State v. Weaver

• Decision Date: 25 November 1986
• Docket Number: Nos. 7759-4-II,7815-9-III,s. 7759-4-II
• Citation: 46 Wn.App. 35,729 P.2d 64
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Dennis F. WEAVER, Appellant. In the Matter of the Personal Restraint Petition of Dennis F. WEAVER, Petitioner.

Page 35

46 Wn.App. 35

729 P.2d 64

STATE of Washington, Respondent, v. Dennis F. WEAVER, Appellant.

In the Matter of the Personal Restraint Petition of Dennis

F. WEAVER, Petitioner.

Nos. 7759-4-III, 7815-9-III.

Court of Appeals of Washington,

Division 3, Panel Three.

Nov. 25, 1986.

Review Denied March 3, 1987.

Reed C. Pell, Roy & Pell, Yakima, for appellant.

Jeffrey C. Sullivan, Pros. Atty., Robert N. Hackett, Jr., Deputy Pros. Atty., Yakima, for respondent.

McINTURFF, Acting Chief Judge.

Dennis Weaver pleaded guilty to vehicular assault; the prosecutor recommended an 18 month sentence, but the court ruled confinement would be for 30 months. He appeals, contending (1) he should have been allowed to withdraw his guilty plea, and (2) the sentence was error. We affirm the decision of the Superior Court and dismiss his personal restraint petition.

On September 28, 1985, at approximately 6:55 p.m., Mr. Weaver was driving in an easterly direction on Rosencranz Road in Yakima County. At a very large, sweeping 90? corner, he crossed over the center line to the westbound fog lane, traveling 47 to 50 miles per hour. He struck a 1981 Datsun driven by Charles Logan, destroying the driver's side of the Logan vehicle; Mr. Logan sustained fractures to the face and shoulders and substantial brain injuries.

Mr. Weaver was arrested by the Washington State Patrol; a blood sample taken later at approximately 8:47 p.m. indicated a blood alcohol level of .20. Mr. Weaver pleaded guilty to vehicular assault; ¹ in the statement which accompanied his plea, he noted "[i]n return for a plea of guilty the pros[ecutor] states that if he recommends a sentence outside the standard range that the recommendation would not exceed 18 [months]." The prosecutor recommended an 18-month sentence, exceeding the standard range of 3 to 9 months. The court, noting several aggravating factors, sentenced him to 30 months, restitution not to exceed $50,000, revocation of his driver's license for 5 years and payment of court costs and fees. Mr. Weaver moved to withdraw his guilty plea, but the motion was denied.

Mr. Weaver first argues the trial court did not comply with the provisions of RCW 9.94A.090(1) ² or CrR 4.2(e) and (f), ³ relating to plea agreements, and failed to advise him the sentence might exceed 18 months.

We note the trial court ruled there was no plea bargain agreement because there was no benefit to either party; the defendant was charged with and pleaded guilty to the most serious crime which could have been charged. Further, the trial court determined that if there had been a plea bargain, the State upheld its part of the bargain by recommending a sentence of 18 months.

Whether Mr. Weaver's statement constitutes a plea bargain agreement need not be decided. Assuming arguendo it was an agreement, the trial court adequately informed Mr. Weaver of the consequences of the plea, specifically the maximum penalty and the fact the court was not bound by the prosecutor's recommended sentence. ⁴

In support of his argument, Mr. Weaver cites cases from other jurisdictions which hold the defendant must be informed of his right to withdraw his plea where the court chooses to disregard the recommended sentence. See People v. Johnson, 10 Cal.3d 868, 112 Cal.Rptr. 556, 519 [729 P.2d 68] P.2d 604 (1974); People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978); Thomas v. State, 327 So.2d 63 (Fla.Dist.Ct.App.1976); Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978). We reject these cases for they are not based on criminal procedure similar to our CrR 4.2(f) and RCW 9.94A.090(2). See State v. Taylor, 83 Wash.2d 594, 595-96, 521 P.2d 699 (1974).

CrR 4.2(f) allows a defendant to withdraw his guilty plea in order to correct a "manifest injustice", ⁵ an injustice which is only obvious, directly observable and not obscure. State v. Taylor, supra at 596, 521 P.2d 699; State v. Hystad, 36 Wash.App. 42, 45, 671 P.2d 793 (1983). Indicia of manifest injustice include: denial of effective counsel; nonratification of a plea by the defendant or his representative; involuntariness of the plea; failure by the prosecutor to keep the plea agreement. State v. Taylor, supra 83 Wash.2d at 597; State v. Hystad, supra 36 Wash.App. at 45, 671 P.2d 793. The standard is a demanding one because of the safeguards surrounding a plea of guilty. Hystad, at 45, 671 P.2d 793. Mr. Weaver has failed to provide any evidence of "manifest injustice". The court's failure to sentence according to the prosecutor's recommendation is not grounds, by itself, for withdrawal of the plea. In re Hughes, 19 Wash.App. 155, 161, 575 P.2d 250 (1978). Thus, we conclude there was no error.

