                                                                           FILED
                                                                        MARCH 8, 2018
                                                                 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
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 34728-1-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
MATTHEW HENRY DEVORE,                          )         PUBLISHED IN PART OPINION
                                               )
                     Appellant.                )

       FEARING, C.J. — Appellant Matthew DeVore pled guilty to second degree murder

and a sentencing aggravator that the killing caused a destructive and foreseeable impact

on persons other than the victim. The trial court, in findings of fact, found the killing to

cause a noticeable impact on others, particularly on Brenda Losey, the girlfriend of the

victim decedent. Despite pleading guilty to these facts, DeVore, on appeal, argues that

the aggravator cannot form the basis for an exceptional sentence under his circumstances,

that the aggravator is unconstitutionally vague, and that his exceptional sentence is

 excessive. We disagree and affirm his sentence.
No. 34728-1-III
State v. DeVore


                                         FACTS

       This prosecution arises from the killing of Thomas Christian by Matthew DeVore

in the presence of Brenda Losey. Losey was the estranged wife of DeVore and the

girlfriend of Christian.

       On November 24, 2014, Thomas Christian and Brenda Losey sat together holding

hands in a Kennewick plasma donation center lobby, while waiting to donate blood. The

two high school sweethearts had recently rekindled a romantic relationship. Matthew

DeVore, the separated husband of Losey, entered the lobby, ambled toward Christian,

removed a knife from his clothes, and stabbed Christian deep in the stomach.

       Matthew Devore claims he entered the center to donate blood and without any

intent to see or attack Thomas Christian. Devore asserts that his seeing Christian with his

wife inflamed his anger and he removed a knife he always carried because of being

homeless.

       Matthew DeVore’s quick attack disabled Thomas Christian from reacting. Brenda

Losey frantically attempted to protect Christian from the stabbing by stepping in front of

Christian and shoving DeVore. DeVore pushed Losey and Losey, while risking her own

life, attempted again to shield Christian from another stab. DeVore ran from the

building. At least two other people in the lobby witnessed the stabbing.

       As Thomas Christian bled to death in a blood center, Losey sought to stem the


                                            2
No. 34728-1-III
State v. DeVore


bleeding. She called to Christian: “Don’t—you can’t leave me. Don’t you dare leave

me.” Report of Proceedings (RP) (Sept. 9, 2016) at 34. Coincidentally the plasma center

video recorded the stabbing and death of Thomas Christian.

                                     PROCEDURE

       On November 26, 2014, the State of Washington charged Matthew DeVore with

second degree murder in that DeVore, with intent to kill Thomas Christian, but without

premeditation, stabbed and killed Christian. The information also charged DeVore,

pursuant to RCW 9.94A.535(3)(r), with committing the murder under the aggravating

circumstances of causing a destructive and foreseeable impact on persons other than

Christian.

       This prosecution carries a long procedural history that we relate because of some

relevance to our decision. On December 4, 2014, the trial court held an arraignment for

Matthew DeVore. Before the arraignment, DeVore signed a plea of guilty. The plea

statement declared, in part:

              On the date charged in Benton County, Washington, I saw Thomas
       Christian, the man that was living with and dating my wife, at a business in
       Kennewick. I went to the business early in an attempt to avoid seeing Mr.
       Christian. When I unexpectedly saw Mr. Christian, I became overcome
       with emotion and stabbed Mr. Christian once. As a result of my stabbing
       Mr. Christian, Mr. Christian died. . . .

Clerk’s Papers (CP) at 12. At the beginning of the arraignment, defense counsel stated



                                            3
No. 34728-1-III
State v. DeVore


that DeVore wished to enter a guilty plea, and counsel handed to the court Devore’s

statement on plea of guilty. The State then moved to file an amended information

charging DeVore with first degree murder with an aggravating circumstance of impact on

others. Second degree murder is a Class A felony that may carry a life imprisonment

sentence. RCW 9A.32.050; RCW 9A.20.021(a). One convicted of murder in the first

degree must be sentenced to life imprisonment. RCW 9A.32.040. The State and DeVore

disputed whether DeVore had entered a valid guilty plea and whether the State could

amend the information. The trial court continued the arraignment so the parties could

brief the countering arguments.

