                                                                           FILED 

                                                                         MAY 23, 2013 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                        )         No. 3·0059-5-111
                                            )
                    Respondent,             )
                                            )
             v.                             )
                                            )
RONALD PAYNE PROMINSKI,                     )         UNPUBLISHED OPINION
                                            )
                    Appellant.              )

      BROWN, J. - Ronald Payne Prominski appeals his sentences for two counts of

vehicular homicide and one count of reckless endangerment. He contends the trial

court denied him equal protection and due process, and abused its discretion in

sentencing him more harshly than his codefendant, Jonas Jackson Keys IV. We affirm.

                                         FACTS

      In February 2010, Mr. Prominski crashed his car, killing two passengers and

injuring a third passenger. Mr. Prominski had attempted to pass Mr. Keys's car at a

high speed in a no-passing zone when he lost control, slid across the road, hit a

guardrail, spun across a campground entrance, and struck a tree off the road. Mr.

Prominski stated he and Mr. Keys had been playing a game of "cat and mouse." Report

of Proceedings (RP) (June 8,2011) at 171.
No. 30059-5-111
State v. Prominski

      The State charged Mr. Prominski and Mr. Keys each with two counts of vehicular

homicide and two counts of reckless endangerment. Mr. Prominski stood a jury trial

and Mr. Keys stood a bench trial. The jury convicted Mr. Prominski of both vehicular

homicide counts and one reckless endangerment count. The trial court convicted Mr.

Keys as charged.

      At sentencing, the court noted the codefendants' cases were "almost identical,"

presenting "two precise, identical sets of facts." RP (June 20, 2011) at 20. 22. Even so,

the court sentenced Mr. Prominski to 34 months' imprisonment for the vehicular

homicides, consecutive with 12 months' jail confinement for the reckless endangerment,

while sentencing Mr. Keys to 26 months' imprisonment for the vehicular homicides,

concurrent with six months' jail confinement for the reckless endangerments. The court

explained to Mr. Keys the reasons for his sentences,

      [Y]ou were not the driver of the car in which the two youths were killed.
      And as the factfinder ... in this case, also, I'm allowed, and was allowed,
      to make those kinds of judgments as to what kind of driving you exhibited
      and what kind of driving [Mr. Prominski] ... exhibited.
              And in making those comparisons, I can establish a common-sense
      sentencing scheme based on that. You were not the driver that - that first
      of all attempted the bad pass, and then you're not the driver that made the
      bad pass just before [the campground] on a curve in the middle of the
      night, wet roads, at high speeds, and a pass that was illegal. You weren't
      that driver.

RP (State v. Keys, No. 29768-3-111, Mar. 7, 2011) at 536-37. The court explained to Mr.

Prominski the reasons for his sentences,

      [Mr. Keys] was not in the car in which the two young men died. He was,
      as [his attorney] argued very persuasively, just there. He may have been
      speeding, but he was not doing anything other than that that was illegal on
      its face ....


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No. 30059-5-111
State v. Prominski


             Mr. Prominski was the driver of the vehicle in which the two young
       men died and it was ultimately his determination that he could make that
       pass and that it was acceptable or safe or whatever was going through his
       mind, which ended in the tragedy.

RP (June 20, 2011) at 22-23. Mr. Prominski appealed.

                                         ANALYSIS

       The issue is whether the trial court violated equal protection or due process

principles in its disparate sentencing of Mr. Prominski compared to Mr. Keys. We

review alleged constitutional violations de novo. State v. Siers, 174 Wn.2d 269, 273-74,

274 P.3d 358 (2012).

       First, Mr. Prominski contends the court denied him equal protection because he

and Mr. Keys were similarly situated and no rational basis supports their disparate

sentences. The federal equal protection clause provides, "No state shall ... deny to

any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend.

XIV, § 1; see also State v. Smith, 117 Wn.2d 263, 281,814 P.2d 652 (1991)

(interpreting CONST. art. I, §12's privileges and immunities clause the same as the

federal equal protection clause because they provide "substantially identical"

guarantees). A trial court denies equal protection if it administers a valid law '''in a

manner that unjustly discriminates between similarly situated persons.'" State v.

Handley, 115 Wn.2d 275, 289,796 P.2d 1266 (1990) (quoting State v. Chelan County

Sheriff's Oep't, 110 Wn.2d 806, 811,756 P.2d 736 (1988)); see Yick Wo v. Hopkins,

118 U.S. 356, 373-74,6 S. Ct. 1064,30 L. Ed. 220 (1886).




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No. 30059-5-111
State v. Prominski

       Imposing disparate sentences among codefendants denies equal protection if the

codefendants are similarly situated and no rational basis 1 supports their disparate

sentences. Handley, 115 Wn.2d at 290. Codefendants are similarly situated if they

shared "near identical participation in the same set of criminal circumstances." Id. A

rational basis supports disparate sentences if the classification is rationally related to a

legitimate state interest, such as punishing codefendants based on "relative culpability."

Id. at 292 (citing State v. Clinton, 48 Wn. App. 671, 680, 741 P.2d 52 (1987); People v.

Centanni, 164 III. App. 3d 480,493, 115 III. Dec. 521,517 N.E.2d 1207 (1987»; see

State v. Osman, 157 Wn.2d 474,486,139 P.3d 334 (2006).

       Here, the trial court noted while Mr. Prominski drove the vehicle in which the

victims died, and while he alone decided to fatally pass the other vehicle, Mr. Keys was

"just there." RP (June 20,2011) at 22. Thus, in the trial court's rational view, Mr.

