IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 77319-4-1 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION CHRISTINA SHARA KAESTNER, ) ) FILED: June 3, 2019 Appellant. ) )
VERELLEN, J. — Christina Kaestner appeals her convictions of felony hit and run, theft of a motor vehicle, and two counts of vehicular assault. She also
appeals her exceptional sentence. The majority of Kaestner's appeal focuses on
the vehicular assault of Claire Schwartz. Shortly before trial, Kaestner's defense
counsel discovered her brother-in-law's half-brother's son was dating Schwartz.
Defense counsel and Schwartz's boyfriend are not related, and they did not
otherwise have a close relationship. Because there was no actual conflict that
adversely affected defense counsel's performance, Kaestner's Sixth Amendment
right to conflict-free counsel was not violated.
Also before trial, Kaestner orally moved to represent herself. After making
the initial motion, Kaestner refused to answer further questions and never raised
the motion again. Because Kaestner's motion was not unequivocal, the court did No. 77319-4-1/2
not abuse its discretion when it failed to grant her request to proceed pro se. Even
assuming the request was unequivocal and timely, Kaestner failed to demonstrate
her waiver of the right counsel was knowing and intelligent.
Following trial, the jury found Kaestner guilty of all counts. The jury found
the vehicular assault of Schwartz was aggravated because Schwartz's injuries
substantially exceeded the level of harm necessary to prove the offense.
Schwartz suffered multiple fractures and a traumatic brain injury. The jury also
found all the offenses were aggravated because Kaestner committed the crimes
shortly after being released from incarceration. Kaestner committed the charged
offenses three days after being released from jail.
Kaestner challenges both aggravators as unconstitutionally vague. But a
person of reasonable understanding would not have to guess about the meaning
of the aggravators, as applied in this setting. Kaestner also argues the State failed
to present sufficient evidence to support both aggravators. But viewed in a light
most favorable to the State, there is sufficient evidence to support both
aggravators.
The question whether the facts found by the jury concerning the two
aggravators were substantial and compelling reasons justifying an exceptional
sentence is a question of law which the jury was not required to address. And the
sentence of 100 months for the vehicular assault of Schwartz on the standard
sentence range of 43 to 57 months was not clearly excessive.
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Finally, we accept the State's concession that the $100 DNA1 fee is not
warranted because Kaestner's DNA was collected on a prior conviction.
We affirm Kaestner's conviction and sentence but remand for the trial court
to strike the $100 DNA fee.
FACTS
Kaestner was released from incarceration on April 21, 2016. On April 23,
2016, Kaestner met Bryan Brown in Everett. Brown agreed to give Kaestner a ride
to North Bend. On April 24, 2016, Brown drove Kaestner to North Bend but
eventually brought her back to his jobsite in Seattle. After finishing work and
before driving Kaestner back to North Bend, Brown met a friend in a parking lot.
Kaestner remained in Brown's truck. After Brown walked away, Kaestner got into
the driver's seat and sped away.
After driving erratically for a few minutes, Kaestner t-boned a Toyota
Corolla and collided with a Honda Accord. Eventually, Kaestner lodged the truck
between a building and a utility pole. Police arrived and arrested Kaestner. The
driver of the Corolla, Claire Schwartz, had several fractured facial bones, a
fractured clavicle, a fractured pelvic bone, and a traumatic brain injury, among
other things.
The State charged Kaestner with theft of a motor vehicle, reckless driving,
felony hit and run, and two counts of vehicular assault. The State alleged one of
the counts of vehicular assault was aggravated because Schwartz's severe
1 Deoxyribonucleic acid.
3 No. 77319-4-1/4
injuries substantially exceeded the level of bodily harm necessary to prove
vehicular assault. The State also alleged all of the charged counts were
aggravated because they were committed shortly after Kaestner was released
from incarceration.
On January 30, 2017, Kaestner orally moved to represent herself before
Judge Dean Lum. After Kaestner gave confusing answers to Judge Lum's
questions about her ability to represent herself, Judge Lum told Kaestner they
would address her motion the next day after she had the night to think.
The next hearing was on February 2, 2017, before Judge Sean O'Donne11.2
Kaestner refused to answer the court's questions concerning her request to
proceed pro se. In response, the court stated, "I'm going to take your silence as
that you're thinking about it and you're not sure."3 Kaestner did not respond, and
she never renewed the motion.
