State v. Louis , 155 Wash. 2d 563 ( 2005 )

¶19 Madsen, J.

(concurring in part, dissenting in part) — Although I concur with the result reached in this case, I must disagree with the reasoning as presented in State v. Cubias, 155 Wn.2d 549, 120 P.3d 929 (2005). The facts of this case and Cubias are functionally identical, and my reasons for dissenting have not changed. In Cubias, the petitioner was convicted by a jury of three counts of attempted murder⁷ against three separate victims. This finding permitted the trial judge to determine that petitioner’s conduct was “separate and distinct” as a matter of law, In re Personal Restraint of Orange, 152 Wn.2d 795, 821, 100 P.3d 291 (2004) (holding separate victims creates presumption that conduct is “separate and distinct”), thereby permitting the trial judge to run the sentences consecutively under RCW 9.94A.589(l)(b).

¶20 Similarly, the petitioner in this case, Joe Louis, was convicted by a jury of two counts of first degree kidnapping, also a “serious violent offense,” with respect to two separate victims. Thus, the trial judge found Louis’ conduct to constitute “separate and distinct criminal conduct” and properly imposed consecutive sentences for the two first degree kidnapping counts pursuant to RCW 9.94A.589(l)(b).

¶21 Louis’ sentence should be affirmed.

C. Johnson, Sanders, and Chambers, JJ., concur with Madsen, J.

Reconsideration denied January 3, 2006.

7 Attempted murder is a “serious violent offense.’