State of Wash. v. STUBBS

• Decision Date: 07 October 2010
• Docket Number: No. 81650-6.,81650-6.
• Citation: 240 P.3d 143
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Troy Dean STUBBS, Petitioner.

240 P.3d 143

STATE of Washington, Respondent, v. Troy Dean STUBBS, Petitioner.

No. 81650-6.

Supreme Court of Washington,En Banc.

Argued March 9, 2010.

Decided Oct. 7, 2010.

David N. Gasch, Gasch Law Office, Spokane, WA, Susan F. Wilk, Washington Appellate Project, Seattle, WA, for Petitioner.

Antonio Demetrious Koures, Pend Oreille County Prosecutor's Office, Newport, WA, for Respondent.

David Allen, Allen Hansen & Maybrown, P.S., Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.

Pamela Beth Loginsky, WAPA, Olympia, WA, Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, amicuscounsel for Washington Association of Prosecuting Attorneys.

ALEXANDER, J.

¶ 1 We granted Troy Dean Stubbs's petition to review a decision of the Court of Appeals in which that court affirmed an exceptional sentence that the trial court imposed on Stubbs for first degree assault. In sentencing Stubbs, the trial court relied on a jury finding that the “victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense.” Clerk's Papers (CP) at 90. One of the elements, as set forth in the information charging Stubbs with first degree assault, was that Stubbs inflicted “great bodily harm” in the course of the assault, that degree of harm being defined as “bodily injury which creates a probability of death, ... significant serious permanent disfigurement, or ... a significant permanent loss or impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c). Stubbs maintains that the exceptional sentence was improper, arguing that no injury short of death can substantially exceed the level of bodily harm necessary to satisfy the element of “great bodily harm.” We agree with Stubbs and hold that the trial court erred by imposing an exceptional sentence. Accordingly, we reverse the Court of Appeals and remand for resentencing within the standard range.

I. Facts

¶ 2 After consuming alcohol and ingesting methamphetamine at a party, Troy Stubbs went to Ryan Goodwin's motor home. Goodwin told Stubbs that he did not want him there because he was afraid that Stubbs would “steal something.” Report of Proceedings (RP) (July 24-28, 2006) at 134. Stubbs responded by saying that the “biggest spider I ever seen” was behind Goodwin. Id. This remark caused Goodwin to turn, whereupon Stubbs stabbed him in the back of the neck with a knife. The knife blade lodged between two vertebrae and severed Goodwin's spinal cord. As a consequence, a propane torch that Goodwin had been holding fell out of his hand and started a fire. Stubbs then ran off, ignoring Goodwin's pleas for help. Although Goodwin was unable to move his legs, he managed to smother the fire and make a telephone call for help. The stabbing left Goodwin permanently paralyzed and confined to a wheelchair.

II. Procedural History

¶ 3 The State charged Stubbs in Pend Oreille County Superior Court with assault in the first degree pursuant to RCW 9A.36.011(1)(a) and/or (c). ¹ In the information, the State indicated that it was seeking an enhanced sentence on the ground that, at the time of the commission of the offense, Stubbs was armed with a deadly weapon other than a firearm. The State later alleged an aggravating circumstance, to wit: “ ‘the victim[’]s injuries substantially exceed the level of bodily harm necessary to satisfy the elements of [the offense]' ” pursuant to RCW 9.94A.535(3)(y). ² CP at 12. Stubbs moved to “vacate” the aggravating factor on the ground that RCW 9.94A.535(3)(y) had no application to first degree assault as charged. The trial court denied his motion, concluding that it was a “fairly straightforward jury question and I don't have any business takingit away from the jury on a ... pretrial motion.” RP (June 26, 2006) at 22.

¶ 4 At trial, Dr. Vivian Moise, a specialist in spinal cord injuries, testified that Goodwin suffers from a 50 percent loss of strength in his left arm, a two-thirds loss of strength in his right hand, and the total paralysis of both legs. She said that although Goodwin's diaphragm works, the muscles of his rib cage that help with breathing are paralyzed, increasing his risk of pneumonia. She added that his bladder and intestines are also paralyzed, with the result that Goodwin must manually induce bowel movements. Dr. Moise explained that paralysis causes additional medical problems, including a higher risk of stroke, seizure, death, as well as a shortened life expectancy.