       On December 22, 2014, the trial court convened and announced that the State may

not amend its information if amending the information prejudiced Matthew DeVore’s

substantial rights. The trial court found that postponing the arraignment to obtain legal

authority on the question of whether the State could amend the information prejudiced

DeVore’s substantial right to plead guilty at the time of arraignment. The trial court

denied the State’s motion to amend the information and granted DeVore an opportunity

to plead guilty to second degree murder. The trial court conducted a plea colloquy to

determine whether DeVore’s plea was knowing, intelligent, and voluntary. The court

asked DeVore to supplement, in his own words, the factual basis for the plea. DeVore

described the killing:


                                             4
No. 34728-1-III
State v. DeVore


               [Mr. DeVore]: Yes, sir. I never, I never intended to—for what
       happened happen. I was under a lot of duress for some number of months
       and I tried to avoid Mr. Christianson [sic].
               And on the day that—on the 24th, when I went there [the plasma
       donation center], I was trying to get there early to avoid him. And I did not
       intend to meet him in any way, but rather to avoid him.
               And I was under a lot of, a lot of emotional duress, missing my
       children. And unfortunately I tried to confront him to talk to him about it.
       And, and I don’t know what happened, sir, but—just our conversation was
       an ongoing conversation between us that always seemed to go wrong.
               And I just—at that moment, I—something came over me. It was
       like getting hit by a lightning bolt.
               And after it happened, I didn’t even really recognize what had
       happened until later. I was in shock, I think, for an entire week. . . .
               ....
               . . . And that moment when I was standing there, I tried to talk to
       him and tell him—I was basically trying to tell him that I wanted to see my
       kids, but unfortunately it came out wrong and I was angry.
               And when we started talking, and I felt like he was treating me like a
       dog and told—just bushed [sic] me off and kind of motioned a kick at me
       and—I don’t believe for any intent but other than just to belittle me. And
       that was kind of an ongoing thing. And I just, I snapped and I drew my, I
       drew a knife and, and I stabbed him. I attempted to kill him.
               THE COURT: Pardon me?
               [Mr. DeVore]: In a—an attempt to kill him. That is not true.
               THE COURT: Anything else you’d like to say, sir—
               [Mr. DeVore]: No, sir.

RP (Dec. 22, 2014) at 23-24.

       During the December 22 hearing and after Matthew DeVore’s statement to the

trial court, the State renewed its objection to the acceptance of the guilty plea. The State

argued that DeVore’s comments failed to present sufficient facts to support a charge of

second degree murder, since, after stating otherwise, he denied any intent to kill. The


                                             5
No. 34728-1-III
State v. DeVore


State argued that the court possessed discretion in the interests of justice to reject

DeVore’s plea.

       During the December 22, 2014 hearing, the trial court found that Matthew DeVore

pled guilty knowingly, intelligently, and voluntarily, and also declared that DeVore stated

an adequate factual basis for his plea to second degree murder. The court, however,

questioned whether the entry of DeVore’s plea served the interests of justice. Defense

counsel and the State further argued their respective pending motions, and the cautious

trial court declared a recess.

       The trial court reconvened on December 29, 2014. After additional argument

from the State and Matthew DeVore, the trial court reversed its December 22 ruling and

granted the State’s motion to amend, while rejecting DeVore’s guilty plea. The trial

court reasoned that the administration of justice justified its December 4, 2014

continuance and did not prejudice DeVore’s substantial rights. Allowing the State to

amend the information would not prejudice DeVore’s mental health, right to remain

silent, or due process rights. DeVore then refused to enter a plea to the charge of first

degree murder and aggravated circumstances. The trial court entered a not guilty plea.

       This reviewing court accepted Matthew DeVore’s motion for discretionary review

to address the trial court’s ruling allowing the State to amend its information. We

reversed and held that, because DeVore pled guilty and the trial court found the plea


                                              6
No. 34728-1-III
State v. DeVore


knowing, voluntary, and factually supported before the trial court ruled on the State’s

motion to amend, the court violated DeVore’s right to plead guilty when the court

reversed itself.

       On remand, the trial court conducted a sentencing hearing on Matthew DeVore’s

plea of guilty to second degree murder and aggravating circumstances. During the

hearing, the trial court admitted into evidence and viewed a video of the November 24,

2014 stabbing. The video showed thirty seconds of Thomas Christian and Brenda Losey

sitting together holding hands before DeVore entered the plasma center. Losey and

Christian saw the defendant for a moment before DeVore drew his knife and stabbed

Christian. DeVore acted like he may continue the stabbing so Losey pushed him to the

extent the video no longer pictures him.

