THE STATE OF WASHINGTON, Petitioner, v. JACK A. BARNES, Respondent. THE STATE OF WASHINGTON, Respondent, v. WILLIAM VICTOR SMITH, Petitioner. THE STATE OF WASHINGTON, Respondent, v. BILLY WAYNE WORL, JR., Petitioner.
Nos. 57429-4, 57453-7, 57472-3
En Banc.
November 7, 1991.
117 Wn.2d 701
Michael F. Keyes, for petitioner Worl.
Jack A. Barnes, pro se, and Philip J. Lynch and Dennis Benjamin of Washington Appellate Defender Association, for respondent Barnes.
Norm Maleng, Prosecuting Attorney for King County, and Theresa L. Fricke, Senior Deputy; Donald C. Brockett, Prosecuting Attorney for Spokane County, for the State.
UTTER, J. — This is a consolidated review of three criminal cases. Each defendant received a sentence exceeding the standard range under the Sentencing Reform Act of 1981 (SRA),
Jack Barnes was convicted of first degree murder and first degree assault. See State v. Barnes, 58 Wn. App. 465, 794 P.2d 52 (1990). The trial court imposed an exceptional sentence of 45 years and listed three reasons as justification: (1) commission of the crime in the presence of young children;1 (2) defendant‘s pattern of assaults and threats against the victim, and (3) defendant‘s demonstration of “a complete lack of remorse, willingness to perjure himself, and a general obsessive personality that make him extremely dangerous to any family members alive upon his release from DOC.” 58 Wn. App. at 474. On appeal, the State conceded the invalidity of the second reason. 58 Wn. App. at 474. Thus, the Court of Appeals only reviewed the first and third reasons. The court held the first reason was valid, but concluded the grounds for finding future dangerousness were insufficient. 58 Wn. App. at 476-77.
In Barnes’ case, two of the three reasons were found invalid. The Court of Appeals found it could not conclude the trial court would have imposed the same sentence had it considered only the first reason, and therefore remanded the case for resentencing. 58 Wn. App. at 477.
DEFENDANT SMITH
William Smith was convicted of second degree assault. See State v. Smith, 58 Wn. App. 621, 794 P.2d 541 (1990). The trial court imposed an exceptional sentence of 90 months. 58 Wn. App. at 624. The trial court listed six reasons in support of its imposition of the exceptional sentence: (1) defendant‘s violation was more serious than that typically associated with the crime; (2) defendant had a history of violence not reflected in the offender score; (3) the crime was committed while defendant was on parole and occurred less than 2 years after his release from prison on another second degree assault conviction; (4) the multiple offense policy of
DEFENDANT WORL
Billy Wayne Worl, Jr., was convicted of second degree attempted murder and malicious harassment. See State v. Worl, 58 Wn. App. 443, 794 P.2d 31 (1990). The trial court imposed an exceptional sentence by sentencing Worl to the maximum term for each offense and requiring the sentences to run consecutively. The court listed four reasons as justification for the exceptional sentence: (1) multiple incidents or injuries; (2) deliberate cruelty; (3) future dangerousness as established by expert testimony; and (4) conduct exceeding that normally associated with malicious harassment. 58 Wn. App. at 451-52. The Court of Appeals found Worl‘s impulsive behavior and antisocial personality, together with his demonstrated propensity for violence, justified a finding of future dangerousness. The Court of Appeals affirmed the sentence. 58 Wn. App. at 453.
I
In State v. Pryor, supra, we set forth a 2-prong test to determine whether the imposition of an exceptional sentence based on future dangerousness was justified: criminal history and amenability to treatment. 115 Wn.2d at 454. The sentencing alternative created for sexual offenders in
A
Criminal history2 is already taken into account in
Our decision in State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) is analogous. In Workman, defendants were charged with attempted first degree robbery while armed with a deadly weapon, which was also a firearm within the meaning of
Finally, the “real facts” concept excludes consideration of either uncharged crimes or crimes that were charged but later dismissed. See State v. McAlpin, 108 Wn.2d 458, 466, 740 P.2d 824 (1987). The real facts concept is based on
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 or when specifically provided for in
RCW 9.94A.390(2)(c) , (d), and (e).
(
The real facts concept satisfies the accountability purpose of the SRA, as well as the purpose of promoting respect for the law by providing punishment which is just. See
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. . . . This policy . . . will go far to bring integrity to the process of determining guilt and imposing punishment, and thus fulfill the purpose of the Sentencing Reform Act . . . .