On May 10, 2017, the parties appeared before Judge Susan Amini for
preliminary motions. Defense counsel disclosed that over the weekend, while at
her niece's birthday party, counsel had discovered that she knew the boyfriend of
Schwartz, one of the victims. Schwartz's boyfriend's parents are counsel's
brother-in-law's half-brother and his wife. Defense counsel represented that she
2 See Report of Proceedings(RP)(Feb. 2, 2017) at 31 ("Ms. Kaestner was here on Monday and asserted her right to represent herself. . . . We were going to readdress that motion today. So it was rolled without—the hearing was rolled already without a speedy trial waiver."). 3 Id. at 37.
4 No. 77319-4-1/5
saw Schwartz's boyfriend's parents at similar events once or twice a year, "but
they're not people who I see regularly." Defense counsel could not recall the last
time she saw Schwartz's boyfriend.
When the court asked Kaestner how she felt about the situation, Kaestner
stated,
I don't really have anything to say. 1 don't-1'm just frustrated, because I've been in jail for a year, and I haven't seen my children in like three years, so I'm just hoping to get it resolved as soon as possible.[5]
The court concluded there was no actual conflict that precluded counsel's
continued representation of Kaestner.
The trial was before Judge Mariane Spearman. On June 19, 2017, after the
initial trial, the jury found Kaestner guilty as charged. The jury also found the
vehicular assault of Schwartz was aggravated because Schwartz's injuries
substantially exceeded the level of bodily harm necessary to prove vehicular
assault. On June 20, 2017, after a separate proceeding on the rapid recidivism
aggravating factor, the jury found each felony was aggravated because they were
committed shortly after Kaestner was released from incarceration.
At sentencing, the court ruled the jury's findings as to the aggravating
factors were substantial and compelling reasons to impose an exceptional
4 RP (May 10, 2017) at 343. 5 Id. at 348-49.
5 No. 77319-4-1/6
sentence. The court imposed an exceptional sentence of 100 months on the
vehicular assault of Schwartz.
Kaestner appeals.
ANALYSIS
I. Right to Conflict-Free Counsel
Kaestner argues she is entitled to a new trial because the court violated her
Sixth Amendment right to conflict-free counsel.
In all criminal cases, the Sixth Amendment to the United States Constitution
gives defendants "the right. . ..to have the assistance of counsel for his defense."6
This includes the right to an attorney who is free from any conflict of interest.7 An
actual conflict of interest means "'a conflict that affected counsel's performance—
as opposed to a mere theoretical division of loyalties." "The defendant bears the
burden of proving that there was an actual conflict that adversely affected his or
her lawyer's performance."9
Washington's Rule of Professional Conduct(RPC) 1.7(a)(2) provides, "[A]
lawyer shall not represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if. . . there is a
significant risk that the representation of one or more clients will be materially
6 U.S. CONST. amend. VI.
7 State v. Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003). 8Id. at 570 (quoting Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)). 9 Id. at 573.
6 No. 77319-4-1/7
limited . . . by a personal interest of the lawyer." In In re Personal Restraint of
Stenson, our Supreme Court stated that a personal interest "largely concerns
financial or familial interests, as shown by RPC 1.8" 10 RPC 1.8 references a
"close, familial relationship."1 I RPC 1.7 and 1.8 address actual conflicts and not
the appearance of a potential conflict:12 Therefore, to determine whether a lawyer
has a conflict of interest due to a "familial interest," we must determine the
closeness of the relationship.
Shortly before trial, on May 10, 2017, defense counsel disclosed that over
the weekend she had discovered that she knew Schwartz's boyfriend. Schwartz's
boyfriend's parents are counsel's brother-in-law's half-brother and his wife.
Defense counsel represented that she saw Schwartz's boyfriend's parents once or
twice a year, "but they're not people who I see regularly."13 The mother of
Schwartz's boyfriend asked defense counsel about her work, and defense counsel
mentioned she was in trial for "a motor vehicle accident case."14 The woman
asked if the case involved Schwartz and the following exchange occurred,
[M]y first reaction was, What? Like how would it—why would she even ask me that question? And then it occurred to me that I did remember, sort of the bell went off in my head, that her husband, the boyfriend's father, had told me last year at the earlier birthday party of my niece, that—that his son's girlfriend had been involved in an
10 142 Wn.2d 710, 722, 16 P.3d 1 (2001). 11 See RPC 1.8(c) and (I). 12 Compare with Code of Judicial Conduct(CJC) Rule 1.2 ("A judge . . . shall avoid . . . the appearance of impropriety.")(emphasis added). 13 RP (May 10, 2017) at 343. 14 id.