       The sentencing court heard testimony from Brenda Losey regarding the severe

impact on her of Thomas Christian’s death. She explained that, on the day of the

stabbing, she saw the knife and thought she was next. Losey held Christian in her arms

as he died and as she begged him not to die. At sentencing, Losey averred: “I can’t get

the blood out of my head, out of my heart, off my hands. Though you don’t see it, it’s

still there. I relive this every day.” RP (Sept. 9, 2016) at 34. Many of Christian’s family

members also spoke about the impact of his death.

       Matthew DeVore had no previous convictions. The charge of murder in the


                                             7
No. 34728-1-III
State v. DeVore


second degree with an offender score of zero merits a standard range sentence varying

from ten years and three months to eighteen years and four months. The maximum

sentence for second degree murder, a Class A felony, is life imprisonment. RCW

9A.32.050; RCW 9A.20.021(a). This maximum sentence looms important in our later

legal analysis.

       During sentencing, the State of Washington asked for the high end of the standard

range of two hundred and twenty months and, based on the aggravating factor, asked for

another one hundred and ten months, for a total of three hundred and thirty months or

twenty-seven years and six months. Matthew DeVore argued that he should receive a

sentence only within the standard range because he committed no previous crimes. He

contended that the State’s request for fifty percent above the standard range was

excessive. In rebuttal, the State mentioned that DeVore had been convicted of assaulting

his son. We do not know then why DeVore bore an offender score of zero.

       The trial court accepted the State’s request and sentenced Matthew DeVore to

three hundred and thirty months’ confinement. In making this determination, the court

highlighted the video that showed the heinous nature of the crime. The sentencing court

entered findings of fact that read, in part:

              5. The video showed the significant impact on Ms. Brenda Losey
       who was present at the time of the stabbing. The Court found that it was
       difficult to watch the video and that to actually have been present, as Ms.
       Losey was, would have an extremely significant impact on her.

                                               8
No. 34728-1-III
State v. DeVore


              6. The Court heard from other family members who, although they
       were not present at the time of the murder, were significantly impacted by
       this event.
              ....
              12. The Court considered what a just sentence would be. The Court
       looked at what is commensurate with the nature of the defendant’s action.
       The Court found that this is a heinous crime the defendant has pled guilty to
       and has been convicted of.
              13. The Court considered the severe impact that the crime had,
       particularly, on Ms. Losey and how it has impacted not only her, but her
       family, Mr. Christian’s family, and even the defendant’s family. The Court
       heard testimony from Ms. Losey at sentencing about the severe impact it
       has had on her life. . . .
              14. After viewing the video, listening to how the crime has
       impacted Mr. Christian’s family and Ms. Losey and her family, listening to
       arguments made by Defense Counsel and Prosecution, and hearing from the
       defendant, the Court found that an exceptional sentence is justified.

CP at 128-29.

                                 LAW AND ANALYSIS

       On appeal, Matthew DeVore raises three challenges to his sentence of twenty-

seven years and six months. First, he contends the sentencing aggravator of a foreseeable

and destructive impact on others offers a vague standard to apply that renders the

aggravator unconstitutional. Second, he argues that the aggravating factor cannot form

the basis for an exceptional sentence because all family and loved ones of a murder

victim suffer from the victim’s death and so the circumstances of this appeal do not differ

from other second degree murder cases. Third, DeVore maintains that the trial court

imposed a clearly excessive sentence. In the published portion of this opinion, we


                                            9
No. 34728-1-III
State v. DeVore


address DeVore’s constitutional contention. We reserve discussion of DeVore’s statutory

arguments to the end of the opinion.

       We note that, during sentencing, Matthew DeVore argued the excessive nature of

a three hundred and thirty months’ sentence. Nevertheless, he did not argue that the

sentencing court could not employ the impact on others aggravating factor in order to

impose an exceptional sentence because all second degree murders involve the same

impact suffered on the victim’s family. Nor did DeVore challenge the constitutionality of

the aggravating factor.

       Generally, issues not raised in the trial court may not be raised for the first time on

appeal. State v. Nitsch, 100 Wn. App. 512, 519, 997 P.2d 1000 (2000). This rule,

however, is not an absolute bar to review. State v. Nitsch, 100 Wn. App. at 519. Illegal

or erroneous sentences may be raised for the first time on appeal. State v. Nitsch, 100

Wn. App. at 519. Matthew DeVore’s constitutional argument might also be reviewable

for the first time on appeal because the contention concerns a manifest constitutional

error. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).

