Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 16, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No. 29464-1-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
RONALD D. ZIGAN,                                )         PUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J. ? Ronald D. Zigan appeals his vehicular homicide exceptional 

sentencing based on egregious lack of remorse and rapid recidivism.  He contends (1) 

the State failed to prove egregious lack of remorse beyond a reasonable doubt, (2) the 

RCW 9.94A.535(3)(t) rapid recidivism language is constitutionally vague, and (3) his 

exceptional sentence lacked compelling reasons.  In his statement of additional 

grounds for review (SAG), he argues he was denied effective assistance of counsel.

We affirm.

                                            FACTS

       On July 19, 2009, Jeff and Mildred Kreider were riding their motorcycles when 

Mr. Zigan's vehicle struck Ms. Kreider head on in her lane of travel, killing her instantly.   

No. 29464-1-III 
State v. Zigan  

Mr. Zigan was then driving under the influence of alcohol and/or drugs and was 

reckless.  He was then under community supervision following his release from jail in 

mid-May for violating sentencing conditions for a prior crime.  Mr. Kreider saw the 

accident in his rear view mirror. He ran to his wife and found her dead.  Mr. Zigan 

asked Mr. Kreider, "What are you doing in my lane?"  Report of Proceedings (RP) 

(Sept. 1, 2010) at 18. Mr. Kreider responded, "[Y]ou've killed my wife, you've just

destroyed my world." Id. at 87.  While arguing, Mr. Zigan asked Mr. Kreider, "[A]re you 

ready to bleed?"  Id. at 100.

       While talking with responding officers, Mr. Zigan was smiling and laughing.  

Officers transported Mr. Zigan to the hospital for a blood draw.  There, an officer 

walked up behind him.  Startled, Mr. Zigan declared, "[Y]ou scared me!"  RP (Sept. 1, 

2010) at 150.  The officer responded, "[W]ell, that's because I'm a ninja."  Id.  Mr. Zigan 

warned, "[Y]ou'd better not ride one of those, I may kill you."  Id.  The officer thought 

Mr. Zigan was referring to a Kawasaki Ninja motorcycle and felt this was an ill-

conceived attempt at humor.  Later, when at the county jail, Mr. Zigan's community 

corrections officer escorted him to an area where inmates were working. Mr. Zigan 

smiled and waved at the inmates and said, "[F]ellows, if you hit someone on a 

motorcycle, don't get caught."  Id. at 71.

       The State charged Mr. Zigan with vehicular homicide, alleged aggravating 

circumstances, and notified him of its intent to seek an aggravated exceptional 

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No. 29464-1-III 
State v. Zigan  

sentence.  Mr. Zigan pleaded guilty to the vehicular homicide charge, but challenged 

the aggravating circumstances in a bench trial.  There, the State produced the above 

facts to show Mr. Zigan displayed an egregious lack of remorse when reoffending 

shortly after his release on May 12, 2009.  Mr. Zigan defended with evidence from a 

psychologist who reported Mr. Zigan suffered from post-traumatic stress disorder, 

alcohol dependence, polysubstance dependence, and antisocial personality traits

related to his substance abuse.  The psychologist opined Mr. Zigan was suffering from 

an acute stress reaction at the time of the accident, doing and saying things in the 

moment that were not thought out and did not reflect his accurate feelings.  He 

concluded Mr. Zigan felt remorse for the victim and for the victim's family, and had 

genuine feelings of responsibility for what happened. 

       The trial court found the existence of both aggravating factors, and, after 

expressing reservations about the meaning of rapid recidivism, sentenced Mr. Zigan to 

an exceptional 180-month sentence.  He appealed.           

                                          ANALYSIS

                                     A.  Lack of Remorse

       The issue is whether the trial court erred in concluding the presence of the 

aggravating factor of egregious lack of remorse beyond a reasonable doubt.    

       The facts supporting an aggravating factor must be proved to a jury beyond a 

reasonable doubt. RCW 9.94A.537(3). We use the same standard of review for the 

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State v. Zigan  

sufficiency of the evidence of an aggravating factor as we do for the sufficiency of the 

evidence of the elements of a crime.  State v. Yarbrough, 151 Wn. App. 66, 96, 210 

P.3d 1029 (2009).  Under this standard, we review the evidence in the light most 

favorable to the State to determine whether any rational trier of fact could have found 

the presence of the aggravating circumstances beyond a reasonable doubt. State v.

Yates, 161 Wn.2d 714, 752, 168 P.3d 359 (2007).  If a statute is clear on its face, its 

meaning is to be derived solely from the plain language of the statute. Legislative 

definitions included in the statute are controlling, but in the absence of a statutory 

definition, we will give a term its plain and ordinary meaning ascertained from a 

standard dictionary. State v. Watson, 146 Wn.2d 947, 954-55, 51 P.3d 66 (2002).