7 No. 77319-4-1/8
accident and that she had been injured. I think she may have still been in the hospital at that time. I can't recall. And you know, I expressed sympathy, and I think he mentioned, I'm sure he mentioned her name. I expressed . . . my sympathy about that, and that was, that was it.
But when his wife this year said the name Claire, it kind of came back to me. It. . . was the first time that I had thought about it at all during the course of this, my representation of Ms. Kaestner. . . or else I would have raised it a long time ago to Ms. Kaestner, probably to the criminal presiding, to counsel, to make sure that everyone knew this. So when she asked if it was Claire's trial, I said, Yes, in fact, it is. And I said, So, you know, we shouldn't, you know, discuss this. And that was it. We didn't discuss it.[16]
Defense counsel indicated she raised the issue out of "an abundance of
caution" but did not believe that the situation raised a concurrent conflict under
RPC 1.7)6 Defense counsel also stated, "I see absolutely no reason why this
would cause me any hesitation at all professionally to continue on with my
representation of Ms. Kaestner."17 When the court inquired into the relationship
between defense counsel and the victim's boyfriend's parents, defense counsel
represented, "I'm related to them in a very tenuous, by marriage, kind of a way:18
Defense counsel also stated she could not remember the last time she had seen
the victim's boyfriend.
The following exchange occurred between the court, defense counsel, and
Kaestner:
15 Id. at 344. 16 Id. at 345. 17 Id. 18 Id. at 346.
8 No. 77319-4-1/9
THE COURT: Ms. Kaestner, is there anything of this issue you would like to say? What is—what is your position? Do you have any concerns? Do you—what do you want to see?
DEFENSE COUNSEL: I think that the basic issue is whether or not I would remain as your counsel.
THE COURT: Yes.
DEFENSE COUNSEL: I think that's essentially what the Court's asking you. Are you able to tell the Court how you feel about that?
KAESTNER: I don't really have anything to say. 1 don't—I'm just frustrated, because I've been in jail for a year, and I haven't seen my children in like three years, so I'm just hoping to get it resolved as soon as possible.
THE COURT: Okay. Do you have any objections to Ms. Exe continuing as your lawyer?
KAESTNER: I don't, I don't know what to say. I don't have anything to say.
THE COURT: Well, either you feel comfortable or you don't. Which one is it?
KAESTNER: Urn —
DEFENSE COUNSEL: Your Honor, I think I can say without revealing client confidences that, that I did explain to Ms. Kaestner what would happen if I were to no longer be her attorney. And to be fair to her, I explained to her that she would get a new lawyer.
DEFENSE COUNSEL: And that that new lawyer would probably take some time to get up to speed. So my sense is that perhaps her hesitation about answering this question is that she really wants this to be over with. And she knows that if I'm not her lawyer any longer, that there will be additional delay that will be out of anyone's hands.
So perhaps the question is whether you're actually comfortable with me or you just want me to stay on because you don't want any more delays. Okay. Are you able to answer that question, maybe?
9 No. 77319-4-1/10
KAESTNER: Well, obviously I'm interested in something happening. 1 mean, 1 don't want to sit in jail for the rest of my life here, you know. So you know, it's upsetting to hear something else come up, but I don't really know any -[19]
The court concluded there was no actual conflict that precluded defense
counsel's continued representation of Kaestner.
While the jury was deliberating on the rapid recidivism aggravating factor,
Kaestner mentioned her concern that her defense counsel "had some conflict of
interest."20 Judge Spearman confirmed Judge Amini had already addressed this
issue.
