State v. Suleiman

• Decision Date: 05 October 2006
• Docket Number: No. 76807-2.,76807-2.
• Citation: 158 Wn.2d 280,143 P.3d 795
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Amir Clyde SULEIMAN, Petitioner.

143 P.3d 795

158 Wn.2d 280

STATE of Washington, Respondent, v. Amir Clyde SULEIMAN, Petitioner.

No. 76807-2.

Supreme Court of Washington, En Banc.

Argued November 15, 2005.

Decided October 5, 2006.

Suzanne Lee Elliott, Attorney at Law, Seattle, for Petitioner/Appellant.

Deborah A. Dwyer, Brian Martin McDonald, King Co. Prosecutor's Office, Appellate Unit, Seattle, for Appellee/Respondent.

BRIDGE, J.

¶ 1 On October 27, 2002, Amir Clyde Suleiman drove away from a Halloween party with four passengers in the car. His driving became increasingly aggressive and he refused to stop or slow down, even when his passengers pleaded with him. Suleiman caused an accident that injured all of his passengers and left one paralyzed. He pleaded guilty to three counts of vehicular assault. In his plea agreement he stipulated that the facts set forth in the certification for determination of probable cause and the prosecutor's summary were real and material facts for the purposes of sentencing. However, he did not agree that those facts formed a legal basis for an exceptional sentence. For the most severely injured victim, he was sentenced to a 48-month exceptional sentence based on her particular vulnerability. He now challenges that exceptional sentence, arguing that it violates the Sixth Amendment pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because a jury did not find the necessary facts beyond a reasonable doubt.

¶ 2 We recognize that Suleiman's behavior was reprehensible and we express great sympathy for his victims, especially for Kim Dwyer whose injuries were particularly severe. Yet even if we assume for the sake of argument that Suleiman's stipulation is valid, the trial court had to make additional factual findings above and beyond the admitted facts in order to support an exceptional sentence based on victim vulnerability. Because those facts were not found by a jury beyond a reasonable doubt, Suleiman's exceptional sentence violates the Sixth Amendment under Blakely. Even so, the United States Supreme Court recently concluded that Blakely errors can be subject to harmless error analysis. Washington v. Recuenco, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). We therefore remand to the Court of Appeals for determination of whether the Blakely error in this case was harmless.¹

I Statement of Facts

¶ 3 In the early morning hours of October 27, 2002, Suleiman left a Halloween party driving his girl friend's Honda Civic. There were four passengers in the car, including Kim Dwyer who was seated in the rear middle seat. Dwyer was not wearing a seatbelt. As Suleiman drove aggressively through residential streets, the passengers yelled at him to slow down and to stop the car so that they could get out. Suleiman ignored their pleas and told the women to shut up. Once on State Route 169, he increased his speed to around 70 miles per hour, despite the 50 mile per hour speed limit. According to witnesses, Suleiman swerved to the left toward oncoming traffic and then back into his lane. He lost control; the car struck an embankment and rolled. Dwyer and one other passenger were ejected from the car. The two other passengers were injured but remained in the car. Suleiman sustained only minor injuries.

¶ 4 Dwyer suffered injury to the C4-C6 level of her spine and was paralyzed from the neck down. Suleiman's girl friend sustained a fractured pelvis and several other injuries. The other passengers suffered broken bones, severe lacerations, and severe bruising, but no life-threatening injuries.

¶ 5 At the accident scene, Suleiman identified himself as the driver and told the police that the accident was his fault. The officer noticed that Suleiman appeared to be intoxicated. Suleiman was transported to the hospital where his blood was drawn within two hours of the accident. His blood alcohol level was 0.12g/100ml, one and a half times the legal limit. RCW 46.61.502(1)(a) (setting limit at 0.08 within two hours of driving).

¶ 6 Suleiman was charged with three counts of vehicular assault. He pleaded guilty. The standard range sentence for each count was 15 to 20 months and the maximum term was 10 years. The statement on the plea of guilty explains that the prosecutor planned to recommend a 36-month exceptional sentence followed by 18 to 36 months' community custody. The statement also explains that Suleiman agreed to "stipulate to real and material facts as written in the certification for determination of probable cause and the prosecutor's summary without stipulating that those facts are a legal basis for an exceptional sentence." Clerk's Papers (CP) at 15 (emphasis added). Similarly, in the plea agreement the parties stipulated that the facts set forth in the certification for determination of probable cause and the prosecutor's summary were "real and material facts for purposes of this sentencing." CP at 32. Suleiman did not waive his right to appeal an exceptional sentence. CP at 15 (explaining that either party could appeal a sentence outside of the standard range).