       Matthew DeVore pled guilty to the aggravating factor. We wonder if his plea of

guilt constitutes a waiver to challenging the imposition of a sentence above the standard

range or to the constitutionality of the aggravating factor. We also wonder if his guilty

plea constitutes invited error.


                                             10
No. 34728-1-III
State v. DeVore


       The State does not contend that Matthew DeVore cannot raise any of his three

assignments of error on appeal. For this reason, we do not address whether DeVore

waived any arguments by his plea to the aggravating factor, whether he invited error,

whether we may review his sentence because of a purported illegal sentence, or whether

DeVore raises a manifest constitutional error. This opinion should not be construed as a

ruling in Matthew DeVore’s favor on these questions.

                                        Vagueness

       Matthew DeVore asks that we strike the destructive impact sentencing aggravator

as unduly and unconstitutionally vague in violation of the due process clause. He

emphasizes the ambiguity found in the words “destructive,” “foreseeable,” “impact,” and

“others.”

       The law demands that the legislature describe a crime in specific, not vague,

language, so that citizens and law enforcement may comprehend the variety of human

conduct that the legislature intends to proscribe, prevent, and punish. City of Spokane v.

Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990). The legislature holds a duty to

write statutes with specificity. State v. Richmond, 102 Wn.2d 242, 248, 683 P.2d 1093

(1984).

       In the State of Washington, the demand for precision in criminal statutes arises

from three constitutional provisions. Both the United States and the State of Washington


                                            11
No. 34728-1-III
State v. DeVore


Constitution prohibit the government from depriving one of life, liberty, or property

without due process of law. U.S. CONST. amend. XIV, § 1; CONST. art. I, § 3. In

addition, article I, section 22 of the Washington Constitution, grants an accused, in a

criminal prosecution, “the right . . . to demand the nature and cause of the accusation

against him.” These constitutional sections generate the void for vagueness doctrine.

       Before we address the vagueness or concreteness of the language in the statutory

aggravator, we must first determine whether the void for vagueness doctrine applies in

the context of a sentencing factor that may increase the length of incarceration, but not

beyond the statutory maximum for the crime. The State, based on State v. Baldwin, 150

Wn.2d 448, 78 P.3d 1005 (2003), contends sentencing aggravating factors are not subject

to a vagueness challenge. Matthew DeVore agrees that Baldwin stands for such a

proposition, but contends that United States Supreme Court decision and Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), overrule Baldwin.

Based on another recent United States Supreme Court decision, Beckles v. United States,

___ U.S. ___, 137 S. Ct. 886, 197 L. Ed. 2d 145 (2017), we agree with the State.

       In State v. Baldwin, Jeanne Baldwin challenged sentencing aggravators based on

former RCW 9.94A.120 (2000) and former RCW 9.94A.390 (2000). The first statute

allowed an exceptional upward sentence when a theft involved a degree of sophistication

greater than the typical theft. The second statute allowed the exceptional sentence when


                                            12
No. 34728-1-III
State v. DeVore


an attempted monetary loss substantially exceeded the typical loss for theft. The statutes’

present equivalents lie in RCW 9.94A.535(3)(d)(ii) and (iii). Before the state Supreme

Court, the State argued that the sentencing scheme assailed by Baldwin was not

susceptible to a vagueness attack since the void for vagueness doctrine applies only to

laws that proscribe or prescribe conduct and not to laws that provide sentencing

directives for judges.

       The Baldwin court noted that a vagueness analysis encompasses two due process

concerns. First, criminal statutes must be specific enough that citizens gain fair notice of

the proscribed conduct. Second, laws must provide ascertainable standards of guilt to

protect against arbitrary arrest and prosecution. State v. Baldwin, 150 Wn.2d at 458. The

court then reasoned that both prongs of the vagueness doctrine target laws that prohibit or

require conduct. The sentencing statutes challenged by Jeanne Baldwin did not define

conduct nor did they allow for arbitrary arrest and criminal prosecution by the State.

