142 Wash. 2d 631 | Wash. | 2001
Lead Opinion
— Petitioner Randall Louis Ferguson seeks review of a decision of the Court of Appeals, Division Two, which affirmed his Clark County Superior Court conviction for assault in the second degree under former RCW 9A.36.021(l)(e) (1988), which defined the offense as exposing or transmitting the human immunodeficiency virus (HIV) to another person with intent to inflict bodily harm. The Court of Appeals concluded the record supports the trial court’s finding of deliberate cruelty which justified Petitioner’s aggravated exceptional sentence of 120 months. This court granted review. We affirm in part and reverse in part.
The question presented in this case is whether an aggravated exceptional sentence for assault in the second degree under former RCW 9A.36.021(l)(e), intentionally exposing HIV to another person with intent to inflict bodily harm, was properly imposed because Petitioner’s exposure of the victim to HIV evidenced “deliberate cruelty.”
STATEMENT OF FACTS
On January 26, 1988, Petitioner Randall Louis Ferguson visited the HIV unit of the Southwest Washington Health Department and asked to be tested for HIV.
On February 13,1988, Petitioner was informed in person that he tested positive for HIV.
In May 1994, Petitioner met Ms. Carrie Faye Dietz.
On the encounter in the Fort Vancouver Motel, according
On June 28, 1995, nearly a year later, the Clark County Prosecuting Attorney filed an information
RANDALL LOUIS FERGUSON, in the County of Clark, State of Washington, between June 15,1994 and July 15,1994, with intent to inflict bodily harm, did [intentionally] expose [or transmit] human immunodeficiency virus as defined in chapter 70.24 RCW, to Carrie Dietz, a human being, in violation of RCW 9A.36.021(l)(e), contrary to the statutes in such cases*637 made and provided, and against the peace and dignity of the State of Washington.
This crime is a “most serious offense” pursuant to the Persistent Offender Accountability Act (Chapter 1, Section 3 Laws of 1994).[19 ]
Over Petitioner’s objection, the trial court, the Honorable Edwin L. Poyfair, allowed Respondent State of Washington to call six women as witnesses in the trial.
A second acquaintance, Kenneth W. Miller, testified he first met Petitioner in 1990 and formed a close friendship with him that lasted until 1995.
A third acquaintance, Mark Wilson, testified he first met Petitioner in the early 1980s and that around May 28,1992, while he and Petitioner were partially confined in a Tacoma prerelease work program,
Detective Mitchel Lackey, Camas Police Department, testified concerning two interviews he conducted of Petitioner on April 24, 1995 and May 19, 1995.
In the April interview, Petitioner admitted he was told in 1988 that he was HIV-positive and needed to use a condom each time he had sexual intercourse.
In the May interview, Petitioner acknowledged a sexual relationship with Ms. Dietz in the summer of 1994.
Petitioner testified at trial. He stated he had known he was HIV-positive since 1988, but did not know from whom he acquired the virus.
On September 26, 1996, after an eight-day trial, the jury found Petitioner “guilty” of assault in the second degree as charged in the amended information.
I find . . . not once but twice, based on that which has been before this Court that she can remember—and again I speak of Carrie Dietz—of the lack of the compassion which [Petitioner] stand[s] up and so adamantly stated that [he] ha[s] for mankind, that there was deliberate cruelty. . . . I. . . believe that it is most appropriate and that you do qualify under the aggravating circumstances of the statute and as such this Court will order an exceptional sentence.[49 ]
The trial court made the following comment concerning particular vulnerability:
I believe that, based on your ability to communicate, to converse in a way that rang true in the heart of those that needed to hear it, needed to depend upon it. You preyed upon them. And they were specifically of particular vulnerability. Specifically, Ms. Dietz and the love that you showed for her and what she, in fact, attempted to reciprocate, I do find particular*641 vulnerability, but I find it in that way, not in the drug way.[50 ]
In referring to the “Jane Doe” witnesses who testified at trial, the court stated:
When I look, I see that the evidence is clear .... I believe in total that you were, and may still be, a very angry person, a person that had a mission—a mission to get even, to be vindictive, to bring down, if at all possible, those who you, quite truthfully, characterized as people who loved you. And I truly believe they did. And I think many of them still do.