Prominski had greater participation and culpability in the collision than did Mr. Keys.

Moreover, their different roles justify different punishments. The different punishment

for Mr. Prominski is rationally related to the legitimate state interest of punishing

codefendants based on relative culpability. Therefore, they were not similarly situated

and a rational basis supports their disparate sentences. It follows that the trial court did

not deny Mr. Prominski equal protection.

       Second, Mr. Prominski contends the trial court denied him due process because

sentencing him to more confinement than Mr. Keys "yields the appearance of



       1The strict and intermediate levels of judicial scrutiny do not apply here because
Mr. Prominski does not argue he is a member of a suspect or sernisuspect class, or that

                                              4

No. 30059-5-111
State v. Prominski

unfairness." Appellant's Opening Br. at 10. The federal due process clause applicable

here provides, "No state shall ... deprive any person of life, liberty, or property, without

due process of law." U.S. CONST. amend. XIV, § 1; see also State v. Herzog, 112

Wn.2d 419,426,771 P.2d 739 (1989) (interpreting CONST. art I, § 3's due process

clause the same as the federal due process clause absent any argument the state

provision secured greater sentencing protection than the federal provision). A trial court

denies due process if it imposes a sentence "so arbitrary or unfair" as to constitute an

unlawful deprivation. Handley, 115 Wn.2d at 290 n.4; see Bearden v. Georgia, 461

U.S. 660, 666 n.8, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

       Because Mr. Prominski and Mr. Keys were not similarly situated, and because a

rational basis supports their disparate sentences, Mr. Prominski's sentence was

reasonable and fair. Therefore, the trial court did not deny Mr. Prominski due process.

To the extent Mr. Prominski separately challenges his sentencing hearing under the

appearance of fairness doctrine,2 we reject his challenge because he presents no

evidence the trial judge held actual or potential bias. See State v. Post, 118 Wn.2d 596,

619 & n.8, 826 P.2d 172, 837 P.2d 599 (1992).

       Third, Mr. Prominski contends the trial court abused its discretion because his

harsher sentence was manifestly unreasonable. The Sentencing Reform Act of 1981

(SRA), chapter 9.94A RCW, applies solely to "the sentencing of felony offenders."



state action threatens his fundamental or important rights. See State v. Osman, 157
Wn.2d 474, 484,139 P.3d 334 (2006).
       2 "Under the appearance of fairness doctrine, a judicial proceeding is valid only if
a reasonably prudent, disinterested observer would conclude that the parties received a

                                             5
No. 30059-5-111 

State v. Prominski 


RCW 9.94A.010; see State v. Bowen, 51 Wn. App. 42, 46, 751 P.2d 1226 (1988). 


Vehicular homicide is a class A felony but reckless endangerment is a gross 


misdemeanor. RCW 9A.36.050(2); RCW 46.61.520(2). Therefore, we review Mr. 


Prominski's vehicular homicide sentences under the SRA and reckless endangerment 


sentences under non-SRA sentencing authority. 


       Where a trial court imposes an SRA sentence within the standard sentence

range, we may not review the sentence's length because, as a matter of law, the trial

court did not abuse its discretion. RCW 9.94A.585(1); State v. Ammons, 105 Wn.2d

175, 182-83,713 P.2d 719, 718 P.2d 796 (1986). But we may review a trial court's

SRA sentencing procedures if they do not comply with constitutional or statutory

requirements. State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993); Herzog, 112

Wn.2d at 423. For Mr. Prominski's vehicular homicide convictions, the trial court

imposed imprisonment within the 26- to 34-month standard sentence range. RCW

9.94A.510; RCW 9A.20.021(1)(a). Therefore, we may review solely whether the trial

court's vehicular homicide sentencing procedures complied with constitutional or

statutory requirements as completed above.

       We review a non-SRA sentence for abuse of discretion. State v. Smith, 93

Wn.2d 329, 353, 610 P.2d 869 (1980). A trial court abuses its non-SRA sentencing

discretion if its decision is '''manifestly unreasonable,'" based on '''untenable grounds,'"




fair, impartial and neutral hearing." State v. Gamble, 168 Wn.2d 161, 187,225 P.3d
973 (2010) (citing State v. Bilal, 77 Wn. App. 720,722,893 P.2d 674 (1995».

                                              6
No. 30059-5-111
State v. Prominski

or made for "'untenable reasons.",3 State v. Blight, 89 Wn.2d 38,40-41,569 P.2d 1129

(1977) (quoting State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971».

For Mr. Prominski's reckless endangerment conviction, the trial court imposed jail

confinement within the 12 month maximum sentence and consecutive with his vehicular

homicide sentences. RCW 9.92.080(2)-(3); former RCW 9A.20.021 (2) (2003). Mr.

Prominski does not explain why his reckless endangerment sentence was manifestly

unreasonable. Given this record, we conclude the trial court did not abuse its discretion

and did not err in sentencing Mr. Prominski to more confinement than Mr. Keys.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                        Brown, J.

WE CONCUR:



'Korsmo, C.J.
                0'-­
                                                         ~/;}-'
                                                        Siddoway, J.



       3 A decision is based on untenable grounds or made for untenable
       reasons if it rests on facts unsupported in the record or was reached by
       applying the wrong legal standard. A decision is manifestly unreasonable
       if the court, despite applying the correct legal standard to the supported
       facts, adopts a view that no reasonable person would take, and arrives at
       a decision outside the range of acceptable choices.
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (citations omitted) (internal
quotation marks omitted).


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