State v. Bartlett

Madsen, J.

(concurring) — I agree with the majority that the trial court had a proper basis upon which to impose an exceptional sentence. See RCW 9.94A.390(2)(b). However, I write separately because I believe the majority goes too far. It concludes that a trial court may rely on facts from an offender’s prior conviction to show enhanced culpability to justify departing upward from the presumptive sentencing range. This conclusion is not supported by the Sentencing Reform Act of 1981 (SRA) or case law.

The majority holds that "there is no prohibition against drawing from the facts of prior conviction, if they relate to the present case, to show extraordinary circumstances” as grounds to justify departing from the presumptive range. Majority at 333. It reasons that Bartlett was put on "special notice” from the circumstances of his prior assault conviction and that this particular knowledge "evidenced an especially culpable mental state to an extent not considered in calculating his offender score.” Majority at 333. The presumptive sentence range takes "into account the particular offense and the extent and nature of the offender’s criminal history, including the seriousness of any prior offenses and whether or not they were violent in nature.” State v. Hartley, 41 Wn. App. 669, 671, 705 P.2d 821, review denied, 104 Wn.2d 1028 (1985); see also State v. Nordby, 106 Wn.2d 514, 518 n.4, 723 P.2d 1117 (1986). Accordingly, reasons for imposing an exceptional sentence "must take into account factors other than those which are necessarily considered in computing the presumptive range for the offense.” Id. at 518; see also State v. Collicott, 118 Wn.2d 649, 661, 827 P.2d 263 (1992); State v. Barnes, 117 Wn.2d 701, 706, 818 P.2d 1088 (1991); State v. Batista, 116 Wn.2d 777, 788, 808 P.2d 1141 (1991).

Without explanation, the majority maintains that a distinction can be drawn between "merely considering the fact of the prior conviction and considering the particularized knowledge gained by Petitioner from the circumstances upon which the prior conviction was based.” Majority at 333. It insists that basing an exceptional sentence on a defendant’s state of mind is supported by case law, citing a single case, State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986). Unfortunately, it misreads Nordby.

In Nordby, this Court affirmed the trial court’s exceptional sentence, in part, on grounds of Nordby’s "especially culpable mental state at the time” that he committed the vehicular assault. 106 Wn.2d at 518-19. The requisite mental state for vehicular assault is either recklessness or intoxication. RCW 46.61.522(1)(a) and (b). The Court found that not only had the minimum standard for vehicular assault been met, but Nordby’s conduct of intentionally grabbing the steering wheel of the automobile and turning it toward the victim demonstrated a more serious mental state than the Legislature contemplated for a violation of the vehicular assault statute. 106 Wn.2d at 519. In RCW 9A.08.010(1)(a)-(d) the Legislature has defined four levels of culpability: intent, knowledge, recklessness, and criminal negligence. See State v. Allen, 101 Wn.2d 355, 359, 678 P.2d 798 (1984) (Legislature created four levels of culpability establishing hierarchy of mental states for crimes of increasing culpability). Because Nordby’s intentional conduct went beyond that which the Legislature required under the vehicular assault statute, the Nordby court was justified in exceeding the presumptive range.

In contrast here, Bartlett was found guilty of murder in the second degree predicated on the felony of second degree assault. Report of Proceedings (July 22, 1991) at 54; see also RCW 9A.32.050(1)(b) and RCW 9A.36.021. A person is guilty of murder in the second degree when "[h]e commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime . . . causes the death of a person . . . .” RCW 9A.32.050(1)(a). Where an individual "[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm” he or she is guilty of assault in the second degree. RCW 9A.36.021(1)(a). Consequently, because intent is the requisite mental state of the offense of assault in the second degree, Bartlett does not have a more culpable mental state than the Legislature requires for proof of the crime. Thus, the majority’s conclusion that Bartlett had enhanced culpability is not supported by Nordby.

Cases which truly are analogous compel a different result than the majority reaches in its mistaken reliance on Nordby. See, e.g., State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987), 749 P.2d 160 (1988) (planning is inherent in the premeditation element of first degree murder, thus may not be used to justify an exceptional sentence for the crime of first degree murder); State v. Falling, 50 Wn. App. 47, 747 P.2d 1119 (1987) (threatening to use a knife during the commission of first degree rape is an element of that crime and may not serve to justify an exceptional sentence); State v. Baker, 40 Wn. App. 845, 700 P.2d 1198 (1985) (sophistication and planning are elements of first degree prison escape and thus may not be used to justify an exceptional sentence).

The majority’s finding that a trial court may draw on facts underlying a prior conviction to show enhanced culpability is inconsistent with reliance on RCW 9.94A.390(2)(b). Pursuant to RCW 9.94A.390(2)(b), an exceptional sentence is justified where "[t]he defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.” RCW 9.94A.390(2)(b). In the present case, the trial court properly relied on this section to depart from the presumptive sentencing range. The Court of Appeals correctly noted, "A three-week-old child is a classic illustration of a vulnerable victim.” State v. Bartlett, 74 Wn. App. 580, 593, 875 P.2d 651 (1994). Yet, while the majority upholds the trial court’s use of RCW 9.94A.390(2)(b) as one reason to depart from the presumptive range, it dismisses the child’s vulnerability due to infancy when assessing the Defendant’s "special notice.” Majority at 333.

Underlying the aggravating factor of a victim’s extreme youth is the requirement that the offender knew or should have known of this vulnerability. The majority uses the Defendant’s knowledge twice, first to affirm the trial court’s finding under RCW 9.94A.390(2)(b) that an exceptional sentence is justified based on the victim’s vulnerability, and then as a basis to find some un.defined enhanced mental culpability. This holding goes beyond what is justified by the SRA.

Moreover, this holding is illogical. It simply is indisputable that infants are particularly vulnerable and incapable of resisting physical abuse. No special knowledge is required at all, and it makes absolutely no difference whether there has been a prior assault against an infant.

When the majority’s analysis is stripped to its roots it is clear that the majority is simply punishing the Defendant more harshly because he committed this sort of crime before. However, "the sentencing judge may not list the offender’s criminal history as a reason to justify an exceptional sentence since criminal history is one of the two components (the other being the seriousness of the offense) used to compute the presumptive range under RCW 9.94A.320.” Nordby, 106 Wn.2d at 518 n.4. Because the Legislature has already provided that the Defendant’s prior conduct be counted against him in determining the presumptive range the majority is doing precisely what the Nordby court forbade.

Guy, Johnson, and Alexander, JJ., concur with Mad-sen, J.