State v. Stewart
| Decision Date | 07 February 1994 |
| Docket Number | No. 30976-5-I,30976-5-I |
| Citation | 866 P.2d 677,72 Wn.App. 885 |
| Parties | STATE of Washington, Respondent, v. Darrel Wayne STEWART, Appellant. |
| Court | Washington Court of Appeals |
Suzanne Lee Elliott, Washington Appellate Defender, Seattle, for appellant.
Norm Maleng, Pros. Atty., and Carol Denardo Spoor, Deputy Pros. Atty., Seattle, for respondent.
Darrel Wayne Stewart appeals an exceptional sentence imposed after he pleaded guilty to two counts of attempted first degree kidnapping, two counts of second degree assault, and one count of violation of the Uniform Firearms Act (VUFA) ().
This matter is before the court after remand from this court for resentencing. 1 In the first sentencing, after Stewart's plea, 2 the trial court imposed an exceptional sentence based on its findings (1) of future dangerousness and (2) that the multiple offense policy of RCW 9.94A.400 resulted in a clearly too lenient sentence. Stewart was sentenced to the statutory maximum of 120 months on each kidnapping count, the statutory maximum of 60 months on the VUFA count, and 96 months on each assault count. The court ordered the two kidnapping and the VUFA sentences to run consecutively and the assault sentences to run concurrently with the kidnapping sentences, for a total term of 300 months.
Stewart appealed the exceptional sentence and we reversed and remanded for resentencing. We found (1) the record did not support a finding of future dangerousness because there was no evidence of lack of amenability to treatment, and (2) the record did not reveal the basis for the trial court's clearly too lenient finding.
In 1975, Stewart had been convicted in Colorado of sexual assault on a child, kidnap, attempted rape, deviant sexual intercourse by force, theft, and burglary. 3 At a preliminary resentencing hearing, the court determined that in order to address the clearly too lenient issue, it needed to know the details of Stewart's prior conviction in Colorado and also to hear testimony from the victims of the current offense, C.M. and her niece, K.S.
At resentencing, the trial court received and reviewed the trial record and police reports from the Colorado incident and heard testimony from C.M. The court also considered a classification study of Stewart compiled by the Nebraska Penal and Correctional Complex in 1973 and a Diagnostic Summary and Rehabilitation Plan prepared by the Colorado Department of Corrections in 1976. The court found that Stewart's crimes were sex crimes, that he was not amenable to treatment, and that the standard range penalty was clearly too lenient. The court again imposed a sentence of 120 months on each attempted kidnapping count and 60 months on the VUFA count, each to run consecutively, and 60 months on each assault count to run concurrently, for a total of 300 months.
In this appeal, Stewart contends the trial court erred in taking evidence on resentencing, in finding that his crimes were committed with sexual motivation, and in holding that the sentence was justified by the clearly too lenient factor. We hold the trial court did not err in taking additional evidence on remand. We agree the trial court violated the state and federal ex post facto clauses by applying the sexual motivation statute, RCW 9.94A.390(2)(e), to impose an exceptional sentence, but nevertheless affirm, holding that the crimes for which Stewart was convicted were sexual offenses as that term is used in State v. Barnes, 117 Wash.2d 701, 818 P.2d 1088 (1991). We also affirm the conclusion that the operation of the multiple offense policy of RCW 9.94A.400 results in a presumptive sentence that is clearly too lenient.
Stewart was charged with two counts of attempted first degree kidnapping, two counts of second degree assault, and one count of VUFA. Both attempted kidnapping counts included a deadly weapon allegation and alleged the crimes were committed "with intent to facilitate commission of the felony of rape, indecent liberties, robbery, and flight thereafter".
The victims of the crimes, C.M. and her 13-year-old niece, K.S., were at C.M.'s office in a Seattle building when they saw Stewart. C.M. recognized Stewart from having occasionally seen him in the building. She agreed to give Stewart a ride to Green Lake. During the drive, K.S. sat in the back seat and Stewart sat in the front passenger seat.
