s petition. State v. Worl, noted at 125 Wn.2d 1014, 890 P.2d 20 (1995).

ANALYSIS

1. The Law of the Case Doctrine

To justify the exceptional sentence of 60 months for the malicious harassment conviction, the trial court at the initial sentencing set forth the following aggravating factors:

A. The defendant’s conduct constituted multiple incidents or injuries in that a number of injuries were inflicted on the victim, Ray Hill, one very serious, by the defendant with a knife.

B. The defendant’s conduct constituted deliberate cruelty in that this was an attack on the victim by two people and what appears to be a persistence in the attack because as the victim attempted to run he was chased and again attacked. An indication of the deliberate cruelty is the taking of the victim’s piece of conduit and his hat from the scene of the attack as if they were trophies.

C. The future dangerousness of the defendant as evidenced by the testimony of Dr. Thomas McKnight who had examined him at the request of the defense, and indicated that he was impulsive and had an inability to control himself.

D. The fact that this was not the "typical” Malicious Harassment case in that the injuries were substantial and the conduct of the defendant [was] beyond what could normally be expected to occur in a typical case.

Worl I, at 451-52 (emphasis added).

In affirming the trial court’s sentence in Worl I, the Court of Appeals said with respect to the trial court’s use of multiple injuries as an aggravating factor: "We find the multiple stab wounds inflicted by Mr. Worl are more properly considered multiple injuries and the court was correct in considering those injuries as an aggravating factor.” Worl I, at 452. With respect to the trial court’s use of deliberate cruelty as an aggravating factor, the Court of Appeals said:

As to the second factor, deliberate cruelty, Mr. Worl argues there is insufficient evidence to support this finding. . . .

Mr. Worl failed to assign error to the court’s findings, and thus they are verities. State v. Harmon, 50 Wn. App. 755, 757, 750 P.2d 664, review denied, 110 Wn.2d 1033 (1988). In any event, the findings are supported by the record and are not clearly erroneous. . . . There is no error.

Worl I, at 452. Thus, the parties fully litigated the questions of whether the trial court properly employed multiple injuries and deliberate cruelty as aggravating factors to justify the exceptional sentence, and the Court of Appeals rendered decisions on those questions in Worl I.

At the resentencing hearing, the trial court heard testimony from several witnesses, including Worl, and listened to the arguments of counsel. The court then announced its sentence:

The sentence the Court previously imposed with respect to the Attempted Second Degree Murder is within the standard range. I do not have to address that. I do find that with respect to the Malicious Harassment, that there are two aggravating factors and circumstances which in my judgment warrant an exceptional sentence. Those are the multiple wounds inflicted upon Mr. Hill coupled that with the persistence in the attack upon Mr. Hill. There is evidence, in my judgment, of gratuitous violence. I find, with respect to that conviction, that there was deliberate cruelty. ... I want to make it clear that this Court’s primary motivating factor is multiple injuries and deliberate cruelty either of which standing alone, in this Court’s judgment, are sufficient upon which to base an exceptional sentence.

Report of Proceedings, at 81-82.² Thus, the trial court, in reconsidering its exceptional sentence upon remand from this court, plainly stated that it based the exceptional sentence on multiple injuries and deliberate cruelty, either one of which standing alone justified the exceptional sentence. The court once again imposed a 60-month sentence for the malicious harassment offense.

On appeal from the resentencing, Worl assigned error to the trial court’s findings of fact with respect to multiple injuries and deliberate cruelty, and to the trial court’s conclusion of law that those aggravating factors constitute substantial and compelling reasons to impose an exceptional sentence. He also asserted the trial court abused its discretion by imposing the exceptional sentence because "(1) the aggravating factors are not supported by the record; (2) the aggravating factors do not justify an exceptional sentence; (3) the sentence is excessive; and (4) it is solely the result of the abuse of discretion by the trial court.” Br. of Appellant, at 4.³

The State responded that the law of the case doctrine precluded the Court of Appeals from reconsidering the same issues it had decided in Worl I. Noting that the "sentencing-related issues were all raised and decided by this court in the first appeal,” the State argued that the aggravating factors had already been litigated in Worl I. Br. of Resp’t, at 33.

The Court of Appeals cursorily dismissed the State’s law of the case argument: "This is a direct appeal following resentencing. Accordingly, the trial court’s sentence is again properly before this court for review.” Worl II, at 614. The Court of Appeals cited two cases for support, State v. Collicott, 118 Wn.2d 649, 654, 827 P.2d 263 (1992), and State v. Hillman, 66 Wn. App. 770, 778 n.6, 832 P.2d 1369, review denied, 120 Wn.2d 1011, 841 P.2d 47 (1992).

Neither of the two cases the Court of Appeals cited discusses the law of the case doctrine. In Collicott, this court held that it was permissible, on resentencing, to impose an exceptional sentence where the court in the initial sentence had incorrectly determined the offender score. This court said, "Imposition of an exceptional sentence is directly related to a correct determination of the standard range. That determination can be made only after the offender score is correctly calculated.” Collicott, at 660. Thus, redetermination of the sentence was appropriate upon correction of the trial court’s previous misinterpretation of the offender score.