D. Boerner, Sentencing in Washington 9-18 (1985).
B
When it enacted the SRA, the Legislature emphasized other goals, such as proportionality between the crime committed and the punishment imposed, and uniform sentences among offenders of similar crimes.
Because the SRA distinguishes between sexual and nonsexual offenses, there is authority for this court to consider a defendant‘s amenability to treatment in sexual offense cases. At the time the SRA was enacted, the Superior Court Judges Association recommended sex offenders be treated differently from other offenders due to their belief that a sex offender‘s behavior was compulsive and likely to continue without treatment. See D. Boerner, at 8-2. The options created for sexual offenders were authorized “because it was believed that for these groups of offenders, requiring participation in rehabilitation programs is likely to prove effective in preventing future criminality.” D. Boerner, at 2-37. Nonsexual offenses, on the other hand, usually stem from other problems, such as financial need. See J. Murphy, Retribution, Justice and Therapy 104-06 (1979).
In sexual offense cases, it may be possible to discuss amenability to treatment in terms of “similar criminal acts” without looking at prior convictions. See State v. Pryor, 115 Wn.2d 445, 451-55, 799 P.2d 244 (1990), and cases discussed therein (concerning “similar acts of sexual deviancy“). However, it is much more difficult to focus on similar criminal acts in nonsexual cases. In calculating the offender‘s score for nonsexual offenses, the sentencing
Several research studies have been conducted concerning the reliability of predicting future dangerousness. The conclusion was reached that more often than not, such predictions are wrong.
All available evidence indicates that our ability to predict the occurrence of future criminal behavior is appallingly poor. . . . and many studies have been wrong eighty to ninety percent of the time.
D. Boerner, at 2-17. See also J. Monahan, Predicting Violent Behavior: An Assessment of Clinical Techniques 26-44 (1981); Diamond, Psychiatric Prediction of Dangerousness, 123 U. Pa. L. Rev. 439 (1974); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693, 696, 732-34 (1974) (noting that psychiatrists are not even trained in the assessment or prediction of dangerousness); Bayley, Good Intentions Gone Awry — A Proposal for Fundamental Change in Criminal Sentencing, 51 Wash. L. Rev. 529, 539-44 (1976) (discussing the failure of rehabilitation programs as the answer to the crime problem). There was a growing public acceptance of this conclusion, and with this acceptance came a loss of public support for rehabilitation programs. In a society unwilling to commit the required resources to attempt to rehabilitate criminals, the indeterminate sentencing system began to fail.
Nowhere in the SRA, or “anywhere else in the adult criminal justice system, is there expressed a policy of ‘responding to the needs of’ offenders.” State v. Rice, 98 Wn.2d 384, 392, 655 P.2d 1145 (1982) (comparing the SRA
II
Under the indeterminate sentencing system, judges were presumed to be in the best position to diagnose the criminal behavior and determine the appropriate sentence. Thus they were provided with a great deal of discretion. D. Boerner, at 1-1. However, in the view of some authors, individualized decisionmaking created a significant disparity among the sentences imposed for offenders of similar crimes in those cases which considered a defendant‘s amenability to treatment. Bayley, 51 Wash. L. Rev. at 535-36. Studies revealed that the disparity was not due to the individual defendant‘s needs, but rather to the decisionmaker‘s own philosophy and perspective. D. Boerner, at 2-10, 2-11. One response to these studies called for clearly articulated standards which would more effectively control, not abolish, the exercise of discretion by all officials involved in the sentencing process. T. Taylor, C. Motley & J. Feibleman, Perspectives on Justice 37, 41 (1975).
The purpose of enacting sentencing reform, therefore, was to create a new system and to restructure the judge‘s discretion. The emphasis was shifted from rehabilitation to proportionality, equality and justice. See
III
In enacting the SRA, the Legislature changed our criminal sentencing system from an indeterminate, rehabilitation-oriented system to a determinate system, having punishment as its primary purpose. In re Whitesel, 111 Wn.2d 621, 626, 763 P.2d 199 (1988). Except for certain limited exceptions,5 the SRA rejects the use of rehabilitation programs in sentencing. D. Boerner, at 2-35. Therefore, if future dangerousness is to be considered an aggravating factor in determining the sentence for nonsexual offense cases, it is the Legislature‘s province to make such a decision.6
IV
The grounds which support our decision in Pryor do not exist in nonsexual offense cases. The extension of the future dangerousness factor to nonsexual offense cases violates the certain purposes of sentencing reform. It disrupts the proportionality policy of imposing sentences in accordance with the seriousness of the crime and the criminal record. Finally, it allows too broad a grant of discretion to
The SRA allows a trial judge to impose an exceptional sentence, but requires the judge to enter written findings of fact and conclusions of law which justify the sentence.