When they arrived at Green Lake, Stewart refused to get out of the car. C.M. drove to a nearby restaurant where she had often seen police cars, stopped the car, and again asked Stewart to get out. Stewart refused, pulled a gun from his jacket, and threatened to kill C.M. if she did not continue to drive. She refused and Stewart turned, pointed the gun between K.S.'s legs, and threatened to kill her. C.M. grabbed the gun and while she and Stewart were struggling, K.S. ran from the car into the restaurant. C.M. also managed to get out of the vehicle. After both women were inside the restaurant, Stewart left the vehicle and was arrested a few blocks away.
Stewart contends the trial court's receipt of evidence at the resentencing hearing was error because it violated the law of the case doctrine, collateral estoppel principles, and because it breached the plea agreement. We disagree.
A holding that the trial court relied on an improper factor in imposing an exceptional sentence does not preclude an exceptional sentence on remand. In re Vandervlugt, 120 Wash.2d 427, 437, 842 P.2d 950 (1992). "[R]emand for a presumptive sentence is required where all of the reasons said to support the exceptional sentence are held insufficient by an appellate court." State v. Batista, 116 Wash.2d 777, 793, 808 P.2d 1141 (1991). However, where the appellate court determines the trial court "misconstrued and misapplied the law, aside from the question of the sufficiency of the reasons given for an exceptional sentence," the court reverses and remands for resentencing in accord with the legal principles stated in the court's opinion. Batista, 116 Wash.2d at 794, 808 P.2d 1141.
In Stewart I, we found the record did not support a finding of future dangerousness because there was no evidence of Stewart's lack of amenability to treatment. State v. Stewart, slip op. at 5-6 . Where the trial court fails to address the amenability to treatment issue, a remand for further fact finding is appropriate. State v. Pryor, 115 Wash.2d 445, 456-57, 799 P.2d 244 (1990); State v. Miller, 60 Wash.App. 914, 920, 808 P.2d 186 (1991). Thus, failure to address amenability to treatment is a misconstruction or misinterpretation of the law and is not tantamount to the imposition of an exceptional sentence for insufficient reasons.
In Stewart I, we found that the record did not reveal the basis for the clearly too lenient finding. State v. Stewart, slip op. at 6 (citing State v. Batista, 116 Wash.2d at 789, 808 P.2d 1141). In Batista, the court treated the lack of a basis in the record as a misconstruction or misapplication of the law and not as an insufficient reason for the exceptional sentence. Consequently, the court remanded for resentencing in accord with the principles announced and did not remand with an order to resentence the defendant within the standard range. Similarly, this court's finding in Stewart I was not a finding that the clearly too lenient factor was an insufficient reason for the exceptional sentence, but rather that the trial court misconstrued or misapplied the law. Therefore, taking additional evidence on this factor at resentencing was appropriate. State v. Pryor, 115 Wash.2d at 445, 799 P.2d 244; State v. Miller, 60 Wash.App. at 920, 808 P.2d 186.
Stewart claims the trial court violated the doctrine of law of the case by taking evidence on issues that had already been decided in Stewart I. We disagree. It is true that once the mandate issued this court's decision "became the law of the case and superseded the trial court's findings on every issue that the appellate court decided." State v. Strauss, 119 Wash.2d 401, 412, 832 P.2d 78 (1992). In Strauss, the Court of Appeals "explicitly held" the evidence was insufficient to support the findings of deliberate cruelty, sophistication and planning, and abuse of a position of trust, and this determination was binding on the trial court upon issuance of the Court of Appeals' mandate. Strauss, 119 Wash.2d at 412, 832 P.2d 78. However, in Stewart I, this court did not examine the sufficiency of the evidence to support each aggravating factor, but rather ended its analysis with the determination that the trial court misconstrued the applicable law, failed to address amenability, and failed to include a basis for its clearly too lenient finding. Therefore, unlike in Strauss, the trial court here was not bound by a determination that any of the reasons were insufficient and was free to receive additional evidence on both the future dangerousness and clearly too lenient aggravating factors. 4
Stewart also contends taking additional evidence at resentencing violated the plea agreement. We disagree.
RCW 9.94A.370(2) provides in part:
In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence.
While it is true that in his statement on his guilty plea, Stewart agreed the court could read the certification for probable cause and use it as real facts for the basis of the plea and for sentencing purposes, this did not preclude the sentencing court from...
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