FILED
MAY 23, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 3·0059-5-111 ) Respondent, ) ) v. ) ) RONALD PAYNE PROMINSKI, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Ronald Payne Prominski appeals his sentences for two counts of
vehicular homicide and one count of reckless endangerment. He contends the trial
court denied him equal protection and due process, and abused its discretion in
sentencing him more harshly than his codefendant, Jonas Jackson Keys IV. We affirm.
FACTS
In February 2010, Mr. Prominski crashed his car, killing two passengers and
injuring a third passenger. Mr. Prominski had attempted to pass Mr. Keys's car at a
high speed in a no-passing zone when he lost control, slid across the road, hit a
guardrail, spun across a campground entrance, and struck a tree off the road. Mr.
Prominski stated he and Mr. Keys had been playing a game of "cat and mouse." Report
of Proceedings (RP) (June 8,2011) at 171. No. 30059-5-111 State v. Prominski
The State charged Mr. Prominski and Mr. Keys each with two counts of vehicular
homicide and two counts of reckless endangerment. Mr. Prominski stood a jury trial
and Mr. Keys stood a bench trial. The jury convicted Mr. Prominski of both vehicular
homicide counts and one reckless endangerment count. The trial court convicted Mr.
Keys as charged.
At sentencing, the court noted the codefendants' cases were "almost identical,"
presenting "two precise, identical sets of facts." RP (June 20, 2011) at 20. 22. Even so,
the court sentenced Mr. Prominski to 34 months' imprisonment for the vehicular
homicides, consecutive with 12 months' jail confinement for the reckless endangerment,
while sentencing Mr. Keys to 26 months' imprisonment for the vehicular homicides,
concurrent with six months' jail confinement for the reckless endangerments. The court
explained to Mr. Keys the reasons for his sentences,
[Y]ou were not the driver of the car in which the two youths were killed. And as the factfinder ... in this case, also, I'm allowed, and was allowed, to make those kinds of judgments as to what kind of driving you exhibited and what kind of driving [Mr. Prominski] ... exhibited. And in making those comparisons, I can establish a common-sense sentencing scheme based on that. You were not the driver that - that first of all attempted the bad pass, and then you're not the driver that made the bad pass just before [the campground] on a curve in the middle of the night, wet roads, at high speeds, and a pass that was illegal. You weren't that driver.
RP (State v. Keys, No. 29768-3-111, Mar. 7, 2011) at 536-37. The court explained to Mr.
Prominski the reasons for his sentences,
[Mr. Keys] was not in the car in which the two young men died. He was, as [his attorney] argued very persuasively, just there. He may have been speeding, but he was not doing anything other than that that was illegal on its face ....
2 No. 30059-5-111 State v. Prominski
Mr. Prominski was the driver of the vehicle in which the two young men died and it was ultimately his determination that he could make that pass and that it was acceptable or safe or whatever was going through his mind, which ended in the tragedy.
RP (June 20, 2011) at 22-23. Mr. Prominski appealed.
ANALYSIS
The issue is whether the trial court violated equal protection or due process
principles in its disparate sentencing of Mr. Prominski compared to Mr. Keys. We
review alleged constitutional violations de novo. State v. Siers, 174 Wn.2d 269, 273-74,
274 P.3d 358 (2012).
First, Mr. Prominski contends the court denied him equal protection because he
and Mr. Keys were similarly situated and no rational basis supports their disparate
sentences. The federal equal protection clause provides, "No state shall ... deny to
any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend.
XIV, § 1; see also State v. Smith, 117 Wn.2d 263, 281,814 P.2d 652 (1991)
(interpreting CONST. art. I, §12's privileges and immunities clause the same as the
federal equal protection clause because they provide "substantially identical"
guarantees). A trial court denies equal protection if it administers a valid law '''in a
manner that unjustly discriminates between similarly situated persons.'" State v.
