Opinion
No. 40174-6-II.
Filed: January 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 09-1-00389-2, Frederick W. Fleming, J., entered December 4, 2009.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Hunt and Van Deren, JJ.
Charles P. Oslakovic pleaded guilty to driving while under the influence of intoxicants (DUI), a gross misdemeanor, and failure to remain at the scene of an accident, a felony. The trial court sentenced him to consecutive standard range sentences. Trial courts have broad discretion to impose consecutive sentences for misdemeanor convictions, while sentences for felony convictions are presumptively concurrent unless the court meets the requirements for imposing an exceptional sentence. Oslakovic appeals his consecutive sentences, arguing this disparity between misdemeanor and felony sentencing violates his right to equal protection of the law. We hold that the differences between misdemeanor sentencing and felony sentencing do not violate equal protection rights and affirm Oslakovic's sentences.
FACTS
On April 3, 2008, Oslakovic was driving down the freeway at 70-75 miles per hour while Amy Roznowski was standing on the running board on the side of the vehicle. Roznowski fell onto the freeway and witnesses stopped to help her. Oslakovic continued driving. Roznowski was transported to a local hospital and treated for multiple fractures, abrasions, and contusions. Shortly after the accident, Trooper Ames stopped Oslakovic as he exited the freeway. Oslakovic admitted he had been drinking and told the trooper that he was on his way back to help Roznowski.
The State charged Oslakovic with DUI, a gross misdemeanor, and failure to remain at the scene of an accident, a felony. RCW 46.52.020(4); RCW 46.61.502(5). Oslakovic entered Alford pleas for both charges. The trial court sentenced him to one year for each conviction, to be served consecutively.
N. Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The court suspended 185 days of the misdemeanor sentence, under certain conditions.
ANALYSIS I. Consecutive Sentences
Generally, multiple sentences "shall run consecutively" unless the trial court expressly orders concurrent sentences. RCW 9.92.080(3). But under the sentencing reform act (SRA), multiple sentences "shall be served concurrently" unless the trial court meets the requirements for imposing an exceptional sentence. RCW 9.94A.589(1)(a). To impose an exceptional sentence, the trial court must find "substantial and compelling reasons" justifying the sentence and "set forth the reasons for its decision in written findings of fact and conclusions of law." RCW 9.94A.535. The SRA only applies only to felony convictions. RCW 9.94A.010; State v. Snedden, 149 Wn.2d 914, 922, 73 P.3d 995 (2003). The SRA does not limit a trial court's discretion in imposing consecutive sentences for misdemeanor convictions:
This rule is subject to exceptions that are not applicable here. See RCW 9.94A.589(1)(b), (c).
Our trial courts have great discretion in imposing sentences within the statutory limits for misdemeanors and gross misdemeanors. This broad discretion is consistent with the tradition in American criminal jurisprudence affording wide latitude to sentencing judges on grounds that "the punishment should fit the offender and not merely the crime." While the [SRA] places substantial constraints on this historical discretion in felony sentencing, no similar legislation restricts the trial court's discretion in sentencing for misdemeanors or gross misdemeanors.
State v. Anderson, 151 Wn. App. 396, 402, 212 P.3d 591 (2009) (quoting State v. Herzog, 112 Wn.2d 419, 423-24, 771 P.2d 739 (1989)); see also State v. Whitney, 78 Wn. App. 506, 517, 897 P.2d 374 (1995) (holding the SRA does not limit a trial court's discretion to impose a misdemeanor sentence running consecutively with a felony sentence). Oslakovic argues that this disparity in felony and misdemeanor sentencing deprives some defendants with multiple convictions of the SRA's protections, thereby violating their right to equal protection of the law.
II. Equal Protection
Under article I, section 12 of our state constitution and the Fourteenth Amendment to the federal constitution, the law must treat people who are "similarly situated" alike. State v. Coria, 120 Wn.2d 156, 169, 839 P.2d 890 (1992); State v. Jagger, 149 Wn. App. 525, 531, 204 P.3d 267 (2009). To prevail on an equal protection claim, a defendant must first establish that he or she received disparate treatment because of membership in a class of similarly situated individuals, and that the disparate treatment was the result of intentional or purposeful discrimination. State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006); State v. Handley, 115 Wn.2d 275, 289-90, 796 P.2d 1266 (1990). The type of classification or right at issue determines which of three tests we apply — strict scrutiny, intermediate scrutiny, or the rational basis tests. Osman, 157 Wn.2d at 484.
