Appeal from Superior Court, Spokane (88-1-00869-9) County; Honorable Marcus Kelly, Judge. Judgment Date: 4-7-92.
Talmadge, J., Durham, C.j., Dolliver, Smith, J.j., Pekelis, J.p.t., concurring. Madsen, J. (dissenting by separate opinion), Alexander, Johnson, J.j., dissenting. Sanders, J. (did not participate).
TALMADGE, J. -- The present case is the second appeal relating to the propriety of the trial courts exceptional sentence for Billy Wayne Worl, Jr., who was convicted of malicious harassment under RCW 9A.36.080(1)(a). The Court of Appeals, without reference to the analysis. in its earlier decision of the factors supporting an exceptional sentence, vacated Worl's exceptional sentence finding that the factors it had previously approved did not support an exceptional sentence. We hold that the law of the case doctrine precludes reconsideration by the Court of Appeals of conclusions it had reached previously on the factors supporting Worl's exceptional sentence. We reverse the Court of Appeals, but remand the case to the trial court for reconsideration of whether the imposition of consecutive sentences is appropriate.
1. Does the law of the case doctrine bar reconsideration of issues the Court of Appeals decided in Worl's first appeal with respect to his exceptional sentence?
2. Did the trial court clearly err in considering deliberate
cruelty and multiple injuries to compute an exceptional sentence for malicious harassment?
Worl and his friend, who were members of a local "skinhead" group, beat and slashed with a knife an African-American man early one morning in a Safeway parking lot in Spokane. The victim sustained five slash wounds, four of which required 20 or more stitches. State v. Worl, 58 Wash. App. 443, 443, 794 P.2d 31 (1990) (Worl I). After the jury had found him guilty of attempted second degree murder and malicious harassment, the trial judge sentenced Worl to 15 years, using several aggravating factors, including multiple injuries, future dangerousness, and deliberate cruelty, to support an exceptional sentence for the malicious harassment conviction. Although the standard range was 12 to 14 months, the court sentenced Worl to 60 months for malicious harassment. The sentence for the attempted second degree murder conviction was within the standard range, 120 months. The court ordered the sentences to run consecutively. State v. Worl, 74 Wash. App. 605, 608, 875 P.2d 659 (1994) (Worl II).
Worl appealed. The Court of Appeals, Division III, affirmed. Worl I, at 446. Worl then petitioned for review. This court granted Worl's petition for review solely on the issue of whether future dangerousness can be an aggravating factor justifying an exceptional sentence for a nonsexual crime. State v. Worl, noted at 115 Wash. 2d 1022, 804 P.2d 9 (1990). On review, this court held in State v. Barnes, 117 Wash. 2d 701, 818 P.2d 1088 (1991) (considering three consolidated cases, including Worl's), that the trial court should not have used future dangerousness as one of the aggravating factors, and remanded the case without instructions for resentencing.
At the resentencing hearing, the same trial judge once again sentenced Worl to 15 years, even though future dangerousness was no longer an aggravating factor the trial court could consider to determine the sentence.
Worl appealed once again. Although the Court of Appeals had affirmed the trial court's use of multiple injuries and deliberate cruelty as aggravating factors justifying the exceptional sentence the first time it heard Worl's appeal, the Court of Appeals held in the second appeal that the trial court had improperly applied those factors to the malicious harassment charge.*fn1 The Court of Appeals remanded the case for resentencing within the standard range. Worl II, at 616.
The State then petitioned for review. Worl filed an answer and petitioned for review of his assertion that malicious harassment is not a substantive crime, but only a sentence enhancer. This court granted the State's petition and denied Worl's petition. State v. Worl, noted at 125 Wash. 2d 1014, 890 P.2d 20 (1995).
1. The Law of the Case Doctrine
To justify the exceptional sentence of 60 months for the malicious harassment conviction, the trial court at the initial sentencing set forth the following aggravating factors:
A. The defendant's conduct constituted multiple incidents or injuries in that a number of injuries were inflicted on the victim, Ray Hill, one very serious, by the defendant with a knife.
B. The defendant's conduct constituted deliberate cruelty in that this was an attack on the victim by two people and what appears to be a persistence in the attack because as the victim attempted to run he was chased and again attacked. An indication of the deliberate cruelty is the taking of the victim's piece of conduit and his hat from the scene of the attack as if they were trophies.
C. The future dangerousness of the defendant as evidenced by
the testimony of Dr. Thomas McKnight who had examined him at the request of the defense, and indicated that he was impulsive and had an inability to control himself.