According to the Baldwin court, sentencing guidelines do not inform the public of the

penalties attached to a particular criminal act nor do they vary the statutory maximum and

minimum penalties assigned to illegal conduct by the legislature. A citizen reading the

statutes would not need to guess at the potential consequences that might befall one who

engages in prohibited conduct because the guidelines do not set penalties. Thus, the due

process considerations that underlie the void-for-vagueness doctrine have no application


                                             13
No. 34728-1-III
State v. DeVore


in the context of sentencing guidelines. The state Supreme Court rejected Baldwin’s

vagueness challenge to the two statutory aggravators.

       The Baldwin court did not recognize that statutory aggravating factors indirectly

proscribe crimes with egregious circumstances or harm. The statutes thereby impose

punishment because of identifiable conduct. Although an aggravating factor may not

lead to a sentence above the underlying crime’s maximum term, the aggravating factor

greatly influences the penalty assessed in individual cases.

       The Baldwin court did not discuss United States v. Batchelder, 442 U.S. 114, 99

S. Ct. 2198, 60 L. Ed. 2d 755 (1979), which applied vagueness principles to statutes that

fix sentences. Presumably the Baldwin court would distinguish Batchelder in that Jeanne

Baldwin’s challenge did not entail a challenge to the maximum sentence for her crime of

identity theft, but only involved guidelines for a range between the fixed limits of the

sentence. Under Washington law, an aggravating factor may not increase the offender’s

sentence beyond the maximum penalty imposed for the crime. State v. Gore, 143 Wn.2d

288, 313-14, 21 P.3d 262 (2001).

       We note the overruling of State v. Gore by State v. Hughes, 154 Wn.2d 118, 110

P.3d 192 (2005). State v. Suleiman, 158 Wn.2d 280, 143 P.3d 795 (2006), in turn,

mentions the overruling. Nevertheless, we do not consider Hughes to overrule Gore’s

rule that an aggravating factor may not increase the sentence beyond the maximum


                                            14
No. 34728-1-III
State v. DeVore


penalty imposed for the crime. Hughes instead held that, for purposes of whether the

sixth amendment demands that a jury decide aggravating factors in order to increase a

sentence, the “maximum sentence” is the maximum a judge may impose without any

additional findings. 154 Wn.2d at 131. Hughes did not address the maximum sentences

available for the various classes of felonies and misdemeanors under RCW 9A.20.021.

Nor did Hughes or Suleiman entail a challenge to the concreteness of a statute.

Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006),

overturned State v. Hughes, but on other grounds.

          When the Washington Supreme Court decided State v. Baldwin, the United States

Supreme Court had yet to decide Blakely v. Washington, 542 U.S. 296 (2004), which

demands that a jury find most aggravating sentencing factors beyond a reasonable doubt.

We find Blakely unhelpful in our context. We are unaware of a rule that distinguishes

between jury decisions and judge determinations in the setting of the void for vagueness

doctrine. Blakely did not entail a challenge to the vagueness of a crime of a sentencing

factor.

          Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) has some

relevance to this appeal. In Johnson, the government convicted Samuel Johnson of being

a felon in possession of a firearm. Under the federal Armed Career Criminal Act of

1984, 18 U.S.C. section 924, one convicted of the crime faces a more severe punishment


                                             15
No. 34728-1-III
State v. DeVore


if he has three or more previous convictions for any felony that “involves conduct that

presents a serious potential risk of physical injury to another.” 18 U.S.C.

§924(e)(2)(B)(ii). Under the act, a finding involving such a potential risk increases a

defendant’s prison term from a statutory maximum of ten years to a minimum of fifteen

years. Johnson challenged the statutory language as violative of the constitution’s

prohibition against vague criminal laws. The Court devoted most of its opinion to

addressing whether the statutory aggravator gave fair notice to the public. Before this

discussion, however, the Court noted that the statute addresses “conduct.” Johnson v.

United States, 135 S. Ct. at 2557. The court held:

              We are convinced that the indeterminacy of the wide-ranging inquiry
       required by the residual clause both denies fair notice to defendants and
       invites arbitrary enforcement by judges. Increasing a defendant’s sentence
       under the clause denies due process of law.

Johnson v. United States, 135 S. Ct. at 2557.

       We must distinguish Johnson v. United States with this past summer’s United

States Supreme Court opinion in Beckles v. United States, 137 S. Ct. 886, 197 L. Ed. 2d

145 (2017). Travis Beckles challenged for vagueness a provision of the federal advisory

sentencing guidelines. The guidelines include a clause defining a “crime of violence” as

an offense that “involves conduct that presents a serious potential risk of physical injury

to another.” One convicted of a crime that qualifies as a crime of violence is eligible for



                                            16
No. 34728-1-III
State v. DeVore




a sentence enhancement under the federal guidelines. The language echoes the

sentencing factor contained in the Armed Career Criminal Act at issue in Johnson v.

