The Appellate panel continued:
The State also argued at the resentence hearing that the record supported aggravating factor three, the risk of re-offense. The trial judge rejected consideration of that factor because of defendant’s successful rehabilitative efforts. A court’s findings on the risk of re-offense should “involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history.”
In Thomas, for example, factor three was accorded weight based on the quantity of drugs the defendant had for sale when arrested, which exceeded that necessary for the degree of his conviction. It was not double-counting to include the excess to establish that factor.
In State v. Varona (1990), an established businessman in the community with no prior record was arrested while in possession of a very substantial amount of drugs, properly supporting aggravating factor three, despite defendant’s lack of a prior record.
The nature of the activity in Thomas and Varona established the nature of the risk that the defendants would reoffend. A defendant’s claims about rehabilitation have to be weighed against the criminal history, and include, when possible, objective information in the record such as the offense circumstances.
Defendant’s substantial level of intoxication when the accident occurred, like the quantity of drugs in Thomas and Verona, at a minimum, means that there is a risk that she may relapse at some point in her life despite her best efforts. And that possibility means there is a risk she will again commit an offense while intoxicated. The judge should not have summarily rejected aggravating factor three solely because of her rehabilitation.
Once again, the Appellate panel’s interpretation of the aggravating factors would seem to make them present in almost all cases as opposed to cases with aggravating circumstances. With aggravating factor three, the implication is that unless the bare minimum quantity of drugs or alcohol needed to support a charge is involved, aggravating factor three would be present.