State Of Washington v. Gary Shawn Mobley ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
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) DIVISION ONE
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GARY SHAWN MOBLEY, ) UNPUBLISHED OPINION s»
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Appellant. ) FILED: January 21, 2014
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Becker, J. —Appellant Gary Mobley stipulated to "an exceptional
sentence of at least 93 months" as part of a plea to vehicular assault. The court
imposed a sentence of 108 months. The court found there were substantial and
compelling reasons to impose an exceptional sentence, including not only
Mobley's stipulation but also the fact that the victims were particularly vulnerable.
Mobley contends that the finding of particular vulnerability is unsupported by the
record. He asks that the sentence be remanded for the court to determine
whether, without that finding, a shorter sentence is warranted. We conclude the
record supports the court's finding and there is no basis for a remand.
The event giving rise to this sentencing appeal occurred on Orcas Island
in February 2012. Mobley was angry with a girl friend. The girl friend was trying
to leave the island in a sport utility vehicle with two other people. Mobley, driving
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his car, intercepted the other vehicle at an intersection, blocked it, and rammed it.
When the driver, Aaron Stewart, drove around Mobley's car and tried to get away,
Mobley gave chase at high speeds and rammed the rear end of Stewart's vehicle
several times. The occupants feared Mobley was trying to kill them. When
Stewart slowed to turn onto a road leading to the sheriff's office, Mobley again
purposefully rammed into the vehicle, causing it to roll over.
The State initially charged Mobley with four felonies and one count of
reckless driving for this incident. Mobley pleaded guilty in June 2012 to an
amended information that reduced the felony charges for this incident from four
to two. The plea also resolved another charge of vehicular assault arising from
an incident a few months earlier.
As part of the guilty plea, Mobley agreed that an exceptional sentence was
appropriate for count 2, the count of vehicular assault involving Aaron Stewart.
Stewart suffered very serious injuries in the crash, and Mobley was not carrying
insurance. The standard range was 15 to 20 months. The maximum sentence
authorized by statute for vehicular assault is 120 months. It was agreed that
Mobley would ask the court to impose an exceptional sentence "ofat least 93
months" for count 2, and the State would ask the court to impose an exceptional
sentence of 108 months. The State agreed to recommend standard range
sentences for the other felony counts.
The trial court accepted the State's recommendation and imposed an
exceptional sentence of 108 months for count 2. The court made findings
identifying the factors supporting the exceptional sentence that the court found to
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be substantial and compelling. These included Mobley's stipulation that an
exceptional sentence was appropriate. The court noted that a stipulation "is in
itself an independent basis for an exceptional sentence."
The court went on to identify other reasons, apart from the stipulation, in
support of the exceptional sentence. These included Stewart's paralyzing
injuries, which will disable him for life and were far greater than necessary to
satisfy the element of bodily harm required to establish vehicular assault. The
court also included Mobley's lack of insurance on his car and the particular
vulnerability of the occupants of Stewart's vehicle.
Mobley requests reversal of the exceptional sentence. He argues that the
trial court erred as a matter of law in finding that the occupants of Stewart's
vehicle were particularly vulnerable. He acknowledges that while he agreed to
an exceptional sentence of at least 93 months, it is unclear that the court would
again impose this exceptional sentence of 108 months if the finding of particular
vulnerability were reversed. See State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d
57(1996).
A sentencing court may impose a sentence outside the standard sentence
range for an offense "if it finds, considering the purpose of this chapter, that there
are substantial and compelling reasons justifying an exceptional sentence."
RCW 9.94A.535. "If the sentencing court finds that an exceptional sentence
outside the standard sentence range should be imposed, the sentence is subject
to review only as provided for in RCW 9.94A.585(4)." RCW 9.94A.535.
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"To reverse a sentence which is outside the standard sentence range, the
reviewing court must find: (a) 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 (b) that the sentence imposed was clearly excessive or clearly too
lenient." RCW 9.94A.585(4).
We find that the reasons stated by the sentencing court are supported by
the record. Mobley stipulated to an exceptional sentence; he caused
extraordinary injury to Aaron Stewart; he did not have insurance; and Stewart
and his passengers were particularly vulnerable, given the way the accident
occurred.
Mobley cites cases like Cardenas, where pedestrians or cyclists were
found to be particularly vulnerable victims of vehicular assault. He argues that as
a matter of law, victims of vehicular assault cannot be particularly vulnerable if
they were inside a car when the assault occurred. This argument is not
persuasive. The cases Mobley cites turn on their own facts. This case also turns
on its own facts. The trial court found the aggravating factor of particular
vulnerability based on the evidence that Mobley, by chasing the other vehicle at
high speed and ramming it repeatedly, put the occupants in a position where
there was no way to escape. In so doing, Mobley made the occupants
particularly vulnerable to his attack, as much as ifthey were pedestrians. This
was substantial evidence to support the finding.
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The finding of particular vulnerability is supported by the record, and
Mobley makes no argument that 108 months was clearly excessive. Mobley has
not established a basis for reversal of his sentence under RCW 9.94A.585(4).
Affirmed.
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WE CONCUR:
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