(dissenting) — I dissent. I cannot concur in the majority's conclusion future dangerousness is never an appropriate justification for an exceptional sentence in a nonsexual offense case. The majority both attempts to reopen issues already decided and ignores important objectives of the Sentencing Reform Act of 1981 (SRA) (RCW 9.94A).
In State v. Pryor, 115 Wn.2d 445, 799 P.2d 244 (1990), this court unanimously accepted future dangerousness as an appropriate justification for an exceptional sentence in a sexual offense case. Although the majority does not expressly overturn that result, the majority's analysis significantly undermines and confuses our decision in Pryor. The majority does not focus on any distinction between sexual and nonsexual offenses. Rather, the majority attacks the notion of future dangerousness generally. The majority questions trial courts' ability to predict future dangerousness and even goes so far as to reject outright future dangerousness as a consideration in imposing a sentence. Majority, at 707, 708-09. The majority concludes, "Because future dangerousness punishes an offender for a crime which the State has neither charged nor proven, it cannot, and should not, be considered in imposing a sentence." Majority, at 707. In so doing, the majority directly contradicts a unanimous decision by this court only 1 year ago. Pryor, 115 Wn.2d at 453. We have already determined *715future dangerousness is a viable aggravating factor which may be predicted with sufficient certainty. I see no reason to reconsider that conclusion now.
The majority also confuses the standard adopted in Pryor. To justify an exceptional sentence based on future dangerousness, Pryor required both a history of similar criminal acts and a lack of amenability to treatment. Pryor, 115 Wn.2d at 453. Contrary to the majority's assertions, Pryor requires more than the ordinary criminal history which has already been considered in estabhshing the standard sentence range. The Pryor standard requires a history of similar criminal acts, thereby estabhshing a dangerous trend or tendency on the part of the defendant. The majority's hypothetical in which a defendant's criminal history includes the varied and unrelated crimes of burglary, kidnapping, and arson would not satisfy the "similar criminal acts" standard. See majority, at 708-09. Contrary to the majority's assertion, a pattern of similar criminal acts may exist both in and out of the sexual offense context. In this case, each of the defendants' criminal history demonstrated a pattern of aggressive, assaultive behavior.
Finally, and most importantly, the majority fails to recognize the full spectrum of objectives embraced by the SRA. The first and overriding objective of the SRA is retribution or just deserts. State v. Rice, 98 Wn.2d 384, 393, 655 P.2d 1145 (1982); D. Boemer, Sentencing in Washington 2-31 (1985). The majority correctly identifies this objective. However, just deserts is only part of the overall purpose of the SRA. The SRA also includes protection of the public and offering the offender an opportunity to improve him- or herself among its varied objectives. RCW 9.94A.010(4), (5). While arguably at odds with the ideal of just deserts, these utilitarian objectives are no less a part of the overall scheme of the SRA. As Professor Boerner writes:
The tension between utilitarian purposes, in which the goal is to accomplish some future objective, and principles of *716retribution and desert, which focus on what has occurred in the past, is deep and persistent. Historically, most theoreticians have denied the possibility that these purposes could be integrated. . . .
. . . The Sentencing Reform Act's statement of purposes is drawn from and based upon the thesis that this integration can be accomplished.
. . . [I]t is clear that the Act does not accept the argument of those theoreticians who argue for just deserts as the sole purpose for which punishment should be imposed.
D. Boemer, at 2-30 through 2-34. By completely failing to account for the competing utilitarian objectives, the majority ignores express legislative intent and construes the SRA in a manner which falls well short of its fuller objectives.
When the express objectives of the SRA are viewed in their entirety, future dangerousness is clearly an appropriate justification for an exceptional sentence, even in nonsexual offense cases. RCW 9.94A.390 provides a nonexclusive list of aggravating factors which may justify an exceptional sentence. When this court considers the validity of a proposed additional aggravating factor to justify an exceptional sentence, the express purposes of the SRA provide the criteria against which the proposed aggravating factor must be measured. RCW 9.94A. 120(2). In this instance, the SRA expressly includes protection of the public among its six enumerated objectives. RCW 9.94A-.010(4). Therefore, while punishment and just deserts are the primary purposes of the SRA, protection of the public is an equally valid competing purpose which may justify an exceptional sentence under narrowly controlled circumstances. Accordingly, I would accept future dangerousness as an appropriate aggravating factor in a nonsexual offense case.
The use of future dangerousness as an aggravating factor in nonsexual offense cases is supported by decisions from our own Court of Appeals, the Minnesota Supreme Court, and the United States Supreme Court. Barefoot v. Estelle, 463 U.S. 880, 897, 77 L. Ed. 2d 1090, 103 S. Ct. *7173383 (1983) (homicide); State v. Vandervlugt, 56 Wn. App. 517, 523, 784 P.2d 546 (1990) (assault and kidnapping); State v. Davis, 53 Wn. App. 306, 316, 766 P.2d 1120 (vehicular homicide and felony hit and run), review denied, 112 Wn.2d 1015 (1989); Jackson v. State, 329 N.W.2d 66, 67 (Minn. 1983) (burglary); State v. Park, 305 N.W.2d 775, 776 (Minn. 1981) (unauthorized use of motor vehicle).