[Y]ou had no care for human life, and I think including your own. You attempted, by a form of intelligent conspiracy, to invoke yourself upon others. In doing so you caused people to rely, to depend, to again commit to you. . . . And yet what you gave to some is totally a death sentence.[51 ]
On November 12, 1996, Petitioner filed a notice of appeal to the Court of Appeals, Division Two.
DISCUSSION
Petitioner Randall Louis Ferguson contends the trial court erred in finding deliberate cruelty as a factor in imposing his 120-month aggravated exceptional sentence for his second degree assault conviction under former RCW 9A.36.021(l)(e),
Under the Sentencing Reform Act of 1981 (SRA), a court
The following facts are found, to be substantial and compelling reasons justifying an exceptional sentence outside the standard sentencing range:
V 1. Deliberate Cruelty.
Legal Authority:
RCW 9.94A.390(2)(a)
State v. Tierney, 74 Wn. App. 346, 872 P.2d 1145 (1994)
State v. Scott, 72 Wn. App. 207, 866 P.2d 1258 (1993)
____[67 ]
We do not address the finding of particular vulnerability inasmuch as the Court of Appeals, in its unpublished opinion, concluded that finding was not supported by the record.
Deliberate cruelty has been defined as behavior “not usually associated with the commission of the offense in question,”
Review of a court’s imposition of an exceptional sentence is governed by RCW 9.94A.210(4).
Petitioner claims the trial court erred because (1) the record does not support the court’s finding of deliberate cruelty; (2) the reasons provided by the court do not justify an exceptional sentence as a matter of law; and (3) the court
The first question under RCW 9.94A.210(4) is a factual inquiry which requires the appellate court to uphold the sentencing judge’s reasons if they are not clearly erroneous.
In this case, Petitioner was convicted by the jury of the charged offense which was intentionally exposing the human immunodeficiency virus (HIV) to another person, Ms. Dietz, with intent to inflict bodily harm. The jury obviously concluded it was a deliberate and intentional act with the consequence of inflicting bodily harm upon Ms. Dietz by exposing her to HIV.
The trial court indicated on the finding of fact form and in its oral statements on the record that its finding was based upon deliberate cruelty.
This court has stated that “factors inherent in the crime—inherent in the sense that they were necessarily considered by the Legislature [in establishing the standard sentence range for the offense] and do not distinguish the defendant’s behavior from that inherent in all crimes of that type—may not be relied upon to justify an exceptional
In this case, conviction of the offense of exposing another person to HIV with intent to do bodily harm leaves no room for an additional finding of deliberate cruelty as justification for an exceptional sentence. A finding by the trial court that Petitioner’s act constituted deliberate cruelty cannot be used to elevate the sentence to an aggravated exceptional sentence because intent to do bodily harm is an element of the offense charged under former RCW 9A.36.021(l)(e), and was already considered by the Legislature in establishing the standard sentence range. The trial court’s finding of deliberate cruelty cannot be considered an additional aggravating circumstance and is not justification for the exceptional sentence.
The second question under RCW 9.94A.210(4) requires an appellate court to determine, as a matter of law, whether the sentencing judge’s articulated reasons justify imposition of a sentence outside the standard range.
The Court of Appeals reasoned this case was analogous to
This court, in upholding Mr. Farmer’s exceptional sentence based upon a finding of deliberate cruelty, stated:
[Biased on the testimony of [two witnesses], the trial court found Farmer knew or believed he was infected with the AIDS virus [sic] at the time he engaged in sexual activity with Eric and Jim. Thus, the court found Farmer willingly exposed both minors to the AIDS virus [sic] without regard for their welfare. The court found this action constituted a deliberate, cruel and malicious act that could result in their deaths. RCW 9.94A.390(2)(a) provides that deliberate cruelty to a victim during the commission of a crime is an aggravating circumstance justifying an exceptional sentence. Consequently, . . . there were sufficiently compelling reasons warranting the exceptional sentence.[87 ]
This court accepted Mr. Farmer’s knowing exposure or transmission of HIV to another person as justification for the trial court’s finding of deliberate cruelty. But Mr. Farmer was not charged with the offense of knowing exposure to or transmitting HIV. Although the same definition of “deliberate cruelty” may be applied in this case, State v. Farmer is distinguishable on its facts. The offenses for which Mr. Farmer was convicted (sexual exploitation of a minor and patronizing a juvenile prostitute) did not manifestly include the element of intent to do bodily harm.
