State v. Pascal
| Decision Date | 07 May 1987 |
| Docket Number | No. 52188-3,52188-3 |
| Citation | 736 P.2d 1065,108 Wn.2d 125 |
| Parties | STATE of Washington, Appellant, v. Mary L. PASCAL, Respondent. |
| Court | Washington Supreme Court |
Donald C. Brockett, Spokane County Pros., Fred J. Caruso, Chief Deputy Pros., Spokane, for appellant.
Spokane County Public Defender Ass'n, Richard Cease, Carl E. Hueber, Spokane, for respondent.
This case involves an appeal of a sentence below the presumptive range set forth in the Sentencing Reform Act of 1981 (RCW 9.94A). The defendant had stabbed her boyfriend and was convicted of first degree manslaughter. The presumptive sentence range was 31-41 months. The trial court sentenced the defendant to 90 days, consisting of 30 days of total confinement, 30 days of partial confinement, and 240 hours of community service. The court also sentenced her to an additional year of community supervision. The State asks that we review this sentence. We affirm.
Mary Louise Pascal, aged 20, the defendant, and Richard A. Kieffer, aged 21, lived together and were the parents of an 18-month-old child. During 1984 there were several incidents where Kieffer had beaten and verbally abused Pascal. On May 26, 1984 he had slapped and choked her. In August he had thrown her on the floor and beaten her. Later that month he had hit her in the head. In December he had pressed her knees to her throat and subjected her to extensive and bitter verbal abuse. On December 24, 1984 he again beat her and when this encounter continued she stabbed him to death.
The testimony was that on the day of his death, Kieffer had shoved the defendant, hit her, slapped her, and knocked her down. The statement given by the defendant following the stabbing describes the confusion of the scene as follows:
Q. That just left you and Richard?
A. And Michelle .. at home, and that was about, about 9 o'clock and he got all mad at me, saying, calling me a Scrooge and a bitch and everything cause he was mad because he wanted to go out and get drunk and plus me 'n him really weren't gettin' along or anything because .. ah .. we just weren't getting along but we still love each other and everything, and we love our daughter very much and he got mad at me and we started arguing saying we were going to break up 'n everything and then .. and then, it happened. My mom and them were still outside and the door must have been open a little bit and he got really mad at me and he .. and he hit me and he knocked me down and I got up and ...
Q. Where did he hit you at?
A. He pushed me down. He kind of shoved me and I ...
Q. He didn't hit you, he just shoved you down?
A. Yeah.
Q. Okay.
A. And I fell on the floor and I got up and I pushed him back and I told him to knock it off and he told me that I really pissed him off and then he .. he slapped me, slapped me hard in the eye with .. I was standing in the kitchen cryin' and he went back and sat back on the couch and he was playin' with Michelle 'n everythin' and I don't know, I just got really upset because this .. he wanted to break up and I don't know he ...
Q. You got upset because you felt that Richard wanted to break up with you ..
A. Yeah and ..
Q. What did you do then?
A. Um .. Um, he's my whole world, he and my little girl and I don't know what I would do (crying, inaudible) if I didn't have them both, they mean so much to me that I need to have both of them .. I wouldn't have no reason to live and so I grabbed a knife and I went and told him that.
Q. Where, where did you get the knife from?
A. From the kitchen in the .. in the drawer .. and I handed it to him and I told him that he might as well kill me because I told him that he and Michelle meant so much to me that if I couldn't have both of them that, that I don't have no reason to live ... and we started arguing again and he was tellin' me that I was a bitch and everything and I told him that he was a bastard and we were cussing at each other and then things quieted down and then he told me he was going to take Michelle and I told him that he wasn't going to take her away from me and I don't know, he wasn't acting like himself ... he still had the knife with him and he told me he was going to take Michelle and I told him he was going to have to kill me if he was going to take her away from me and then I went and grabbed her and I sat her down on my lap and then he come walking over to me and he just looked different and he told me, he kept telling me "I'm going to take her, I got to take her".... and then I was sittin' down and he walked up to me and he had the knife, in his left hand I think, and he took his right hand and he kind of tilted my head back, and I was gonna see what he was goin' to do but he brought the knife close to me but not enough to where he could get me with it or anything and then I put Michelle down and I stood up and he gave me the knife and then I went and sat across from the room and he was sittin' there and he was ..
