No. 52557-3-I.The Court of Appeals of Washington, Division One.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-00339-1. Judgment or order under review. Date filed: 05/23/2003. Judge signing: Hon. Robert H Alsdorf.
Counsel for Appellant(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Amir Clyde Suleiman (Appearing Pro Se), Doc # 856543 Stafford Creek Corr. Center, 191 Constantine Way, P.O. Box 900, Aberdeen, WA 98250.
Counsel for Respondent(s), Dana Cashman, King Co Pros Office, Rm W554, 516 3rd Ave, Seattle, WA 98104-2385.
Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
PER CURIAM.
Amir Suleiman appeals his conviction of three counts of vehicular assault, contending the trial court erred in imposing an exceptional sentence greater than the standard range. He contends the statute allowing exceptional sentences is unconstitutionally vague and the Washington sentencing scheme violates due process. We conclude the exceptional sentence was supported by the record and was valid as a matter of law. The statute is not subject to a vagueness challenge and the State was not required to prove aggravating factors beyond a reasonable doubt. We affirm.
FACTS
On the night of October 27, 2002, Amir Suleiman, his girlfriend Kristin Diffin, and her three friends Melissa Harder, Sarah Corliss, and Kim Dwyer went to a Halloween party. Between 12:30 and 1:00 a.m., the group left the party. Harder, Corliss, and Dwyer were in the back seat of the two-door car with Dwyer in the middle. Suleiman began driving aggressively and dangerously and too fast for the residential neighborhood. Corliss told Suleiman to slow down, and he told her to shut up. Corliss then asked Suleiman to let her out of the car because she did not feel comfortable with the way he was driving. Suleiman ignored her and sped up as he entered a highway. Corliss, Harder, and Dwyer all began to scream at Suleiman to slow down and to stop. Suleiman kept telling them to shut up and drove faster and faster. Suleiman swerved toward the oncoming lanes, then toward construction barrels in the road. He lost control of the car, rolled several times, and came to a stop upside down.
Jacob Niehaus, who was driving in the oncoming lanes of the highway, told a police officer that he saw Suleiman’s car coming towards him at a high rate of speed, well over the speed limit. Corliss and Harder estimated their speed to be between 60 and 70 miles per hour on the highway, which has a speed limit of 50 miles per hour.
Dwyer and Diffin were thrown from the car when it crashed. Neither was wearing a seat belt. At the sentencing hearing, Dwyer said she could not find her seat belt when she entered the car. She told Suleiman of this and asked him to drive safely.
As the result of the accident, Dwyer is paralyzed from the neck down and will never be able to care for herself. The other passengers suffered multiple fractures, lacerations, scrapes, and bruises.
Suleiman entered guilty pleas to three counts of vehicular assault. The State requested an exceptional sentence of 36 months on Count I, involving Dwyer. The standard range was 15 to 20 months with a maximum of 10 years. Suleiman stipulated to the facts contained in the certification for determination of probable cause and the `[p]rosecuting [a]ttorney case summary.’
The trial court imposed an exceptional sentence of 40 months as to Count I. The court found three independent grounds supporting the exceptional sentence: (1) Dwyer was particularly vulnerable; (2) Suleiman’s conduct was much more egregious than normal; and (3) Dwyer suffered greater injuries than contemplated by the Legislature in including substantial bodily harm as an element of the crime and in defining substantial bodily harm. While the court found that these three aggravating factors existed, it also found that any of them alone would justify the exceptional sentence. Suleiman appeals the exceptional sentence.
DISCUSSION
Suleiman contends that the trial court erred in imposing an exceptional sentence on Count I. A trial court may impose a sentence outside the standard sentence range only if it finds substantial and compelling reasons for it.[1] On review, we first determine whether, under a clearly erroneous standard, the record supports the facts supporting the exceptional sentence.[2] Second, we decide whether, as a matter of law, the reasons given by the trial court justify an exceptional sentence.[3]
Finally, we determine whether, under an abuse of discretion standard, the trial court imposed a sentence that is clearly too excessive or too lenient.[4] Suleiman contends certain of the trial court’s findings of fact are not supported by the record, and the reasons are invalid as a matter of law.