Kaestner's defense counsel's relationship with Schwartz's boyfriend and his
parents is not a familial interest under RPC 1.7. Defense counsel's brother-in-
law's half-brother's son is not a member of defense counsel's family. And the
connection between defense counsel and Schwartz's boyfriend is not otherwise a
close relationship. Defense counsel testified that she could not remember the last
time she had seen Schwartz's boyfriend and that she saw the boyfriend's parents
only once or twice a year. Defense counsel also testified that she did not discuss
the case with Schwartz's boyfriend's parents, outside of confirming that her trial
did involve Schwartz. This undisputed testimony does not reveal a close
relationship between defense counsel and Schwartz's boyfriend or his parents. As
19 Id. at 348-50. 20 RP (June 20, 2017) at 641-42.
10 No. 77319-4-1/11
a result, there is no actual conflict that precluded defense counsel from
representing Kaestner.
Additionally, there is no showing that the connection between defense
counsel and Schwartz's boyfriend adversely affected defense counsel's
performance. Kaestner argues defense counsel's performance was adversely
affected because she did not cross-examine Schwartz and she did not challenge
the substantially exceeds aggravator. But Kaestner fails to establish that defense
counsel's trial strategy hampered her defense or caused some lapse in
representation contrary to her interests.21 It was a reasonable strategy for defense
counsel to avoid cross-examining Schwartz in an attempt to minimize the severity
of her injuries.
Kaestner's argument is premised on the assumption that if defense counsel
had established Schwartz's injuries were not permanent, the substantially exceeds
aggravator would have failed. But as discussed below, the State is not required to
prove the victim's injuries were permanent to show those injuries substantially
exceeded substantial bodily harm. And there was a genuine risk that cross-
examining the victim or other witnesses about the severity of her injuries might
generate sympathy for the victim.
21See State v. Robinson, 79 Wn. App. 386, 395, 902 P.2d 652(1995) (quoting State v. Lingo, 32 Wn. App. 638, 646, 649 P.2d 130 (1982)).
11 No. 77319-4-1/12
We conclude there was no actual conflict of interest that adversely affected
defense counsel's performance. The court did not violate Kaestner's Sixth
Amendment right to conflict-free counsel.
Kaestner also argues the court failed to conduct an adequate inquiry into
the potential conflict. We agree. The court did not conduct any meaningful
inquiry. But under these circumstances, reversal is not required because Kaestner
cannot show an actual conflict that adversely affected defense counsel's
performance.22
II. Right to Self-Representation
Kaestner also contends she is entitled to a new trial because the court
violated her right to self-representation.
We review a lower court's decision to grant or deny a defendant's request
to proceed pro se for abuse of discretion.23 "Under an abuse of discretion
standard, we do not reverse a trial court's decision unless the trial court applied
the wrong legal standard, based its decision on facts unsupported by the record,
or made a decision that is manifestly unreasonable."24
22 See Dhaliwal, 150 Wn.2d at 568, 574(A defendant is not "automatically entitled to reversal based on the court's failure to inquire fully into the possible conflict." Although the trial court failed to conduct an adequate inquiry, reversal was not required because "Dhaliwal . . . failed to demonstrate the strong possibility that a conflict of an interest had an effect on [defense counsel's] performance."). 23 State v. Curry, 191 Wn.2d 475, 483, 423 P.3d 179 (2018). 24 Id. at 486.
12 No. 77319-4-1/13
The Washington State Constitution and the United States Constitution grant
criminal defendants the right to self-representation.25 But this right is in tension
with a defendant's right to the assistance of counse1.26 "Because of this tension, a
defendant must unequivocally request to proceed pro se before he or she will be
permitted to do so."27 Even if a defendant makes an unequivocal and timely
request, in order to grant a defendant's request to proceed pro se, the court must
establish that a defendant makes a voluntary, knowing, and intelligent waiver of
the right to counse1.28 "Mlle record must reflect that the defendant understood the
seriousness of the charge, the possible maximum penalty involved, and the
existence of technical procedural rules governing the presentation of his
defense."29 The court shall indulge "every reasonable presumption against a
defendant's waiver of his or her right to counsel.'"39
On January 30, 2017, before Judge Lum, Kaestner orally moved to proceed
pro se, "I wanted to ask if I could represent myself."31 Judge Lum asked Kaestner
whether she had any experience representing herself. Kaestner informed the
28 Id. at 482. 28 Id. 27 Id. at 482-83. 28 Id. at 483(quoting State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991)). 29 DeWeese 117 Wn.2d at 378. 39 State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714(2010)(internal quotation marks omitted)(quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)). 31 RP (Jan. 30, 2017) at 18.
