sentences above the standard range must be based on some fact not already inherent in the crime of conviction
How later courts described this case
- sentences above the standard range must be based on some fact not already inherent in the crime of conviction
- interpreting former RCW 9.94A.210(4) (1989), recodified as RCW 9.94A.585(4)
- exceptional sentence is not justified by reference to facts that constitute elements of offense
- a factor inherent in the offense cannot be used as an aggravating factor
Written by the judges who cited it.
The opinion
Grosse, J. *
(concurring) — I concur in the result only. The majority opinion sweeps too broadly in its condemnation of this exceptional sentence.
On these facts, I agree that the record does not support the trial court’s reasons for an exceptional sentence. There was no conduct on the part of the defendant during the crime for which he was charged that distinguishes it from the conduct proscribed by the statute. However, I believe that the majority opinion can, but should not, be read to prohibit a finding of deliberate cruelty with regard to any charge including the element of intent, not just intentionally transmitting the human immunodeficiency virus (HIV). I am certain that was not the majority’s intent.
Reconsideration denied February 21, 2001.
Judge C. Kenneth Grosse is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).