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State v. Perez

February 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
KENNETH DEAN PEREZ, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-07631-7. Date filed: 08/04/95.

PER CURIAM -- Kenneth Perez pleaded guilty to four counts of vehicular assault. The trial court imposed an exceptional sentence consisting of three concurrent sentences of 54 months and one consecutive sentence of 54 months. Perez appeals, alleging that the trial court relied on a miscalculated offender score, that the court erred in failing to enter written findings of fact and Conclusions of law, that the aggravating factors relied upon by the court did not support the sentence, and that the sentence is clearly excessive. Because any miscalculation in the score did not affect the sentence, the court did indeed enter findings and Conclusions before appellant's brief was filed, several factors support the sentence and the sentence is not clearly excessive, we affirm.

FACTS

On November 13, 1994, co-defendant Emanuel Johnson drove the wrong way in the freeway High Occupancy Vehicle (HOV) lanes and struck a Ford Probe head on, spinning the car around. Occupants of the Probe sustained serious and life-threatening injuries. Motorcycle Officer Keith Brandt saw Johnson's vehicle traveling south in the northbound lanes and tried to alert oncoming traffic. After hearing a crash, he flagged down a Shephard Ambulance occupied by medic Roberta Warnick.

Brandt and the Shephard Ambulance arrived at the crash scene simultaneously. Brandt positioned his motorcycle so as to block lanes two and three; the ambulance was parked blocking the HOV lane. All emergency lights and flashers on both vehicles were fully activated. Warnick immediately ran to attend to the injured passengers of the Probe. At that point, Perez drove his Buick around Brandt's motorcycle and directly into the Probe at a speed of at least 55 mph. The impact caused Warnick to be thrown into the air and the Probe came sliding down on top of her, causing extensive injuries.

At the scene, both Johnson and Perez appeared to be extremely intoxicated. Blood drawn from Perez was found to have .29 percent alcohol by weight.

Perez admitted guilt with respect to Count IV, relating to Warnick, and entered an Alford *fn1 plea to Counts I through III, relating to the driver and passengers of the Probe.

The sentencing hearing was held on August 4, 1995. Perez' offender score was disputed. After colloquy, defense counsel agreed the correct score was 8, which the court used to determine the standard range. The court imposed an exceptional sentence of 108 months for both defendants. Written findings and Conclusions relating to Perez' sentencing were entered on October 5, 1995. Aggravating factors included (1) the extensive injuries of Warnick which were "significantly more serious than what is typically involved in vehicular assault"; (2) Perez' disregard of emergency lights flashing at an accident scene, and resulting injury of "Good Samaritan" Warnick; (3) the involvement of multiple victims, (4) Perez' long criminal history, combined with the multiple offense policy of the SRA, resulting in a sentence which is clearly too lenient, especially given the statutory maximum of five years; and (5) Perez' egregious conduct. The sentencing court noted that the same sentence would be imposed even if only one aggravating factor applied.

MOTION TO DISMISS

The State moves to dismiss this appeal in toto based on appellant's failure to designate the necessary record and to adequately brief the issues based on the record, even though it was available.

The sentencing hearing was held on August 4, 1995, at which time Discussion took place indicating that written findings and Conclusions on the exceptional sentence would be entered at the restitution hearing scheduled for October 3, 1995. Findings and Conclusions were actually filed October 5, 1995. Appellant's opening brief was filed November 14, 1995, a full five weeks later. Appellant's brief, however, makes no reference to the written findings, nor did appellant ever designate the written findings entered after the restitution hearing or the material exhibits from the sentencing hearing. Instead, appellant claimed as error the alleged failure of the court to enter findings and Conclusions on sentencing. In order to respond to the appeal, the State designated clerk's minutes and exhibits from the August sentencing hearing, and the written findings and Conclusions. The appellant filed no reply brief to explain these errors, to correct the original oversight, or to reference the record. We are mystified by appellant's posture. However, since the corrected record permits full review of appellant's arguments, we will address their merits. No assignments of error having been made to the written findings, they are verities on appeal. State v. Allert, 117 Wash. 2d 156, 168, 815 P.2d 752 (1991).

OFFENDER SCORE

The issue of whether a sentencing court acts without statutory authority may be raised the first time on appeal. State v. Akin, 77 Wash. App. 575, 892 P.2d 774 (1995). "It is axiomatic that a sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score." State v. Roche, 75 Wash. App. 500, 513, 878 P.2d 497 (1994). The calculation of the offender score is reviewed de novo. Roche, 75 Wash. App. at 513.

Perez argues that his offender score was erroneously calculated, contending that it should have been 7 rather than 8. The State argues that Perez stipulated to an offender score of 8 and that this stipulation prevents challenge on appeal.

During Perez' sentencing hearing, the defense raised questions concerning the offender score calculation, which was originally calculated as 11. After clarifying that Perez' record showed two prior convictions which should have been recorded as one, the court acknowledged a juvenile conviction was miscalculated and ...


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