State v. Freitag

• Decision Date: 22 June 1995
• Docket Number: No. 62004-1,62004-1
• Citation: 127 Wn.2d 141,896 P.2d 1254
• Parties: The STATE of Washington, Petitioner, v. Angela Deborah FREITAG, Respondent.
• Court: Washington Supreme Court

Page 141

127 Wn.2d 141

896 P.2d 1254

The STATE of Washington, Petitioner, v. Angela Deborah FREITAG, Respondent.

No. 62004-1.

Supreme Court of Washington En Banc.

June 22, 1995.

As Amended Nov. 14, 1995.

Norm Maleng, King County Prosecutor, Donna L. Wise, Sr. Appellate Atty., Seattle, for petitioner.

Carney, Badley, Smith & Spellman, P.S., James E. Lobsenz, Barbara J. Van Ess, Seattle, for respondent.

PER CURIAM.

Following Angela Freitag's plea of guilty to a charge of vehicular assault while driving under the influence of alcohol, the trial court imposed an exceptional sentence below the standard sentencing range. The trial court attributed the sentence to Freitag's lack of criminal history, her concern for people beyond that normally shown by others, and a desire to utilize community service in lieu of jail overcrowding. The Court of Appeals affirmed and held that Freitag's "complete lack of any police contacts whatsoever" justified a departure downward from the standard sentencing range. State v. Freitag, 74 Wash.App. 133, 140-41, 873 P.2d 548 (1994).

We granted the State's petition for review and considered the matter without oral argument pursuant to RAP 11.6. We reverse the Court of Appeals, and remand to the trial court for resentencing.

The facts are undisputed. On August 14, 1991, at approximately 3 a.m., Freitag drove through a red light and broadsided a car driven by Quoc Cuong Ly. As a result of the collision, Ly suffered a broken neck. Freitag, who was not injured, refused to take any sobriety tests at the scene. She was placed under arrest and a blood sample was taken from her at Swedish Hospital, indicating a blood alcohol content of .16.

Since Freitag had no criminal history, the standard sentencing range was 3 to 9 months of confinement. Nevertheless, the trial court imposed an exceptional sentence converting the 90-day minimum confinement period to 712 hours of community service. ¹ To impose an exceptional sentence for vehicular assault, the Legislature requires "substantial and compelling reasons". ² RCW 9.94A.120(2). Review of the trial court's justifications for departing from the standard sentencing range is de novo as a matter of law. State v. Johnson, 124 Wash.2d 57, 65-66, 873 P.2d 514 (1994). We examine each of the trial court's reasons for imposing an exceptional sentence in turn.

Freitag never had any contact with the police prior to the charge of vehicular assault. The Court of Appeals, in part, justified the trial court's departure from the standard sentencing range on this basis. Nevertheless, we consistently have held that lack of criminal history is an insufficient ground for sentencing below the standard range since the Legislature specifically considered criminal history when establishing standard sentencing ranges. "Because criminal history is one of the components used to compute the presumptive range for an offense, it may not be used as a mitigating factor." State v. Rogers, 112 Wash.2d 180, 183, 770 P.2d 180 (1989) (citing State v. Pascal, 108 Wash.2d 125, 137, 736 P.2d 1065 (1987)).

While we recognize the harshness of a rule that precludes the trial court from considering a defendant's altruistic past during the sentencing phase, the Sentencing Reform Act of 1981 requires this result. See RCW 9.94A.340. Although sentencing within the standard range may at times appear unnecessary or even unjustified, it is the function of the judiciary to impose sentences consistent with legislative enactments. As we have recognized previously,

[d]etermination of crimes and punishment has traditionally been a legislative prerogative, subject to only very limited review in the courts. A belief on the part of the judiciary that sentencing possibilities are inadequate goes to the wisdom of the dispositional standards and cannot be enough to overcome the legislatively prescribed range of punishment.

(Citations omitted.) State v. Bryan, 93 Wash.2d 177, 181, 606 P.2d 1228 (1980). The trial court's reliance on Freitag's concern for others when determining her sentence was an abuse of discretion. See RCW 9.94A.340.

Finally, the trial court's desire for Freitag to improve herself through community service while limiting prison overcrowding does not justify departure from the standard sentencing range, since the Legislature already considered these purposes when establishing the presumptive sentencing ranges. RCW 9.94A.010(5), (6). See Pascal, at 137, 736 P.2d 1065. While the trial court may feel frustrated in having to impose a sentence within the sentencing guidelines, the Legislature has exercised its prerogative. State v. Bryan, supra.

Freitag argues that resentencing would constitute double jeopardy. However, we have held that resentencing to correct an erroneously imposed lenient sentence does not violate the protection against double jeopardy. Pascal, at 133-35. ³

We find each of the trial court's justifications for sentencing below the minimum insufficient. Accordingly, we reverse the Court of Appeals, and remand to the trial court for resentencing.

MADSEN, Justice (dissenting).

The majority's handwringing over being boxed into its result by the Sentencing Reform Act of 1981 (SRA) inspires my dissent. It is a majority of this court, not the SRA, that has closed the door on the exercise of trial court discretion. It is this court which has consistently disregarded personal factors justifying departures downward despite the SRA's clear intent to the contrary, and it is this court which has, in contrast, broadly construed the SRA to ardently uphold innumerable contortions used to justify departures upward. See John M. Junker, Guidelines Sentencing: The Washington Experience, 25 U.C. Davis L.Rev. 715, 742-49 (1992).