Handley, 115 Wn.2d 275, 289,796 P.2d 1266 (1990) (quoting State v. Chelan County
Sheriff's Oep't, 110 Wn.2d 806, 811,756 P.2d 736 (1988)); see Yick Wo v. Hopkins,
118 U.S. 356, 373-74,6 S. Ct. 1064,30 L. Ed. 220 (1886).
No. 30059-5-111 State v. Prominski
Imposing disparate sentences among codefendants denies equal protection if the
codefendants are similarly situated and no rational basis 1 supports their disparate
sentences. Handley, 115 Wn.2d at 290. Codefendants are similarly situated if they
shared "near identical participation in the same set of criminal circumstances." Id. A
rational basis supports disparate sentences if the classification is rationally related to a
legitimate state interest, such as punishing codefendants based on "relative culpability."
Id. at 292 (citing State v. Clinton, 48 Wn. App. 671, 680, 741 P.2d 52 (1987); People v.
Centanni, 164 III. App. 3d 480,493, 115 III. Dec. 521,517 N.E.2d 1207 (1987»; see
State v. Osman, 157 Wn.2d 474,486,139 P.3d 334 (2006).
Here, the trial court noted while Mr. Prominski drove the vehicle in which the
victims died, and while he alone decided to fatally pass the other vehicle, Mr. Keys was
"just there." RP (June 20,2011) at 22. Thus, in the trial court's rational view, Mr.
Prominski had greater participation and culpability in the collision than did Mr. Keys.
Moreover, their different roles justify different punishments. The different punishment
for Mr. Prominski is rationally related to the legitimate state interest of punishing
codefendants based on relative culpability. Therefore, they were not similarly situated
and a rational basis supports their disparate sentences. It follows that the trial court did
not deny Mr. Prominski equal protection.
Second, Mr. Prominski contends the trial court denied him due process because
sentencing him to more confinement than Mr. Keys "yields the appearance of
1The strict and intermediate levels of judicial scrutiny do not apply here because Mr. Prominski does not argue he is a member of a suspect or sernisuspect class, or that
unfairness." Appellant's Opening Br. at 10. The federal due process clause applicable
here provides, "No state shall ... deprive any person of life, liberty, or property, without
due process of law." U.S. CONST. amend. XIV, § 1; see also State v. Herzog, 112
Wn.2d 419,426,771 P.2d 739 (1989) (interpreting CONST.
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FILED
MAY 23, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 3·0059-5-111 ) Respondent, ) ) v. ) ) RONALD PAYNE PROMINSKI, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Ronald Payne Prominski appeals his sentences for two counts of
vehicular homicide and one count of reckless endangerment. He contends the trial
court denied him equal protection and due process, and abused its discretion in
sentencing him more harshly than his codefendant, Jonas Jackson Keys IV. We affirm.
FACTS
In February 2010, Mr. Prominski crashed his car, killing two passengers and
injuring a third passenger. Mr. Prominski had attempted to pass Mr. Keys's car at a
high speed in a no-passing zone when he lost control, slid across the road, hit a
guardrail, spun across a campground entrance, and struck a tree off the road. Mr.
Prominski stated he and Mr. Keys had been playing a game of "cat and mouse." Report
of Proceedings (RP) (June 8,2011) at 171. No. 30059-5-111 State v. Prominski
The State charged Mr. Prominski and Mr. Keys each with two counts of vehicular
homicide and two counts of reckless endangerment. Mr. Prominski stood a jury trial
and Mr. Keys stood a bench trial. The jury convicted Mr. Prominski of both vehicular
homicide counts and one reckless endangerment count. The trial court convicted Mr.
Keys as charged.
At sentencing, the court noted the codefendants' cases were "almost identical,"
presenting "two precise, identical sets of facts." RP (June 20, 2011) at 20. 22. Even so,
the court sentenced Mr. Prominski to 34 months' imprisonment for the vehicular
homicides, consecutive with 12 months' jail confinement for the reckless endangerment,
while sentencing Mr. Keys to 26 months' imprisonment for the vehicular homicides,
concurrent with six months' jail confinement for the reckless endangerments. The court
explained to Mr. Keys the reasons for his sentences,
[Y]ou were not the driver of the car in which the two youths were killed. And as the factfinder ... in this case, also, I'm allowed, and was allowed, to make those kinds of judgments as to what kind of driving you exhibited and what kind of driving [Mr. Prominski] ... exhibited. And in making those comparisons, I can establish a common-sense sentencing scheme based on that. You were not the driver that - that first of all attempted the bad pass, and then you're not the driver that made the bad pass just before [the campground] on a curve in the middle of the night, wet roads, at high speeds, and a pass that was illegal. You weren't that driver.