Article I, section 12 of our state constitution provides: "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." The Fourteenth Amendment to the federal constitution provides: "No State shall . . . deny . . . any person within its jurisdiction the equal protection of the laws." The Supreme Court of Washington has held that the equal protection clause of article I, section 12 and the Fourteenth Amendment are substantially identical and subject to the same analysis. State v. Shawn P., 122 Wn.2d 533, 559-60, 859 P.2d 1220 (1993).
Strict scrutiny applies when a state action affects a suspect class or a fundamental right. Intermediate scrutiny applies when a state action affects a "semisuspect" class or an "important" right. The rational basis test applies to all other state actions. Osman, 157 Wn.2d at 484.
We apply the rational basis test to statutes that involve physical liberty interests and do not involve a suspect or semi-suspect class, such as the sentencing statutes at issue here. See State v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514 (1996). A statute is constitutional under the rational basis test if "there is a rational relationship between the classification and a legitimate state interest." Osman, 157 Wn.2d at 486. The rational basis test is highly deferential; the party challenging the legislative classification must show that it is "purely arbitrary" to overcome the strong presumption of constitutionality. In re Det. of Stout, 159 Wn.2d 357, 375, 150 P.3d 86 (2007); Thorne, 129 Wn.2d at 771.
Oslakovic contends that defendants convicted of multiple offenses are similarly situated for equal protection purposes and that RCW 9.94A.589 and RCW 9.92.080 unfairly distinguish between defendants convicted of misdemeanors and defendants convicted of felonies. Division Three of our court considered a similar issue in State v. Bowen, 51 Wn. App. 42, 751 P.2d 1226 (1988). In Bowen, the defendants were convicted of gross misdemeanors and sentenced to the statutory maximum of one year in jail. Bowen, 51 Wn. App. at 44. Because a trial court must find "substantial or compelling" reasons for imposing the maximum statutory sentence for a felony conviction under the SRA, but the court's discretion is not similarly restricted when imposing the maximum sentence for misdemeanor convictions, the defendants argued that this disparity between felony and misdemeanor sentencing violated their right to equal protection. Bowen, 51 Wn. App. at 45-46. The State argued that defendants convicted of felonies are not similarly situated to defendants convicted of a gross misdemeanors because "all defendants convicted of gross misdemeanors are treated alike and all defendants convicted of felonies are treated alike; each class is similarly situated to itself but not to each other." Bowen, 51 Wn. App. at 46.
The Bowen court held that even if defendants convicted of misdemeanors are similarly situated to defendants convicted of felonies, the disparity in sentencing was constitutionally permissible. Bowen, 51 Wn. App. at 46-48. The Bowen court reasoned that reasonable grounds for distinguishing between felony and misdemeanor sentencing were apparent from the different consequences associated with those convictions. Bowen, 51 Wn. App. at 47. Those differences include: (1) the maximum sentence and monetary fine for a felony conviction is life imprisonment and a $50,000 fine, while the maximum sentence and fine for a gross misdemeanor conviction is one year in a county jail and a $5,000 fine; (2) felony convictions affect a defendant's civil rights, while misdemeanor convictions do not; and (3) felony convictions have future consequences when calculating a defendant's offender score, while misdemeanor convictions do not. See Bowen, 51 Wn. App. at 47; see also Wash. Const. art. VI, § 3; RCW 9.92.020; RCW 9A.20.021(1)(a); RCW 9.94A.525.
We hold that Oslakovic's equal protection claim fails for the same reason. Even if defendants convicted of felonies and defendants convicted of misdemeanors are similarly situated for equal protection purposes, the significant differences in the quality and duration of the consequences associated with those convictions provide a rational basis for distinguishing between the two for sentencing purposes. See Osman, 157 Wn.2d at 486; Bowen, 51 Wn. App. at 47. For example, two consecutive gross misdemeanor convictions could not exceed two years of imprisonment, while two consecutive felony convictions could result in a lifetime, or more, of imprisonment. See RCW 9.92.020; RCW 9A.20.021(1)(a). The substantial difference in the potential length of the total sentence provides a reasonable basis for restricting a trial court's discretion when imposing consecutive sentences for felony convictions but not restricting the court's discretion when imposing consecutive sentences for misdemeanor convictions.
Oslakovic has not shown that the disparity in imposing consecutive sentences for felony and misdemeanor convictions under RCW 9.94A.589 and RCW 9.92.080 is purely arbitrary or the result of intentional or purposeful discrimination. Stout, 159 Wn.2d at 375; Osman, 157 Wn.2d at 484. Oslakovic has not overcome the strong presumption that these statutes are constitutional, therefore, we affirm his consecutive sentences.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and VAN DEREN, J., concur.