[No. 2005-2. Division Two. Court of Appeals October 25, 1976.]
THE STATE OF WASHINGTON, Respondent, V. WILLIAM C. BATTEN, Appellant.
[1] Criminal Law - Punishment - Sentence - Concurrent or Consecutive - Considerations - Arrest on Other Charge. A trial court's determination of whether sentences for two or more offenses are to run concurrently or consecutively is discretionary and will be overturned only for abuse of that discretion, i.e., discretion manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Consideration of the defendant's arrest for another offense does not constitute such an abuse.
Appeal from a judgment of the Superior Court for Kitsap County, No. C-1533, Jay W. Hamilton, J., entered June 2, 1975. Affirmed.
Prosecution for assault. The defendant appeals from a conviction and sentence.
Ronald D. Hess, for appellant (appointed counsel for appeal).
John C. Merkel, Prosecuting Attorney, and Warren K. Sharpe, Deputy, for respondent.
COCHRAN, J.* -
The sole question raised on this appeal is whether, in sentencing the defendant to consecutive terms on three counts of assault, the trial court abused its discretion in considering the arrest of the defendant in another county on a charge of murder.
The defendant was convicted by a jury on three counts of second-degree assault on three of his stepchildren. Prior to sentencing, he was charged with the murder of two women in Grays Harbor County. The trial court, referring specifically to the charge in Grays Harbor County, sentenced him to three 10-year sentences, to run consecutively.
[1] RCW 9.92.080(2) and (3) provide in part as follows:
Whenever a person is convicted of two or more offenses . . . . . . the sentences imposed therefor shall run
*Judge John D. Cochran is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.
314 STATE v. BATTEN [Oct. 1976
16 Wn. App. 313, 556 P.2d 551
consecutively, unless the court, in pronouncing the second or other subsequent sentences, expressly orders concurrent service thereof.
The court in State v. Dainard, 85 Wn.2d 624, 628, 537 P.2d 760 (1975) said: [W]e recognize that an arrest, without charge, trial and conviction, is not proof of guilt. It is, however, evidence that the arresting officer considered that he had probable cause to make the arrest. The occurrence is one which has some relevance to the question before the court in a sentencing procedure.
On the question of abuse of discretion, the court in State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971) said:
Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. (Citation omitted.)
The court stated in State v. Birdwell, 6 Wn. App. 284, 299, 492 P.2d 249 (1972):
"Discretionary abuse may exist only where it can be said that no reasonable man would take the view adopted by the trial court."
The trial court did not abuse its discretion in sentencing the defendant.
Judgment affirmed.
REED, A.C.J., and RUMMEL, J. Pro Tem., concur.