Preview:

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent, v. NICHOLAS ANTHONY PAPPAS, Petitioner. ______________________________________)

) ) ) ) ) ) ) ) )

No. 86859-0

En Banc

Filed December 6, 2012

MADSEN, C.J.-- Nicholas Pappas challenges the Court of Appeals' decision affirming an exceptional sentence for vehicular assault based on the severity of the victim's injuries. We hold that our case law and the language of RCW 9.94A.535(3)(y) authorize an exceptional sentence when the jury finds the victim's injuries substantially exceed "substantial bodily harm." Accordingly, we affirm the Court of Appeals. FACTS AND PROCEDURAL HISTORY On August 12, 2008, Pappas gave Melanie Thielman a ride on his motorcycle. While driving, Pappas passed another car and that driver observed Pappas to be driving at a high rate of speed. Pappas drove off the road when it curved and he hit a utility pole.

No. 86859-0 Thielman and Pappas were thrown from the motorcycle. Thielman suffered several injuries, including bruising, fractures, and a severe and likely permanent brain injury. As a result, she is unable to walk or speak, unable to feed herself without assistance, and has trouble with bodily functions. She will likely require care for the rest of her life, which may be shortened due to the risk of infection. The State charged Pappas with vehicular assault under the reckless manner and disregard for the safety of others prongs, both requiring proof of "substantial bodily harm." The State also charged the aggravating circumstance that the "victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense." RCW 9.94A.535(3)(y); Clerk's Papers at 121. The jury instructions included a definition of "substantial bodily harm" and an instruction that Thielman's injuries must "substantially exceed" this level of harm to find the aggravating factor. The jury convicted Pappas of vehicular assault for disregard for the safety of others, rejecting the reckless manner prong. The jury also found that Thielman's injuries substantially exceeded the level of harm required for vehicular assault. In response to the jury's findings, the trial judge departed from the standard sentence range of one to three months and imposed an exceptional sentence of 18 months. Pappas appealed the trial court's imposition of an exceptional sentence, arguing that the sentence was invalid because the factor of injury severity "inheres in the verdict for vehicular assault." Br. of Appellant at 3 (capitalization omitted). Relying on case law interpreting an older version of the vehicular assault statute, Pappas argued that the
2

No. 86859-0 legislature necessarily contemplated this level of injury when it set the standard range for the offense. The Court of Appeals rejected this argument and affirmed the sentence, relying on the language of RCW 9.94A.535(3)(y) and this court's recent ruling in State v. Stubbs, 170 Wn.2d 117, 240 P.3d 143 (2010). ANALYSIS Pappas argues that an exceptional sentence cannot be imposed for a vehicular assault conviction under RCW 9.94A.535(3)(y), as a matter of law. To reverse an exceptional sentence, we must find either that "the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense" or that "the sentence imposed was clearly excessive or clearly too lenient." RCW 9.94A.585(4); Stubbs, 170 Wn.2d at 123. The legal sufficiency of a sentence is reviewed de novo. State v. Ferguson, 142 Wn.2d 631, 646, 15 P.3d 1271 (2001). A trial court can impose an exceptional sentence under RCW 9.94A.535(3)(y) when the jury finds that the "victim's injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense," and the court is satisfied that this is a "`substantial and compelling reason'" to justify an exceptional sentence. Stubbs, 170 Wn.2d at 124 (quoting RCW 9.94A.535). The "substantially exceed" aggravating factor was codified when the legislature amended RCW 9.94A.535 to conform with Blakely v. Washington, 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In doing so, the legislature recognized "the need to restore the judicial discretion that has been limited
3

No. 86859-0 as a result of the Blakely decision." Laws of 2005, ch. 68,

Download 86859-0.pdf

Washington Law