D. The fact that this was not the "typical" Malicious Harassment case in that the injuries were substantial and the conduct of the defendant [was] beyond what could normally be expected to occur in a typical case.
Worl I, at 451-52 (emphasis added).
In affirming the trial court's sentence in Worl I, the Court of Appeals said with respect to the trial court's use of multiple injuries as an aggravating factor: "We find the multiple stab wounds inflicted by Mr. Worl are more properly considered multiple injuries and the court was correct in considering those injuries as an aggravating factor." Worl I, at 452. With respect to the trial court's use of deliberate cruelty as an aggravating factor, the Court of Appeals said:
As to the second factor, deliberate cruelty, Mr. Worl argues there is insufficient evidence to support this finding....
Mr. Worl failed to assign error to the court's findings, and thus they are verities. State v. Harmon, 50 Wash. App. 755, 757, 750 P.2d 664, review denied, 110 Wash. 2d 1033 (1988). In any event, the findings are supported by the record and are not clearly erroneous.... There is no error.
Worl I, at 452. Thus, the parties fully litigated the questions of whether the trial court properly employed multiple injuries and deliberate cruelty as aggravating factors to justify the exceptional sentence, and the Court of Appeals rendered decisions on those questions in Worl I.
At the sentencing hearing, the trial court heard testimony from several witnesses, including Worl, and listened to the arguments of counsel. The court then announced its sentence:
The sentence the Court previously imposed with respect to the Attempted Second Degree Murder is within the standard
range. I do not have to address that. I do find that with respect to the Malicious Harassment, that there are two aggravating factors and circumstances which in my judgment warrant an exceptional sentence. Those are the multiple wounds inflicted upon Mr. Hill coupled that with the persistence in the attack upon Mr. Hill. There is evidence, in my judgment, of gratuitous violence. I find, with respect to that conviction, that there was deliberate cruelty.... I want to make it clear that this Court's primary motivating factor is multiple injuries and deliberate cruelty either of which standing alone, in this Court's judgment, are sufficient upon which to base an exceptional sentence.
Report of Proceedings, at 81-82.*fn2 Thus, the trial court, in reconsidering its exceptional sentence upon remand from this court, plainly stated that it based the exceptional sentence on multiple injuries and deliberate cruelty, either one of which standing alone justified the exceptional sentence. The court once again imposed a 60-month sentence for the malicious harassment offense.
On appeal from the resentencing, Worl assigned error to the trial court's findings of fact with respect to multiple injuries and deliberate cruelty, and to the trial court's conclusion of law that those aggravating factors constitute substantial and compelling reasons to impose an exceptional sentence. He also asserted the trial court abused its discretion by imposing the exceptional sentence because
"(1) the aggravating factors are not supported by the record; (2) the aggravating factors do not justly an exceptional sentence; (3) the sentence is excessive; and (4) it is solely the result of the abuse of discretion by the trial court." Br. of Appellant, at 4.*fn3
The State responded that the law of the case doctrine precluded the Court of Appeals from reconsidering the same issues it had decided in Worl I. Noting that the "sentencing-related issues were all raised and decided by this court in the first appeal," the State argued that the aggravating factors had already been litigated in Worl I. Br. of Resp't, at 33.
The Court of Appeals cursorily dismissed the State's law of the case argument: "This is a direct appeal following resentencing. Accordingly, the trial court's sentence is again properly before this court for review." Worl II, at 614. The Court of Appeals cited two cases for support, State v. Collicott, 118 Wash. 2d 649, 654, 827 P.2d 263 (1992), and State v. Hillman, 66 Wash. App. 770, 778 n. 6, 832 P.2d 1369, review denied, 120 Wash. 2d 1011, 841 P.2d 47 (1992).
Neither of the two cases the Court of Appeals cited discusses the law of the case doctrine. In Collicott, this court held that it was permissible, on resentencing, to impose an exceptional sentence where the court in the initial sentence had incorrectly determined the offender score. This court said, "Imposition of an exceptional sentence is directly related to a correct determination of the standard range. That determination can be made only after the offender score is correctly calculated." Collicott, at 660. Thus, redetermination of the sentence was appropriate upon correction of the trial court's previous misinterpretation of the offender score.
In Hillman, the Court of Appeals remanded the case for resentencing in the wake of the Barnes decision that future dangerousness cannot be an aggravating factor justifying an ...