State v. Barnes

Guy, J.

(concurring in the result) — I concur. While I am sympathetic to the dissent's view that future dangerousness may warrant an enhanced sentence in certain felony cases, I agree with the majority that future dangerousness may not be used as a factor in justifying an exceptional sentence in nonsexual offense cases absent further foundation in the Sentencing Reform Act of 1981 (SRA).

The decision as to whether future dangerousness may serve as an aggravating factor in nonsexual offense cases, and what elements a trial court should consider in finding future dangerousness in this context, lies properly within the province of the Legislature.

It would be a disservice for this court to impose upon trial courts a duty of evaluating whether a convicted felon will be dangerous in the future without an adequate foundation in our sentencing statutes for making such determinations, as exists in the area of sexual offenses. The future dangerousness finding is partially a clinical-rehabilitative determination. At present such an approach is adequately contemplated only in the SRA's approach to sexual offenses, in its amenability to treatment inquiry.

Without further legislative guidance in the area of nonsexual offenses, prosecutors might seek enhanced sentences through use of expert opinion supporting a finding of dangerousness. Defense counsel would likewise produce opinion presenting a contrary view. The content of this conflicting testimony would soon be as predictable to the trial judge as would the names of the expert witnesses called. It would be improper to impose upon trial courts the duty of sorting out this type of conflicting testimony without a further grounding for this authority, and guidance for its exercise, in the SRA.

Accordingly, I agree that an exceptional sentence may not be imposed based on future dangerousness as an aggravating factor in convictions for nonsexual offenses.

Dore, C.J., and Andersen, J., concur with Guy, J.