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State v. C.A.P.

May 27, 1997

C.A.P., B.D. 08-08-78, APPELLANT.

Appeal from Superior Court of King County. Docket No: 96-8-04455-7. Date filed: 08/08/96.

PER CURIAM. - C.P. was charged with first degree robbery and second degree assault after a companion riding with him in a taxi slashed the driver's neck and then stole the taxi. The information was amended to charge C.P. with first degree rendering criminal assistance and taking a motor vehicle without permission, to which he pled guilty. The trial court imposed a manifest inJustice Disposition, in part because of the way C.P. stared at the taxi driver while he testified at C.P.'s Disposition hearing. We affirm. The trial court could properly consider C.P.'s behavior in court to determine that C.P. lacked remorse and was likely to reoffend. The trial court also did not deny C.P.'s right to allocution, so the appearance of fairness does not require C.P. to be resentenced by a new Judge.

At C.P.'s Disposition hearing, the trial Judge received reports that C.P. had a severe substance abuse problem and a variety of disorders, attributable in part to having been hung from a ceiling and raped by his father. C.P. had been offered treatment at several facilities, but had walked away from them because he did not like to be hospitalized. Reports from psychologists who had evaluated C.P. reflected that C.P. needed treatment in a secure facility he could not walk away from, but no specific term or type of treatment was recommended.

The standard range sentence for C.P.'s crimes was 3-6 months of community supervision, 24-40 hours of community service, $0-$25 fine, and 5-10 days of detention. C.P.'s probation counselor indicated she had intended to recommend a manifest inJustice Disposition, in part because of his having inflicted serious bodily injury on the taxi driver in the commission of or flight from the crime, but she felt a manifest inJustice Disposition was not warranted after the charges against C.P. were reduced. She, therefore, recommended that he be ordered to serve 21 days of detention on each count, or 42 days, with credit for the 52 days he had already served. The State concurred with the counselor's recommendation, while emphasizing the seriousness of the offense and its effect on the victim, Michael Hanson.

Hanson testified briefly that the assault had changed his life and asked the court to put C.P. away for a long time. After Hanson's testimony, the trial Judge stated he was "prepared to propose" a manifest inJustice Disposition of 52 weeks because of C.P.'s behavior while Hanson was speaking:

The basis for the manifest inJustice sentence would be as follows.

At this hearing, earlier this morning, when the victim was giving a recitation of the events that led up to this crime and the impact that it had on his life, during his talk, the respondent began staring at the victim; and when the victim caught his eye, the respondent continued to stare in an obvious attempt to stare him down, to intimidate him, to enforce [sic] him to end his presentation.

By his action, the respondent failed to demonstrate any remorse from the suffering he inflicted upon this person. He demonstrated contempt in open court for the victim's pain caused by his own criminal behavior. His actions in open court are completely at odds with his self-serving and apparently false representations in his letter to the Court wherein he cites his own so-called rehabilitation while in detention. His actions do not suggest rehabilitation, but rather the lack of it; and the lack of any remorse for his criminal activities. It demonstrates callousness and a disregard for the consequences of his criminal activity, and suggests a likelihood that he will reoffend and reoffend in a violent way.

In the commission of this offense, and in flight therefrom, the respondent inflicted serious bodily injury; he is out of the control of his parents, and is not responsive to any other adult supervision;

he has a serious drug and alcohol problem; he's been unresponsive to treatment in any noncustodial situation.

After announcing its intention to impose a manifest inJustice Disposition, the court offered to grant C.P. a continuance to respond because counsel had had no previous notice of what the court intended to do. C.P. agreed to go forward without a continuance and presented testimony on his behalf.

Tom Dunne, a social worker from SCRAP who had had almost daily contact with C.P. while he was in detention, claimed that C.P. had consistently expressed remorse after being let out of detox. C.P. himself said he was sorry for what happened and had not tried to stare Hanson down: "I was trying to--that's how I give my respect, is by looking at people, because I want respect for myself." He denied that he hurt people and said he would not have ridden in the cab if he had known Gillespie was going to hurt Hanson. But he admitted that if he were not in custody, he would be out using drugs.

The court ordered C.P. to serve a manifest inJustice Disposition of 26 weeks on each count. C.P. now argues the court's reasons for imposing the exceptional sentence are not supported by the record, do not justify a manifest inJustice Disposition, and that the length of the sentence is clearly excessive.

A court may impose a Disposition outside the standard range if it finds that a Disposition within the standard range would effectuate a manifest inJustice. *fn1 To uphold a manifest inJustice Disposition, an appellate court must find that (a) the reasons supplied by the Disposition Judge are supported by the record and clearly and convincingly support the Conclusion that a Disposition within the standard range would be a manifest inJustice, and (b) the sentence imposed was not excessive. *fn2

The Disposition court's findings of fact are reviewed under a clearly erroneous standard and will be reversed only if not supported by substantial evidence. *fn3 Substantial evidence is evidence of a sufficient quantity to persuade a rational, fair-minded person of the truth of the premise in question. *fn4 Whether an aggravating factor justifies a departure from the standard range is a question of law. *fn5 A manifest inJustice Disposition may be affirmed if one or more of the factors are supported by the record, clearly and convincingly support the ...

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