United States. Unlike in Johnson, however, the Supreme Court held that the void for

vagueness doctrine does not cover the advisory guidelines.

         The Beckles Court observed that vagueness concerns apply to laws that define

criminal offenses and that “fix the permissible sentences for criminal offenses.” 137 S.

Ct. at 892. Stated differently, laws “must specify the range of available sentences” with

sufficient clarity. Beckles v. United States, 137 S. Ct. at 892. The Beckles Court

concluded that the advisory guidelines did not fix the permissible range of sentences. To

the contrary, the guidelines merely guided the exercise of a court’s discretion in choosing

an appropriate sentence within the statutory range. Therefore, the guidelines were not

subject to a vagueness challenge under the due process clause. This holding remains true

even though the trial court holds unfettered discretion when sentencing inside a statutory

range.

         We consider Matthew DeVore’s appeal akin to Beckles v. United States, not

Johnson v. United States. The destructive impact factor does not increase the permissible

sentence of the offender. The trial court must still sentence the defendant within the


                                            17
No. 34728-1-III
State v. DeVore


statutory maximum of the crime, life imprisonment. Therefore, we hold that challenges

to the destructive impact factor and other aggravating factors under RCW 9.94A.535(3)

do not merit review under the void for vagueness doctrine. We do not then address any

vagaries of the aggravating factor.

       This court decided State v. Chanthabouly, 164 Wn. App. 104, 262 P.3d 144 (2011)

after the United States Supreme Court issued Blakely v. Washington, 542 U.S. 296

(2004). We noted that an offender could not challenge the destructive impact factor

under the void for vagueness doctrine because the factor does not increase the maximum

possible sentence for the subject crime. We rejected the application of Blakely because a

jury found the aggravating factor beyond a reasonable doubt.

       Matthew DeVore pled guilty to the aggravating factor of a destructive impact. He

pled guilty in order to avoid an amended information charging him with first degree

murder, a charge that likely would have led to life imprisonment. By pleading guilty, he

impliedly agreed that a jury would find the destructive impact factor beyond a reasonable

doubt. The sentencing court confirmed the presence of the factor.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opinions.




                                            18
No. 34728-1-III
State v. DeVore


                             Destructive and Foreseeable Impact on Others

          The trial court imposed an exceptional sentence on Matthew DeVore because of

the impact of the murder on people other than Thomas Christian. The Sentencing

Reform Act of 1981, chapter 9.94A RCW, allows exceptional sentences above the

standard sentencing range for the crime of conviction in numerous circumstances.

DeVore’s trial court relied on RCW 9.94A.535(3)(r). The statute declares:

                 The 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. . . .
                 Whenever a sentence outside the standard sentence range is
          imposed, the court shall set forth the reasons for its decision in written
          findings of fact and conclusions of law. . . .
                 ....
                 (3) Aggravating Circumstances—Considered by a Jury—Imposed
          by the Court
                 Except for circumstances listed in subsection (2) of this section, the
          following circumstances are an exclusive list of factors that can support a
          sentence above the standard range. . . .
                 (r) The offense involved a destructive and foreseeable impact on
          persons other than the victim.

(Emphasis added.) We will refer to RCW 9.94A.535(3)(r) as the “destructive impact”

factor.

          The Sentencing Reform Act authorizes exceptional sentences to impose additional

punishment when the particular offense at issue causes more damage than that




                                                19
No. 34728-1-III
State v. DeVore


contemplated by the statute defining the offense. State v. Davis, 182 Wn.2d 222, 229,

340 P.3d 820 (2014). An exceptional sentence is not justified if it is based on factors

necessarily considered by the legislature in establishing the standard sentence range.

State v. Law, 154 Wn.2d 85, 95, 110 P.3d 717 (2005). The aggravating factor must “be

substantial and compelling to distinguish the crime in question from others in the same

category.” State v. Law, 154 Wn.2d at 95 (quoting State v. Ha’mim, 132 Wn.2d 834,

840, 940 P.2d 633 (1997)).