A study of this court's departure cases bears this out. Citing the discretion left to judges under the SRA as its justification, this court has scrupulously developed common law regarding reasons for departures upward and has sustained a host of aggravating circumstances. See, e.g., State v. Ritchie, 126 Wash.2d 388, 894 P.2d 1308 (1995) (deliberate cruelty, multiple injuries, victim's vulnerability, abuse of a position of trust, and an ongoing pattern of abuse); State v. Stewart, 125 Wash.2d 893, 897-99, 890 P.2d 457 (1995) (clearly too lenient); State v. Johnson, 124 Wash.2d 57, 67, 75-76, 873 P.2d 514 (1994) (gang motivation and community impact); State v. Smith, 123 Wash.2d 51, 57, 864 P.2d 1371 (1993) (victim's presence during burglary); State v. Solberg, 122 Wash.2d 688, 707-08, 861 P.2d 460 (1993) (quantity of drug and degree of sophistication greater than usual); State v. Valdobinos, 122 Wash.2d 270, 286-87, 858 P.2d 199 (1993) (same); In re Farmer, 119 Wash.2d 597, 599, 835 P.2d 219 (1992) (per curiam) ("especially culpable mental state"); State v. Chadderton, 119 Wash.2d 390, 398, 832 P.2d 481 (1992) (reckless abuse of a position of trust regardless of whether used to commit crime); State v. Post, 118 Wash.2d 596, 614, 826 P.2d 172, 837 P.2d 599 (1992) (future dangerousness for sex offender); State v. Grewe, 117 Wash.2d 211, 216-18, 813 P.2d 1238 (1991) (abuse of trust); State v. Batista, 116 Wash.2d 777, 785-86, 808 P.2d 1141 (1991) (clearly too lenient); State v. Farmer, 116 Wash.2d 414, 431, 805 P.2d 200, 812 P.2d 858, 13 A.L.R. 5th 1070 (1991) (knowing exposure to AIDS virus); State v. Crane, 116 Wash.2d 315, 334, 804 P.2d 10 (unusual number and severity of injuries), cert. denied, 501 U.S. 1237, 111 S.Ct. 2867, 115 L.Ed.2d 1033 (1991); State v. Stephens, 116 Wash.2d 238, 242-45, 803 P.2d 319 (1991) (multiple current offenses); State v. Pryor, 115 Wash.2d 445, 454, 799 P.2d 244 (1990) (future dangerousness); State v. Handley, 115 Wash.2d 275, 284-85, 796 P.2d 1266 (1990) (lack of intent to injure does not prevent use of the aggravator of vulnerability and the absence of the defendant when crime was committed does not prevent use of the aggravator of abuse of trust); State v. Dunaway, 109 Wash.2d 207, 218-20, 743 P.2d 1237, 749 P.2d 160 (1987) (sophistication and multiple injuries); State v. McAlpin, 108 Wash.2d 458, 463-65, 740 P.2d 824 (1987) (prior felony convictions before the age of 15); State v. Fisher, 108 Wash.2d 419, 424-25, 739 P.2d 683 (1987) (extreme youth and particular vulnerability of individual victim); State v. Armstrong, 106 Wash.2d 547, 550, 723 P.2d 1111 (1986) (vulnerability of victim and multiple incidents); State v. Nordby, 106 Wash.2d 514, 519, 723 P.2d 1117 (1986) (defendant's especially culpable mental state); see also State v. Perez, 69 Wash.App. 133, 138, 847 P.2d 532 (conduct "more egregious than typical"), review denied, 122 Wash.2d 1015, 863 P.2d 74 (1993); State v. Creekmore, 55 Wash.App. 852, 861-63, 783 P.2d 1068 (1989) (defendant's lack of remorse), review denied, 114 Wash.2d 1020, 792 P.2d 533 (1990); State v. Weaver, 46 Wash.App. 35, 43, 729 P.2d 64 (1986) (particular offense "more onerous than that contemplated by the Legislature"), review denied, 107 Wash.2d 1031 (1987); but see State v. Hammond, 121 Wash.2d 787, 794, 854 P.2d 637 (1993) (absconding of defendant not a justified aggravator); In re Vandervlugt, 120 Wash.2d 427, 434, 842 P.2d 950 (1992) (rejecting future dangerousness as an aggravating factor for nonsexual offense); State v. Barnes, 117 Wash.2d 701, 711-12, 818 P.2d 1088 (1991) (same).

Yet, when examining departures downward, this court has not undertaken its duty to create common law with the same vigor, nor has it respected the discretion of trial judges to the same degree. It has only allowed departures for very few mitigating factors. See, e.g., State v. Alexander, 125 Wash.2d 717, 730, 888 P.2d 1169 (1995) (rejecting peripheral participation in drug hierarchy as a mitigating factor); State v. Gaines, 122 Wash.2d 502, 512, 859 P.2d 36 (1993) (rejecting drug addiction coupled with direct causal connection of addiction to crime as a mitigating factor); State v. Hutsell, 120 Wash.2d...