In this case Petitioner was charged with intent to inflict bodily harm by exposing the human immunodeficiency virus (HIV) to another human being (Ms. Carrie Dietz) as
In this case, the State was required to prove (and did prove) beyond a reasonable doubt that Petitioner, with intent to inflict bodily harm, exposed [the] human immunodeficiency virus (HIV) to Carrie Dietz, a human being. Former RCW 9A.36.021(l)(e) made that conduct criminal. The information filed in this case charged only the conduct of Petitioner with Ms. Carrie Dietz “between June 15, 1994 and July 15, 1994.” The evidence established only one sexual encounter during that period in Vancouver, Washington. Ms. Dietz was well aware that Petitioner was HIV-positive. During the specified sexual encounter (combined with intravenous drug use), Petitioner either knowingly or carelessly exposed Ms. Dietz to the virus. The jury concluded he, with intent to inflict bodily harm, knowingly exposed the human immunodeficiency virus to her. The elements of the offense itself cannot be used as the basis for an aggravated exceptional sentence merely by labeling the prohibited conduct “deliberate cruelty.”
The third question under RCW 9.94A.210(4) examines whether the resulting exceptional sentence is clearly excessive. A sentence is considered clearly excessive only if the trial court abused its discretion in establishing the length of the sentence.
Under RCW 9.94A.210(4), review of an exceptional sentence requires answers to three questions. The reviewing court asks (1) whether the aggravating or mitigating factors are supported by the record (clearly erroneous standard of review); (2) whether the factors justify a departure from the standard range (de novo review as a matter of law); or (3) whether the sentence is clearly too lenient or too excessive (abuse of discretion standard). The sentencing court may impose an exceptional sentence if it finds there are substantial and compelling reasons supporting a sentence outside the standard range.
In sentencing Petitioner Ferguson to serve 120 months for his second degree assault conviction, the trial court exceeded the standard range of 53 to 70 months for that offense. To justify this departure, the court merely checked “deliberate cruelty” (and particular vulnerability) on a stock form and orally announced that exposing another to HIV constituted an act of “deliberate cruelty.” Petitioner contends such a determination violates the provisions of the SRA, specifically the requirements of RCW 9.94A.210(4), because the factor supporting the trial court’s finding— deliberate cruelty—was an element of his offense: with intent to inflict bodily harm, he exposed HIV to another person.
The essential question before this court is whether the facts required for proof of the elements of the offense charging an intentional act with cruel consequences may also be used to justify an exceptional sentence based upon “deliberate cruelty.” This court has stated that “factors inherent in the crime—inherent in the sense that they were necessarily considered by the Legislature [in establishing the standard sentence range for the offense] and do not distinguish the defendant’s behavior from that inherent in all crimes of that type—may not be relied upon to justify an
The trial court may not base an aggravated exceptional sentence upon “deliberate cruelty” in this case because intent to do bodily harm by exposing HIV to another person is an element of the offense charged under former RCW 9A.36.021(l)(e) and was already considered in establishing the standard sentence range of 53 to 70 months.
The Court of Appeals determined this case was analogous to State v. Farmer. Both Mr. Farmer and Petitioner Ferguson knew or believed they were HIV-positive, but yet engaged in sexual activity or intercourse. The trial court in this case, as the trial court did in Farmer, determined the actions of the defendant constituted deliberate cruelty. However, this case is distinguishable from State v. Farmer.
In Farmer the defendant was charged with and convicted of sexual exploitation of a minor and patronizing a juvenile prostitute. In this case, Petitioner was charged with and convicted of assault by exposing HIV to another person with intent to do bodily harm. The charged offense in this case implicitly contains the elements of “deliberate cruelty” approved by this court in Farmer, knowing exposure of another person to the AIDS virus [sic] without regard to the welfare of the victim constituting “a deliberate, cruel, and malicious act that could result in” death of the victim.
In this case, the elements of the offense itself cannot be used as the basis for an aggravated exceptional sentence merely by labeling the prohibited conduct as “deliberate cruelty” because Petitioner was convicted of an intentional act charged as assault in the second degree based upon the same facts used by the trial court to conclude Petitioner engaged in “deliberate cruelty” in committing the offense.
We remand this case for resentencing within the standard range.
We affirm the decision of the Court of Appeals, Division Two, which affirmed the Clark County Superior Court
Guy, C.J., and Johnson, Madsen, Alexander, Sanders, Ireland, and Bridge, JJ., concur.
