State v. Nordby

John Nordby challenges his 16-month sentence for vehicular assault. Under the Sentencing Reform Act of 1981 (the Act), the presumptive sentence range for Nordby's crime was 6 to 12 months. Nordby contends that the trial court did not supply adequate reasons to justify any sentence outside the presumptive range. The Commissioner for the Court of Appeals upheld the trial court's sentence. Nordby moved to modify the commissioner's decision, whereupon the Court of Appeals certified the case to this court. We affirm Nordby's sentence.

On the evening of July 15, 1984, Nordby, Roger Horne and their girl friends were riding in Horne's car. Horne was driving, with his girl friend seated next to him. Nordby was sitting on the right passenger side with his girl friend on his lap. Nordby was intoxicated at the time. As the car proceeded westbound on Court Street in Pasco, Washington, it approached two pedestrians who were pushing their bicycles along the shoulder of the road. Horne's girl friend saw them and said, "There's two points!", in reference to "Death Race 2000", a movie in which road race drivers score points for running over pedestrians. Nordby then reached across the front seat, grabbed the steering wheel and jerked it suddenly to the right. Horne grabbed the wheel back but too late to avoid hitting one of the pedestrians, 15-year-old Tia Gibson. She suffered two severely broken legs and a broken arm, necessitating surgery; she later lapsed into a coma for several days. During the incident, she had been in extreme pain and this pain will continue for some time. There is also the possibility of permanent injury.

Nordby pleaded guilty to the crime of vehicular assault. RCW 46.61.522. The presumptive sentence range for this crime under the Act is determined by combining the seriousness level of vehicular assault with Nordby's criminal history. RCW 9.94A.310. Nordby had a criminal history score of "1" because of a prior second degree burglary conviction. Former RCW 9.94A.360(5). Thus, his presumptive sentence range was 6 to 12 months.

The trial court may impose a sentence outside the presumptive range if it finds, "considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). In such a case, the court "shall set forth the reasons for its decision in written findings of fact and conclusions of law." RCW 9.94A.120(3). The Act provides a list of aggravating and mitigating circumstances "which the court may consider in the exercise of its discretion to impose an exceptional sentence", but these factors are only illustrative and not exclusive. RCW 9.94A.390. The drafters of the statute recognized that "not all exceptional fact patterns can be anticipated", Washington Sentencing Guidelines Comm'n, Implementation Manual § 9.94A.390, Comment (1984), and that the trial court must tailor the sentence to the facts of each case.

The trial court here relied on three unlisted "substantial and compelling reasons" in sentencing Nordby to 16 months, a sentence greater than the presumptive range: (1) the particular vulnerability of the victim; (2) Nordby's intentional mental state when he committed the crime; and (3) the seriousness of the victim's injuries. The commissioner affirmed the trial court's sentence based on factors (1) and (2), but held that factor (3) was insufficient to justify the exceptional sentence. We agree with the commissioner.* *

Our review of the trial court's sentence is governed by RCW 9.94A.210(4), which provides:

To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

(Italics ours.) Nordby claims that the trial court's reasons do not justify any sentence outside the 6 to 12 months presumptive range; he does not claim that his 16-month sentence is "clearly excessive" when compared to the 6- to 12-month presumptive range. Thus, we need consider only subsection (a) of RCW 9.94A.210(4).

RCW 9.94A.210(4)(a) actually consists of two parts. First, the appellate court must decide if the sentencing judge's reasons for imposing an exceptional sentence are supported by the record. As this is a factual determination, the appellate court is to uphold the sentencing judge's reasons if they are not clearly erroneous. Here, the trial court found that Nordby's victim, a pedestrian, was completely vulnerable and defenseless, that Nordby intentionally grabbed the steering wheel of Horne's car and turned the car into the direction of the victim, and that she suffered serious injuries. We hold that these findings are supported by the record.

The second part of RCW 9.94A.210(4)(a) requires the appellate court to independently determine, as a matter of law, if the sentencing judge's reasons justify the imposition of a sentence outside the presumptive range. The reasons must be "substantial and compelling", RCW 9.94A.120(2), and must take into account factors other than those which are necessarily considered in computing the presumptive range for the offense.