We turn now to the resolution of the cases before us. In State v. Barnes, under our holding today, reliance on future dangerousness as an aggravating factor in nonsexual offenses is improper. The Court of Appeals decision to remand Barnes’ case for resentencing is affirmed, in accordance with our decision.
In State v. Smith, we agree the first and second reasons listed by the trial court as justification for imposing the exceptional sentence properly indicate there may be aggravating factors present in this case. The Court of Appeals properly found the third and fourth reasons are not valid. However, the fifth and sixth reasons relied upon by the trial court reveal it relied on future dangerousness in imposing the exceptional sentence. Thus, four of the six reasons given do not support the sentence. We therefore reverse the Court of Appeals decision in Smith and remand for resentencing.
SMITH and JOHNSON, JJ., concur.
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
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.
DOLLIVER, J. (dissenting) — I dissent. I cannot concur in the majority‘s conclusion future dangerousness is never an appropriate justification for an exceptional sentence in a nonsexual offense case. The majority both attempts to reopen issues already decided and ignores important objectives of the Sentencing Reform Act of 1981 (SRA) (
In State v. Pryor, 115 Wn.2d 445, 799 P.2d 244 (1990), this court unanimously accepted future dangerousness as an appropriate justification for an exceptional sentence in a sexual offense case. Although the majority does not expressly overturn that result, the majority‘s analysis significantly undermines and confuses our decision in Pryor. The majority does not focus on any distinction between sexual and nonsexual offenses. Rather, the majority attacks the notion of future dangerousness generally. The majority questions trial courts’ ability to predict future dangerousness and even goes so far as to reject outright future dangerousness as a consideration in imposing a sentence. Majority, at 707, 708-09. The majority concludes, “Because future dangerousness punishes an offender for a crime which the State has neither charged nor proven, it cannot, and should not, be considered in imposing a sentence.” Majority, at 707. In so doing, the majority directly contradicts a unanimous decision by this court only 1 year ago. Pryor, 115 Wn.2d at 453. We have already determined
The majority also confuses the standard adopted in Pryor. To justify an exceptional sentence based on future dangerousness, Pryor required both a history of similar criminal acts and a lack of amenability to treatment. Pryor, 115 Wn.2d at 453. Contrary to the majority‘s assertions, Pryor requires more than the ordinary criminal history which has already been considered in establishing the standard sentence range. The Pryor standard requires a history of similar criminal acts, thereby establishing a dangerous trend or tendency on the part of the defendant. The majority‘s hypothetical in which a defendant‘s criminal history includes the varied and unrelated crimes of burglary, kidnapping, and arson would not satisfy the “similar criminal acts” standard. See majority, at 708-09. Contrary to the majority‘s assertion, a pattern of similar criminal acts may exist both in and out of the sexual offense context. In this case, each of the defendants’ criminal history demonstrated a pattern of aggressive, assaultive behavior.
Finally, and most importantly, the majority fails to recognize the full spectrum of objectives embraced by the SRA. The first and overriding objective of the SRA is retribution or just deserts. State v. Rice, 98 Wn.2d 384, 393, 655 P.2d 1145 (1982); D. Boerner, Sentencing in Washington 2-31 (1985). The majority correctly identifies this objective. However, just deserts is only part of the overall purpose of the SRA. The SRA also includes protection of the public and offering the offender an opportunity to improve him- or herself among its varied objectives.
The tension between utilitarian purposes, in which the goal is to accomplish some future objective, and principles of
retribution and desert, which focus on what has occurred in the past, is deep and persistent. Historically, most theoreticians have denied the possibility that these purposes could be integrated. . . . . . . The Sentencing Reform Act‘s statement of purposes is drawn from and based upon the thesis that this integration can be accomplished.
. . . [I]t is clear that the Act does not accept the argument of those theoreticians who argue for just deserts as the sole purpose for which punishment should be imposed.
D. Boerner, at 2-30 through 2-34. By completely failing to account for the competing utilitarian objectives, the majority ignores express legislative intent and construes the SRA in a manner which falls well short of its fuller objectives.
When the express objectives of the SRA are viewed in their entirety, future dangerousness is clearly an appropriate justification for an exceptional sentence, even in nonsexual offense cases.