3 Report of Proceedings (Sept. 19, 1996) at 84.
The “pre-test” counseling Petitioner received on January 26, 1988, routinely given to all persons seeking testing for HIV at the Southwest Washington Health Department HIV Unit, included discussions on the reasons the person wished to be tested for HIV (identification of risk factors); whether prior HIV testing occurred and the result; the extent of the person’s knowledge of HIV and AIDS; what HIV and AIDS are, their stages of progression and how they are transmitted (for example, exchange of bodily fluids, sharing needles in the injection of intravenous drugs, and unprotected sexual intercourse); behaviors that reduce the risk of transmitting HIV (for example, use of condoms during sexual intercourse from start to finish, use of new or clean needles, and having a monogamous relationship or abstinence from sexual intercourse); and the absence of a cure for HIV. Id. at 84-92 and 106.
See id. at 121; 6 Report of Proceedings (Sept. 25, 1996) at 9.
“HIV-positive” refers to persons who carry the antibodies to HIV. Petitioner’s medical record at the Health Department reflected a second HIV-positive test result on August 14, 1991. 3 Report of Proceedings (Sept. 19, 1996) at 97 and 100-03.
During the “post-test” counseling Petitioner received at the Southwest Washington Health Department HIV Unit on February 13,1988, topics previously discussed in “pre-test” counseling were reviewed in addition to the results of the HIV test (a person receiving a positive HIV test result would be told, in general terms, what to do and what not to do concerning the virus and how it can be transmitted); the importance of notifying past and present sexual partners; how to stay healthy; referrals to physicians for medical treatment; support groups; and literature on HIV and AIDS. Id. at 97-100.
At the counseling session conducted by Dr. Steingart, the only health officer for Clark, Skamania, and Klickitat counties, Petitioner was advised of behaviors he should refrain from, which included sexual intercourse without a condom. 5 Report of Proceedings (Sept. 24, 1996) at 31-47. During her testimony, Dr. Steingart explained how HIV could be exposed or transmitted and that the pre-ejaculatory fluids of an HIV carrier are known to expose or transmit the virus. Id. at 24-28.
Ms. Dietz testified she used drugs prior to May 1994 and that methamphetamine was her drug of choice. 4 Report of Proceedings (Sept. 23, 1996) at 118-20.
Id.
The first time Petitioner and Ms. Dietz had sexual intercourse was in May 1994, the day they met, in a parked van at Leverich Park in Vancouver, Washington. Ms. Dietz testified that on that occasion Petitioner used a condom from start to finish and they both injected cocaine that he supplied in the middle of the act. Id. at 118-23. Their second sexual encounter occurred a month later at a motel in Portland, Oregon. They both injected cocaine during intercourse and Petitioner used a condom. Ms. Dietz thought Petitioner may have removed the condom, but was not sure because of her reaction to the cocaine injection. Id. at 124-28.
Id. at 128. Petitioner testified he did not believe he and Ms. Dietz were at the Fort Vancouver Motel in Vancouver because he had been banned from the premises “completely” by the management prior to his meeting her. 6 Report of Proceedings (Sept. 25, 1996) at 32.
4 Report of Proceedings (Sept. 23, 1996) at 129.
Id. at 128-30.
Id. at 130.
Id. at 131-33.
After intercourse was completed, Ms. Dietz sat up and “felt [the] warm liquid [his semen] inside of [her] coming out” and went to the bathroom to clean herself. Id. at 133-35.
Id. at 134.
Clerk’s Papers at 1.
Former RCW 9A.36.021(l)(e), cited in the information, read:
“(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
“(e) With intent to inflict bodily harm, exposes or transmits human immunodeficiency virus as defined in chapter 70.24 RCW[.]”
Clerk’s Papers at 1. On September 16, 1996, the court allowed an oral amendment to the information striking the words “intentionally” and “or transmit.” These words are bracketed to show the deletion. 1 Report of Proceedings (Sept. 19, 1996) at 5-7.
On the issue of Petitioner’s “intent to inflict bodily harm” upon Ms. Dietz, the State presented the six women who testified concerning Petitioner’s use and non-use of condoms during their sexual relationships with him. Over Petitioner’s objection, the trial court directed that the women be referred to only as “Jane Doe.” Although Petitioner claims in his petition for review that the trial court erred in allowing the testimony of the Jane Does under ER 404(b) and requiring him to refer to them as Jane Does, this court granted review only on the sentencing issue.