Suleiman first argues the trial court erred in making findings of fact not supported by the record. He challenges finding of fact number 1, that his blood alcohol level (BAC) was .12g/100mL, 1 1/2 times the legal limit two hours after the accident, and that this `tend[ed] to indicate that his BAC could have been higher at the time of his driving.’ The record shows that the accident occurred at about 1:55 a.m. and that Suleiman’s blood was drawn at 2:20 a.m. Thus, the blood draw occurred about 25 minutes, not hours, after the accident. That part of the finding regarding the timing of the blood draw and the inference of a higher BAC was erroneous, but the finding that Suleiman’s BAC was 1 1/2 times the legal limit was supported by the evidence. But as the State notes, the trial court did not rely on the finding that Suleiman’s BAC could have been greater earlier in imposing the exceptional sentence and the error was irrelevant to the sentence. Suleiman next challenges finding of fact number 7, that his conduct `seemed based in anger,’ arguing that this finding is equivocal and the record contains no evidence to support it. But the certification for determination of probable cause states that Corliss told police officers that Suleiman was angry, but she did not know why. The record supports this finding of fact. Suleiman also challenges finding of fact number 10, that he `knew the women in the rear of his car were at his mercy, yet he showed them none.’ But the certification for determination of probable cause states that Suleiman drove too fast, ignored the passengers’ pleas to stop, yelled at them to shut up, and drove faster and faster as the passengers continued to scream at him to stop. These facts support the finding that Suleiman knew the passengers could not get out of the car and refused to let them out; in other words, that he had them at his mercy and showed them none. While the trial court’s finding is somewhat dramatic, it is supported by the record. Finally, Suleiman challenges finding of fact number 12, that Dwyer’s injury `was caused solely by [Suleiman’s] reckless, criminal behavior.’ Suleiman contends that Dwyer decided not to wear a seatbelt, and that this decision contributed to her injuries. But even if Dwyer had decided not to wear a seatbelt, a fact that she contradicted at the sentencing hearing, she clearly decided during the ride that Suleiman was driving dangerously and that she wanted him to slow down or stop the car. Once she realized her danger, she did all she reasonably could to avoid her injuries. The record supports the trial court’s finding.
Suleiman contends that the exceptional sentence is erroneous as a matter of law because Dwyer was not particularly vulnerable, Suleiman’s conduct was not more egregious than normal, and Dwyer’s injuries are not greater than contemplated by the Legislature in setting the injury element of vehicular assault. Suleiman argues that Dwyer voluntarily rode in the car, did not wear a seatbelt, and was a passenger, not a pedestrian, and therefore she was not particularly vulnerable.
Particular vulnerability of a victim is a statutory factor supporting an exceptional sentence.[5] The statute allows the trial court to impose a sentence above the standard range where “the defendant’ knew or should have known that the victim . . . was particularly vulnerable. . . .”[6] To support an exceptional sentence, vulnerability must be a substantial factor in the crime.[7] We review the trial court’s finding on vulnerability for clear error.[8]
Suleiman argues that State v. Nordby[9] and State v. Morris[10]
present appropriate examples of vulnerability. Both cases involved pedestrians hit by vehicles although the defendant in each case saw the victim before the crime occurred. Suleiman contends that Dwyer increased her vulnerability by her own actions of getting into the car and riding without a seatbelt, and that there was no evidence that he knew of any particular vulnerability. We disagree.
Although Norby and Morris both involved pedestrian victims, the basis of particular vulnerability was their inability to take evasive action and lack of the protection of a second vehicle.[11] In this case, the record clearly establishes that Dwyer could not take evasive action. She was seated in the middle rear seat of the two-door car and unable to exit. When Dwyer made Suleiman aware of her fear and vulnerability by screaming for him to slow down and stop and by asking to be let out, Suleiman ignored her pleas and drove faster and more recklessly increasing Dwyer’s vulnerability. The trial court did not err in basing the exceptional sentence on Dwyer’s particular vulnerability. Suleiman challenges the other two reasons supporting the exceptional sentence; but as we conclude that the first reason was sufficient, and the trial court stated that any of the reasons was sufficient on its own to support the sentence, we need not address the other reasons here.
Suleiman next contends that the statute allowing an exceptional sentence for conduct that is more egregious than the typical vehicular assault is unconstitutionally vague. Suleiman relies on the decision in State v. Rhodes,[12] which held that standard disposition ranges created a constitutionally protected liberty interest. Under that reasoning, the statute allowing an exceptional sentence would be subject to challenge because it has no objective framework for determining whether conduct is more egregious than what is typical for that crime.
Rhodes was overruled in State v. Baldwin,[13] where the court acknowledged that recent cases have found that `before a state law can create a liberty interest, it must contain `substantive predicates’ to the exercise of discretion and `specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow,”[14] and that `no constitutional right to sentencing guidelines exists.’[15] Suleiman’s vagueness challenge is not well taken, and we reject it.
Finally, Suleiman contends that the Washington sentencing scheme violates his federal due process rights because a jury did not find the facts upon which the exceptional sentence was based beyond a reasonable doubt.
Suleiman entered guilty pleas and stipulated to the facts; however, we will not address whether he thereby waived this argument. He acknowledges that the Washington Supreme Court rejected this argument in State v. Gore,[16] but argues that Gore’s validity is in question because the United State Supreme Court has granted certiori in State v. Blakely,[17]
which relied on the reasoning in Gore. We cannot ignore the clear holdings of Gore and Blakely. We hold that finding aggravating factors neither increases the maximum sentence nor defines a separate offense. Therefore, the trial court did not err in imposing the exceptional sentence.
Affirmed.
APPELWICK, KENNEDY and COLEMAN, JJ.
(1996).