The use of future dangerousness as an aggravating factor in nonsexual offense cases is supported by decisions from our own Court of Appeals, the Minnesota Supreme Court, and the United States Supreme Court. Barefoot v. Estelle, 463 U.S. 880, 897, 77 L. Ed. 2d 1090, 103 S. Ct. 3383 (1983) (homicide); State v. Vandervlugt, 56 Wn. App. 517, 523, 784 P.2d 546 (1990) (assault and kidnapping); State v. Davis, 53 Wn. App. 306, 316, 766 P.2d 1120 (1989) (vehicular homicide and felony hit and run), review denied, 112 Wn.2d 1015 (1989); Jackson v. State, 329 N.W.2d 66, 67 (Minn. 1983) (burglary); State v. Park, 305 N.W.2d 775, 776 (Minn. 1981) (unauthorized use of motor vehicle).
If future dangerousness were correctly accepted as an aggravating factor justifying an exceptional sentence, the court would need to establish the criteria by which future dangerousness would be identified. In Pryor, both a history of similar criminal acts and a lack of amenability to treatment were required. Pryor, 115 Wn.2d at 454. A history of similar acts is also an appropriate requirement for a finding of future dangerousness in nonsexual offense cases. Nothing in the distinction between sexual and nonsexual offenses renders such a factor less relevant in the nonsexual offense setting. In fact, the courts of this state have concluded any finding of future dangerousness without a history of similar acts or other corroborating evidence both offers wide latitude for abuse and undermines the general objectives of the SRA. State v. Payne, 45 Wn. App. 528, 533, 726 P.2d 997 (1986). The real issue here is defining a second criteria which will adequately control the use of future dangerousness as an aggravating factor.
The compulsory treatment option renders amenability to treatment especially relevant in sexual offense cases. However, the SRA does not totally abandon a rehabilitative ideal in the nonsexual offense context. While the SRA rejects the traditional notion of coerced rehabilitation, the act does adopt a philosophy of facilitative rehabilitation in which a rehabilitative process is offered and encouraged, but never required. See D. Boerner, at 2-35. To this end, the SRA expressly adopts among its six purposes the desire to “[o]ffer the offender an opportunity to improve him or herself“.
I would hold that, within the context of a nonsexual offense case, a finding of future dangerousness requires both a history of similar criminal acts and a finding based on expert testimony that the defendant poses a threat to the public beyond that which could reasonably be ameliorated by incarceration for a period conforming to the standard range. The inquiry under this standard necessarily bears a great similarity to the lack of amenability to treatment. However, the essential focus here is whether the standard sentence range provides an adequate opportunity for the defendant to overcome existing deficiencies through the combined effects of the incarceration and optional treatment programs.
Decisions from this state‘s Court of Appeals are consistent with such a narrow standard in nonsexual offense cases. Although only two prior cases have directly considered future dangerousness as an aggravating factor in nonsexual offense cases, both relied heavily on evidence of the defendant‘s poor prognosis. In Vandervlugt, the record demonstrated a strong history of violent criminal behavior and a letter from a Department of Social and Health Services doctor testified to the defendant‘s “severe personality disorder” and the poor prognosis for change. The court expressly concluded the defendant “posed a threat to the community beyond that which could be ameliorated by incarceration for a period conforming to the standard range.” Vandervlugt, 56 Wn. App. at 523. In Davis, the
This narrow standard is also consistent with the general objectives and principles of the SRA. The utilitarian purposes of the SRA establish a tension between protection of the public and hope for the individual‘s improvement. The opening section of the SRA provides the act is designed both to “[p]rotect the public” and to “[o]ffer the offender an opportunity to improve him or herself“.
For these reasons, I would accept future dangerousness as an aggravating factor justifying an exceptional sentence. As a result, I disagree with the majority and would affirm the sentences of defendants Smith and Worl. However, I would vacate the sentence of defendant Barnes and remand him for resentencing. The State conceded the invalidity of one of the three aggravating factors in the Court of Appeals. State v. Barnes, 58 Wn. App. 465, 474, 794 P.2d 52 (1990). I would also reverse the finding of future dangerousness because the trial court acted without the aid of any expert testimony or any other evidence indicating the crime was motivated by a compulsion which is difficult if not impossible to overcome. Barnes, 58 Wn. App. at 476. Since two of the three aggravating factors relied on by the trial court are invalid, I would remand defendant Barnes for resentencing.
BRACHTENBACH and DURHAM, JJ., concur with DOLLIVER, J.