13 No. 77319-4-1/14
court that she had previously represented herself in a family law matter. When the
court asked how this would be different, Kaestner responded, "It's criminal versus
family law. . .[a]nd it's a different courtroom."32 Kaestner stated she wanted to
proceed pro se "[b]ecause I've been here for nine months and I've went through
four attorneys, and I really want to expedite my case."33
The court reminded Kaestner of the charges against her and the standard
sentencing range: "We're talking about some very serious allegations here and
potential that, you know, if you're convicted, you might be going to prison for five
years or longer."34 Kaestner indicated she understood the seriousness of the
crimes charged. The court asked Kaestner,"So how are you going to represent
yourself on these charges?"35 Kaestner replied, "I'm going to work with the
prosecutor and go to court and go to trial."36
The court also inquired into Kaestner's knowledge of criminal law and
procedure. When the court asked Kaestner about the rules of evidence, Kaestner
replied, "I'm going to probably need to get out of my cell and go to the library and
stuff, you know."37 When asked about how she would file a suppression motion,
Kaestner replied, "I would write it up and send it off. . . . I would sent it to whoever I
32 Id. at 19. 33 Id. 34 Id. at 23. 35 Id. 36 id.
37 Id. at 24.
14 No. 77319-4-1/15
need to send it to."38 Kaestner also stated, "[I]f it's too hard for me, I'll just get an
attorney."39 The court informed Kaestner, "[I]f you asked for an attorney to be
appointed for you, you're in over your head, you might not get one."4° Kaestner
acknowledged representing herself would be "a lot of work."41 The court stated,
"It's very clear to me you don't understand what you're getting into right now, and
that's why I'm going to have you sleep on this for an evening."42 The court
provided Kaestner a waiver of counsel form and instructed her to review the form.
The next hearing was on February 2, 2017, before Judge O'Donnell. The
court attempted to address Kaestner's motion to proceed pro se. Initially,
Kaestner refused to attend court. Due to speedy trial concerns, the court issued a
reasonable force order to secure Kaestner's attendance. The court asked
Kaestner whether she wanted more time to think about representing herself.
Kaestner did not respond. The court asked,"Are you thinking, or are you just
wanting to be silent?"43 Again, Kaestner did not respond. The court stated, "I'm
going to take your silence as that you're thinking about it and you're not sure."44
Kaestner did not respond, and she never raised the issue again.
38 Id. 39 Id. at 25. 4° Id. 41 Id. at 26. 42 Id. 43 RP (Feb. 2, 2017) at 36-37.
44 Id. at 37.
15 No. 77319-4-1/16
Kaestner argues the court violated her right to self-representation because
Judge Lum deferred the issue. But 10/en if a request is unequivocal, timely,
voluntary, knowing, and intelligent, a court may defer ruling if the court is
reasonably unprepared to immediately respond to the request."45 Given the
presumption against a defendant's waiver of his or her right to counsel, the court
reasonably deferred Kaestner's motion when it determined she had not fully
considered the consequences of proceeding pro se.
Kaestner's request was timely because it was made before the jury was
impaneled. But her request was equivocal. On January 30, 2017, before Judge
Lum, Kaestner indicated, TN it's too hard for me, I'll just get an attorney."46 And
on February 2, 2017, Kaestner again exhibited hesitation when she refused to
answer Judge O'Donnell's questions.
Even if Kaestner's request was timely and equivocal, her dialogue with
Judge Lum on January 31, 2017 and her silence on February 2, 2017 before
Judge O'Donnell evidences that her request was not knowing or intelligent.
Although Kaestner indicated she understood the seriousness of her charges and
the possible maximum penalty, Kaestner did not understand the technical
procedure rules governing her case. Kaestner did not have any history of
representing herself in a criminal matter. She was unaware of the rules of
evidence, and she did not know how to file a motion. And most problematic,
45 Madsen, 168 Wn.2d at 504. 46 RP (Jan. 30, 2017) at 25.
16 No. 77319-4-1/17
Kaestner incorrectly assumed she would be able to get an attorney if it was too
hard for her to represent herself.
We conclude the court did not abuse its discretion when it failed to grant
Kaestner's equivocal request to proceed pro se.