       The controlling statute required the court to find Mr. Zigan "demonstrated or 

displayed an egregious lack of remorse."  RCW 9.94A.535(3)(q). The parties dispute

whether the evidence showed Mr. Zigan's actions rose to the legally required level of 

egregiousness.  Absent a statutory definition, we will give terms their dictionary 

meanings.  Washington cases on the subject are instructive.  

       In State v. Ross, 71 Wn. App. 556, 563-64, 861 P.2d 473 (1993), the court found 

the State supported the egregious lack of remorse factor by showing that Mr. Ross 

continued to blame the justice system for his crimes and that his statement that he was 

sorry was not credible. Id.  "Whether a sufficient quantity or quality of remorse is 

present in any case depends on the facts."  Id. at 563.  Another court found a 

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No. 29464-1-III 
State v. Zigan  

defendant's lack of remorse sufficiently egregious where he bragged and laughed 

about the murder, thought the killing was funny, joked about being on television for the 

murder, and told police he felt no remorse. State v. Erickson, 108 Wn. App. 732, 739-

40, 33 P.3d 85 (2001). In another case, the court found egregious conduct when a 

woman joked with her husband's killer about sounds her husband made after the killer 

shot him and went to meet a boyfriend's family 10 days after her husband's death. 

State v. Wood, 57 Wn. App. 792, 795, 790 P.2d 220 (1990).

       Here, Mr. Zigan asked Mr. Kreider if he was "ready to bleed?" moments after Mr. 

Kreider's wife died. RP (Sept. 1, 2010) at 100. Mr. Zigan was smiling and laughing 

while talking to officers at the crime scene.  He later joked with one of the officers at the 

hospital that he better not ride a Ninja motorcycle because he might get killed by him 

too.  At the jail, Mr. Zigan smiled and waved at the inmates and said, "[F]ellows, if you 

hit someone on a motorcycle, don't get caught." RP (Sept. 1, 2010) at 71. While Mr. 

Zigan presented expert testimony explaining away his behavior, those sorts of 

determinations are left to the trier of fact and will not be disturbed on appeal.  State v. 

Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Based on the similarities in 

Ross, Erickson, and Wood, and taking Ross' guidance regarding the sufficient quantity 

or quality of remorse as being dependent on the facts, we conclude Mr. Zigan's conduct 

is sufficiently egregious to support exceptional sentencing.  

                                    B.  Rapid Recidivism

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No. 29464-1-III 
State v. Zigan  

       The issue is whether, considering the "shortly after" language in RCW 

9.94A.535(3)(t), the rapid recidivism aggravator is unconstitutionally vague.  

       We review de novo a challenge to the constitutionality of a statute. State v. 

Shultz, 138 Wn.2d 638, 643, 980 P.2d 1265 (1999). Where the statute does not 

impinge on First Amendment rights, we evaluate a vagueness challenge "by examining 

the statute as applied under the particular facts of the case." State v. Coria, 120 Wn.2d 

156, 163, 839 P.2d 890 (1992).  Statutes are presumed constitutional.  City of Spokane 

v. Vaux, 83 Wn.2d 126, 129, 516 P.2d 209 (1973). When a statute does not define 

terms alleged to be unconstitutionally vague, we "may 'look to existing law, ordinary 

usage, and the general purpose of the statute' to determine whether 'the statute meets 

constitutional requirements of clarity.'" State v. Hunt, 75 Wn. App. 795, 801, 880 P.2d 

96 (1994) (quoting State v. Russell, 69 Wn. App. 237, 245, 848 P.2d 743 (1993)).

       Under RCW 9.94A.535(3)(t), a sentencing court may impose an aggravated 

exceptional sentence after a finding, "[t]he defendant committed the current offense 

shortly after being released from incarceration." The term, "shortly after" is not defined.  

Mr. Zigan argues the phrase "shortly after" is an inherently uncertain term.  A statute 

violates the due process clause if (1) it "does not define the criminal offense with 

sufficient definiteness that ordinary people can understand what conduct is proscribed"

or (2) it "does not provide ascertainable standards of guilt to protect against arbitrary 

enforcement." State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001) (internal 

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No. 29464-1-III 
State v. Zigan  

quotation marks omitted) (quoting City of Bellevue v. Lorang, 140 Wn.2d 19, 30, 992 

P.2d 496 (2000)).

       Several courts have addressed the term, "shortly after" as referenced in RCW 

9.94A.535(3)(t).  In State v. Butler, 75 Wn. App. 47, 876 P.2d 481 (1994), the 

defendant committed second degree robbery and an attempted second degree rape on 

the same day that he was released from prison after serving a sentence for first degree 

robbery. The court upheld the exceptional sentence.  Id. at 55.  In State v. Hughes, 154 

Wn.2d 118, 141-42, 110 P.3d 192 (2005), the defendant, less than three months after 

being released from custody, had committed the same offense against the same victim. 