¶ 7 The trial judge sentenced Suleiman to an exceptional sentence of 48 months for count 1 (vehicular assault against Dwyer), and high-end standard sentences of 20 months for counts 2 and 3, to be served concurrently. In the findings of fact and conclusions of law supporting the exceptional sentence, the trial judge reported that he considered presentence reports and briefing from both parties, a CD (compact disc) containing a slide show on Dwyer's life, letters sent on behalf of the defendant, letters from victims, family, and friends, and arguments of counsel. He also heard from various people, including the victims and Dwyer's father.

¶ 8 The trial court made the following findings of fact: Suleiman had a blood alcohol level of 0.12g/100ml after the accident, CP at 67; he drove aggressively in a residential neighborhood just before the accident, CP at 68; the passengers in the rear seats yelled at him to slow down and let them out, but he told them to shut up; he drove even faster and increased his aggressive driving, id.; his estimated speed was 70 miles per hour in a 50 mile per hour zone, id.; Suleiman swerved sharply back and forth across lanes and seemed to be intentionally swerving at some construction barrels, id.; the resulting accident caused Kim Dwyer to suffer devastating, life-threatening injuries to her spinal cord, id.; the defendant seemed to be acting in anger and his response to the passengers' pleas showed his purposeful aggressive driving, id.; the passengers were "virtually trapped and held captive by a dangerous drunk driver," id.; "[t]heir screams were met by more dangerous driving and telling them to `shut up,'" id.; "[t]he defendant knew the women in the rear of his car were at his mercy, yet he showed them none," id.; the defendant knew that the women in the car were subject to incredible risk of physical harm, yet he continued to drive aggressively, and the injury to Dwyer was extraordinary and permanent, id.

¶ 9 The trial court concluded that the following substantial and compelling reasons existed to support an exceptional sentence: (1) the injury to Dwyer was far greater than that contemplated by the legislature in setting the injury element of vehicular homicide at substantial bodily injury, and the defendant knew or should have known that the passengers could have suffered serious injury or death; (2) Kim Dwyer was a particularly vulnerable victim, and the defendant knew or should have known of that vulnerability; and (3) the circumstances of the crime were far more egregious than the typical vehicular assault, and the goals of the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, would not be realized by a standard range sentence. The court also concluded that each of the substantial and compelling reasons, standing alone, was sufficient to justify the length of the exceptional sentence imposed.

¶ 10 Suleiman appealed, arguing the trial court erred in imposing an exceptional sentence. State v. Suleiman, noted at 121 Wash.App. 1067, 2004 WL 1203884, at *1, 2004 Wash.App LEXIS 1147, at *1. The Court of Appeals affirmed the exceptional sentence and concluded that the trial court properly found that Dwyer was particularly vulnerable. Id. at *3, 2004 Wash.App LEXIS 1147 at *9. Because Dwyer's vulnerability was sufficient to support the exceptional sentence, the Court of Appeals did not address the sufficiency of the other reasons given by the court. Id. at *3, 2004 Wash.App LEXIS 1147 at *10. Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, was subsequently decided, and Suleiman moved for reconsideration based on that case. The Court of Appeals denied reconsideration, stating that the issues presented by his case were controlled by State v. Harris, 123 Wash.App. 906, 99 P.3d 902 (2004) (constitutionality of the sentencing statute), State v. Hagar, 126 Wash. App. 320, 105 P.3d 65 (2005), and State v. Ermels, 125 Wash.App. 195, 104 P.3d 67 (2005). Order Denying Recons. The Court of Appeals did not elaborate further. Suleiman filed a petition for review, which this court granted. State v. Suleiman, noted at 154 Wash.2d 1033, 119 P.3d 852 (2005).

II Analysis

¶ 11 By statute, a Washington court may impose an exceptional sentence outside the standard range if it concludes that "there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. RCW 9.94A.535 provides that whenever an exceptional sentence is imposed, the court must set forth reasons for its decision in written findings of fact and conclusions of law. At the time of Suleiman's plea, a nonexclusive list of factors justifying an upward departure from a standard range sentence was set forth in former RCW 9.94A.535(2) (2003). At that time an exceptional sentence above the standard range was justified if "[t]he defendant knew or should have known that the victim ... was...