Opinion
No. 51921-2-I.
Filed: May 3, 2004.
Appeal from Superior Court of King County. Docket No: 02-1-05890-2. Judgment or order under review. Date filed: 01/29/2003. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Cheryl D Aza, Whatcom County Public Defender, 311 Grand Ave Ste 305, Bellingham, WA 98225-4038.
Swanson — informational only (Appearing Pro Se), Doc # 221469, Stafford Creek Corr. Center, 191 Constantine Way, Aberdeen, WA 98520.
Counsel for Respondent(s), Amy Jean Freedheim, King Co Pros Office, 516 3rd Ave Fl 5, Seattle, WA 98104-2385.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Stig Swanson appeals his exceptional sentence, arguing that the trial court relied on an incorrect offender score, that the aggravating factors used by the trial court were not supported by substantial evidence, and that due process required the State to prove the factual basis for the aggravating factors beyond a reasonable doubt. We affirm the exceptional sentence because: (1) the error in offender score did not affect the sentence; (2) the trial court's findings of fact and conclusions of law were based on substantial evidence; (3) the exceptional sentence was based on valid aggravating factors; and (4) the State was not required to prove the factual basis for the aggravating factors beyond a reasonable doubt.
FACTS
On the afternoon of August 12, 2002, Stig Swanson drove an acquaintance's truck while under the influence of a large quantity of the narcotic drug oxycodone. A concerned citizen noticed Swanson's erratic driving and followed him. When Swanson stopped the truck, the citizen exited her vehicle and approached the truck. She attempted to convince Swanson not to drive in his condition and offered to take him where he needed to go. Swanson ignored the citizen's urgings and continued to drive. The citizen waved down a Department of Transportation (DOT) vehicle, which then began to follow Swanson. The DOT employees called 911 and continued to follow the truck. The DOT employees observed Swanson's erratic driving: `He drove in and out of his lane, he sped up and slowed down, and nearly wrecked when he drove onto the shoulder of the roadway[.]' As Swanson approached a DOT worksite, the DOT employees following the truck honked in an attempt to warn the workers on the shoulder of the road. Unfortunately, the warning was ineffective. Swanson swerved onto the shoulder, drove over some traffic cones, and struck a DOT worker, killing him instantly.
Swanson was arrested and charged with vehicular homicide driving under the influence. Swanson entered an Alford plea. The trial court imposed an exceptional sentence of 96 months. Swanson appeals.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
ANALYSIS
Swanson argues that the State incorrectly calculated his offender score because it relied on a conviction that had washed out in its calculation. `In the context of sentencing, established case law holds that illegal or erroneous sentences may be challenged for the first time on appeal.' State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). The State bears the ultimate burden of proving a defendant's criminal history by a preponderance of the evidence. Ford, 137 Wn.2d at 480. `In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports. . . .' RCW 9.94A.530(2). If a defendant acknowledges an out-of-state conviction, there is no need for the State to offer further proof. State v. Hickman, 112 Wn. App. 187, 191, 48 P.3d 383 (2002). Here, Swanson's criminal history included: (1) a 1983 delivery of a controlled substance conviction in Texas; (2) three 1988 convictions for forgery; (3) a 1992 attempting to elude a police vehicle conviction; and (4) a 1999 urination/defecation in public conviction. In its presentence report, the State relied on the 1983 Texas conviction to calculate Swanson's offender score as 1. Swanson agreed with the offender score calculation in his plea agreement and presentence report. At sentencing, however, the State relied on the 1992 eluding conviction to determine that Swanson's offender score was 1. On appeal, Swanson argues that because the calculation of the offender score was incorrect on its face, the case must be remanded for resentencing. The State concedes that the 1992 eluding conviction had washed, but argues that its reliance on it at sentencing was a clerical error and that remand is not necessary because the offender score is 1, based on the 1983 Texas conviction. Swanson acknowledged the Texas conviction and agreed to the State's calculation of the standard range in his presentence report. Therefore, had the State correctly cited the 1983 Texas conviction at sentencing, the trial court would have determined that Swanson had an offender score of 1. When the trial court relies on an erroneous calculation, remand is not necessary if the trial court would have imposed the same sentence. State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997). Because the standard range would be the same, it is clear that the trial court would have imposed the same sentence, and therefore, remand is not necessary.
The next issue we address is whether the trial court erred in entering its findings of fact. Findings of fact must be supported by substantial evidence. State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996). `Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the stated premise.' State v. Thetford, 109 Wn.2d 392, 396, 745 P.2d 496 (1987). If findings are not supported by substantial evidence, the reviewing court is not bound by them. Truck Ins. Exch. v. Merrell, 23 Wn. App. 181, 184, 596 P.2d 1334 (1979). Swanson argues that two of the trial court's findings were not supported by substantial evidence. In finding of fact 2, the trial court discussed Swanson's speed:
The defendant was traveling eastbound on SR 18 at 60-mph. The posted speed limit of SR 18 is 60-mph. The defendant continued to drive 60-mph through the DOT marked work zone where Mr. Baardson was working. 60-mph is not a reasonable speed to travel past a marked DOT work zone.
Contrary to Swanson's argument, there was substantial evidence to support the trial court's findings. It is undisputed that Swanson was driving erratically at a speed of 60-mph and that he drove off the road prior to the accident. Additionally, the DOT work zone was clearly marked. Swanson was unable to control his car given his condition and the speed at which he was traveling. It is clear that driving at the maximum posted speed limit is not always reasonable. Robison v. Simard, 57 Wn.2d 850, 852, 360 P.2d 153 (1961). Because it is supported by substantial evidence, the trial court did not err in making this finding.
