State v. Stewart

890 P.2d 457, 125 Wash. 2d 893, 1995 Wash. LEXIS 134
CourtWashington Supreme Court
DecidedMarch 9, 1995
Docket61491-1
StatusPublished
Cited by22 cases

This text of 890 P.2d 457 (State v. Stewart) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stewart, 890 P.2d 457, 125 Wash. 2d 893, 1995 Wash. LEXIS 134 (Wash. 1995).

Opinions

Dolliver, J.

Darrel Wayne Stewart challenges the ruling of the Court of Appeals, Division One, affirming the trial court’s decision to impose an exceptional sentence upon him under the Sentencing Reform Act of 1981 (SRA) (RCW 9.94A) because he represents a future danger to society and because his presumptive sentence is clearly too lenient.

On May 3,1989, C.M., a female, agreed to give the Defendant, Darrel Wayne Stewart, a ride from downtown Seattle to Green Lake. C.M.’s 13-year-old niece, K.S., was in C.M.’s car at the time. During the drive, the Defendant repeatedly looked up K.S.’s dress or at her legs. When they arrived at Green Lake, C.M. requested the Defendant to exit her vehicle. He refused to do so. C.M. then drove to a nearby restaurant where she often saw police cars, and once again requested that the Defendant leave her car. He refused again, and pulled a gun from his jacket. C.M. offered him money and/or a ride to wherever he desired in exchange for release, but he declined. The Defendant then pointed his gun between C.M.’s legs, pulled them apart, and threatened to kill her. C.M. managed to wrest the gun from the Defendant, and both she and her niece escaped from the vehicle. The Defendant subsequently left the car and was arrested several blocks away.

He was charged with two counts of attempted first degree kidnapping with a deadly weapon, two counts of second degree assault, and one count of violating the Uniform Firearms Act (VUFA) (RCW 9.41). In June 1989, he pleaded guilty to all the charges and was sentenced to a total of 300 months. His sentence included 96 months for each assault count, the statutory máximums of 120 months for each kidnapping count and 60 months for the VUFA count. The 240-month sentence for the two kidnapping counts and the 192-month sentence for the two assault counts were to run concurrently. The 300-month sentence exceeded that permitted by the standard sentencing range. The trial court asserted that this exceptional sentence was justified because (1) the [896]*896Defendant represented a future danger to society, and (2) the unenhanced presumptive sentence was clearly too lenient.

The Defendant appealed his exceptional sentence to Division One of the Court of Appeals. In an unpublished opinion, that court reversed the trial court and remanded for resen-tencing because it concluded that the record neither (1) contained evidence to support a finding that the Defendant was not amenable to treatment, which is necessary to find future dangerousness, nor (2) disclosed the basis for the trial court’s finding that the sentence was clearly too lenient. State v. Stewart, noted at 63 Wn. App. 1025 (1991).

After a resentencing hearing in 1992, the trial court imposed the same exceptional sentence as it had at the first sentencing proceeding. Again, the court justified the sentence by asserting that (1) the Defendant represented a future danger to society, and (2) the standard range would result in a sentence which would be clearly too lenient. However, this time the trial court offered reasons for its conclusions that the Defendant was not amenable to treatment and that an unenhanced sentence would be clearly too lenient. The court based its finding of lack of amenability to treatment upon, inter alia, a classification study of the Defendant conducted by the Nebraska Penal and Correctional Complex in 1973, and a summary and rehabilitation plan prepared by the Colorado Department of Corrections in 1976. The court’s finding that the presumptive sentence was clearly too lenient was based upon the details of the Defendant’s 1976 conviction in Colorado for sexual assault of a child, kidnapping, attempted rape, deviant sexual intercourse by force, theft, and burglary.

As an additional justification for enhancing the Defendant’s sentence, the trial court noted that the Defendant’s crime was sexually motivated. In 1990, prior to the Defendant’s resentencing hearing, the Legislature amended the SRA, adding "sexual motivation” to the list of possible circumstances which, if present, enable a court to enhance an [897]*897offender’s sentence. The trial court concluded that the Defendant’s crime was sexually motivated after finding

that the defendant’s intent in committing the attempted kidnap and armed assault on [C.M.] and [K.S.] was to effect a rape or to take indecent liberties with these women.

Clerk’s Papers, at 201.

Once again, the Defendant appealed his exceptional sentence to Division One of the Court of Appeals. That court ruled that the trial court erred in relying upon the "sexual motivation” aggravating factor enumerated in RCW 9.94A.390(2)(e) because the statute was enacted after the Defendant’s initial sentencing in 1989. However, the court nevertheless affirmed the enhanced sentence because it found it to be justified by the nonstatutory "future dangerousness” aggravating factor and the "clearly too lenient” aggravating factor of RCW 9.94A.390(2)(g). Because he believes that neither of these aggravating factors is applicable in the present case, the Defendant petitioned this court for review of this ruling.

RCW 9.94A.390(2) provides in relevant part:

The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. . . .
(2) Aggravating Circumstances
(g) The operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

RCW 9.94A.390(2)(g).

It is proper to rely on this aggravating factor when there is some extraordinarily serious harm or culpability resulting from multiple offenses which would not otherwise be accounted for in determining the presumptive sentencing range. . . .

State v. Fisher, 108 Wn.2d 419, 428, 739 P.2d 683 (1987). This is the case whenever the defendant has committed a number of crimes and his high offender score does not result in any greater penalty than if he had committed only one.

[898]*898State v. Smith, 123 Wn.2d 51, 56, 864 P.2d 1371 (1993); State v. Stephens, 116 Wn.2d 238, 244-45, 803 P.2d 319 (1991). Allowing a court to impose an exceptional sentence under these circumstances prevents an offender from avoiding punishment for his additional crimes.

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State v. Stewart
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Bluebook (online)
890 P.2d 457, 125 Wash. 2d 893, 1995 Wash. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-wash-1995.