Appeal from Superior Court, Franklin (92-1-50268-1) County; Hon. Carolyn Brown, Judge. Judgment Date: 12-22-92.
Pekelis, J.p.t., Durham, C.j., Dolliver, Smith, Guy, Talmadge, J.j., concur. Alexander, J. (dissenting by separate opinion), Johnson, Madsen, J.j., dissent. Sanders, J. (did not participate)
PEKELIS, J.P.T.*fn* --The State seeks review of a Court of Appeals decision reversing the trial court's imposition of an exceptional sentence in a vehicular assault case. The Court of Appeals concluded that the factors of multiple and serious injuries, particular vulnerability of the victim, and particularly egregious conduct do not justify the exceptional sentence imposed. Although we agree with the Court of Appeals that the trial court improperly relied on the factors of multiple and serious injuries and egregious conduct, we hold that the factor of victim vulnerability was properly applied by the trial court in this case.
On November 17, 1992, Eliezer Cardenas pled guilty to vehicular assault and hit-and-run injury. Witnesses to the incident estimated that Cardenas was traveling at 35 to 45 miles per hour in a 25-mile-per-hour zone when he attempted to negotiate a left turn. Cardenas lost control of his car, swerved several times, and crashed through a retaining wall and into the backyard of Margaret Michel's home. Cardenas's car struck Michel, who was in her backyard apparently taking out the garbage, pinning her against some pine trees in her yard. Cardenas then fled the scene of the accident but was apprehended shortly thereafter. Approximately one hour after being taken into custody, Cardenas's blood alcohol level registered. 24.
Michel, who was 69 years old at the time, suffered various injuries, including a compound fracture of the left leg, an open, deep wound to her left ankle, multiple breaks in the right leg, three broken bones in her right foot, a fractured pelvis, and a concussion. She was hospitalized for three months and underwent surgery during which a rod was placed in her right leg and her left leg was amputated in the midportion of the leg. She also suffered loss of memory and cognitive functions, which may be permanent, and will require physical, occupational, and psychological therapy. It is likely that she will not be able to walk except with a cane or walker.
As Cardenas had no known convictions for the purpose of computing his offender score, the standard ranges for the sentences were 12 to 14 months for the vehicular assault and 6 to 12 months for the hit-and-run. The trial court imposed an exceptional sentence of the maximum allowable term of 60 months on the vehicular assault conviction and the standard range for the hit-and-run conviction, the sentences to run consecutively.
The trial court made the following conclusions of law in support of the sentence:
(1) When the accident occurred, the defendant was driving in a manner in which he knew of and disregarded a substantial risk that a wrongful act may occur and the disregard of that substantial risk was a gross deviation from conduct that a reasonable person would have exercised in the same situation. The defendant was also drunk.
(2) Margaret Michel was a particularly vulnerable victim.
(3) Margaret Michel suffered multiple injuries as a result of the crime.
(4) Margaret Michel's injuries were more serious than injuries normally inherent in the crimes of Vehicular Assault and Hit and Run.
Conclusion of Law in Supp. of Exceptional Sentence, Clerk's Papers at 29-30. The court also stated that any of the listed factors, alone or in combination, would be a substantial and compelling factor justifying the sentence imposed. Id.
Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within the standard range unless it finds "substantial and compelling" reasons to justify a departure. RCW 9.94A.120(2), (3). In reviewing an exceptional sentence, an appellate court undergoes a three-part analysis. First, the court asks whether the factors listed by the court for an exceptional sentence are supported by the underlying record. The court applies a "clearly erroneous" standard to this review. Second, the court must determine whether the factors used by the trial court are valid as a matter of law. Finally, the court must determine, under an "abuse of discretion" standard, whether the sentence is clearly too lenient or clearly too excessive. State v. Solberg, 122 Wash. 2d 688, 705, 861 P.2d 460 (1993); State v. Batista, 116 Wash. 2d 777, 792, 808 P.2d 1141 (1991). In the current case, there is no dispute as to the factual findings of the trial court.*fn1 Therefore, we apply the "matter ...