We find that the first two reasons given by the trial court justify an exceptional sentence. The trial court (and the commissioner, in his ruling upholding the trial court's decision) considered that the victim here was a pedestrian pushing her bicycle alongside the road. Unlike a potential victim in a second automobile, she had no opportunity to evade Horne's car once Nordby swerved it toward her. Nor was she afforded the additional protection against injury that a second automobile might provide for a driver or passenger of that automobile. The trial court noted that the victim here was, in fact, completely defenseless and vulnerable. This reason justifies an exceptional sentence.

The trial court also points to Nordby's especially culpable mental state at the time of the crime. Under RCW 46.61.522(l)(a) and (b), a person may be guilty of vehicular assault if he operates or drives any vehicle in a reckless manner, or while under the influence of intoxicating liquor or any drug (and this is the proximate cause of serious bodily injury to another). Hence, the requisite mental states are either recklessness or intoxication. Here, not only was Nordby intoxicated, but the record shows that he "intentionally grabbed the steering wheel of the automobile and turned it into the direction of the victim." The trial court was justified in considering Nordby's intentional act as a reason for imposing an exceptional sentence.

Turning to the last of the trial court's reasons, we find that the seriousness of the victim's injuries does not justify an exceptional sentence. RCW 46.61.522(1) makes infliction of "serious bodily injury" a prerequisite for vehicular assault, and RCW 46.61.522(2) defines that term as follows:

"Serious bodily injury" means bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.

While the victim's injuries here were severe, this factor was already considered in setting the presumptive sentence range for vehicular assault. It cannot, therefore, be a basis for a sentence outside the presumptive range.

In summary, we hold that Nordby's 16-month sentence was justified, both by the particular vulnerability of the victim and by Nordby's intentional mental state at the time of the crime.

The commissioner's ruling upholding the sentence of the trial court is affirmed.

Dolliver, C.J., and Brachtenbach, Dore, Andersen, and Callow, JJ., concur.

Tormer RCW 9.94A.390(2), Aggravating Circumstances, permits the court to consider whether " [t]he defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health." (Italics ours.) We note that the trial court did not base its sentence on this listed factor, since the vulnerability of the victim was not a result of her extreme youth, advanced age, disability, or ill health, but rather was due to her relatively defenseless status as a pedestrian.

Although Nordby had also violated the terms of his probation for his prior second degree burglary conviction, the trial court did not base its exceptional sentence on this factor. However, the commissioner mentioned the probation violation in his opinion, leading the Court of Appeals to certify to this court the question of whether the commissioner was justified in considering this as a substantial and compelling reason justifying an exceptional sentence. We decline to decide this question because Nordby's exceptional sentence is justified on other grounds.

The Court of Appeals also certified to this court the question of whether the sentencing court could use prior nonvehicular convictions in computing the criminal history of a person who has committed vehicular assault, where the court could not use such convictions in computing the criminal history of a person who commits vehicular homicide. Compare former RCW 9.94A.360(4) with former RCW 9.94A.360(5). If Nordby's second degree burglary conviction could not be considered in computing his criminal history, his criminal history score would be "0" rather than "1", and his presumptive sentence range would be 3 to 9 months rather than 6 to 12 months. However, since a resolution of this issue would not affect the validity of Nordby's 16-month exceptional sentence, and since neither party has briefed this issue, we decline to decide it at this time.

For example, the sentencing judge may not list the offender's criminal history as a reason to justify an exceptional sentence since criminal history is one of the two components (the other being the seriousness of the offense) used to compute the presumptive range under RCW 9.94A.320. State v. Hartley, 41 Wn. App. 669, 705 P.2d 821 (1985). Nor may the sentencing judge list "sophistication and planning" as a reason justifying an exceptional sentence for the crime of first degree prison escape where the planning does not go beyond that found in any escape attempt since this factor has already been considered in determining the seriousness level, and hence the presumptive range, for that crime. State v. Baker, 40 Wn. App. 845, 700 P.2d 1198 (1985).