RP (State v. Keys, No. 29768-3-111, Mar. 7, 2011) at 536-37. The court explained to Mr.
Prominski the reasons for his sentences,
[Mr. Keys] was not in the car in which the two young men died. He was, as [his attorney] argued very persuasively, just there. He may have been speeding, but he was not doing anything other than that that was illegal on its face ....
2 No. 30059-5-111 State v. Prominski
Mr. Prominski was the driver of the vehicle in which the two young men died and it was ultimately his determination that he could make that pass and that it was acceptable or safe or whatever was going through his mind, which ended in the tragedy.
RP (June 20, 2011) at 22-23. Mr. Prominski appealed.
ANALYSIS
The issue is whether the trial court violated equal protection or due process
principles in its disparate sentencing of Mr. Prominski compared to Mr. Keys. We
review alleged constitutional violations de novo. State v. Siers, 174 Wn.2d 269, 273-74,
274 P.3d 358 (2012).
First, Mr. Prominski contends the court denied him equal protection because he
and Mr. Keys were similarly situated and no rational basis supports their disparate
sentences. The federal equal protection clause provides, "No state shall ... deny to
any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend.
XIV, § 1; see also State v. Smith, 117 Wn.2d 263, 281,814 P.2d 652 (1991)
(interpreting CONST. art. I, §12's privileges and immunities clause the same as the
federal equal protection clause because they provide "substantially identical"
guarantees). A trial court denies equal protection if it administers a valid law '''in a
manner that unjustly discriminates between similarly situated persons.'" State v.
Handley, 115 Wn.2d 275, 289,796 P.2d 1266 (1990) (quoting State v. Chelan County
Sheriff's Oep't, 110 Wn.2d 806, 811,756 P.2d 736 (1988)); see Yick Wo v. Hopkins,
118 U.S. 356, 373-74,6 S. Ct. 1064,30 L. Ed. 220 (1886).
No. 30059-5-111 State v. Prominski
Imposing disparate sentences among codefendants denies equal protection if the
codefendants are similarly situated and no rational basis 1 supports their disparate
sentences. Handley, 115 Wn.2d at 290. Codefendants are similarly situated if they
shared "near identical participation in the same set of criminal circumstances." Id. A
rational basis supports disparate sentences if the classification is rationally related to a
legitimate state interest, such as punishing codefendants based on "relative culpability."
Id. at 292 (citing State v. Clinton, 48 Wn. App. 671, 680, 741 P.2d 52 (1987); People v.
Centanni, 164 III. App. 3d 480,493, 115 III. Dec. 521,517 N.E.2d 1207 (1987»; see
State v. Osman, 157 Wn.2d 474,486,139 P.3d 334 (2006).
Here, the trial court noted while Mr. Prominski drove the vehicle in which the
victims died, and while he alone decided to fatally pass the other vehicle, Mr. Keys was
"just there." RP (June 20,2011) at 22. Thus, in the trial court's rational view, Mr.
Prominski had greater participation and culpability in the collision than did Mr. Keys.
Moreover, their different roles justify different punishments. The different punishment
for Mr. Prominski is rationally related to the legitimate state interest of punishing
codefendants based on relative culpability. Therefore, they were not similarly situated
and a rational basis supports their disparate sentences. It follows that the trial court did
not deny Mr. Prominski equal protection.