4 Report of Proceedings (Sept. 23, 1996) at 76-77.
Id. at 78.
Id. at 87-88.
Id. at 89-91.
“Bag bitch” is street vernacular for a woman who would do anything to obtain drugs. Id. at 92-93.
Id. at 93.
6 Report of Proceedings (Sept. 25, 1996) at 14.
4 Report of Proceedings (Sept. 24, 1996) at 118.
Id.
Id. at 75-76 and 85-87.
Petitioner told Detective Lackey that Ms. Joanne Christ of the Southwest Washington Health Department told him he was HIV-positive. Id. at 85-86.
Id. at 86-87.
Petitioner acknowledged he had sexual intercourse with Ms. Dietz on three occasions—once in a park and twice in motel rooms. Id. at 88-89.
Id. at 89-90.
Id. at 90.
Id. at 90-91.
Id. at 91.
6 Report of Proceedings (Sept. 25, 1996) at 8.
Petitioner acknowledged he did have sexual relations with the women called by the State as witnesses, and admitted he had lied about his HIV status to some of them while not disclosing his status to others. Id. at 10-11. Three other women were called as witnesses for Petitioner. They testified they knew of his HIV status before engaging in sexual intercourse with him and that he used protection. Id. at 72-84; Report of Proceedings (Sept. 25, 1996) Untitled Volume at 27-42.
6 Report of Proceedings (Sept. 25, 1996) at 19-20.
Id. at 21.
Id. at 28-29.
Id. at 34-35.
Id. at 36-37.
Clerk’s Papers (Verdict Form) at 414; see also Clerk’s Papers at 416.
RCW 9.94A.320 indicates assault in the second degree (RCW 9A.36.021) with a seriousness level of IV; RCW 9.94A.310 indicates Petitioner’s statutory maximum sentence for his second degree assault conviction would be 70 months, with a standard range of 53-70 months.
Clerk’s Papers (Judgment and Sentence) at 473-86.
Id. (Findings of Fact on Imposition of Exceptional Sentence) at 498-500.
Report of Proceedings (Oct. 17, 1996) at 47.
Id. at 47. This issue is not further addressed in this opinion.
Id. at 45-46.
Notice of Appeal to Court of Appeals, Division Two (Nov. 12,1996). The court reporter was unable to prepare the trial transcript. Other court reporters, using the original reporter’s notes, prepared it. That narrative transcript, containing some gaps, was used by the Court of Appeals. State v. Ferguson, No. 21329-0-II, 1999 WL 1004992, at *4, 1999 Wash. App. LEXIS 1905, at *12 (Wash. Ct. App. Nov. 5, 1999).
Ferguson, 1999 WL 1004992, at *9,1999 Wash. App. LEXIS 1905, at *30. The Court of Appeals, citing the requirements of “particular vulnerability” under RCW
Washington State Supreme Court Order (May 3, 2000).
Former RCW 9A.36.021 provided in pertinent part:
“(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
“(e) With intent to inflict bodily harm, exposes or transmits human immunodeficiency virus as defined in chapter 70.24 RCW[.]”
RCW 70.24.017 provides in pertinent part:
“(1) ‘Acquired immunodeficiency syndrome’ or ‘AIDS’ means the clinical syndrome of HIV-related illness as defined by the board of health by rule.
“(6) ‘HIV-related condition’ means any medical condition resulting from infection with HIV including, but not limited to, seropositivity for HIV.
“(7) ‘Human immunodeficiency virus’ or ‘HIV means all HIV and HIV-related viruses which damage the cellular branch of the human immune or neurological systems and leave the infected person immunodeficient or neurologically impaired.
“(13) ‘Sexually transmitted disease’ means a bacterial, viral, fungal, or parasitic disease, determined by the board by rule to be sexually transmitted, to be a threat to the public health and welfare, and to be a disease for which a legitimate public interest will be served by providing for regulation and treatment. The board shall designate chancroid, gonorrhea, granuloma inguinale, lymphogranuloma
In 1997, after the charge in this case, the Legislature elevated this conduct to assault in the first degree. (“A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm .... [a]dministers, exposes, or transmits to ... another . .. the human immunodeficiency virus . .. .”) (emphasis added). See Laws of 1997, ch. 196, § 1; ROW 9A.36.011(l)(b).