Q. He gave you the knife?
A. Yeah ... he gave it to me.
Q. Did he say something to you when he gave you the knife?
A. I just asked him .. I go "Richard would you please give me the knife?" so he gave the knife and he went and sat down and then he went and .. and I sat across the room and he told me "Go put the knife away" and I told him that I wasn't born yesterday, because I thought if I did that he would try taking Michelle and I thought if I kept the knife with me I could scare him into thinking I would, that I would get him with it and then finally he said that he was gonna just leave and he was never going to look back and he said he said he was just going to kiss Michelle and leave and he went and kissed her and I walked up to him and I told him that he wasn't walkin' out on us and he told me that he was and we kind of pushed each other and I told him, I told him that he hurt me for the last time and that I was going to try to scare him and I brought the knife up and he told me "go ahead" and I thought I could get him and you know, kind of go like that and miss him which I thought I did, but then, after I tried scaring him and did it, he told me, he told me "Babe, you got me" and then I look (sic) at his shirt and and I seen a whole bunch of blood gushing out and I got scared and I threw the knife down and I grabbed him and I tried sittin' him down in the chair and it fell over and he kind of fell on the ground ..
The autopsy revealed the victim's blood alcohol to be .20.
The defendant was charged with second degree murder and manslaughter. She contended that she acted in self defense and suffered from battered woman's syndrome. The jury found that the defendant lacked the requisite intent to murder Kieffer, but did not act in self defense. She was convicted of first degree manslaughter. She had no prior criminal history. Under the Sentencing Reform Act of 1981, first degree manslaughter for a person with no criminal history carries a presumptive sentencing range of 31 to 41 months. The trial court sentenced Pascal to 90 days, consisting of 30 days of total confinement, 30 days of partial confinement and 240 hours of community service. The court also sentenced her to an additional year of community supervision. The court cited the following reasons for imposing the sentence:
The following mitigating circumstances existed in this case:
(a) The victim in this case was an initiator, willing participant, aggressor or provoker of the incident.
(b) The defendant committed the crime under duress, coercion, threat or compulsion insufficient to constitute a complete defense but which significantly affected her conduct.
(c) The defendant's capacity to appreciate the wrongfulness of her conduct or to conform her conduct to the requirements of the law was significantly impaired because she is a battered woman.
The following purposes of the Sentencing Reform Act justify an exceptional sentence:
(a) An exceptional sentence is justified to insure [that] punishment is proportionate to the offender's criminal history, which in this case is zero.
(b) Protection of the public must be considered, and Mary Louise Pascal does not pose a threat to the public.
(c) An offender is to be offered an opportunity to improve herself, and Mary Louise Pascal has demonstrated her ability and willingness to improve herself vocationally and educationally.
(d) Frugal use of the State's resources must be considered and the imposition of institutional confinement would be contrary to this purpose.
We accepted certification of this case from the Court of Appeals for resolution of the following issues: (1) whether the state has the statutory right to appeal a sentence below the presumptive range set forth in the Sentencing Reform Act; (2) whether the possible imposition of a longer sentence would constitute double jeopardy and hence render an appeal by the State unconstitutional; and (3) whether the trial court's sentence must be reversed either because there were inadequate reasons to impose an exceptional sentence, or because the sentence imposed was "clearly too lenient".
The State originally appealed the defendant's sentence to the Court of Appeals. The defendant contends that the State had no statutory right to appeal this sentence, having instead only the right to seek discretionary review under RAP 2.3. We disagree.
The issue presented is a jurisdictional question. Article 4, section 30(2) of the Washington State Constitution (amend. 50) states that:
The jurisdiction of the court of appeals shall be as provided by statute or by rules authorized by statute.
The Legislature, in enacting the Sentencing Reform Act, expressly provided the Court of Appeals with jurisdiction to hear the State's appeal in the present case.
A sentence outside the sentence range for the offense is subject to appeal by the defendant or the state. The appeal shall be to the court of appeals in accordance with rules adopted by the supreme court.
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