State v. Pascal

Utter, J.

(concurring) — I concur in the views expressed by Goodloe, J., which favor the halving rule. I do believe, however, that it does not require slavish adherence to that formula and that there is evidence in the record to support the result of the trial court.

Goodloe, J. (concurring in part, dissenting in part) — I concur with the majority opinion as to the resolution of the jurisdiction and double jeopardy issues. However, I disagree with the majority's conclusion that the "abuse of discretion" standard is the appropriate standard of review for sentences outside the presumptive range under the Sentencing Reform Act of 1981 (SRA). See RCW 9.94A.010 et seq. Therefore, I dissent.

In State v. Armstrong, 106 Wn.2d 547, 552 , 723 P.2d 1111 (1986) (Goodloe, J., dissenting), when called on to interpret the SRA, I advocated a doubling rule to determine the extent a sentence could exceed the standard range maximum. This doubling rule, which limits a sentence to twice the presumptive maximum in all but the most severe cases, helps ensure the central tenet of the SRA: that similar offenses receive similar punishment. RCW 9.94A.010(3). The abuse of discretion standard does nothing to facilitate this purpose, as is clearly reflected by this case.

The defendant, Mary Pascal, was found guilty of first degree manslaughter. First degree manslaughter is defined as recklessly causing the death of another person. RCW 9A.32.060. Reckless conduct involves knowingly disregarding a substantial risk that a wrongful act may occur where such disregard is a gross deviation from conduct that a reasonable person would exercise in the same situation. RCW 9A.08.010. The presumptive sentencing range for the felony *141 of first degree manslaughter when the defendant does not have a criminal history is 31 to 41 months. RCW 9.94A.310. Pascal was sentenced to 90 days, far less than the presumptive minimum.

The Legislature has determined that for defendants with no criminal history the following crimes, among others, may warrant a sentence of or about 90 days: second degree perjury (RCW 9A.72.030); intimidating a public servant (RCW 9A.76.180); tampering with a witness (RCW 9A.72.120); third degree assault (RCW 9A.36.030); first degree malicious mischief (RCW 9A.48.070); first degree possession of stolen property (RCW 9A.56.150); theft of livestock (RCW 9A.56.080); and welfare fraud (RCW 74.08.331). To equate first degree manslaughter, through a like sentence, with crimes like second degree perjury, intimidating a public servant and welfare fraud renders ineffective the Legislature's attempt to effectuate proportionality in sentencing. The goal that similar crimes receive similar punishments is defeated when a defendant found guilty of first degree manslaughter is sentenced to 90 days.

The majority quotes from RCW 9.94A.010 stating that "the purpose of the act is to '[develop] a system for the sentencing of felony offenders which structures, but does not eliminate, discretionary decisions affecting sentences . . .'" Majority opinion, at 138. Unlike the majority, I do not believe the abuse of discretion standard of review for exceptional sentences provides any structure or guidance so that the trial court can exercise its discretion in a meaningful way. Once an exceptional sentence is determined to be appropriate, sentencing of the defendant is for all purposes left entirely in the hands of the trial judge. I further believe that meaningful appellate review will be severely limited by the abuse of discretion standard. When this standard was used prior to the SRA only one sentence in this state was successfully overturned on these grounds. State v. Potts, 1 Wn. App. 614 , 464 P.2d 742 (1969). Therefore, additional guidance should be provided by this court to help courts achieve the purposes of the SRA.

*142 I believe the rationale that I set forth in State v. Armstrong, supra (Goodloe, J., dissenting) is equally compelling when considering sentences which the State argues are clearly too lenient. Accordingly, when a lenient sentence is appropriate I advocate a "halving" rule: in all but the most extreme cases the trial judge would be required to impose a sentence of at least half of the presumptive minimum. 3 The halving rule is appropriate when mitigating circumstances exist which justify an exceptional sentence, but which do not call for a high disparity between the presumptive minimum and the actual sentence imposed. I believe this case to be such a case. While I have much compassion for Mary Pascal, and agree that justice and the mitigating circumstances do warrant an exceptional sentence, I do not believe that the facts justify a sentence of only 90 days for a first degree manslaughter conviction in light of the new legislative standards.

Unlike the abuse of discretion standard, the halving rule addresses the concerns expressed by the majority as it structures but does not eliminate the exercise of discretion by the trial judge. See majority opinion, at 139. For the reasons stated I would hold the trial court improperly imposed a 90-day sentence in this case. As the presumptive range was 31 to 41 months, I would remand for imposition of a sentence of no less than 15½ months.

Dore, J., concurs with Goodloe, J.

I concede that with short sentences the halving rule serves little purpose. Therefore, I do not advocate the halving rule when the presumptive minimum is under 12 months.