¶ 5 The jury found Stubbs guilty of first degree assault and specifically determined that he was armed with a deadly weapon during the commission of the offense. In addition, it found by special interrogatory that the assault inflicted great bodily harm, and that “the victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense.” CP at 90. Based on the jury's verdict and findings, the trial court imposed an exceptional sentence of 480 months, indicating that Goodwin's condition was a “fate worse than death.” RP (Sept. 7, 2006) at 55. The sentence was twice the maximum standard range sentence and significantly greater than the standard range for second degree murder. ³ Stubbs appealed.

¶ 6 The Court of Appeals, Division Three affirmed the exceptional sentence, concluding that

[g]iven the evidence, the jury could find Mr. Goodwin did not present as a typical fixed and stable victim of first degree assault because Mr. Goodwin remains in jeopardy of death in a manner exceeding great bodily harm and has been forced to live in a suspended, tortured state between life and death during his shortened life expectancy.

State v. Stubbs, 144 Wash.App. 644, 650, 184 P.3d 660 (2008), review granted in part, 165 Wash.2d 1035, 203 P.3d 380 (2009). Judge John Schultheis dissented on the ground that Goodwin's injuries were encompassed within the definition of “great bodily harm.”

¶ 7 Stubbs petitioned this court for review, contending, as he did at the Court of Appeals, that the trial court erred by imposing an exceptional sentence and that RCW 9.94A.535(3)(y) is unconstitutionally vague. We granted his petition. The Washington Association of Criminal Defense Lawyers and the Washington Association of Prosecuting Attorneys (WAPA) each filed a brief as amicus curiae.

III. Standard of Review

¶ 8 RCW 9.94A.535 provides that an exceptional sentence is subject to review only as set forth in RCW 9.94A.585(4). That statute provides as follows:

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

RCW 9.94A.585(4) (emphasis added). As we noted in State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117 (1986), subsection (a) of this statute has both a factual and a legal component. ⁴ After the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and our legislature's amendment of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, a jury must find any facts supporting aggravating circumstances beyond a reasonable doubt and by special interrogatory. ⁵RCW 9.94A.537(3). A jury's finding by special interrogatory is reviewed under the sufficiency of the evidence standard. See Winbun v. Moore, 143 Wash.2d 206, 18 P.3d 576 (2001). Stubbs has not, however, challenged the sufficiency of the evidence that supported the jury's finding that Goodwin's injuries “substantially exceed the level of bodily harm necessary to satisfy the elements” of first degree assault. CP at 90. Rather, he contends that the finding does not “justify a sentence outside the standard sentence range for that offense.” RCW 9.94A.585(4)(a). We review the legal justification for a sentence de novo. State v. Ferguson, 142 Wash.2d 631, 646, 15 P.3d 1271 (2001).

IV. Analysis

¶ 9 As he did at the Court of Appeals, Stubbs challenges the aggravating factor that the trial court concluded was support for the exceptional sentence it imposed. As we have observed, a trial court may impose a sentence above the standard range if the jury finds that the “victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense,” and the sentencing court is satisfied that this is a “substantial and compelling reason[ ]” for an exceptional sentence. RCW 9.94A.535. As we have also noted, “great bodily harm,” which is an element of the offense charged, ⁶ is defined as “bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or ... a significant permanent loss or impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(c). Here, because the jury made the requisite finding, the issue is whether the trial court committed an error of law in imposing an exceptional sentence based on the severity of Goodwin's injuries.

¶ 10 Our opinions have established that “particularly severe injuries may be used to justify an exceptional sentence,” but only if they are “greater than that contemplated by the Legislature in setting the standard range.” State v. Cardenas, 129 Wash.2d 1, 6, 914 P.2d 57 (1996). Thus, in Nordby, we held that the severity of the victim's injuries did not justify an exceptional sentence for vehicular assault because “this factor was already considered in setting the presumptive sentence range” for that offense. Nordby, 106 Wash.2d at 519, 723 P.2d 1117. At the time, vehicular assault required the infliction of “serious bodily injury,” defined as “ ‘bodily injury which involves a substantial risk of death, serious permanent disfigurement, or protracted loss...