State v. Bolton

842 P.2d 989, 68 Wash. App. 211, 1992 Wash. App. LEXIS 507

• Court: Court of Appeals of Washington
• Decided: December 31, 1992
• Docket: 27539-9-I
• Status: Published

Opinions

Forrest, J.

Scott Bolton pleaded guilty to a charge of vehicular homicide as the result of a car accident on July 23, 1989. In calculating Bolton's offender score the court included a 1987 conviction for DWI and four juvenile felony convictions. The standard range sentence was 31 to 41 months. The State and the community corrections officer recommended a sentence of 41 months. The court imposed a 60-month exceptional sentence.

The court's written "Reasons for exceptional sentence" included:

The defendant has a history of driving while under the influence. The defendant has a long-term alcohol abuse problem. After being released on his personal recognizance on this charge, the defendant was arrested for causing another alcohol-related collision, for which DWI and hit and run charges are pending. Because of the total irreversibility of the defendant's drinking and driving habit, the court imposes an exceptional sentence upwards. See, State v. Smith, 58 Wn. App. 621, 627[, 794 P.2d 541 (1990)].

In reviewing an exceptional sentence this court must determine if the reasons cited by the lower court in support of the sentence are, as a matter of law, substantial and compelling.¹ We hold the court's findings of (1) Bolton's callous disregard for the effects of alcohol, and (2) pending charges are legally insufficient to justify the exceptional sentence, and we remand for sentencing.²

I

Callous Disregard and Future Dangerousness [2, 3] At the time the court imposed the sentence there was a group of cases approving an exceptional sentence in vehicular assault and homicide cases based on the defendant's callous disregard of the consequences of chemical abuse.³ If these cases were still good precedent they would support the sentence imposed. However, in State v. Barnes,⁴ the Supreme Court expressly held that future dangerousness was impermissible as an aggravating factor except in sexual offense cases. In so holding the court overruled State v. Smith,5 ⁶the one case expressly relied upon in this case by the trial court. Although Barnes did not expressly overrule the other cases relied upon by the State, its rationale renders them of little, if any, precedential authority.

In State v. Weaver, 46 Wn. App. 36, 43, 729 P.2d 64 (1986), review denied, 107 Wn.2d 1031 (1987), the court noted the defendant's history of alcohol abuse and disdain for treatment made the standard sentence inadequate to "protect the traveling public from Mr. Weaver's contempt for highway safety." In State v. Roberts⁶ the court approved consideration of this aggravating factor⁷ by relying on the reasoning of Weaver. More telling is the most recent opinion in State v. Thomas.8 The Thomas opinion follows the criteria for finding a valid consideration of future dangerousness and states the holding is "[b]ased on Davis". Thomas, at 409 (citing State v. Davis, 53 Wn. App. 306, 315, 766 P.2d 1120, review denied, 112 Wn.2d 1015 (1989)). Davis cited the defendant's history of alcoholism and unsuccessful treatment as support for a finding of future dangerousness.⁹

In all these cases it seems clear that "callous disregard" was used as an aggravating factor in that the defendant would continue substance abuse and commit similar crimes — in short be dangerous in the future. The dissent in Barnes clearly recognized the majority opinion rendered this line of cases no longer valid when it cited Davis as a nonsexual offense case in which future dangerousness was properly considered.¹⁰ Comparison of the rationale used in both circumstances demonstrates that a finding of "callous disregard" is a finding of "future dangerousness". In State v. Pryor,11 in which the Supreme Court established the 2-part test utilized in applying future dangerousness in sexual offense cases, the court recognized that a defendant's history of similar sexual offenses, combined with his lack of amenability to treatment, made him a threat to the community in that he would likely reoffend. The vehicular assault cases citing callous disregard for the effects of alcohol rely on this same reasoning. While the vehicular assault and homicide cases do not all expressly cite future dangerousness as one of the aggravating factors, it is clear, both from the Barnes opinion and the analysis of these cases, that callous disregard for the effects of alcohol may no longer be utilized to impose an exceptional sentence. Accordingly, the trial court's reliance on the history of alcoholism and driving was error.