Id. at 141. In reversing, the Hughes court did not discuss the validity of the factor, but 

solely the absence of a jury determination. In State v. Saltz, 137 Wn. App. 576, 154 

P.3d 282 (2007), the defendant, on the 30-day anniversary of his release from jail after 

serving a sentence for violating a no-contact order, committed malicious mischief 

against the same victim.  Id. at 579, 585.  The exceptional sentence was affirmed.  Id.

at 586.  Finally, in State v. Combs, 156 Wn. App. 502, 232 P.3d 1179 (2010), this court 

held that an eluding offense committed six months after release from prison for drug 

possession is not an offense committed "'shortly after being released.'"  Id. at 506. But, 

the court held, "[w]e do not set an outer time limit on what constitutes a short period of 

time. That period will vary with the circumstances of the crime involved."  Id.  

       Based on the above cases, RCW 9.94A.535(3)(t) requires some subjective 

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No. 29464-1-III 
State v. Zigan  

evaluation.  But that a law requires subjective evaluation to determine whether the 

enactment has been violated does not mean the law is unconstitutional.  City of 

Spokane v. Douglass, 115 Wn.2d 171, 181, 795 P.2d 693 (1990). As applied here, 

RCW 9.94A.535(3)(t) is not vague.  Mr. Zigan committed the offense just over two 

months after his incarceration.  No reasonable person could believe that the 

circumstances presented here constitute anything other than "[t]he defendant 

committed the current offense shortly after being released from incarceration." RCW 

9.94A.535(3)(t).  Thus, the term is not unconstitutionally vague as applied to the facts.

                         C.  Substantial and Compelling Reasons

       The issue is whether the trial court erred in deciding sufficient evidence 

supported the aggravating factors to raise substantial and compelling reasons for 

departing from a standard range sentence.      

       A trial court "may impose a sentence outside the standard sentence range for an 

offense if it finds . . . that there are substantial and compelling reasons justifying an 

exceptional sentence." RCW 9.94A.535.  In RCW 9.94A.535, the legislature created a 

list of aggravating circumstances constituting substantial and compelling reasons for an 

upward departure from the sentencing guidelines. As discussed above, both egregious 

lack of remorse and rapid recidivism are listed reasons to justify an aggravated 

exceptional sentence.  See RCW 9.94A.535(3)(q) and (t).  The sentencing court found 

Mr. Zigan was not remorseful and committed the current offense shortly after being 

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No. 29464-1-III 
State v. Zigan  

released from jail.  While Mr. Zigan argues his conduct was not materially different from 

other defendants' conduct, the trial court found otherwise.  The findings support the trial 

court's conclusion that substantial and compelling reasons exist to impose an 

exceptional sentence pursuant to RCW 9.94A.535. In sum, we hold the trial court did 

not err in concluding an exceptional sentence was warranted.

                                           D.  SAG

       Mr. Zigan's pro se SAG concerns relate to ineffective assistance under the Sixth 

Amendment because he asserts defense counsel failed to: (1) request a venue change, 

(2) call a witness, and (3) adequately investigate officer statements.  

       Claims of ineffective assistance are mixed questions of fact and law reviewed by 

us de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). 

To prevail on his ineffective assistance claim, Mr. Zigan must satisfy the two-prong test 

under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984). If a defendant fails to establish either prong, we need not inquire further. 

State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). First, he must show 

counsel's representation fell below an objective standard of reasonableness.  Id.

Solely legitimate trial strategy constitutes reasonable performance.  State v. Aho, 137 

Wn.2d 736, 745, 975 P.2d 512 (1999). Second, he must show the deficient 

performance was prejudicial. Hendrickson, 129 Wn.2d at 78. Prejudice occurs when it 

is reasonably probable that but for counsel's errors, "'the result of the proceeding would 

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No. 29464-1-III 
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have been different.'" State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991) 

(quoting Strickland, 466 U.S. at 694).  We presume effective representation, and Mr. 

Zigan must show no legitimate strategic or tactical reason existed for the challenged 

conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).

       Under RCW 4.12.030(2), "[t]he court may . . . change the place of trial when . . . 

there is reason to believe that an impartial trial cannot be had therein."  Mr. Zigan relies 

on information outside this court's record to argue an impartial jury could not be had in 

Grant County.  We do not, on direct appeal, consider matters outside the record.  

McFarland, 127 Wn.2d at 335.  Nothing in this record shows Mr. Zigan requested his 

counsel to call certain witnesses, or that his counsel failed to investigate officer 

statements.  Any claim supported by facts outside this record is best raised in a 

personal restraint petition.  McFarland, 127 Wn.2d at 338, n.5.  Therefore, Mr. Zigan's 

SAG lacks merit based on our record.

       Affirmed.

                                                           __________________________
                                                           Brown, J.

WE CONCUR:

___________________________                                __________________________
Sweeney, J.                                                Siddoway, J.

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