III. Awravating Factors
Kaestner makes various challenges to the aggravating factors found by the
jury.
The jury found the vehicular assault of Schwartz was aggravated under
RCW 9.94A.535(3)(y) because the injuries inflicted upon Schwartz substantially
exceeded the level of bodily harm necessary to prove vehicular assault. The jury
also found all of the charged felonies were aggravated under RCW 9.94A.535(3)(t)
because Kaestner committed the felonies shortly after she was released from
incarceration.
a. Impermissibly Vague
Kaestner contends sections (y) and (t) of RCW 9.94A.535(3) are
unconstitutionally vague.
"The due process clauses of the Fifth Amendment and the Fourteenth
Amendment to the United States Constitution require that statutes afford citizens a
fair warning of prohibited conduct."47 "A statute is unconstitutionally vague if (1) 'it
fails to define the offense with sufficient precision that a person of ordinary
47 State v. Murray, 190 Wn.2d 727, 736, 416 P.3d 1225 (2018).
17 No. 77319-4-1/18
intelligence can understand it,' or (2) 'it does not provide standards sufficiently
specific to prevent arbitrary enforcement.'"45
RCW 9.94A.535(3) contains "an exclusive list of factors that can support a
sentence above the standard range." Section (y) provides for an exceptional
sentence when "[t]he victim's injuries substantially exceed the level of bodily harm
necessary to satisfy the elements of the offense." "Substantial bodily harm" is an
element of vehicular assault.° RCW 9A.04.110(4)(b) defines "substantial bodily
harm" as "bodily injury which involves a temporary but substantial disfigurement,
or which causes a temporary but substantial loss or impairment of the function of
any bodily part or organ, or which causes a fracture of any bodily part."
In State v. Duncalf, the defendant raised a due process vagueness
challenge to section (y).5° In Duncalf, the victim's "injuries include[d] substantial
impairment of the function of his lower jaw and lip that is likely permanent."51 Our
Supreme Court determined:
A person of reasonable understanding would not have to guess that causing such permanent injuries—injuries significantly greater than those contemplated by the legislature in defining "substantial bodily harm"—might subject him to a sentence above the standard range.(52]
48 Id. (internal quotation marks omitted)(quoting State v. Duncalf, 177 Wn.2d 289, 296-97, 300 P.3d 352(2013)). 49 RCW 46.61.522. 59 177 Wn.2d 289, 300 P.3d 352(2013). 51Id. at 297. 52 Id.
18 No. 77319-4-1/19
Here, Kaestner distinguishes Duncalf and argues section (y) is
unconstitutionally vague as applied to her because Schwartz's injuries were not
permanent. But the language of RCW 9.94A.535(3)(y) does not require that the
victim's injuries are permanent. And Duncalf does not create such a bright line
rule.
Moreover, to show a victim's injuries substantially exceed the level of bodily
harm necessary to prove the offense, the State is not required to establish that the
victim's injuries reach the severity of the next category.53 To prove vehicular
assault, the State must prove the victim suffered "substantial bodily harm." The
next category is "great bodily harm."54
Schwartz had several fractured facial bones, a fractured clavicle, a
fractured pelvic bone, and a traumatic brain injury, among other things. Any one
of these injuries alone would satisfy a "substantial bodily injury." Schwartz's
multiple injuries substantially exceed a temporary but substantial disfigurement or
impairment of a bodily function. Schwartz's multiple fractures and brain injury
resulted in her staying in the hospital for a month and using a wheelchair for
several months. Schwartz had to engage in physical therapy, she was unable to
fully return to her previous activities, and she had to delay going away to college.
53 State v. Pappas, 176 Wn.2d 188, 192, 289 P.3d 634 (2012). 54 See RCW 9A.04.110(4)(c)("Great bodily harm" includes "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.").
19 No. 77319-4-1/20
A person of reasonable understanding would not have to guess that
causing such injuries might subject him or her to a sentence above the standard
range.55 The substantially exceeds aggravator from RCW 9.94A.535(3)(y) was not
void for vagueness as applied to Kaestner.