Petitioner’s brief is not clear on his request for remand. See Pet. for Discretionary Review at 16-20. The record, however, suggests he is currently serving the portion of his sentence beyond the standard range.
See id. at 20. Petitioner also argues the trial court violated the “real facts doctrine” under ROW 9.94A.370(2) by considering incidents of uncharged crimes involving other victims in imposing his exceptional sentence. He claims those incidents, which the State was unable to prosecute because of expiration of the statute of limitations, were admitted under ER 404(b) at trial, and constitute separate uncharged crimes. We do not address the “real facts” doctrine.
Respondent did not file a supplemental brief in this court. See RAP 13.7(d). The briefs submitted to the Court of Appeals did not address the exceptional sentence issue. However, Petitioner’s motion for accelerated review filed in the Court of Appeals on March 11, 1998, and Respondent’s response to that motion filed on July 31, 1998, did address the sentencing issue. The Court of Appeals passed the motion for accelerated review on the merits and did not issue a separate order, but addressed it in its unpublished opinion.
116 Wn.2d 414, 805 P.2d 200 (1991).
RCW 9.94A. 120(1).
RCW 9.94A. 120(2).
“RCW 9.94A.010 Purpose. The purpose of this chapter is to make the criminal justice system accountable to the public by developing a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences, and to:
“(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history;
“(2) Promote respect for the law by providing punishment which is just;
“(3) Be commensurate with the punishment imposed on others committing similar offenses;
“(4) Protect the public;
“(5) Offer the offender an opportunity to improve him or herself;
“(6) Make frugal use of the state’s and local governments’ resources; and
“(7) Reduce the risk of reoffending by offenders in the community.”
RCW 9.94A.120(2) and (3) which provide “(2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. (3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard range shall be a determinate sentence.”; State v. Jeannotte, 133 Wn.2d 847, 857, 947 P.2d 1192 (1997); State v. Ha’mim, 132 Wn.2d 834, 839-40, 940 P.2d 633 (1997) (quoting RCW 9.94A.120(2); State v. Ritchie, 126 Wn.2d 388, 391, 894 P.2d 1308 (1995)).
RCW 9.94A.390.
RCW 9.94A.390(2)(a) which provides “(2) Aggravating Circumstances (a) The
Clerk’s Papers at 498-500; see Ferguson, 1999 WL 1004992, at *8.
Clerk’s Papers at 498.
See Ferguson, 1999 WL 1004992, at *8.
State v. Copeland, 130 Wn.2d 244, 296, 922 P.2d 1304 (1996) (quoting State v. Crane, 116 Wn.2d 315, 334, 804 P.2d 10 (citing State v. Payne, 45 Wn. App. 528, 531, 726 P.2d 997 (1986)), cert. denied, 501 U.S. 1237 (1991).
Copeland, 130 Wn.2d at 296 (quoting State v. Scott, 72 Wn. App. 207, 214, 866
State v. Nordby, 106 Wn.2d 514, 518-19, 723 P.2d 1117 (1986) (Defendant’s “especially culpable mental state” was a substantial and compelling reason to depart from the standard range.); In re Personal Restraint of Farmer, 119 Wn.2d 597, 599, 835 P.2d 219 (1992) (per curiam) (Defendant’s knowledge or belief he had AIDS when he committed the offenses of sexual exploitation of a minor and patronizing a juvenile prostitute evidenced his “reckless disregard” for the lives of both victims and was an “especially culpable mental state” which justified imposition of an exceptional sentence.).
State v. Bartlett, 128 Wn.2d 323, 333-34, 907 P.2d 1196 (1995) (Defendant’s advance “particularized knowledge” of effect injury would have on victim may support an exceptional sentence.); Nordby, 106 Wn.2d at 518-19 (Defendant’s greater than usual culpability for vehicular assault evidenced when he intentionally drove an automobile into a bicyclist.).
Jeannotte, 133 Wn.2d at 855-56 (quoting State v. Allert, 117 Wn.2d 156, 163, 815 P.2d 752 (1991)).
Id. at 856.
See Pet. for Review at 16; Mot. for Accelerated Review, Court of Appeals, Division Two (Mar. 11, 1998) at 8-14.
Jeannotte, 133 Wn.2d at 856. (“In applying the ‘clearly erroneous’ standard .. . ‘we will reverse the trial court’s findings only if no substantial evidence supports its conclusion.’ Substantial evidence has been defined as ‘ “evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premises.” ’ ’’(citations omitted)).