In Hillman, the Court of Appeals remanded the case for resentencing in the wake of the Barnes decision that future dangerousness cannot be an aggravating factor justifying an exceptional sentence for a first degree murder conviction. The court stated that it would not then consider the defendant’s contention that his sentence was excessive, but that he could make that claim in another appeal subsequent to his resentencing. Hillman, at 778 n.6. Thus, the court in Hillman merely made the unremarkable comment that, since the court had declined to address the issue, the defendant could appeal his exceptional sentence after resentencing. Neither Collicott nor Hillman provides any support whatsoever for the proposition that the Court of Appeals could reconsider the identical issues it had previously decided. The law of the case doctrine demands a different result.

Proper consideration of the law of the case doctrine begins with Greene v. Rothschild, 68 Wn.2d 1, 414 P.2d 1013 (1966), which is the "foundation case for modern analysis” of the law of the case doctrine. Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash. L. Rev. 805, 810 (1985). In Greene, this court held that the law of case doctrine is a discretionary rule that should not be applied when the result would be "manifest injustice”:

Under the doctrine of "law of the case,” as applied in this jurisdiction, the parties, the trial court, and this court are bound by the holdings of the court on a prior appeal until such time as they are "authoritatively overruled.” . . . Such a holding should be overruled if it lays down or tacitly applies a rule of law which is clearly erroneous, and if to apply the doctrine would work a manifest injustice to one party, whereas no corresponding injustice would result to the other party if the erroneous decision should be set aside.

Greene, at 10. In 1976, this court adopted RAP 2.5(c)(2), codifying the law of the case doctrine:

Prior Appellate Court Decision. The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court’s opinion of the law at the time of the later review.

Despite the apparent permissiveness of the language of the rule, this court and the courts of appeals in the years since the adoption of RAP 2.5(c) have adhered to the standards set forth in Greene, requiring that an appellate court may reconsider only those decisions that were clearly erroneous and that would work a manifest injustice to one party if the clearly erroneous decision were not set aside.

In Folsom v. County of Spokane, 111 Wn.2d 256, 263-64, 759 P.2d 1196 (1988), this court further articulated the law of the case doctrine:

As noted, this is the second appeal of the 1983 case. Where there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes redeciding the same legal issues in a subsequent appeal.

It is also the rule that questions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause. The Supreme Court is bound by its decision on the first appeal until such time as it might be authoritatively overruled.

(Citations omitted.) Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965); Greene v. Rothschild, 68 Wn.2d 1, 7, 402 P.2d 356, 414 P.2d 1013 (1965).

Reconsideration of an identical legal issue in a subsequent appeal of the same case will be granted where the holding of the prior appeal is clearly erroneous and the application of the doctrine would result in manifest injustice.

Under the doctrine of "law of the case,” as applied in this jurisdiction, the parties, the trial court, and this court are bound by the holdings of the court on a prior appeal until such time as they are "authoritatively overruled.” Such a holding should be overruled if it lays down or tacitly applies a rule of law which is clearly erroneous, and if to apply the doctrine would work a manifest injustice to one party, whereas no corresponding injustice would result to the other party if the erroneous decision should be set aside.

(Citations omitted.) Greene, at 10.

Folsom, at 263-64. See also First Small Business Inv. Co. v. Intercapital Corp., 108 Wn.2d 324, 738 P.2d 263 (1987); State v. Mannhalt, 68 Wn. App. 757, 845 P.2d 1023 (1992); Eserhut v. Heister, 62 Wn. App. 10, 812 P.2d 902 (1991). We reaffirm Greene and Folsom here.

The court in Worl II did not consider whether its earlier holdings in Worl I were clearly erroneous.⁴ Rather, it simply embarked upon a reconsideration of the propriety of the trial court’s use of multiple injuries and deliberate cruelty as aggravating factors in the malicious harassment conviction, an analysis it had undertaken and completed in Worl I.

The law of the case doctrine precludes the Court of Appeals’ reconsideration of the sentencing issues it had decided in Worl I. Under the Greene standard, we find nothing in the record to justify a reconsideration of the sentencing issues the Court of Appeals decided in Worl I. As the following analysis shows, the court’s decision in the first appeal was not clearly erroneous; nor would application of the law of the case doctrine be manifestly unjust to Worl.

2. Worl’s Exceptional Sentence

The Court of Appeals in Worl II held that the sentencing court improperly used multiple injuries and deliberate cruelty as aggravating factors to determine the sentence for the malicious harassment conviction. The court reasoned that multiple injuries and deliberate cruelty related to the crime of attempted second degree murder, and therefore, pursuant to RCW 9.94A.370(2),⁵ cannot be used as aggravating factors for another crime. Worl II, at 664.