Next, Mr. Weaver contends there were no aggravating circumstances to warrant imposition of a sentence outside the standard range and that the sentence imposed was clearly excessive. In imposing the sentence outside the standard range, the court noted several aggravating factors, including the degree of intoxication, rate of speed, severity of damage to the victim, Mr. Weaver's prior driving record, and the fact he was driving without a valid driver's license, ⁶ in contempt of a court order and without liability insurance.

As stated in State v. Nordby, 106 Wash.2d 514, 516, 723 P.2d 1117 (1986), the court may impose a sentence outside the standard range if there are substantial and compelling reasons to justify an exceptional sentence. RCW 9.94A.120(2). The aggravating factors which the court may consider as outlined in the Sentencing Reform Act (SRA) are only illustrative and not exclusive. Nordby (citing RCW 9.94A.390).

Review of a sentence is governed by RCW 9.94A.210(4):

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

First, it must be determined whether the reasons for the exceptional sentence are supported by the record. Nordby, at 517, 723 P.2d 1117. The trial court determined Mr. Weaver should have known there would be other people on the road subject to his erratic driving; that his collision with the Logan vehicle would result in a high monetary impact on the Logan family; that he was in contempt of court for driving while under the influence and without insurance or a valid license. Mr. Weaver's prior driving record was considered insofar as it indicated his total disregard of court orders and his lack of rehabilitation effort. Mr. Weaver does not assign error to the findings; they are, therefore, verities. State v. Harris, 106 Wash.2d 784, 790, 725 P.2d 975 (1986). Additionally, the record supports those findings.

This court's second task is to independently determine whether the reasons justify the imposition of an exceptional sentence. Nordby, 106 Wash.2d at 518, 723 P.2d 1117. The fact Mr. Logan was a driver in another automobile does not in and of itself justify an exceptional sentence. Nordby, at 518, 723 P.2d 1117. Neither does the severity of Mr. Logan's injuries, as that factor has been considered in defining the crime of vehicular assault. Nordby, at 519, 723 P.2d 1117; RCW 46.61.522(2). Mr. Weaver's prior history of misdemeanors also is not a factor, at least with respect to the statute as it existed when the accident occurred. ⁷ State v. Hartley, 41 Wash.App. 669, 671, 705 P.2d 821 (1985); Nordby, 106 Wash.2d at 518 n. 4, 723 P.2d 1117.

In State v. Harp, 43 Wash.App. 340, 344, 717 P.2d 282 (1986), the court advised sentencing judges to "refer, among other factors, to the purposes of the act as stated in RCW 9.94A.010." Two of those purposes are (1) imposing sufficient punishment upon the offender, and (2) protecting the public. State v. Wood, 42 Wash.App. 78, 709 P.2d 1209 (1985).

We agree with the reasoning and conclusions of State v. Loitz, 366 N.W.2d 744, 746 (Minn.Ct.App.1985), which stated:

4. The court further finds as an aggravating factor that this Defendant has shown a calloused disregard for the consequences of chemical use in general. The Defendant has had a long-term chemical dependency problem. He has had some prior education in the use of chemicals so he should have had some minimal insight.

Such a finding justified an exceptional sentence:

[A]ppellant has shown a callous disregard for the consequences of chemical use. While intoxication at the time of the offense is not a valid factor, ... a history of chemical abuse and disregard for its effects is a valid factor to consider. Substantial and compelling reasons justify the durational departure.

Loitz, at 747.

Here, the trial court noted several factors similar to those in Loitz which would cumulatively justify an exceptional sentence. Mr. Weaver had a public history of alcohol abuse, had disdained any rehabilitation, was driving without liability insurance and in contempt of a court order. His level of intoxication was twice the amount necessary to affect his driving skills, he was driving at high speed around a dangerous curve, totally losing control of the vehicle to the extent he collided with Mr. Logan's car on the opposite fog line. Given these circumstances, we conclude this particular offense was more onerous than that contemplated by the Legislature when it established the standard sentence range as 3 to 9 months. The sentence of 30 months more adequately serves the purpose of the SRA, which in this instance is to protect the traveling public from Mr. Weaver's contempt for highway safety. Thus, we conclude there was sufficient evidence to support the exceptional sentence.

Mr. Weaver also contends the sentence was "clearly excessive." RCW 9.94A.210(4)(b). ⁸ As indicated in State v. Oxborrow, 106 Wash.2d 525, 529, 723 P.2d 1123 (1986), the SRA does not define "clearly excessive", but the...