Second, Mr. Prominski contends the trial court denied him due process because
sentencing him to more confinement than Mr. Keys "yields the appearance of
1The strict and intermediate levels of judicial scrutiny do not apply here because Mr. Prominski does not argue he is a member of a suspect or sernisuspect class, or that
unfairness." Appellant's Opening Br. at 10. The federal due process clause applicable
here provides, "No state shall ... deprive any person of life, liberty, or property, without
due process of law." U.S. CONST. amend. XIV, § 1; see also State v. Herzog, 112
Wn.2d 419,426,771 P.2d 739 (1989) (interpreting CONST. art I, § 3's due process
clause the same as the federal due process clause absent any argument the state
provision secured greater sentencing protection than the federal provision). A trial court
denies due process if it imposes a sentence "so arbitrary or unfair" as to constitute an
unlawful deprivation. Handley, 115 Wn.2d at 290 n.4; see Bearden v. Georgia, 461
U.S. 660, 666 n.8, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
Because Mr. Prominski and Mr. Keys were not similarly situated, and because a
rational basis supports their disparate sentences, Mr. Prominski's sentence was
reasonable and fair. Therefore, the trial court did not deny Mr. Prominski due process.
To the extent Mr. Prominski separately challenges his sentencing hearing under the
appearance of fairness doctrine,2 we reject his challenge because he presents no
evidence the trial judge held actual or potential bias. See State v. Post, 118 Wn.2d 596,
619 & n.8, 826 P.2d 172, 837 P.2d 599 (1992).
Third, Mr. Prominski contends the trial court abused its discretion because his
harsher sentence was manifestly unreasonable. The Sentencing Reform Act of 1981
(SRA), chapter 9.94A RCW, applies solely to "the sentencing of felony offenders."
state action threatens his fundamental or important rights. See State v. Osman, 157 Wn.2d 474, 484,139 P.3d 334 (2006). 2 "Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent, disinterested observer would conclude that the parties received a
5 No. 30059-5-111
State v. Prominski
RCW 9.94A.010; see State v. Bowen, 51 Wn. App. 42, 46, 751 P.2d 1226 (1988).
Vehicular homicide is a class A felony but reckless endangerment is a gross
misdemeanor. RCW 9A.36.050(2); RCW 46.61.520(2). Therefore, we review Mr.
Prominski's vehicular homicide sentences under the SRA and reckless endangerment
sentences under non-SRA sentencing authority.
Where a trial court imposes an SRA sentence within the standard sentence
range, we may not review the sentence's length because, as a matter of law, the trial
court did not abuse its discretion. RCW 9.94A.585(1); State v. Ammons, 105 Wn.2d
175, 182-83,713 P.2d 719, 718 P.2d 796 (1986). But we may review a trial court's
SRA sentencing procedures if they do not comply with constitutional or statutory
requirements. State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993); Herzog, 112
Wn.2d at 423. For Mr. Prominski's vehicular homicide convictions, the trial court
imposed imprisonment within the 26- to 34-month standard sentence range. RCW
9.94A.510; RCW 9A.20.021(1)(a). Therefore, we may review solely whether the trial
court's vehicular homicide sentencing procedures complied with constitutional or
statutory requirements as completed above.
We review a non-SRA sentence for abuse of discretion. State v. Smith, 93
Wn.2d 329, 353, 610 P.2d 869 (1980). A trial court abuses its non-SRA sentencing
discretion if its decision is '''manifestly unreasonable,'" based on '''untenable grounds,'"
fair, impartial and neutral hearing." State v. Gamble, 168 Wn.2d 161, 187,225 P.3d 973 (2010) (citing State v. Bilal, 77 Wn. App. 720,722,893 P.2d 674 (1995».
6 No. 30059-5-111 State v. Prominski
or made for "'untenable reasons.",3 State v. Blight, 89 Wn.2d 38,40-41,569 P.2d 1129
(1977) (quoting State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971».
For Mr. Prominski's reckless endangerment conviction, the trial court imposed jail
confinement within the 12 month maximum sentence and consecutive with his vehicular
homicide sentences. RCW 9.92.080(2)-(3); former RCW 9A.20.021 (2) (2003). Mr.
Prominski does not explain why his reckless endangerment sentence was manifestly
unreasonable. Given this record, we conclude the trial court did not abuse its discretion
and did not err in sentencing Mr. Prominski to more confinement than Mr. Keys.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
'Korsmo, C.J. 0'- ~/;}-' Siddoway, J.
3 A decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. A decision is manifestly unreasonable if the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take, and arrives at a decision outside the range of acceptable choices. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (citations omitted) (internal quotation marks omitted).