Swanson also challenges the trial court's finding that `[t]he defendant, while affected by the drugs disregarded the DOT marked work zone. He virtually performed a slalom course through the traffic cones. He disregarded the signs that a DOT employee was working on the shoulder.' Swanson argues that because he was under the influence of the drugs, he was unable to form the intent to `disregard' the signs. The finding itself, states that the `disregard' was related to the drug use and thus encompasses Swanson's argument that he was unable to intentionally disregard the signs. Swanson also challenges the characterization of the driving as `perform[ing] a slalom course.' Swanson argues that in a slalom course, the skier weaves in and out of obstacles. While the evidence does not suggest that Swanson literally attempted to weave in and out of the cones, it is uncontested that Swanson's driving was extremely erratic, he was in a clearly marked DOT work zone, he did not slow down when he entered the work zone, he ran over traffic cones, and he slammed into the victim. This evidence is sufficient to support the trial court's finding.
Swanson additionally argues that the trial court erred in imposing an exceptional sentence. In reviewing an exceptional sentence, the first step is to determine if the aggravating factors listed to support the sentence are supported by the record. State v. Cardenas, 129 Wn.2d 1, 5-6, 914 P.2d 57 (1996). This is reviewed under the `clearly erroneous' standard. Cardenas, 129 Wn.2d at 6. Next, the court must determine if the factors used were valid as a matter of law. Cardenas, 129 Wn.2d at 6. Finally, the court must determine whether, under an abuse of discretion standard, the sentence is clearly too lenient or too excessive. Cardenas, 129 Wn.2d at 6.
The first factor that Swanson challenges is the trial court's conclusion that `[t]he speed and other driving in the marked DOT work zone by the defendant were far more egregious than typically associated with vehicular homicide cases.' Conduct that is far more egregious than typical is a valid non-statutory factor to consider in imposing an exceptional sentence. State v. Jacobson, 92 Wn. App. 958, 965 P.2d 1140 (1998). Here, Swanson had 0.36 mg/L of oxycodone in his blood and the court found that this was consistent with heavy narcotics usage. Additionally, another driver pleaded with Swanson not to drive in his condition and offered to drive Swanson to his destination. Swanson ignored the pleas. Swanson also approached the DOT worksite without slowing down, swerved onto the shoulder, and slammed into the victim. This evidence is sufficient to support the aggravating factor.
Swanson does not challenge this finding.
The trial court also found, as an aggravating factor, that the victim was particularly vulnerable. The victim's status as a vulnerable pedestrian in a felony vehicular case is a valid aggravating factor. State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). In Nordby, the court recognized that pedestrians are particularly vulnerable in vehicular cases because they do not have the same opportunity as another driver would to avoid a collision and do not have the protection of an automobile in a collision. Here, like the victim in Nordby, the DOT worker did not have the protection of a vehicle and was unable to avoid the collision with Swanson. Additionally, the victim was on the shoulder of the road, within a clearly marked DOT work zone, and wearing a bright orange work vest, alerting drivers that he was on the shoulder of the road. Because his presence was clearly marked, the victim had little reason to suspect that a driver would disregard the various signs and drive onto the shoulder. See State v. Thomas, 57 Wn. App. 403, 408, 788 P.2d 24 (1990) (concluding that part of the victim's inability to avoid the accident was due to the fact that she was in a parking lot and had `little reason to expect a speeding vehicle'). Therefore, there was sufficient evidence for the trial court to find that the victim was particularly vulnerable.
Swanson does not argue that the sentence was clearly excessive. Because the trial court relied on valid aggravating factors supported by substantial evidence, we affirm the exceptional sentence. Swanson also argues that his due process rights were violated because a jury did not find the facts upon which the exceptional sentence was based beyond a reasonable doubt. Criminal defendants are entitled to jury determinations that they are guilty of every element of the crime beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In Apprendi, the court held that these rights also apply to sentencing factors: `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Apprendi, 53 U.S. at 490. Swanson argues that under Apprendi, the factual basis for an exceptional sentence must be charged and found by a jury beyond a reasonable doubt. The Washington Supreme Court, however, has specifically rejected this argument in State v. Gore, 143 Wn.2d 288, 314, 21 P.3d 262 (2001):
Aggravating factors neither increase the maximum sentence nor define a separate offense calling for a separate penalty. The state statutory scheme permits a judge to impose an exceptional sentence still within the range determined by the Legislature and not exceeding the maximum after considering the circumstances of an offense and, as McMillan and Apprendi indicate, it may do so without the factual determinations being charged, submitted to a jury, or proved beyond a reasonable doubt.
Gore, 143 Wn.2d at 314. Swanson acknowledges Gore's holding, but argues that the validity of that case is in question because the United States Supreme Court has granted certiorari in State v. Blakely, 111 Wn. App. 851, 47 P.3d 149 (2002), cert. granted, 124 S.Ct. 429 (2003), which relied on the reasoning in Gore. We cannot, however, ignore the clear holdings of Gore and Blakely. We hold that finding aggravating factors does not increase the maximum sentence nor define a separate offense. Therefore, the trial court did not err in imposing the exceptional sentence. Affirmed.
Swanson also raises two pro se issues: (1) that the victim was reckless and (2) that he may have had a seizure, which caused the accident. The record does not support these assertions, and therefore, we will not consider them. State v. Chiariello, 66 Wn. App. 241, 244, 831 P.2d 1119 (1992).
SCHINDLER and AGID, JJ., concur.