If future dangerousness were correctly accepted as an aggravating factor justifying an exceptional sentence, the court would need to establish the criteria by which future dangerousness would be identified. In Pryor, both a history of similar criminal acts and a lack of amenability to treatment were required. Pryor, 115 Wn.2d at 454. A history of similar acts is also an appropriate requirement for a finding of future dangerousness in nonsexual offense cases. Nothing in the distinction between sexual and nonsexual offenses renders such a factor less relevant in the nonsexual offense setting. In fact, the courts of this state have concluded any finding of future dangerousness without a history of similar acts or other corroborating evidence both offers wide latitude for abuse and undermines the general objectives of the SRA. State v. Payne, 45 Wn. App. 528, 533, 726 P.2d 997 (1986). The real issue here is defining a second criteria which will adequately control the use of future dangerousness as an aggravating factor.
The compulsory treatment option renders amenability to treatment especially relevant in sexual offense cases. However, the SRA does not totally abandon a rehabilitative ideal in the nonsexual offense context. While the SRA rejects the traditional notion of coerced rehabilitation, the act does adopt a philosophy of facilitative rehabilitation in which a rehabilitative process is offered and encouraged, but never required. See D. Boemer, at 2-35. To this end, the SRA expressly adopts among its six purposes the desire to "[o]ffer the offender an opportunity to improve him or herself. RCW 9.94A010(5). Pursuant to this facilitative philosophy, the Washington State Department of Corrections (DOC) encourages all inmates to participate *718in educational or vocational programs. DOC offers inmates an opportunity to participate in a variety of self-improvement programs addressing anger and stress management, mental health, and substance abuse. Division of Prisons Facility Description Overview, in Department of Corrections, A Guide to DOC Facilities (Nov. 30, 1989). The effect of the SRA's facilitative approach is to provide nonsexual offenders two vehicles by which to overcome existing deficiencies: (1) The incarceration itself with the attendant time for reflective contemplation and maturation; and (2) the various optional treatment and self-help opportunities.
I would hold that, within the context of a nonsexual offense case, a finding of future dangerousness requires both a history of similar criminal acts and a finding based on expert testimony that the defendant poses a threat to the public beyond that which could reasonably be ameliorated by incarceration for a period conforming to the standard range. The inquiry under this standard necessarily bears a great similarity to the lack of amenability to treatment. However, the essential focus here is whether the standard sentence range provides an adequate opportunity for the defendant to overcome existing deficiencies through the combined effects of the incarceration and optional treatment programs.
Decisions from this state's Court of Appeals are consistent with such a narrow standard in nonsexual offense cases. Although only two prior cases have directly considered future dangerousness as an aggravating factor in nonsexual offense cases, both relied heavily on evidence of the defendant's poor prognosis. In Vandervlugt, the record demonstrated a strong history of violent criminal behavior and a letter from a Department of Social and Health Services doctor testified to the defendant's "severe personality disorder" and the poor prognosis for change. The court expressly concluded the defendant "posed a threat to the community beyond that which could be ameliorated by incarceration for a period conforming to the standard range." Vandervlugt, 56 Wn. App. at 523. In Davis, the *719court upheld the use of future dangerousness as an aggravating factor in sentencing for a vehicular homicide conviction where the defendant was intoxicated when he committed the crime, disdained substance abuse treatment, and refused to accept responsibility for his behavior. Davis, 53 Wn. App. at 313-15.
This narrow standard is also consistent with the general objectives and principles of the SRA. The utilitarian purposes of the SRA establish a tension between protection of the public and hope for the individual's improvement. The opening section of the SRA provides the act is designed both to "[pjrotect the public" and to "[o]ffer the offender an opportunity to improve him or herself'. RCW 9.94A.010(4), (5). Where a sentence conforming to the standard range is insufficient to ameliorate the threat posed by the defendant because the defendant cannot overcome deficiencies in his behavior within that time, both objectives are furthered.
For these reasons, I would accept future dangerousness as an aggravating factor justifying an exceptional sentence. As a result, I disagree with the majority and would affirm the sentences of defendants Smith and Worl. However, I would vacate the sentence of defendant Barnes and remand him for resentencing. The State conceded the invalidity of one of the three aggravating factors in the Court of Appeals. State v. Barnes, 58 Wn. App. 465, 474, 794 P.2d 52 (1990). I would also reverse the finding of future dangerousness because the trial court acted without the aid of any expert testimony or any other evidence indicating the crime was motivated by a compulsion which is difficult if not impossible to overcome. Barnes, 58 Wn. App. at 476. Since two of the three aggravating factors relied on by the trial court are invalid, I would remand defendant Barnes for resentencing.
Brachtenbach and Durham, JJ., concur with Dolliver, J.