Kaestner also challenges RCW 9.94A.535(3)(t). Section (t) provides for an
exceptional sentence when "Nile defendant committed the current offense shortly
after being released from incarceration." Kaestner argues that "shortly after
release" is "vague, speculative, and subject to arbitrary enforcement."56 Although
"shortly after" is not defined in the statute,57 in State v. Murray, our Supreme Court
relied on the dictionary definitions of "short" and "shortly:55 In Murray, the
defendant "began reoffending 16 days after being released from King County
jail:59 Our Supreme Court applied the dictionary definitions and determined "A
person of reasonable understanding would not have to guess that reoffending 16
days after being incarcerated is within a short time and within the proscribed
conduct under the rapid recidivism aggravator:6°
55 See Duncalf, 177 Wn.2d at 297. 56 Appellant's Br. at 32. 57 Our Supreme Court stated, "Shortly' is defined as 'in a short time: PRESENTLY, SOON.' In turn, 'short' is defined as 'not extended in time: of brief duration: lasting a little while only."). Murray, 190 Wn.2d at 737 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2012, 2013 (2002)). 58 190 Wn.2d 727, 416 P.3d 1225 (2018). 59 Id. at 738. 60 id. (citing Duncalf, 177 Wn.2d at 297).
20 No. 77319-4-1/21
Here, Kaestner began reoffending three days after being released from jail.
She argues that "her crimes were factually distinguishable from her prior
convictions."61 This is irrelevant. Similarity of offenses is not required to find the
rapid recidivism aggravator. It is merely "'additional evidence' of the defendant's
disregard for the law.'"62 The defendant's disregard for the law is "the gravamen
of rapid recidivism.'"63
A person of reasonable understanding would not have to guess that
reoffending three days after being released from incarceration is within a short
time and within the proscribed conduct under the rapid recidivism aggravator."
The rapid recidivism aggravator from RCW 9.94A.535(3)(t) was not void for
vagueness as applied to Kaestner.
b. Sufficiency of the Evidence •
Kaestner also contends the State failed to present sufficient evidence to
support the aggravators.
As to the substantially exceeds aggravator, Kaestner again relies on
Duncalf and the lack of evidence that Schwartz's injuries were permanent. As
discussed above, RCW 9.94A.535(3)(y) does not require evidence that the victim's
injuries are permanent. Based on the evidence discussed in the vagueness
61 Appellant's Br. at 34. 62Murray, 190 Wn.2d at 738 (quoting State v. Combs, 156 Wn. App. 502, 506, 232 P.3d 1179 (2010)). 63 Id. (quoting Combs, 156 Wn. App. at 506). 64 See id. (citing Duncalf, 177 Wn.2d at 297).
21 No. 77319-4-1/22
section above, we conclude the State presented sufficient evidence to support the
jury's finding that Schwartz's injuries substantially exceeded substantial bodily
harm.
As to the rapid recidivism aggravator, Kaestner relies on State v. Combs to
argue the State presented insufficient evidence.65 In Combs, Division Three of this
court held, "[The rapid recidivism factor does not apply to an attempting to elude
offense committed six months after release from incarceration."66 The court
stated, "Six months is not a short period of time. We do not set an outer time limit
on what constitutes a short period of time. That period will vary with the
circumstances of the crime involved."67 The court went on to conclude,
This case, however, does not present those circumstances. Attempting to elude typically is an impulse crime brought about by circumstances. There was no planning or premeditation. Mr. Combs had been released from custody and was present in Asotin County for six months before this offense. This was not rapid recidivism.(681
Kaestner argues there is insufficient evidence to support the rapid
recidivism aggravator because there is no evidence that she planned this crime
and there is no factual connection to her previous convictions. Kaestner contends
the crimes are "an indication of mental health issues and not a desire to commit
new crimes."69 But as recognized in Combs, the "gravamen" of rapid recidivism is
65 156 Wn. App. 502, 232 P.3d 1179 (2010). 66 Id. at 505. 67 Id. at 506. 68 Id. at 507. 69 Appellant's Br. at 38.
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"disdain for the law."7° RCW 9.94A.535(t)"does not require a connection between
the offenses."71
Here, Kaestner committed the charged crimes three days after being
released from jail. We conclude the State presented sufficient evidence to support
the jury's finding that Kaestner committed the crime shortly after being released
IV. Substantial and Compelling Reasons Justifying Exceptional Sentence
Kaestner argues the court violated her Sixth Amendment right to a trial by
jury because the court made an impermissible factual finding. Specifically,
Kaestner contends a jury, rather than the court, must find there are substantial and
compelling reasons justifying an exceptional sentence.