The court checked deliberate cruelty (and particular vulnerability) on the finding of fact form and declared on the record at sentencing that “there was deliberate cruelty” with regard to Ms. Dietz.
State v. Chadderton, 119 Wn.2d 390, 396, 832 P.2d 481 (1992) (citing David Boerner, Sentencing in Washington § 9.6 (1985)); See State v. Thomas, 138 Wn.2d 630, 635-36, 980 P.2d 1275 (1999) (“[A]n exceptional sentence may not be based on factors inherent to the offense for which a defendant is convicted.”) (citing State v. Hicks, 61 Wn. App. 923, 928, 812 P.2d 893 (1991)); State v. Collicott, 118 Wn.2d 649, 658-59, 827 P.2d 263 (1992) (quoting Boerner, Supra, § 9.13) (“[F]acts which constitute elements of the crime of conviction may not be used to justify a departure. Thus the courts have rejected the use of the fact of injury, the age of the victim, and the fact that a burglary was of an occupied dwelling where those facts were elements of the crime and thus used as a basis for determining the applicable presumptive sentence range.”).
See State v. Cardenas, 129 Wn.2d 1, 6-7, 914 P.2d 57 (1996) (Defendant’s vehicular assault conviction, which contained the element of “serious bodily injury,” in comparison with the victim’s severe injuries, was of the type contemplated by the Legislature in setting the standard sentence range and could not justify an exceptional sentence.); Chadderton, 119 Wn.2d at 395-96 (citing State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987) (First degree murder contains the premeditation element of “planning,” was considered by the Legislature in establishing the standard sentence range, and thus may not be used to justify an exceptional sentence for the charged offense.); Nordby, 106 Wn.2d at 519 (The severity of a victim’s injury in a vehicular assault case could not justify an exceptional sentence.); State v. Falling, 50 Wn. App. 47, 54, 747 P.2d 1119 (1987) (The threatened use of a knife during commission of first degree rape is an element of that crime and could not justify an exceptional sentence.); see also State v. Pascal, 108 Wn.2d 125, 736 P.2d 1065 (1987) (Since a person’s criminal history is a factor used to calculate standard sentence range, and has already been considered by the Legislature in establishing the standard sentence range, it cannot justify an exceptional sentence.).
Nordby, 106 Wn.2d at 518.
Ha’mim, 132 Wn.2d at 847; State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993); State v. Pryor, 115 Wn.2d 445, 456, 799 P.2d 244 (1990) (Remand is necessary when a sentencing court places significant weight on an improper factor or when some factors are improper and the sentence significantly deviates from the standard range.).
See RCW 9.94A.320; RCW 9.94A.310.
Jeannotte, 133 Wn.2d at 857.
State v. Alexander, 125 Wn.2d 717, 725-27, 888 P.2d 1169 (1995) (“Whether the Legislature necessarily contemplated the inclusion of a factor in establishing the standard sentence range depends both on whether the factor is an element of the crime of which the defendant has been convicted, and on whether the factor is considered in the computation of a defendant’s standard sentence range under RCW 9.94A.370G).”) (citing State v. Smith, 123 Wn.2d 51, 57, 864 P.2d 1371 (1993) and State v. Grewe, 117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991)).
Alexander, 125 Wn.2d at 725.
Farmer, 116 Wn.2d 414, 418-19, 805 P.2d 200 (1991).
Id. at 431.
Jeannotte, 133 Wn.2d at 857-58.
Ritchie, 126 Wn.2d at 392-93 (quoting State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986) (“[F]or action to be clearly excessive, it must be shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.”)).
Chadderton, 119 Wn.2d at 396.
Concurrence Opinion
(concurring) — I concur in the result only. The majority opinion sweeps too broadly in its condemnation of this exceptional sentence.
On these facts, I agree that the record does not support the trial court’s reasons for an exceptional sentence. There was no conduct on the part of the defendant during the crime for which he was charged that distinguishes it from the conduct proscribed by the statute. However, I believe that the majority opinion can, but should not, be read to prohibit a finding of deliberate cruelty with regard to any charge including the element of intent, not just intentionally transmitting the human immunodeficiency virus (HIV). I am certain that was not the majority’s intent.
Reconsideration denied February 21, 2001.
Judge C. Kenneth Grosse is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).