       The legislature enacted RCW 9.94A.535(3)(r) in 2005. LAWS OF 2005, ch. 68, §

3. Before adoption of the subsection, sentencing courts sometimes imposed exceptional

sentences based on a crime’s harmful impact on nonvictims in a distinctive manner not

usually associated with the commission of the subject crime. State v. Johnson, 124

Wn.2d 57, 63-64, 873 P.2d 514 (1994); State v. Mulligan, 87 Wn. App. 261, 263, 941

P.2d 694 (1997); State v. Way, 88 Wn. App. 830, 832, 946 P.2d 1209 (1997). RCW

9.94A.535(3)(r) essentially codifies case law. Under the statute, an exceptional sentence

continues to require an impact of a destructive nature not normally associated with the

commission of the offense in question. State v. Webb, 162 Wn. App. 195, 206, 252 P.3d

424 (2011).

       Before adoption of RCW 9.94A.535(3)(r), this court held that the impact of a

crime on persons not present at its commission can support an exceptional sentence.


                                            20
No. 34728-1-III
State v. DeVore


State v. Barnes, 58 Wn. App. 465, 474-75, 794 P.2d 52 (1990); State v. Crutchfield, 53

Wn. App. 916, 928, 771 P.2d 746 (1989). Nevertheless, we particularly applied the

factor when eyewitnesses observed an assault. State v. Cuevas-Diaz, 61 Wn. App. 902,

906, 812 P.2d 883 (1991); State v. Barnes, 58 Wn. App. at 475.

       This court dissected the term “destructive impact” in State v. Webb, 162 Wn. App.

195:

               “Destructive” is an adjective meaning[:] “[H]aving the capability,
       property, or effect of destroying: causing destruction.” WEBSTER’S THIRD
       NEW INTERNATIONAL DICTIONARY 615 (1993). An exceptional sentence
       based on a foreseeable and destructive impact on others requires an impact
       that is foreseeable to the defendant and “of a destructive nature that is not
       normally associated with the commission of the offense in question.”
       When used as a noun, the definition of “impact” is[:] “[T]he force of
       impression of one thing on another: . . . a concentrated force producing
       change: an esp. forceful effect checking or forcing change.” WEBSTER’S
       supra, at 1131.

(Emphasis added) (internal citations omitted) (some alterations in original). We may not

find these definitions particularly helpful, but we note that the trier of fact determines

foreseeability from the vantage point of the offender. State v. Crutchfield, 53 Wn. App.

at 928 (1989) also adjudged foreseeability from the standpoint of the defendant.

       Matthew DeVore argues his killing of Thomas Christian impacted Christian’s

family no differently from the effect murder has on any other victim’s family. Stated

differently, DeVore argues that nothing substantial and compelling distinguishes his



                                             21
No. 34728-1-III
State v. DeVore


crime from other second degree murder offenses. DeVore also claims the legislature

already accounted for the emotional toll on a victim’s family when setting the standard

range.

         We might agree with Matthew DeVore with respect to the emotional impact on

Thomas Christian’s mother, children, siblings, and other extended family members. The

psychological toll of the murder on Christian’s family members must be severe and

enduring, but all murder victims’ kin experience similar emotional trauma. Nevertheless,

the trial court based the exceptional sentence also on the impact of Christian’s death on

his girlfriend, Brenda Losey, who witnessed the death. As noted above the destructive

impact factor particularly applies to eyewitnesses.

         Brenda Losey feared for her life, but fearlessly sought to protect her boyfriend.

She desperately grasped and sought to save her loved one’s life as he expired in her

clutch. As a percipient witness to the killing, Losey daily replays the killing in her

thoughts. Matthew DeVore knew of the presence of Losey next to her love, Thomas

Christian, and thus DeVore could foresee the impact on her. The emotional trauma

suffered by Losey differs from the trauma suffered by other loved ones of a murder

victim.

         State v. Chanthabouly, 164 Wn. App. 104 (2011) parallels Matthew DeVore’s

appeal. A jury convicted Douglas Chanthabouly of second degree murder with the


                                              22
No. 34728-1-III
State v. DeVore


aggravating factor that the murder involved a destructive and foreseeable impact on

persons other than the victim. Chanthabouly attended high school. He approached

fellow student Samnang Kok in the hallway before first period, pulled a gun, shot Kok in

the head from a distance of one foot, and shot Kok two more times after Kok collapsed to

the floor. An unknown number of students saw the murder, and an unknown number of

students, teachers, and administrators heard the shooting. One student saw the killing

from three to four feet from Chanthabouly. A second student observed the execution

from eight to ten feet from Kok. The second student heard Chanthabouly comment:

“‘Boom, mother fucker,’” before firing the second shot. State v. Chanthabouly, 164 Wn.