Kaestner asks us to ignore our Supreme Court's decision in State v.
Suleiman72 and this court's decision in State v. Sage.73 Under Sage and
Suleiman, the question of "whether a court's stated reasons are sufficiently
substantial and compelling to support an exceptional sentence" is a question of
law.74 Kaestner contends this is a question of fact.
70 Combs, 156 Wn. App. at 506 (citing State v. Butler, 75 Wn. App. 47, 54, 876 P.2d 481 (1994)). 71 Id. 72 158 Wn.2d 280, 143 P.3d 795 (2006). 73 1 Wn. App. 2d 685, 407 P.3d 359 (2017). 74 Suleiman, 158 Wn.2d at 291, n.3; Sage, 1 Wn. App. 2d at 709.
23 No. 77319-4-1/24
Under RCW 9.94A.537, the jury is the exclusive finder of fact as to whether
the alleged aggravators have been proven beyond a reasonable doubt. Although
RCW 9.94A.537(6) provides the court may impose an exceptional sentence "if it
finds" the facts found by the jury "are substantial and compelling reasons justifying
an exceptional sentence," the trial court is not truly making an impermissible
factual determination.
Here, the jury found the State had proven the aggravators beyond a
reasonable doubt. At sentencing, the court declared that the jury had found the
aggravators beyond a reasonable doubt and that those findings present
"substantial and compelling reasons" for an exceptional sentence for the vehicular
assault of Schwartz.75
Consistent with Suleiman and Sage, we conclude the court did not violate
Kaestner's Sixth Amendment right to a jury. The court did not make an
impermissible factual finding.
V. Length of Exceptional Sentence
Kaestner contends her sentence for vehicular assault was clearly
excessive.
We review whether an exceptional sentence is clearly excessive for abuse
of discretion.76 "A sentence is not clearly excessive unless it is clearly
75 Clerk's Papers(CP) at 264. 76 State v. Souther, 100 Wn. App. 701, 721, 998 P.2d 350 (2000).
24 No. 77319-4-1/25
unreasonable, that is, it was imposed on untenable grounds or for untenable
reasons or is a sentence that no reasonable person would have imposed."77
Here, the court sentenced Kaestner to 100 months for the vehicular assault
of Schwartz. The standard sentence range for vehicular assault, given Kaestner's
offender score, was 43 to 57 months.78 The court concluded each of the
aggravators "standing alone" was "sufficient justification for the length of the
exceptional sentence imposed."79
Kaestner's argument focuses on her mental health issues. She argues
neither she nor the community will benefit from an exceptional sentence because
her "mental illness is unlikely to improve while incarcerated."80 But Kaestner fails
to provide any authority to support this argument.
As discussed in the aggravating factors section, given the severity of
Schwartz's injuries and the fact that Kaestner committed these crimes only three
days after being released from incarceration, the 100-month sentence for the
vehicular assault of Schwartz is not clearly excessive. Kaestner fails to show that
the trial court abused its discretion by imposing an exceptional sentence.
VI. DNA Fee
In her reply brief, Kaestner challenges the $100 DNA collection fee imposed
by the trial court.
77 Id. 78 RCW 9.94A.525. 78 CP at 264. 80 Appellant's Br. at 49.
25 No. 77319-4-1/26
At the time of Kaestner's sentencing in 2017, the collection fee was
mandatory.81 In 2018, the legislature amended the DNA collection statute. Under
the amendment, the trial court is required to impose the $100 DNA collection fee
"unless the state has previously collected the offender's DNA as a result of a prior
conviction."82 And in State v. Ramirez, our Supreme Court held this amendment
applies prospectively to cases pending on direct review.83 At oral argument, the
State conceded that Kaestner's DNA was previously collected prior to her
sentencing in this case. We accept the State's concession.
Therefore, we affirm Kaestner's conviction and sentence but remand for the
trial court to strike the $100 DNA fee.
WE CONCUR:
,S7lukcsse, o 81 Former RCW 43.43.7541 (2015). 82 RCW 43.43.7541; H.B. 1783,§ 18, 65th Leg., Reg. Sess.(Wash. 2018). 83 191 Wn. 2d 732, 747, 426 P.3d 714 (2018).