We find support for our decision in the order filed by the Supreme Court in State v. Craft.12 The court granted the petition for review and ordered the case "remanded to Division I of the Court of Appeals to consider in light of the decision in State v. Barnes, 117 Wn.2d 701[, 818 P.2d 1088] (1991)."

In his petition for review, Craft acknowledged "a number of decisions of the Court of Appeals suggesting criteria for future dangerousness specifically applicable to vehicular assault and vehicular homicide cases . . .." Craft requested the Supreme Court to either clarify whether Pryor applies to those cases or, in the alternative, stay consideration of his petition for review pending resolution of Barnes.

The court’s order in Craft directing reconsideration in light of Barnes strongly suggests that Barnes precludes the imposition of an exceptional sentence on the grounds that a defendant is a threat to the community because of drinking and driving and disrespect for the law. Accordingly, we find Craft to be in support of our decision here.

The dissent urges that callous disregard and future dangerousness are separate and distinct aggravating factors. Future dangerousness is a judicial prediction of the likelihood the defendant will reoffend in the future, based on the defendant's amenability to treatment. Callous disregard is said to focus on the defendant's especially culpable state of mind at the time of the offense, evidenced by his awareness of a substance abuse problem and failure to take steps to cme the problem. Dissent, at 222-23.

A close reading of the cases cited by the dissent shows that callous disregard and future dangerousness are intertwined and reflect the same judicial concern for future public safety. Indeed, if it were not for the risk of future harm, it is hard to see why an alcoholic should be punished more severely. Since future dangerousness is now foreclosed, the dissent rests on the proposition that an alcoholic who has rejected or failed to profit from treatment is subject to an exceptional sentence where a nonalcoholic committing the same identical crime would not be. This is inconsistent with the Sentencing Reform Act of 1981 (SRA) philosophy of "just deserts", that punishment is determined by the crime and the criminal history, not the personal characteristic of the defendant.¹³

Indeed, treating alcoholics differently from nonalcoholics in the absence of legislative direction was explicitly rejected by the Supreme Court in State v. Allert, 117 Wn.2d 156, 167, 815 P.2d 752 (1991), which stated:

If the legislature intends that intoxication by an alcoholic be treated differently for sentencing purposes than intoxication by one not an alcoholic, then that decision is better suited to the legislative process . . ..

See also State v. Harper¹⁴ and State v. Pennington.¹⁵ We recognize that these cases were addressing alcoholism or substance abuse as a mitigating factor rather than as an aggravating factor. However, we believe that the same reasoning applies.

It is less than clear that an alcoholic who drinks too much and drives is more culpable than a nonalcoholic who drinks too much and drives. In some ways, indeed, the converse seems more plausible. The unstated premise seems to be that failure to profit from alcoholic treatment is voluntary and, therefore, culpable. No empirical evidence is cited and common experience suggests that "cures" of alcoholism are the exception rather than the rule. In any event, the culpable act is not drinking too much but, having done so, deciding to drive a car. At that point the culpability seems exactly equal.

In this connection, the trial court stated that Bolton had a long history of driving while under the influence. Bolton's one prior conviction for DWI was used in calculating the standard sentence and, accordingly, could not be used as an aggravating factor.¹⁶ Any uncharged crimes are not allowed to be used as aggravating factors.¹⁷ Insofar as the driving history is evidence of future dangerousness, it would be improper for the reasons already stated. It seems clear that the trial judge's basic conclusion was that Bolton, because of his history, represented a threat to the public and we hold that this is not a proper factor to be used as a basis for an exceptional sentence.

II

Pending Charges

The other basis for the trial court's holding was that "[ajfter being released on his personal recognizance on this charge, the defendant was arrested for causing another alcohol-related collision, for which DWI and hit and run charges are pending." Pending charges or unproved allegations may not be considered as aggravating factors supporting an exceptional sentence.¹⁸ Reliance on pending charges violates the constitutional presumption of innocence and is a clearly inappropriate factor to be considered.¹⁹

The State attempts to justify use of the pending charges arguing Bolton did not dispute the presentence report (PSI), and that the trial court should be allowed to consider the violation of Bolton's pretrial release. This reasoning is unpersuasive.