The court based its reasoning on its prior holding that the crime of malicious harassment was complete when the victim exited his car because it was only after he exited his car that the physical assault occurred. Worl I, at 451. The Worl I court had analyzed the chronology of the two crimes, malicious harassment and attempted second degree murder, in order to respond to Worl’s argument that the trial court calculated his offender score incorrectly by holding that the two offenses did not constitute the same criminal conduct under RCW 9.94A.400(1). The court said:

Here, the original conduct reflected Mr. Worl intended to harass Mr. Hill as evidenced by his language. The crime of malicious harassment was complete when Mr. Worl assaulted Mr. Hill when he exited his car. The repeated slashing evidenced more than an intent to harass by causing physical injury, but evidenced an intent to kill Mr. Hill. We find Mr. Worl’s offender score was properly computed.

Worl I, at 451. Because, according to the Court of Appeals, the malicious harassment ended before the knife attack began, the court concluded that the aggravating factors of deliberate cruelty and multiple injuries could not possibly relate to the malicious harassment offense, but only to the attempted second degree murder charge.

The Court of Appeals’ reasoning is flawed. Its holding in Worl I and Worl II that the offense of malicious harassment was complete by the time the victim had exited the car was not a finding of fact or a conclusion of law by the trial court. The State charged Worl with violation of RCW 9A.36.080(l)(a), the part of the malicious harassment statute requiring physical injury:

(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person[.]

(Emphasis added.) Worl was convicted under the foregoing subsection of the malicious harassment statute. Thus, the Court of Appeals cannot be correct in its holding that the malicious harassment ended before the victim sustained injury. In order for Worl to have been convicted as charged under RCW 9A.36.080(l)(a), the jury must have concluded he suffered physical injury in part as the result of the malicious harassment.⁶ That being the case, the reasons the sentencing court provided for applying the aggravating factors of multiple injuries and deliberate cruelty to the malicious harassment offense are supported by the record in light of the elements of that crime set forth in RCW 9A.36.080(l)(a).⁷

CONCLUSION

Courts should apply the law of the case doctrine in cases like this. All the sentencing issues were litigated and decided in Worl I. The Court of Appeals should not have revisited those issues in Worl II without first concluding that its decision in Worl I was clearly erroneous and worked a manifest injustice on Worl.

That the decision in Worl I was not clearly erroneous emerges from the analysis of the sentencing issues relating to the elements of the crime of malicious harassment under which Worl was charged and convicted. Because RCW 9A.36.080(l)(a) includes the element of physical injury, it was not clearly erroneous for the trial court to employ multiple injuries and deliberate cruelty as aggravating factors justifying the exceptional sentence.

Worl assigned error to the trial court’s failure to decide that the two offenses for which he was convicted comprised the "same criminal conduct.” In view of our disposition of this case, we now hold the two offenses did comprise the "same criminal conduct” as a matter of law under RCW 9.94A.400(1). We remand this case for resentencing so the trial court may determine whether consecutive sentences are now appropriate pursuant to RCW 9.94A.400(1) and RCW 9.94A.120CL6).

Durham, C.J., Dolliver and Smith, JJ., and Pekelis, J. Pro Tern., concur.

1 Worl’s conviction for attempted second degree murder and his standard range sentence of 120 months are not issues in this case.

2 The court entered the following findings of fact on April 7, 1992:

That the following aggravating circumstances existed in this case:

A. The defendant’s conduct constituted multiple incidents or injuries in that a number of injuries were inflicted on the victim, Ray Hill, one being very serious, by the defendant with a knife.

B. The defendant’s conduct constituted deliberate cruelty in that this was an attack on the victim by two people and what appears to be a persistence in the attack because as the victim attempted to run, he was chased and again attacked.

C. That this was not the "typical” Malicious Harassment case in that the injuries were substantial and the conduct of the defenant [sic] [was] beyond what could normally be expect[ed] to occur in a typical case.

Clerk’s Papers, at 11-12.

3 Worl assigned three additional errors, but they are not relevant.

4 This court in Folsom, for instance, specifically engaged in an analysis to determine if a prior decision had been erroneous before proceeding to "correct” it. Folsom, at 266- 73.

5 RCW 9.94A.370C2) reads, in pertinent part: "Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation.”

6 According to Worl, the Court of Appeals felt compelled to analyze when the malicious harassment offense ended and when the attempted second degree murder offense began in response to Worl’s argument that he could not be punished twice for the same criminal conduct in violation of the constitutional prohibition against double jeopardy. See Worl I, at 449-50 (concluding that double jeopardy not implicated because the intent necessary for conviction of each offense is different). Multiple punishments for the same offense are permissible, however, so long as they occur in the same proceeding. Missouri v. Hunter, 459 U.S. 359, 368-69, 74 L. Ed. 2d 535, 103 S. Ct. 673, 679-80 (1983) (where a legislature specifically authorizes cumulative punishment, regardless of whether the same offense underlies both punishments, a prosecutor may seek cumulative punishment under such statutes in a single trial); United States v. McCaslin, 863 F. Supp. 1299, 1301 (W.D. Wash. 1994).

7 We review under the clearly erroneous standard whether the reasons a sentencing court supplies to justify an exceptional sentence are supported by the record. We review as a matter of law whether the trial court’s reasons justify the sentence. State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990).