App. at 125. During trial, five adults and one student testified to the impact of the

shooting, including fear among the student population while inside the school building

and students’ need for counseling.

       On appeal, in State v. Chanthabouly, this court affirmed the aggravated sentence

based on the foreseeable and destructive impact on others. We held that a rational trier of

fact could have found the shooting involved a destructive impact. We noted that two

students observed the shooting from close proximity. We commented that some

administrators suffered a destructive impact when attempting to save Sam Kok’s life.

       The law generally demands that the jury determine the presence of an aggravating

factor. Matthew DeVore pled guilty to the aggravator so no jury finding followed. The


                                             23
No. 34728-1-III
State v. DeVore


trial court, however, justifiably confirmed the presence of a destructive and foreseeable

impact on others. The impact on Brenda Losey coincides with the impact on the

eyewitnesses in State v. Chanthabouly.

       In a footnote, Mathew DeVore alternatively argues that, even if this court rules

that the murder’s impact on Brenda Losey adequately distinguishes his crime from other

murder offenses, we should still remand for resentencing. DeVore emphasizes that the

sentencing court drew no distinction in its findings of fact between the impact on Losey

and the impact on members of Thomas Christian’s family. We disagree. One finding of

fact states that the video showed the significant impact on Brenda Losey, who was

present at the time of the stabbing. This finding notes a distinct impact on Losey.

                                   Excessive Sentence

       Matthew DeVore next argues that his exceptional sentence is excessive because

the one hundred and ten months’ sentence imposed for the aggravator lasts longer than if

he had stabbed or shot, but not killed, Brenda Losey, the other person whose distress led

to the aggravated sentence. A conviction of first degree assault for stabbing Losey would

carry a presumptive mid-range sentence of one hundred and three months. WASH. STATE

CASELOAD FORECAST COUNCIL, 2016 WASHINGTON STATE ADULT SENTENCING

GUIDELINES MANUAL 214 (2016).

       This court reviews an exceptional sentence only for abuse of discretion. State v.


                                            24
No. 34728-1-III
State v. DeVore


Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 (1995). If the record supports the reasons

for the exceptional sentence and justifies an increased exceptional sentence, a reviewing

court may reverse only if no reasonable person would have imposed the sentence. State

v. Vaughn, 83 Wn. App. 669, 680-81, 924 P.2d 27 (1996).

       If the trial court does not base its sentence on an improper reason such as race, this

reviewing court will not deem the sentence excessive unless its length, in light of the

record, shocks the conscience. State v. Ritchie, 126 Wn.2d at 396, aff’d, sub nom. State

v. Ritchie, 126 Wn.2d 388 (1985). A harsh sentence is not excessive. State v. Scott, 72

Wn. App. 207, 221, 866 P.2d 1258 (1993). For example, in State v. Scott, Jai-Mar Eli

Scott was convicted of murder in the first degree. The sentencing court entered findings

of fact outlining its reasons for departure from the standard range, including Scott’s abuse

of trust, the victim’s vulnerability, deliberate cruelty, and multiple injuries inflicted in the

commission of the crime. The defendant’s standard range was 240 to 320 months. The

trial court imposed an exceptional sentence of 900 months which this court affirmed

because the sentence did not shock the conscience.

       Matthew DeVore’s exceptional sentence is fifty percent beyond the standard

range. We have accepted much higher departures such as in State v. Scott. In State v.

Vaughn, 83 Wn. App. at 681 (1996), we approved a sentence 2.5 times greater than the

top of the standard range.


                                              25
No. 34 728-1-III
State v. De Vore


       Our trial court record supports the exceptional sentence. Matthew De Vore

committed the murder in public. Both strangers and the victim's girlfriend experienced

the shock and horror of the stabbing. The girlfriend constantly relives the incident.

Adding one hundred and ten months as an exceptional sentence does not shock the

conscience.

                                     CONCLUSION

       We affirm Matthew DeYore's sentence of three hundred and thirty months. We

deny the State costs on appeal because of the indigency of DeVore.



                                             Fearin~'

WE CONCUR:

    dZUw~fJ--
Siddoway, J.                                 Lawrence-Berrey, J. \
                                                                                   j




                                            26