It is not clear that Bolton failed to object to the court considering the subsequent DWI. In fact, when the State brought the issue to the court's attention defense counsel expressed surprise, and began to object. The prosecutor then noticed that there had been no conviction and apologized to the court, impliedly recognizing that it was not a proper factor. In any case, even if Bolton admitted the contents of the PSI it is not the equivalent of a guilty plea or conviction and the court may not consider these facts as aggravating circumstances to impose an exceptional sentence.

The State cites no authority suggesting the court may consider violation of conditions of pretrial release in imposing an exceptional sentence.²⁰ Assuming there is a basis for this argument in some limited cases, the State fails to explain how this would be proper when the alleged violation involves a pending criminal charge. If Bolton should be acquitted or otherwise avoids conviction for the pending charges, it would obviously be improper to have used them against him in sentencing for this offense. On the other hand, if use of the charges is permitted, Bolton could be punished twice for the pending charges if he is ultimately convicted. If Bolton is convicted of the pending charges, the SRA provides appropriate penalties since the current offense will become part of his criminal history for sentencing purposes on those charges.

While Bolton's exceptional sentence was supported by case law at the time it was imposed, the factors relied on by the trial court are not permissible as the law now stands.

Reversed and remanded for sentencing within the standard range.

Scholfield, J., concurs.

1 State v. Stephens, 116 Wn.2d 238, 803 P.2d 319 (1991).

2 It is therefore unnecessary to address whether the record supports these findings.

3 State v. Thomas, 57 Wn. App. 403, 788 P.2d 24, review denied, 115 Wn.2d 1003 (1990); State v. Roberts, 55 Wn. App. 573, 779 P.2d 732, review denied, 113 Wn.2d 1026 (1989); State v. Davis, 53 Wn. App. 306, 315, 766 P.2d 1120, review denied, 112 Wn.2d 1015 (1989); State v. Weaver, 46 Wn. App. 35, 729 P.2d 64 (1986), review denied, 107 Wn.2d 1031 (1987).

4 117 Wn.2d 701, 818 P.2d 1088 (1991).

5 58 Wn. App. 621, 627, 794 P.2d 541 (1990).

6 55 Wn. App. 573, 779 P.2d 732, review denied, 113 Wn.2d 1026 (1989).

7 The facts in Roberts were significantly more egregious, particularly because the defendant intentionally committed the vehicular homicide. The court cited the defendant's especially culpable state of mind as an independent basis for the exceptional sentence. Roberts, at 585-86.

8 57 Wn. App. 403, 788 P.2d 24, review denied, 115 Wn.2d 1003 (1990).

9 Davis, 53 Wn. App. at 315. The court cited the analysis of Weaver, and In re George, 52 Wn. App. 135, 148, 758 P.2d 13 (1988), which is a sex offense case in which future dangerousness was considered.

10 Barnes, at 716 (Dolliver, J., dissenting).

11 115 Wn.2d 445, 799 P.2d 244 (1990).

12 Noted at 118 Wn.2d 1015 (1992).

13 See ROW 9.94A.340.

14 62 Wn. App. 69, 813 P.2d 593 (1991), review denied, 118 Wn.2d 1017 (1992).

15 112 Wn.2d 606, 772 P.2d 1009 (1989).

16 State v. Barnes, 117 Wn.2d 701, 706, 818 P.2d 1088 (1991). See also Dunivan, 57 Wn. App. at 337.

17 Barnes, at 707.

¹⁸

19 State v. Melton, 63 Wn. App. 63, 817 P.2d 413 (1991), review denied, 118 Wn.2d 1016 (1992).

20 See State v. Lord, 117 Wn.2d 829, 853, 822 P.2d 177 (1991) (appellate court may decline to review arguments unsupported by legal authority), cert, denied, _U.S._, 121 L. Ed. 2d 112, 113 S. Ct. 164 (1992).