Appeal from Superior Court of King County. Docket No: 94-1-07630-9. Date filed: 08/09/95. Judge signing: Hon. Richard A. Jones.
Petition for Review Denied July 8, 1997,
Authored by William W. Baker. Concurring: Mary K. Becker, Ann L. Ellington.
The opinion of the court was delivered by: Baker
BAKER, C.J. - The Sentencing Reform Act of 1981 (SRA) permits a sentencing Judge to distinguish extraordinary cases and impose appropriate sentences. In this case we are asked to determine whether certain individual factors that set Emanual Johnson's conduct apart from the typical case of vehicular assault justify the imposition of an exceptional sentence. Johnson received an exceptional sentence after pleading guilty to three counts of vehicular assault. All three victims occupied the same vehicle.
We hold that a substantial and compelling reason for the imposition of an exceptional sentence for vehicular assault in this case is an otherwise clearly too lenient sentence resulting from the multiple offense policy of the SRA. We also hold that Johnson's particularly egregious conduct warrants an exceptional sentence. Because the trial Judge stated that he would impose an exceptional sentence even if only one of his listed factors applied, we affirm Johnson's exceptional sentence, and hold that there is no violation of Johnson's right to be free from double jeopardy.
The sentencing range on each count was 63 to 84 months, with a statutory maximum term of five years. Johnson had an offender score of 9. *fn1 The trial Judge found that substantial and compelling reasons justified an exceptional sentence: 60 months on each count, 48 months of count I to run consecutively, resulting in a sentence of 108 months. *fn2 In written findings, the Judge made the following additional Conclusions of law:
2. The injuries incurred by Chong Cho [the driver] are permanent, multiple and life devastating; Johnson's conduct producing the harm and the harm produced were significantly more serious than what is typically involved in vehicular assault.
3. Johnson's current offenses involve serious injuries to multiple victims; per RCW 9.94A.400(1)(a), the current offenses involving multiple victims occupying the same vehicle do not count as other current offenses in calculating the offender score, but may be considered as an aggravating circumstance to impose an exceptional sentence; the court considers multiple victims in the same car an aggravating factor in this case.
4. Johnson's long criminal history combined with the multiple-offense policy results in a sentence which is clearly too lenient in light of the purposes of the sentencing reform act, Johnson's 63-84 month standard range and the fact that the statutory maximum for these Class C felonies is only five years (60 months); without consecutive terms, Johnson who committed several current offenses, would receive the same sentence even if he committed fewer than all the offenses. RCW 9.94A.390(2)(g).
5. Johnson's conduct in driving with a .18 BAC the wrong way on the freeway and causing Mr. Cho's life-devastating injuries presented both extraordinarily serious harm and culpability. [A footnote at this point stated: The court would impose the same exceptional sentence even if only one of these aggravating factors applied]. *fn3
Standard of Review/Exceptional Sentence
A trial court may impose a sentence outside the standard sentence range if it finds "substantial or compelling reasons justifying an exceptional sentence." *fn4 Departure from the standards governing whether sentences are to be served consecutively or concurrently is an exceptional sentence. *fn5 We independently determine, as a matter of law, if the sentencing Judge's reasons justify the imposition of an exceptional ...